Moore and Military Rehabilitation and Compensation Commission (Compensation) - [2017] AATA 532

Moore and Military Rehabilitation and Compensation Commission (Compensation) [2017] AATA 532 (24 April 2017)
Division:VETERANS' APPEALS DIVISION
File Numbers: 2016/2608, 2016/3165
Re:Nathan Moore
APPLICANT

AndMilitary Rehabilitation and Compensation Commission
RESPONDENT

DECISION
Tribunal:Senior Member T Tavoularis
Date:24 April 2017
Place:Brisbane

The Applications for Review, specifically proceeding number 2016/2608, and proceeding number 2016/3165 be dismissed pursuant to section 33(1)(a) of the Administrative Appeals Tribunal Act 1975.
.................................[sgd].......................................
Senior Member T Tavoularis
Catchwords
VETERANS AFFAIRS – entitlement to compensation – causal relation between injury and employment – whether application constitutes re-litigation of consent decision – previous consent decision was correct decision – application dismissed
PRACTICE AND PROCEDURE – re-litigation of issues – former resolution of matters of record – effect of an earlier consent decision
Legislation
Administrative Appeals Tribunal Act 1975 (Cth) ss 33, 42C
Safety, Rehabilitation and Compensation Act 1988 (Cth) ss 5A(1), 62
Cases
Bogaards v McMahon [1988] FCA 161
Cullen and Military Rehabilitation and Compensation Commission [2014] AATA 45
Matusko and Australian Postal Corporation [1995] AATA 14
Quinn and Australian Postal Corporation [1992] AATA 668
Telstra Corporation v Hannaford [2006] FCAFC 87
Secondary Materials
Explanatory Memorandum to the Commonwealth Employees’ Rehabilitation and Compensation Bill 1988 cl 60
Report on Progress, Operations and Future Structure (Defence Abuse Response Taskforce, June 2015)
REASONS FOR DECISION
Senior Member T Tavoularis
24 April 2017
INTRODUCTION

This is a decision in relation to an application made by the Military Rehabilitation and Compensation Commission (“the Respondent”) for the Tribunal to dismiss two Applications for Review under section 33(1)(a) of the Administrative Appeals Tribunal Act 1975 (“the AAT Act”).
The Respondent seeks to dismiss two applications by Mr Nathan Moore (“the Applicant”) made on 16 May 2016 and 15 June 2016 in relation to a claim for compensation under the Safety, Rehabilitation & Compensation Act 1988 (Cth) (“the Act”) for injuries the Applicant says he received while serving with the Royal Australian Air Force (“RAAF”).
For the reasons below, I accept the Respondent’s request and accordingly dismiss the Applications for Review before the Tribunal.
BACKGROUND
The Applicant was the victim of an assault at his home on 29 July 2002 while working with the RAAF.[1] In this assault, the Applicant suffered injuries to his face, particularly his jaw.[2] He claims he subsequently developed a psychiatric condition, as well as several other, related, conditions.
[1] Exhibit 2, Applicant’s Statement of Facts and Contentions (“SFIC”), [8].
[2] Ibid, [9].
The Original Claim
The Applicant lodged two claim forms, both dated 30 October 2003, seeking compensation under the Act:
(a)In the first form, the Applicant claimed compensation for a psychiatric condition, being an “adjustment disorder with depressed/anxious mood”.[3]
(b)In the second, he claimed compensation for a “right temporo-mandibular joint dysfunction condition”, a jaw condition.[4]
[3] Exhibit 1, T Documents, T4, pages 24-26.
[4] Exhibit 1, T Documents, T5, pages 27-29
These claims were both rejected by a delegate of the Respondent on 25 February 2005.[5] This decision was reconsidered and affirmed by a delegate of the Respondent on 24 June 2005.[6] The latter of these decisions was a reviewable decision for the purposes of the AAT Act (“the 2005 reviewable decision”).
[5] Exhibit 1, T Documents, T84, pages 371-375.
[6] Exhibit 1, T Documents, T90, pages 381-386.
On 30 June 2005, the Applicant applied for review of the 2005 reviewable decision.
