Eylward and Comcare
[2008] AATA 63
•23 January 2008
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 2REASONS 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 relevant legislative provisions are contained in the AAT Act. Section 33(1) of the AAT Act provides:
“33 Procedure of Tribunal
(1) In a proceeding before the Tribunal:
(a)the procedure of the Tribunal is, subject to this Act and the regulations and to any other enactment, within the discretion of the Tribunal;
(b)the proceeding shall be conducted with as little formality and technicality, and with as much expedition, as the requirements of this Act and of every other relevant enactment and a proper consideration of the matters before the Tribunal permit; and
(c)the Tribunal is not bound by the rules of evidence but may inform itself on any matter in such manner as it thinks appropriate.”
Section 42B(1) of the AAT Act provides:
“42B Power of Tribunal where a proceeding is frivolous or vexatious
(1)Where an application is made to the Tribunal for the review of a decision, the Tribunal may, at any stage of the proceeding, if it is satisfied that the application is frivolous or vexatious:
(a) dismiss the application; and
(b)if the Tribunal considers it appropriate, on the application of a party to the proceedings, direct that the person who made the application must not, without leave of the Tribunal, make a subsequent application to the Tribunal of a kind or kinds specified in the direction.
…”
7. The Tribunal is also mindful that s 2A of the AAT Act provides that in carrying out its functions, the Tribunal must “pursue the objective of providing a mechanism of review that is fair, just, economical, informal and quick”.
issues
8. The Tribunal is asked to determine as a preliminary point whether the current application for review should be dismissed. In doing so, the Tribunal must consider the following issues:
·Is the application for review frivolous and/or vexatious within the meaning of s 42B(1)(a) and (b) of the AAT Act?
·Should the current application for review be dismissed pursuant to the Tribunal’s powers to regulate its own procedures as set out in s 33 of the AAT Act?
background
9. There is no dispute about the facts relevant to the interlocutory application.
10. The Tribunal received into evidence the T documents, an updated report of Dr Ravindran, a report of Dr Bauze and a statement of the applicant received by the Tribunal on 27 June 2007.
11. The applicant sustained a compensable injury to her left shoulder in 1998 in the course of her employment with Frontline Defence Services while working in a canteen at the Edinburgh RAAF Base in South Australia. Liability was accepted by Comcare for supraspinatus (muscle) (tendon) strain (left) in September 1998. In June 2001 the applicant received compensation for a 10 percent permanent impairment with respect to her left shoulder.
12. In December 2002 the applicant claimed compensation for a permanent impairment of her right shoulder as being a sequellae of the left shoulder injury. Her initial application is at T31. That claim was rejected by the delegate. In seeking a redetermination, the applicant specifically referred to the condition of her right shoulder for which she sought compensation as being “subacromial bursa thickening, leading to bursitis and bursal impingement during abduction” (T33).
13. Her claim was rejected upon redetermination and she sought a review of the reviewable decision to this Tribunal in matter S2003/503 (the 2003 application).
14. In support of the 2003 application, the applicant relied on medical evidence of Dr Prasad, Dr Ravindran and Dr Mills. Each of these doctors was of the opinion that there was a causal link between the right shoulder dysfunction and her compensable left shoulder injury. Comcare relied on their own medical evidence which rejected any causal link between the injury to the applicant’s left shoulder and her right upper limb dysfunction.
15. The T documents for the current application for review largely comprise the evidence upon which the applicant relied in her 2003 application.
16. The applicant settled the 2003 claim with Comcare without proceeding to a full hearing before the Tribunal. The 2003 claim was with respect to the right shoulder. Comcare accepted that the level of impairment in her left shoulder had increased to 20 percent and reassessed her entitlements accordingly. The applicant accepted that Comcare had no liability with respect to the right shoulder injury.
