Kondylas and Comcare (Compensation)

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 was entitled to the Sea Allowance, which he received between 28 November 2008 and 12 June 2015. The Applicant’s employment with CSIRO ended on 3 July 2017 when he was made redundant.
Earlier applications before the Tribunal
Between 2017 and 2020, the Applicant relevantly filed 5 applications for review before the Tribunal. Each application was resolved by agreement between the parties and were the subject of s 42C(1) Decisions of Deputy President R I Hanger AM QC (‘the Deputy President’) all dated 9 May 2022. Each application and s 42C(1) Decision is summarised as follows;
(a) Application for Review 2017/6587 filed on 7 November 2017
(i)The application related to the delegate’s determination dated 26 July 2017 being a calculation of the Applicant’s NWE under s 8 of the SRC Act.
(ii)That determination was the subject of a reconsideration by a Review Officer dated 12 September 2017. The Review Officer there referred to the determination by the Respondent, that the Applicant’s NWE was $1,701.99 as at 13 February 2017, with the relevant calculation period used being 2 weeks before the date of injury.
(iii)The Review Officer considered the Applicant’s request for reconsideration of the determination and (a) the failure to include in the determination the Sea Allowance (b) that the Applicant’s normal working year involved 90 days sea service (c) the gross yearly earnings figures provided from 2012, and (d) the contents of an email dated 23 August 2017 in which the Applicant provided PAYG summaries for financial years 2012 - 2013, 2013 - 2014 and 2014 - 2015.
(iv)The Review Officer referred to CSIRO’s Enterprise Agreement in relation to the Sea Allowance and in particular schedule 5 section 3 at page 95 namely:
(a) Duty at Sea Allowance is payable in addition to an officer's normal fortnightly salary for all periods of more than 24 hours and pro rata there-after spent on a vessel at sea. This payment is made in recognition of an officer’s confinement aboard the vessel and the additional hours of work which may be required of an officer.
(v)The Review Officer had regard to CSIRO’s records which showed the last time the Applicant was paid the Sea Allowance was on 12 June 2015, being 18 months prior to sustaining his injury. Furthermore, the Applicant was on long service leave for 6 months out of the 12 months prior to his date of injury, and that he went on long service leave from 1 June 2016
(vi)The Review Officer referred to s 9(1) of the SRC Act and the period of 2 weeks used in the determination of the Applicant’s NWE and said, even if removing from the calculation the Applicant’s period of long service leave (June 2016 – December 2016) he still did not receive the Sea Allowance for the period June 2015 – December 2016 and that the Sea Allowance should not be included in the NWE.
The Review Officer made the following decision;
Decision
Therefore I have affirmed the determination dated 26 July 2017 and agree that the duty at sea allowance should not be included in the calculation of your NWE; I also consider the two weeks used as the relevant period was correct.
The Applicant was advised of his review right to the Tribunal.
Section 42C(1) Decision dated 9 May 2022
The Decision of the Respondent dated 12 September 2017 is affirmed.
(b) Application for Review 2017/6703 filed on 13 November 2017
(i) The application related to the delegate’s determination dated 7 September 2017 accepting a claim filed on 5 May 2017 for liability for a laceration of the Applicant’s left middle finger and medical treatment up to 21 September 2017.
(ii)The laceration occurred on 8 June 2013 for which the Applicant first sought treatment that day. A medical certificate was provided for the period 8 June 2013 - 18 June 2013.
(iii)The employer requested a reconsideration of the determination. The claim was not disputed but the employer considered it was unreasonable to extend the period of liability for approximately 4 years, up to 21 September 2017, absent supporting medical evidence.
(iv)By email dated 26 September 2017 the Applicant responded to the request for reconsideration and disagreed with the employer. He asserted, amongst other things, that the injury required ongoing treatment, that he did not have the opportunity to pursue that treatment and he removed the stiches himself; he still had issues with the scaring and the possibility of future intervention.
In the reconsideration dated 17 October 2017 under the heading ‘Discussion’ the Review Officer decided:
Your employer requested that liability for your injury be amended for a fixed period from 8 June 2013 to 18 June 2013 ... I am not satisfied that you require medical treatment after the 18 June 2013. Therefore, I have varied the determination and in its place find that you are entitled to medical treatment up to 18 June 2013.
The Applicant was advised of his review rights to the Tribunal.
Section 42C(1) Decision dated 9 May 2022
The Decision of the Respondent dated 12 October 2017 is varied such that the Applicant is entitled to compensation under s 16 of the SRC Act up to 17 April 2018 for his accepted laceration of left middle finger condition with date of injury of 8 June 2013.
(c) Application for Review 2018/4313 filed on 1 August 2018
(i)The application related to the delegate’s determination dated 10 May 2018 in relation to a claim for compensation for ‘black out’ whilst driving for work on 22 December 2016 at 9:00am.
(ii)CSIRO was first notified of the of the alleged injury on 28 June 2017. The Applicant ceased employment with CSIRO on 3 July 2017.
