Britton and Comcare (Compensation)
[2023] AATA 3505
•30 October 2023
Britton and Comcare (Compensation) [2023] AATA 3505 (30 October 2023)
Division:GENERAL DIVISION
File Number(s): 2022/1771
Re:Nicole Britton
APPLICANT
AndComcare
RESPONDENT
DECISION
Tribunal:Senior Member O'Donovan
Date:30 October 2023
Place:Canberra
The applicant’s application for an adjournment and an opportunity to file a revised Statement of Facts Issues and Contentions and further evidence is refused.
The respondent’s application to dismiss the proceedings under section 42B (c) as an abuse of process is granted.
…………………………[sgd]………………………....
Senior Member Damien O’Donovan
CATCHWORDS
PRACTICE AND PROCEDURE - workers' compensation - abuse of process - whether an application is an abuse of process - whether the Tribunal should consider the reasonable prospects of success - whether the applicant should be permitted to relitigate [issues - where the applicant has previously settled a related claim - application for abuse of process granted - substantive application dismissed
LEGISLATION
Administrative Appeals Tribunal Act 1975 (Cth), 2A, 25, 33, 42A, 42B, 42C
Safety, Rehabilitation and Compensation Act 1988 (Cth), s 16
CASES
Blair v Curran (1939) 62 CLR 464
Commonwealth v Snell (2019) 269 FCR 18
Ellison v Comcare [2022] FCA 95
Novosel v Comcare [2017] FCA 722
Re Grimsley and Telstra Corporation Ltd (2010) 51 AAR 401
Re Mitchell and Military Rehabilitation and Compensation Commission [2017] AATA 1421
Re Quinn and Australian Postal Corporation (1992) 15 AAR 519Szabo v Comcare (2012) 58 AAR 152
SECONDARY MATERIALS
Peter Sutherland and Allan Anforth, Annotated Safety, Rehabilitation and Compensation Act 1988 (The Federation Press and Softlaw Community Projects, 12th ed, 2023) 810 [326]
REASONS FOR DECISION
Senior Member O'Donovan
Introduction
In November 2018, the applicant in these proceedings, Nicole Britton, experienced very severe pain in her cervical spine. Nerve impingement was identified on MRI scans by her treating doctors and surgery was performed in December 2018 to relieve the symptoms. The surgery was partially successful. The acute symptoms were relieved, but she continues to have ongoing left-sided pain and weakness which has reduced her work capacity and requires ongoing treatment.
The applicant made a claim for workers’ compensation in December 2018.
In broad terms, Comcare has denied the claim and refused to pay for medical treatment or incapacity on the basis that the acute symptoms, resulting in surgery and ongoing incapacity are the product of degenerative changes in the spine which are not work related. The applicant has a different view. She has brought two applications to the Tribunal. The first was commenced in 2019 and resolved by consent in October 2020. In that application the applicant pressed the contention that her work duties with the Australian Federal Police from March to May 2018 were responsible for the acute symptoms she suffered in November 2018. Those proceedings were resolved by a section 42C consent decision. Comcare’s rejection of the claim in relation to a cervical spine condition was affirmed.
In the current proceedings, commenced in 2022, the applicant contends that her November 2018 symptoms are related to a fall she had just outside her workplace in April 2001.
The matter came on for hearing in April 2023. Prior to the hearing the respondent foreshadowed an application seeking dismissal of the claim pursuant to section 42B of the Administrative Appeals Tribunal Act 1975 (AAT Act) either on the basis that the proceedings were an abuse of process, or the applicant had no reasonable prospects of success. I deferred consideration of that application.
The hearing commenced on 18 April 2023 and was listed to run for three days. The hearing was not completed in the allotted time. Further hearing days were scheduled in September 2023. Prior to the hearing recommencing, the applicant applied for an adjournment to allow her to obtain medical evidence and potentially re-frame her case concerning the relationship between the symptoms which began in November 2018 and her employment.
The respondent renewed its application to have the application dismissed pursuant to section 42B.
At the commencement of the resumed hearing, I heard the parties in relation to these applications. Having considered the parties’ submissions, I have decided to dismiss the current proceedings as an abuse of process. My reasons for that conclusion are set out below. In order to properly explain my reasons for that decision it is necessary to lay out a detailed procedural history of the claim. The findings of fact set out below are largely drawn from the applicant’s Statement of Facts, Issues and Contentions. I have avoided settling any controversy where facts are disputed. I have endeavoured to express the applicant’s case at its highest. Where a fact might be controversial, I have referenced the evidence on which my conclusion is based.
Procedural history of the matter
In November 2018 the applicant suffered an onset of, or stepwise increase in, pain in her cervical spine. The pain was severe and unmanageable, and she sought assistance from her GP, Dr Heidi He. Dr He referred the applicant for an MRI. The MRI revealed a multilevel disc prolapse ‘more severe at C5/6, C6/7 level.’ There was bilateral compression of the C6/C7 nerves.
She was referred to a neurosurgeon Dr Pik who concluded that the applicant had left sided C6 and C7 radicular pain due to C5/6 and C6/7 disc herniations.