17. A consent order was made by this Tribunal on 22 July 2004. The applicant had legal representation at the time. That order finalised the 2003 application. The preamble to the consent order recited the applicant's acceptance of Comcare's reconsideration of 17 June 2004. That reconsideration had determined that the applicant suffered from 20 percent whole person impairment with respect to the left shoulder condition. The operative part of the Tribunal’s order then reads as follows:
“NOW THEREFORE the Tribunal, pursuant to section 42C(2) of the Administrative Appeals Tribunal Act 1975, affirms the reviewable decision of the respondent dated 29 July 2003 which denied liability for the applicant's right shoulder condition pursuant to section 14 of the Act.”
18. On 27 February 2006, the applicant's solicitor wrote to Comcare enclosing a further report of Dr Mills dated 23 December 2005 (T46). In that report Dr Mills expressed the view that the applicant had a 20 percent impairment of her right upper limb which he considered to be a sequellae to the compensable left shoulder injury. The solicitor’s letter was treated as a further and fresh claim for compensation for impairment with respect to the applicant's right shoulder.
19. Dr Mills had provided an earlier report in 2000, in the context of the 2003 claim, in which he had expressed the view that the right shoulder problem was linked to the left shoulder problem. At that earlier point in time he assessed her right upper limb impairment at 5 percent. In the later report of 2005 he quoted his opinion as set out in his report of September 2000, namely that the applicant's right shoulder problems were secondary to her left shoulder injury. He then went on to assess the level of impairment in the right shoulder noting that there had been a more recent aggravation of her right shoulder problem.
20. A reviewable determination of 23 August 2006 from Comcare rejected liability with respect to the right shoulder and so did not need to consider the issue of impairment. An application for review of that decision is before this Tribunal.
21. A report of Dr Ravindran of 17 October 2007 reiterates his view previously expressed with respect to causation, namely that increased use of her right upper limb because of restrictions in the shoulder contributed materially to the onset of symptoms in the right shoulder joint.
22. Comcare has obtained an independent report from Dr Bauze dated 6 March 2007, which reviewed the prior medical evidence and rejected a causal link between the right shoulder and the left shoulder injury.
discussion
23. The only fresh medical evidence upon which the applicant intends to rely at the hearing is a report of Dr Mills dated 23 December 2005 (T46) and the report of Dr Ravindran dated 17 October 2007. Neither of these reports raises any new material with respect to causation insofar as there is a link alleged between the right and left shoulder problem. The reports deal primarily with the issue of impairment of the right upper limb. Both doctors appear to have assumed an acceptance of liability by Comcare and deal with impairment.
24. Between the date of the consent order in 2004 and her claim for a determination with respect to her right shoulder, the applicant had taken on employment with Bunnings and had aggravated existing problems in her right shoulder when lifting potting mix. Her right shoulder problem worsened and she sought further medical attention.
25. Dr Mills, after seeing the applicant again on 16 December 2005 and after the 2003 application had been finalised, increased his assessment of the impairment to her right shoulder. He expressed the view that there was “… a substantial contribution to the dysfunctional right shoulder because of surgery to the left shoulder increasing the work of her right shoulder”. This was a repetition of his prior opinion with respect to causation.
26. Dr Ravindran reviewed the applicant in October 2007. Prior to that he had not seen her since early 2004 and before the 2004 consent order. He expressed the view that the problems in the right upper limb had been contributed to materially by the left shoulder injury. He assessed her as having 20 percent impairment in the right shoulder. In his earlier reports he had expressed the view that the right shoulder dysfunction was associated with the left shoulder injury.
27. Comcare contends that there is nothing new in the evidence relating to causation before the Tribunal, a decision with respect to liability has been made by this Tribunal in 2004, and the applicant is not entitled to re-litigate a matter that has been previously determined, namely the issue of Comcare’s liability with respect to the right shoulder injury.
28. The applicant contends that there is new medical evidence before the Tribunal which shows an increased level of impairment and that may make it easier to demonstrate the causal link between the compensable injury and the right shoulder injury.
29. The applicant also contends that as a new decision has been made and there is a new reviewable decision the Tribunal must exercise its statutory powers and review that determination.
are the proceedings frivolous or vexatious?
