Kondylas and Comcare (Compensation) - [2024] AATA 553

Kondylas and Comcare (Compensation) [2024] AATA 553 (28 March 2024)
Division:GENERAL DIVISION
File Number(s): 2023/2577
Re:Stelios Kondylas
APPLICANT

AndComcare
RESPONDENT

DECISION
Tribunal:Senior Member B J Illingworth
Date:28 March 2024
Place:Adelaide

Pursuant to section 42B(1)(c) of the Administrative Appeals Tribunal Act 1975 (Cth) the application for review dated 21 April 2023 is dismissed.
................................[Sgnd]........................................
Senior Member B J Illingworth
CATCHWORDS
PRACTICE AND PROCEDURE - interlocutory application pursuant to section 42B(1)(c) of the Administrative Appeals Tribunal Act 1975 to dismiss application for review as an abuse of process – whether failure to take into account duty at sea allowance in the normal weekly earnings (NWE) calculation in a reconsideration on own motion enlivened a review right – NWE previously the subject of a reconsideration and related section 42C(1) decision excluding Duty at Sea Allowance from the calculation – workers’ compensation – application for review dismissed
LEGISLATION
Administrative Appeals Tribunal Act 1975 (Cth)
Safety, Rehabilitation and Compensation Act 1988 (Cth)
CASES
Commonwealth of Australia v Snell [2019] FCAFC 57
Eylward and Comcare [2008] AATA 63
Morales v Minister for Immigration and Multicultural Affairs (1998) FCR 374
Quinn and Australian Postal Corporation (1992) 15 AAR 519
Rana v Military Rehabilitation and Compensation Commission [2011] FCACFC 80
REASONS FOR DECISION
Senior Member B J Illingworth
28 March 2024
INTRODUCTION

The Applicant filed in the Administrative Appeals Tribunal (‘the Tribunal’) an application to review the normal weekly earnings (‘NWE') calculated by the Respondent in a ‘Reconsideration on Own Motion’ dated 30 March 2023 (‘the ROM’) issued pursuant to s62 of the Safety, Rehabilitation and Compensation Act 1988 (Cth) (‘the SRC Act’).[1]
[1] Exhibit B, Tab 1, Document 1.
The Applicant has applied to the Tribunal for review of the ROM which is listed for hearing on 18 and 19 April 2024. He argues that the NWE calculation is wrong, for amongst other things, the failure to take into account the Duty at Sea Allowance (‘the Sea Allowance’) in the calculation of the NWE.
This interlocutory application is brought by the Respondent to dismiss the application for review on the basis that it is an abuse of the process of the Tribunal within the meaning of s 42B(1)(c) of the Administrative Appeals Tribunal Act 1975 (Cth) (‘the AAT Act’). The Respondent argues the NWE was finally determined in a decision of the Tribunal made pursuant to s 42C(1) of the AAT Act on 9 May 2022.
BACKGROUND
The Applicant was a former employee of the Commonwealth Scientific and Industrial Research Organisation (‘CSIRO’). He held a master mariners’ certificate (‘Mariners Certificate’) which permitted him to operate from time to time, vessels in CSIRO’s fleet all of which were under 24 metres in length. The Applicant’s Mariner’s Certificate also permitted him to command larger vessels but there were no such vessels operated by CSIRO.
When at sea in the performance of his work duties the Applicant…

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.

Continue reading Kondylas and Comcare (Compensation)

Details

AGLC: Kondylas and Comcare (Compensation) [2024] AATA 553
Case: [2024] AATA 553
Decision Date: 28 March 2024

CaseChat Overview and Summary

This matter concerned an interlocutory application brought by Comcare (the Respondent) to dismiss an application for review filed by Mr. Kondylas (the Applicant) on the grounds that it constituted an abuse of process. The Applicant sought to review a reconsideration on own motion (ROM) concerning his normal weekly earnings (NWE) calculation. The core of the dispute was whether the failure to include a "duty at sea" allowance in the NWE calculation, which had previously been the subject of a final decision by the Tribunal, could be revisited through a review of the subsequent ROM.

The legal issues before the Tribunal were whether the Applicant's attempt to re-litigate the NWE calculation, specifically the exclusion of the "duty at sea" allowance, constituted an abuse of process. The Tribunal was required to determine if the ROM, which was made to correct an error in indexation adjustments to the NWE, could serve as a vehicle to reopen a previously settled NWE calculation that had been affirmed by a final decision of the Tribunal.

The Tribunal reasoned that the Applicant had previously sought review of decisions relating to his NWE calculation, and these matters had been resolved by consent on 9 May 2022, with a final decision made under section 42C(1) of the Administrative Appeals Tribunal Act 1975. This final decision had affirmed the exclusion of the "duty at sea" allowance and other aspects of the NWE calculation. The ROM was initiated to rectify a calculation error in indexation, not to re-examine the fundamental NWE calculation itself. The Tribunal concluded that allowing the Applicant to use the review of the ROM to re-agitate issues that had been finally determined would be an abuse of the Tribunal's process, particularly in the absence of fresh and compelling evidence.