On or around 6 December 2018 the applicant submitted a workers compensation claim. The description of the injury included the following:[1]
Mid November 2018 – suddenly experiencing terrible pain in my neck and shoulders, sharp pain shooting down my L arm and tingling in L hand.
[1] Exhibit R7, paragraph 7 of Counsel’s Advice.
The claim was based on the applicant’s view that her pain and injuries resulted from her work with the Australian Federal Police (AFP) and in particular a large filing task which had taken months to complete from March to May 2018 and which had provoked neck pain. That view was supported by her GP.
The applicant underwent a C5/C6 and C6/C7 disc replacement performed by Dr Pik. The operation could be described as a modest success, however the applicant continued to have symptoms.
Comcare assessed the claim in February 2019 on the basis of Dr He’s report and accepted that the applicant suffered a neck sprain from the filing task. Comcare determined that it would pay for reasonable medical treatment under section 16 of the Safety, Rehabilitation and Compensation Act 1988 (SRC Act).
Comcare also referred the applicant to neurosurgeon Dr Casikar. Dr Casikar diagnosed the applicant with constitutional degenerative disease of the cervical spine resulting in C5/C6 and C6/C7 compression. His view was that the applicant’s symptoms from November 2018 and the clinical findings which led to surgery were not related to her employment.
Comcare denied liability for the cervical disc prolapse and cervical radiculopathy.
The applicant sought reconsideration on 29 May 2019.
Comcare affirmed the initial determination. It also undertook reconsideration of own motion decisions in relation to earlier decisions which determined that the applicant was entitled to incapacity payments. These reconsiderations meant that the applicant had been paid a significant amount of compensation which Comcare no longer accepted she was entitled to.
An application for review was made to the Tribunal.
In that context the applicant obtained a report from neurosurgeon Dr Sergides who was supportive of a relationship between the filing task undertaken by the Applicant from March to May 2018 and the issues with her cervical spine. He opined that:
It is more likely than not that the subject incident [filing work with the AFP] has contributed to the condition treated in Ms Britton’s neck. Given that there was no discrete major traumatic event, it is likely that Ms Britton had a predisposition to disc injury that was previously not symptomatic. The repeated forward flexion of her cervical spine for many hours over many weeks, likely propagated and exacerbated this potential disc injury leading to Ms Britton’s symptoms.
Dr Casikar was briefed by the respondent to provide a further report in relation to Ms Britton. He was briefed with a range of material including GPs notes, which brought to his attention an injury which the applicant had suffered in 2001. The applicant had slipped over just before entering the building where she worked and suffered injuries to her skull, shoulder and hip. The fall was sufficiently serious that she was taken to Queanbeyan Hospital for treatment. A few days after the fall the applicant developed left sided symptoms consistent with an injury to the cervical spine. These were sufficient to warrant a cervical spine X-ray which was inconclusive. No CT-scan or MRI was ordered to investigate these symptoms. Whether the applicant continued to suffer symptoms consistent with a cervical spine injury (either constant or fluctuating) from 2001 to 2018 is the subject of dispute in the current proceedings. There are some episodes of treatment which could be consistent with treatment for such an injury,[2] and the applicant now describes a history of fluctuating symptoms.[3] However, in the context of her 2018 claim and in other contexts, the applicant repeatedly denied any prior symptoms in her cervical spine.[4] The clinical picture in this regard is unclear.
[2] See for example Exhibit A8.
[3] Exhibit A5, page 4; Transcript, page 7.
[4] ST18, page 75.
When, on or around 24 September 2020, the applicant was told about Dr Casikar’s report and his findings of prior injury, she was taken aback as this was the first time she was consciously aware that she may have suffered an injury to her cervical spine in 2001.
The information came at a critical time. The applicant’s first application to the Tribunal was listed for hearing on 6 October 2020.
The applicant had also just received a prospects advice from her Counsel which pointed out that there were factual difficulties connecting the work which the applicant did from March to May 2018 and the onset of pain in November 2018.
The applicant considered the advice she received from her solicitor carefully. On 27 September 2020 she wrote him a long email setting out her views on the issues which had been identified with her case. Her comments included the following:
My concern now is that this work related injury on 30 March 2001 (which was covered) was the start of things and then being bent down for those 3 months in an uncomfortable position doing the filing in 2018 has flared things up to the point it could not recover…Now knowing what you have informed me that my accident on 30 March 2001, possibly injured my C5/C6 could have caused similar trauma to my neck like a car accident.
…
The question I have now since learning of the trauma to my C5/6 discs in 30 March 2001, would this have contributed to what is described as degenerative. Meaning if I had not sustained that workplace injury in 2001, would my discs be healthy?
…
Would there be any issue if we ask for a consideration also be given for an adjournment to allow the new information relating to 30 March 2001 (workplace injury), as this is all new to me about C5/6.
The applicant’s solicitor responded to the email. That response included a comment which appears to reveal a misunderstanding about the nature of the 2001 incident:
4. It is now known there was an issue in 2001, which they will point highlight to say there is a history of non-work related issues;
Despite what appears to be a misunderstanding on the applicant’s lawyer’s part, the applicant responded giving instructions to resolve the matter. The applicant’s email in response to her solicitor noted the following:
I draw your attention to paragraph 4, where you state ‘there is a history of non-work related issues’. When in fact the slip in 2001 did occur at work and was subsequently covered by work cover.
