Goodricke and Comcare (Compensation)
[2017] AATA 1249
•31 July 2017
Goodricke and Comcare (Compensation) [2017] AATA 1249 (31 July 2017)
Division:GENERAL DIVISION
File Number(s): 2015/2982
Re:Peter Goodricke
APPLICANT
AndComcare
RESPONDENT
DECISION
Tribunal:Deputy President Gary Humphries
Date:31 July 2017
Place:Canberra
The decision under review is affirmed.
..........................[sgd]..............................................
Deputy President Gary Humphries
Catchwords
WORKERS COMPENSATION – pre-2007 claim under relevant Act accepted – whether claimed condition presently has a ‘continuing contribution’ from employment – test is ‘material contribution’ not ‘significant contribution’ – aggravation of chronic pain syndrome (bilateral) – Asperger’s Disorder and/or underlying personality disorder – psychological condition overlaps with physical condition – present condition caused by factors unrelated to original claim – no ongoing material contribution – decision affirmed
MEDICAL EVIDENCE – where new scientific methods or approach – Tribunal to assess decisions using current relevant scientific evidencePRACTICE AND PROCEDURE – consent decision made by differently constituted Tribunal – Applicant sought to reopen or relitigate previously decided consent decision – whether Tribunal should exercise its discretion to relitigate in the context of these proceedings – claims of ‘economic duress’ considered – claims of jurisdictional error based on inherent unfairness considered – claims of misconduct by Applicant’s solicitors considered – no basis to permit relitigation of issue already decided – prejudice to Respondent would ensue were matter relitigated – Tribunal functus officio – request to reopen declined
Legislation
Administrative Appeals Tribunal Act 1975
Administrative Decisions (Judicial Review) Act 1977
Native Title Act 1993Safety, Rehabilitation and Compensation Act 1988
Cases
Amaca Pty Ltd v Ellis; South Australia v Ellis; Millennium Inorganic Chemicals Ltd v Ellis (2010) 84 ALJR 226
Anderson v Australian Postal Corporation (1993) 32 ALD 138
Bogaards v McMahon (1988) 80 ALR 342
Brackenreg v Comcare [2010] FCA 724
Comcare v Power [2015] FCA 1502
Comcare v Sahu-Khan (2007) 156 FCR 536
Kovalev v Minister for Immigration and Multicultural Affairs (1999) 100 FCR 323
Matusko and Australian Postal Corporation (1995) 21 AAR 9
Minister for Immigration and Multicultural Affairs v Bhardwaj (2002) 209 CLR 597
Montesalvo and Australian Postal Corporation [2011] AATA 319
Plumb v Comcare (1992) 39 FCR 236Wiegand and Comcare [2014] 141 ALD 219
REASONS FOR DECISION
Deputy President Gary Humphries
31 July 2017
In October 1999 Mr Peter Goodricke commenced employment with Health Services Australia (as it was then titled) (HSA) as a senior systems engineer. In that role he worked long hours, including extensive overtime, dealing with the then-pressing issue of the Y2K challenge. His work was almost exclusively keyboard-based, as a result of which he developed a medical condition in his upper limbs. The condition has been described at various points in the succeeding years as occupational overuse syndrome, RSI, fibromyalgia and chronic pain syndrome.
In March 2000 Mr Goodricke lodged a claim for workers compensation for repetition strain injury in both arms. In June 2000 Comcare accepted liability for that condition, one presently described as aggravation of chronic pain syndrome (bilateral).
Though he was contracted to work at HSA for three years, his employment was brought to an early end in February 2000 when he was made redundant. In subsequent years Mr Goodricke has been involved in extensive legal proceedings arising out of his employment at HSA. He brought proceedings in the ACT Supreme Court for unfair dismissal, in the Federal Court under the Administrative Decisions (Judicial Review) Act 1977 and – on a number of occasions – in the Tribunal in relation to disputes with Comcare regarding entitlements, in particular, for compensation for medical expenses and incapacity to work under ss 16 and 19 of the Safety, Rehabilitation and Compensation Act 1988 (the Act).
The present proceedings arise out of a determination by Comcare dated 31 March 2015 that Mr Goodricke had no present entitlement to compensation under ss 16 and 19 for his accepted condition of aggravation of chronic pain syndrome (bilateral). He sought reconsideration of that decision, but it was affirmed on 15 June 2015. On the same day, Mr Goodricke applied to the Tribunal for merits review of that decision. It is this reviewable decision which is currently before the Tribunal.
THE RELEVANT LAW
Comcare accepted liability for Mr Goodricke’s employment-related injury in 2000, pursuant to s 14 of the Act. That injury is a disease, pursuant to the definition used at that time in s 4 of the Act:
“disease” means:
(a) any ailment suffered by an employee; or
(b)the aggravation of any such ailment;
being an ailment or an aggravation that was contributed to in a material degree by the employee’s employment by the Commonwealth or a licenced corporation.
The Act was amended in 2007 by replacing a contribution in a material degree with a contribution to a significant degree as the causal test for a disease.
Having accepted that liability, Comcare has a liability to meet his reasonable medical expenses in relation to the disease. That liability arises under s 16:
(1) Where an employee suffers an injury, Comcare is liable to pay, in respect of the cost of medical treatment obtained in relation to the injury (being treatment that it was reasonable for the employee to obtain in the circumstances), compensation of such amount as Comcare determines is appropriate to that medical treatment.
There is also a liability to pay compensation for any incapacity to work which Mr Goodricke’s disease gives rise to, pursuant to s 19:
(1)This section applies to an employee who is incapacitated for work as a result of an injury, other than an employee to whom section 20, 21, 21A or 22 applies.
(2)Subject to this Part, Comcare is liable to pay to the employee in respect of the injury, for each week that is a maximum rate compensation week during which the employee is incapacitated, an amount of compensation worked out using the formula:
NWE - AE
where:
AE is the greater of the following amounts:
(a)the amount per week (if any) that the employee is able to earn in suitable employment;
(b)the amount per week (if any) that the employee earns from any employment (including self-employment) that is undertaken by the employee during that week.
NWE is the amount of the employee’s normal weekly earnings.
ISSUES BEFORE THE TRIBUNAL
These proceedings require that the Tribunal determine whether Mr Goodricke’s employment in 1999-2000 continues to materially contribute to his condition, an aggravation of chronic pain syndrome (bilateral). If it does, the Tribunal must then answer the questions:
·Does this condition entitle him to compensation for medical expenses under s 16?
·Does this condition entitle him to incapacity payments under s 19?
Comcare contended that the balance of the available medical evidence indicates that Mr Goodricke’s employment 16 years ago has ceased to materially contribute to the pain which he presently suffers. It maintained that his pain is now substantially attributable to congenital factors, in particular his Asperger’s syndrome. In the alternative, Comcare submitted that, if there was a continuing contribution from his employment, there is no medical treatment which it is reasonable for Mr Goodricke to obtain in relation to his condition, and that his capacity to earn at present is equal to his normal weekly earnings pursuant to s 19.