30. The first basis on which Comcare contends the application for review should be dismissed, is that the application is frivolous and/or vexatious.
31. In the matter of Attorney-General v Wentworth (1988) 14 NSWLR 481 at 491, Justice Roden summarised what amounts to a frivolous and vexatious application in the following terms:
“It seems then that litigation may properly be regarded as vexatious for present purposes on either objective or subjective grounds. I believe that the test may be expressed in the following terms:
1. Proceedings are vexatious if they are instituted with the intention of annoying or embarrassing the person against whom they are brought.
2. They are vexatious if they are brought for collateral purposes and not for the purpose of having the court adjudicate on the issues to which they give rise.
3. They are also properly to be regarded as vexatious if, irrespective of the motive of the litigant, they are so obviously untenable or manifestly groundless as to be utterly hopeless.
…”
32. His statement is accepted as generally representing the principles to apply when considering whether an application is vexatious or frivolous.
33. The Tribunal is satisfied that the current application for review does not fall within paragraphs 1 and 2 of the categories set out by Justice Roden.
34. With respect to the third test, it is not possible to say in this case that the application is so manifestly groundless as to be utterly hopeless as the applicant’s prior application for review was resolved by consent, the evidence was never heard and there was not an independent adjudication of the evidence.
35. Comcare did not strongly assert s 42B of the AAT Act as being the basis for the proceedings being dismissed at this point in time, but asked the Tribunal to exercise its powers under s 33 of the AAT Act and dismiss the application for the reasons already set out in paragraph 27 (supra).
36. Both parties accept that s 33 of the AAT Act does confer a power to dismiss proceedings in certain circumstances and the Tribunal is satisfied that there is strong authority for the proposition that in pursuance of its power to regulate its own procedures, the Tribunal can dismiss an application using its powers under s 33 of the AAT Act without the application proceeding to a hearing.
37. Re Quinn and Australian Postal Corporation (1992) 15 AAR 519 is frequently quoted as authority for this proposition. In that case at page 526 Justice O’Connor commented as follows:
“Section 33 of the Administrative Appeals Tribunal Act provides for the Tribunal the flexibility needed to control its process. It is with regard to the dictates of fairness and expedition, after proper consideration of all the facts, that the Tribunal conducts itself.
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. In compensation cases like the present, the issues of causation and level of incapacity for the period the subject of the earlier decision would thus not be areas contested in a subsequent hearing.”
38. The second proposition put forward by Comcare in their outline of submissions was as follows:
“By reference to the principle of Anshun estoppel , by analogy with the principles governing abuse of process more generally and/or in the exercise of its general discretion and responsibility to prevent relitigation of the same issues, it is appropriate to dismiss the application without proceeding to a substantive hearing”.
39.
40. Comcare contends that the resolution of the 2003 application by a consent order, in which the applicant accepted a denial of liability with respect to the right shoulder, effectively creates an estoppel. She should not be allowed to ask the Tribunal to consider Comcare’s liability for her right shoulder injury again without there being fresh material evidence with respect to causation that would need to post-date the 2003 application which was resolved by consent.
41. A number of cases have dealt with the issue of the extent to which estoppel applies in this Tribunal. In the recent case of Re Jebb and Repatriation Commission [2005] AATA 470, Deputy President Jarvis canvassed the current state of the authorities and expressed the view that of the different forms of estoppel, Anshun estoppel may be applicable in proceedings in this Tribunal.
42. Anshun estoppel takes its name from the Port of Melbourne Authority v Anshun Proprietary Limited (1981) 147 CLR 589. It is summarised by Deputy President Jarvis as follows:
“42. … This form of estoppel applies where a party has behaved unreasonably in not raising a matter in earlier proceedings, and so is not permitted to litigate that matter in later proceedings except in special circumstances.”