The Applicant and the Respondent filed consent terms with the Tribunal in July 2008. These consent terms were reflected in a decision by the Tribunal dated 30 July 2008, and made under section 42C of the AAT Act (“the 2008 decision”).[7] The 2008 decision, accepting the parties’ consent terms, affirmed the 2005 reviewable decision.
[7] Exhibit 1, T Documents, T93, page 429.
The DART Claim
In November 2012, the Commonwealth Government established the Defence Abuse Response Taskforce (“DART”) to assess and respond to individual cases of abuse in its varying forms, in the Australian Defence Force.
In 2013, the Applicant made a complaint to the DART. After its review of his complaint, the nature of which will be discussed below, the DART granted a reparation payment to the Applicant.[8]
[8] Exhibit 1, T Documents, T94, pages 430-431.
The Present Claims
After his successful application to the DART, the Applicant lodged two further claims for compensation with the Respondent, on 5 December 2013. Again, the Applicant claimed compensation for a psychiatric condition, namely post-traumatic stress disorder (“PTSD”),[9] and a jaw condition.[10]
[9] Exhibit 1, T Documents, T95, pages 432-437.
[10] Exhibit 1, T Documents, T96, pages 438-443.
In what the Respondent contends was an error,[11] it revoked the determination dated 25 February 2005 to refuse the Applicant’s claims and accepted both claims in a determination dated 5 March 2014.[12]
[11] Respondent’s Submissions, [50].
[12] Exhibit 1, T Documents, T98, pages 454-457.
After his success in his initial claims, the Applicant made a further four claims for compensation. They being:
(a)on 8 April 2014, for “bruxism”, secondary to his PTSD,[13] which was accepted on 5 May 2014;[14]
(b)on 29 April 2014, for major depressive disorder a sequela to his PTSD and jaw condition.[15] This claim was accepted on 12 September 2014;[16]
(c)a claim for alcohol dependence, was accepted alongside the claim for major depressive disorder on 12 September 2014.[17] I note that it is unclear on the documents before me whether a claim form for this condition was in fact received; it appears the delegate of the Respondent accepted liability for this condition on the basis of medical evidence provided in support for the claim for major depression alone; and
(d)on or about 29 February 2015 for erectile dysfunction, secondary to his PTSD, major depression and alcohol dependence conditions.[18] This claim was accepted on 12 March 2015.[19]
[13] Exhibit 1, T Documents, T102, pages 468-475.
[14] Exhibit 1, T Documents, T105, pages 486-487.
[15] Exhibit 1, T Documents, T103, pages 476-483.
[16] Exhibit 1, T Documents, T113, pages 513-516.
[17] Exhibit 1, T Documents, T113, pages 513-516.
[18] Exhibit 1, T Documents, T129, pages 562-569.
[19] Exhibit 1, T Documents, T130, pages 586-590.
On 13 May 2016, the Respondent issued a reviewable decision, revoking its determination of 5 March 2014 (“the May 2016 reviewable decision”).
On 16 May 2016, the Applicant lodged an application for review form with the Tribunal, appealing against the May 2016 reviewable decision,[20] which dealt with the claims dated 5 December 2013 for the psychiatric condition (PTSD) and the jaw condition.
[20] Exhibit 1, T Documents, T2, pages 5-12.
On 14 June 2016, the Respondent issued a reviewable decision, revoking its determinations of 5 May 2014, 12 September 2014 and 12 March 2015 (“the June 2016 reviewable decision”).[21]
[21] T Documents for case no 2016/3165, T2, pages 8-11.
On 15 June 2016, the Applicant lodged a further application for review, appealing against the June 2016 reviewable decision.[22] I note that in this application, the Applicant declared “all these above conditions are sequelae to the primary conditions of PTSD and Right Tempro Mandibular Joint dysfunction”.[23]
[22] Ibid, pages 5-7.
[23] Ibid, page 5.
THE ISSUES
The central issue in this case is whether the Tribunal should allow a case to be re-litigated. This question is perhaps the most uncertain aspect of the Tribunal’s jurisdiction. Variously, there have been decisions to the effect that estoppel,[24] and a more informal power arising from section 33 of the AAT Act,[25] can serve as a basis for the Tribunal to dismiss an application where it has previously decided on the issue in dispute.
