Kennedy and Comcare (Compensation)
[2018] AATA 4171
•6 November 2018
Kennedy and Comcare (Compensation) [2018] AATA 4171 (6 November 2018)
Division:GENERAL DIVISION
File Number(s): 2017/4177; and 2017/7043
Re:Ross Kennedy
APPLICANT
AndComcare
RESPONDENT
DECISION
Tribunal:Senior Member Linda Kirk
Date:6 November 2018
Place:Canberra
The applications for review are dismissed pursuant to s 42B(1) of the Administrative Appeals Tribunal Act 1975 (‘the AAT Act’).
Under s 42B(2) of the AAT Act, the Tribunal directs that the Applicant must not, without leave of the Tribunal, make a subsequent application to the Tribunal in relation to the question of whether he is entitled to compensation for a psychological ailment or aggravation arising from his employment by the Commonwealth in 2011 or 2012.
........................................................................
Senior Member Linda Kirk
Catchwords
PRACTICE AND PROCEDURE – ss 42B(1)(c) and 42B(2) of the Administrative Appeals Tribunal Act 1975 – dismissal of application for abuse of process – the Applicant’s current applications are attempts to relitigate matters already finally determined – the Applicant must not, without the leave of the Tribunal, make any further application to the Tribunal in relation to the question of whether he is entitled to compensation for a psychological ailment or aggravation arising from his employment by the Commonwealth in 2011 or 2012 – applications dismissed.
Legislation
Administrative Appeals Tribunal Act 1975 ss 2A, 42B, 44
Administrative Decisions Judicial Review Act 1977 s 5
Safety, Rehabilitation and Compensation Act 1988 ss 7(7), 14
Tribunals Amalgamation Act 2015
Cases
Jones v Skyring (1992) 109 ALR 303
Novosel v Comcare [2017] FCA 722
Oliver and Comcare [2018] AATA 1964
Ramsey v Skyring (1999) 164 ALR 378
Re Kennedy and Comcare [2015] AATA 334
Re Kennedy and Comcare [2015] AATA 643
Re Novosel and Comcare (2015) 66 AAR 549
Re Quinn v Australian Postal Corporation (1992) 15 AAR 519
Ridgeway v The Queen [1995] HCA 66
Rogers v R [1994] HCA 42
Singh v Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2011] FCA 833
Soden v Kowalski [2011] FCA 318Spencer v Commonwealth of Australia [2010] HCA 28
Secondary Material
Explanatory Memorandum, Tribunals Amalgamation Bill 2014
REASONS FOR DECISION
Senior Member Linda Kirk
6 November 2018
APPLICATION FOR DISMISSAL
Comcare (‘the Respondent’) seeks an order under s 42B of the Administrative Appeals Tribunal Act 1975 (‘the AAT Act’) dismissing the applications for review, and a direction that Mr Ross Kennedy (‘the Applicant’) must not, without the leave of the Tribunal, make a subsequent application of kind or kind specified in the direction. Section 42B provides:
42B Power of Tribunal if a proceeding is frivolous, vexatious etc.
(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 application was considered and oral submissions heard by the Tribunal at an interlocutory hearing on 4 September 2018. The Applicant appeared in person and was self-represented.
BACKGROUND TO THE APPLICATION
On 30 October 2005, the Applicant underwent a health status assessment for the purposes of permanent appointment with the Department of Industry, Resources and Tourism. During the course of this assessment, the Applicant denied suffering, or ever previously suffering, a ‘nervous or mental condition’ or ‘anxiety or stress reaction or depression’.[1]
[1] T Documents, T3,13.
On 12 February 2008, the Applicant underwent a further health status assessment for the purposes of ongoing engagement with the Department of Agriculture, Fisheries and Forestry. During this assessment, the Applicant denied suffering, or ever previously suffering, a ‘nervous or mental condition’ or ‘anxiety or stress reaction or depression’.[2]
[2] T Documents, T4, 21.
The first and second claims
On 22 March 2012, the Applicant submitted a claim for compensation under the Safety, Rehabilitation and Compensation Act 1988 (‘SRC Act’) (‘the first claim’). The injury or illness for which the Applicant claimed compensation was described as an ‘adjustment disorder with depression and anxiety’ first experienced in March/April 2011.[3] He said that his claimed psychological condition arose while he was engaged in routine tasks in the course of his employment.[4] The Applicant denied ever suffering a similar symptom, injury or illness, work-related or otherwise.[5]
[3] T Documents, T5, 32.
[4] T Documents, T5, 34.
[5] T Documents, T5, 33.