(iii)The delegate was not satisfied the Applicant had sustained an injury nor that he was travelling for the purposes of work within the meaning of the SRC Act.
(iv)The determination was the subject of a reconsideration dated 26 June 2018. The Review Officer referred to the Applicant’s request for consideration of a psychological injury which was not the subject on the claim for compensation noting the Applicant had been advised to submit a separate claim. It was also noted the Applicant referred to being certified unfit for work as a consequence of the ‘black out’ for three weeks but did not notify CSIRO of the incident in December 2016 until June 2017.
(v)The Review Officer said the medical evidence did not support that the Applicant sustained an injury as a result of the alleged ‘black out’ on 22 December 2016, and that he was not at work that day for the purposes of employment even if he sustained such an injury.
Under the heading ‘Conclusion’ the Review Officer said:
Therefore the determination dated 10 May 2018 has been affirmed. Subsequently, compensation is not payable for ‘black out’ under section 14 of the SRC Act.
The Applicant was advised of his review right to the Tribunal.
Section 42C(1) Decision dated 9 May 2022
The Decision of the Respondent dated 26 June 2018 is affirmed.
(d) Application for Review 2020/1745 filed on 24 March 2020
(i)The application related to the delegate’s determination dated 21 November 2019 declining medical expenses, incapacity payments and household services. The Applicant had an accepted claim for compensation for ‘aggravation of L4/5 lumbar spondylosis’, sustained on 13 February 2017.
(ii)On 11 December 2019 the Applicant requested a reconsideration of the determination.
(iii)The Review Officer in the reconsideration dated 11 March 2020 decided that the Applicant did not continue to experience the effects of his compensable condition and further that the aggravation sustain on 13 February 2017 had resolved and the current presentation was due to pre-existing constitutional and progressive degenerative lumbar spine disease.
The Review Officer made the following decision:
Decision
I have decided to affirm the determination dated 21 November 2019 and decline medical expenses, incapacity payments and household services under sections 16, 19 and 29 of the Safety, Rehabilitation and Compensation Act 1988 (SRC Act).
The Applicant was advised of his review right to the Tribunal.
Section 42C(1) Decision dated 9 May 2022
The Decision of the Respondent dated 11 March 2020 is set aside and in substitution decides the Applicant is entitled to compensation under ss 16, 19 and 29 of the SRC Act for his accepted aggravation of L4/5 lumbar spondylosis condition, with a date of injury of 13 February 2017.
The Tribunal noted, amongst other things at Note 6 as follows:
The Respondent will, when calculating the compensation to be paid as a result of this agreement under s 19 of the Safety, Rehabilitation and Compensation Act 1988 (Cth), include in its calculations indexing as relevant to the Applicant in accordance with the Safety, Rehabilitation and Compensation Act 1988 (Cth), for the incapacity benefits already paid since the date of injury to the date of cessation, the incapacity benefits payable as a result of this agreement from the date of cessation to now and as it applies to any future incapacity benefits payable.
(e) Application for Review 2020/8444 filed on 21 December 2020
(i)The application related to the delegate’s determination dated 25 March 2020 in respect of a claim for compensation made on 23 January 2020 for ‘psychiatric injury’ due to secondary pain, discomfort, loss of function and consequences of the work-related lower back injuries suffered on 14 April 2012 and 13 February 2017 and circumstances leading up to and including termination of his employment with CSIRO.
(ii) On 25 March 2020 the delegate declined the claim for compensation on the basis the Applicant developed his condition as a result of multiple factors including multiple personal relationship issues, complex child custody proceedings, mediation, regular long-distance driving between Cairns and Perth and being made redundant from his CSIRO position.
(iii)On 13 November 2020 the Applicant’s solicitor requested a reconsideration of the determination stating that as a result of his physical injuries the Applicant sustained a psychological injury secondary to chronic pain and disruption of life.
(iv)The determination was the subject of a reconsideration dated 11 December 2020. The Review Officer referred to the reconsideration request and CSIRO’s response to that request dated 4 December 2020 alleging the Applicant abandoned his original argument that the termination of his employment was a causal factor relating to the psychological injury.
(iv)The Review Officer found that the Applicant suffered from depression and anxiety but that those conditions were not significantly contributed to by the Applicant’s employment with CSIRO.
(v)The Review Officer made the following decision:
Decision
I have decided to affirm the determination dated 25 March 2020 and decline your claim for a depressive disorder and anxiety condition under section 14 of the Safety, Rehabilitation and Compensation Act 1988.
The Applicant was advised of his review right to the Tribunal.
S 42C(1) Decision dated 9 May 2022
The Decision of the Respondent dated 26 June 2018 is affirmed.
Section 42C(1) Decisions - Finalisation of the claims for compensation before the Tribunal
