Hutchinson and Comcare (Compensation)
[2022] AATA 1661
•9 June 2022
Hutchinson and Comcare (Compensation) [2022] AATA 1661 (9 June 2022)
Division:GENERAL DIVISION
File Number: 2021/9450
Re:Karen Hutchinson
APPLICANT
AndComcare
RESPONDENT
DECISION
Tribunal:Member R. West
Date:9 June 2022
Place:Melbourne
The Application is dismissed under section 42B(1)(c) of the Administrative Appeals Tribunal Act.
...............[SGD].........................................................
Member R. West
Catchwords
WORKERS’ COMPENSATION – Commonwealth employee – Safety, Rehabilitation and
Compensation Act 1988 – Post-Traumatic Stress Disorder – Major Depressive Disorder –
– whether injury contributed to in a significant degree by employment – previous determination – application to dismiss pursuant to s 42B of the Administrative Appeals Tribunal Act – issue estoppel – abuse of process – application dismissed.Legislation
Administrative Appeals Tribunal Act 1975 (Cth)
Safety, Rehabilitation and Compensation Act 1988 (Cth)
Cases
Administration of the Territory of Papua New Guinea v Daera Guba (1973) 130 CLR 353
Casarotto v Australian Postal Commission (1989) 86 ALR 399
Cheung v Administrative Appeals Tribunal (2009) 176 FCR 20
Commonwealth of Australia v Snell [2019] FCAFC 57
Drake v Minister for Immigration (1979) 46 FLR 409
Hutchinson and Comcare (Compensation) [2018] AATA 4357
Grimsley v Telstra Corporation Ltd, Re [2010] AATA 106
Hutchinson v Comcare [2019] FCA 1440Matusko & Australian Postal Corporation, Re [1995] AATA 14
Minister for Immigration and Ethnic Affairs v Daniele (1981) 61 FLR 354
Minister for Immigration and Multicultural Affairs v Wang (2003) 215 CLR 518
Novosel v Comcare [2017] FCA 722
Queensland v Commonwealth (1977) 139 CLR 585
Quinn v Australian Postal Corporation, Re (1992) 15 AAR 519
Rana v Military Rehabilitation and Compensation Commission [2011] FCAFC 80
Telstra Corporation Limited v Hannaford [2006] FCAFC 87
Wong v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 242
REASONS FOR DECISION
Member R. West
9 June 2022
This matter concerns an application by the Respondent for the Tribunal to dismiss an application for review under s 42B of the Administrative Appeals Tribunal Act 1975 (AAT Act).
The decision under review is the decision of an authorised review officer of the Respondent dated 29 November 2021, affirming the Respondent’s determination of 10 September 2021 to deny the Applicant’s claim for incapacity payments for the period 24 November 2018 to 16 July 2021 under s 20 of the Safety, Rehabilitation and Compensation Act 1988 (SRC Act) in respect of her major depressive disorder and post-traumatic stress disorder (PTSD).
BACKGROUND
The Applicant commenced employment with the Respondent as a claims officer on 22 September 1998.
On 8 February 2011, the Applicant lodged a claim for compensation for depression and anxiety resulting from a workplace incident at a ‘respect and diversity training workshop’ on 5 March 2010, which she described in her claim form as follows:
The trainer, Sue Read was discussing the various forms of bullying that might occur in the workplace. She asked the participants ‘What might you say to someone you wanted to threaten in the workplace?’ [The Applicant’s director] who I was sitting next to said very quietly and directly to me ‘I’m going to fucking kill you’. I immediately drew the trainers attention and she asked [The Applicant’s director] to contribute his ‘example’ to the group discussion. After a lengthy pause he repeated the statement he’d made to the entire group. My ‘anxiety state’ was precipitated by this event.
On 25 July 2011, the Respondent accepted liability under s 14 of the SRC Act for a major depressive disorder suffered by the Applicant as a result of the workplace incident on 5 March 2010. By determination dated 27 September 2013,[1] the Respondent accepted liability for PTSD arising out of the same incident.
[1] T11 at pp.68-69.
The Applicant was approved for invalidity retirement on 17 January 2014.
The Applicant received compensation under the SRC Act in respect of her condition until 20 July 2017, on which date the Respondent determined that there was no present liability to pay compensation under ss 16 and 20 of the SRC Act (2017 Decision).[2]
[2] T22 at pp.114-117.
The 2017 Decision was affirmed by an authorised review officer (ARO) on 22 August 2017 (2017 ARO Decision).[3]
[3] T25 at pp.130-140.