A further issue was raised by Mr Goodricke during the hearing. He asked the Tribunal to reopen a decision it had made following an agreement apparently reached in 2004 between Mr Goodricke’s then solicitors and Comcare. That agreement resulted in the Tribunal making a consent decision dated 6 August 2004. Mr Goodricke’s application is discussed below.
MR GOODRICKE’S EVIDENCE
Mr Goodricke appeared by telephone from New Zealand during the hearing.
He testified that his original condition arising from his employment at HSA had turned into a chronic pain disorder. He said the condition had been with him continuously for the last 17 or so years, though its intensity and impact fluctuated with the weather, his mood, his experience of stress and other factors. He said he had obtained employment in a number of areas over that period, including at the Australian War Memorial, in Papua New Guinea as a community aid and youth worker, as a Christian missionary and as a computer technician. At the time of the hearing, he was working in a family business selling personal locator beacons, including some IT and electronics work.
Mr Goodricke said he is unable to earn today what he was earning at HSA, and had entitlement therefore under s 19 for incapacity payments. With respect to an entitlement under s 16 for medical treatment, he told the Tribunal that he derived little benefit presently from pharmaceuticals for the treatment of his condition, but there may be some medical specialists in relation to whom he might incur expenses in future.
Mr Goodricke made reference to some of the medical evidence touching on conditions he had suffered prior to 1999 where upper body pain was a symptom. He said that, prior to commencing with HSA in 1999, there was no condition similar to chronic pain disorder. He experienced pain from time to time, sometimes as a result of specific injuries, but this pain – though often acute – always resolved. Subsequent to his employment at HSA a chronic pain condition developed. He said that therefore the chronic pain disorder could not be described as an aggravation of an earlier, pre-existing disease. For this reason he cavilled with Comcare’s designation of his accepted condition as aggravation of chronic pain syndrome (bilateral).
THE MEDICAL EVIDENCE
The medical reports of more than a dozen doctors were in evidence before the Tribunal, prepared in the period since 2000. However, the Tribunal’s attention was focused on the reports of doctors written from 2013 onwards. Several of them gave testimony at the hearing.
Dr David Champion, Consultant Physician in Rheumatology
Dr Champion examined Mr Goodricke in April 2003, and provided a report dated 6 May 2003. He opined that Mr Goodricke presented with a history and signs of a chronic regional cervicobrachial pain syndrome with neuropathic features, also known as occupational overuse syndrome, RSI or cumulative trauma disorder. He noted that it seemed likely that Mr Goodricke was slightly predisposed to upper limb chronic pain disorders having experienced these in a very mild form intermittently since his time as a student.
Dr Champion considered that the sum total of Mr Goodricke’s work activity as a senior information technology officer at HSA from October 1999 to January 2000 put him at substantially increased risk of a chronic neck and/or upper limb pain disorder. His view was that Mr Goodricke’s condition had stabilised, but that he should be cautious about returning to any role with intensive keyboarding. He considered there was no effective treatment for Mr Goodricke’s condition.
At Mr Goodricke’s request Dr Champion again reviewed him and provided a further report dated 16 April 2016. There he expressed the view that Mr Goodricke’s chronic cervicobrachial pain disorder was continuing and the associated central disorder of somatosensory processing (central sensitisation) had extended. He remained of the opinion that this condition was substantially causally influenced by the nature and conditions of Mr Goodricke’s employment in 1999-2000.
Dr Champion also observed that:
a)Mr Goodricke reported consistent, evolving and worsening symptoms since his previous review in 2003 saying that he has had no periods of freedom from symptoms during the past 13 years, but when he has peace of mind or is enjoying or being fulfilled by his work, his symptoms diminish;
b)Mr Goodricke has been assessed as having autism spectrum disorder, meaning that he tends to see the world in black and white;
c)he can’t be sure of the extent to which psychological factors have augmented the pain experience, but notes that he is not aware of any appreciable change in Mr Goodricke’s psychological state between 2003 and the present;
d)Mr Goodricke’s condition has been sustained and extended by the continued use of computers and also no doubt by psychological inputs which inevitably occur in the chronic pain and medico-legal context; and
e)Mr Goodricke’s psychological experiences have not been any more severe than the average person would have experienced going through many years of chronic pain.
In his testimony, Dr Champion noted that Mr Goodricke’s pain had, intermittently, become more widespread since he saw him in 2003. This might suggest he was suffering from fibromyalgia. He said that he had not specifically applied diagnostic criteria to Mr Goodricke’s pain to determine whether he might be suffering from fibromyalgia, but commented that he would not be surprised to discover that he did.
Dr Champion gave concurrent evidence with Dr Bruce Gillis from the University of Illinois, where they discussed the diagnosing of fibromyalgia. The two doctors strongly disagreed on some of the matters discussed, with Dr Champion describing Dr Gillis’s theory regarding blood tests to diagnose fibromyalgia as a novel idea, but said that his view that Mr Goodricke is suffering from fibromyalgia caused by a deficiency in his immune system cannot explain the emergence of his pain condition in 2000.
Dr Champion told the Tribunal that central neural sensitisation can in some people be irreversible. He agreed that, though he attributed causation of the condition largely to the work factors in 1999-2000, there are several possible risk factors for this condition for which causal influence is possible but in respect of which none has been irrefutably proven.
Dr Roger Reynolds, Consultant General Physician and Rheumatologist
Two reports of Dr Reynolds were before the Tribunal, dated 16 November 2009 and 18 June 2015. He also gave evidence by telephone from New Zealand.
In the first of his reports, he diagnosed a chronic pain syndrome of the shoulder girdle and upper limbs with central neural sensitisation. He attributed 75 percent of this condition to work-related factors. He said that Mr Goodricke’s partial incapacity for work has been slowly diminishing over the past few years. In his oral evidence, Dr Reynolds also noted an underlying predisposition towards this kind of pain condition. Any predisposition, however, was substantially aggravated by what occurred in 1999-2000.
In cross-examination, it was put to Dr Reynolds that there was an absence of examination findings here suggesting any pathophysiological changes to explain Mr Goodricke’s pain, such as muscle wasting or tendinopathy. He conceded that such findings were limited, but said that such changes could be pretty subtle, and the inability to demonstrate specific abnormalities is not conclusive of the existence of pain. He noted that the severity of the symptoms and the functional disability are probably greater than should have been the case, given his work history.
With respect to the causation of Mr Goodricke’s condition, Dr Reynolds said that the longer the time that has elapsed since the keyboarding in 1999-2000, the less certain he could be about its relationship to Mr Goodricke’s present pain condition.
Dr Bruce Gillis, Physician and Researcher, University of Illinois
Dr Gillis gave evidence by telephone from the United States. He has been involved in recent years in developing diagnostic tools to assist in determining the presence of diseases such as fibromyalgia.
He said that the latest research regarding fibromyalgia was that it was caused by an abnormality of certain types of white blood cells. Such cells lack the ability to produce certain important proteins. It had been possible, with this knowledge, to develop a blood test with a high degree of reliability (93 percent) as to the presence of fibromyalgia. Mr Goodricke had undergone such a test, and Dr Gillis was certain as a result that he suffers from the condition. He said that this demonstrated Mr Goodricke’s immune system was dysfunctional. However, he had not physically examined Mr Goodricke.