By the s 42C(1) Decisions dated 9 May 2022 the Tribunal finalised all applications for review. Those decisions included the Applicant’s entitlement to compensation for his accepted aggravation of L4/5 lumbar spondylosis condition, with a date of injury of 13 February 2017, together with his NWE which, by agreement, did not include any entitlement to the Sea Allowance, and in relation to which the Review Officer had regard to the Applicant’s long service leave and determined that the 2 week period prior to the date of injury as referred to in s 9 of the SRC Act was the correct period to determine the s 19 NWE entitlement.
As can be seen by reference to Note 6 that there was to be a future calculation of compensation payable as a result of the agreement reached, which calculations included indexing for incapacity benefits already paid since the date of injury to cessation of employment, incapacity benefits payable as a result of the agreement from date of cessation to date of the s 42(C)(1) Decision and future incapacity benefits payable.
The Applicant was legally represented in the finalisation of his applications for review. In his evidence before me he acknowledged that he received legal advice and understood the nature and consequences of the resolutions and the s 42C(1) Decisions.
The ROM
The ROM was provided to the Applicant by a Comcare Delegate and referred to an error made in the calculation of the Applicant’s compensation which was part of that process undertaken following the resolution of his applications for review and referred to in Note 6 to the s 42C(1) Decision of the Deputy President in matter number 2020/1745 referred to above.
The delegate there explained the calculation error in regards the NWE. Under heading ‘Reconsideration’ it reads:
Following the Administrative Appeals Tribunal (AAT) decision dated 9 May 2022, we have reviewed your claim and found that your incapacity payments for the period 1 July 2018 to 15 November 2019 have been calculated using the incorrect Normal Weekly Earnings (NWE) amounts as well as not including Centrelink benefits accessed.
NWE
Indexation is the automatic adjustment of wages based on the Wage Price Index (WPI) to compensate for inflation which occurs each year on 1 July under section 8(9C) of the SRC Act. Upon your separation from the Commonwealth Scientific and Industrial Research Organisation (CSIRO), your NWE should have been adjusted as a result of indexation.
The review found that no indexation has occurred since your separation with CSIRO. As such, your NWE has now been indexed and determined as outlined in the table below …
The table referred to annual calculations for the period 1 July 2018 to 1 July 2022. There were 2 attachments to the ROM. ‘Attachment A’ detailed incapacity redeterminations commencing 1 July 2018 to 15 November 2019, and ‘Attachment B’ detailed incapacity determinations from 16 November 2019 to 25 January 2023.
In summary, Attachment A detailed overpayment of incapacity payments and Attachment B referred to the total of underpayments of incapacity payments. After making necessary adjustments including for Centrelink payments, the ROM determined that the Applicant was entitled to back payment of $154,670.21.
Hence, the majority of the ROM re-calculations related to payments for periods that preceded the s 42C(1) Decision of the Deputy President dated 5 May 2022.
Application for Review
The Applicant’s solicitor by letter dated 8 September 2023 summarised the Applicant’s claim and submitted that the Applicant was entitled to the Sea Allowance for payments periods commencing 14 February 2017; namely the day after the aggravation of L4/5 lumbar spondylosis, sustained on 13 February 2017 in relation to the date of injury referred to in the settled applications finalised in the s 42C(1) Decision in proceeding 2020/1745. The letter included a table detailing the total NWE claimed by the Applicant up to 25 January 2023 namely $424,769.90.
In the Applicant’s Statement of Facts, Issues and Contentions (‘SOFIC’) received by the Tribunal on 31 October 2023 the Applicant submitted:
(a)the total amount calculated by way of past incapacity benefits was not an accurate reflection of the Applicant’s actual pre-injury weekly earnings;
(b)the period of annual leave taken by the Applicant prior to the injury date ought be excluded from the Respondent’s calculation of the ‘relevant period’ pursuant to s9(4) of the SRC Act;
(c)in particular, the calculations did not include the Sea Allowance and any related allowances payable as part of the Applicant’s NWE;
(d)in accordance with the CSIRO Enterprise Agreement 2011 – 2014 the Applicant is entitled to the Sea Allowance as set out in Schedule 5 – Duty at Sea Allowance, which allowance calculated by the Applicant needed to be indexed yearly;
(e)the Applicant was entitled to past entitlements for the period 14 February 2017 to 25 January 2023 totalling $424,769.90 but agreed that the refund to Centrelink in the amount of $60,926.93 was to be subtracted; and
(f)the Applicant was paid $109,222.21 for past incapacity and hence there was a shortfall of $254,620.76 less tax to be paid to the Applicant.
It is not submitted by the Applicant that the Respondent’s calculation of the Applicant’s NWE was wrong based on the consent s 42C(1) Decisions in relation to which the Applicant received legal advice and understood the nature and consequence of the decision.
The current Application for review of the ROM is an attempt by the Applicant to again review the NWE and in so doing re-agitate the decision previously made by the Respondent and affirmed by the Decision of the Deputy President. The Applicant raises the same complaints that were previously addressed by the Review Officer in the reconsideration and subsequently affirmed by the Deputy President by consent.

