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.
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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,…
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- Kennedy and Comcare (Compensation) [2018] AATA 4171
- Case
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CaseChat Overview and Summary
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
Evidence
Evidence Before The Court
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Decision
Reasons for decision
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))