Flahive and Comcare (Compensation) - [2021] AATA 2444

Flahive and Comcare (Compensation) [2021] AATA 2444 (22 July 2021)
Division:GENERAL DIVISION
File Numbers: 2019/4828
2020/1707
2020/2211

Re:John Flahive
APPLICANT

AndComcare
RESPONDENT

DECISION
Tribunal:Deputy President Boyle
Date:22 July 2021
Place:Perth

Pursuant to sub-ss 42B(1)(a) and (c) of the AAT Act the applications are dismissed.
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Deputy President Boyle
CATCHWORDS
PRACTICE AND PROCEDURE – application for dismissal – whether application is frivolous, vexatious, misconceived or lacking in substance or otherwise an abuse of process – Comcare has accepted liability by reconsiderations on its own motion – no practical purpose would be served by a successful review of the decisions the subject of the applications – applications dismissed
LEGISLATION
Administrative Appeals Tribunal Act 1975 (Cth) – ss 42B(1), 42B(1)(a), 42B(1)(b), 42B(1)(c), 42C
Safety Rehabilitation and Compensation Act 1988 (Cth) – ss 14, 16, 62, 67
CASES
Currey and Australian Community Pharmacy Authority (2007) 99 ALD 106
Fearnley v Australian Fisheries Management Authority (2006) 94 ALD 519
Reddish and Civil Aviation Authority [1999] AATA 721
Rodriguez and Telstra Corporation Limited (2001) 67 ALD 109
Rundle and Civil Aviation Safety Authority [2002] AATA 349
Williams and Australian Electoral Commission (1995) 38 ALD 366
REASONS FOR DECISION
Deputy President Boyle
22 July 2021
THE APPLICATION