On 22 March 2012, the Applicant submitted a further claim for compensation under the SRC Act (‘the second claim’). The injury or illness for which the Applicant claimed compensation was described as an ‘adjustment disorder with depression and anxiety’ which occurred in November 2011.[6] The Applicant stated that his claimed psychological condition from March/April 2011 had either returned or worsened.[7] He stated that his claimed psychological condition arose while engaged in routine tasks in his employment by the Commonwealth.[8] He denied ever suffering a similar symptom, injury or illness, work-related or otherwise.[9]
[6] T Documents, T6, 43.
[7] T Documents, T6, 41.
[8] T Documents, T6, 43.
[9] T Documents, T6, 42.
On 1 May 2012, at the request of the Respondent, the Applicant was examined by Dr Zoltan Zsadanyi, psychiatrist.[10] During that examination, the Applicant did not report any previous psychiatric history.[11]
[10] T Documents, T9.
[11] T Documents, T9, 70 and 73.
On 17 July 2012, the Respondent made a determination in respect of the first claim, denying liability to pay compensation to the Applicant for an adjustment reaction with mixed emotional features under s 14 of the SRC Act.[12] The Respondent considered events in the Applicant’s employment in 2011 and 2012 in that context.
[12] T Documents, T7.
On 17 July 2012, the Respondent also made a determination in respect of the second claim, denying liability to pay compensation to the Applicant for an ‘Adjustment reaction with mixed emotional features’ under s 14 of the SRC Act.[13] The Respondent advised the Applicant that the incidents that were the subject of the second claim had been assessed under his first claim.[14]
[13] T Documents, T8.
[14] T Documents, T8, 64.
On 21 November 2012, the Respondent made a decision by which it affirmed the determinations dated 17 July 2012.[15]
[15] T Documents, T10.
First Tribunal decision – 18 May 2015
On 18 May 2015, the Tribunal made a decision by which it affirmed the Respondent’s determination dated 21 November 2012.[16] Deputy President Hack reached this decision on the basis that the Applicant’s claimed psychological condition was deemed not to amount to an ‘injury’ under s 7(7) of the SRC Act because he had, for purposes connected with his employment or proposed employment by the Commonwealth, made a wilful and false representation that he did not suffer, or had not previously suffered, from his claimed disease: Re Kennedy and Comcare [2015] AATA 334 at [27]-[51].
[16] T Documents, T17.
The third claim
On 7 July 2014, the Applicant submitted a further claim for compensation under the SRC Act (‘the third claim’). He sought compensation for an injury or illness affecting his ‘mental state’ which he claimed occurred in 2011 or 2012. He stated that his claimed psychological condition arose while engaged in his normal duties in his employment by the Commonwealth.[17]
[17] T Documents, T13, 109.
On 11 December 2014, the Respondent made a determination with respect to the third claim, denying liability to pay compensation to the Applicant under s 14 of the SRC Act for ‘major depressive disorder, recurrent episode’.[18]
[18] T Documents, T15.
On 15 June 2015, the Respondent made a decision by which it refused the Applicant an extension of time to request reconsideration of the determination dated 11 December 2014.[19]
[19] T Documents, T16.
On 17 June 2015, the Applicant lodged with the Tribunal an application for review of the decision dated 15 June 2015.[20]
[20] T Documents, T20, 196.
Second Tribunal decision – 27 August 2015
On 27 August 2015, the Tribunal dismissed the Applicant’s application for review of 17 June 2015.[21] Senior Member Popple dismissed the application on the basis that the findings in the Tribunal’s earlier decision dated 18 May 2015 were applicable to the current application at [20]. The Tribunal found that the Applicant had made wilful and false representations that he had not previously suffered from his claimed disease and that accordingly because of s 7(7) of the SRC Act the claimed depression is not an ‘injury’ for the purposes of the SRC Act and the Respondent is not liable to pay him compensation. For this reason the application for review ‘had no prospect of success because any reconsideration would have no prospect of success’: Re Kennedy and Comcare [2015] AATA 643 at [19]-[21].
[21] T Documents, T21.
The fourth claim
On 19 July 2015, the Applicant submitted another claim for compensation under the SRC Act (‘the fourth claim’) seeking compensation for an injury or illness affecting his ‘mental state’ which occurred in 2011 or 2012. He stated that his claimed psychological condition arose while engaged in his normal duties in his employment by the Commonwealth.[22]
[22] T Documents, T18, 167.
