FEDERAL COURT OF AUSTRALIA
Commonwealth of Australia v Snell [2019] FCAFC 57
Appeal from: Re Snell and Commonwealth [2018] AATA 1107 File number: QUD 365 of 2018 Judges: ALLSOP CJ, REEVES AND DERRINGTON JJ Date of judgment: 11 April 2019 Catchwords: ADMINISTRATIVE LAW – Administrative Appeals Tribunal – whether issue estoppel arises in respect of matters decided in earlier decision concerning the same parties – whether Tribunal able to not consider relevant and probative evidence because of existence of earlier decision – power to reconsider earlier decision under Seafarers Act negates any limitation on evidence which Tribunal should consider when reviewing a subsequent decision – appeal allowed Legislation: Administrative Appeals Tribunal Act 1975 (Cth)
Safety, Rehabilitation and Compensation Act 1988 (Cth)
Cases cited: Administration of the Territory of Papua New Guinea v Daera Guba (1973) 130 CLR 353
Canute v Comcare (2006) 226 CLR 535
Carl Zeiss Stiftung v Rayner & Keeler Ltd (No 2) [1967] 1 AC 853
Chandler v Alberta Association of Architects [1989] 2 SCR 848
Cheung v Administrative Appeals Tribunal (2009) 176 FCR 20
D’Orta-Ekenaike v Victoria Legal Aid (2005) 223 CLR 1
Godwin v Repatriation Commission (2008) 168 FCR 471
Jolly v Commissioner of Taxation (Cth) (1935) 53 CLR 206
Kuligowski v Metrobus (2004) 220 CLR 363
Midland Metals Overseas Ltd v Comptroller-General of Customs (1991) 30 FCR 87
Minister for Immigration and Ethnic Affairs v Daniele (1981) 61 FLR 354
Minister for Immigration and Multicultural Affairs v Bhardwaj (2002) 209 CLR 597
Minister for Immigration and Multicultural Affairs v Wang (2003) 215 CLR 518
Morales v Minister for Immigration and Multicultural Affairs (1998) 82 FCR 374
Novosel v Comcare (2017) 72 AAR 269
Plumb v Comcare (1992) 39 FCR 236
Queensland v Commonwealth (1977) 139 CLR 585
Rana v Military Rehabilitation and Compensation Commission (2011) 55 AAR 300
Re 56 Denton Road, Twickenham [1953] Ch 51
Re Cram; Ex parte Newcastle Wallsend Coal Co Pty Ltd (1987) 163 CLR 140
Re Matusko and Australian Postal Corporation (1995) 21 AAR 9
Re Quinn and Australian Postal Corporation (1992) 15 AAR 519
Re Tarrant and Australian Securities and Investments Commission (2013) 62 AAR 192
Telstra Corporation Ltd v Hannaford (2006) 151 FCR 253
Thrasyvoulou v Secretary of State for the Environment [1990] 2 AC 273
Wiest v Director of Public Prosecutions (1988) 23 FCR 472
WJ & F Barnes Pty Ltd v Commissioner of Taxation (Cth) (1957) 96 CLR 294
Date of hearing: 5 November 2018 Registry: Queensland Division: General Division National Practice Area: Administrative and Constitutional Law and Human Rights Category: Catchwords Number of paragraphs: 100 Counsel for the Appellant: Mr P Hanks and Mr J Lenczner Solicitor for the Appellant: Holman Fenwick Willan Counsel for the Respondent: Mr DW Marks QC and Mr T O’Brien Solicitor for the Respondent: Turner Freeman Lawyers ORDERS
QUD 365 of 2018 BETWEEN: COMMONWEALTH OF AUSTRALIA
Appellant
AND: PATRICK SNELL
Respondent
JUDGES:
ALLSOP CJ, REEVES AND DERRINGTON JJ
DATE OF ORDER:
11…
Keep reading for free
Create a free CaseChat account to read Commonwealth of Australia v Snell 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.
Details
- Case
- [2019] FCAFC 57
- Decision Date
CaseChat Overview and Summary
In the case of Commonwealth of Australia v Snell, the appellant, Mr Snell, sought review of a decision by the Administrative Appeals Tribunal (the Tribunal) which had dismissed his claim for compensation for solar induced skin disease under the Seafarers Act. The Commonwealth opposed the appeal, and the central issue for the court was whether the Tribunal had correctly determined that it should not reconsider the cause of Mr Snell's conditions. The court had to decide whether the Tribunal was right in refusing to consider certain evidence because of the existence of an earlier decision between the same parties.
