Fuller and Military Rehabilitation and Compensation Commission (Compensation)
[2022] AATA 3827
•16 November 2022
Fuller and Military Rehabilitation and Compensation Commission (Compensation) [2022] AATA 3827 (16 November 2022)
Appid: Fuller and Military Rehabilitation and Compensation Commission
Mattertype: Compensation
Division:VETERANS' APPEALS DIVISION
File Number: 2020/1140
Re:Brian Innis Fuller
APPLICANT
AndMilitary Rehabilitation and Compensation Commission
RESPONDENT
Decision
Tribunal:R Cameron, Senior Member
Date:16 November 2022
Place:Melbourne
The Tribunal dismisses the application under section 42B(1) of the Administrative Appeals Tribunal Act1975 (Cth).
.....[sgd]...................................................................
R Cameron, Senior Member
CATCHWORDS
COMPENSATION – interlocutory application for dismissal under section 42B(1) – no reasonable prospects of success – abuse of process - matter previously heard and determined - cognitive condition – reports state that the applicant does not suffer from this condition – degenerative back conditions – relates to the same subject matter of several previous applications that resolved by consent of the parties – settlement contained a binding clause which restricts further claims being made in respect of this injury – other claims had ceased – significant time elapsed – no new evidence available to the Tribunal – matter dismissed
LEGISLATION
Administrative Appeals Tribunal Act 1975 (Cth)
Federal Court of Australia Act 1976 (Cth)
Safety Rehabilitation and Compensation Act 1988 (Cth)Safety, Rehabilitation and Compensation (Defence -related Claims) Act 1988 (Cth)
CASES
Commonwealth of Australia v Snell (2019) 269 FCR 1
Jeffery & Katauskas v SST Consulting Pty Ltd (2009) 239 CLR 75
Kitko v University of Technology Sydney [2021] FCA 360
Novosel v Comcare (2017) 72 AAR 269REASONS FOR DECISION
R Cameron, Senior Member
16 November 2022
INTRODUCTION
The applicant seeks review of a decision made by a Review Officer of the respondent on 14 January 2020 (“the reviewable decision”).[1] The reviewable decision affirmed two previous decisions, made on 31 August 2007 and 17 November 2017. The decision of 31 August 2007 denied liability for claimed conditions of cervical spondylosis, lumbar spondylosis and lumbar spondylolisthesis. The decision of 17 November 2017 denied liability for a cognitive defect condition.
[1] The reviewable decision is document T100 of the T documents. The application to this Tribunal with respect to the reviewable decision was made on 14 January 2020.
The applicant’s claims, for the conditions which he alleges he suffers from, were made under provisions of the Safety, Rehabilitation and Compensation (Defence -related Claims) Act 1988 (Cth) (“the Act”).
The respondent seeks dismissal of the application under section 42B(1) of the Administrative Appeals Tribunal Act1975 (Cth) (“the AAT Act”). The grounds relied upon by the respondent in seeking dismissal are that the application, with respect to the claim for a cognitive defect condition, has no reasonable prospects of success, and the claim with respect to his three claimed lower back conditions, collectively described as “degenerative spinal conditions”, constitutes an abuse of process.
BACKGROUND
The applicant joined the RAAF on 19 January 1960 and was discharged, at his own request, on 23 January 1980.
After his discharge from the RAAF, the applicant was employed in a number of positions.[2]
[2] Details of the applicant’s post-RAAF employment are recorded at paragraph 29 of the respondent’s Statement of Facts, Issues and Contentions lodged with the Tribunal on 12 August 2022.
The applicant contends that his cognitive defect condition and his degenerative spinal conditions were caused as a result of his RAAF service.
The degenerative spinal conditions were said to have occurred as a result of injuries suffered in the 1960s. From the material that is before the Tribunal, those injuries were caused by lifting; and from two separate football games, one in which the applicant claimed to have suffered a mid-spine injury, and another one in which he was struck on the nose.
It should be observed that in an examination of the applicant’s back conducted by Dr Quirk, an Orthopaedic Surgeon on 25 August 1972, there was a slight tenderness along the medial border of the right scapula. However, the x-rays were recorded as being normal.
An x-ray dated 27 September 1976 reported, with respect to the lumbosacral spine, that there was some disc space narrowing between L5-S 1. Otherwise, the disc spaces were clear. Both sacro-iliac joints were found to be normal.