Under heading ‘Issues’ the Applicant submitted the following:
18. What was the applicant's NWE.
19. Whether the applicant is entitled to a seagoing allowance as part of his NWE.
20. Whether the period of leave taken by the applicant pre-injury should be ignored for the purposes of calculating the relevant period and the application of s9(4) of the Act.
21. Whether the respondent ought to exercise its discretion to allow seagoing allowance as part of the applicant's NWE in accordance with s8(5) of the Act
Hence, the Applicant is now inviting the Tribunal to make a decision contrary to the s 42C(1) Decision of the Deputy President namely:
… I have affirmed the determination dated 26 July 2017 and agree that the duty at sea allowance should not be included in the calculation of your NWE; I also consider the two weeks used as the relevant period was correct.
Importantly, the Applicant has not appealed the s 42C(1) Decision on the basis that the Decision of the Deputy President was infected by jurisdictional error and asked for the s42C(1) Decision be set aside. For reasons that I will explain, no fresh evidence has been raised by the Applicant, which enlivens or may enliven a basis to set aside the NWE calculation.
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.
He referred to duties undertaken on vessels in the Torres Strait, and the Kimberley region in about 2005 which enabled him to maintain his Mariner’s Certificate. He was to perform a certain amount of sea time and a certain amount of time on the larger vessel. His Mariner’s Certificate qualification lasted for 5 years. He also said he performed duties on a vessel R V Investigator sailing out of Hobart. He said CSIRO had no vessel approaching the size of that vessel and only operated vessels under 24 metres in length.
The Applicant said in 2010 he was not required to work on the larger vessel and was required to perform his sea time on vessels under 24 meters. He stopped working on the under 24 meter vessels prior to his long service leave which he took in 2016. He agreed the last time he was paid an allowance for the Sea Allowance was for duties performed on 12 June 2015.
He said he undertook those duties on larger vessels during periods of flex leave or annual leave and accepted this work was not part of his contract of employment with CSIRO. He said this arrangement avoided the budget burden on the relevant vessel because his wage was paid by the vessel. The Applicant would take leave to undertake these duties when the vessel was not busy.
The Applicant said he was encouraged to maintain his Mariner’s Certificate for vessels greater than 24 meters which was supported in the APA to work externally from CSIRO.
Since 2016, he has not held a Mariner’s Certificate because of his various medical conditions including his black out and the injuries sustained in 2017. He said for medical reasons he will never hold a Mariner’s Certificate again.
In his statement the Applicant maintained the NWE calculations were incorrect, and not an accurate reflection of his pre-injury weekly earnings, because of the failure to ‘include any seagoing and related allowances payable to me as part of my NWE’. He repeated the complaints previously made in Tribunal proceeding 2017/6587 about the calculation. He also referred to the CSIRO Enterprise Agreement Schedule 5 – Duty at Sea Allowance.[3]
[3] Exhibit B, Tab 6 p 2 [14]-[17].
He stated that:
(a)he was required to undertake other seagoing duties as a contractor outside of his CSIRO work to keep his qualifications current;
(b)this was done with CSIRO consent;
(c)on occasions this work was performed outside the confines of his work for CSIRO;
(d)his ‘duty at sea net weekly allowance as at 1 July 2018 was $388.00’.[4]
[4] Ibid [18]-[21].
The Applicant conceded in evidence that this requirement to undertake the additional duties as described, was raised for the first time in this current application before the Tribunal.
The Applicant also stated that after returning to work on 1 June 2016 after 6 months annual leave he was under stress because (i) he was advised his position was to be made redundant; (ii) of his psychiatric injury in which he was incapacitated for work from 22 December 2016 to 13 January 2017; (iii) sick leave in January 2017; and (iv) the work related injury suffered on 13 February 2017.
However, I note Applicant did not suffer a psychological injury arising out of his employment as referred to in proceeding 2020/8444 in which matter the delegate determined the Applicant developed his condition as a result of multiple factors including multiple personal relationship issues, complex child custody proceedings, mediation, regular long-distance driving between Cairns and Perth and being made redundant from his CSIRO position. That decision was affirmed by the Review Officer and was affirmed by the Deputy President’s Decision on 9 May 2022.
The Applicant accepted in evidence before me that because of his health issues at the time, he decided to settle the applications before the Tribunal and entered into the agreements evidenced in the s 42C(1) Decisions having received legal advice, and that he understood the consequences of the resolution of his claims for compensation.
Hence, the Applicant made a forensic decision to settle all matters in dispute including the NWE calculation which he now seeks to re-agitate by his current application for review.
In relation to the current application, the Applicant said he decided to challenge the NWE calculation because he did not believe his payments were fair and reasonable. He also referred to having some financial difficulties at or about that time having been required to withdraw monies from his superannuation. He said the reason for bringing the application for review was more than just the Sea Allowance but did not detail additional reasons.
In response to the Tribunal, the Applicant said that the vessels he operated for CSIRO were less than 18 metres; sometimes he would take leave to undertake duties on a larger vessel to maintain his Mariner’s Certificate; and this would also reduce the cost to the vessel’s budget which was mainly his wage. The procedure was that the larger vessel was identified on which he was to perform duties; he then formally applied to CSIRO to do so, and performed the duties on flex or annual leave so as not to be a financial burden on the vessel’s budget. The last time he took flex or annual leave to work on a larger vessel was after the birth of his son and in about 2015 but he did not receive the Sea Allowance when he performed duties on a larger vessel. He said prior to that he did not work externally. He does not currently pass the medical requirements to receive a Mariner’s Certificate for any type of vessel. That will not change. He said it was directly related to the black out and back injury.
The Applicant said he was encouraged to work on larger vessels given the prospect of working internationally. That encouragement was the support given in the APA and approval to work externally and again referred to the vessel he worked on in the Torres Strait. That support was from his CSIRO manager.
The Respondent
The Respondent filed a statement of Mr Marouchos dated 15 February 2024 and he gave evidence before me on the interlocutory application. He is currently the Principal Research Engineer for CSIRO and was formerly the Applicant’s supervisor.
Mr Marouchos did not agree that the Applicant was ‘required’ to perform contracting work outside of CSIRO to maintain his higher Mariner’s Certificate qualification or for any other purpose. It was not a requirement that the Applicant engage in external activities. It was a requirement for him to maintain his qualification and CSIRO supported training and development and other opportunities to do so within CSIRO’s work.
Any work conducted outside of CSIRO must be approved as required by standard CSIRO procedure. It was not a requirement he maintain that higher Mariner’s Certificate to perform his duties at CSIRO but he was supported to do so within his CSIRO work duties. He was permitted to do so when on flex and annual leave but that work still had to be approved by CSIRO. The Applicant on a number of occasions made the request to perform that work. Mr Marouchos recalled a number of such requests were approved. However, that contracting work did not form part of his employment duties with CSIRO.