On 9 October 2015, the Respondent made a determination by which it denied liability to pay compensation to the Applicant in respect of the alleged injury or illness affecting his ‘mental state’ that was the subject of the fourth claim.[23] The Respondent observed that the Applicant’s claim appeared to be an attempt to re-agitate the same injuries that had previously been considered by it and the Tribunal, and there was nothing to distinguish the Applicant’s claim from those that had already been finally determined. In the alternative, the Respondent found that the Applicant’s claim was excluded because of his previous wilful and false representations – even if the new claim were for an injury that had not previously been considered.
[23] T Documents, T22.
The fifth and sixth claims
On 16 August 2016, the Applicant submitted a further claim for compensation under the SRC Act (‘the fifth claim’).[24] The Applicant sought compensation for an adjustment disorder with anxiety affecting his ‘mental state’ which occurred in April 2011. The Applicant stated that his claimed psychological condition arose while engaged in his routine tasks in his employment by the Commonwealth.[25]
[24] T Documents, T4.1 20 (2017/4177).
[25] T Documents, T4.1/20 (2017/4177).
On 31 May 2017, the Applicant submitted a further claim for compensation under the SRC Act (‘the sixth claim’).[26] He claimed compensation for the ‘same/similar injuries’ which occurred in April 2011. The Applicant alleged that his claimed psychological condition arose while engaged in his routine tasks in his employment by the Commonwealth.[27]
[26] T Documents, T4.5 (2017/4177).
[27] T Documents, T4.5/80 (2017/4177).
On 23 June 2017, the Respondent made a determination by which it denied liability to pay compensation to the Applicant under s 14 of the SRC Act in respect of the alleged injury or illness that was the subject of the fifth claim.[28] The reasons for that decision were essentially the same as the reasons for its determination dated 9 October 2015.[29]
[28] T Documents, T6 (2017/4177).
[29] T Documents, T6, 85 (2017/4177).
On 12 July 2017, the Respondent made a decision affirming the determination of 23 June 2017.[30]
[30] T Documents, T9 (2017/4177).
On 20 September 2017, the Respondent made a determination by which it denied liability to pay compensation to the Applicant under s 14 of the SRC Act in respect of the alleged injury or illness that was the subject of the sixth claim.[31] Its reasons for that decision were essentially the same as the reasons for its determination dated 9 October 2015.[32]
[31] T Documents, T28.
[32] T Documents, T28, 225.
On 15 November 2017, the Respondent made a decision by which it affirmed the determination dated 20 September 2017.[33]
[33] T Documents, T1.1.
The Applicant seeks review of the Respondent’s decisions dated 12 July 2017 and 15 November 2017.
SUBMISSIONS
Applicant’s Submissions
In his written submission dated 8 June 2018, the Applicant argued:
He was not provided with a reasonable opportunity and an unbiased Court by Deputy President Hack of the AAT … to object to Comcare’s application that the Applicant’s initial tranche of claims for worker’s compensation to Comcare be dismissed under section 7(7) of the [SRC Act].[34]
[34] Applicant’s Outline of Submissions (‘Applicant’s Submissions’) dated 8 June 2018 at [1].
The Applicant asserted that he ‘does not accept the finality of the earlier decision’ of the Tribunal dated 18 May 2015.[35] He claims that he was prejudiced by the lack of procedural fairness provided to him at the hearing on 3 March 2015.[36]
[35] Applicant’s Submissions at [3] citing Respondent’s Submissions at [41].
[36] Applicant’s Submissions at [7].
At the hearing of this application, the Applicant provided a written outline of his oral submissions consisting of five pages of submissions and 141 pages of supporting documents.[37]
[37] Applicant’s Oral Submissions – Outline (‘Applicant’s Outline of Oral Submissions’) dated 4 September 2018.
In his oral submissions, the Applicant argued that he did not have a reasonable opportunity to present his case at the Tribunal hearing on 3 March 2015, and Deputy President Hack unreasonably refused his request for an adjournment. Deputy President Hack made findings only on the ‘secondary’ issue of wilful misrepresentation and the substantive issue in each of his six compensation claims has not been determined. Nor has the issue of the reasonableness of the actions of the Department.
In his written outline of oral submissions, the Applicant made submissions which he claims indicate the lack of procedural fairness afforded to him by the Tribunal in relation to the 3 March 2015 hearing.[38]
[38] Applicant’s Outline of Oral Submissions at pp 1-4.
In his oral submissions at the hearing, the Applicant stated that he did not go to the Federal Court to challenge the two decisions made by the Tribunal in 2015 as he was not in a financial position to do so.
The Applicant rejected the Respondent’s claim that his actions amount to an ‘abuse of process’ and that he is a ‘vexatious litigant’.[39]
[39] Applicant’s Submissions at [8].
The Applicant argued that his fifth and sixth applications are different to the previous four claims as they are in relation to unreasonable management practices and bullying behavior by his employer.
