Kothe and Telstra Corporation Limited (Compensation)

[2024] AATA 2412

Kothe and Telstra Corporation Limited (Compensation) [2024] AATA 2412 (9 July 2024)

Division:GENERAL DIVISION

File Number:          2024/1105

Re:Marie Kothe

APPLICANT

AndTelstra Corporation Limited

RESPONDENT

DECISION

Tribunal:Senior Member D. J. Morris

Date of decision:               9 July 2024

Date of written reasons:       12 July 2024

Place:Hobart

For the reasons given orally at the conclusion of the interlocutory hearing of this matter on 9 July 2024, the application lodged on 19 February 2024 is dismissed pursuant to s 42B(1)(c) of the Administrative Appeals Tribunal Act 1975 because I am satisfied the application is an abuse of the process of the Tribunal.

...........................[sgn].............................................

Senior Member D. J. Morris

Catchwords

COMPENSATION – applicant is a former employee of the respondent – applicant applied to tribunal for review of reconsideration decision which declined liability to pay compensation – history of matter – tribunal made decision by consent – applicant lodges further claim for workers’ compensation – respondent denies claim as matter already resolved by consent decision – respondent seeks dismissal – matter already dealt with by decision following consent agreement cannot be revisited – tribunal dismisses matter as an abuse of process

Legislation

Administrative Appeals Tribunal Act 1975 (Cth)

Safety, Rehabilitation and Compensation Act 1988 (Cth)

Cases

Bogaards v McMahon (1988) 15 ALD 313
Kondylas and Comcare; Re: [2014] AATA 553

Negri v Secretary, Department of Social Services (2016) 70 AAR 103

REASONS FOR DECISION

Senior Member D. J. Morris

12 July 2024

WRITTEN REASONS

1. The Tribunal held an interlocutory hearing on 9 July 2024 to consider a request by the Respondent to dismiss the Applicant’s application. At the conclusion of that interlocutory hearing, the Tribunal dismissed the application under s 42B of the Administrative AppealsTribunal Act 1975 (‘the AAT Act’), and said it would provide short written reasons to the parties.

2. In Negri v Secretary, Department of Social Services (2016) 70 AAR 103 (‘Negri’), Bromberg J considered a matter before the Tribunal where an oral decision has been given and a statement of written reasons subsequently provided. In considering the extent to which the Tribunal could edit or elaborate its oral reasons when producing written reasons, His Honour said, at [27]:

   …as long as the reasoning remains consistent, there can be no objection to the provision of a more-elaborate exposition of the same reasoning that was orally explained. What is not permissible is altered or new reasoning. The Tribunal is not permitted to substantially divert from the reasoning upon which its decision was made, but is permitted to explain that reasoning differently and, in doing so, is required to address the matters specified in s 43(2B).

3. Although this is not a decision under s 43(2B), the Tribunal is satisfied that these written reasons reflect the oral decision given at the interlocutory hearing. Consistent with the reasoning in Negri, new reasoning has not been introduced but there is a more detailed explanation as to why the matter was dismissed, which might assist the parties.

   BACKGROUND

4. The history of this matter is relatively lengthy. The Applicant was a long-standing employee of Telstra Corporation Limited (‘the Respondent’) and its predecessor Telecom, commencing in 1988 and finishing in 2007. Initially she worked in the Sydney offices of the Respondent before transferring to its Perth offices in 2001. There she said she encountered bullying and harassment.

5. In 2005, the Applicant submitted a claim for workers’ compensation claiming to have sustained ‘anxiety, depression and insomnia’ as a result of being unfairly treated at work and being placed on a Performance Improvement and Conduct (PIC) process. Ms Kothe claimed to have sustained the condition in January 2005.

6. On 26 April 2005, the Respondent denied liability to pay compensation pursuant to s 14 of the Safety, Rehabilitation and Compensation Act 1988 (‘the SRC Act’) on the basis that the claimed condition arose predominantly from disciplinary action and that the PIC process was excluded at that time under s 4 of the SRC Act. This decision was affirmed by a reviewable decision dated 9 June 2005.

7. The Applicant lodged an application for review with the Tribunal in July 2005 (2005/250). In August 2006 she withdrew this application. In October 2006, the Applicant applied to the Tribunal for application 2005/250 to be reinstated (2005/323).

8. On 23 February 2007 application 2005/323 was dismissed by the Tribunal. Deputy President Hotop decided that the Tribunal had no jurisdiction to consider the application for review because, on that date, the Applicant withdrew her application for an extension of time to lodge her application for review (TD, p 64-65).