Mr Marouchos said that at the relevant time additional duties were not required to enable the Applicant to meet the Mariner’s Certificate qualification to work on vessels operated by CSIRO. Those vessels were all 18 meters or less in length and there was enough work to maintain the required certificate to skipper and master CSIRO’s vessels.
In regards to the Applicant’s assertion that he was encouraged by CSIRO to pursue qualifications that would permit him to work on a vessel in excess of 24 meters, Mr Marouchos said CSIRO at the time had the coastal vessel fleet with the largest vessel being 18 meters; and a separate 95 meter vessel called the R V Investigator which was a separate operation. Relevantly, the largest vessel CSIRO operated was 18 meters in length. The Applicant was not required to perform duties on any vessel in excess of 18 meters for the purpose of skippering and mastering duties at sea. He was provided with opportunities as an observer to participate in sea going voyages on larger vessels but not in the capacity where those Australian Maritime Safety Authority (AMSA) qualifications would be necessary.
There was no need for the Applicant to have experience in, or qualifications to master vessels larger than 24 meters. He did not discourage it, but he did not say to the Applicant that he should undertake that work.
Certificates or tickets are required to be held for different vessels which are determined by the size of the vessel or the equipment used. For the purpose of the Applicant’s work at CSIRO he was required to hold a Master 5 qualification and a MED 1. To perform master duties on a larger vessel he would be required to perform supplementary training. CSIRO did not require that supplementary training for the purposes of managing the CSIRO fleet. If a person holding a Mariner’s Certificate wanted to maintain a higher qualification certificate or ticket, CSIRO might be supportive depending on the cost involved and the learning and development plan of the person, but CSIRO did not require the additional qualification to be maintained if the qualification did not serve a CSIRO purpose.
That support might include allowing the person to undertake a training course or refresher course, or financial support where the cost was approved and managed by CSIRO. That financial support might include for example, first aid training to maintain a first aid certificate, that was not a prerequisite to the person’s employment, but may be regarded as part of the person’s development. CSIRO may decide to provide the time to enable the person to attend the refresher course and may pay for that course.
Support was provided to the Applicant to maintain his higher qualification including training courses and certifications, and provided time for his refresher training and evaluations by the appropriate authorities.
Mr Marouchos recalled the Applicant being given permission some years ago to sail on the R V Investigator as an observer but not in a formal capacity, to observe science and technical operations conducted by CSIRO on that vessel. The Applicant was supported to join the vessel in Hobart and stay onboard and engage in activities. Mr Marouchos believed CSIRO paid for his return travel to Hobart, related expenses and accommodation and his time visiting and onboard the vessel. Mr Marouchos had no memory of the Applicant attending vessels in Torres Strait or the Kimberly region and did not recognise those descriptions as relevant to any vessel he knew of.
Mr Marouchos confirmed a business purpose is the primary consideration in evaluating requests from staff but was not the exclusive consideration. It is the starting point for training and development which are included in the APA. The training and development is interchangeable with maintaining required skills and qualifications, and growing and developing.
He agreed he discussed qualifications during performance reviews with the Applicant. There was discussion about the Applicant maintaining his higher level qualifications but he did not recall any agreement that CSIRO would meet that standard of qualification. However, there was never a business purpose for the Applicant maintaining that higher qualification and there was no need or projected need in respect of vessels beyond 25 metres in length. He said with all his staff he was always open to discuss their desires for professional development both in the confines of the business needs of CSIRO and also their personal endeavours.
Mr Marouchos said that CSIRO was always looking for new business partners, and in terms of the vessel fleet, to leverage the fleet as it was a national asset and hence, were always looking for opportunities.
Prior to the Applicant’s injury, CSIRO was not looking for opportunities to take vessels outside the Australian Economic Exclusion Zone (‘AEEZ’). That did not align with the coastal fleet’s mandate and the vessels in the fleet are not permitted to exit that zone based on the qualification and certification survey of those vessels. They are restricted to Australian coastal waters only. That was not a conversation that took place with the Applicant. The R V Investigator is a separate operation and not related to the fleet managed by Mr Marouchos. This, and its predecessor the Southern Surveyor, is the only CSIRO vessel permitted to leave the AEEZ.
The contracting work undertaken by the Applicant outside of CSIRO was not a requirement imposed by CSIRO but it was a requirement for him to maintain his higher qualification. However, Mr Marouchos did not agree that he encouraged the outside contract work. It was not necessary for him to maintain his higher level qualification. Insofar as he had qualifications to operate vessels exceeding 24 metres, that did not relate to work performed at CSIRO and it was a matter for the Applicant whether he wanted to maintain that qualification or not. CSIRO did not require him to do so.
Mr Marouchos accepted the Applicant had the qualification to master vessels exceeding 24 meters and he did the contracting work to maintain that qualification but it was the Applicant who requested to undertake contracting work; it was not something CSIRO asked him to do.
Mr Marouchos rejected the proposition that CSIRO was looking for new work which would make use of that qualification. They were not looking for work which required a skipper to operate a vessel greater than 24 meters. There was no such vessel in the fleet, no prospect of ever acquiring such a vessel and no business need to operate a vessel of that size with the exception of the R V Investigator which is a separate operation unrelated to the general CSIRO fleet. The Marine National Facility is a governance construct which oversees the operation of the R V Investigator within CSIRO.
Submissions by the parties
Is the Application for review an abuse of process?
The Respondent
The Respondent submits that re-litigating an issue previously decided by the Tribunal is a recognised category of abuse of process. This can occur when the same factual considerations are raised and there is no change in circumstance or fresh information that may impact upon the material facts considered, and the decision previously made.
Further, it is submitted that a party should not be permitted to frustrate the Tribunal’s processes and those processes should be used for a legitimate purpose which does not include having a second attempt to re-litigate that which has already been decided, without good reason.
The Respondent submits that it was entitled to assume the finality in the earlier proceedings by the entering into the consent orders which brought to an end those issues in dispute. It is also submitted that a relevant consideration is the time and expense to the Respondent in re-litigating that which has already been determined, and time and resources of the Tribunal in hearing the interlocutory application and substantive hearing.
Counsel referred to the decision of the AAT Quinn and Australian Postal Corporation (1992) 15 AAR 519 at 526 namely:
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.