The court found that the Tribunal had erred in its reasoning. It had applied an incorrect principle in dismissing the evidence and had failed to properly evaluate all of the available relevant evidence. The court held that the Tribunal should have considered the new evidence and changed circumstances, which included recent research on sun exposure and the removal of melanomas, as well as Mr Snell’s recantation of his earlier evidence about sustaining sunburn at sea. The court found that the Tribunal's reasoning regarding the existence of fresh evidence and change in circumstances was flawed. The Tribunal had concluded that the evidence was not fresh because it was reasonably available to the Commonwealth at the time of the 2013 decision; however, the court found that the Tribunal misunderstood the concept of fresh evidence.
The court concluded that the Tribunal’s power to refuse to reconsider an issue previously determined did not mean it could refuse to consider relevant and probative evidence because of the existence of an earlier decision. The power to reconsider an earlier decision under the Seafarers Act negated any limitation on evidence which the Tribunal should consider when reviewing a subsequent decision. Consequently, the appeal was allowed, the decision of the Tribunal was set aside, and the matter was remitted to the Tribunal for further determination according to law.
The court found that the Tribunal had erred in its reasoning. It had applied an incorrect principle in dismissing the evidence and had failed to properly evaluate all of the available relevant evidence. The court held that the Tribunal should have considered the new evidence and changed circumstances, which included recent research on sun exposure and the removal of melanomas, as well as Mr Snell’s recantation of his earlier evidence about sustaining sunburn at sea. The court found that the Tribunal's reasoning regarding the existence of fresh evidence and change in circumstances was flawed. The Tribunal had concluded that the evidence was not fresh because it was reasonably available to the Commonwealth at the time of the 2013 decision; however, the court found that the Tribunal misunderstood the concept of fresh evidence.
The court concluded that the Tribunal’s power to refuse to reconsider an issue previously determined did not mean it could refuse to consider relevant and probative evidence because of the existence of an earlier decision. The power to reconsider an earlier decision under the Seafarers Act negated any limitation on evidence which the Tribunal should consider when reviewing a subsequent decision. Consequently, the appeal was allowed, the decision of the Tribunal was set aside, and the matter was remitted to the Tribunal for further determination according to law.
Orders
Orders of the court
1. The appeal be allowed.
2. The decision of the Administrative Appeals Tribunal dated 2 May 2018 be set aside.
3. The matter be remitted to the Administrative Appeals Tribunal for determination according to law and in accordance with these reasons.
4. The parties be heard as to costs.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
Background
Background to the litigation
Although it may be that, had the Tribunal applied the correct principle and considered the merits of the application by evaluating all of the available relevant evidence, it may have reached the same conclusion which it actually did, it is apparent that in rejecting the evidence it applied an erroneous principle and the matter must now be remitted to it for further hearing.The facts The foundation of Mr Snell’s claim is that he worked as a seafarer, including with the entity Australian National Line (ANL) and its successor entities, from 1957 to 1994 and during that period he was regularly exposed to the sun. There were no recorded histories of him suffering from sunburn during that period, but it can be accepted that his self-diagnosis that he avoided any such injury might well be subjective. In the period from March 2000 to July 2016 Mr Snell suffered various solar related medical conditions and underwent several medical procedures including the removal of a number of malignant melanomas. On 29 June 2011 he made a claim under the Seafarers Act for compensation for “solar induced skin disease”. He also made a claim for permanent impairment for “solar induced malignant skin disease”. The basis of his claim was that these conditions were contributed to in a material degree by his employment with ANL. The Commonwealth did not accept liability for Mr Snell’s claim and he sought review of its decision by the Tribunal. Mr Snell and the Commonwealth engaged in the usual preparatory processes for having Mr Snell’s claim determined by the Tribunal. Medical reports, witness statements and statutory declarations were obtained and exchanged between the parties. A brief consideration of the medical evidence is necessary to identify the scope of the issues which were agitated between them. A report from a dermatologist, Dr Wagner, of 13 June 2011, identified the extent of the skin damage sustained by Mr Snell. It recorded that he had certain malignant melanomas removed and that further excisions would be required. Dr Wagner opined that Mr Snell’s workplace sun exposure contributed in a material degree to his conditions. He noted:Whether Mr Snell is likely to develop new lesions in the future is highly probable given his past history demonstrating prolonged periods of occupational exposure to the sun. On 7 June 2012, Dr James Muir, also a dermatologist, provided a medico-legal report in relation to Mr Snell’s skin disease. After listing the extensive malignancies treated surgically over the years, he identified that Mr Snell had two high risk malignancies in 2004 and 2005. He said of these:Both of these lesions are high risk, however there has been a very significant period of time since their removal and the risk of local or systemic recurrence becomes less. Dr Muir also opined that the cause of Mr Snell’s skin condition was his exposure to sun during the course of his employment although did acknowledge that skin damage is cumulative over time. Later in his report he said:His loss of life expectancy is difficult to calculate. The reason for this is that he has had two very significant malignant melanomas as outlined above. However these lesions were treated over seven years ago and thus his chances of having further problems with these is greatly reduced with the passage of time. It is not impossible but is now much less likely that these lesions will recur either locally or systemically. The other malignant melanomas that he had were level 1 lesions and can be considered cured. As he is now 77 years old his life expectancy regardless of his skin malignancies is likely less then [sic] 20 years at the outside. An assessment of his life expectancy based on his overall state of health is outside my area of expertise.According to the published survival tables for melanoma, the 3.9 mm thick malignant melanoma excised from his thigh in 2004 with no evidence of nodal disease would have had a 5 year survival rate of 67.4% and a ten year survival rate of 53.9%. As stated above most recurrences of melanomas occur within ten years of excision. According to the melanoma guidelines 80% occur within the first three years. Thus it is now much more likely than not that Mr Snell will not develop recurrence of his invasive melanomas and thus these lesion [sic] are now very unlikely to result in any loss of life expectancy. Thus using table B4 one would have to award of score of 0 at this stage. Once again there is still a chance that these invasive melanomas could recur in which case his loss of life expectancy would be greater.