9. In April 2008, the Applicant lodged a further claim for workers’ compensation claiming to have sustained ‘depression and post traumatic stress disorder’ and her solicitors submitted that her condition arose as a result of several factors and not the disciplinary process, with an onset of January 2005 and a confirmed diagnosis in July 2005.

10. In May 2008 Allianz, acting on behalf of the Respondent, declined to issue a determination, given that the claim had been determined in April 2005 and subsequently dismissed by the Tribunal. The Respondent noted that this decision does not appear to be a former determination within the meaning of s 61 of the SRC Act but it has subsequently been treated as such.

11. In June 2008, Ms Kothe’s then solicitors requested that the decision to reject her claim and deny liability be reconsidered on the basis that the Respondent had indicated in a ‘Four Corners’ television programme that the PIC process was not disciplinary in nature.

12. On 16 July 2008, Allianz on behalf of the Respondent affirmed the purported determination dated 14 May 2008.

13. Ms Kothe lodged a further application with the Tribunal on 19 September 2008 (application 2008/4319) in respect of the 16 July 2008 decision.

14. On 30 September 2009, the Applicant lodged a claim for permanent impairment in respect of the claimed psychiatric condition.

15. On 23 September 2009, Allianz on behalf of the Respondent denied liability to pay compensation for permanent impairment for ‘depression’ sustained in January 2005. On 1 October 2009, this decision was affirmed by a reviewable decision.

16. Ms Kothe lodged an application with the Tribunal in respect of the 1 October 2009 decision (application 2009/4873).

17. On 26 October 2009, the Tribunal made a decision by consent in relation to application 2008/4319. The Tribunal (Deputy President Hotop) set aside the reviewable decision of the Respondent dated 16 July 2008 and decided as follows (TD, pp 76-77):

    (a)The Respondent is liable under s 14 of the SRC Act to pay compensation to the Applicant for adjustment disorder with depressed and anxious mood, date of injury 31 January 2005 (‘Injury’);

    (b)The Respondent is liable to pay compensation to the Applicant for medical and related expenses pursuant to s 16 of the SRC Act in the total amount of $5,000.00 ($1,162.30 of this amount to be paid to Medicare Australia);

    (c)The Respondent is liable to pay compensation to the Applicant for incapacity pursuant to Part II Division 3 of the SRC Act from 31 January 2005 for a period which entitles the Applicant to incapacity payments of $16,400.00 (‘incapacity period’);

    (d)By at least 30 November 2007 (‘Date of Recovery’) the Applicant had recovered from the injury and the effects of the injury had ceased, and from 30 November 2007 to the date of this decision the Applicant has not suffered from the injury or from any compensable sequelae of the Injury;

    (e)To the extent that the Applicant has suffered from any psychiatric or like condition which is outside the boundaries of normal mental functioning and behaviour in the period from the Date of Recovery to the date of this decision, that psychiatric or like condition did not arise out of, or in the course of, the Applicant’s employment with the Respondent, nor was that psychiatric or like condition contributed to by her employment with the Respondent;

    (f)The Applicant is not entitled to receive any compensation in respect of medical treatment and related expenses that were incurred from the Date of Recovery to the date of this decision;

18. Deputy President Hotop also made a decision by consent in relation to application 2009/4873 (that is, the permanent impairment claim). The Tribunal set aside the reviewable decision of the Respondent dated 1 October 2009 and, in substitution decided:

    (a)Prior to the Date of Recovery, the Injury resulted in the Applicant suffering permanent impairment, the degree of which is 10% under Table 5.1 of the Guide to the Assessment of the Degree of Permanent Impairment (Second Edition);

    (b)By reason of the matters set out [in the preceding paragraph], the Applicant is entitled to compensation for impairment and non-economic loss in the amount of $40,744.79 pursuant to ss 24 and 27 of the SRC Act);

    (c)Except for the matters set out [in the two preceding paragraphs], at the present date the Applicant has suffered no other permanent impairment related to the Injury.

    (d)The Tribunal orders, pursuant to s 67(8) of the SRC Act, that the Respondent pay the Applicant’s legal costs and disbursements fixed in the amount of $5,000.00 (inclusive of GST).

19. On 4 August 2017, the Applicant submitted a workers’ compensation claim contending she had sustained ‘post traumatic stress disorder along with severe symptom [sic] of anxiety and depression’ as a result of ‘unprecedented behaviour from Telstra management and staff; victimisation, prejudice and bias [sic] behaviour; … they persecuted me because of my conviviality; discrimination and sheer bullying’, which was sustained in May 2005.

