Cheung v Administrative Appeals Tribunal

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FEDERAL COURT OF AUSTRALIA

Cheung v Administrative Appeals Tribunal [2009] FCA 241

ADMINISTRATIVE LAW – application for review of decision of Administrative Appeals Tribunal – earlier Tribunal decision – Safety, Rehabilitation and Compensation Act 1988 (Cth) provides for review by Tribunal of decisions made under the Act – whether Tribunal bound to consider discretion to hold earlier Tribunal decision as determinative – whether earlier Tribunal decision a relevant consideration – whether Tribunal obliged to give reasons for not holding earlier Tribunal decision as determinative and not giving earlier Tribunal decision any weight – applicant was on notice that Tribunal was considering issues of injury and liability afresh – no application to exclude evidence concerning subject matter of earlier Tribunal decision – Tribunal not excluded from making its own findings on questions of fact – earlier Tribunal decision not a relevant consideration – Tribunal only obliged to give reasons for final and operative decision

Administrative Appeals Tribunal Act 1975 (Cth) ss 33, 43, 44
Administrative Decisions (Judicial Review) Act 1977 (Cth)
Safety, Rehabilitation and Compensation Act 1988 (Cth) ss 60, 62, 64

Comcare v Burton (1998) 50 ALD 846 referred to
Hanna v Australian Postal Corporation (1990) 12 AAR 511 cited
Lang v Comcare (2007) 94 ALD 141 cited
Minister for Aboriginal Affairs v Peko-Wallsend Limited (1986) 162 CLR 24 cited
Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 cited
Morales v Minister for Immigration and Multicultural Affairs (1998) 82 FCR 374 cited
Plumb v Comcare (1992) 39 FCR 236 cited
Power v Comcare (1998) 89 FCR 514 applied
Re Quinn and Australian Postal Corporation (1992) 15 AAR 519 referred to
Re Rana and Military Rehabilitation and Compensation Commission (2008) 104 ALD 595 considered
Telstra Corporation Ltd v Hannaford (2006) 151 FCR 253 applied

SOPHIA CHEUNG v ADMINISTRATIVE APPEALS TRIBUNAL AND AUSTRALIAN POSTAL CORPORATION

NSD 1382 of 2008

BENNETT J
19 MARCH 2009
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

NSD 1382 of 2008
ON APPEAL FROM THE ADMINISTRATIVE APPEALS TRIBUNAL CONSTITUTED BY DR J D CAMPBELL, MEMBER
BETWEEN:

SOPHIA CHEUNG
Applicant
AND:

ADMINISTRATIVE APPEALS TRIBUNAL
First Respondent

AUSTRALIAN POSTAL CORPORATION
Second Respondent

JUDGE:

BENNETT J

DATE OF ORDER:

19 MARCH 2009

WHERE MADE:

SYDNEY

THE COURT ORDERS THAT:

1.The application be dismissed.

2.The applicant pay the second respondent’s costs.

Note:Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.


The text of entered orders can be located using eSearch on the Court’s website.


IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

NSD 1382 of 2008
ON APPEAL FROM THE ADMINISTRATIVE APPEALS TRIBUNAL CONSTITUTED BY DR J D CAMPBELL, MEMBER
BETWEEN:

SOPHIA CHEUNG
Applicant
AND:

ADMINISTRATIVE APPEALS TRIBUNAL
First Respondent

AUSTRALIAN POSTAL CORPORATION
Second Respondent

JUDGE:

BENNETT J

DATE:

19 MARCH 2009

PLACE:

SYDNEY

REASONS FOR JUDGMENT

  1. Ms Cheung sought to file an appeal from, and an application to review, a decision of the Administrative Appeals Tribunal of 9 May 2008 (‘the 2008…

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Details
Case
[2009] FCA 241
Decision Date

CaseChat Overview and Summary

The case of Cheung v Administrative Appeals Tribunal involves Ms Cheung, who is contesting a decision made by the Administrative Appeals Tribunal (AAT) in 2008 regarding her compensation claims against Australia Post. The 2008 Tribunal decision overturned a previous 2001 Tribunal decision which had awarded her compensation for certain injuries sustained during her employment. Ms Cheung argues that the 2008 Tribunal should have treated the 2001 Tribunal decision as determinative, particularly in light of the Tribunal’s flexible approach to such matters. She contends that the 2008 Tribunal had the discretion to regard the 2001 Tribunal decision as determinative and that it was a relevant consideration in its deliberations.

The central legal issue before the court was whether the 2008 Tribunal was obligated to consider the 2001 Tribunal decision as determinative, or if it had the discretion to revisit the issues already decided by the 2001 Tribunal. Ms Cheung’s argument hinges on the notion that the Tribunal's flexible approach allows it to apply earlier decisions directly. However, the court considered the broader context, including whether previous decisions had been comprehensively reviewed, whether the same facts and issues were being relitivated, and whether there was any error in the findings of the 2001 Tribunal. The court also examined relevant case law, such as Morales v Minister for Immigration and Multicultural Affairs, which suggests that a subsequent Tribunal has the discretion to regard a previous decision as determinative if there is no compelling reason to revisit the same issues.

The court held that while the Tribunal does have a degree of flexibility in its approach, it was not compelled to regard the 2001 Tribunal decision as determinative. The 2008 Tribunal had the jurisdiction to revisit the issue of causation and the connection between Ms Cheung's employment and her injuries. The court noted that there was no error in the findings of the 2001 Tribunal, but the 2008 Tribunal was entitled to exercise its discretion to independently assess the evidence and the causal links between Ms Cheung’s employment and her injuries. Consequently, the application by Ms Cheung was dismissed, and she was ordered to pay the second respondent's costs.

