Faulks and BIS Industries Ltd (Compensation) - [2018] AATA 4128

Faulks and BIS Industries Ltd (Compensation) [2018] AATA 4128 (5 November 2018)
Division:GENERAL DIVISION
File Number(s): 2017/6913
Re:John Faulks
APPLICANT

AndBIS Industries Ltd
RESPONDENT

DECISION
Tribunal:Mark Hyman, Member
Date:05 November 2018
Place:Canberra

The applicant may draw on material relating to his earlier employment by the respondent in advancing the NWE matter before the tribunal.
........................................................................
Mark Hyman, Member
Catchwords
PRACTICE AND PROCEDURE - compensation – jurisdiction – normal weekly earnings – where earlier applications dismissed for failure to proceed – whether material relating to earlier period may be drawn on in later application – estoppel principles – distinction between matters settled on their merits or by consent and matters dismissed on technical grounds – matter not yet considered and determined by the tribunal - tribunal’s jurisdiction extends to earnings pattern established before the dismissal of earlier applications
Legislation
Administrative Appeals Tribunal Act 1975, ss 25, 33, 34D, 42A, 42B, 42C, 43
Safety, Rehabilitation and Compensation Act 1988, ss 8, 9, 14, 19, 62
Cases
Comcare v Grimes [1994] FCA 1054
Grimsley and Telstra Corporation (2010) 51 AAR 401
Matusko and Australian Postal Corporation [1995] AATA 14
Mulheron and Australian Telecommunications Corporation [1991] AATA 673
Nicholson and Secretary, Department of Social Security [1990] AATA 212
Novosel v Comcare [2017] FCA 722
Quinn and Australian Postal Corporation (1992) 15 AAR 519
REASONS FOR DECISION
Mark Hyman, Member
05 November 2018
This decision is about whether the tribunal has jurisdiction to determine the normal weekly earnings (NWE) of the applicant, Mr John Faulks, on the basis that he contends. Mr Faulks has a number of matters before the tribunal, one of which relates to the determination of his compensation entitlements in the period 24-30 October 2017. An element in the calculation of compensation under section 19 of the Safety, Rehabilitation and Compensation Act 1988 (the SRC Act) is the figure for NWE, which is itself calculated under section 8 of that Act. Mr Faulks has previously raised several matters related to the calculation of NWE, in matters 2016/5163, 2017/0005, 0008 and 0010. These four matters were dismissed by the tribunal on 23 June 20178 for failure to proceed. Mr Faulks now urges the tribunal to determine his NWE for 24-30 October 2017 with reference to new material he has assembled relating to an earlier period of his earnings. Mr Faulks provided to the tribunal his payroll records for the period 11 August 2010 to 12 December 2016 and seeks to obtain from the respondent, BIS Industries Ltd (BIS), payroll records for comparable employees from 2011 to the present.
BIS argues that Mr Faulks cannot seek to vary his NWE in the way he seeks; NWE for all periods up to 23 June 2017 has been decided by the tribunal through its dismissal of the earlier applications, and NWE can only be decided for subsequent periods through the application of the methods of adjustment and updating set out in the various subsections of section 8, for example through…

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.

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Details

Case: [2018] AATA 4128
Decision Date: 5 November 2018

CaseChat Overview and Summary

This matter concerned an application for compensation by Mr Faulks against BIS Industries Ltd before the Administrative Appeals Tribunal. The dispute centred on the determination of Mr Faulks' normal weekly earnings (NWE) for the purposes of his compensation claim. Earlier applications made by Mr Faulks concerning his NWE had been dismissed by the Tribunal in June 2017. BIS Industries argued that these earlier dismissals meant that Mr Faulks' NWE up to that date were definitively determined, and any subsequent variation could only be made through specific statutory processes.

The primary legal issue before the Tribunal was whether Mr Faulks could rely on material relating to his earnings pattern established before the dismissal of his earlier applications to support a later application for review of his NWE. BIS Industries contended that principles akin to res judicata and issue estoppel prevented Mr Faulks from raising these matters again, arguing that the earlier dismissals had affirmed the NWE determinations at that time. The Tribunal was required to consider the application of estoppel principles to administrative tribunals and the extent to which its own statutory powers could address concerns typically managed by such doctrines.

The Tribunal acknowledged the debate surrounding the applicability of estoppel doctrines to administrative decision-makers, noting that while it may not strictly apply, the Tribunal possesses broad powers under the Administrative Appeals Tribunal Act 1975 to manage its processes and prevent the relitigation of finally decided matters. However, the Tribunal also recognised that the Safety, Rehabilitation and Compensation Act 1988 (SRC Act) provides for the continuing determination of entitlements, including reconsideration of determinations under section 62. This provision allows for redetermination where an injury worsens or a new condition arises, implying that the Tribunal may need to review matters previously considered. The Tribunal found that its jurisdiction extended to considering the earnings pattern established by Mr Faulks before the dismissal of his earlier applications, as the matter had not been finally determined on its merits in a way that would preclude such consideration.

Orders

Orders of the court

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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

Mr Richards argued for BIS that the SRC Act provides for NWE to be determined and amended only through the application of a specified set of processes. Once NWE is first determined, the variation and adjustment processes established in the later subsections of section 8 can be applied to change the figure arrived at. It follows that when the applications were dismissed by the tribunal in June 2017, NWE up to that time was determined by that decision, which had the effect of affirming each of the reconsideration determinations relating to NWE of which Mr Faulks was seeking review; and NWE subsequent to that date – including for the period in October for which review was now sought in the present matter - could only be varied by the application of the processes set out in later subsections of section 8.CONSIDERATION Correspondence from Mr Hatch contends that during the period of his employment by BIS Mr Faulks earned at a very high rate by undertaking a great deal of overtime. Since he has been incapacitated others have undertaken the same work but not at the same rate – they have worked fewer hours – and are therefore earning less. It is clear that Mr Faulks’ intends to establish this pattern through providing his own payroll records and seeking those of comparable employees. BIS argues that it is improper for him to do so, I gather on the basis that he is prevented by the tribunal equivalent of the court doctrines of res judicata and/or issue estoppel. There has been debate about whether this tribunal (and tribunals more generally) are subject to doctrines such as res judicata, cause of action estoppel and issue estoppel: see Quinn and Australian Postal Corporation (1992) 15 AAR 519 (Quinn); Matusko and Australian Postal Corporation [1995] AATA 14 (Matusko). It appears that the question is yet to be definitively determined (although it is perhaps the preferred position that estoppel does not apply to the tribunal, as an administrative decision maker: see Comcare v Grimes [1994] FCA 1054 (Wilcox J)), but it is a common position in the authorities that the powers given the tribunal by sections 33, 42A and 42B of the AAT Act provide the tribunal with very flexible means of controlling its own processes, and these powers can be used to address the concerns that doctrines such as res judicata and estoppel evolved to deal with in the courts. In particular, it is clear that the tribunal has the power under section 42B of the AAT Act to dismiss a matter that has already been finally decided and to prevent its reagitation, or, as is sought by BIS in the present matter, the tribunal could constrain the scope of its review to exclude matters already decided, for example under subsection 25(4A) of the AAT Act. A check in practice on the exercise of those powers, however, arises from the provision in some statutes, including the SRC Act, for continuing determination of a person’s entitlements. The SRC Act provides in section 62 for reconsideration of determinations, on the determining authority’s own motion or at the request of a claimant or another affected body. Thus a person who has a worsening compensable injury under the SRC Act, or an exacerbation of an injury, or a new condition, can seek redetermination of their matter. That implies that the tribunal may be called on to review a matter already determined in the tribunal at an earlier time.