In his oral submissions, the Applicant argued that the test to be met for the exercise by the Tribunal of the power in s 42B is not satisfied in this case because he has medical evidence from Dr Knox that he suffers a different disease[40] which is the basis for his fifth and sixth claims. He argued that these claims have a reasonable prospect of success based on medical and other evidence.[41] His case is distinguishable from Novosel v Comcare [2017] FCA 722 (‘Novosel’) because in that case the substantive merits had been determined.
[40] Report of Dr Knox dated 1 May 2013, T Documents, T11.
[41] Initial Needs Assessment Report, Carol Crocker dated 23 April 2012; Report of Carmel O’Sullivan, Clinical Psychologist dated 12 April 2012; Crawford Street Medical Clinic report dated 4 April 2012.
Respondent’s submissions
In its written submissions dated 28 February 2018, the Respondent argued that the present applications for review ‘represent yet a further attempt by the applicant to re-litigate the issues that were previously addressed and determined by the Tribunal in its decisions of 18 May 2015 and 27 August 2015.’[42]
[42] Respondent’s Outline of Submissions (Respondent’s Submissions) dated 28 February 2018 at [33].
In both decisions, the Tribunal:
·dealt with the Applicant’s alleged psychological condition(s) occurring while he was undertaking his normal or routine duties in his employment by the Commonwealth in 2011 and/or 2012;[43]
·found that the Applicant was not entitled to compensation because of the wilful and false representations that he made that he did not suffer, or had not previously suffered, the disease under claim.[44]
[43] Respondent’s Submissions at [33.1].
[44] Respondent’s Submissions at [33.2].
There is no indication that the Tribunal will arrive at a different decision if the matter were to proceed to a contested hearing on the merits in the circumstances.[45]
[45] Respondent’s Submissions at [33.3].
The arguments raised by the Applicant in relation to the Respondent’s decision-making and actions and the Tribunal’s conduct of hearings, including the refusal of a request for an adjournment and any directions made by the Tribunal, are matters which would have formed the basis of an application to the Federal Court under s 44 of the AAT Act or s 5 of the Administrative Decisions Judicial Review Act 1977 (Cth) (‘ADJR Act’).
The substantive merits of the Applicant’s claims were determined by the Tribunal on 18 May 2015 in its finding that s 7(7) of the SRC Act applied to exclude from the definition of ‘injury’ any disease claimed by the Applicant, and therefore the Applicant is not entitled to payment of compensation under s 14 of the SRC Act.
The ‘reasonableness’ of any action taken by the Applicant’s employer is only a matter for consideration once it is established that there is an ‘injury’ under the SRC Act. In this case, the application of s 7(7) SRC Act to deny the existence of an ‘injury’ made unnecessary consideration of the ‘reasonable administrative action’ exclusion under s 5A(2) of the SRC Act.
The Applicant’s submission that the fifth and sixth claim are different to his earlier claims have no foundation as the medical evidence on which he relies are in relation to his condition in 2011-12.
The distinction the Applicant seeks to draw in relation to the label applied to his condition is not relevant for the purposes of s 7(7) SRC Act which refers to the ‘same or similar condition’. Deputy President Hack made a finding of fact that the condition was the ‘same or similar’ and it was open to him to do so.
In accordance with the relevant authorities, the present applications for review amount to an abuse of process:
·The Applicant’s repeated re-litigation of what is effectively the same claim is oppressive to the Respondent;[46]
·Permitting the Applicant to continue with his applications would bring the review system into disrepute, particularly in the context of the obligations imposed under s 2A of the AAT Act;[47]
·If he were dissatisfied with the result in the earlier Tribunal decisions, the Applicant should have applied for judicial review rather than repeatedly lodging fresh claims for compensation;[48]
·The Applicant’s circumstances are substantially indistinguishable from those in Novosel.[49]
[46] Respondent’s Submissions at [34.1]
[47] Respondent’s Submissions at [34.2].
[48] Respondent’s Submissions at [34.3].
[49] Respondent’s Submissions at [34.4].
In all the circumstances it is appropriate to dismiss the applications for review under s 42B(1) of the AAT Act.[50]
[50] Respondent’s Submissions at [35].
It would be contrary to public policy and the requirements of the SRC Act and the AAT Act to permit the Applicant to bring yet another application to the Tribunal in respect of the same claim.[51]
[51] Respondent’s Submissions at [40].
It is clear that the Applicant does not accept the finality of the earlier decisions. There is no indication that the Tribunal will arrive at a different decision if his claims were to proceed to a contested hearing on the merits.[52]
[52] Respondent’s Submissions at [41].