The Applicant sought review of the 2017 ARO Decision by the Administrative Appeals Tribunal (Tribunal) and a decision was handed down on 23 November 2018 in which Deputy President Boyle affirmed the ARO Decision[4] (AAT Decision). The basis of the AAT Decision was that the Tribunal was not satisfied that the Applicant’s then current mental condition was contributed to, to a significant degree, by her employment with the Respondent.
[4] Hutchinson and Comcare (Compensation) [2018] AATA 4357. See T33.
The Applicant unsuccessfully appealed the AAT Decision in the Federal Court.[5]
[5] Hutchinson v Comcare [2019] FCA 1440.
On 10 May 2021, the Applicant filed a further claim for compensation, which forms the basis of these proceedings[6] (Claim). In filing her claim form, the Applicant stated that she sought to have present liability for her previous claim of PTSD with secondary major depressive disorder determined for a closed period of incapacity from 17 August 2017 until the date of the acceptance determination. The claim form included the following:
a.the condition that she was claiming for was: post-traumatic stress disorder with secondary major depressive disorder;
b.the tasks she was doing when she was injured was: attending workshop;
c.what happened to cause her injury was that she had a ‘death threat’ made to her; and
d.she first noticed her symptoms/injury on 5 March 2010 at 3pm.
[6] T34.
On 16 July 2021, the Applicant provided a medical certificate dated 16 July 2021 from Dr Stuart Paterson, a general practitioner.[7] Dr Paterson certified the Applicant as unfit for work from 24 November 2018 to 16 July 2021 by reason of PTSD and major depression. Dr Paterson indicated that the condition was a “continuing injury/disease” which was caused by a ‘death threat’ made by a supervisor and was sustained on 5 March 2010.
[7] T37.
On 26 July 2021, the Respondent’s lawyers wrote to the Applicant to provide her an opportunity to file additional evidence.[8] On the same day, the Applicant requested that the Claim be determined on the evidence already available to the Respondent.[9]
[8] Exhibit R1 – Attachment A.
[9] Exhibit R1 – Attachment B.
On 10 September 2021, a delegate of the Respondent determined that liability did not exist to pay compensation under s 20 of the SRC Act in respect of the Applicant’s conditions for the period 24 November 2018 to 16 July 2021[10] (Initial Decision).
[10] T38.
The delegate noted in the Initial Decision that the Respondent had previously accepted liability for a major depressive disorder and post-traumatic stress disorder (PTSD) resulting from a workplace incident which occurred on 5 March 2010, and that the Applicant had been paid compensation pursuant to ss 19 and 20 of the SRC Act at various times until 20 July 2017, when the Respondent determined that there was no present liability to pay compensation. The delegate further noted that the decision that there was no present liability to pay compensation was affirmed by a reviewable decision dated 22 August 2017 and subsequently affirmed on review by the decision of Deputy President Boyle of this Tribunal on 23 November 2018.[11]
[11] Hutchinson and Comcare (Compensation) [2018] AATA 4357.
By letter dated 27 September 2021, the Applicant sought internal review of the Initial Decision.[12]
[12] T39.
On 29 November 2021, an authorised review officer (ARO) affirmed the Initial Decision (Reviewable Decision).[13] In that decision, the ARO accepted that the Applicant presently suffered from PTSD and major depression but was not satisfied that the Applicant currently suffered from an ailment which continues to be significantly contributed to by [her] former employment with the Respondent.
[13] T40.
On 6 December 2021, the Applicant sought review of the Reviewable Decision by the Tribunal[14] (Review Application). In the Review Application, the Applicant stated the grounds of review as follows:
The medical evidence cited was 'cherry picked' by the reconsideration delegate to exclude the true nature of the accepted compensable conditions. The IME specialist the Respondent utilized provided 'false and misleading' evidence which was relied on by a previous Tribunal in an overt and brazen denial of procedural fairness. Additionally, the information I provided was not taken into account, the law was not applied correctly resulting in numerous errors of law arising, while the law firm Sparke Helmore lied, denied, falsified and conflated matters with the intention of supporting the Respondent's, deformed and marred by 'conflict of interest' decision making functions, to contest liability through the AAT and if necessary, into the Federal Court.
[14] T2.