Evidence
Evidence Before The Court
It follows that the Commonwealth’s submission, that because distinct consequential impairments are to be treated as separate injuries for the purposes of assessing compensation, they must be treated as separate injuries in any factual analysis, should not be accepted.Was there fresh evidence? The Commonwealth next submitted that the Tribunal misunderstood the meaning of “fresh evidence” such that it then misapplied the Matusko principles. It specifically referred to the research undertaken by Dr Vuong and others which was reported in an article “Occupational sun exposure and risk of melanoma according to anatomical site” (International Journal of Cancer, 2014) and which had been referenced by Professor Fox in his report. It also relied upon the evidence of Mr Snell which was adduced in cross-examination at the hearing of the Tribunal to the effect that he had never sustained sunburn while going to sea and that it was only as a child that he suffered sunburn and blistering. That was significantly different to the evidence which had existed when the 2013 decision was made. At that time a report of Dr Muir indicated that Mr Snell had related a history of having been regularly sunburnt whilst at sea. Further, Mr Snell had provided a statutory declaration in 2011 for the purposes of his initial claim and, in that, he also asserted that he was regularly sunburnt whilst at sea. The essence of the Commonwealth’s complaint in this respect is that these pieces of evidence were mischaracterised by the Tribunal as not being within the concept of “fresh evidence” with the result that it misapplied the evaluative process required of the Matusko principles. It submitted that the evidence of the article by Dr Vuong and others had not been produced as at 2013 and Mr Snell’s recanting of his earlier evidence about sustaining sunburn at sea could not reasonably have been acquired because it was not known that he would recant the assertions in his statement or in Dr Muir’s report. The Tribunal determined that there were in existence at the time of the 2013 decision four other reports which were to the same effect as Dr Vuong’s. From that, it reasoned that the evidence in question, being that a view that the cause of metastatic malignant melanoma is solar skin damage which was sustained as a child, was neither new evidence nor was it fresh evidence. It also considered that the evidence of Mr Snell as to when he was sunburnt given under cross-examination was reasonably available to the Commonwealth at the time of the 2013 decision because, had it not agreed to the terms of the decision, it could have cross-examined Mr Snell at a hearing to the same effect. In oral submissions Mr Hanks QC for the Commonwealth submitted that the Tribunal erred in finding the evidence was not “fresh evidence” because it misunderstood the effect of the decision in Hannaford. It was said that arose in two ways. First, because the Tribunal did not understand that a finding on liability under the SRC Act did not permanently enshrine every finding of fact on which an initial determination of liability was made. Secondly, because it distinguished the effect of that decision on the operation of the Seafarers Act by reference to the absence of the words “subject to this part” and “in accordance with this Act” in key sections of the latter Act. Just how those errors related to the Tribunal’s conclusion with respect to the fresh evidence point was never explained.