[24] See for example Bogaards v McMahon [1988] FCA 161.
[25] See for example Re Matusko and Australian Postal Corporation [1995] AATA 14; Quinn and Australian Postal Corporation [1992] AATA 668.
I do not propose to wade into these muddy waters. Rather, I need only make a determination on the grounds on which the Respondent sought to have these applications dismissed – section 33(1)(a) of the AAT Act.[26]
[26] Respondent’s Submissions, [51].
The Applicant sought to draw my attention to the case of Re Matusko and Australian Postal Corporation [1995] AATA 14,[27] where the Tribunal summarised a swathe of authorities on this point, and concluded:
[27] Applicant’s Outline of Submissions, [23].
(a)No formal issue estoppel arises from the Tribunal’s [previous] findings…
(b)The Tribunal should not generally allow re-litigation of issues already decided.
(c)But the Tribunal should use its flexible procedures to allow further consideration of issues where there is a reason to do so, for instance:
(i)     Where there is a different decision,
(ii)    Where there is a clear legislative intent,
(iii)    Where the reconsideration decision is not final,
(iv)   Where there has been a change in circumstances or fresh evidence, or
(v)    Where justice to the parties requires a departure from the general rule.[28] (emphasis added)
[28] Re Matusko and Australian Postal Corporation [1995] AATA 14 (“Matusko”), [35].
I note the abovementioned point (c) in Matusko provides a non-exhaustive and non-definitive list of circumstances where the Tribunal’s discretion to allow further consideration of issues has been enlivened.
Consequently, there is a general rule that the Tribunal should not allow for issues it has previously decided to be re-litigated, unless there is a reason to do so. I am therefore faced with two issues:
(a)whether the issues in the present case are the same issues as were previously decided by the Tribunal in its consent decision in 2008; and
(b)if they are, whether there is a reason for the Tribunal to further consider them anyway.
ARE THE PRESENT ISSUES THE SAME AS THOSE IN THE PREVIOUS PROCEEDINGS?
In its Statement of Facts and Contentions (“SFIC”) in the previous proceedings, the Respondent contended that the issues to be determined in that case were:
(a)Whether the Applicant suffers from a jaw condition namely right temporo-mandibular joint dysfunction condition?
(b)If yes to (a), whether the Applicant’s jaw condition arose out of, or in the course of the Applicant’s Commonwealth employment?
(c)Whether the Applicant has suffered or is suffering from a psychiatric condition?
(d)If yes to (c), whether the Applicant’s psychiatric condition has been materially contributed to by his Commonwealth employment?[29]
[29] Exhibit 3, Respondent’s 2008 SFIC, page 14.
Although of course this is the Respondent’s, not the Tribunal’s summary of those issues, on the basis of the evidence before me, it seems a fair summary of the issues. To put the issues another way, at issue in the previous proceedings was the question of whether each of the conditions claimed by the Applicant, namely a psychiatric condition and a “right temporo mandibular joint dysfunction condition” (jaw condition), satisfied the definition of “injury” contained in section 5A(1) of the Act.
The present case also deals with two separate claims for two separate conditions. I shall deal with each condition now.
With respect to issue (a), the present claim was also for a “right temporo-mandibular joint dysfunction condition”.[30] Consequently, I find that this issue is the same as was decided in the previous AAT proceedings.
[30] Exhibit 1, T Documents, T96, pages 438-443.
With respect to issue (c), the first claim in the application to review the May 2016 reviewable decision was also for a psychiatric condition, namely PTSD. I recognise that this differs from the Applicant’s claim in the previous application, which was for “an adjustment disorder with depressed/anxious mood”.[31] However, I accept Dr Lawford’s evidence, quoted in the Applicant’s Outline of Submissions, that “[i]t appears that his Post Traumatic Stress Disorder initially began soon after the assault and his depressive disorder arose due to the symptoms of Post Traumatic Stress Disorder”.[32]
[31] Exhibit 1, T Documents, T4, pages 24-26.
[32] Exhibit 1, T Documents, T112, page 504.