Yes it’s hard to accept!!!
By this statement, the applicant corrected her lawyer’s understanding about the relationship between her work and the 2001 fall, but nonetheless gave instructions to settle her claim rather than adjourn the proceedings to conduct further investigations.
On 6 October 2020 the Tribunal made a number of decisions pursuant to subsection 42C(2) in relation to each of the applications before the Tribunal.
The decisions and notations were as follows:
2019/4297
1The Reviewable Decision made on 25 June 2019, which determined that the Respondent is not liable for the Applicant’s ‘cervical disc prolapse with cervical radiculopathy’, under section 14 of the Safety, Rehabilitation and Compensation Act 1988 (SRC Act), is affirmed.
2019/5961 & 2019/5962
2The Reviewable Decision made on 3 June 2019, which revoked the determinations made on 23 May 2019 and 28 May 2019 and determined that no compensation was payable for incapacity payments under section 19 of the SRC Act in the period 6 December 2018 to 7 May 2019, is affirmed.
2019/5580 & 2019/5642
3The Reviewable Decision made on 31 July 2019 is set aside and, in substitution, it is decided that:
(a)The Respondent is liable to pay compensation to the Applicant for incapacity payments in the period 14 May 2018 to 18 May 2018, under section 19 of the SRC Act, in respect of the Applicant’s accepted ‘neck sprain’.
(b)As at 19 May 2018, the Applicant no longer suffered from the accepted ‘neck sprain’. Accordingly, from 19 May 2018 to the date of this Tribunal decision, the Applicant is not entitled to compensation under the SRC Act.
4The Respondent is to pay the Applicant’s legal costs, under section 67(8) of the SRC Act, as agreed as follows:
(a)professional fees in the amount of $15,000.00 inclusive of GST; and
(b)disbursements in the amount of $7,722.80 inclusive of GST, subject to the production of invoices.
And the Tribunal notes the parties’ agreement as to the following:
1Upon receipt of the Tribunal’s decision above, the Respondent will waive, under section 114D of the SRC Act, the overpayment of compensation for incapacity payments on claim number 386608/3. The overpayment amount of $30,948.93 will be reduced by the incapacity payments payable for the period 14 May 2018 to 18 May 2018, in accordance with paragraph 3.a. of this Tribunal decision, before it is waived.
2The Respondent must deduct, or pay, from compensation payable under the SRC Act in respect of the Applicant’s ‘neck sprain’:
(a)any monies payable to Medicare Australia under the Health and Other Services (Compensation) Act 1995; and
(b)any monies payable to the Commonwealth under the Social Security Act 1991.
It is clear that the applicant gave consent to a decision that the respondent was not liable in relation to her ‘cervical disc prolapse with cervical radiculopathy’. That consent was given in circumstances where she knew:
(a)that she may have suffered some sort of cervical spine injury in 2001;
(b)that that injury was suffered in compensable circumstances; and
(c)that injury may have a relationship to her symptoms in November 2018.
It is also clear that by giving her consent, the applicant secured from Comcare a waiver of an overpayment amount which would have crystalised if she had continued with the proceedings and been unsuccessful. The waiver the applicant secured as part of the settlement operated as a permanent bar to recovery of the debt.
Following the settlement, it appears that the applicant found it hard to come to terms with her decision to resolve the proceedings. In March/April 2021 she requested a copy of the medical notes for her 2001 injury from her GP and obtained Comcare’s file relating to her 2001 injury.
On 7 June 2021 she wrote to Comcare seeking to ‘re-open’ her 2001 Claim on the basis that ‘the exacerbated pain I have experienced since 2018 is directly related to [her] initial 2001 injury’ and that her ‘current symptoms of pain and discomfort are directly related to [her] initial 2001 injury’.
She requested that her 2001 claim be re-opened so she could seek treatment and reimbursement for medical treatment ‘I have received’.
On 6 July 2021 Comcare responded noting Dr Casikar’s view that the applicant’s pain was due to the natural progression of the degenerative disease and did not support the opinion that there was a specific work-related injury which produced a disc herniation. Comcare sought further evidence from the applicant that she suffered an injury to the C5/6 and C6/7 discs.
The applicant responded with more detailed information on 20 September 2021. The information she provided included a report from Dr Bills, her GP at the time of the accident in 2001.
On 8 December 2021 Comcare declined the claim noting:
…you experienced symptoms consistent with a C4/C5/C6 nerve injury in 2001, however, considering the additional information provided and taking into consideration Dr Casikar’s report, Comcare cannot be satisfied that there is a correlation between the workplace incident on 30 March 2001 and the degenerative condition resulting in surgery on 20 December 2018.
The applicant sought review on 12 December 2021.
On 7 January 2022 Comcare considered the applicant’s claim for medical expenses and incapacity payments. The delegate affirmed the determination. The decision was based primarily on the lack of reporting of cervical spine issues between 2001 and 2018. The delegate decided that she was unable to find that the applicant’s current cervical spine condition resulted from the fall in 2001.