Decision
Reasons for decision
Mr Snell lodged an application to the Tribunal for review of the reviewable decision on 24 May 2017.The Tribunal’s decision As mentioned above, the Tribunal did not engage in any substantive assessment of whether the malignant melanomas which were excised prior to the 2013 decision had been contributed to in a material degree by Mr Snell’s employment with ANL. It determined that no reason had been shown why the issue of what had caused Mr Snell’s conditions should be re-litigated given that it had been determined by the 2013 decision. The reasons of the Tribunal can be summarised as follows:(a)The Tribunal was satisfied that Mr Snell suffered from metastatic malignant melanoma which was a terminal cancer.(b)It identified that it had to be satisfied that Mr Snell’s employment contributed in a material degree to his contraction of metastatic malignant melanoma.(c)It accepted that on 2 April 2013, Mr Snell had previously obtained compensation for “solar induced skin disease”, payable by the Commonwealth (in the stead of Australian River Co Ltd) and the foundation of that conclusion was that Mr Snell’s “solar induced skin disease” had been contributed to in a material degree by his employment.(d)It observed that Mr Snell had submitted that his current condition of metastatic malignant melanoma is a subset, or natural consequence of the “solar induced skin disease” for which the Commonwealth had accepted liability. The Commonwealth submitted to the contrary. (e)The Tribunal accepted Mr Snell’s submissions. At paragraph [22] of its reasons it found in relation to the cause of Mr Snell’s current condition:I find that the possibility of one of the litany of skin cancers and conditions from which the Applicant was suffering at the time of the 2013 decision transforming or metastasising into metastatic malignant melanoma was both squarely within the contemplation of the parties and of the Tribunal at the time of the 2013 decision. Further, I am satisfied on the balance of probabilities that that is what occurred. And later at [34]:I therefore find, on the balance of probabilities, that the cause or progenitor of the Applicant’s present metastatic malignant melanoma was one of the malignant melanomas which were excised from him in the period 2004-2011, and which were all covered by the expression “solar induced skin disease” as used in the 2013 decision.(f)The Tribunal found that the metastatic malignant melanoma was caused by one of the melanomas which Mr Snell had excised in the period from 2004 to 2011 and in respect of which the Commonwealth had accepted liability. Those melanomas were the subject of the 2013 decision and part of the “solar induced skin disease”. It rejected the proposition that the present condition was caused by a later melanoma from which Mr Snell had suffered (the 2015 melanoma).(g)The Tribunal then determined that the metastatic malignant melanoma was not a secondary condition in the sense referred to in Canute. It was the consequence of the cells of one of the melanoma which had been excised migrating in the body to the lymph nodes and then spreading. That being so the present condition was not a separate condition from the original solar induced skin disease and Mr Snell was still suffering from the malignant melanomas which were compensated for by the 2013 decision.(h)The Tribunal then considered whether it should reconsider the cause of the occurrence of skin conditions which were the subject of the 2013 decision. That is, whether they had been contributed to in a material degree by his employment or, as Professor Fox opined, by reason of Mr Snell’s exposure to sun in his childhood. (i)The Tribunal concluded it had power to refuse to reconsider an issue which had been previously determined by it in relation to a claim. In doing so it relied upon s 33 of the AAT Act and the principles identified in a decision of the Tribunal in Re Matusko and Australian Postal Corporation (1995) 21 AAR 9 (Matusko) which decided that, although the Tribunal it was not bound by issue estoppel, it was able to regulate the re-litigation of issues already determined. It considered that it should commence with the presumption that matters should not be allowed to be re-litigated.(j)The circumstances in which the Tribunal might allow re-litigation of a point already determined were identified in Matusko as being:(i)where there is a different decision; (ii)where there is a clear legislative intent;(iii)where the reconsideration decision is not final;(iv)where there has been a change in circumstances or fresh evidence; or (v)where justice to the parties requires a departure from the general rule. (k)However, the Tribunal determined that the mere fact that the decision before it was different to the 2013 decision did not warrant re-consideration of the previously decided causation issue. It also confined the application of the decision in Telstra Corporation Ltd v Hannaford (2006) 151 FCR 253 at [57] to circumstances where there exists a discontinuity between the applicant’s existing symptoms and those for which liability has been previously determined or where there has been a change in the functional effect of the injury. It further found there was a legislative intent in the Seafarers Act which pointed away from the re-litigation of issues which have previously been determined.(l)The central issue considered by the Tribunal in this respect was whether there had been a change in the circumstances or fresh evidence, being Professor Fox’s report, a recent study by a Dr Vuong on sun exposure and a change in Mr Snell’s evidence to the effect that he had not suffered sunburn whilst at sea. It was concluded that Professor Fox’s report could have been acquired for the original proceedings by the use of reasonable diligence and that weighed against re-opening the question of liability. Whilst the Vuong study was only produced after the 2013 decision, its conclusions were not novel and the same view could previously have been advanced. It also found that Mr Snell’s statement to Professor Fox that he had not been sunburnt whilst at sea, which was contrary to his assertions prior to the 2013 decision, was evidence which could have been obtained by the respondent earlier and was not sufficiently strong to justify the re-agitation of the causation issue. Taking these matters together, the Tribunal concluded that there was no justification for allowing re-litigation, and that was particularly so in circumstances where Mr Snell’s condition had deteriorated significantly as a result of the same condition.(m)On that basis the Tribunal determined not to reconsider the cause of the original condition such that it necessarily followed that it was compelled to find that the metastatic malignant melanoma was contributed to in a material degree by Mr Snell’s employment and loss was calculated accordingly.The legislative scheme
Ratio Decidendi
Legal Principle Established
Full text does not contain this section.