With regard to the relationship between his fibromyalgia and the onset of pain from 2000, Dr Gillis suggested that the work-related stimuli intensified the fibromyalgia from which he was already suffering. Thus, he said, the work-related activities could have aggravated the pre-existing fibromyalgia.
Dr Phillip Vecchio, Rheumatologist
Dr Vecchio examined Mr Goodricke on 8 February 2013, and provided a report dated the same day. He noted that Mr Goodricke’s upper body symptoms have been discussed by many practitioners. In his opinion, Mr Goodricke suffers from chronic pain in the forearms and upper body. He stated that this is the same thing as regional pain syndrome.
Dr Vecchio regarded Mr Goodricke’s upper body pain as chronic, unremitting, exacerbated by constant activity and interferes with some aspects of his employability and life. He was also of the view that Mr Goodricke’s condition is constitutionally-based, and was unable to provide any pathophysiological link between his symptoms as reported and work performed at HSA, regardless of intensity, well over a decade ago, in the absence of any supportive findings of tissue disruption. He noted:
The only link between the current situation and the work performed is the historical attribution by Mr Goodricke, noting that similar pains were reported for years, although apparently intermittent, fluctuating and more tolerable. Medically, there is great difficulty in affirming a justifiable pathway which would link the two issues.
He also thought that Mr Goodricke’s background of Asperger syndrome may complicate his symptoms and medical experiences, result in fixation on literal or perceived issues believed to be important and, perhaps, result in a degree of relative inflexibility to alternative options varying from his internal beliefs or conclusions. In his opinion, Mr Goodricke does not require any further treatment.
Dr Vecchio provided two supplementary reports dated 13 November and 18 December 2015. In the latter, he stood by his original opinion which he thought was reinforced by updated information provided to him. He also noted that the further medical reports consistently confirm that Mr Goodricke’s physical condition does not prevent him from working in various capacities.
In his oral testimony, he defended his view that Mr Goodricke’s employment in 1999-2000 could not any longer be the source of his pain, given the long intervening period and the lack of any physically-detectable basis for it. In cross-examination he was asked about the testing regime carried out by a US company called EpicGenetics, which claims to be able to diagnose fibromyalgia, based on a blood test, with a high degree of accuracy. Dr Vecchio said he was unfamiliar with the procedure but would be a little sceptical about its efficacy.
Dr Nicholas Jetnikoff, Consultant Psychiatrist
Dr Jetnikoff provided a report dated 12 April 2013 after examining Mr Goodricke in March that year. He diagnosed Asperger’s disorder and noted that the condition is not work-related. Dr Jetnikoff was also of the view that, despite Mr Goodricke’s reports of pain, he did not consider this warranted a diagnosis at that time. Dr Jetnikoff did not feel in the best position to provide an opinion about when Mr Goodricke’s pain disorder resolved, noting this was in part because of Mr Goodricke’s inability to provide a reasonable chronology of his problems. In his testimony before the Tribunal, he explained that this was because:
… the amount of pain reported, and the impact of the pain, are paramount features that must be present in order to make a diagnosis of a separate psychiatric condition or pain disorder. Neither feature was present in my assessment of Mr Goodricke.
Dr Jetnikoff indicated that it is possible that Mr Goodricke’s main condition is personality-based, and that Mr Goodricke has a longstanding difficulty altering his view on certain things. He opined that Mr Goodricke has certainly been able to adapt to some degree, and did not report significant disability from the condition. With respect to his Asperger’s disorder, he commented that the condition might perpetuate the perception of the pain symptoms longer than might be the case with a person free of Asperger’s.
These opinions were confirmed in supplementary reports dated 9 December 2015 and 13 January 2016. He acknowledged that further material supplied to him includes more reference to pain syndromes (having previously commented on the lack of evidence to this effect), but confirmed that, despite this, nothing in the further material caused him to alter his original opinion expressed on 12 April 2013.
He told the Tribunal he disagreed with the diagnosis of Dr Tadros that Mr Goodricke suffers from a somatoform pain disorder. He did so partly on the basis that Dr Tadros was not psychiatrically qualified.
Dr Mark Tadros, Consultant in Rehabilitation and Pain Medicine
In a report dated 10 September 2013, Dr Tadros diagnosed Mr Goodricke with costocondritis (an organic condition) and generalised body pain, complicated and accompanied by significant psychological issues. Dr Tadros noted that this condition was related to Mr Goodricke’s work environment, but that the condition is multifactorial in that while Mr Goodricke’s employment with HSA contributed to his symptoms, Mr Goodricke clearly has an underlying proclivity to develop this pain.
Dr Tadros noted that the effects of any aggravation had improved significantly, as Mr Goodricke was able to manage independently in the home and was then working part time. Dr Tadros states that Mr Goodricke should eventually be able to return to full-time work but the challenges to this include Mr Goodricke addressing his fixed beliefs surrounding his condition, accepting the advice given to him and having the mental flexibility and ability to self-monitor to manage his anger, impulsivity and hostility as well as improve his sense of self-esteem. He recommended that Mr Goodricke see a psychologist or psychiatrist on a regular basis.
Dr Tadros further reviewed Mr Goodricke at Comcare’s request and provided a supplementary report dated 12 October 2015. Dr Tadros thought that:
a)Mr Goodricke suffers from a somatoform pain disorder secondary to an underlying anxiety and maladaptive coping pattern and not chronic pain syndrome, but that this condition is not related to work;
b)Mr Goodricke continues to hold fixed maladaptive and inaccurate beliefs about his psychiatric condition that are of almost delusional intensity;
c)Mr Goodricke’s prognosis is poor with the main limitation being his psychological inflexibility and adherence to underlying fixed beliefs about his condition; and
d)Mr Goodricke will continue to focus on his physical condition and look for a medical diagnosis and treatment for what is an underlying psychological/personality based issue.
He commented specifically:
From a psychological point of view, unfortunately things have not really improved there. I have asked him what his main stressors are today and he tells me that he believes his main stressor is the pain, his loss of function, inability to work and the impact this has had on his finances. He continues to asseverate on what he perceives as the unjust nature of the appeals through Comcare. He tells me he is still pursuing legal action against Comcare through the federal court.
Regarding his illness, he tells me he believes he has an untreatable chronic pain condition, however, he is yet to elaborate on what that condition is. He is unable to tell me the exact nature of his condition, the prognosis or the treatment. He is, however, convinced that he will be permanently disabled and will live in agony through the rest of his life. He is also convinced that no one has a solution to his condition. In his own words, “I am resigned that I am not going to get better”. One psychiatrist that he has seen has diagnosed him with Asperger’s syndrome or high-functioning autism and he believe [sic] that is why his thinking is black and white.
Dr Tadros considered that Mr Goodricke is physically, but not psychologically, capable of returning to his previous duties.
He was asked about the blood testing regime carried out by EpicGenetics. He said, as of 2016 and based on his conferrals with specialists in related fields, there are no blood tests that diagnose fibromyalgia. Additionally, he explained the difference between his diagnoses in 2013 and 2015 by saying if a patient comes in with a presentation that looks largely organic, I will give them the benefit of the doubt, hence the 2013 diagnosis of costocondritis. However, when he saw Mr Goodricke two years later and observed that he had not taken up his advice about obtaining a psychiatric assessment of his condition, he concluded that this is a sign of someone… who is holding onto a biological diagnosis for a reason.