20. On 20 September 2017, the Respondent advised Ms Kothe that the injuries subject of the 2017 claim had already been dealt with previously and resolved by the consent decision dated 11 October 2009.

21. On 12 April 2018, the Applicant lodged a further claim for workers’ compensation claiming to have sustained PTSD as a result of ‘constant bullying, intimidation and injustice from Perth DSC Telstra management’ which she said she first noticed in 2005-06. The Applicant indicated she had not suffered a previous similar symptom, injury or illness and never claimed compensation for a similar injury or illness.

22. On 28 June 2018, the Respondent made a determination declining liability to pay compensation in respect of the claim for compensation received in April 2018, on the basis that the injuries the subject of the claim were the result of previous Tribunal proceedings and that the consent decision had found that the Applicant’s injury had resolved by 30 November 2007.

23. On 28 November 2023, Ms Kothe requested a copy of the 28 June 2018 determination, and a copy was sent to her the following day.

24. On 8 December 2023, the Applicant submitted a further claim for workers’ compensation and a request for reconsideration of the June 2018 determination. She stated in her request that this was her third attempt to get recognition and justice and that she had not lodged a request for reconsideration for the previous five and a half years as she had undergone a number of surgeries and her recovery and rehabilitation had been lengthy.

25. On 22 December 2023, the Respondent granted an extension of time to request a reconsideration of the June 2018 decision.  On the same date, the Respondent issued a reviewable decision which affirmed the June 2018 decision. The decision-maker found that the Applicant had been compensated for her claimed injuries by the consent decision in applications 2008/4319 and 2009/4873 and that she had not sustained a further injury that would require the Respondent to determine liability.

26. On 19 February 2024, the Applicant lodged with the Tribunal an application for review of the 22 December 2023 decision.

27. In her application to the Tribunal, the Applicant wrote the following as to why she considered the reviewable decision was wrong:

    “My compensation expectations were not met, I was told that my work compensation claims were rejected. I am still suffering from trauma caused working at Telstra Perth CSC between 2001-2007 when I experienced racism after transferring from Sydney where I worked for 27 years. I need social justice for the harm and hurt.

    It seems that my claim was never recognized previously, happily overlooked and unconscious bias and have bene put under the carpet. Telstra CEO Sol Trojillo was in command at that time, he eliminated 10,000 jobs and took back home to America or Mexico $11.1 million.

    I was refused a redundancy package instead was shown the door to exit which I had to after being diagnosed PTSD by Dr Lawrence Bloomberg (Psychiatrist Perth).”

28. On 28 May 2024, the Respondent wrote to the Tribunal seeking an order under s 42B of the AAT Act. Telstra Corporation Limited contended that in the light of the Tribunal’s decision of 26 October 2009, the current application was lacking in substance, has no reasonable prospect of success and is otherwise an abuse of process of the Tribunal. On 31 May 2024, the Respondent followed this request up with written submissions.

    HEARING

29. The Tribunal conducted an interlocutory hearing on 9 July 2024 to consider the Respondent’s request for dismissal. The Applicant represented herself. The Respondent was represented by Ms Shelley Johnson of HBA Legal.

30. The Tribunal had before it the following documents:

    (a)Application for review, lodged 19 February 2024;

    (b)Applicant’s Statement of Issues, Facts and Contentions on dismissal, lodged 5 July 2024;

    (b)       Reviewable decision by Telstra Workers Compensation dated 22 December 2023;

    (c)       Respondent’s submissions on dismissal, dated 31 May 2024;

    (d) Documents (‘TD’) lodged under s 37 of AAT Act (in four parts);

    (e)Letter dated 1 May 2024 from Stephanie Chu, psychologist of Hallam Medical Group;

    (f)Christmas card dated December 2021 from a former colleague at Telstra office Perth;

    (g)Written statement from a friend who is a retired Australian Federal Police officer, not dated.

    ORAL SUBMISSIONS

31. Ms Johnson said the Respondent would rely on written submissions. She said that the Applicant made a claim which was resolved by an agreement by consent in October 2009, and that the agreement was made while Ms Kothe had the benefit of legal advice. Ms Johnson noted that the Applicant said she is dissatisfied that her expectations were not met but, if so, she should have taken steps at that time, and that Telstra Corporation Limited would be prejudiced by re-agitation of the claim, and was entitled to rely on the 2009 decision.