This is a case in which it would be appropriate for the Tribunal under s 42B(2) of the AAT Act to direct that the Applicant must not, without the leave of the Tribunal, make an application to the Tribunal in relation to the question of whether he is entitled to compensation for a psychological ailment or aggravation arising from his employment by the Commonwealth in 2011 or 2012.[53]
CONSIDERATION AND FINDINGS
[53] Respondent’s Submissions at [42].
The Tribunal’s power to dismiss an application for review - s 42B(1)
Section 42B was introduced into the AAT Act by the Tribunals Amalgamation Act 2015 (Cth). The Explanatory Memorandum to the Tribunals Amalgamation Bill 2014 explained:
550. New section 42B would … provide for additional circumstances in which the Tribunal may dismiss an application for review…
552. This amendment would modernise the language of existing paragraph 42B(1)(a) and clarify the policy surrounding the grounds for dismissal. The proposed new grounds are similar to dismissal powers available to other bodies. For example Rule 26.01 of the Federal Court Rules 2011 allow for summary judgment on matters which have no reasonable prospect of success, or are an abuse of process. Similarly, section 47 of the Queensland Civil and Administrative Tribunal Act 2009 provides for dismissal of applications where the application is frivolous, vexatious, misconceived, lacking in substance or otherwise an abuse of process. These powers would provide the Tribunal with greater power to dismiss unmeritorious matters early where appropriate.
As Deputy President Humphries observed in Oliver and Comcare [2018] AATA 1964 (‘Oliver’) at [67], the Explanatory Memorandum emphasised that the power conferred by s 42B is intended to provide the Tribunal with more extensive power to dismiss unmeritorious matters than it had prior to this enactment.
Perry J recognised in Novosel at [83], that paragraphs (a) to (c) of s 42B(1) are expressed in the alternative. The Tribunal may dismiss an application for review of a decision at any stage of the proceeding if it is satisfied that the criteria in one or more of these sub-paragraphs are met.
Dismissal of application for abuse of process – s 42B(1)(c)
Deputy President Humphries noted in Oliver at [68], that French CJ and Gummow J emphasised in their decision in Spencer v Commonwealth [2010] HCA 28 that the power to summarily dismiss a proceeding, such as that contained in s 42B of the AAT Act, should be exercised cautiously:
[24] The exercise of powers to summarily terminate proceedings must always be attended with caution. That is so whether such disposition is sought on the basis that the pleadings fail to disclose a reasonable cause of action or on the basis that the action is frivolous or vexatious or an abuse of process.
As Justice Perry observed in Novosel at [104], ‘in the context of judicial proceedings the categories of abuse of process are not closed.’[54] As Gaudron explained in Ridgeway v The Queen [1995] HCA 66; (1995) 184 CLR 19 at 75[55]:
Abuse of process cannot be restricted to ‘defined and closed categories’ because notions of justice and injustice, as well as other considerations that bear on public confidence in the administration of justice, must reflect contemporary values and, as well, take account of the circumstances of the case.
[54] Citing Batistatos v Roads and Traffic Authority of New South Wales [2006] HCA 27; (2006) 226 CLR 256 (Batistatos) at 265 [9] (Gleeson CJ, Gummow, Hayne and Crennan JJ)
[55] Quoted with approval in Batistatos at 266-267 [14] (Gleeson CJ, Gummow, Hayne and Crennan JJ))
Whereas the categories of abuse of process are not defined or closed, as Justice McHugh recognised in Rogers v R [1994] HCA 42; (1994) 123 ALR 417 at 443 they usually fall into one of three categories:
... abuses of procedure usually fall into one of three categories:
(1)the court’s procedures are invoked for an illegitimate purpose;
(2)the use of the court’s procedures is unjustifiably oppressive to one of the parties; or
(3)the use of the court’s procedures would bring the administration of justice into disrepute.
Many, perhaps the majority of, cases of abuse of procedure arise from the institution of proceedings. But any procedural step in the course of proceedings that have been properly instituted is capable of being an abuse of the court’s process. In Walton v. Gardiner [(1992) 177 CLR 318 at 393], Mason CJ, Deane and Dawson JJ said that the jurisdiction to stay proceedings that are an abuse of process ‘extends to all those cases in which the processes and procedures of the court, which exist to administer justice with fairness and impartiality, may be converted into instruments of injustice or unfairness.