THE APPLICATION OF SECTION 42B(1) OF THE AAT ACT
It is not necessary to reproduce the provisions of section 42B(1) of the AAT Act. Essentially, it gives the Tribunal the broad power to dismiss an application at any stage of the proceeding if it is satisfied that, inter alia, it has no reasonable prospects of success or is otherwise an abuse of process of the Tribunal.
No reasonable prospects of success
The respondent submits, and the Tribunal agrees, that in applying section 42B(1)(b) of the AAT Act, when considering whether an application has no reasonable prospect of success, the test to be applied is the equivalent to that in section 31A(2) of the Federal Court of Australia Act1976 (Cth). The approach to be adopted when applying that provision was recently articulated in the decision of Kitko v University of Technology Sydney.[3] In that decision Justice Griffiths stated as follows:
“The effect of s 31A is to lower the bar below that fixed by previous authorities for obtaining summary judgement. It is not necessary to demonstrate that a claim/defence be “hopeless” or “bound to fail” for it to have no reasonable prospects of success.
The Court must make a practical judgement as to whether the opposing party has reasonable prospects of success, one which is “real, not fanciful or merely arguable” .
Where the moving party establishes a prima facie case in support of summary judgement, the onus shifts to the opposing party to point to factual or evidentiary issues making a trial necessary.
Determination of an application for summary dismissal is a value judgement to be made in particular circumstances of the case, in the absence of a full and complete factual matrix; in other words requiring a “practical judgement” of the case at hand. It does not require a “mini trial”, but rather a “critical examination of the available material to determine whether there is a real question of law or fact that should be decided at trial”..
The Court retains a discretion whether or not to determine proceedings summarily or refer them to trial, albeit that this discretion must be exercised judicially.
Notwithstanding that s 31A of the FCA Act sets a lower bar than previously stated for the summary determination of a proceeding, the power to enter summary judgement is not to be exercised lightly.”
[3] [2021] FCA 360.
Abuse of process
The concept of an abuse of process is well known in courts and Tribunals. It has been the subject of much judicial consideration over many years. The High Court of Australia observed in Jeffery & Katauskas v SST Consulting Pty Ltd[4] that the certain categories of conduct which attract the intervention of the courts as an abuse of process includes, “multiple or successive proceedings which cause or are likely to cause improper vexation or oppression”. The High Court also observed that, “It is clear, however, that abuse of process extends to proceedings that are “seriously and unfairly burdensome, prejudicial or damaging” or “productive of serious and unjustified trouble and harassment”.[5]
[4] (2009) 239 CLR 75 at [27]
[5] (2009) 239 CLR 75 at [28].
Justice Perry in Novosel v Comcare[6] undertook what the Full Federal Court of Australia subsequently described as: “A careful review of the authorities concerning the concept of abuse of process” in the context of the doctrine’s application by the Tribunal in the exercise of its powers under section 42B(1) of the AAT Act.[7] It is not necessary to reproduce in full an extract of those paragraphs from the decision of Justice Perry, as they are of some length. Most of them have helpfully been summarised by the respondent in its Submissions in Support of Dismissal Application dated 28 September 2022.[8] The principles that were enunciated by Justice Perry are as follows:
(a)In line with well-established principles that identify certain categories of abuses of procedure, even in cases where re-litigation of an issue may not be barred by res judicata or an issue estoppel, nonetheless the institution or continued pursuit of proceedings may constitute an abuse of process.
(b)In expressly empowering the Tribunal to summarily dismiss proceedings under section 42B(1)(c) of the AAT Act on the ground that they constitute an abuse of process, it is apparent that the Parliament intended to empower the Tribunal to protect its own processes against analogous forms of abuse.
(c)It would seem inappropriate and unreasonable for there to be re-litigation of the same issues before the Tribunal unless there is a reason. New evidence may provide such a reason, if it was not available prior to the AAT decision.
(d)The Tribunal should not generally allow re-litigation of issues already decided.
(e)The powers to control an abuse of process exist not just because “a person ought not to be vexed twice for one and the same cause”, but also because it is in the interests of the State that there be an end to litigation. The AAT can consider the objective which the Tribunal is bound to pursue by reason of section 2A of the AAT Act, namely, to provide a mechanism of review that is, fair, just, economical, informal and quick.