Dr Tadros opined that the somatoform pain disorder he diagnosed in 2015 may have had a physical precursor condition in 2000, but that precursor condition was no longer evident. He added that, if there had been a chronic painful biological problem in the 2000s then there would be some sign of it physically, in terms of clinical features of the case, there would be some sign radiologically, but despite these things having been investigated thoroughly, they have not been found to exist.
Dr Tony Kostos, Rheumatologist
Mr Goodricke called Dr Kostos as a witness, and his report of 17 December 2001 was before the Tribunal. However, it was evident that Mr Goodricke contested Dr Kostos’s evidence. Dr Kostos stated in his report:
I do not recognize the terms “repetitive strain injury”, “RSI”, “soft tissue injury” or “occupational overuse syndrome” as specific diagnostic entities because these have never been scientifically validated.
He said that all the research shows that there is no evidence injuries could be caused by repetitive work in these settings. The widespread reporting of this condition in the past was merely a psychosocial phenomenon. He disputed Mr Goodricke’s assertion that RSI had been proven in medical tests and in the medical literature.
Dr Kostos said that Mr Goodricke’s regional pain syndrome had its origins in psychological factors, and not organic ones. It had no physical cause.
Dr Kostos also told the Tribunal that, when he examined Mr Goodricke on 12 December 2001, Mr Goodricke had told him that he had had signs of RSI (Mr Goodricke’s words) for the previous 10 to 12 years. Mr Goodricke did not challenge this recollection in re-examination.
Other putative evidence
Mr Goodricke sought to tender a large volume of other material, particularly scientific articles from publications such as New Scientist and even a video from the Comcare website. Some of this material was tendered before the conclusion of the hearing in October; other material Mr Goodricke sought to tender after that point. He explained that the purpose of the articles was, inter alia, to demonstrate that the evidence of some of the medical witnesses was out of step with the scientific community and the scientific basis of [their] diagnosis.
The Tribunal is unable to accept this evidence. Very little of it was actually put in cross-examination to the witnesses who were supposedly out of step; much of it, indeed, was presented after the conclusion of the hearing when the opportunity for testing the evidence had passed. More particularly, the articles were presented as representations of general scientific trends, without any indication of how they related specifically to Mr Goodricke’s condition. In that context, their probative value is low. The High Court commented analogously on the use of evidence in this way in Amaca Pty Ltd v Ellis; South Australia v Ellis; Millennium Inorganic Chemicals Ltd v Ellis (2010) 84 ALJR 226 (at [62]):
As explained at the commencement of these reasons, there being no direct evidence about what actually caused Mr Cotton's cancer, it was the plaintiff's case that the epidemiological evidence established facts which "positively suggest[ed], that is to say provide[d] a reason ... for thinking it likely" that, in exposing Mr Cotton to respirable asbestos fibres, the negligence of each defendant was a cause of his cancer. To draw an inference about causation from what was established by the epidemiological studies, it would be necessary to decide whether the particular case under consideration should be treated as conforming to the pattern described by the epidemiological studies. Absent evidence which suggests that the individual may stand apart from the ordinary, there may be sufficient reason to assume conformity, but whether or not that is so, it is important to recognise that the first step that must be taken, if an inference is to be drawn from epidemiological studies, is to relate the results of studies of populations to the particular case at hand. That step is not inevitable. (citations omitted.)
CONSIDERATION
There is no doubt that Mr Goodricke feels pain in his upper body. The Tribunal accepts that this pain, though fluctuating in intensity, has been with him more or less continuously since his employment with HSA in 1999-2000. The medical evidence presented during the hearing strongly suggests that, whatever the physical condition from which Mr Goodricke might be said to suffer, there is a substantial psychological overlay. To a certain extent all of the medical witnesses had difficulty separating psychological from physical elements of his condition.
It was Comcare’s submission that, by 31 March 2015, the employment with HSA had ceased to materially contribute to Mr Goodricke’s condition. In Comcare v Sahu-Khan (2007) 156 FCR 536 the Federal Court held that the word material in the Act as it then stood imposed an evaluative threshold below which a causal connection may be disregarded. Finn J observed:
[13] The modern approach to statutory interpretation, as is now well accepted, attributes a greater significance to context and legislative purpose than previously was the case: see CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384, at 408. That approach, in my respectful view, was adopted unexceptionably by French and Stone JJ in Canute in their treatment of the legislative history of the definition of “disease” in the SRC Act. I agree with what their Honours have said and, in particular, in their conclusion that the inclusion of the word “material” imposes an “evaluative threshold” below which a causal connection may be disregarded.
[14] …
[15] There are, in my view, obvious hazards in allowing finely nuanced differences in dictionary definitions to contrive the answer to this question, given as I have noted, that the word “material” in this context had its legislative meaning set in part by the qualification it imposed on the nature of the contribution required to be demonstrated before the provisions of the SRC Act were engaged. This said I consider that one of the meanings of the word “materially” in the Shorter Oxford English Dictionary probably captures the essence of what the legislature was conveying. That meaning is –
“4. In a material degree; substantially, considerably.”
An example given of this usage is that of contributing “materially to the funds required” for a purpose. This usage probably comes closer to what Davies J in Bendy described (at 325) as the “loose sense” of the definition of “material” in the Macquarie dictionary “namely, ‘of substantial import or much consequence’ [rather than the] legal sense of ‘pertinent’ or ‘likely to influence’”.
[16] Bearing in mind that the course of statutory construction is often not aided by substituting for the word used in an enactment, another word which is not so used, probably the best that can ultimately be said is that the s 4 definition:
(i) requires a stronger causal relationship between the employment and the ailment, etc suffered than that exacted by the 1971 Act;
(ii) “in a material degree” requires an evaluation of all relevant contributing factors for the purpose of asking whether the employee’s employment did or did not contribute materially to the suffering of the ailment, etc, in question (“the threshold evaluation”);
(iii) whether this will be so in a given case will be a matter of fact and degree.
Of course, in the present instance a material contribution was found to exist by Comcare in 2000; the relevant question here is whether a material contribution subsists. However, the fact of having found a material contribution in the past means that, for a finding to be reached that a contribution of that strength no longer exists, Comcare must satisfy the Tribunal on the balance of probabilities of that likelihood. In Comcare v Power [2015] FCA 1502 at [63] Katzmann J observed:
Here, as Comcare acknowledged in argument, the decision the Tribunal was reviewing was whether or not to terminate Ms Power’s compensation entitlements arising from the compensable injury in the light of changed circumstances. It was not reviewing a decision based on fresh evidence as to whether compensation should ever have been awarded. In a case such as this, as Woodward J explained in McDonald at 359, having considered all the available evidence, if the Tribunal was left in a state of indecision, it should have been resolved in the claimant’s favour.
Comcare submitted – and the Tribunal accepts – that its burden of satisfying the Tribunal that the employment no longer makes a material contribution does not impose, of itself, a burden on Comcare to establish what, alternatively, does now constitute the cause or causes of Mr Goodricke’s condition: Brackenreg v Comcare [2010] FCA 724 at [45].