In Novosel, Justice Perry at [107] noted that in empowering the Tribunal to summarily dismiss proceedings under s 42B(1)(c) of the AAT Act for reason that they amount to an abuse of process, ‘it is apparent that the Parliament intended to empower the Tribunal to protect its own processes against analogous forms of abuse’. This was recognised by the Tribunal in Re Quinn v Australian Postal Corporation (1992) 15 AAR 519 at 526 in relation to a previous provision of the AAT Act which conferred on it power to dismiss an application for abuse of process:
Section 33 of the Administrative Appeals Tribunal Act provides for the Tribunal the flexibility needed to control its process. It is with regard to the dictates of fairness and expedition, after proper consideration of all the facts, that the Tribunal conducts itself.
It would seem inappropriate and unreasonable to us for there to be relitigation without reason of the same issues before the Tribunal. It would be unjust to applicants to have to face a situation where a decision may be made today and relitigated tomorrow on the very same facts. 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.
In Re Novosel and Comcare (2015) 66 AAR 549 (Senior Member Popple), the Tribunal held that Mr Novosel’s relitigation of issues that had previously been dealt with by the Tribunal amounted to an abuse of process for the purposes of s 42B(1) of the AAT Act at [10] and further had no reasonable prospect of success at [10]-[12]. The Tribunal dismissed Mr Novosel’s application under s 42B of the AAT Act.
On appeal in Novosel, Justice Perry held at [104] – [110] that a further claim in respect of matters already decided may amount to an abuse of process. Her Honour emphasised that protections against abuse of process are not merely concerned with prejudice to a respondent, ‘but also with matters of broader public policy’ at [112]. As she explained:
[112] … Thus, principles of res judicata, issue estoppel and the like in judicial proceedings, are underpinned by broader issues of public policy, namely, that it would be an abuse of process to allow parties to litigate repeatedly matters that have been finally determined by the Court not only because “a person ought not to be vexed twice for one and the same cause”, but also because it is in the interests of the State that there be an end to litigation: see e.g. Wong v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 242; (2004) 146 FCR 10 (Wong) at [36]-[37]. 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, namely, to provide a mechanism of review that is fair, just, economical, informal and quick. In any event, I accept the respondent’s submission that the prejudice to Comcare is clear in circumstances where the applicant … has brought yet another application to the Tribunal in relation to the same claim. As Comcare submits, such conduct increases the time, expense and allocation of resources that Comcare needs to devote to repeatedly answering the same claim over many years. … It may be an abuse of process not only to re-litigate the same issue twice, but also to seek to litigate an issue that properly belonged to the earlier litigation: Wong at [37] (by analogy).
Should the application be dismissed under s42B(1)(c)?
The present applications for review before the Tribunal are an attempt to relitigate the issues that were previously determined by the Tribunal in its decisions of 18 May 2015 and 27 August 2015. In both these decisions, the Tribunal considered and determined the substantive merits of the applications for review before it, and found that the Applicant was not entitled to compensation for reason that any psychological condition he suffered was not an ‘injury’ for the purposes of the SRC Act by virtue of the wilful and false representations he made in relation to his medical history with respect to psychological illness.
In the Tribunal’s decision of 18 May 2015, Deputy President Hack reviewed the Applicant’s long medical history of psychological illness from 1987 when he first consulted a psychiatrist, and concluded ‘that depression has been a continuing condition with Mr Kennedy for many, many years.’[56] In relation to the representations made by the Applicant on three occasions[57] that he had no medical history of ‘nervous or mental condition’ or ‘anxiety or stress reaction or depression’, Deputy President Hack found that the purpose of these representations were connected with his employment by the Commonwealth[58] and that they were both false and wilful.[59] As a consequence of these findings, Deputy President Hack found that s 7(7) of the SRC Act deemed the Applicant’s ailment not to be an ‘injury’ as the term is defined in the Act, and accordingly the Respondent was not liable to pay him compensation in respect of his ailment.[60]
[56] At [26].
[57] 30 October 2005, 12 February 2008 and 22 March 2012.
[58] At [34] – [36].
[59] At [37] – [48].
[60] At [51].
In the Tribunal’s decision dated 27 August 2015, Senior Member Popple also found that the Applicant ‘made wilful and false representations that he had not previously suffered from depression’ and concluded that by virtue of s 7(7) of the SRC Act the Applicant’s depression is not a compensable injury under the Act.
The current applications for review relate to the fifth and sixth claims made by the Applicant with respect to the same or similar psychological condition arising from his employment during the same period in 2011-2012 that were the basis for his first four claims. To succeed in these applications the Applicant would need to demonstrate he suffered a compensable ‘injury’ for the purposes of the SRC Act. However, for the same reasons identified by the Tribunal in its two previous decisions in 2015, the Applicant’s wilful and false representations in relation to his previous medical history invoke the application of s 7(7) of the SRC Act to deny the existence of an ‘injury’.