32. Ms Kothe said the consent agreement ‘overlooked a lot of issues.’ She said that racism in the workplace was her main issue. She said she was seeking recognition for social justice which she felt had been swept under the carpet and ignored. She said she had been abused psychologically while working for Telstra in Perth.

33. The Tribunal asked whether the Applicant agreed to the consent agreement terms in 2009. Ms Kothe said she was under medication at the time but ‘remembered receiving money.’ She said:

    “Work Claims Australia was dealing with the union. They didn’t deal with the issue; not well enough. I was under medication and not fully understanding of what was happening. I was not well-represented. They overlooked a lot of things. I was treated differently because of my skin colour. I don’t recall signing anything in 2009.”

34. The Tribunal explained that the terms of agreement may have been signed by the Applicant’s representative on her behalf, and a search of the Tribunal’s system did not reveal the original terms of agreement because of the age of the case, but did show a signed copy of the decision of a Deputy President, which would have reflected whatever the terms of agreement were, provided the Deputy President was satisfied they were within power of the Tribunal, lawful, and appropriate.

35. Ms Kothe said she did not deny receiving money from the Respondent at the time, ‘in dribs and drabs.’

36. The Tribunal explained that there were other avenues for her to pursue any claims of racism in the workplace, if she felt discriminated against, but that such claims were not included in the 2009 agreement because they would be outside the scope of the compensable ‘injury’ under the SRC Act.

    CONSIDERATION

37. In this matter, it is not disputed that Ms Kothe suffered from a psychiatric condition, and that condition was contributed to by her employer. That was conceded by the Respondent in its submission to the terms submitted to the Tribunal, jointly signed by Telstra Corporation Limited and the Applicant’s solicitor, in 2009, which was the subject of the decision made by Deputy President Hotop on 26 October 2009.

38. The problem for the Applicant, now, is that she is seeking to re-open a matter that has already been dealt with by the Tribunal. She submits that this is a different condition, and that she is entitled to pursue a claim for compensation.

39. However, as can be seen from the terms of the agreement made by consent by the Tribunal, exercising the powers under s 42C of the AAT Act in October 2009, the parties (including the Applicant) agreed at that time that she had recovered from the compensable injury by 30 November 2007 and – and this is important to note – that she had not suffered from the injury or any compensable sequelae of the injury thereafter.

40. The Tribunal may accept that Ms Kothe remains aggrieved at what she perceives was her treatment while she worked at the Perth office of the Respondent. She has furnished a Christmas card from a colleague who apparently worked with her at that time, commiserating for what the colleague suggests are failures of management towards Ms Kothe. The Applicant has also provided a written statement from a retired police officer who was a colleague of her husband and a friend who had a broad understanding of Ms Kothe’s employment background. I accept that these people are well-intentioned and wanting to support the Applicant.

41. However, the fact is that the Applicant, through her legal representatives, agreed to the terms of the s 42C consent agreement made by the Tribunal in October 2009. Although she said she was on medication and did not remember the precise terms of the agreement, there is no satisfactory evidence before me that she was being overborne at the time or being induced to agree to an unreasonable or inappropriate decision. Where the Tribunal makes a decision under s 42C of the AAT Act, it is important to keep in mind that the Member who makes the decision does not do so as an automaton. The Tribunal is required to satisfy itself of a number of things. First, it must have an agreement before it as to the terms of a decision that is acceptable to the parties (s 42C(1)(a)). Second, the agreement must be in writing and signed by or on behalf of the parties and lodged with the Tribunal (s 42C(1)(b)). Third, the Tribunal must be satisfied that a decision in the terms the parties suggest or consistent with those terms would be within the powers of the Tribunal (s 42C(1)(c)) – and finally, at the end of s 42C(1) – there is an additional onus on the Tribunal Member, that he or she has a discretion to make a decision relevant to the suggested terms, if it appears to him or her to be appropriate so to do. It is always open to a Tribunal member to refuse to accept terms of agreement and to insist that the matter proceed to substantive hearing.

42. The effect of the Tribunal making a decision exercising the discretionary power under s 42C means that a decision is made on the particular application for review the subject of the reviewable decision. That can be taken from the provisions of s 42C(2) where the Tribunal can make such a decision without holding a hearing into the proceeding or, if a hearing has commenced, without completing the hearing. My view is that the inevitable consequence is that where s 42C terms of agreement have been submitted, and the Tribunal has accepted, or generally accepted, those terms and incorporated them into its decision, this ends the Tribunal’s role in relation to the particular application for review.