On 11 February 2022, the Respondent applied by email seeking a determination by the Tribunal pursuant to s 42B of the AAT Act that the Review Application be dismissed on the grounds that it is an abuse of process. The Respondent contends that to permit the Applicant to continue with her application would be contrary to s 2A of the AAT Act as it would be:
a.unfair and unjust – because Comcare would be required to respond without good reason to essentially the same claim a second time;
b.uneconomical – because Comcare has already had to expend many hours of time and resources, as well as legal costs and disbursements for the previous hearing, in responding to essentially the same claim in the 2018 decision;
c.not quick – because of the lapse of time between relevant events (including the period between the decision in 2018 and any “final” hearing of the present application);
d.not promote public trust and confidence in the decision-making of the Tribunal – for instance Commonwealth-funded resources would continue to be used to manage and respond to a case which was, or ought to have been, finalised years ago.
PRELIMINARY HEARING
A preliminary hearing in relation to the Respondent’s application was conducted by telephone on 17 February 2022. The Applicant was self-represented, and the Respondent was represented by Mr Ashley Burgess, a solicitor with Sparke Helmore.
The Respondent pressed the application under s 42B of the AAT Act. The Applicant confirmed that she opposed the s 42B application and, in addition, indicated that she wished to put submissions that the Tribunal exercise its discretion under s 42D of the AAT Act to remit the Reviewable Decision to the Respondent for reconsideration.
The Tribunal made directions for the filing of written submissions by each party in relation to each of the ss 42B and 42D applications.
The Respondent filed a written submission in support of the s 42B application on 3 March 2022 (Exhibit R1).
The Applicant filed a written submission in response to the Respondent’s s 42B application and in that submission formally withdrew her application for remittal under s 42D of the AAT Act (Exhibit A1).
The Tribunal conducted a hearing by telephone on 6 May 2022 for the purpose of receiving final oral submissions in relation to the Respondent’s s 42B application. The Applicant was self-represented and the Respondent was represented by Mr Ashley Burgess, a solicitor with Sparke Helmore.
CONSIDERATION
Section 42B of the AAT Act provides:
(1) The Tribunal may dismiss an application for the review of a decision, at any stage of the proceeding, if the Tribunal is satisfied that the application:
(a) is frivolous, vexatious, misconceived or lacking in substance; or
(b) has no reasonable prospect of success; or
(c) is otherwise an abuse of the process of the Tribunal.
(2) If the Tribunal dismisses an application under subsection (1), it may, on application by a party to the proceeding, give a written direction that the person who made the application must not, without leave of the Tribunal, make a subsequent application to the Tribunal of a kind or kinds specified in the direction.
(3) The direction has effect despite any other provision of this Act or any other Act.
The Review Application before the Tribunal in this matter would require the Tribunal to reconsider the Claim on the basis of the evidence before it at the time of its reconsideration.[15] That is, to reconsider whether the Respondent is liable under s 14 of the SRC Act to compensate the Applicant for her condition(s) of PTSD and major depression on and from 24 November 2018. This in turn would require the Tribunal to consider whether, after 24 November 2018, the Applicant continued to suffer from an ailment which continued to be significantly contributed to by her former employment with the Respondent.
[15] See Hutchinson v Comcare [2019] FCA 1440 at [4].
The contentious issue in this exercise is whether the Applicant’s accepted condition continued to be significantly contributed to by her former employment after 24 November 2018 when the Claim was made. The Respondent has conceded in the Initial Decision, in the ARO Decision and in its submissions in this matter, that the Applicant has continued to suffer from PTSD and major depression since 24 November 2018.
To succeed in her current Claim, the Applicant would need to satisfy the Tribunal that her accepted condition has continued to be significantly contributed to by her former employment since 24 November 2018. In order to do so, the Applicant would be able to rely on the medical evidence available to the Tribunal prior to DP Boyle’s decision of 24 November 2018 and on any further medical evidence that may be available to the Tribunal at the time it considered the Review Application.
The Applicant has indicated, in response to the Respondent’s invitation to provide further evidence, that the only new evidence she proposes to rely on is the evidence of Dr Paterson as reflected in his report of 16 July 2021.[16]
[16] T37.