In light of this evidence, I consider that although couched in different language, the underlying psychiatric condition for which the Applicant seeks compensation remains the same. This is concordant with the fact that the Applicant did not raise the point that this claim may relate to a different condition from that considered in his prior application for review by the Tribunal. Thus, both the prior and present Tribunal proceedings concerned an assessment of the same conditions. It necessarily follows that the next issue was whether the conditions arose out of, or in the course of the Applicant’s employment with the Commonwealth.
I note that it does not appear contentious that the Applicant suffers from the claimed conditions. Rather, the critical issue to his application was (and in the present cases, is) whether there was a sufficiently close nexus between the assault on 29 July 2002 and the Applicant’s Commonwealth employment for the Tribunal to find that the conditions “arose out of, or in the course of” the Applicant’s employment.[33]
[33] This is reflected in points (b) and (d) in Exhibit 3, Respondent’s 2008 SFIC, page 14.
I further note that the determination reconsidered in the May 2016 reviewable decision revoked the decision dated 25 February 2005.[34] The decision dated 25 February 2005 was the same decision that was affirmed in the 2005 reviewable decision which was itself affirmed in the 2008 decision made by the Tribunal. It is therefore apparent to me that there is such a continuity between the present proceedings and those finalised in the 2008 decision that these proceedings raise questions on the same issues as in the previous Tribunal proceedings.
[34] Exhibit 1, T Documents, T98, page 454.
I recognise that the June 2016 reviewable decision is also under review in the present case, in addition to the May 2016 reviewable decision. However, I do not consider that this fundamentally changes the issues under review. Each of the conditions for which the Respondent rejected liability in the June 2016 reconsideration decision is contingent upon the success of the Applicant’s claims for his psychiatric and jaw conditions. Indeed, even in the Applicant’s claim forms for those conditions, he claimed each condition to be “secondary” or “a sequela” to his psychiatric or jaw condition.[35] This is also reflected in the Applicant’s Application for Review of the June 2016 reviewable decision.[36] Therefore, I do not consider that they present new issues for the Tribunal. Rather, they only require a finding of fact by the Tribunal that the Applicant does in fact suffer from these conditions; the core issue, that of causation, remains tied to the psychiatric and jaw conditions.
[35] Exhibit 1, T Documents, T102 pages 468-475; T103, pages 476-483; T129, pages 562-569.
[36] T Documents for case no 2016/3165, T2, page 5.
Consequently, I find that the present proceedings are in relation to issues that have been addressed in the previous proceedings before this Tribunal.
IS THERE A REASON FOR THE TRIBUNAL TO RECONSIDER THESE ISSUES?
I now turn to whether there is a reason for the Tribunal to consider these issues again, after they were determined in the 2008 decision. The Applicant structured his arguments around each of the circumstances listed in point (c) from the aforementioned quote in Matusko. However, as I noted above, that list is not exhaustive. It is rather an indication of the kinds of circumstances which might give the Tribunal a sufficient reason to allow for the re-litigation of an issue.
I will discuss each of the main points raised by the Applicant in turn.
The Delegates’ Original Decisions
I consider that the Applicant’s argument that a different decision is under review here than was in the previous proceedings is correct as a matter of fact. However, I do not consider that, in itself, is sufficient to allow for the re-litigation of this case. Both reviewable decisions regarded substantively the same conditions, with the same point of genesis. At issue in each decision was the causal link between the Applicant’s conditions and his service. Indeed, the May 2016 reviewable decision was made with reference to a determination which revoked the determination being the subject of the 2005 reviewable decision. I note that the same issue of causation lay at the heart of the June 2016 reviewable decision.
I am therefore satisfied that the reviewable decisions are, in and of themselves, sufficiently similar such that, were this case to proceed to hearing, the same issues would be heard as were determined in the 2008 decision.
The Applicant made a second argument in relation to the decisions reviewed in the May 2016 reviewable decision. The Applicant sought to argue that the approach the Tribunal must take is materially different for a decision where liability had been accepted and subsequently rejected, as in the present case, as opposed to where liability had never been accepted, as was the case in the previous proceedings. To this end, the Applicant stated:
It will not be enough for the Respondent to simply point to the consent decision as a basis to dismiss the claim. The Respondent needs to produce material supporting its assertion that the Applicant is no longer entitled to compensation. Whether the Tribunal is satisfied that the Applicant is no longer entitled to compensation can only be fairly decided by it upon the holding of a hearing, not by summary determination.[37]
[37] Applicant’s Outline of Submissions, [40].