The Tribunal’s task has been made no simpler by the fact that the standpoint of every doctor who gave evidence during the hearing was effectively unique, that is, no two witnesses had a substantially similar opinion as to the cause of Mr Goodricke’s presenting condition (with the possible exception of Drs Champion and Reynolds). However, it is possible to place each of the witnesses into one of three categories with respect to the question of whether his 1999-2000 employment is materially contributing to his condition:
A.witnesses satisfied that there is a material contribution;
B.witnesses satisfied that there is a material contribution, while expressing some qualification or doubt; and
C.witnesses satisfied that there is no material contribution.
Category C is well populated.[1] Dr Vecchio diagnosed a chronic pain condition, but considered that it is congenital in origin, that is, unrelated to his employment. Dr Tadros considered that Mr Goodricke’s condition was a somatoform pain disorder secondary to an underlying anxiety and maladaptive coping pattern – again, a congenital condition and, again, unrelated to his employment. Dr Jetnikoff diagnosed Asperger’s Disorder, also a congenital condition. He acknowledged Mr Goodricke’s reporting of pain but felt it did not warrant a clinical diagnosis. He added that Mr Goodricke’s main condition may well be personality-based, noting a longstanding difficulty altering his view on certain things. He also opined that Mr Goodricke has certainly been able to adapt to some degree, and did not report significant disability from the condition.
[1] In undertaking this categorisation, the Tribunal is conscious that its task is not one of simply determining where the arithmetical preponderance of expert opinion lies. It is the quality or persuasiveness of the evidence, not its volume, which must ultimately guide the Tribunal’s deliberations.
Dr Kostos thought that the regional pain syndrome had its origins in psychological factors, and not organic ones. It had, in his view, no physical cause. The Tribunal approaches the opinion of Dr Kostos with some caution, since it seems to have been educated by a conviction that repetition strain injuries are a fiction, a premise which the Tribunal notes is controversial.
The Tribunal would place Dr Gillis in Category C. Dr Gillis suggested that Mr Goodricke suffered from two conditions: fibromyalgia and chronic cervicobrachial pain disorder. However, the Tribunal interprets his reference to the latter condition as simply a concession to the opinion of Dr Champion (with whom he gave concurrent evidence), since Dr Gillis has never examined Mr Goodricke. Dr Gillis was certain, based on his blood test procedure, that Mr Goodricke suffers from fibromyalgia, a condition which he said was attributable to a deficiency in Mr Goodricke’s immune system, and which shares many symptoms with chronic cervicobrachial pain disorder. The Tribunal did not understand Dr Gillis to be suggesting that keyboarding could have contributed to an immune system dysfunction, and so it is logical to assume Dr Gillis to be testifying that the fibromyalgia he detected is congenital, and not employment related.
He did suggest that work-related activities could have aggravated any pre-existing fibromyalgia, but given that he has never examined Mr Goodricke, and could not say whether he was suffering from fibromyalgia in 2000, this comment must be regarded as merely speculative.
Dr Reynolds falls into Category B. He diagnosed a chronic pain syndrome of the shoulder girdle and upper limbs with central neural sensitisation. He attributed this mostly to work-related factors. He defended this diagnosis despite an absence of pathophysiological changes to explain Mr Goodricke’s pain, such as muscle wasting or tendinopathy. However, he noted that the severity of the symptoms and the functional disability are probably greater than should have been the case, given Mr Goodricke’s work history, and said that the perpetuation of the symptoms a decade and a half after cessation of the causative factors rendered the diagnosis less certain as time passed.
Only Dr Champion falls wholly within Category A. He was emphatic in his view that a chronic cervicobrachial pain disorder he diagnosed in 2003 was continuing and that the associated central disorder of somatosensory processing (central sensitisation) had extended. He was clear that the disorder had its origins in his employment and that central neural sensitisation can in some people be irreversible.
He did acknowledge, however, that scientific knowledge of the causes of the condition remains inadequate, and that there is a number of possible risk factors for this condition for which causal influence is possible but of which none has yet been irrefutably proven.
In surveying this evidence, the Tribunal is confronted by the hypothesis that a discrete set of stimuli, which caused pain over a four-month period of employment, were still capable, in the absence of any diagnosable pathology, of producing similar symptoms many years later. Comcare contended that the current state of medical knowledge was such that a hypothesis like this could be no more than educated conjecture and that, as such, it fell well short of the satisfaction the Tribunal should have that those stimuli continue to materially contribute to the condition.
The evidence of several witnesses buttresses the view that it is unsafe to conclude that the necessary causal connection exists. Dr Vecchio opined:
The only link between the current situation and the work performed is the historical attribution by Mr Goodricke, noting that similar pains were reported for years, although apparently intermittent, fluctuating and more tolerable. Medically, there is great difficulty in affirming a justifiable pathway which would link the two issues.
Dr Tadros thought that pain of this persistence would be expected to show clinical features, but despite thorough examination none have been found. Even Dr Reynolds, who accepted a continuing contribution from employment, conceded that this view became less sound the longer the period since the employment ended.
The Tribunal is attracted to the force of this reasoning. The logic must be considered strengthened if the evidence of Dr Champion is accepted, to the effect that Mr Goodricke’s symptoms worsened between his examinations in 2003 and 2016. This would seem to suggest that factors other than the employment at HSA are determining the course of his condition. Perhaps, as Dr Vecchio noted, there are just some people who have wired nervous systems to be painful.
Factors other than employment were referred to in the evidence. The Tribunal finds that Mr Goodricke did tell Dr Kostos that there were signs of RSI in the 10 to 12 years before he worked at HSA. Mr Goodricke submitted that the medical evidence showed that his pain before 1999 tended to be acute, whereas from 2000 onwards it was chronic. That observation supports a conclusion that something significant occurred at the junction of those periods, but it does not, in itself, displace some of the medical evidence which attributes the perception of pain to psychological factors.
In addition, several doctors made reference to psychological factors in Mr Goodricke’s make up and – in particular – his Asperger’s disorder, and to their possible contribution to the course of his condition. Dr Tadros considered that Mr Goodricke had a somatoform pain disorder secondary to an underlying anxiety and maladaptive coping pattern, and that there was no physical cause responsible for the condition. It is, of course, possible for a somatoform disorder to be a compensable condition under the Act, but Dr Tadros is clear that he considers this condition is not employment related. His view is that, whatever the physical origins of the condition in keyboarding many years ago, that link has entirely disappeared and has been supplanted by a purely psychological condition. Mr Goodricke pointed out that the only psychiatrist to give evidence, Dr Jetnikoff, disagreed with Dr Tadros’s diagnosis of somatoform pain disorder, but Dr Jetnikoff himself diagnosed Asperger’s Disorder and left open the possibility of some other psychological condition which he described as personality-based. Whatever the diagnosis, both doctors agree that the condition is not employment related.