The medical evidence that was available prior to 24 November 2018 was thoroughly reviewed by DP Boyle in his decision of 23 November 2018.[17] It included medical reports of:
[17] Hutchinson and Comcare (Compensation) [2018] AATA 4357 at [54]-[121].
a.Dr Brendan Spence, consultant psychiatrist, dated 4 and 23 March 2011;
b.Dr Dielle Felman, consultant psychiatrist, dated 1 April 2011 and 15 September 2011;
c.Dr Jonathan Spear, consultant psychiatrist, dated 3 April 2011, 21 February 2018 and 17 August 2018;
d.Ms Debbie Buesnel, psychologist, dated 26 April 2011;
e.Dr Kathryn Dunne, dated 23 April 2012;
f.Dr Gemma Edwards-Smith, consultant psychiatrist, dated 28 August 2012 and 21 November 2012;
g.Dr Lawrence Blumberg, consultant psychiatrist, dated 25 June 2013;
h.Dr Christiaan Barnard, consultant occupational physician, dated 4 September 2013;
i.Dr Kevin O’Daly, consultant psychiatrist, dated 2 December 2015 and 28 January 2016; and
j.Dr Brendon Dellar, clinical psychologist, dated 31 January 2013, 28 October 2015, 26 May 2017, 28 June 2017, 12 May 2018, and bundles of his clinical notes dated 23 and 24 June 2017.
DP Boyle also had the benefit of hearing oral evidence directly from Drs Dellar and Spear, which he noted provided two divergent medical opinions. He concluded[18] that he preferred the evidence of Dr Spear as Dr Spear’s diagnoses and reports are, in the Tribunal’s view, more comprehensive and provide a better objective analysis of symptomology to support diagnoses.
[18] Ibid at [105].
On the basis of this assessment of the medical evidence, DP Boyle was not satisfied that the Applicant’s current mental issues are contributed to, to a significant degree, by her employment by the Respondent.[19]
[19] Ibid at [123].
The Federal Court was satisfied that DP Boyle’s decision was not attended by legal error.[20]
[20] Hutchinson v Comcare [2019] FCA 1440.
In the Reviewable Decision, the ARO was satisfied that DP Boyle had accurately and properly considered the evidence before him and, consistent with the reasoning in Commonwealth of Australia v Snell,[21] gave considerable weight to the Tribunal’s decision in affirming the Initial Decision.
[21] [2019] FCAFC 57 at [76].
The ARO explained the reasoning for the decision as follows:
l have also reviewed the other evidence on your file and the decision of Deputy President Boyle in his 2018 decision which concerned a similar question, albeit for a different period of time. Having conducted my review, I am satisfied that the Tribunal accurately and properly considered the evidence before it.
As noted above, after reviewing all of the evidence and hearing oral evidence from your treating psychiatrist Dr Deller and independent psychiatrist Dr Spear, the Tribunal concluded that your former employment had ceased to contribute to a significant degree to the medical condition from which you were suffering in 2017. Consistent with the findings of the initial delegate, and applying the reasoning in Commonwealth of Australia v Snell [2019] FCAFC 57 at [76], I give substantial weight to the Tribunal’s decision.
Dr Paterson’s opinion is the only medical evidence which post-dates the 2018 Tribunal decision. Dr Paterson’s opinion that your ailment is a continuation of an ailment you suffered in 2010 is inconsistent with the preponderance of medical opinion which supports a finding that your condition ceased to be related to your former employment by at least 20 July 2017.
Having regard to the previous contrary findings of the Tribunal which were based on evidence given by various experts including consultant psychiatrist Dr Spear, I give less weight to the certificate of Dr Paterson in respect of his opinion that you continue to suffer from a condition related to the 2010 work incident.
Based on the totality of the evidence before me, I am not satisfied on the balance of probabilities that you presently suffer from an ailment which continues to be significantly contributed to by your former employment with Comcare.
It therefore follows that I am not satisfied that you presently suffer from an injury as defined in section 5A of the SRC Act.
The Tribunal has reviewed the detailed submissions of the Applicant in opposing the making of orders under s 42B of the AAT Act. Without attempting to fully summarise the submissions, the Tribunal notes the following salient points:
a.The Applicant explains the purpose of her application for review:
I am seeking review of the decision of the Respondent dated 29 November 2021 which affirmed a determination dated 10 September 2021 which stated that liability did not exist to pay compensation pursuant to sections 16 and 20 of the Safety, Rehabilitation and Compensation Act 1988 (SRC Act) for the period 24 November 2018 to 16 July 2021 in respect of my accepted ‘post-traumatic stress disorder’ (PTSD) and ‘major depressive disorder’ conditions (the accepted conditions).