The Applicant relied upon the following statement in Quinn and Australian Postal Corporation to support this contention:
It our view, as it is clear from the statutory intention that the respondent can only reconsider a determination where there has been a change in circumstances, it seems justifiable to expect the respondent to be able to produce material in these proceedings supporting its assertion that the applicant is no longer entitled to compensation. There is no strict burden of proof as such but there must be additional evidence to indicate that there has been such a change in circumstances.[38]
[38] Quinn and Australian Postal Corporation [1992] AATA 668 (“Quinn”), [26] (President O’Connor J and Senior Member Barbour).
The Respondent, meanwhile, submitted that the original decision, that was reconsidered in the May 2016 reviewable decision, was simply made in error.[39]
[39] Respondent’s Submissions, [50].
Although the quoted statement from Quinn seems to support the Applicant’s case, a fuller reading of Quinn gives a rather different picture than what the Applicant submitted.[40]
[40] See Quinn [1992] AATA 668, [19]-[25].
In reaching its conclusion in the quoted portion of Quinn, the Tribunal put significant weight on the Explanatory Memorandum to the Commonwealth Employees’ Rehabilitation and Compensation Bill 1988 notes to clause 60,[41] which read:
Subclause 60(1) will permit the Commission or an administering authority, of its own motion, to reconsider a determination, whether or not the determination is or has been the subject of review by the Administrative Appeals Tribunal. The Commission or administering authority may affirm, revoke or vary that determination in such manner as it thinks fit. A determination which has been reviewed by the Tribunal would be reconsidered by the Commission or an administering authority only following a change in the circumstances surrounding the claim.
[41] Ibid, [19].

I note that the Commonwealth Employees’ Rehabilitation and Compensation Bill 1988 has subsequently become the Safety, Rehabilitation and Compensation Act 1988, and that clause 60 is currently reflected in section 62 of the Act.
It is quite clear from the above passage that the Commonwealth Parliament intended that more would be necessary for a Tribunal-reviewed determination to be reconsidered than one that was not subject to a Tribunal review. Thus, in Quinn, the Tribunal was, in my respectful view, right in finding that the respondent had to show there was a change in circumstances before it could reconsider the determination because that determination had been reached after a Tribunal review. Conversely, here, the determination in question – to accept liability for the Applicant’s conditions – not only was not subject to a previous Tribunal review, but was contrary to the finding in that review. The Respondent therefore does not bear the positive burden the Applicant asserts.
Such a burden would have been borne, however, by the delegate of the Respondent in revoking the 25 February 2005 determination, which had been affirmed by the Tribunal in the 2008 decision. The delegate did not consider the 2008 decision.[42] Instead, the delegate relied on the DART decision which I do not consider to be “new evidence” for the reasons outlined below.
[42] Exhibit 1, T Documents, T98, pages 454-457.
In any event, surely section 62 of the Act exists to ensure the Respondent has the capacity to correct decisions it considers erroneous. This is precisely what it contends it did in the May 2016 reviewable decision.[43] Thus, this is not a sufficient reason for the application to not be dismissed.
Has there been a Change in Circumstances or Fresh Evidence?
[43] Respondent’s Submissions, [50]. I note that the June 2016 reviewable decision was made on the same grounds as the May 2016 reviewable decision.
The New Reviewable Decisions
The Applicant contended that the decisions by the Respondent to accept liability, which were subsequently revoked in the May 2016 reviewable decision and the June 2016 reviewable decision, to be relevant changes in circumstances “favouring the Tribunal allowing the Applicant the opportunity to pursue his claims”.[44] The May 2016 reviewable decision dealt with the Applicant’s original claims for his psychiatric and jaw conditions. The June 2016 reviewable decision dealt with his subsequent claims for secondary conditions arising out of the conditions in his original claims. I will address each class in turn.
[44] Applicant’s Outline of Submissions, [51], [66].