(f)Prejudice to a respondent is clear in circumstances where the applicant, inconsistently with prior agreements and their earlier conduct in withdrawing claims, has brought another application to the Tribunal in relation to the same claim. Such conduct increases the time and expense to answer the same claim over many years.
(g)Similar principles apply to decisions obtained by consent.
(h)It may be an abuse of process not only to relitigate the same issue twice, but also to seek to litigate an issue that properly belongs to the earlier litigation, even if it was not raised in the negotiations leading to the consent decision.
[6] (2017) 72 AAR 269 at [104]-[114].
[7] See Commonwealth of Australia v Snell (2019) 269 FCR 18 at [78]. It should be observed that the Full Court in that passage observed with respect to section 42B of the AAT Act, "The Tribunal has considerable power under s 42B to expeditiously deal with any such applications for review. Such proceedings may be easily seen as frivolous, vexatious, misconceived or lacking in substance. Alternatively, they may be seen as an abuse of process and it is to be kept in mind that the categories of cases which fit that description are not closed and cannot be exhaustively defined".
[8] See paragraph 18 of those submissions which are reproduced in full together with some further additions. They are accurate summary of the conclusions reached by Justice Perry in Novosel.
Does the applicant’s claimed cognitive condition have no reasonable prospects of success?
In support of his contention that he suffers from a cognitive condition or a cognition deficit during submissions made in the hearing of this application, the applicant relied upon two expert reports.
The first report was that of Dr Peter Dowling dated 24 May 1999.[9] Dr Dowling is a Clinical Neuropsychologist. He conducted a neuropsychological assessment of the applicant. A careful reading of Dr Dowling’s report does not support the applicant’s contention. Dr Dowling expressed the opinion that overall, the applicant’s performance in his assessment clearly suggested that many of his reported cognitive difficulties in the workplace reflect the effects of anxiety and depression.
[9] Document ST9.
Dr Dowling also opined that the applicant was reporting classic symptoms of depression, which could have been a secondary consequence of elevated anxiety or part of the same emotional reaction that had emerged during 1998, when he felt overwhelmed by the workload and found that he was not performing to his own and/or others’ expectations. Dr Dowling also noted that the applicant had been prescribed antidepressant medication and he recommended it would be prudent to have this reviewed by a Psychiatrist.
Some things emerge from an examination of Dr Dowling’s report that are relevant to the application before the Tribunal. It is apparent that Dr Dowling does not conclude that the applicant suffers from acognitive deficiency as he asserts. Additionally, it cannot be said from an examination of Dr Dowling’s report that any complaint from which the applicant suffers, if indeed he does as alleged, was in any way because of his RAAF service.
The applicant’s treating General Practitioner, Dr Jo Hur, prepared a report dated 20 December 2018.[10] In that report she expressed the opinion that she was quite confident that, amongst other things, the cause of the applicant’s cognitive loss was related to his period of service in the RAAF and was caused by bullying during that time. She also expressed the opinion that the cognitive loss condition is permanent and affects the applicant’s behaviour and employability.
[10] Document T88.
Dr Hur’s medical practice referred the applicant to Dr Cynthia Chen, a Neurologist. Dr Chen produced a report dated 22 August 2018 after the applicant had consulted her.[11] In her report Dr Chen recorded, “He was suspected to have some features of mild cognitive impairment on the background of chronic mood issues”. She further stated in the report, “I was glad to inform him that the following tests all returned as normal, including an MRI scan of the brain, a routine EEG, PET and SPECT scan of his brain. Overall, there is no evidence of any traumatic or chemical related brain injury.”
[11] Document T86.
Another report dated 23 October 2018 was in evidence from Dr Anderson Ong, a Geriatrician, to whom the applicant had also been referred by Dr Hur.[12] The report is addressed to Dr Hur. Dr Ong’s report contained several observations that warrant reproduction in these reasons. He stated, “I’ve discussed with Brian after reviewing the select past reports he provided including neuropsychological assessments. I’ve explained the difficulty of interpreting mentions of “cognitive impairment” in past reports as demonstration of actual diagnosis. Cognitive impairment can be a general description of an observation, but diagnosis will require exclusion of confounding causes (such as mental health disorders), require meeting an agreed extent of significance and require a functional deficit”. He concluded with the following opinion, “I am unable to provide Brian with a diagnosis of mild cognitive impairment for purposes of his applications to DVA”.