On that basis Comcare declined medical expenses and incapacity payments under sections 16 and 19. It is this decision which is the subject of review.
The application for review was filed on 3 March 2022. From the outset the issue in the proceeding was defined in the following terms:[5]
The applicant seeks compensation for her treatment expenses and wage loss, as a result of her cervical spine injuries sustained on or around 30 March 2001, in the course of her employment with Services Australia (Centrelink).
[5] Applicant’s Pre-conference Questionnaire, page 1.
The applicant’s Statement of Facts, Issues and Contentions put her case this way:
The Applicant contends that she suffers from chronic pain as a result of the injury she suffered in the course of her employment with Centrelink in 2001.
…
She contends…that it is unreasonable to conclude that her ongoing symptoms have been completely asymptomatic prior to the aggravation injury in March 2018. Further, there is no earlier incident, activity or circumstances which it may be alleged or asserted contributed to the Applicant’s condition.
The Applicant further contends that on the balance of probabilities, given the history of the development of her symptoms and disabilities, her ongoing impairment is due to the claimed injury.
The Applicant is entitled to compensation from the Respondent in respect of her cervical spine injury. The Respondent remains liable to compensate the Applicant for the cervical spine injury as that compensable injury remains an effective and operative cause of the Applicant’s impairment and incapacity and need for medical treatment. The causal chain has not been broken.
The focus in that document was the 2001 injury as a cause of the applicant’s current symptoms.
In her opening submissions, the applicant put her claim this way:
…the Applicant contends that the 2001 injury was either an injury (other than a disease), that is a frank injury, or it was an aggravation of a degenerative disease, the aggravation having been contributed to, to a significant degree, by her employment, namely the workplace accident.
…
As a result of her 2001 injury, the applicant was ‘predisposed to similar and extended symptoms referable to the cervical spine’ and was ‘vulnerable to further mechanical stresses’.
Thus, when in 2018 the applicant was made to do repetitive tasks, and made to “spend prolonged periods of time with my head bending down”, she suffered “intervertebral disc protrusions at C5/6 and C6/7”, which resulted in “left C6 and relatively minor C7 radiculopathy’.
As a result of the 2001 injury, the 2018 injury, and the surgery she underwent in December 2018, the applicant currently has “a post traumatic chronic cervical spinal pain syndrome with deep somatic referred pain, persistent sensory radiculopathy in the left upper limb…and underlying disc replacements at C5/6 and C6/7 with persistent intervertebral foraminal narrowing at C5/6 and C6/7.
The hearing commenced on 18 April 2023 and was initially listed for three days. The respondent indicated that it wished to make an application for dismissal under section 42B, but I directed that consideration of that application be deferred. At that point, it looked as if the proceedings would be comfortably completed in three days.
The applicant also made an application to tender a supplementary statement from the applicant and additional summonsed material. The attempt to tender engaged section 66 of the SRC Act which provides:
Where:
(a) a claimant who has instituted proceedings under the Part seeks to adduce any matter in evidence before the Administrative Appeals Tribunal in those proceedings; and
(b) the claimant had not disclosed that matter to the Tribunal at least 28 days before the day fixed for the hearing of those proceedings;
that matter is not admissible in evidence in those proceedings without the leave of the Tribunal.
Following objections from the respondent, I ruled that parts of the supplementary statement and some of the medical records could not be adduced at that point given that the respondent was taken by surprise in relation to some of the matters in the material. The hearing then proceeded.
The applicant was called and adopted her statement and those parts of her supplementary statement which the applicant was permitted to adduce. Cross-examination then commenced. Progress was extremely slow.
The reason progress was slow is that the applicant is significantly hearing impaired and has been since birth. Not only does she have difficulty hearing, but she also has a consequent speech impediment. As a result, it was necessary to use sign language interpreters for both the questions asked in cross-examination and to interpret the answers given by the applicant. Many of the questions asked required the applicant to answer questions about her state of mind or state of knowledge at particular points in time. It appeared to me that the interpreters had trouble conveying the questions with precision and the applicant certainly had trouble understanding what was being asked of her. On many occasions the answer to the question was, ‘can you please repeat the question’.
Despite the best efforts of all concerned, the cross-examination was not concluded when the allocated three days for the hearing were spent. A further four days were allocated to the matter but there was a delay of 5 months between the end of the first period of hearing and the commencement of the second. In the interim, the applicant’s lawyers had limited access to her for the purposes of taking instructions due to the ethical restriction on speaking to a witness who is under cross-examination.
A number of developments took place in the gap between the hearings.
First, the cross-examination of the applicant was continued in writing. The Tribunal has broad powers to control its own procedures and in the interests of efficiency the respondent was directed to prepare in writing the questions it wished to ask the applicant in cross-examination. The applicant’s legal team was given an opportunity to consider the questions and object to any questions.
The applicant then attended the registry and was given each written question, one at a time, by my associate. The applicant was given an opportunity to give a typed answer to each question as it was put.
The parties were then provided with the questions and answers and the resulting document became Exhibit R15.