I do not consider the acceptance of the Applicant’s claims before they were rejected in the reviewable decision to be a relevant change in his circumstances. As noted above, section 62 of the Act explicitly allows relevant bodies to reconsider their determinations. Further, as recognised by the Applicant,[45] Telstra Corporation v Hannaford establishes that there is a clear legislative intent that decisions as to compensation entitlements not be final.[46] I therefore do not consider that a previous decision to accept liability is determinative of any rights or liabilities of the Respondent after it has been superseded by a subsequent decision, here the May 2016 reviewable decision. This is particularly the case where the decision to accept liability was, as I noted above, flawed.
[45] Applicant’s Outline of Submissions, [49].
[46] Telstra Corporation v Hannaford [2006] FCAFC 87.
With respect to the June 2016 reviewable decision, it appears that after his success in his initial claims, the Applicant made several claims for compensation for conditions relating to his two primary conditions. This includes:
(a)“Bruxism” secondary to PTSD;
(b)Major depressive disorder a sequela to the psychiatric and jaw conditions;
(c)Alcohol dependence; and
(d)Erectile dysfunction secondary to the PTSD.
The Respondent initially accepted liability for each of these conditions. However, on 14 June 2016, it issued the June 2016 reviewable decision revoking this acceptance of liability for all four secondary conditions.
The Applicant has sought to argue that the acceptance and subsequent rejection of his secondary claims constitutes a relevant change in his circumstances.
I do not see how that can be the case. Although they may indicate that greater hardship is currently being suffered by the Applicant, each of these conditions is secondary or a sequela to the conditions subject to the May 2016 reviewable decision. I do not consider either the prior acceptance or the subsequent rejection of these claims to be a relevant change in the Applicant’s circumstances. For the reasons stated above, I find the Respondent acted within its authority in changing its decision. I further find that change of decision and a previous decision to accept liability, is not determinative of any rights or liabilities of the Respondent after it has been superseded by a subsequent decision. Thus, this does not constitute a relevant change in circumstances either.
The DART Decision
The Applicant further relies on the fact he received a payment from the DART as a change in circumstances that favours the re-litigation of this matter.[47] I do not agree. The DART decision operated under a substantially lower standard of proof than the Tribunal. As explained in its June 2015 Report on Progress, Operations and Future Structure:
[A]llegations [were] assessed on the basis of their plausibility which means that, on all the information available to the Taskforce, the allegations [had] the appearance of reasonableness… For this reason, the Taskforce deliberately uses the terms alleged abuse, alleged abuser and alleged mismanager. [48] (emphasis in the original)
[47] Applicant’s Outline of Submissions, [67]-[69].
[48] Report on Progress, Operations and Future Structure (Defence Abuse Review Taskforce, June 2015), 10.
This is a substantially different, and lower, burden than that for the Tribunal.[49] Indeed, this indicates that the DART did not make findings of fact at all. Rather, it operated within a specific, and unique, statutory scheme.
[49] Cullen and Military Rehabilitation and Compensation Commission [2014] AATA 45, [48].
Further, as correctly noted by the Respondent, it appears that the DART made its findings on the basis of the same evidence as was before the Tribunal at the time of the 2008 decision.[50] I cannot recall or locate any evidence or argumentation before me to the contrary.
[50] Respondent’s Submissions, [46].
Finally, the Applicant has also raised the point that official acceptance of widespread abuse in the Australian Defence Force by the DART has fundamentally changed the circumstances of the case. I do not accept that this fundamentally changes the Applicant’s circumstances such that it warrants re-litigation of issues he has already resolved, with the benefit of legal advice, by way of a consent decision in 2008.
Consequently, I cannot give weight to the DART decision as having relevantly changed any of the circumstances of the case.
Nor, in my view, does the DART decision constitute “new” or “fresh” evidence. My recollection of the evidence is that this was conceded by the Applicant at hearing, but given it was relied upon by the delegate in making her decision on 5 March 2014, I will, for the sake of completeness, consider it now.