[12] Document ST8.
A report from an unidentified DVA medical advisor dated 7 June 2019 was also in evidence.[13] That report stated, “on the basis of neurologist and neuropsychologist reports as well as multiple neuropsychological assessments over the years there is no diagnosable cognitive disorder. All deficits explained by his mental health conditions”.
[13] Document T96.
Associate Professor Malcolm Hopwood prepared a report dated 7 June 2005 after conducting an assessment of the applicant.[14] He reported that a repeat MRI examination failed to demonstrate any evidence of cortical or white matter change previously described. An FDG PET study also demonstrated normal cerebral cortical metabolic activity. Associate Professor Hopwood expressed the opinion that whilst he could not exclude the possibility that any deficits the applicant suffered from his brain injury should have now largely resolved, he considered the more likely contributing factors currently were significantly undertreated anxiety and to a lesser degree depression, together with an abnormal personality. He strongly recommended that the applicant may benefit from seeking further general psychiatric assistance.
[14] Document T69. The report of Associate Professor Hopwood was prepared after receiving a referral from a general practitioner in Glen Waverley.
An earlier report dated 28 December 2004, prepared by Associate Professor Richard Burns, a consultant neurologist, after he had conducted an assessment of the applicant was in evidence before the Tribunal.[15] Amongst his conclusions was the opinion that, “There is no evidence that Mr Fuller’s military employment aggravated, accelerated or caused to recur a pre-existing or underlying condition”. He also stated, “I could identify no neurologic condition, which requires treatment”.
[15] Document T66. Associate Professor Burns’ report was prepared for the Department of Veterans Affairs.
Another report was in evidence before the Tribunal from Dr Zoltan Okalyi, a Consultant Psychiatrist, dated 15 October 1998.[16] The applicant had been referred to him by his then treating General Practitioner. In that report, Dr Okalyi recorded the following:
“My impression is that the symptoms are quite clearly stress-related. Although he appears convinced he is suffering from “cognitive deficiency”, there is no evidence whatever of organic brain dysfunction or psychotic illness. Neither am I convinced of his claim of having “chronic fatigue syndrome”.
What we do appear to be facing is a man of rather obsessive and anxiety prone personality, who has become inextricably involved in legal battles, which now appear to be dominating his life to the detriment of his current job.”
[16] Document ST1.
As is evident from the above analysis, the only medical opinion that supports the applicant’s contention is that of his treating General Practitioner, Dr Hur. The Tribunal considers that, realistically, no weight or reliance can be placed upon Dr Hur’s report. There are several reasons for this. Firstly, unlike the authors of the other reports that are in evidence before the Tribunal, Dr Hur is not a specialist in areas such as neurology, geriatrics and psychiatry. Secondly, Dr Hur’s report, which is dated 20 December 2018, was written after she had received the reports of Dr Chen (dated 22 August 2018) and Dr Ong (dated 23 October 2018). Whilst brief reference is made in Dr Hur’s report to Dr Chen’s findings, no reference is made to the report of Dr Ong. This is surprising indeed, particularly given the conclusions made in that report. It is also surprising as it is evident that Dr Hur also referred the applicant to Dr Ong. The conclusions of both Dr Chen and Dr Ong are contrary to the conclusions reached by Dr Hur. In her report, Dr Hur does not explain why she disagrees with the conclusions expressed in their respective reports. Nor does she condescend to explain why her conclusion should be preferred to the opinions expressed by Dr Chen and Dr Ong.
Also, it should be recalled that there were the opinions expressed by several specialists, including Dr Dowling, Associate Professor Hopwood and Dr Okalyi, that the cause of the applicant’s difficulties was as a result of untreated conditions of anxiety and depression. This possibility was not considered by Dr Hur let alone excluded; although it is acknowledged that she did not have the benefit of those reports. It is another reason why the Tribunal does not prefer her report and the opinions expressed in it.
Finally, the sheer preponderance of the medical evidence before the Tribunal, particularly that of highly qualified specialist doctors, does not support the conclusion expressed by Dr Hur, that the applicant suffers from a cognitive defect condition. In particular, it should be repeated that several of the experts, in addition to ruling out cognitive impairment on the part of the applicant, have expressed strong opinions that the more likely contributing factors to any condition that the applicant may suffer from are the result of untreated, or undertreated, anxiety and depression, as was noted by Associate Professor Hopwood and Dr Dowling.