Quinn’s case was cited with approval by the Federal Court in Morales v Minister for Immigration and Multicultural Affairs (1998) FCR 374 at 390 and said that:
… the Tribunal may, in appropriate circumstances, conclude that a previous decision should be applied as the correct and preferable decision when it is sought to revisit the earlier decision at some later time. Of course, the circumstance that a Court has set aside an entire decision may mean that its either impermissible, or quite inappropriate, to adopt such a course but that would be not necessarily be the case where, as here, a particular determination had not itself been the subject of challenge.
Counsel also referred to the Full Court of the Federal Court in Rana v Military Rehabilitation and Compensation Commission [2011] FCACFC 80 at paragraph 27. There the Court was referring to the regard a Tribunal may have to findings of fact made between the parties in earlier proceedings by a same or differently constituted Tribunal, especially after a disputed hearing, and said ‘There must be a limit to the ability of a disappointed party repeatedly to revisit findings once made.’ At paragraph 28, the Court referred to non-exhaustive circumstances where a party should be extended the opportunity to re-agitate findings including:
… where a party was previously unrepresented, but is now represented and where there may now be a more thorough and focussed cross-examination on the evidence; and where a party wishes to adduce evidence which was not previously available. The circumstances may also include those where a subsequent Tribunal simply is of the view that it would not make the same findings a fact. Such a Tribunal may be of the view that the findings of fact previously made may not be wrong; it may simply be of the view that the “correct or preferable” finding is one different from that previously made.
It is submitted those non-exhaustive circumstances do not apply in this application for review.
Counsel referred to the Tribunal’s decision of Eylward and Comcare [2008] AATA 63 in which Senior Member Hastwell at paragraphs 47–58 said the Tribunal was satisfied that the current application purports to re-litigate a matter previously determined by prior consent order and that the principal that the Tribunal should not allow re-litigation extends to consent orders. There was no new compelling evidence to satisfy the Tribunal that the previous consent decision was not the correct and preferable decision, and that the Tribunal should not allow matters to be re-litigated other than in circumstances where justice and fairness or significant new evidence may warrant such re-litigation.
The Respondent submits that when the Applicant received the ROM assessment of the NWE, he was in financial difficulty. He said in evidence it was not reasonable or fair. He was dissatisfied. However, he made a forensic decision. It is submitted there is no new compelling evidence upon which the Tribunal can properly be satisfied that it is appropriate to depart from the earlier correct decision. If there is no new evidence the decision is correct for all time.
Counsel asked the rhetorical question ’What is different in this proceeding to that pursued in the earlier proceeding? The answer must be nothing. It must follow that the correct decision in 2022 remains the correct decision.
The Applicant
Counsel for the Applicant generally accepted the submission of the Respondent in regards to the legal principles referred to above. However, the Applicant submits the decision of Commonwealth of Australia v Snell [2019] FCAFC 57 (Snell) at paragraph 4 provides context in terms of how applications of this type ought be dealt with. This compensation scheme, it is submitted, is a progressive and ever evolving decision-making process.
Counsel referred to the decision of Novosel and Comcare [2017] 72 AAR 269 at paragraph 105 and 3 categories into which abuse of process usually falls, namely:
(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.
Here, it is submitted we are not talking about a liability decision that has been affirmed, or an old claim that is sought to be re-litigated in terms of an injury that has been rejected. This is a matter in which parties are in an ongoing relationship in which the Applicant has an accepted claim and is receiving benefits from the Respondent under the SRC Act.
Litigation did not end 2 years ago, and this application is part of that ongoing relationship. It is submitted there was not finality in the claim as a consequence of the s 42C(1) Decisions of the Deputy President.
In terms of the way this application is framed, it is an application pursuant to s 42B(1)(c) of the AAT Act alleging an abuse of process. It is not an interlocutory decision on the basis that it is frivolous or vexations, or that there is no reasonable prospect of success. The limited basis upon which the application is brought is relevant in the consideration of the Tribunal’s discretion to dismiss the substantive application for review.
It is submitted that the application before the Tribunal is an entirely new decision. Counsel argues that the Applicant is not seeking to reopen the reconsideration decision of 12 September 2017. The Applicant is seeking to review a decision made 6 years later by the Respondent which is the ROM. It is a different decision and consistent with Snell it is an ever-evolving claim process and progressive decision making.