Consequently, the Tribunal ordered that pursuant to section 42B(1)(c) of the Administrative Appeals Tribunal Act 1975, the Applicant's application for review dated 21 April 2023 was dismissed.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

Hence, the Applicant has sought to review the ROM as a vehicle to reassess and redetermine his NWE calculation, which was the subject of a final decision of the Tribunal. That final decision settled the argument about his entitlement to the Sea Allowance in the calculation of NWE, the exclusion of his annual leave in that calculation, and that the 2 week period prior to the date of injury being the correct period to determine the s 19 NWE entitlement. THE EVIDENCE The Applicant The Applicant filed an unsigned and undated statement and gave evidence before me in the interlocutory application. In evidence, he confirmed the contents of his statement at paragraphs 18 to 20 were true and correct. The Applicant’s duties at CSIRO included seafaring duties from time to time. CSIRO operated a fleet of vessels under 24 metres in length. The Applicant explained that he held a Mariner’s Certificate (also referred to as a ticket) which permitted him to work on larger vessels than those operated by CSIRO. He obtained the Mariner’s Certificate under the Annual Performance Agreement (‘APA’) which did not require him to work larger vessels, but once he had the Mariner’s Certificate, he was required to work a specified number of sea days on the larger vessel relevant to the Mariner’s Certificate. He said the Mariner’s Certificate was relevant to his position of Marine Operations Officer. He held the highest qualification in his division of CSIRO. He said that CSIRO ‘required’ him to maintain his qualification. His manager Mr Andreas Marouchos was to find him duties on larger vessels to enable him to maintain the qualification. He had to apply in writing and was given approval to work on the larger vessels. He said that CSIRO arranged for a ‘contract skipper’ to cover his duties while he was away working on the larger vessel. He said Mr Marouchos enquired about work outside the 200-mile Australian economic limit, which was critical to maintaining his Mariner’s Certificate. He also referred to other qualifications he maintained in regards to his Mariner’s Certificate. The qualifications enabled him to perform duties in the ‘neighbouring pacific’ and gas fields ‘up north’ and having regard to the work Mr Marouchos was performing it was important that he maintain the Mariner’s Certificate. The Applicant then said he did not undertake any work in the ‘neighbouring pacific’ and ‘up north’, but his Mariner’s Certificate meant he had the capacity to do so. He said this requirement was contained within and formed part of his APA. He said because he held a higher Mariner’s Certificate from others in CSIRO, and because the vessel he ran for CSIRO was less than 24 metres in length, it was Mr Marouchos who was to arrange for duties on a larger vessel consistent with his higher qualification with the national facility (‘Marine National Facility’)[2] or external contract work.[2] The Marine National Facility is a governance construct and is responsible for the operation of the R V Investigator within CSIRO. See paragraph 59 for further reference.

Decision

Reasons for decision

For the reasons I have explained the application to review the ROM dated 30 March 2023, and the assertion that the NWE calculation is wrong, is an attempt by the Applicant to use the current application to review a final s 42C(1) Decision dated 9 May 2022 which affirmed the reviewable decision dated 12 September 2017, and, re-agitate the same matters raised in those Tribunal proceedings. In so doing, I am satisfied the current application for review is not used for a legitimate purpose. Further, by allowing the application to proceed in the absence of fresh and compelling evidence and where the interest of justice and fairness in doing so is not established, I am satisfied that the attempt to use the current application to review the calculation of the Applicant’s NWE is an abuse of the process of the Tribunal. DECISION Pursuant to section 42B(1)(c) of the Administrative Appeals Tribunal Act 1975 (Cth) the application for review dated 21 April 2023 is dismissed.

Ratio Decidendi

Legal Principle Established

In regards to Mr Marouchos’s evidence, it is submitted the Applicant’s qualification was required to be maintained irrespective of the level of the qualification, which is confirmed in the APA.CONSIDERATION The Applicant’s employment with CSIRO ended on 3 July 2017. Between 7 November 2017 and 21 December 2020, he filed in the Tribunal, 5 applications for review in respect of reviewable decisions arising out of claims for compensation pursuant to the SRC Act. Importantly, the first application for review in 2017/6587 related the assessment of his NWE which assessment ultimately impacted upon his to entitlement to compensation arising out of an accepted claim for aggravation of lumbar spondylosis with a date of injury of 13 February 2017. The application for review in respect of the reviewable decision relating to that aggravation was in proceeding 2020/1745. On 9 May 2022, all applications for review before the Tribunal were resolved by consent in the s 42C(1) Decisions of the Deputy President. The resolution in proceeding 2017/6587 was the acceptance by the Applicant, of the NWE calculation, as determined by the delegate and affirmed by the Review Officer and the basis of that calculation. Hence, the Applicant accepted the calculation of NWE did not include the Sea Allowance, the consideration of long service leave taken in the NWE calculation, and that the 2 week period prior to date of injury was the correct period for the purpose of determining the s 19 NWE entitlement. By the resolution of all applications before the Tribunal, the Respondent was entitled to conclude that the issues that fell to be determined by those applications were finally decided. I also note that in regards to those applications for review in which the Applicant succeeded (including 2017/6587) the s 42C(1) Decisions also provided that the Applicant was entitled to reasonable party/party costs. In the successful application for aggravation of the Applicant’s lumbar spondylosis in proceedings 2020/1745, the s 42C(1) Decision decided that the Applicant was entitled to compensation pursuant to ss 16, 19 and 29 of the SRC Act. Note 6 of that Decision referred to future calculations payable to the Applicant including indexing for incapacity benefits payable. Thereafter, various calculations were made in respect of the Applicant’s NWE. The ROM was a continuation of that calculation process following upon the s42C(1) Decision. The Respondent identified and error in the calculation of the NWE, in regards the indexation adjustments and therefore the ROM was made. Hence, the ROM was intrinsically linked to the Applicant’s settled claims for compensation, including the agreed NWE s 42C(1) Decision and the Note in respect of ongoing calculation. The ROM was a decision made to remedy a mistake in earlier calculations of the Applicant’s entitlement arising from the consent decision. I do not agree with the Applicant’s submission that the current application is correctly described as an entirely new decision, that does not seek to review the decision of 12 September 2017 but seeks to review a decision made six years later namely the ROM and which is a different decision and consistent with Snell namely an ever-evolving claim process and part of the progressive decision making.