By reason of the foregoing matters, the Tribunal concludes that the applicant’s claim for a cognitive defect condition simply does not have any reasonable prospects of success.
Therefore, the respondent, as a moving party, has established a prima facie case in support of summary judgement. As noted in the extract from Justice Griffith’s reasons in Kitko v University of Technology Sydney, the onus has shifted to the applicant to point to factual or evidentiary issues making a hearing necessary. The Tribunal considers that the applicant has not done so. It therefore finds that this claim made by the applicant has no reasonable prospects of success within the meaning of section 42B(1)(b) of the AAT Act.
Are the applicant’s degenerative spinal conditions an abuse of process?
The applicant has made several claims over many years with respect to alleged degenerative back conditions. It is not necessary for the purposes this application to recount every one of them.
In approximately 1990 the applicant sought incapacity payments from the Department of Defence (“Department”) with respect to his degenerative back conditions. That claim for payments was rejected by the Department and ultimately a hearing was undertaken before this Tribunal constituted by Deputy President Thompson, Member Elsum and Member Gillham[17] (“the 1992 Tribunal matter”). They affirmed the Department’s decision that the applicant was not entitled to incapacity payments. They also stated: “We find that the injuries to his lumbar spine, his cervical spine and his nose do not cause him to be incapacitated either for the work which he is doing at present or the work he was doing as an Occupational Health and Safety officer in the employment of Aerospace Technologies of Australia”. It should also be observed that the members of the Tribunal in the 1992 Tribunal matter made the following observation of the applicant’s credibility: “His readiness to deceive his various employers and to superannuation funds about his medical problems and in some cases his employment record (which deception he openly acknowledged at the hearing) casts grave doubts and his general credibility as a witness in these proceedings”. This was an extremely severe criticism of the applicant’s credibility.
[17] The Reasons for Decision of the Tribunal made on 7 October 1992 in application No V92/5 are document T34 of the T documents. The reasons are referred to in their entirety.
The applicant apparently injured his back on 20 May 1996 while an employee of the Department of Employment, Education and Training.
The applicant made a further claim on or about 6 May 1998 from the Department seeking compensation for, amongst other things, an injury to his back. This claim was also rejected.
The applicant then made five applications to this Tribunal, which resulted in a compulsory conference being held with respect to all of them on 4 July 2000.[18]
[18] A copy of a direction made by Senior Member Handley and 26 April 2000 convening a compulsory conference for 4 July 2000 and a covering letter enclosing a copy of that direction from the District Registrar of this Tribunal of the same date was in evidence before the Tribunal.
Prior to the convening of the compulsory conference on 4 July 2000, the Department discovered that the applicant was involved in a head-on motor vehicle accident on 27 July 1989 whilst on his way to work as a safety engineer with Aerospace Technologies Australia. It appears that the applicant suffered a whiplash injury to his neck, and injuries to his back, head, right arm, chest and left knee in that accident. As a result of the motor vehicle accident on 27 July 1989, the applicant made a claim on the Victorian Transport Accident Commission. He completed and signed a claim form to the commission. The claim form contained a Statutory Declaration which contained the following words:
“And I make this solemn declaration, conscientiously believing the same to be true, and by virtue of the provisions of an Act of the Parliament of Victoria rendering persons making false declaration punishable for wilful and corrupt perjury.”
In the claim form of 27 July 1989, a specific question was asked of the medical condition of the injured person before the accident. The applicant was requested to provide details of any physical disability or health problems existing before the accident. He wrote in the area provided a response which said “nil”.
The Department, in anticipation of the compulsory conference, drafted a Statement of Facts and Contentions dated 22 June 2000 that it served on the applicant by registered post.[19]
[19] The covering letter of 22 June 2000 from the Australian Government Solicitor to the applicant with the attached registered mail receipt was in evidence before the Tribunal of the hearing of this application. The Statement of Facts and Contentions dated 22 June 2000 was also in evidence before the Tribunal.
By reason of the statutory declaration made by the applicant in support of his claim for compensation to the Transport Accident commission, which revealed that the applicant had no physical disability or health problems existing before the motor vehicle accident on 27 July 1989, the Department contended in its Statement of Facts and Contentions of 22 June 2000 that the applicant’s back conditions were unrelated to his employment with the RAAF.