Counsel accepts that there are facts common to the current application and the decision of 12 September 2017 but what needs to be weighed is if this application were to be allowed to proceed, then that resulting decision would be a correct or preferable decision.
Counsel also submits there is more evidence to be presented at the substantive hearing in addition to that evidence received by the Tribunal on the interlocutory application, and the Applicant should not be precluded from the opportunity to present that evidence.
It is also submitted that the ROM decision invites the Applicant to bring the application insofar as it provides the Applicant with his appeal rights to the Tribunal, and by the application for review he now maintains that position.
In terms of new evidence, Counsel referred to the APAs which is a bundle of the Applicant’s performance agreements comprising 39 pages commencing with the 2008 financial year and concluding with the Applicant’s last performance review at the end of the 2015 financial year. Counsel referred to the following:
(a)2008 APA- Objectives No 2 ‘Ensure that all boating and diving activities undertaken by the Division are completed safely and in accordance with the legal and CSIRO policy/procedure requirements.’[5] Objectives No 4 ‘Maintain and develop training programs for Divisional staff involved in boating and Diving operations including the maintenance of professional qualification.’[6]
(b)‘Stage 3 Performance Evaluation – Objective Self Assessment’ and paragraphs 3, 4 and 5. Those paragraphs in summary state that projects have run smoothly without delay; the Applicant has contributed to the delivery of 80 scientific cruises in the financial year; staff are qualified as competent to carry out duties; refers to matters raised with OH&SE officer and manager; and refers to debriefing sessions.[7]
(c)2009 APA Objectives No 2 ‘Maintain and develop training programs for Divisional staff involved in boating and Diving operations including maintenance of personal qualifications.’[8]
[5] Exhibit C; see CSIRO Annual Performance Agreement (05/2007-06/2008), Stage 1 – Performance Planning, Objectives No 2, p 3.
[6] Exhibit C; see CSIRO Annual Performance Agreement (05/2007-06/2008), Stage 1 – Performance Planning, Objectives No 4, p 3.
[7] Exhibit C; see CSIRO Annual Performance Agreement (05/2007-06/2008), Stage 3 – Performance Evaluation, Objective Self Assessment, p 9 para [3]-[5].
[8] Exhibit C; see CSIRO Annual Performance Agreement (07/2008-06/2009), Stage 1 – Performance Planning, Objectives No 2, p 3.
The APAs repeat similar objectives with similar volume of scientific voyages of about 80 each year.
It is submitted that the APAs support the Applicant’s evidence about qualifications required to perform the duties and personal qualification of the Applicant that he was required to maintain. It is part of the agreement and the objectives.
As to the question of new facts to be determined, Counsel submits that it is not clear that new facts must be established but accepts it will help if new facts can be established. The issue, it is submitted, is whether there are facts that have not been considered by the decision maker. Counsel submits there is no reference in the 2017 NWE reconsideration or the 2023 ROM to outside contracting work as evidence of the frequency of which seagoing duty is undertaken, and hence why there should now be consideration of whether the seagoing allowance should be applied to the NWE calculation.
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.
The ROM is a new decision, which was made by the Respondent, to remedy an error identified in the NWE calculation intended to be made according to law and in accordance with the consent s 42C(1) Decision dated 9 May 2022 which affirmed the basis of the calculation.
The Applicant is here using the ROM as a vehicle to revisit the s 42C(1) Decision which affirmed the reconsideration decision dated 12 September 2017.
The submission that the ROM invites the Applicant to bring the application insofar as it provides him with his appeal rights and he now maintains that position, and he therefore should be heard, has no merit. The ROM is a reviewable decision,[9] and a reviewable decision properly informs a party of his or her appeal right. That appeal must be one properly made in regards the reviewable decision. But that does not permit the casting of the net beyond the ROM decision so as to enable a party to re-litigate a consent order made on 9 May 2022, affirming a reviewable decision made on 12 September 2017 about the calculation of NWE which the Applicant now says is not fair and reasonable.
[9] See Safety, Rehabilitation and Compensation Act 1988 (Cth) s 6.
In his application for review, the Applicant does not raise an error in the calculations referred to in the ROM. The Applicant’s complaint is that the calculation was wrong, namely that it is unfair and unreasonable for failure to include the Sea Allowance in the calculation, that long service leave should not be taken into account and that the 2 week period prior to date of injury was not the correct period for the purpose of determining the s 19 NWE entitlement. In other words, challenging the 12 September 2017 reconsideration affirmed by the s 42C(1) Decision of 9 May 2022.