In actuality, I had requested the Respondent re-commence my entitlements from the 17 August 2017, the date the Respondent had originally determined no ‘present liability’ on my claim.
b.The Applicant submits that the 2017 ARO Decision which affirmed the earlier 2017 Decision failed to consider that:
i.a chronic ‘major depressive disorder’ cycles through periods of remission and relapse. Once a ‘major depressive disorder’ is established it can never be considered to be ceased, only ever to be in a state of remission.
ii.even if the ‘posttraumatic stress disorder’ condition was fully resolved, as [the ARO] has posited here, the ‘major depressive disorder’ was not, meaning the ‘no present liability’ determination was invalid.
iii.there was insufficient evidence to establish that the causal link has been broken and a new injury has emerged as a ‘novus actus interveniens.’
c.The ineluctable and incontrovertible preponderance of medical evidence presented since 2011 has established I suffer from a number of conditions, including; ‘post traumatic stress disorder,’ ‘major depressive disorder,’ as well as ‘agoraphobia’ and ‘social phobia’ (both secondary to PTSD), ‘panic disorder,’ ‘obesity,’ ‘atrial flutter,’ ‘ type II diabetes,’ and a Vitamin D deficiency all as a result of the incident that occurred during the course of my employment with the Respondent on 5 March 2010.
d.When ‘present’ liability was ceased …on 20 July 2017 it was conclusively established that my ‘post traumatic stress disorder’ and ‘major depressive disorder’ were in a state of either complete or partial remission.
e.A ‘major depressive disorder’ is a condition that can be described as chronic, recurring, remitted or relapsed, but never as ceased or concluded.
f.The issuing of the no ‘present’ liability decision of 20 July 2017 was, therefore, always invalid and not accorded with the provisions of the SRC Act or the beneficial purpose of the legislation.
g.I have been denied my correct entitlements under the SRC Act since 16 August 2017 and it has caused me immeasurable harm and further injury and not least of all compromised all the financial aspects of my life that now finds me homeless and struggling to survive on a ‘disability support pension.’
The Applicant’s submission sets out an extensive argument regarding the reliability of the medical evidence of Dr Spear and Dr Dellar given to DP Boyle as well as the veracity of the submissions of the Respondent’s counsel. Included in this submission was the assertion that Dr Dellar, who had reported that the Applicant no longer suffered from PTSD or depression, had contradicted himself in giving his evidence by stating that those conditions were in remission. The Applicant asserted that there is an enormous difference between no longer suffering from PTSD or Major Depression and the conditions being assessed by a qualified medical specialist as being in a state of ‘remission’.
The submission included criticism of the findings of DP Boyle and his application of the appropriate legal tests in assessing her claim and his decision to prefer the evidence of Dr Spear to that of Dr Dellar.
The Applicant also sets out an assertion that she was denied procedural fairness in the conduct of the case before DP Boyle.
It is clear from the Applicant’s written submission that she seeks a thorough review of the matters dealt with by DP Boyle in his decision. Her submission invites the Tribunal to:
… closely examine the decision of 23 November 2018 and make a decision based on an unbiased and impartial evaluation of the medical evidence provided as well as recognise that I have been unfairly targeted and had my correct entitlements under the SRC Act removed through an act of personal animus by a Comcare claims manager who in a fit of pique ceased my claim and refused the medical treatment I needed that has in turn led to further serious psychological injury which could easily have led to my death.
It is important to note that the decision of DP Boyle is not the decision under review by the Tribunal in these proceedings. It is the ARO Decision in which the ARO determined that the Applicant does not presently suffer from an injury as defined in section 5A of the SRC Act. The ARO relied on the findings of DP Boyle that the Applicant’s former employment had ceased to contribute to a significant degree to the medical condition from which she had been suffering in 2017 and concluded that it outweighed the opinion of Dr Paterson that that she continued to suffer from a condition related to the 2010 work incident.
This does not mean that the findings of DP Boyle are irrelevant to the matters under review. As Hill J held in Casarotto v Australian Postal Commission:[22]
...once a matter properly before the original decision maker comes to the Tribunal for review the whole matter before the decision maker is open to review and an applicant for review will not be confined by the submissions put to the original decision makerbut the tribunal must decide for itself whether the decision made by the administrator ... was the right decision which ought to have been made in the circumstances.
[22] (1989) 86 ALR 399 at 402, citing Drake v Minister for Immigration (1979) 24 ALR 577; (1979) 46 FLR 409 at 429-30.
If the Applicant’s appeal were to proceed, it would require the Tribunal to consider the evidence before DP Boyle, to assess the findings of DP Boyle and to take into account the evidence of Dr Paterson in order to determine whether the Applicant’s current conditions of PTSD and major depression were contributed to to a significant degree by her former employment. The Applicant’s submission is that the Tribunal should not accept the conclusion reached by DP Boyle.