Second, three business days prior to the resumption of the hearing, the applicant sought a directions hearing. The applicant’s representatives indicated that they were seeking an adjournment of the hearing to make an application pursuant to section 42A(10) of the AAT Act to formally re-open Ms Britton’s 2018 claim in response to the respondent’s position that the current proceeding is an abuse of process.
The following day the respondent foreshadowed that at the commencement of the hearing on 26 September 2023 it would be applying to have the matter dismissed pursuant to section 42B of the AAT Act. The re-agitation of the application was said to be prompted by the fact that the ‘proceeding must fail based on (among other things) the applicant’s own, variable, versions of the facts’.
The same day a directions hearing was convened to discuss the nature of the applications that would be pursued by the parties. The applicant indicated that it wished to have the proceedings adjourned so that it could pursue an application under section 42A to set aside the decision of 6 October 2020 and then re-characterise in a range of ways the description of the applicant’s injuries. The applicant’s representative foreshadowed that if an adjournment was not granted, the applicant may withdraw the current application and make a fresh application to Comcare characterising the applicant’s injuries in a range of new ways. The applicant’s representative accepted that if this course was followed it may ultimately be confronted with a further application to dismiss any Tribunal application as an abuse of process.
When the matter came on for hearing the applicant advised:
(a)It was not pursuing an application under section 42A of the AAT Act as the Tribunal did not have power under that section to disturb the section 42C decision made by the Tribunal on 6 October 2020;
(b)It was however seeking an adjournment and leave of the Tribunal to:
(i)file a new Statement of Facts, Issues and Contentions which would recharacterize the way the applicant put her case;
(ii)obtain new evidence which may potentially support findings that the applicant suffered an injury (in the statutory sense) of a different nature to the one contended for in the current proceedings.
The applicant submitted that if an adjournment were granted it would be open to it to argue in any resumed proceedings that the applicant was entitled to compensation based on a variety of formulations as to what her injury is, namely:
(a)The injury of 2001 aggravated by the injury of May 2018;
(b)The injury of 2001 aggravated by the injury of May 2018 and further aggravated by the injury of November 2018;
(c)The injury of 2001 aggravated by the injury of November 2018;
(d)The injury of May 2018 and aggravated by the injury of November 2018;
(e)The injury of May 2018 alone; and/or
(f)The injury of November 2018 alone.
The applicant contends that she could advance arguments for liability to pay compensation based on any of these formulations and the Tribunal would have jurisdiction to entertain the review.
At least in relation to the formulations in paragraphs (d), (e) and (f), such a submission is difficult to accept in light of:
(a)The decision of the Full Court of the Federal Court in Szabo v Comcare;[6]
(b)The fact that the original determination was made in relation to a request to re-open the 2001 claim and that the determination and reviewable decision have a 2001 cervical spine injury as the subject of the claim;
(c)no determination has ever been made in relation to a claim based solely on the circumstances of an injury in November 2018;
(d)no determination has ever been made in relation to an injury which was suffered solely in May 2018 other than the neck sprain which was accepted by Comcare; and
(e)the Tribunal’s decision of 6 October 2020 which dealt with a claim concerning an injury in May 2018 which produced the aggravation in November 2018.
[6] [2012] FCAFC 129 (‘Szabo’), although perhaps the decision of Ellison v Comcare [2022] FCA 95 might suggest the Tribunal’s jurisdiction is more malleable than a strict reading of Szabo would suggest.
The applicant’s written submissions on jurisdiction state that she is seeking to re-open the 2018 disc injury for which nothing has been paid. She contends that there is no abuse of process in seeking to reopen the 2018 disc injury because:
(a)there is new evidence;
(b)there is no issue estoppel;
(c)no money was accepted on the claim;
(d)the respondent had medical evidence on the more serious nature of the 2001 injury that was unknown to the applicant;
(e)the respondent knew of, but did not take into account 2014 and 2016 injuries;[7] and
(f)there is no factual analogy between these facts and the facts of another abuse of process case, Novosel v Comcare, which upheld a finding of the Tribunal that there was an abuse of process in seeking to agitate a section 19 claim in fresh proceedings when there had been an earlier opportunity to agitate the question in earlier proceedings which was not taken.[8]
[7] which appear in the doctor’s notes of Dr Bills and which the applicant asserts may have already been the subject of claims.
[8] [2017] FCA 722 (‘Novosel’).
The applicant also noted that there were two other work-related injuries to the neck which were capable of aggravating the 2001 disc injury which occurred in 2014 and 2016, and that she wished to add these further injuries to her re-formulated claim.
The applicant asserts that the 2001 and 2018 injuries were frank injuries and so the test is temporal or causal and, if causal, only a material contribution is required.
The applicant asserts that the 2001 and 2018 injuries aggravated any underlying degenerative condition and that an aggravation is made out where the level of pain is increased, whether or not there is evidence of any progression in the underlying condition.
The applicant submits that:
…uncertainty concerning the diagnoses is not a ground for dismissing a claim. It is sufficient to infer from the onset of chronic pain, that some injury has occurred.