1. There is one caveat to that view, and that is the inclusion in the AAT Act of s 42C(5) which permits either the variation or revocation of the terms of an agreement. But in such a case, again the parties must agree to the terms of the variation or revocation and must submit them in writing to the Tribunal, and the Tribunal Member must decide two things: that the variation or revocation is appropriate and, secondly, where it is a variation, that it would have been (i.e., looking backwards) within the powers to have made the decision as varied.

2. The Respondent drew my attention to the decision of Senior Member Illingworth in a recent case, Re: Kondylas and Comcare [2024] AATA 553 (‘Kondylas’). In that case, Mr Kondylas had brought five applications for review to the Tribunal. All of them were resolved by consent agreements between the parties where the terms were submitted under s 42C and subsequently became a decision of the Tribunal in those terms. One of them related to the Applicant’s Normal Weekly Earnings (‘NWE’) and included that this calculation did not include a Sea Allowance. The Applicant sought in subsequent proceedings before the Tribunal to revisit that. SM Illingworth said, at [94]:

   …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.

3. The learned Senior Member went on to say, at [102]:

   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.

4. With respect, I agree with the general conclusions of the learned Senior Member in Kondylas. There is no evidence before me that Ms Kothe did not understand the terms of the 2009 consent agreement. The Respondent is entitled to consider that the matters which were the subject of that agreement between the parties, which were then solidified in a decision of the Tribunal, have been finalised.

5. Perhaps more importantly, in the absence of some stark evidence before me that might shed doubt on the terms of the 2009 agreement put before the learned Deputy President at that time, I consider the Tribunal is precluded from revisiting the matter finalised at that time. This question was considered by Pincus J in Bogaards v McMahon (1988) 15 ALD 313 (‘Bogaards’). That matter concerned a case where a Tribunal Member had decided to revisit previous s 42C consent order decisions he had previously made which directed a workers’ compensation delegate to make a particular determination. The Federal Court of Australia was asked to issue a writ of prohibition to prevent the Member revisiting them. The Court did issue such a writ, with His Honour first considering whether the Tribunal was estopped from revisiting its orders, and then relevantly saying, at [49]:

   I have come to the conclusion, however, that it is inappropriate to determine, in this case, the application of the doctrine of issue estoppel to decisions of the A.A.T. As I remarked during the course of argument, it might have been more convenient if this important question had been raised in the first instance before a Full Court. It is true that there is a likelihood, perhaps sufficient to ground a declaration, that in the immediate future will need to be a decision on the question whether the view of the law "assumed" (to use the terminology in Mr Kelly's article) by the consent orders of the A.A.T. can be departed from, as to this applicant's injury. But the only question immediately before the Court is whether the Tribunal has jurisdiction to review the determination of the Commissioner's delegate, made strictly in accordance with the orders of the Tribunal. The determination carries the applicant's right to compensation a few weeks beyond the dates mentioned in the last order of the Tribunal, but the determination is nevertheless one directly implementing the Tribunal's orders. The Tribunal cannot review the determination on the ground sought to be raised, whether or not inhibited by issue estoppel, because it has already dealt with that precise dispute.

   (Emphasis added.)

6. Essentially, the psychological condition which the Applicant claimed were brought about in her workplace at Telstra in Perth were accepted as compensable by the Respondent in October 2009, and Ms Kothe accepted not only the terms of the compensation payable to her then, but also that the conditions had resolved by the end of November 2007.

7. I therefore have concluded that the application now brought seeks to reagitate matters which have been dealt with by the Tribunal to finality, or to use the terminology of His Honour in Bogaards, the Tribunal has already dealt with the dispute the Applicant seeks to reopen by its October 2009 decision. I accept that Ms Kothe is not pursuing this matter with any malevolent or vexatious motivation, but I conclude that to allow this application to go forward to a substantive hearing would facilitate an abuse of process, given the matter has been dealt with to finality.

8. Therefore, the Tribunal has decided to dismiss the application, because it is satisfied that the application lodged by Ms Kothe on 19 February 2024 is an abuse of the process of the Tribunal.

   DECISION

9. The application for review lodged on 19 February 2024 is dismissed under s 42B(1)(c) of the AAT Act because I am satisfied the application is an abuse of the process of the Tribunal.

I certify that the preceding 51 (fifty-one) paragraphs are a true copy of the reasons for the decision herein of Senior Member D. J. Morris

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Associate

Dated: 12 July 2024

Date of hearing:	9 July 2024
Applicant:	Self-Represented
Solicitor for the Respondent:	Ms Shelley Johnson of HBA Legal