Orders

Orders of the court

1. The application be dismissed.

2. The applicant pay the second respondent’s costs.

Note:

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

BENNETT J
It is not necessary to consider in detail the grounds raised in the application, as a number of them have been abandoned and the parties agree on the issues in dispute. Relevant to those issues is the history of Ms Cheung’s claims against Australia Post and a previous decision of the Tribunal in 2001 (‘the 2001 Tribunal’). It is the import of the 2001 Tribunal decision that is central to Ms Cheung’s submissions regarding the decision of the 2008 Tribunal.THE TRIBUNAL DECISIONS IN RESPECT OF MS CHEUNG Ms Cheung was first employed by Australia Post on 16 October 1989. In November 1995, she lodged her first claim for compensation, claiming injuries to her hands and right elbow. On 17 August 1999, Ms Cheung made a claim for compensation in respect of an injury sustained on 9 July 1999 to her shoulders and neck and the symptoms arising from that injury. Australia Post initially denied liability in respect of the claim under the Safety, Rehabilitation and Compensation Act 1988 (Cth) (‘the SRC Act’). That decision was affirmed following reconsideration by Australia Post. Subsequently, Australia Post decided, in a decision of 6 March 2001, that it was liable to pay compensation in respect of ‘supraspinitis tendonitis tear left shoulder’ but was not liable to pay compensation in respect of Ms Cheung’s claimed injury to her right shoulder and neck arising out of the injury on 9 July 1999. Australia Post also determined that it was liable to pay compensation for 10% whole person impairment in relation to the supraspinitis tendonitis tear. The 2001 Tribunal set aside the decision of Australia Post not to pay compensation for injuries to Ms Cheung’s shoulders and neck and an earlier decision of 8 July 1999 that Australia Post was no longer liable to pay compensation for ‘lateral epicondylitis right elbow’. The 2001 Tribunal also varied Australia Post’s decision of 6 March 2001 by adding that Australia Post was liable to pay compensation for ‘chronic pain syndrome in both upper limbs and neck’. That is, the 2001 Tribunal determined that Australia Post was not only liable to pay compensation to Ms Cheung in respect of supraspinitis tendonitis tear left shoulder but also for chronic pain syndrome in both upper limbs and neck. The 2001 Tribunal also affirmed Australia Post’s decision of 6 March 2001 that assessed Ms Cheung’s permanent impairment due to supraspinitis tendonitis tear left shoulder at 10%. The 2001 Tribunal found Ms Cheung to be a witness of truth. In 2006 Ms Cheung sought payment of compensation for further periods. Australia Post denied liability to pay compensation for incapacity for the nominated days. That decision was affirmed after reconsideration by Australia Post. In April 2006 Australia Post advised Ms Cheung that a determination had been made that there was no present liability under the SRC Act to pay compensation in respect of the previously accepted shoulders and neck condition. That decision was affirmed by Australia Post after reconsideration on 20 April 2006. A claim was similarly denied in April 2006 in respect of Ms Cheung’s claim for increased permanent impairment arising from the upper limbs/shoulder conditions.

Ratio Decidendi

Legal Principle Established

Established by: BENNETT J

Ms Cheung relies upon the “flexible” approach that the Tribunal may take in considering matters before it. That, she says, includes the ability simply to apply an earlier decision of the Tribunal. She points out that in Re Rana and Military Rehabilitation and Compensation Commission (2008) 104 ALD 595, Deputy President Forgie concluded that an applicant should not be permitted to rehearse the circumstances of his employment a further time or to challenge findings that had been made about the circumstances of his employment and the compensability of his conditions and in respect of which the Tribunal had affirmed previous reviewable decisions. The Deputy President concluded in that case that, under s 33(1)(c) of the AAT Act, the Tribunal would inform itself as to the circumstances of the applicant’s employment and of the conditions he suffered by reference to the findings of fact made by the earlier Tribunals and that she would not permit the parties to lead further evidence on these matters. She stated that any evidence given should be directed to establishing the necessary causal links between the facts as found by those previous Tribunals and the conditions now claimed by the applicant (at [134] to [137]). However, as is apparent in Re Rana, the context was a situation where events had been comprehensively considered in previous Tribunal decisions, the applicant applied for compensation in relation to the same set of events as in previous cases, those earlier decisions had either not been challenged or had been considered on appeal and no error of law in the findings of fact had been found. The circumstances in Re Rana formed the basis for the Tribunal’s conclusions in that case.CONSIDERATION Generally speaking, there should not be relitigation without reason of the same issues before the Tribunal where the relitigation is of the same facts and issues already decided. In those circumstances, previous Tribunal decisions would generally be regarded as establishing the matters actually decided and the grounds for determination. It is open to a subsequent Tribunal to regard a previous decision as determinative of an issue and to decide that an issue should not be reopened. The Tribunal has a discretion in those circumstances to take such a course (Morales v Minister for Immigration and Multicultural Affairs (1998) 82 FCR 374 at 390). In Power v Comcare (1998) 89 FCR 514 Sackville J confirmed that the reconsideration decision-maker and the Tribunal have power to consider whether an applicant’s condition has ever been causally related to his or her work. Ms Cheung does not say that the 2008 Tribunal was compelled to hold the 2001 Tribunal decision as determinative and therefore appears to accept that the 2008 Tribunal had jurisdiction to revisit the question of causation as determined by the 2001 Tribunal. However, she relies upon the existence of the 2008 Tribunal’s discretion to regard the 2001 Tribunal decision as determinative and says that, in any event, it was a relevant consideration which was required to be taken into account.