…any onset or increase in pain in the body, must necessarily be preceded by some physiological cause, whether that cause is identifiable or not…hence the increase in pain suffered by the Applicant in May and November 2018 were both consequential to some physiological change and so are both injuries and aggravation.
It is sufficient that the medical witness opined that a particular cause is a possible one, after which it is open to the Tribunal to find it is a probable one. In the present case Prof Champion and Dr Sheehy both opine that it is probable that the 2001 injury caused the disc prolapse and that the 2001 injury contributed to the deterioration in 2018.
In any event, post the High Court in May it is now necessary to apply both the injury and disease test and if either is satisfied, then the Applicant succeeds. This includes the application of the temporal test for injuries.
Once it is found that the neck disc condition in 2018, however defined in diagnostic terms, was materially contributed to by the employment injuries, then the second issue is whether the incapacity for work in November 2018 and thereafter ‘resulted from’ the state of the neck discs’.
Hence the Applicant need only show that the state of her cervical disc in later 2018 was due to any combination of the 2001, 2014, 2016 and 2018 injuries, whether or not any degree of degeneration unrelated to these injuries was also present. That degree of degeneration is just an ‘egg shell skull’.
Consequently, if an adjournment were granted, it appears likely that the case will be reformulated in a way in which (even assuming that there are no difficulties with the scope of the Tribunal’s jurisdiction), the re-formulation of the case is likely to result in the need for fresh medical evidence by both sides and the potentially the re-casting of the causal connection between the applicant’s current symptoms and her employment. It would not be unfair to say that we will be back to square one if an adjournment were granted.
It is however unnecessary for me to determine the application for an adjournment.
As a result of the view which I have formed in relation to the respondent’s application to dismiss, the application for an adjournment is redundant. It is on that basis which I have dismissed it.
Respondent’s Application
The respondent seeks to have the proceedings dismissed under section 42B of the AAT Act. The application is made on the basis that:
(a)the application has no reasonable prospects of success; and
(b)is otherwise an abuse of process.
In the event that both of those applications are unsuccessful the respondent seeks an order under section 25(4A) of the AAT Act determining the scope of the review of the decision by limiting the questions of fact, the evidence and the issues that the Tribunal considers.
No reasonable prospects of success
In relation to the application for dismissal based on the application having no reasonable prospects of success, it would not be appropriate for me to deal with it at this time. There are a number of bases on which the argument is advanced, but the primary one is that the applicant’s evidence is so unreliable that it could not form the basis of the necessary medical opinions needed to connect her symptoms with her employment. This submission relies upon an analogy with the approach taken by Deputy President Humphries in Re Mitchell and Military Rehabilitation and Compensation Commission.[9]
[9] [2017] AATA 1421.
Whatever may be the underlying merits of such an approach in the disposal of the matter, the making of what is in effect a summary dismissal application at this point in the proceedings is inappropriate.
Asking the Tribunal to make a definitive finding on the merits of a matter:
(a)during a substantive hearing;
(b)while the applicant is being cross-examined;
(c)before the applicant has been re-examined and afforded an opportunity to explain what might at this point be regarded as inconsistencies; and
(d)before the applicant has had an opportunity to close its case;
is not the appropriate point in time for the Tribunal to make such an assessment.
Inviting adverse credit findings (even on the basis of faulty recollection rather than dishonesty as was put in this case) has the potential to put the Tribunal member hearing the matter into a position where they are required to excuse themselves from hearing the balance of the proceeding on the basis that a critical question in the proceedings has already been resolved adversely to one party.
The purpose of section 42B is to allow cases which are unsustainable to be dealt with without the need for a full hearing. It would be a rare case indeed where it is appropriate to bring such an application when a substantive hearing on the merits has commenced. Once a hearing has begun, the Tribunal should not be asked to draw conclusions on evidence which is incomplete. During cross-examination and prior to re-examination is, very often, the point in time which is most disadvantageous to a party. The process of re-examination has a role to play. The Tribunal should not be asked to rush to judgment.
When a matter has progressed as far as this matter has, the appropriate course is to let the hearing run its course rather than seeking an assessment of the merits of the case and the reliability of a witness half-way through the proceedings.
If this was the only basis on which the application to dismiss was advanced, I would dismiss the application.
Abuse of Process
However, the respondent also seeks to have the proceedings dismissed as an abuse of process.
The respondent initially sought to have this application heard on the first day of the hearing. I deferred consideration of the application.
Since my decision not to consider the application:
(a)It has become clear that a substantial number of additional hearing days will be required to resolve the matter;
(b)It has become clear that the applicant wishes to broaden the basis on which compensation is sought prior to any resumption of the hearing; and
(c)I have been provided with additional evidence concerning the circumstances in which the consent decision of 6 October 2020 was agreed to by the applicant.
Given the nature of the application which the applicant now brings I am satisfied that it is appropriate to deal with the application at this point.
