Hutchinson and Comcare (Compensation) - [2022] AATA 1661

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 1440
Matusko & 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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Keep reading for free

Create a free CaseChat account to read Hutchinson and Comcare (Compensation) and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2022] AATA 1661
Decision Date: 9 June 2022

CaseChat Overview and Summary

This matter concerned an application for review before the Administrative Appeals Tribunal (AAT) by an applicant, Ms Hutchinson, against a decision by Comcare. The dispute centred on whether Ms Hutchinson's accepted conditions of Post-Traumatic Stress Disorder and Major Depressive Disorder continued to be significantly contributed to by her former employment with Comcare after 24 November 2018. Comcare had applied to dismiss Ms Hutchinson's application pursuant to section 42B of the *Administrative Appeals Tribunal Act 1993* (Cth), arguing it constituted an abuse of process.

The AAT was required to determine whether Ms Hutchinson's application for review was frivolous, vexatious, misconceived, lacking in substance, had no reasonable prospect of success, or was otherwise an abuse of the Tribunal's process. This involved considering whether the application sought to relitigate issues that had already been determined, particularly in light of a previous Federal Court decision and an earlier AAT decision. The Tribunal also had to consider the principles of issue estoppel and the overarching objectives of the AAT Act, including fairness, economy, and public confidence.

The Tribunal reasoned that to succeed in her current claim, Ms Hutchinson would need to demonstrate that her accepted conditions continued to be significantly contributed to by her former employment after 24 November 2018. It noted that Comcare had conceded she continued to suffer from these conditions since that date. However, the core issue remained the causal link to her employment. The Tribunal observed that the medical evidence available prior to the 2018 decision had been thoroughly reviewed, and the applicant's proposed new evidence, a report from Dr Paterson, was considered in light of the previous extensive evidence. The Tribunal found that the applicant's grounds of review, which alleged false evidence, denial of procedural fairness, and errors of law, essentially sought to re-examine the same factual matrix and legal questions that had been considered in prior decisions.

The Tribunal dismissed Ms Hutchinson's application for review pursuant to s 42B of the *Administrative Appeals Tribunal Act 1993* (Cth) on the grounds that it was an abuse of process. The Tribunal concluded that allowing the application to proceed would be unfair and unjust to Comcare, uneconomical, and would not promote public trust and confidence in the decision-making of the Tribunal, as it essentially sought to relitigate a matter that had been, or ought to have been, finalised.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

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.

Ratio Decidendi

Legal Principle Established

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; andj.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.