The Applicant had the option of applying to the Federal Court for review of the Tribunal’s 2015 decisions under s 44 of the AAT Act or s 5 of the ADJR Act. He chose not to pursue this course of action as he was not in a financial position to do so. As a consequence he effectively acceded to the findings and determination of the Tribunal in both decisions.
The submissions made by the Applicant to this Tribunal were with respect to what he claimed to be procedural irregularities in the earlier proceedings, particularly the hearing conducted by Deputy President Hack on 3 March 2015. These concerns are ones which would have formed the basis for an application for review by the Federal Court of the earlier Tribunal decisions had such an action been brought by the Applicant. These are not matters that are capable of review by the Tribunal.
Accordingly, the Tribunal finds that the current applications for review amount to ‘relitigation without reason of the same issues before the Tribunal’. For the reasons identified by Justice Perry in Novosel, the Tribunal should not ‘allow relitigation of issues already decided and previous decisions should be regarded as establishing the matters actually decided and of the grounds for the determination.’
The Tribunal finds that the current applications are an attempt to relitigate matters already finally determined by the Tribunal and therefore amount to an abuse of process capable of supporting an order for dismissal of the applications under s 42B(1)(c) of the AAT Act.
In making this finding, the Tribunal has had regard to the prejudice to the Respondent caused by the making by the Applicant of further applications for review in relation to the same claim, and the ‘time, expense and allocation of resources that [it] needs to devote to repeatedly answering the same claim.’
The Tribunal also has had regard to ‘broader issues of public policy’ in making this finding, namely that ‘it is in the interests of the State that there be an end to litigation.’ The finding that the attempt to relitigate matters which have finally been determined by the Tribunal amounts to an abuse of process is also consistent with the objective of the Tribunal stated in s 2A of the AAT Act, namely to provide a mechanism of review that is accessible, fair, just, economical, informal and quick, and promotes public trust and confidence in the decision-making of the Tribunal.
For these reasons, the Tribunal finds that in all the circumstances it is appropriate to dismiss the applications for review under s 42B(1)(c) of the AAT Act.
The power to direct that no further application be made without leave – s 42B(2)
As Justice Bromberg observed in Singh v Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2011] FCA 833 (‘Singh’) at [76], ‘the making of orders that diminish a person’s capacity to access justice through the courts is a decision which is never made lightly … It is a decision which requires the careful balancing of a number of considerations.’[61]
[61] Citing Soden v Kowalski [2011] FCA 318 at [35]; Kowalski v MMAL Staff Superannuation Fund Pty Ltd (2007) 242 ALR 370 at [44]; Ramsey v Skyring at [51]; and Attorney General v Wentworth (1988) 14 NSWLR 481 at 484.
In Jones v Skyring (1992) 109 ALR 303 at 312, Justice Toohey regarded such orders as:
reinforcing the power of the court to protect its own process against unwarranted usurpation of its time and resources and to avoid the loss caused to those who have to face actions which lack any substance.
In Ramsey v Skyring (1999) 164 ALR 378 at [52], Justice Sackville noted that linked to the objective identified by Toohey J above:
… is the need to protect the community, including litigants who wish their disputes to be resolved in an orderly and expeditious manner, against disruption of the court system flowing from the repeated institution of groundless proceedings.[62]
[62] Cited in Soden v Kowalski [2011] FCA 318 at [36].
In Singh, Justice Bromberg described the aim of the so-called ‘vexatious litigant sanction’ as follows:
[77].The vexatious litigant sanction aims to strike a fair balance between the right of applicants to access justice (to bring valid disputes before a court for conclusive determination) and the countervailing right of respondents to finality of litigation and protection from further unmeritorious litigation. Another significant countervailing factor weighing in that balance is the need to safeguard scarce judicial resources so that other litigants before the Court are not unfairly prejudiced and court resources are not unnecessarily wasted.
His Honour further emphasised that where ‘serial litigants persistently bring vexatious claims … repeatedly and targeting and harassing the same respondents, the administration of justice as well as the Court’s overarching purpose is effectively subverted …’ at [78].
It is important to emphasise that an order in the terms contemplated by s 42B(2) ‘is not a complete denial of a right to access justice, but it is a limitation.’ Singh at [79] As Justice Bromberg explained in Singh:
A litigant required to obtain the leave of the Court to institute a proceeding, is not necessarily denied the right to make an application to the Court. An application will only be permitted with the leave of the Court. That is, the litigant will be required to satisfy a judge that a proper basis exists for the prospective application. In that manner, an order serves as a filter to ensure that prospective respondents are not harassed by proceedings without substance and that court time and resources are not wasted.[63]
[63] At [79] citing Jones v Skyring (1992) 109 ALR 303 at 312 (Toohey J); Ramsey v Skyring (1999) 164 ALR 378 at [52] (Sackville J).