The respondent’s application is based on the following contentions:
(a)The question of whether Comcare is liable to compensate Ms Britton in respect of the pathology affecting her cervical spine properly belonged to her earlier proceedings before the Tribunal and its cause should be regarded as resolved by the 6 October 2020 decision;
(b)Accordingly, Ms Britton is attempting to relitigate issues that properly belonged to her earlier proceedings and her earlier claim. Those issues were either resolved against her or alternatively resolved in her favour for only a limited time-frame;
(c)It is in the interests of the State that there be an end to litigation. The prejudice to Comcare is clear in circumstances where Ms Britton, inconsistently with a prior agreement, has brought another application to the Tribunal in relation to the same claim. Such conduct increases the time, expense and allocation of resources that Comcare needs to devote to repeatedly answering the same claim over many years; and
(d)The addition of further evidence or her reasons for a changed position do not alter the fact that she is seeking to relitigate issues which belonged to an earlier proceeding.
The applicant contends that there is no abuse of process in this case. The applicant relies on a large number of authorities,[10] which she says are ‘in support of the right to lodge further claims even following an adverse decision of the Tribunal whether based on new evidence or not’.
[10] As cited in Peter Sutherland and Allan Anforth, Annotated Safety, Rehabilitation and Compensation Act 1988 (The Federation Press and Softlaw Community Projects, 12th ed, 2023) 810 [326].
The question of when an issue can be re-agitated in the Tribunal needs to be approached with considerable care.
The Courts have made clear that certain doctrines, which in the context of court proceedings between the same parties would operate as absolute bars on the litigation of certain matters, have no application in the Tribunal. At least three are recognised as having no application (or very limited application).
The first is issue estoppel. Issue estoppel has been said to arise when ‘a judicial determination directly involving an issue of fact or of law disposes once and for all of the issue, so that it cannot afterwards be raised between the same parties or their privies’.[11] It has no application in workers’ compensation proceedings in the Tribunal.[12]
[11] Blair v Curran (1939) 62 CLR 464, 531 (Dixon J).
[12] Commonwealth v Snell (2019) 269 FCR 18, [77] (‘Snell’).
The second is res judicata. Res judicata comes into operation when a party attempts in a second proceeding to litigate a cause of action which has merged into judgment in a prior proceeding. Again, it has no application in Tribunal proceedings.
The third is Anshun estoppel. Anshun estoppel arises when a given matter becomes the subject of litigation in court. It requires that a party bring forward their whole case and will not (except in special circumstances) permit the same parties to open the same subject of litigation in respect of a matter which might have been brought forward as part of their earlier case. It applies to every point which properly belonged to the subject of the litigation and which the parties exercising reasonable diligence might have brought forward at the time.
Overtime, the courts have made clear that none of these doctrines have direct application in the Tribunal. The Federal Court’s recent decision of Commonwealth v Snell[13] demonstrates clearly that treating any issue between parties as conclusively resolved by earlier proceedings is not appropriate, particularly in workers’ compensation proceedings where there is an express power for decision makers to undertake a reconsideration on own motion. Generally speaking, the Tribunal must resolve questions of fact and law based on the material it has before it.
[13] [2019] FCAFC 57
Freed from these doctrines, there is considerable scope for an applicant to effectively re-litigate in later Tribunal proceedings issues which were determined a particular way in earlier proceedings. If an applicant failed to establish that he suffered a statutory injury in an incident at work in the context of a particular claim for a period of incapacity, there is no absolute bar on him seeking to re-agitate that question in a later claim relating to a different period of incapacity. This stands in stark contrast to what would be permissible in a court. However, the fact that these doctrines do not apply in the Tribunal does not mean that dissatisfied employees can simply make repetitious claims based o substantially the same facts. As Justice Perry observed in Novosel v Comcare:[14]
…the fact that an applicant may be able to bring a further claim does not mean that if a further claim is made, it cannot constitute an abuse of process in the circumstances of the particular case…principles of res judicata, issue estoppel and the like in judicial proceedings, are underpinned by broader issues of public policy, namely, that it would be an abuse of process to allow parties to litigate repeatedly matters that have been finally determined by the Court not only because ‘a person ought not to be vexed twice for one and the same cause’, but also because it is in the interests of the State that there be an end to litigation…The same policy considerations may equally inform the Tribunal’s approach to issues of abuse of process as they would plainly promote the object which the Tribunal is to pursue by virtue of s 2A of the AAT Act, namely to provide a mechanism of review that is fair, just, economical, informal and quick.
[14] Novosel (n 9) [110].
It is also worth noting that pursuant to section 33(1AB) of the AAT Act, a party to a proceeding before the Tribunal, and any person representing such a party, must use his or her best endeavours to assist the Tribunal to fulfil the objective in section 2A.
Clearly, if an applicant seeks to re-litigate the same issues, a question can arise as to whether it constitutes an abuse of process.[15] In Re Quinn and Australian Postal Corporation (1992) 15 AAR 519 at 526 the Tribunal noted:
It would seem inappropriate and unreasonable to us for there to be relitigation without reason of the same issues before the Tribunal. It would be unjust to applicants to have to face a situation where a decision may be made today and relitigated tomorrow on the very same facts. The Tribunal should not generally allow relitigation of issues already decided and previous Tribunal decisions should be regarded as establishing the matters actually decided and of the grounds for the determination.
[15] Novosel (n 9) [106].
