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, 64Comcare 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 appliedSOPHIA 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
ApplicantAND: ADMINISTRATIVE APPEALS TRIBUNAL
First RespondentAUSTRALIAN 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
ApplicantAND: ADMINISTRATIVE APPEALS TRIBUNAL
First RespondentAUSTRALIAN POSTAL CORPORATION
Second Respondent
JUDGE:
BENNETT J
DATE:
19 MARCH 2009
PLACE:
SYDNEY
REASONS FOR JUDGMENT
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…
Keep reading for free
Create a free CaseChat account to read Cheung v Administrative Appeals Tribunal and more:
- Read every judgment in full
- Ask AI and get answers linked to paragraphs
- See how each paragraph was cited in later cases
- Download judgments as PDF or Word
One click creates your free account or signs you in.
By continuing you agree to the Terms and Privacy Policy.
- Case
- [2009] FCA 241
- Decision Date
CaseChat Overview and Summary
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
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.