The Respondent (Comcare) seeks the dismissal of the three applications under sub-ss 42B(1)(a) and (c) of the Administrative Appeals Tribunal Act 1975 (Cth) (AAT Act) on the basis that the applications are frivolous, vexatious, misconceived and lacking in substance or are otherwise an abuse of process.
Comcare says that the applications are frivolous, vexatious, misconceived and lacking in substance or are otherwise an abuse of process because it has accepted liability for the injuries the subject of the applications and formalised that acceptance by reconsiderations on its own motion (ROM) under s 62 of the Safety Rehabilitation and Compensation Act 1988 (Cth) (SRC Act).
BACKGROUND
2019/4828
By application lodged with the Tribunal on 11 August 2019, the Applicant sought review of Comcare’s decision dated 15 July 2019 which revoked a determination dated 16 April 2019 that accepted liability for left medial meniscus tear.
2020/1707
By application lodged with the Tribunal on 20 March 2020, the Applicant sought review of Comcare’s decision dated 20 September 2019 which affirmed a determination dated 7 August 2019 that denied liability for left knee chondromalacia.
2020/2211
By application lodged with the Tribunal on 16 April 2020, the Applicant sought review of Comcare’s decision dated 19 February 2020 which revoked a determination dated 23 January 2020 that accepted liability for reasonable medical expenses for treatment up to 31 January 2021 for the condition of medial cartilage or meniscus tear left knee.
By ROM under s 62 of the SRC Act made on 22 January 2021, Comcare revoked the determinations of 15 July 2019 (see [3] above), 7 August 2019 (see [4] above) and 19 February 2020 (see [5] above) and accepted liability for the left knee chondromalacia condition. This acceptance of liability by the ROM was additional to Comcare’s previous acceptance of liability for the left tear medial cartilage or meniscus of the knee with a date of injury of 19 September 2002.
The application to dismiss
On 1 February 2021 Comcare sent an email to the Tribunal, copied to the Applicant, making application for the dismissal of the three applications pursuant to s 42B(1) of the AAT Act.
Section 42B(1) relevantly provides:
(1)The Tribunal may dismiss an application for the review of a decision, at any stage of the proceeding, if the Tribunal is satisfied that the application:
(a) is frivolous, vexatious, misconceived or lacking in substance; or
(b) has no reasonable prospect of success; or
(c) is otherwise an abuse of the process of the Tribunal.
On 11 February 2021 the Tribunal made directions for the parties to file and serve submissions and any further evidence on the application for dismissal and directed that the application for dismissal would be determined on the papers, without the need for further hearing.
Following those directions, on 12 March 2021 the Applicant filed submissions and copies of documents referred to therein.
THE PARTIES’ SUBMISSIONS
Comcare
The only submissions made by Comcare are those in the email dated 1 February 2021 by which it made the application for dismissal. Comcare’s submissions were to the following effect:
(a)Following receipt of a report of Dr Hewitt, Comcare sought to resolve this matter by agreeing to accept liability for a left knee chondromalacia condition pursuant to s 14 of the SRC Act.
(b)The Applicant would not agree to sign terms of agreement reflecting Comcare’s acceptance of liability for the purposes of the Tribunal making a decision by consent under s 42C of the AAT Act.
(c)As a result of that refusal Comcare issued a ROM under s 62 of the SRC Act accepting liability for the left knee chondromalacia condition. This condition was accepted in addition to the already accepted “tear of medial cartilage or meniscus of knee” (which is not currently before the Tribunal).
(d)The remaining two decisions the subject of the applications related to general practitioner consultations that the Applicant had claimed compensation for, pursuant to s 16 of the SRC Act.
(e)Compensation had previously been denied because the available evidence supported a position that the treatment was required for the chondromalacia condition (which at the time had not been accepted by Comcare).
(f)Because Comcare has now accepted liability for that injury, Comcare has revoked the denial of compensation for that treatment and replaced it with an acceptance of liability to pay for the claimed treatment pursuant to s 16 of the SRC Act.
(g)The Applicant states that he intends to continue with his applications for review because “medical treatment is applicable to both injuries sustained on 19 September 2002”.
(h)Proceeding with the reviews would be futile where the claimed injury and treatment are already accepted.
The Applicant
The Applicant’s submissions are long (21 pages) and difficult to follow. The submissions in large part complain about and make allegations against various officers of Comcare, the doctors who have provided reports and the lawyers representing Comcare in these proceedings. Such complaints and allegations appear on their face to be misconceived but are, in any event, irrelevant to the issue before the Tribunal, which is whether the applications are frivolous, vexatious, misconceived or lacking in substance or are otherwise an abuse of process.
The submissions also go back into the history of the injury and the Applicant’s many dealings with Comcare since 2002. Again, that history is not relevant to the issue currently to be determined by the Tribunal, namely that identified in [12] above.
CONSIDERATION
There is little that the Tribunal can identify in the Applicant’s lengthy submissions that is relevant to the issue for determination. About the closest that the Applicant comes to what might be a relevant claim, or which might explain the Applicant’s refusal to consent to the making of orders under s 42C of the AAT Act (see [11(b)] above), is that set out in para 95 of his submissions which asserts that “… there are outstanding Reimbursements before the Respondent that the Respondent is refusing to provide determinations and/or reviewable decisions in relation to the Left Knee.”
The Applicant does not identify what those outstanding reimbursements are, however, the reviewable Comcare decisions of which the Applicant sought review in the three applications, were decisions on Comcare’s liability under the SRC Act for the injuries for which the Applicant had claimed (see [3], [4] and [5] above). The ROM sets those decisions aside and gives the Applicant what he sought in these proceedings. If there are other claims for reimbursement, treatment or payment under the SRC Act which the Applicant says are not covered by the ROM, then they are claims that would not have come within the ambit of the decisions of which he seeks review. In other words, they would not have been covered by any decision that this Tribunal would have made in the applications because they did not relate to the decisions which were the subject of the applications.
In Rundle and Civil Aviation Safety Authority,[1] the tribunal dismissed an application under s 42B(1) of the AAT Act, noting that the term “frivolous” has been held to mean “obviously unsustainable.” That Tribunal (at [22]) cites Reddish and Civil Aviation Authority,[2] which said “that an application to this Tribunal may be dismissed on the ground that it is frivolous if the Tribunal is unable to make a decision that would be of any practical benefit to the applicant”.
[1] [2002] AATA 349.
[2] [1999] AATA 721.
The Tribunal also refers to Deputy President Hack’s decision in Currey and Australian Community Pharmacy Authority[3] and the joint judgment of Finn and Sundberg JJ in Fearnley v Australian Fisheries Management Authority[4] (Fearnley) in which the Tribunal and Court respectively found it appropriate to dismiss applications on the basis that there was no longer any practical purpose in a decision being made. Finn and Sundberg JJ at [16] in Fearnley cited the following passage from Williams and Australian Electoral Commission[5] at [39]:
In this case the outcome of the proceedings, whether successful to the applicant or otherwise will be devoid of any practical effect ... The interest which gave the applicant standing to commence the proceedings has long ceased to exist. He has no legitimate interest in pursuing them further. Accordingly, in our opinion, while the proceedings were not instituted vexatiously, they have become vexatious.
[3] (2007) 99 ALD 106.
[4] (2006) 94 ALD 519; [2006] FCAFC 3.
[5] (1995) 38 ALD 366.
It is appropriate for the Tribunal to dismiss the applications under s 42B(1) because no practical purpose would be served by a successful review of the decisions the subject of the applications as the Applicant has, by virtue of the ROM, already received what he would receive if he were successful in the applications. The only possible additional benefit that the Applicant could, in theory at least, receive would be an award of costs under s 67 of the SRC Act. The Applicant was not legally represented, and the Tribunal is not aware of any costs incurred by the Applicant which would be covered by a costs award (e.g. costs of expert medical opinion). Further, the award of costs is discretionary even if the Applicant is successful, and a factor that would be taken into account in exercising the discretion to award costs would be a refusal by the Applicant to accept Comcare’s proposal to settle the applications under s 42C of the AAT Act by, in effect, giving the Applicant what he sought in the proceedings by way of the ROM.[6]
[6] Rodriguez and Telstra Corporation Limited (2001) 67 ALD 109; [2001] AATA 1053.
DECISION
Pursuant to sub-ss 42B(1)(a) and (c) of the AAT Act the applications are dismissed.

I certify that the preceding 19 (nineteen) paragraphs are a true copy of the reasons for the decision herein of Deputy President Boyle

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Associate
Dated: 22 July 2021