The conclusion that there is a significant psychological overlay in Mr Goodricke’s condition seems inescapable. Even Dr Champion took the view that psychological inputs may be exacerbating the experience of pain. Mr Goodricke made reference to his own rigid thought patterns, patterns which were in evidence during the hearing itself. A deep-seated conviction about the nature and origin of his pain – as suggested by Dr Tadros – is a quite plausible explanation for an ailment which seems to bear little relationship either with a long-distant period of employment or with the physical state of Mr Goodricke’s body, and which is apparently unresponsive to any form of treatment.
A decision to reassess expert evidence relevant to the requisite causal connection may lead to the rejection of, or at least the giving of less weight to, evidence which was previously considered sufficient to satisfy a decisionmaker. Conflicting or evolving medical evidence is not uncommon in proceedings before this Tribunal. Senior Member McCabe (as he then was) commented on this state of affairs in Montesalvo and Australian Postal Corporation [2011] AATA 319 at [14]:
The Tribunal is not in the business of definitively resolving scientific or medical disputes. My task is to determine whether I am satisfied the applicant’s shoulder condition – however it is described – arises out of her work. Sometimes, if the state of the science is uncertain, the Tribunal will be incapable of being satisfied that an applicant’s condition is attributable to a work-related incident. On other occasions, the Tribunal will be expected to make a decision without waiting for the final word from the experts. As scientific knowledge evolves, it may become apparent that the Tribunal has wrongly concluded that a connection between a work-related incident and a condition does (or does not) exist. That is regrettable, but we must work with the evidence available to us and do the best we can. The important thing, though, is that there must be credible evidence upon which the Tribunal can form a view that there is a connection: see Provost and Repatriation Commission [2001] AATA 153 at [42].
Mr Goodricke cited a number of cases in support of his contention that Comcare’s determination should be set aside. On examination, however, it is difficult to see the relevance of the cases referred to. For example, the mentioned case of Anderson v Australian Postal Corporation (1993) 32 ALD 138 concerned an appeal from the Tribunal on the question, inter alia, of whether it had considered if the applicant was suffering from a somatoform pain disorder. The Federal Court made no finding as to whether she did or didn’t suffer from the condition, but remitted the matter to the Tribunal for consideration according to law. Nothing in this decision, or the other decisions mentioned, assists Mr Goodricke.
Similarly, medical evidence which was before the Tribunal but which is more than five years old is of limited assistance, given the consensus at the hearing that the longer a pain condition of this sort exists, the more difficult it is to link its causation to the original putative cause. The real possibility that the authors of these reports may no longer hold to their original views substantially reduces their probative value.
Despite the heterogeneity of the medical evidence, it is possible to reach some conclusions with a comfortable level of satisfaction. The Tribunal finds that Mr Goodricke presently suffers from a congenital condition which most probably relates to either or both of Asperger’s Disorder or an underlying psychological/personality-based issue. It further finds, on the balance of probabilities, that his employment at HSA in 1999-2000 does not at this time materially contribute to this condition. Having reached that decision, the question of any entitlement for medical expenses under s 16 or for incapacity payments under s 19 is redundant.
Accordingly, the reviewable decision of 15 June 2015 is affirmed.
REOPENING OF THE 2004 CONSENT DECISION
Mr Goodricke asked the Tribunal to review a decision it had made on 6 August 2004, in proceedings also involving Comcare, following an agreement between the parties that those proceedings should be resolved by consent (the consent determination). The request was made by Mr Goodricke at the beginning of the hearing on 12 October 2016, the issue not having been specifically flagged in these proceedings hitherto. Comcare opposed the request.
Briefly, the background to the consent determination is as follows. Mr Goodricke had initiated three applications before the Tribunal for merits review arising from his accepted condition of 2000. The applications related to three decisions by Comcare regarding his ongoing entitlement to compensation, particularly claims for permanent impairment and noneconomic loss compensation under ss 24 and 27 of the Act and for incapacity payments under s 19. With respect to the last of these, the calculation of his normal weekly earnings (NWE) was a relevant issue.
As of late 2003 and early 2004 Mr Goodricke was represented in this litigation by Mr Jamie Roland of Colquhoun Murphy Lawyers. Negotiations between Mr Roland and the lawyer representing Comcare, Ms Rebecca Shelley, proceeded during 2004. On 3 August 2004 a Calderbank offer of settlement was made by Ms Shelley to Mr Ronald, which was accepted by Mr Ronald on the same day. The Tribunal made orders in accordance with the agreed terms on 6 August 2004. Pursuant to those terms, Comcare made a payment to Mr Goodricke and another to Colquhoun Murphy in respect of its costs.
The Tribunal received three submissions from Mr Goodricke in support of his request to reopen this determination, one in the form of an affidavit. It also considered at least three oral submissions from him between October and December 2016. Notwithstanding those many opportunities, the precise nature of the arguments being put to the Tribunal in support of the request seemed to have shifted somewhat over time, and was, at points, somewhat difficult to follow.
Dissatisfaction with the consent determination has motivated Mr Goodricke for some time. In proceedings before the Tribunal in 2011 he sought to agitate the issue of the correctness of the consent determination: see Goodricke and Comcare [2011] AATA 941. At that time the Tribunal concluded (at [6]):
Mr Goodricke sought to attack the underlying quantification of his NWE from
the date of his injury in 2000. But this matter has already been decided by the Tribunal in a consent decision in 2004. Mr Goodricke was legally represented in the 2004 proceedings that led to that decision and his NWE on and before
6 August 2004 will not be revisited in these proceedings.
The Tribunal in the present instance has decided to consider the arguments put by Mr Goodricke for revisiting the consent determination under the following headings, reflecting what it perceives Mr Goodricke’s key arguments to be.
Was the consent determination infected by jurisdictional error?
Mr Goodricke’s argument regarding jurisdictional error appears to have been that the consent determination of 6 August 2004 was made without the Tribunal understanding the basis on which the parties’ agreement had been reached, such that it made a decision which it could not conscionably have made had it been aware of the inherent unfairness to Mr Goodricke of the agreement’s terms. The Tribunal has no jurisdiction, I infer the argument to go, to make a decision which is inherently unfair. In the words of Gaudron and Gummow JJ in Minister for Immigration and Multicultural Affairs v Bhardwaj (2002) 209 CLR 597 a decision involving jurisdictional error has no legal foundation and is properly to be regarded, in law, as no decision at all (at 616).
The power of the Tribunal to make consent decisions derives from s 42C (or s 34D, which is similarly worded) of the Administrative Appeals Tribunal Act 1975. That section provides:
(1)If, at any stage of a proceeding for a review of a decision:
(a)agreement is reached between the parties or their representatives as to the terms of a decision of the Tribunal in the proceeding or in relation to a part of the proceeding or a matter arising out of the proceeding that would be acceptable to the parties (other than an agreement reached in the course of an alternative dispute resolution process under Division 3); and
(b)the terms of the agreement are reduced to writing, signed by or on behalf of the parties and lodged with the Tribunal; and
(c)the Tribunal is satisfied that a decision in those terms or consistent with those terms would be within the powers of the Tribunal;
the Tribunal may, if it appears to it to be appropriate to do so, act in accordance with whichever of subsection (2) or (3) is relevant in the particular case.
(2)If the agreement reached is an agreement as to the terms of a decision of the Tribunal in the proceeding, the Tribunal may make a decision in accordance with those terms without holding a hearing of the proceeding or, if a hearing has commenced, without completing the hearing.