The practicalities of applying the relevant legal test were summarised by Justice Stone in Soden v Kowalski [2011] FCA 318, where her Honour at [51] endorsed Ashley J’s commentary in Attorney-General for the State of Victoria v Horvath, Senior [2001] VSC 269 at [28]:
It is one thing to know what the word “vexatious” means. It is another thing to apply s. 21(2) to the circumstances of a particular case. In the latter task the following matters are, according to the authorities, relevant: first, where an order has been made dismissing an action as frivolous or vexatious, or striking a pleading out, it is not for a court considering a s. 21 application to go behind the order and go into the merits of the argument as a court of appeal would do. Second, findings which are required do not depend on viva voce evidence or credibility of witnesses. The critical evidence is to be found in court files - documents, judgments, orders and reasons. For that reason, any hearsay material contained in an affidavit in support of an application, even though objectionable, should be treated simply as a distraction, and ignored. Third, the question is not whether the manner in which a proceeding is conducted is vexatious; it is whether, having regard to its nature and substance it should be so characterised. Fourth, and this is a more general proposition with respect to s. 21, in determining whether the Attorney-General has made out a case, the court is not concerned with a minute individual examination of each proceeding. It must consider the overall impression created by the number of proceedings, their general character and their results.
Should a direction be made under s 42B(2) prohibiting further applications?
The Applicant has lodged six claims for compensation for one or more psychological condition(s) allegedly sustained from his employment by the Commonwealth in 2011 and 2012. Liability has been denied by the Respondent with respect to all six of these claims and the Tribunal has determined in two decisions that his condition is not a compensable ‘injury’ under the SRC Act by reason of the false and wilful misrepresentations made by him in relation to his previous medical history of psychological illness. The Applicant asserts that he does not accept the finality of the Tribunal’s May 2015 decision which made the finding that s 7(7) of the SRC Act precludes the existence of an ‘injury’.
The Tribunal acknowledges that the making of an order under s 42B(2) of the AAT Act should not be made lightly and should only be done after careful balancing of relevant considerations. However, as Justice Toohey recognised in Jones v Skyring, the making of such orders may be necessary to protect the Tribunal’s processes ‘against unwarranted usurpation of its time and resources and to avoid the loss caused to those who have to face actions which lack any substance.’
Having regard to the authorities cited above, and on the basis of the information before it, the Tribunal finds that the application of the ‘vexatious litigant sanction’ is warranted in this matter to support the right of the Respondent to finality of litigation and protection from further unmeritorious litigation by the Applicant. In making this finding the Tribunal has had regard to the need to safeguard Tribunal time and resources so that other applicants are not unfairly prejudiced and the Tribunal’s statutory objectives are not undermined.
In making this finding, the Tribunal has had regard to the written and oral submissions of the Applicant and the Respondent at the hearing, as well as the decision, reasons, orders and documents in relation to the two Tribunal decisions in May and August 2015. On the basis of this information, the Tribunal has considered the ‘overall impression created by the number of proceedings, their general character and their results’ and finds that an order under s 42B(2) is warranted in this case.
Accordingly, the Tribunal finds that it is appropriate to order that the Applicant must not, without the leave of the Tribunal, make an application to the Tribunal in relation to the question of whether he is entitled to compensation for a psychological ailment or aggravation arising from his employment by the Commonwealth in 2011 or 2012.
The making of this order does not entirely preclude the Applicant from making a further application for review. It is open to him to apply to the Tribunal for leave to make another review application, which may be granted if the Tribunal is satisfied there is a proper basis for such an application.
DECISION
The applications for review are dismissed pursuant to s 42B(1) of the AAT Act.
Under s 42B(2) of the AAT Act, the Tribunal directs that the Applicant must not, without leave of the Tribunal, make a subsequent application to the Tribunal in relation to the question of whether he is entitled to compensation for a psychological ailment or aggravation arising from his employment by the Commonwealth in 2011 or 2012.
I certify that the preceding 82 (eighty-two) paragraphs are a true copy of the reasons for the decision herein of Senior Member Linda Kirk
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Associate
Dated: 6 November 2018
Date(s) of hearing: 4 September 2018 Date final submissions received: 4 September 2018 Applicant: In person Counsel for the Respondent: Mr Peter Woulfe Solicitors for the Respondent: Ms Shery William, Comcare Legal
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