The Applicant said ‘I was required to undertake other seagoing duties as a contractor outside of my work with CSIRO in order to keep my qualifications current.’. I do not accept that evidence. I prefer the evidence of Mr Marouchos insofar as it differed from the Applicant and in relation to the Applicant’s employment and requirement to maintain his professional qualifications. He was not required to perform contract duties outside his employment with CSIRO.
I am satisfied that the Applicant performed duties in respect of vessels less than 24 metres and he was required to maintain the appropriate maritime qualification to perform master’s duties on vessels within that category. That is consistent with the terms of the APA Exhibit C. Albeit the Applicant held a Mariner’s Certificate permitting him to perform master’s duties on larger vessels, maintaining that higher qualification was not a requirement of his employment.
I accept Mr Marouchos’s evidence that CSIRO might, and from time to time were supportive of the Applicant maintaining his higher qualification as described, depending on cost and the learning and development plan of the Applicant. But it was not a requirement that he did so, as it did not serve a CSIRO purpose. It was for the Applicant to apply for approval to undertake contract work outside of CSIRO if he wanted to maintain that higher qualification.
The Applicant’s evidence tends to confirm the evidence of Ms Marouchos. The Applicant said the external contract duties were performed when he was on flex or annual leave, which work was not part of his contract of employment with CSIRO, and his wage was paid by the vessel on which he performed the external contract duties. He further said that time spent on external contract vessels did not form part of the Sea Allowance paid by CSIRO. Hence, the external contract work was separate to his duties of employment with CSIRO, would have had no bearing on the calculation of NWE and was therefore irrelevant the Applicant’s assertion that the calculation was unfair and unreasonable.
Even if the contract work could be used in the calculation of his NWE, the Applicant’s evidence about the maintaining of his qualification at the higher level, or at all, is not fresh evidence. Albeit he raised this evidence for the first time in the current application for review, this was a factual matter well known to the Applicant at the time of the earlier proceedings, and if relevant, could have been raise in argument at that time. He has not explained how it is said that the external contract duties should be factored into the calculation of his NWE. Further, the APA is not fresh evidence. This was also a fact known to the Applicant that could have been raised at the time of the earlier application and s 42C(1) consent decision of the Deputy President.
I agree with Counsel for the Applicant, that it is not appropriate, based on the evidence before me, to make any finding why the Applicant now brings the current application for review, as urged by the Respondent.
I accept that at the time of the s 42C(1) Decision the Applicant was dealing with health and personal issues which played a role in his decision making. It is clear however, that the Applicant made an informed forensic decision having received legal advice and understood the nature and effect of the consent decisions. There is no evidence based upon those personal matters that enlivens a basis to review the s 42C(1) Decision or the reviewable decision dated 12 September 2017 and in particular that the interests of justice and fairness provide any foundation to do so.
The Applicant has not identified that he wishes to adduce evidence that was previously unavailable to him in relation to the calculation of his NWE. That includes the external contract work performed to maintain his higher qualification. Further, in circumstances where the Sea Allowance was excluded from the NWE calculation, whatever relevance the contract work had or may have had to the calculation, does not alter the NWE calculation because the Sea Allowance was excluded.
Having regard to the reconsideration by the Review Officer dated 12 September 2017 and the basis for the calculation of the Applicant’s NWE as affirmed by the s 42C(1) Decision, (including that the Sea Allowance should not be included in the calculation, the consideration of annual leave in the calculation, and that the relevant period was 2 weeks prior to the date of injury), there is no basis to conclude that any finding of fact made or the reasoning in respect of that decision meant that the reviewable decision was wrong, or that the reviewable decision was not the correct of preferable decision requiring a different decision to be made.
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.

I certify that the preceding one hundred and six (106) paragraphs are a true copy of the reasons for the decision herein of Senior Member B J Illingworth

...................[Sgnd]..............................
Date: 28 March 2024

Date of hearing: 27 February 2024

Representative for the Applicant:

Adam Tayler, Counsel
Turner Freeman Lawyers

Representatives for the Respondent:
Paul d’Assumpcao, Counsel
Howard Zelling Chambers

Michael La Vista, Instructing Solicitor
Sparke Helmore

[2024] AATA 553

28 March 2024

Key Legal Topics

Areas of Law

Administrative Law

Employment Law

Legal Concepts

Abuse of Process

Appeal

Jurisdiction

Res Judicata

Statutory Construction