The language of the section makes it abundantly clear that the evidentiary threshold required for the making of a consent decision under s 42C is lower than that required for a decision under s 43, the source of the Tribunal’s general decision-making power. The power in s 42C is consistent with an approach which encourages parties in proceedings to discuss and, if possible, reach agreement as to the matters in dispute between them. The section’s provisions empower parties in that circumstance to convert their agreement into an enforceable decision of the Tribunal. Clearly, too, the consent provision serves the Tribunal’s objective of promoting administrative review which is affordable to applicants, in that a consent decision avoids the expense associated with making submissions and adducing evidence in a hearing.
It follows from this that the s 42C power can be exercised without the Tribunal apprising itself of the matters it would be required to comprehend before exercising its power under s 43. This approach was reflected in the decision of French J (as he then was) in Kovalev v Minister for Immigration and Multicultural Affairs (1999) 100 FCR 323. His Honour was there addressing the requirements on the court when confronted by an application for consent orders under s 87 of the Native Title Act 1993, a provision not dissimilar to s 42C. His Honour observed:
12 In the Native Title Act 1993 (Cth) specific provision exists for the Court to make orders consistent with the terms of agreements reached between the parties. But the Court must be satisfied that such an order ‘would be within the power of the Court’ and it must appear to the Court to be ‘appropriate’ to make the order (s 87(1)). The Native Title Act in that respect imposes no novel regime for these are matters of which the Court must be satisfied in any order which it is to make whether by consent or otherwise. It is important to stress, as I observed in Australian Competition and Consumer Commission v Real Estate Institute (WA) Inc that it is not the function of the court to impede settlement between parties legally represented and able to understand and evaluate the desirability of agreeing to a settlement nor to refuse to give effect to terms of settlement by refusing to make orders or accept undertakings where they are within the court’s jurisdiction and are otherwise unobjectionable. In relation to proposed consent orders and undertakings the Court will not simply substitute its own view of the orders it would have made if those proffered fall within the range of an appropriate disposition of the case. That does not exempt the Court making such an order from ensuring it is within power and that it is appropriate to make the order. In the case of an error of law attributed to a decision-maker or tribunal there is a particular public interest which requires the Court’s specification of the error and its satisfaction that error occurred.
…
14 This approach to the making of consent orders does not require exacting inquiry into the basis for every such order that is sought. There are many consent orders both of an interlocutory and a final nature which are perfectly regular and within power on their face and which reflect a considered resolution by parties of legal capacity to make the agreements reflected by those orders. One example of a ‘routine order’ of this kind is a consent order dismissing an application. There are other orders which have particular public interest elements and require closer examination before the Court accedes to them.
…
19 I do not think it necessary that a Judge in making consent orders of this kind should ordinarily elaborate reasons for being satisfied that they are within power and appropriate. …
It was clearly consistent with this approach for the Tribunal to have made the consent orders sought by both parties in August 2004 without enquiry as to the equity of the agreement. Indeed, to require detailed examination in these circumstances before consent orders are made would defeat the very efficacy which the provision offers parties. No jurisdictional error is revealed.
Economic duress
Mr Goodricke told the Tribunal that the terms of the settlement with Comcare in 2004, the basis for the consent determination, were unfair and an abuse of Comcare’s power. In his affidavit of 8 November 2016 he summarised this argument as follows:
Comcare proceeded to include an amount for non-economic loss in late 2003 and in January 2004 made a without prejudice offer that made no account for and refused to include overtime worked and paid and included an unrealistically low ability to earn. Between January and August 2004 I felt I was put under ever increasing pressure to accept the offer and in early 2004 was told by Colquhoun Murphy the No win no pay solicitor who was representing me that they felt that Comcares [sic] offer was very generous but did not overtime [sic] but a calculation roughly equivalent to the overtime worked and in their view I would not obtain a better outcome at a hearing and if I wanted to take the matter to a hearing I would need to pay their costs in the order of $25,000… I was under significant pressure that can only be described as improper or illegitimate in those circumstances about an absence of practical choice as the matter was decided on a matter of costs that were paid by Comcare to Colquhorn Murphy and not merits.
He also submitted that the offer of settlement was premised on a calculation of his NWE in which he was not entitled to any overtime. He asserted that, some years after the consent determination, he discovered a letter from the personnel officer at HSA confirming that he had worked overtime at HSA, such that the NWE calculation used by Comcare as the basis for its offer was formulated on an improper basis.
Mr Goodricke further submitted that the offer was made by Comcare when it was well aware of his straitened financial circumstances at the time, contributing to unreasonable pressure on him to accept an offer which was unfair to him. He asserted that Comcare simply lied in its reconsideration and that Ms Shelley, its solicitor, had acted dishonestly. He described the approach taken by Comcare generally as the application of economic duress.
That the Tribunal has the power to reopen issues previously determined by it is not to be doubted. In Wiegand and Comcare 141 ALD 219 President Kerr and Deputy President Bean considered the principles to be employed in exercising a discretion in reopening decisions under the Act. In considering whether the Tribunal could relitigate the question of a date of injury, it held (at [18]):
..the Tribunal must be accepted to have the necessary jurisdiction in the case of decisions made under the SRC Act. Nor did any formal estoppel prevent the tribunal, in appropriate circumstances, from proceeding to do so. The tribunal had discretion, to be exercised according to principle, as to whether or not such a course should be permitted.
It acknowledged the principal articulated in Matusko and Australian Postal Corporation (1995) 21 AAR 9 that The Tribunal should not generally allow relitigation of issues already decided, but that this could occur if there is reason to do so, including where justice to the parties requires a departure from the general rule (at [19]).
Having acknowledged that the requirements of fairness may sometimes establish a case for reopening matters already determined, some considerations nonetheless constrain a Tribunal considering this course of action. One is the effluxion of time; the long period since the consent determination was made (more than 12 years) presents inherent difficulties in setting out to make this decision afresh.
A more fundamental concern, however, is that a reasonably persuasive case ought to be before the Tribunal to ground the exercise of the discretion. In declining to reopen the decision in question, the Tribunal in Wiegand noted that it had such a discretion to relitigate should it be persuaded it would be correct to do so (at [47]).
The task of presenting at least a prima facie case for reopening the matter rests with Mr Goodricke. With respect, the case that he has put to the Tribunal for reopening this matter is simply unpersuasive. Despite his assertions to this effect, Mr Goodricke has not demonstrated any inherent unfairness in the consent determination. If there are arguments demonstrating that acceptance of Comcare’s offer amounted to a serious derogation from Mr Goodricke’s rights, the Tribunal has not heard them.
He placed considerable emphasis on the claim that he was unaware until after the consent determination of the personnel officer’s letter confirming that he had worked overtime at HSA. Counsel for Comcare submitted that that evidence was in fact contained in the T-documents already before the Tribunal. Nothing to contradict that assertion was presented by Mr Goodricke. The fact that the personnel officer’s letter did not come to Mr Goodricke’s attention until some later point is immaterial; it was before his legal advisers, and must be assumed to have been factored into the settlement which they recommended to Mr Goodricke to accept.