In Commonwealth of Australia v Snell,[23] the Court considered the question of the entitlement of the Tribunal when reviewing a decision under the Seafarers Rehabilitation and Compensation Act 1992 to refuse to consider cogent, persuasive and relevant evidence on the basis that the issue to which the evidence relates had been determined by it in the course of the making of an earlier decision. This required the court to consider whether a decision of the Tribunal can give rise to an issue estoppel.[24] The court noted that:
Issue estoppel is one reflection of a “central and pervading tenet of the judicial system... that controversies, once resolved, are not to be reopened except in a few, narrowly defined, circumstances”: D’Orta-Ekenaike v Victoria Legal Aid [2005] HCA 12; (2005) 223 CLR 1, 17 [34]. However, the Tribunal is not a part of the judicial system, and nor can it be.[25]
[23] [2019] FCAFC 57.
[24] Ibid [41].
[25] Ibid [42].
The Court observed in Minister for Immigration and Ethnic Affairs v Daniele:[26]
Issue estoppel, generally but not universally seen as a rule of evidence, cannot have any place in proceedings of the Tribunal and is, to the extent that it is a rule of evidence, expressly excluded by the provisions of s 33 of the Administrative Appeals Tribunal Act.[27]
[26] (1981) 61 FLR 354 at 359 per Fisher and Lockhart JJ.
[27] The court noted in Snell at [45] that the latter part of that statement is now eclipsed by the shift in recognition of the status of the doctrine from a rule of evidence to a rule of law: see Queensland v Commonwealth (1977) 139 CLR 585 at 615.
However, the Court in Snell[28] noted the statement of Gibbs J in Administration of the Territory of Papua New Guinea v Daera Guba:[29]
The doctrine of estoppel extends to the decision of any tribunal which has jurisdiction to decide finally a question arising between parties, even if it is not called a court, and its jurisdiction is derived from statute or from the submission of parties, and it only has temporary authority to decide a matter ad hoc.
[28] Ibid [49].
[29] (1973) 130 CLR 353.
Given those comments, the Court in Snell accepted that the question of whether the doctrine of issue estoppel applies to the Tribunal is, strictly speaking, left open,[30] but added that there are good reasons, consistent with the statutory scheme established by the AAT Act, including ss 2A, 33, 42B and 43(6), to prefer a less rigid approach, which the Court noted had found favour in the Tribunal[31] and, tangentially, elsewhere.[32]
[30] Commonwealth of Australia vSnell [2019] FCAFC 57 at [50].
[31] Re Matusko & Australian Postal Corporation (1995) 21 AAR 9 at 20-1.
[32] Commonwealth of Australia vSnell [2019] FCAFC 57 at [50], citing Rana v Military Rehabilitation and Compensation Commission (2011) 55 AAR 300; [2011] FCAFC 80 at [26]-[28]; Minister for Immigration and Multicultural Affairs v Wang (2003) 215 CLR 518, 559 [134] per Kirby J.
The Court concluded in Snell that:
Although a “pervading tenet of the judicial system”, the doctrine of issue estoppel is not apposite to the constitutional and statutory context of the Tribunal and ought not to be extended to it.[33]
[33] Commonwealth of Australia vSnell [2019] FCAFC 57 at [51].
The Court recognised in Snell[34] that the Tribunal is not precluded from reconsidering issues of fact which it had determined in an earlier decision, citing the comments of Conti J (with whose reasons Heerey and Dowsett JJ agreed) regarding the SRC Act in Telstra Corporation Limited v Hannaford:[35]
The statutory scheme allows for progressive and evolving decision-making giving effect to the provisions of ongoing review of relief or entitlements in the nature of course of workers compensation, being review which allows for adjustment or change in the light of events and circumstances which may subsequently happen. The statutory scheme hence reflects a flexible scope for adjustment by way of decisions in the nature of awards to be made subsequently to the determination of s 14 liability, whether that determination be made in isolation, or in the context of decision-making concerning consequential relief that may be required in the light of evolving circumstances. It is therefore a scheme which allows progressively for ongoing relief, and is thus not comparable of course with the process of curial resolution of the traditional common law entitlement of an injured employee for damages as a consequence of the negligent conduct of an employer. The opening words of s 14(1) “[s]ubject to this Part...” are consistent with the flexibility inherent in the ensuing codification of the various facets of compensation envisaged.
