Kennedy and Comcare (Compensation)

Case [2018] AATA 4171

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 318

Spencer 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

  1. 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,…

Continue reading Kennedy and Comcare (Compensation)

Sign in free to access the full text

Details
AGLC
Kennedy and Comcare (Compensation) [2018] AATA 4171
Case
[2018] AATA 4171
Decision Date

CaseChat Overview and Summary

This matter came before the Administrative Appeals Tribunal (AAT) concerning an application by the Applicant, who represented himself, for compensation under the Safety, Rehabilitation and Compensation Act 1988. The dispute centred on the Applicant's claims for psychological ailments or aggravation arising from his Commonwealth employment in 2011 or 2012, which had been the subject of multiple previous claims and determinations.

The primary legal issue before the Tribunal was whether the Applicant's current applications constituted an abuse of process, warranting dismissal under section 42B(1)(c) of the Administrative Appeals Tribunal Act 1975. This required the Tribunal to consider if the Applicant was attempting to relitigate matters that had already been finally determined by the Respondent and the Tribunal in previous proceedings.

The Tribunal reasoned that the Applicant had made multiple claims for similar psychological conditions arising from his employment in 2011 and 2012, which had been denied by the Respondent and reviewed by the Tribunal. Previous Tribunal decisions had found that the Applicant had made wilful and false representations regarding his prior mental health history, leading to the denial of compensation under section 7(7) of the SRC Act. The Tribunal concluded that the Applicant's current applications were essentially attempts to relitigate these already determined issues, constituting an abuse of process. Accordingly, the Tribunal exercised its power under section 42B(2) of the AAT Act to direct that the Applicant must not, without the leave of the Tribunal, make any further application in relation to the question of his entitlement to compensation for a psychological ailment or aggravation arising from his employment in 2011 or 2012.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

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.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

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).

Ratio Decidendi

Legal Principle Established

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))