Mitchell and Comcare (Compensation)
[2023] AATA 482
•24 March 2023
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 to Tribunal proceedings, concluding (at [51]) that it did not. The Full Court noted the earlier Full Court decision in Plumb v Comcare (1992) 39 FCR 236 which concluded unanimously (Lockhart J with whom Black CJ and Gummow J agreed) that the Tribunal was not bound by its own earlier decisions.
The AAT Act provides in s 43(6) that a Tribunal decision which alters the reviewable decision takes effect as if it were a new internal review decision, becoming for all purposes the substituted reviewable decision of the Commonwealth body. A later Tribunal standing in the shoes of Comcare under the SRC Act is capable of altering an earlier Comcare or Tribunal decision, by force of s 62 of the SRC Act, a proposition which entails that there is no room for issue estoppel. The conclusiveness of any administrative decision will be affected by the statutory scheme pursuant to which it is made: Godwin v Repatriation Commission [2008] FCA 576; (2008) 168 FCR 471 at [38].
In this case there was an earlier Tribunal decision of a senior member. The present solicitor instructing Ms Grotte of Counsel appeared for the applicant, and Ms Wright of Counsel appeared for the respondent, as Ms Wright does in this review. The applicant desires to submit that the earlier decision of the Tribunal was attended by an irregularity, in that, it is suggested, the applicant was ambushed in the circumstances. The applicant proposes to call evidence on the present review, which, he says, he did not anticipate the need to lead in the earlier Tribunal proceedings. That is an issue which at one stage the applicant sought to raise as a ground of appeal from the earlier Tribunal decision, before the Federal Court. However the applicant discontinued that appeal, a fact on which the respondent wishes to rely in the present application.
The respondent’s application is that the proceedings be dismissed under s 42B(1)(b) or (c ) of the AAT Act, a course which the Full Court in Snell at [78] left open. The respondent relies upon the discontinuance by the applicant of the appeal under s 44 of the AAT Act, referring to Rule 33.31(2) of the Federal Court Rules 2011, which provides that a notice of discontinuance has the effect of an order of the Court dismissing the appeal.
Ms Wright, fairly, did not suggest that Rule 33.31 gives rise to a situation having precedential effect. Rather, she put in her written submissions that the rule “adds additional force and finality” to the earlier Tribunal decision. That submission may not be consistent with the Full Court’s determinations in Snell, especially at [77].
This interlocutory application is not a time to make findings of fact which could affect the final hearing of this matter, either as to underlying facts or as to whether any irregularity affected the earlier hearing before the Tribunal.
The circumstance that the applicant asserts, that an irregularity affected the earlier proceedings for the purpose of seeking to submit that (quite apart from the legal propositions established by the Full Court decision in Snell) the earlier Tribunal decision should be given less weight than would otherwise be the case, seems to me to make it appropriate to refuse the application made by the respondent under s 42B.
Ms Wright submitted that a determination that the earlier proceedings involved a denial of procedural fairness is not open to the Tribunal, if the Tribunal concludes that there was an irregularity of the kind asserted by the applicant, that may affect the weight which it attaches to the reasons published in the earlier decision.
The question whether an irregularity affected the earlier Tribunal proceedings will require a hearing and the hearing will need the additional evidence which the applicant says it needs to call.
As the Full Court said in Snell, an order under section 42B should not be made unless the proceeding is of such a nature that the issues raised should not be accorded a proper hearing. The mere fact that the orders sought would involve a departure from an earlier decision of the Tribunal is not a sufficient objection to the maintenance of the proceedings.
Other submissions made by the respondent (at paragraphs 32 and following of the written submissions dated 6 January 2023) seem to me to be appropriate to be dealt with at a final hearing rather than at this interlocutory application.
For those reasons the interlocutory application under s 42B of the Administrative Appeals Tribunal Act 1975 for dismissal of the application for review is refused.
I certify that the preceding 17 (seventeen) paragraphs are a true copy of the reasons for the decision herein of Deputy President B W Rayment OAM KC
.................................[SGD].......................................
Associate
Dated: 24 March 2023
Date(s) of hearing:
17 February 2023
Date final submissions received:
7 March 2023
Counsel for the Applicant:
Ms E Grotte
Solicitors for the Applicant:
Ian Collins Solicitor
Counsel for the Respondent:
Ms S Wright
Solicitors for the Respondent:
Australian Government Solicitor
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