[34] Ibid [62].
[35] [2006] FCAFC 87 at [57].
In Cheung v Administrative Appeals Tribunal,[36] Bennett J noted:
The reconsideration of a determination [under s 62] is not confined. There is no statutory requirement to apply the earlier determination or to take it into account. Inherent in the provision for reconsideration is the concept that that reconsideration is untrammelled by any previous determination. This does not preclude the determining authority from taking the previous determination into account but there is no requirement to do so. Similarly, there is no statutory requirement on the Tribunal to take into account any previous determinations or reconsideration decisions when reviewing a reviewable decision.
[36] (2009) 176 FCR 20, cited in Commonwealth of Australia vSnell [2019] FCAFC 57 at [64].
Subsequently, her Honour observed[37] that, generally, there should not be relitigation without reason of the same issues before the same Tribunal where the relitigation involves the same facts and issues already determined. In such circumstances, her Honour said that the previous determination would generally be regarded as establishing the matters actually decided and the grounds for the same and it is open to a subsequent Tribunal to regard a previous decision as determinative of an issue and to decide that an issue should not be reopened.
[37] Cheung v Administrative Appeals Tribunal (2009) 176 FCR 20 at [49].
The Court in Snell[38] endorsed the approach of Bennett J in Cheung, stating:
Her Honour’s reasoning gives full force and effect to the operation of s 62 of the SRC Act which expressly authorises the determining authority to reconsider decisions once made. In undertaking that reconsideration, both the decision-maker and the Tribunal are required to make a decision in accordance with the Act which necessitates assessing all material relevant to the issues to be decided. As Bennett J observed, the power in s 78 is untrammelled and there is no requirement to consider or take into account the earlier decision or to apply it. An earlier decision by the decision-maker (including an earlier decision of the Tribunal which is deemed to be that of the decision-maker) is information or material with which the Tribunal may inform itself (s 33(1)(c) of the AAT Act) and it can give it the weight which it considers to be appropriate. Where no new evidence has been advanced which relevantly undermines or alters the effect of the earlier decision it is most likely that, if the application for review is not disposed of in a summary manner, the earlier decision will have significant if not overwhelming weight. Where, on the other hand, new information is available which suggests the earlier decision was based on incorrect facts or limited knowledge, be it scientific knowledge or otherwise, the weight which might be afforded to the earlier decision may be minimal or non-existent.
[38] Commonwealth of Australia vSnell [2019] FCAFC 57 at [76].
In summary, the Tribunal is not estopped from making a determination of the Applicant’s application for review of the ARO Decision because of the findings of DP Boyle. Subject to the Act, the Tribunal would be required to consider the application for review on the basis of the evidence available to it at the time of its decision and, in considering the application, the Tribunal:
a.would be required to have regard to the evidence that was before DP Boyle and the evidence of Dr Paterson; and
b.would not be required to accept DP Boyle’s findings, but may do so and attribute appropriate weight to them.
The issue raised in the s 42B application is whether to do so would be to allow an abuse of process warranting the exercise of the Tribunal’s discretion under s 42B to dismiss the application for review at this stage.
The Federal Court noted in Novosel v Comcare[39] that: …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.
[39] [2017] FCA 722 at [106].
The Tribunal has recognised that as a general principle it is inappropriate and unreasonable for there to be relitigation of issues decided by the Tribunal without good reason. In Re Quinn v Australian Postal Corporation,[40] it was noted that:
The Tribunal should not generally allow relitigation of issues already decided and previous Tribunal decisions should be regarded as establishing the matters actually decided and of the grounds for the determination
[40] (1992) 15 AAR 519 at 526, see also Re Grimsley v Telstra Corporation Ltd [2010] AATA 106 at [11].
The Courts have recognised[41] that it:
…would be an abuse of process to allow parties to litigate repeatedly matters that have been finally determined by the Court. Also, quite apart from any psychological detriment that might flow from an individual having to undertake litigation of the same issue a second time, the State has an interest in ensuring that, once an issue has been determined according to law and all rights of appeal have been exhausted, that should be an end of the matter. The resources of the community ought not to be expended in the litigation, more than once, of the same issue.
[41] Wong v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 242 at [36].
The court in Novosel[42] confirmed that the same policy considerations may equally inform the Tribunal’s approach to issues of abuse of process as they would plainly promote the objective which the Tribunal is to pursue by virtue of s 2A of the AAT Act...