The Department also contended, in its Statement of Facts and Contentions, that the applicant had not disclosed the motor vehicle accident on 27 July 1989 to any doctors that he had attended for medicolegal purposes in respect of his back claims made against it. The Department also contended that the applicant had not disclosed the circumstances of the motor vehicle accident on 27 July 1989 to any doctors he attended for treatment of his back except his general practitioner Dr Granot, who had not provided a report.
Another point made by the respondent Department was that the applicant, in the numerous items of correspondence that passed between him and it, also did not disclose the existence of the car accident in July 1989. Additionally, it contended that the applicant did not give evidence of the car accident in 1989 to the Tribunal at the hearing before it in 1992. The written reasons of the Tribunal in 1992 recorded that the applicant had given evidence that he had never had a day off work whilst employed with Aerospace Technologies. This evidence, that he had not had a day off work, is contrary also to the contents of his Claim for Compensation and statutory declaration, which stated he was absent from work between 27 July 1989 on 17 August 1989.
The respondent contends, and the Tribunal agrees, that without the information that the applicant had no problems with his back before the July 1989 motor vehicle accident, and then incurred serious problems thereafter, the medicolegal experts retained to examine the applicant and provide a report expressing an opinion as to his conditions in the current application had a wholly unreliable history of his back conditions.
At the conference on 4 July 2000, the applicant was represented by Mr Carey, an experienced barrister. Terms of Settlement were entered into between the parties and signed by the applicant personally to resolve all the applications. Following execution of these documents, consent decisions were made by Senior Member Handley.
In the consent decision, with respect to the matters in which Comcare was a respondent, the reviewable decisions in each case denying compensation to the applicant were affirmed.[20] Paragraph 5 of the consent decision also decided that on and from 1 August 1999 the effects of any injuries suffered by the applicant to his neck, lumbar spine, psychiatric sequelae as a result of any neck or lumbar spine injury and nose has ceased. It also held that the applicant had no entitlement to compensation for such injuries.
[20] The consent decision of Senior Member Handley in which Comcare was the respondent is document T59 of the T documents.
In the matter in which the Repatriation Commission was the respondent, by a consent decision made by Senior Member Handley, the applicant, amongst other things, withdrew the application before the Tribunal in respect of his degenerative back conditions which arose from his RAAF service.[21]
[21] That consent decision of Senior Member Handley in application No V1999/0041 is document ST21 of the ST documents.
The Terms of Settlement and Minutes of Proposed Consent Orders, in the matters in which the Department of Defence was respondent as noted, were signed by the applicant personally. They are also dated 4 July 2000.[22]
[22] The Terms of Settlement are documents ST 22, and the Minutes of Proposed Consent Orders in applications V98/1064, V00/0138 and V00/0319 made by the applicant, are documents ST22 and ST23 of the ST documents.
Paragraph 2 of the Terms of Settlement provided, amongst other things, that in consideration of obtaining such orders and signing the terms, the respondent agreed not to seek recovery of any payments of compensation made to the applicant up to 1 August 1999 in respect of neck, back or nose injuries.
Paragraph 3 of the Terms of Settlement also contained an unusual clause, that the respondent further agreed not to provide any person or corporation with any documentation obtained or prepared in respect of the application unless compelled by law to do so or with the consent of the applicant. The respondent contends, and the Tribunal agrees, that such term was on its true and proper construction clearly only for the benefit of the applicant. The Tribunal also agrees that it can reasonably be inferred from the context and surrounding circumstances in which these Terms of Settlement were executed, that recovery of payments made by the respondent to the applicant was raised as a possibility. This was most likely because of the applicant’s continuing denial of the July 1989 motor vehicle accident. It is more probable than not, in those circumstances, that the applicant sought inclusion of this clause to prevent release of any material concerning the July 1989 motor vehicle accident.
Paragraph 4 of the Terms of Settlement also provided that in consideration of the Terms of Settlement the applicant agreed to bring no further claims of any type in respect of any injuries suffered by him in the course of his employment with the respondent. It is a complete release from all and any claims that the applicant may have against the respondent arising from his RAAF service. The respondent contends, and the Tribunal agrees, that more likely than not, this clause containing a complete release in favour of it was partly in consideration of it agreeing not to release any documentation obtained in respect of the application, and in particular that concerning the July 1989 motor vehicle accident in which the applicant was involved.