43. Deputy President Jarvis then considered the applicability of s 33 in the context of estoppel:
“46. … Under s 33 of the Administrative Appeals Tribunal Act 1975 (Cth) (the "AAT Act") this Tribunal has flexible powers to conduct its procedure. These powers would in my view enable the Tribunal to apply the doctrine of Anshun estoppel. In considering whether it was appropriate in a particular matter to do so, the Tribunal would, I think, need to consider ss 2A and 39 of the AAT Act. Section 2A provides in effect that in carrying out its functions, the Tribunal must "pursue the objective of providing a mechanism for review that is fair, just, economical and quick". Section 39 requires the Tribunal to ensure that every party is given a reasonable opportunity to present his or her case. There is a potential for tension between some of the foregoing functions and requirements. The provisions of s 39of the AAT Act, and the requirement for the Tribunal to arrive at the correct or preferable decision, suggest that the Tribunal should be reluctant to apply Anshun estoppel to prevent a party from raising a relevant issue. However, this will no doubt depend on the facts of each case. …”
44. Nevertheless, this is not a case of the applicant raising an issue that was not raised in the 2003 application. The Tribunal cannot see that the doctrine of Anshun estoppel has direct relevance in this case.
45. However, the use of the powers under s 33 of the AAT Act is not confined to consideration of estoppel. The issue of causation was raised in the 2003 application and was fundamental to the success or otherwise of that application. It is being raised again in the current application. Considerations of estoppel may be taken into account by the Tribunal in deciding whether to exercise its powers to dismiss an application or allow it to proceed under s 33 of the AAT Act. Nevertheless it remains a discretionary matter for the Tribunal as to whether to dismiss an application in particular circumstances.
46. The applicant argues that because a determination has been made under the Safety, Rehabilitation and Compensation Act 1988 (the SRC Act), the Tribunal has an obligation to exercise its statutory function to review that determination. The Tribunal has considered the relevant provisions of the SRC Act.
47. A right of review to this Tribunal lies under s 64 of the SRC Act. Once the matter is before this Tribunal, the Tribunal has wide powers of review including the power to determine whether it should exercise its powers under s 33 or s 42B of the AAT Act with respect to the particular application. The Tribunal does not accept the applicant’s contention that the fact that there is a reviewable decision in some way fetters the Tribunal’s power to then regulate its own procedures under s 33 of the AAT Act when the mater is reviewed by this Tribunal. The SRC Act does not purport to specifically limit the Tribunal’s power of review in this way.
48. Having considered all the material before the Tribunal, including the medical evidence upon which the applicant intends to rely in pursuing the current application, the Tribunal is satisfied that the applicant brings nothing new to the Tribunal with respect to issues of causation.
49. It is accepted principle that issues of incapacity and impairment can be reconsidered by the Tribunal where there are changed circumstances or new events that have altered prior levels of impairment or incapacity. Liability is a different issue. Once the Tribunal has determined that a respondent is not liable for a particular injury that gave rise to incapacity and/or impairment, then it should only be in unusual circumstances where fairness and justice to the parties requires a re-determination and/or where there is significant new evidence which would justify the Tribunal re-opening the issue of liability, that an applicant should be allowed to reopen that issue and seek a new determination. As was stated in the case of Re Marinov and Comcare [2006] AATA 223:
“39. … The Tribunal has flexibility to determine its procedures under s 33 of the AAT Act and to prevent relitigation of matters previous determined. In appropriate circumstances, however, it may decide to apply again or to disturb an earlier decision that was, at the time, determinative of a matter (Re Lewis and Comcare [2000] AATA 158). That is a matter of discretion (Morales v Minister for Immigration and Multicultural Affairs (1998) 154 ALR 51 at 65-66).
40. Principles appropriate to the exercise of the discretion to permit reconsideration of a previously settled matter were discussed in Re Quin and Australian Postal Corporation (1992) 15 AAR 519 at 526 and in Matusko’s case (supra) at AAR 20-21. To the extent that, generally, a matter that has once been decided by the Tribunal should not be revisited or relitigated unless, with an eye to fairness and justice to the parties, and the requirement for the Tribunal to make the correct or preferable decision, there is good reason to do so, … ”
50. In the current application for review the Tribunal is being asked to revisit the issue of Comcare’s liability for the injury to the applicant's right shoulder.