[42] Novosel and Comcare [2017] FCA 722 at [112].
In Matusko and Australian Postal Corporation,[43] the Tribunal (constituted by three members) endorsed the comments in Quinn that the Tribunal should not generally allow relitigation and stated that the Tribunal should use its flexible procedures to allow further consideration of issues where there is a reason to do so, for instance:
i.where there is a different decision;
ii.where there is a clear legislative intent;
iii.where the reconsideration decision is not final;
iv.where there has been a change in circumstances or fresh evidence; or
v.where justice to the parties requires a departure from the general rule.
[43] [1995] AATA 14 at [33].
The Court observed in Snell that the Tribunal has considerable power under s 42B to expeditiously deal with repetitious claims but noted that …before the Tribunal determines to dismiss a proceeding relying on s 42B it would need to be satisfied that the proceeding was of such a nature that the issues raised should not be accorded a proper hearing.[44]
[44] Commonwealth of Australia vSnell [2019] FCAFC 57 at [78].
In this case, the only new evidence raised by the Applicant which was not before DP Doyle is the Certificate of Capacity for Work[45] issued on 16 July 2021 by Dr Stuart Paterson, a general practitioner. The information contained in the certificate relevant to the Claim is:
a.the Applicant suffered from PTSD and major depression which was ongoing and was sustained on 5 March 2010 and caused by a death threat made by a supervisor; and
b.the Applicant was unfit for work from 24 November 2018 to 16 July 2021.
[45] T37 at pp.293-4.
The Respondent submits that the Applicant’s review application is an attempt to relitigate the same issue, namely whether she continues to suffer an injury (as defined by s 5A of the SRC Act) as determined by DP Boyle in circumstances where she has not brought forward new evidence which could reasonably lead to a reconsideration of DP Boyle’s determination. The Respondent asserts that the medical certificate of Dr Paterson does not bring into question the findings of DP Boyle as Dr Paterson provides no explanation why he remains of the opinion that the Applicant’s conditions are work-related, despite Dr Spear (psychiatrist) and the Tribunal finding the employment contribution had long ceased by 2018. The Respondent further argues that the issue of whether the Applicant was suffering from an ongoing compensable injury was an issue that properly belonged to the earlier litigation, citing Novosel at [112].
It is clear from a reading of the Applicant’s submission that her application for review of the Reviewable Decision is solely based on a re-appraisal of the evidence which was before DP Boyle in the 2018 AAT Decision. The Applicant does not advance her case in reliance on the medical certificate of Dr Paterson, which the Tribunal notes was not prepared by Dr Paterson until over two months after the Applicant filed her Claim. The Tribunal accepts the Respondent’s submission that Dr Paterson’s medical certificate contains no explanation as to why he maintains that the Applicant’s conditions are work-related nor any basis to refute the findings of DP Boyle. The application for review of the Reviewable Decision is plainly an attempt simply to relitigate the issues determined by DP Boyle in the 2018 AAT Decision.
The Tribunal is satisfied that the extensive medical evidence relevant to the Applicant’s Claim was subject to a proper review by DP Boyle in his 2018 decision. The Federal Court was satisfied that DP Boyle’s decision was not attended by legal error. The Tribunal is also satisfied that the Applicant had a full and proper opportunity to present her case before DP Boyle in 2018 and she has not produced any cogent, persuasive and relevant evidence to put to the Tribunal that would add to the consideration of the issues.
The Tribunal is also mindful that the Respondent has been required to expend considerable resources to date in relation to this matter and it would be unfair to require the Respondent to respond to essentially the same claim as was determined by DP Boyle after an exhaustive review of the same evidence. Having regard to the objectives stated in s 2A of the AAT Act, it would not promote public trust and confidence in the decision-making of the Tribunal for those matters to be relitigated.
Accordingly, the Tribunal is satisfied that the Applicant’s application for review is an abuse of process and the correct and preferrable decision is to dismiss it at this stage of the proceedings pursuant to s 42B of the AAT Act.
DECISION
The Application is dismissed under s 42B(1)(c) of the Administrative Appeals Tribunal Act.
I certify that the preceding 68 (sixty-eight) paragraphs are a true copy of the reasons for the decision herein of Member R. West
......................[SGD]..................................................
Associate
Dated: 9 June 2022
Date of Interlocutory Hearing: 6 May 2022 Applicant: Self-represented Advocate for the Respondent: Mr Ashley Burgess Solicitors for the Respondent: Sparke Helmore Lawyers
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