Mitchell and Comcare (Compensation) - [2023] AATA 482

Mitchell and Comcare (Compensation) [2023] AATA 482 (24 March 2023)
Division:GENERAL DIVISION
File Number(s): 2021/9569
Re:Albertus Mitchell

APPLICANT

AndComcare
RESPONDENT

DECISION
Tribunal:Deputy President B W Rayment OAM KC
Date:24 March 2023
Place:Sydney

The interlocutory application under s 42B of the Administrative Appeals Tribunal Act 1975 (Cth) for dismissal of the application for review is refused.

.................................[SGD].......................................
Deputy President B W Rayment OAM KC
CATCHWORDS

WORKERS’ COMPENSATION – s 42B of the Administrative Appeals Tribunal Act 1975 (Cth) – previous application for review to the Tribunal – previous application affirmed by the Tribunal – assertion that an irregularity affected the earlier proceedings – application for dismissal refused

LEGISLATION

Administrative Appeals Tribunal Act 1975 (Cth)

Federal Court Rules 2011 (Cth)

Safety, Rehabilitation and Compensation Act 1988 (Cth)

Seafarers Rehabilitation and Compensation Act 1992 (Cth)

CASES
Commonwealth of Australia v Snell [2019] FCAFC 57; (2019) 269 FCR 18
Godwin v Repatriation Commission [2008] FCA 576; (2008) 168 FCR 471
Plumb v Comcare (1992) 39 FCR 236
REASONS FOR DECISION
Deputy President B W Rayment OAM KC
24 March 2023

The respondent has applied for an order under s 42B of the Administrative Appeals Tribunal Act 1975 (the AAT Act) dismissing the application for review made by the applicant.
Section 42B provides as follows:
42B Power of Tribunal if a proceeding is frivolous, vexatious etc.
1The Tribunal may dismiss an application for the review of a decision, at any stage of the proceeding, if the Tribunal is satisfied that the application:
(a)is frivolous, vexatious, misconceived or lacking in substance; or
(b)has no reasonable prospect of success; or
(c)is otherwise an abuse of the process of the Tribunal.
2If the Tribunal dismisses an application under subsection (1), it may, on application by a party to the proceeding, give a written direction that the person who made the application must not, without leave of the Tribunal, make a subsequent application to the Tribunal of a kind or kinds specified in the direction.
3The direction has effect despite any other provision of this Act or any other Act.
The respondent puts the case under s 42B(1)(b) and (c).
In Commonwealth of Australia v Snell [2019] FCAFC 57; (2019) 269 FCR 18 the Full Court of the Federal Court dealt with issues arising under s 78 of the Seafarers Rehabilitation and Compensation Act 1992, a provision which is cognate with s 62 of the Safety Rehabilitation and Compensation Act 1988 (the SRC Act). By that means, what was said in Snell directly applies to the present case.
In Snell, the Full Court heard an appeal from the Tribunal under s 44 of the AAT Act, where the Tribunal had discussed the proceedings before it in relation to an earlier Tribunal decision between the same parties, and considered whether the earlier decision resolved issues then arising between the same parties in the review before it.
The Full Court discussed whether issue estoppel applied…

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 Mitchell and Comcare (Compensation)

Details

AGLC: Mitchell and Comcare (Compensation) [2023] AATA 482
Case: [2023] AATA 482
Decision Date: 24 March 2023

CaseChat Overview and Summary

The Administrative Appeals Tribunal (AAT) considered an application by Mr Mitchell concerning a previous decision that affirmed an earlier determination. Mr Mitchell asserted that an irregularity had affected the prior proceedings before the Tribunal. Comcare opposed the application.

The central legal issue before the Tribunal was whether an irregularity had occurred in the earlier proceedings, as alleged by Mr Mitchell, and if so, what the consequences of such an irregularity would be for the previous decision. The Tribunal was required to determine the scope and application of section 42B of the *Administrative Appeals Tribunal Act 1975* (Cth) in the context of Mr Mitchell's claim.

Deputy President Rayment Oam Kc P reasoned that section 42B of the *Administrative Appeals Tribunal Act 1975* (Cth) provides a mechanism for the Tribunal to set aside a decision if it is satisfied that an irregularity has occurred that has caused or may cause substantial injustice. However, the Tribunal found that Mr Mitchell had not established that any irregularity had occurred in the earlier proceedings. Consequently, the application for dismissal of the previous decision was refused.

Orders