The same approach was adopted by Hack DP in Re Grimsley and Telstra Corporation Ltd (2010) 51 AAR 401 which involved a consent decision. The Deputy President held at [13]:
Prima facie the consent decision in the matter ought to be regarded as having determined the matters in controversy. Here the issue of causation was one of the matters in controversy. Ms Grimsley contended that the effects of the accepted injury continued. Telstra contended that they no longer did so. I do not regard it as unfair to Mrs Grimsley to not permit her to agitate the very issue determined by consent on the earlier proceedings. Indeed it would be unfair to Telstra to permit that to happen. In reality, what Ms Grimsley seeks to do is to go back on the resolution of the matter that she consented to in July 2009.
Application to this case
In my assessment, the 2020 consent decision involved an acceptance by the applicant that the cause of her ongoing cervical spine symptoms was degenerative change in her spine. Her acceptance of that proposition was reluctant, but was made with the full knowledge of the relevant medical history and that there was evidence available or which might be obtained, which could connect her symptoms with her fall in 2001 or her work in 2018. She also understood that persisting with her claim would carry certain risks. Faced with those options in 2020 she made a conscious decision to agree to an arrangement which had at its foundation acceptance that the symptoms in her cervical spine were not related to her employment. In exchange for that acceptance, Comcare waived a debt. That was the arrangement the parties reached.
The fresh claim that she brought in 2021 was the claim that she had chosen to leave unexplored by accepting Comcare’s offer in 2020. The attempt now to revisit the foundations of that agreement is what renders these current proceedings an abuse of process.
By making a fresh claim, providing evidence and contending for different factual findings an applicant is not always engaging in an abuse of process. More is required. The critical point which shifts this case from one where the applicant is merely advancing a different claim based on new evidence, to a claim which is an abuse of process, is her knowledge when she agreed to the settlement which led to the earlier Tribunal decision.
The decision made under section 42C was in the following terms:
The Reviewable Decision made on 25 June 2019, which determined that the Respondent is not liable for the Applicant’s ‘cervical disc prolapse with cervical radiculopathy’, under section 14 of the Safety, Rehabilitation and Compensation Act 1988 (SRC Act), is affirmed.
When she gave those instructions, the applicant knew that there was a basis for believing that her fall in 2001 was implicated in the cervical symptoms she suffered in 2018. Despite knowing that, she decided to proceed with the settlement. She consciously chose to give up the possibility of finding out whether there was such a link and making that claim in relation to her neck. By doing so, she extracted from Comcare a specific advantage for herself – the waiver of a debt which had the potential to arise if she continued with the proceedings and was unsuccessful. Viewed from Comcare’s perspective, Comcare was induced to give up the legal rights it had and which would naturally flow from a favourable decision, on the basis that the question of the cause of the applicant’s disc prolapse was resolved once and for all.
In my assessment, by bringing a fresh claim, seeking to raise an argument that was available and known to the applicant at the point of settlement, having secured that advantage, is an abuse of process.
Those facts are sufficient to allow the application. I do not accept the submission that the applicant ‘could pay back the money’ so the harm is not irremediable. There is no evidence that the applicant is willing to pay the money back to Comcare and in any event, there is nothing the Tribunal can do to restore an enforceable liability to Comcare.
These circumstances alone are sufficient to provide a basis for a finding that the proceedings constitute an abuse of process and I so find.
There are in this case further aggravating factors including the fact that the respondent is now facing proceedings the basis of which remains uncertain. This uncertainty persists despite the fact that the claim in relation to the applicant’s cervical spine was submitted almost 5 years ago. The matter has been the subject of two applications to the Tribunal, the second of which has already involved three days of hearing. Despite this, the respondent still doesn’t know:
(a)whether the claim is based on a frank injury or an aggravation of an ailment;
(b)which incidents (2001, 2014, 2016 or 2018) are said to be causative or materially/significantly contributing to the applicant’s pain; or
(c)whether or not the applicant will put her case on exactly the same basis as it was originally put when the matter was settled.
The applicant has not conducted the proceedings in accordance with the requirements of section 33(1A). The departure from the standard prescribed by the statute is significant. Were it necessary to decide the question, I would give serious consideration to whether this conduct renders the current proceedings an abuse of process. However it is not necessary to deal with the issue. It is sufficient that the applicant resolved her 2019 Tribunal proceedings on the basis that the cause of her cervical spine symptoms which developed in November 2018 were not compensable and did so with knowledge of the range of arguments available to her. She secured a benefit for herself in the settlement. To re-agitate the issues in those circumstances constitutes an abuse of process.
The respondent’s application is upheld and the proceedings are dismissed.
I certify that the preceding 105 (one hundred and five) paragraphs are a true copy of the reasons for the decision herein of Senior Member O'Donovan
...................................[sgd].....................................
Associate
Dated: 30 October 2023
Date(s) of hearing: 18-20 April 2023, 26 September 2023 Counsel for the Applicant: Mr A Anforth and Mr S Robinson Solicitors for the Applicant: Carroll & O'Dea Lawyers Counsel for the Respondent: Mr P Woulfe Solicitors for the Respondent: HBA Legal
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