Eylward and Comcare - [2008] AATA 63

Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2008] AATA 63
ADMINISTRATIVE APPEALS TRIBUNAL )
) No S 200600304

GENERAL ADMINISTRATIVE DIVISION )

Re SUSAN EYLWARD

Applicant

And

COMCARE

Respondent

DECISION

Tribunal Senior Member L Hastwell
Date23 January 2008
PlaceAdelaide

Decision

The Tribunal exercises its discretion to dismiss the application for review without proceeding to a further hearing, pursuant to its power under s 33 of the Administrative Appeals Tribunal Act 1975.

..............................................
L HASTWELL
(Senior Member)

CATCHWORDS
PRACTICE AND PROCEDURE – application for review of a decision rejecting liability for injury to right shoulder – prior consent decision of Tribunal that Comcare not liable for right shoulder injury – application to dismiss application for review – frivolous and vexatious considered – estoppel – Anshun estoppel – power of Tribunal to regulate its own procedures – no fresh evidence with respect to causation contained in documents filed by the parties – no compelling new evidence – justice and fairness considered – prima facie prior decision remains correct and preferable decision – applicant seeking to re-litigate issue of liability previously resolved by consent – application for review dismissed without proceeding to a hearing
Administrative Appeals Tribunal Act 1975 ss 2A, 33(1), 42B(1)
Safety, Rehabilitation and Compensation Act 1988 s 64
Attorney-General v Wentworth (1988) 14 NSWLR 481
Re Quinn and Australian Postal Corporation (1992) 15 AAR 519
Re Jebb and Repatriation Commission [2005] AATA 470
Port of Melbourne Authority v Anshun Proprietary Limited (1981) 147 CLR 589
Re Marinov and Comcare [2006] AATA 223
Bogaards v McMahon (1988) 80 ALR 342
WorkCover v Mathie (2005) SAWCT 2
REASONS FOR DECISION

23 January 2008   Senior Member L Hastwell

1.      Susan Eylward (the applicant) has applied to this Tribunal for review of a decision of the respondent (Comcare) dated 23 August 2006, in which Comcare denied liability for an injury sustained by the applicant to her right shoulder.
2.      The applicant asserts that her right shoulder injury is the sequelae of an injury to her left shoulder for which liability has previously been accepted by Comcare.
3. The applicant's application for review had been listed for hearing in late October 2007. In early October 2007 Comcare applied to have the application for review dismissed without proceeding to hearing. Their application sought an order that the current application for review be dismissed pursuant to either s 42B of the Administrative Appeals Tribunal Act 1975 (the AAT Act) as being frivolous or vexatious or alternatively under s 33 of the AAT Act which provides the Tribunal with the power to manage its own procedures.
4.      Comcare contends that the current application for review amounts to an attempt by the applicant to re-litigate an issue that had been previously resolved by a consent order of this Tribunal. On that basis, she should not be allowed to proceed and her application should be dismissed.
5.      The Tribunal heard argument from counsel for both parties with respect to the interlocutory application.
legislation
6. The…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Eylward and Comcare

Details

AGLC: Eylward and Comcare [2008] AATA 63
Case: [2008] AATA 63
Decision Date: 23 January 2008

CaseChat Overview and Summary

In Eylward and Comcare, the applicant sought a review of a decision by Comcare rejecting their claim for liability for injury to their right shoulder. The dispute came before the Administrative Appeals Tribunal, where the applicant aimed to challenge the rejection of their claim. The primary legal issues before the Tribunal were whether the application for review should be dismissed as frivolous and vexatious, and whether the prior consent decision of the Tribunal that Comcare was not liable for the right shoulder injury could be re-litigated.

The Tribunal considered whether the application for review was frivolous or vexatious, and whether it was appropriate to dismiss the application without proceeding to a hearing. The court examined the concept of Anshun estoppel and the power of the Tribunal to regulate its own procedures. It was noted that the application did not contain any fresh evidence with respect to causation, and therefore, there was no compelling new evidence. The Tribunal weighed the principles of justice and fairness, considering that the applicant was seeking to re-litigate an issue of liability that had already been resolved by consent. The Tribunal found that the prior decision remained correct and preferable, as there was no evidence of new or compelling information that would warrant a reconsideration of the issue.

Consequently, the Tribunal dismissed the application for review without proceeding to a further hearing, exercising its discretion under section 33 of the Administrative Appeals Tribunal Act 1975. The Tribunal concluded that the application was frivolous and vexatious, as the applicant was attempting to re-litigate an issue that had already been conclusively determined. The decision underscored the importance of adhering to prior consent decisions and the need to avoid unnecessary re-litigation of issues that have already been resolved.

Orders

Orders of the court

The Tribunal exercises its discretion to dismiss the application for review without proceeding to a further hearing, pursuant to its power under s 33 of the Administrative Appeals Tribunal Act 1975.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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