51. Comcare submits that we have no idea of what negotiations lead up to the consent decision in 2004. Comcare points to the practical effect it would have on negotiated settlements if an applicant, having agreed that a respondent was not liable for one aspect of their impairment or incapacity in return for receiving a benefit with respect to some other aspect of their case, could then shortly thereafter reopen the issue of liability.
52. The Tribunal is satisfied that in the current application for review the applicant purports to re-litigate a matter that has been determined by a prior consent order.
53. The general principle that the Tribunal should not allow re-litigation except in certain circumstances applies to consent decisions as well as judicial decisions. That this is so is supported by the authorities. In Bogaards v McMahon (1988) 80 ALR 342 Pincus J commented as follows:
“40. It would seem easy enough to conclude that, to the extent that the Tribunal deals directly with a decision under review (for example by substituting another), its functions are exhausted. It would be absurd to suppose that the legislature intended that the Tribunal, having on Monday set aside a decision under review, should have jurisdiction on Tuesday (on precisely the same facts) to affirm it, perhaps acting by a different member. The same result must follow where the Tribunal’s decision is made by consent; at least as a general rule, a consent order can support a plea of res judicata: …”
54. The effect of a prior consent order on a subsequent application was considered by the Full Court of the South Australian Workers’ Compensation Tribunal in the matter referred to by counsel for the applicant, namely WorkCover v Mathie (2005) SAWCT 2. The Tribunal commented as follows:
“24. … It does not follow that the consent orders do not define the rights and liabilities of the parties in the terms specified …
…
28. In our view, the objects and scheme of the Act reflect Parliament’s contemplation that conciliation will be a robust process of give and take, that subject to them being lawful and enforceable may include creative solutions, and that agreements reached through the process will be binding and enduring.”
55. That particular case involved a change in a worker’s capacity for work and he was entitled to have that issue determined on the basis that he was adducing evidence that there had been an adverse change in his capacity for work since an earlier decision of the that Tribunal.
56. There is no new compelling evidence produced by the applicant in this case to satisfy the Tribunal that the consent decision in 2004 was not the correct and preferable decision insofar as it determined Comcare’s liability with respect to the applicant's right shoulder injury.
57. The Tribunal has carefully considered all the available documentary evidence upon which the parties intended to rely at a hearing. If this matter were to proceed to a hearing, considerable time and expense would be involved for both parties. As a matter of policy, the Tribunal should not allow matters to be re-litigated other than in circumstances where justice and fairness or significant new evidence may warrant such re-litigation.
58. In reaching the conclusion that the applicant should not be allowed to proceed with the current application, the Tribunal has had regard to the provisions of s 2A of the AAT Act. The Tribunal is satisfied that the decision is consistent with the Tribunal’s obligations as set out in that section. Considerable time has been spent in considering the applicant’s case and nothing put forward by her counsel or in her documents persuades the Tribunal that it should do other than dismiss her application without allowing it to proceed to review.
59. In summary the Tribunal finds:
·The bulk of the evidence upon which the applicant seeks to rely pre-dates the determination in the 2003 matter.
·The only fresh evidence upon which the applicant seeks to rely is medical evidence that goes to impairment and not liability and adds nothing to the issue of causation as it stood prior to the consent decision of 2004.
·The terms of the consent order of 2004 most specifically state that the applicant accepts the rejection of liability for an injury to her right shoulder.
·There is nothing to persuade the Tribunal that the 2004 decision was not the correct and preferable decision.
·In pursuance of its power to regulate and manage its own procedure the applicant should not be allowed to re-litigate the issue of liability based on the current available evidence.
60. In the circumstances, 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 AAT Act.
I certify that the 60 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member L Hastwell
Signed: .....................................................................................
AssociateDate of Hearing 29 October 2007
Date of Decision 23 January 2008
Counsel for the Applicant Mr G Britton
Solicitor for the Applicant T F Owen & Co
Counsel for the Respondent Ms K Bean
Solicitor for the Respondent AGS
3
6
0