The Minutes of Proposed Consent Orders contain 10 paragraphs. They need not be referred to in full. However, paragraph 5 of those Consent Orders, provided that, as and from 1 August 1999, the effects of any injuries suffered by the applicant to his neck, lumbar spine, psychiatric sequalae as a result of any neck or lumbar spine injury, and nose had ceased. They also provided that the applicant had no entitlement to compensation under various sections of the Safety Rehabilitation and Compensation Act 1988 (Cth) in relation to the injuries to his neck, lumbar spine, psychiatric sequalae as a result of injury to his neck, lumbar spine or nose.[23]
[23] Paragraphs 6, 7 and 8 of the Minutes of Proposed Consent Orders are referred to for the full force and effect.
The Tribunal considers that the current application, insofar as it relates to the applicant’s degenerative spinal conditions, should be dismissed as an abuse of process of the Tribunal pursuant to section 42B(1)(c) of the AAT Act. It does so for several reasons.
This application with respect to the applicant’s degenerative spinal conditions clearly relates to the same subject matter of the several applications that were disposed of by the consent decision of Senior Member Handley, the Terms of Settlement, and the Minutes of Proposed Consent Orders all made 4 July 2000. It is a demonstrable attempt by the applicant to engage in a re-litigation of the same issues that were before the Tribunal then. Those very same matters were resolved for all purposes by the consent decision of Senior Member Handley, the Terms of Settlement and the Minutes of Proposed Consent orders.
As noted above, the Terms of Settlement contain a binding clause in which the applicant agreed to bring no further claims of any type in respect of any injury suffered by him in the course of his employment with the respondent which was, of course, his service with the RAAF. The Tribunal considers it is an abuse, or would be an abuse, to permit the applicant to continue with the subject matter of this application with respect to the claimed degenerative spinal conditions in the face of what he has signed up to. If the applicant has agreed to bring no further claims of any type in respect of any injuries suffered by him in the course of his employment with the respondent Department in the year 2000, why should he be permitted to bring such a claim in the year 2022? To do so constitutes an abuse of process within the meaning of section 42B(1)(c) of the AAT Act.
Additionally, the Minutes of Proposed Consent orders, which it will be recalled was signed by the applicant, contain an express acknowledgement that as and from 1 August 1999 the effects of any injuries suffered by him to his neck, lumbar spine and psychiatric sequalae as a result of any neck or lumbar spine injury and nose has ceased. If those conditions had ceased on 4 July 2000 how can the applicant be permitted to contend that they exist in 2022? Similarly, to permit the applicant to relitigate his claims with respect to the degenerative spinal conditions in the face of this paragraph of the Minutes of Proposed Consent Orders is wholly inconsistent. In that sense, it also constitutes an abuse of process within the meaning of section 42B(1)(c) of the AAT Act.
Furthermore, the Tribunal is satisfied that if the applicant suffered from any spinal condition or affliction as a result of his RAAF service, it had well and truly resolved itself by the time of the motor vehicle accident on 27 July 1989. It reaches this conclusion relying upon the Claim for Compensation which incorporated a statutory declaration that was made by the applicant on 14 August 1989. It must be repeated, that the statutory declaration was a solemn one made by the applicant in which he acknowledged that he conscientiously believed it to be true, and by virtue of the provisions of an Act of the Parliament of Victoria rendering persons making a false declaration punishable for wilful and corrupt perjury. The Tribunal observes that there are serious penalties for making a false statutory declaration. There is absolutely no reason not to accept what the applicant declared in solemn form in that Claim for Compensation, namely that he was not suffering from any physical disability or health problems prior to the motor vehicle accident. That being so, this evidence corroborates the respondent’s contention that the applicant did not suffer and does not suffer from the degenerative spinal conditions as a result of his RAAF service, and certainly did not do so by 27 July 1989.
In these circumstances, to permit the applicant to proceed with this application, where to substantiate his claims for the degenerative spinal conditions he would be required to give evidence on oath that conflicts with a prior inconsistent statutory declaration, let alone what he had signed up to in the Terms of Settlement and Minutes of Proposed Consent Orders, would also be an abuse of the process before the Tribunal within the meaning of section 42B(1)(c) of the AAT Act.