Nor are Mr Goodricke’s financial difficulties at the time he accepted Comcare’s offer a relevant consideration. It is inevitable in negotiations of this kind that offers of settlement will appear more attractive to a party facing financial hardship than to a party who can afford to hold out for a better offer; that, of itself, does not establish a basis to overturn, years later, a settlement reached under these conditions. None of the authorities cited by Mr Goodricke on the question of economic duress disturb that proposition.
Mr Goodricke was invited to put evidence by affidavit to the Tribunal to support his proposition that the 2004 settlement was illegitimate. The Tribunal specifically suggested he seek comment from his former solicitors. One imagines that, if Comcare did indeed abuse its power, his solicitors might have some useful insights to offer about this. The only evidence ultimately adduced, however, was Mr Goodricke’s. This, it seems to the Tribunal, is by itself an unsatisfactory basis on which to upset the 2004 settlement. It leaves the Tribunal deprived of a full picture as to how the settlement was arrived at, and of how it might thus be said to be unfair. Deputy President Forgie, in commenting on the position of the Tribunal when contemplating the exercise of the s 42C power, has observed:
The Tribunal has not been part of the confidential discussions during the conferencing/ADR process or in separate negotiations between the parties.
(a) The Tribunal will not be aware of the various issues canvassed during those discussions e.g. there may be grounds supporting a particular decision that were not addressed in the original reasons for decision or that might not have even presented themselves for consideration at that earlier time.
(b) It is for the parties to make an assessment of the relative strengths and weaknesses of their cases and they should be permitted to make that assessment bearing those strengths and weaknesses in mind.[2]
[2] “Tribunal’s powers when parties reach agreement: Sections 42C and 34D of the Administrative Appeals Tribunal Act 1975”, 29 March 2017, p5.
The fact that a tactical redoubt – in this case, the employer’s acknowledgement of a right to overtime – has apparently been surrendered in the course of the legal battle does not prove that to do so was wrong, or that the ultimate outcome of the battle was inappropriate or unfair to a party.
Although it is clear that Mr Goodricke was unhappy about the course of those negotiations in this case, and even threatened to dismiss his lawyers at one point, he ultimately accepted the outcome at the time to the extent that he pocketed the personal financial benefit which the settlement conferred on him. It is one thing to regret that decision as time passes; it is quite another to now argue that the settlement itself was illegitimate on that ground.
Mr Goodricke cited extensively from the Model Litigant Code and authorities relating to the ethical obligations of the Crown in litigation. He has been unable, however, to demonstrate what specific actions of Comcare amount to a breach of those obligations.
The conduct of Mr Goodricke’s solicitors
At different points Mr Goodricke made two assertions about the conduct of his former solicitors. The first was that he had been pressganged by them into accepting the terms of the unfair settlement with Comcare. The solicitors, he said, displayed unconscionable conduct. The second was that, in effect, his solicitors were also victims of Comcare’s allegedly unprincipled behaviour:
The submission is that the way the …without-prejudice offer was worded …amounted to financial duress of my solicitor which then amounted to financial duress on myself, because the matter of costs was at risk for my solicitor and I was left with no option but to sign the consent decision.
These assertions have an air of contradiction to them.
Mr Goodricke expanded on the first assertion by suggesting that it was improper for the solicitors to accept payment of their costs by Comcare as part of the settlement. He told the Tribunal they had been bribed – in inverted commas.
There was also at least an inference before the Tribunal here that the solicitors had acted without Mr Goodricke’s authority in concluding the settlement. Affidavit evidence was submitted by Comcare which outlined what the files of Comcare and the Australian Government Solicitor (which then acted for Comcare) reveal about the negotiations between Comcare and Mr Goodricke’s solicitors in 2003 and 2004. The affidavit broadly describes a sequence of offers and counteroffers between Ms Shelley and Mr Roland which would appear to the Tribunal to be unexceptional by the standard of such negotiations, with one exception. In July 2004 it notes that Mr Goodricke contacted both the Government Solicitor’s office and the Tribunal to advise that he would be representing himself at the forthcoming hearing in August. However shortly afterwards Mr Ronald told Ms Shelley that he continued to represent Mr Goodricke, and a few days later consent terms were signed by Mr Roland, purportedly on Mr Goodricke’s behalf. Again, it is not clear that Mr Goodricke can consistently assert both that his lawyers pressganged him into accepting the settlement offer and that they acted without his authority in accepting it.
In any case, the Tribunal is not prepared to accept any of these assertions as a basis for reopening the consent determination. Mr Goodricke held himself out as being represented by his solicitors in these negotiations; his apparent change of mind in July 2004 must be considered negated by his subsequent acceptance of the proceeds of the settlement. If his solicitors had acted unethically, either by succumbing to unconscionable conduct from Comcare or by affecting a settlement without authority, Mr Goodricke might have been expected to make a misconduct complaint to the ACT Law Society. He did not do so. In fact, so far as the Tribunal can determine, it seems to have taken Mr Goodricke more than a decade to raise the conduct of the solicitors as an issue. Nor is it in any way unethical for the solicitors’ costs to be reimbursed as part of a settlement, particularly when Mr Goodricke himself received a financial benefit as part of the arrangement.
Once again, evidence from his former solicitors would have been useful – even if it was in the form of a denial. Mr Goodricke told the Tribunal he had been successful in contacting Mr Roland, but gave no satisfactory explanation as to the absence of any evidence from him.
Prejudice
Furthermore, the Tribunal accepts the submission that it would be prejudicial to Comcare to permit Mr Goodricke to relitigate a matter which, for over a decade, Comcare has treated as final. It accepts that Comcare incurred considerable expense preparing to litigate the proceedings which culminated in the consent determination, including payment of Mr Goodricke’s solicitors’ legal costs incurred in those proceedings. After the passage of so much time, it is highly likely that both documentary records and memories would be found wanting in the task of establishing the truth of what occurred some 17 years ago.
The Tribunal does not believe that a case has been made out that would justify the exercise of its power to reopen the consent determination. Mr Goodricke’s claims are vague, contradictory and unsupported by any evidence.
Functus officio
Even if the Tribunal is wrong in its assessment of the basis for exercising any discretion, it considers that it is functus officio with respect to the consent determination, and thus lacks the jurisdiction to review the consent determination. In the absence of any evident error made by the Tribunal in 2004, the capacity to make the decision again does not exist.
In Bogaards v McMahon (1988) 80 ALR 342, Pincus J said (at 350):
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. (citations omitted)
This is not a case in which there has been a different determination, giving rise to a separate entitlement for merits review: Plumb v Comcare (1992) 39 FCR 236 at 240. As such, the Tribunal should treat the consent determination as final.
The request to reopen the consent determination of 6 August 2004 is declined.
I certify that the preceding 108 (one hundred and eight) paragraphs are a true copy of the reasons for the decision herein of Deputy President Gary Humphries
.............................[sgd]...........................................
Associate
Dated: 31 July 2017
Date(s) of hearing: 12, 13, 14 October 2016 Date final submissions received: 30 January 2017 Applicant: By telephone Counsel for the Respondent: Ben Dube Solicitors for the Respondent: Australian Government Solicitor
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