Another reason why the Tribunal considers that these applications with respect to the applicant’s degenerative spinal conditions are an abuse of the process of the Tribunal, within the meaning of section 42B(1)(c) of the AAT Act, is due to the significant time that has elapsed between both when the alleged injuries were supposed to have occurred which was in the 1960s, and the further period of 21 years that have elapsed from the time that the Consent Decision, the Terms of Settlement and the Minutes of Proposed Consent Orders were entered into.
The Tribunal considers that after such a long time it is reasonable for the respondent to regard all those issues that had been settled in the year 2000 would not be revived. In that setting, it would be inconsistent with the Tribunal’s objectives, as set out in section 2A of the AAT Act, to permit the applicant to relitigate matters that have clearly been disposed of by the steps taken by the parties on 4 July 2000 as previously referred to. The relevant considerations are that to permit the applicant to continue in the circumstances would be:
(a)Unfair and unjust, because the respondent would be required to respond without good reason to essentially the same claim a second time;
(b)Uneconomical, because the respondent has already had to expend many hours of time and resources, as well as legal costs, in responding to essentially the same claim;
(c)Not quick, due to the lapse of time between the resolution of the matters on 4 July 2000; and
(d)Would not promote public trust and confidence in the decision-making of the Tribunal, as taxpayer funded resources would continue to be used to manage and respond to an application which was, or to have been, finalised 21 years ago.[24]
[24] See NXPQ v Comcare [2021] AATA 4094 and Russell v APC [2022] AATA 3227 at [71].
Also, an important consideration in favour of dismissal of this application as an abuse of the process of the Tribunal, within the meaning of section 42B(1)(c) of the AAT Act, due to the elapse of time between compromise of the same claims on 4 July 2000, arises from the practicalities of unavailability of witnesses. It is quite apparent from an examination of the material before the Tribunal that it will be impossible for the respondent to procure many of the medical witnesses who undertook examinations of the applicant many years ago. Reference has already been made in these reasons to important medical examinations of the applicant that took place in the 1970s. There were other medical examinations that took place in the many years since then. This inability to procure these witnesses clearly causes the respondent severe prejudice. The respondent is also prejudiced because not all of the evidence that was available to it in 2000 has been located. It has identified relevant evidence, including clinical notes, from medical practices which have since destroyed their files and/or medical practices that have closed. There is much force in this contention.
On that note, by way of completion, the Tribunal should also observe that with respect to the degenerative spinal conditions there is no new evidence available to the Tribunal from that which was available in the year 2000. If there is no new evidence, once again why should the applicant be permitted to relitigate the same claims?
Another matter in the setting of an abuse of the Tribunal’s processes arises with respect to the 1992 Tribunal application. It is apparent from the material above, that the applicant concealed the existence and effects of the July 1989 car accident from the Tribunal that heard and determined the 1992 Tribunal application. An examination of that Tribunal’s reasons reveals that there is no reference to the car accident whatsoever. Having not disclosed to the Tribunal the existence and circumstances of the July 1989 car accident and the injuries that he suffered in it, this Tribunal also considers it an abuse of process for the applicant to now seek to relitigate the degenerative spinal conditions in the face of the contents of his Claim for Compensation, and the statutory declaration attached to it, which stated that he had no pre-existing condition, and when he gave evidence to the Tribunal in 1992 and did not disclose these highly relevant facts.
CONCLUSION
By reason of the foregoing matters, the Tribunal finds that the applicant’s claim for a cognitive condition has no reasonable prospects of success within the meaning of section 42B(1)(b) of the AAT Act.
Further the applicant’s claim for degenerative spinal conditions is an abuse of the process of the Tribunal within the meaning of section 42B(1)(c) of the AAT Act.
DECISIOn
Accordingly, the Tribunal dismisses the application under section 42B(1) of the AAT Act.
I certify that the preceding 63 (sixty-three) paragraphs are a true copy of the reasons for the decision herein of R Cameron, Senior Member
....[sgd]......................................................
Associate
Dated: 16 November 2022
Dates of hearing:
28 October 2022
Applicant:
Self-represented
Counsel for the Respondent:
Sarah Wright
Solicitor for the Respondent: Australian Government Solicitor
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