As noted above, the DART decision was made on the basis of plausibility, on the same evidence as was before the Tribunal when it made the 2008 decision. It was not a finding of fact, but rather that an allegation was plausible. In my respectful view, it would be wholly inappropriate for the Respondent, or the Tribunal making a decision in its place, to rely on such a finding as either evidence or proof and to then make a decision on that basis.
Dr Lawford’s Report
The Applicant has made further mention of a report by a Dr Lawford in 2014, which he claims constitutes “fresh evidence” for the purposes of this decision. Although this report is evidence of a condition suffered by the Applicant, it does not go to the core issue before me – that the conditions he suffered were causally related to his service. All Dr Lawford could do is relate the Applicant’s condition to the assault, not the assault to his service, as would be necessary for the Applicant to succeed in this matter. I note that the Applicant did not rely on this contention at hearing. Consequently, I do not consider it to be sufficient to warrant re-litigating this matter.
The Earley Report
The Earley report into allegations made by the Applicant was handed down on 3 July 2007, and was also a factor in the previous Tribunal proceedings.[51] As noted by the Applicant, neither party challenged a decision by Mr Earley not to provide documents to them or the Tribunal in response to a request made in April 2008.[52]
[51] See: Exhibit 3, Respondent’s 2008 SFIC, [35]-[38]; and Exhibit 2, Applicant’s 2008 SFIC, 20.
[52] Applicant’s Outline of Submissions, [77].
The Applicant now primarily seeks to inquire as to whether Mr Earley had the proper statutory basis for declining to provide them.[53] I am doubtful that this can be considered “fresh evidence”, or a change in circumstances. This is an avenue the Applicant could have explored during the original Tribunal process or indeed at any time in the years since. It is apparent that he did not do so.
[53] Applicant’s Outline of Submissions, [84]-[85].
Further, even if that were not the case, it is not clear to me that Mr Earley, who has already availed himself of the discretion in regulation 102 of the Defence (Inquiry) Regulations 1995 to refuse to provide documentation, would not refuse to provide the documents once again by virtue of a decision that it is “not appropriate” to give the Applicant that evidence.
Consequently, I do not consider this report or its attachments “fresh evidence” for the purposes of this decision.
Other Material
The Applicant further claims he had written diaries, detailing his contact with State and Federal police, which he gave to his former solicitor. He now seeks to rely on these as “fresh evidence”, despite there being no evidence before me that the Applicant has even attempted to make enquiries about them since the previous AAT proceedings. However, he had already tried and failed to obtain these diaries in the previous Tribunal proceedings. I note that the Applicant’s former solicitor had been the subject of disciplinary proceedings for professional misconduct. I do not consider this “fresh evidence”.
Does Justice to the Parties Require a Departure from the Rule?
At the hearing, the Respondent raised the point that the quality of the evidence before the Tribunal in the present application is likely to be worse than that in the previous proceedings. I am inclined to agree. Nearly fifteen years have passed since the Applicant was assaulted. Indeed, it has been nine years since the previous Tribunal decision. Over time, memories fade, people move or die and evidence becomes old and deteriorates, is lost or destroyed. Particularly where the point at issue is one of fact and causation, this gap in time is considerable.
Consequently, I accept that the difficulty and expense of collecting the relevant evidence for the purposes of this case is a prejudice that the Respondent would bear should I reject its application.
The Applicant, in contrast, asserted that justice required that he be given the opportunity to give and call evidence in support of his claims. Although I recognise this is an important consideration, it loses weight when one considers that the Applicant has already had this opportunity, but elected to forsake it when he agreed, on advice, to consent terms, resolving his application in 2008. The Applicant has not pointed to new evidence regarding the causation between his assault and his employment. Rather, he has pointed the Tribunal to evidence already contemplated by the parties in the previous proceedings.
The only new evidence the Applicant has adduced that he has sought to rely on for the purposes of the Respondent’s present application is the report of Dr Lawford. However, because it sheds no light on the causation issue, I am not satisfied that not having the opportunity to present it at hearing would impart any injustice upon the Applicant.
A procedural point arises in relation to the two applications presently before me. To my mind, the question is this: does the dismissal of both applications, as opposed to just the application in respect of the May 2016 reviewable decision, impart an injustice to the parties? On the material before me, it is not clear whether the Respondent sought an order to dismiss both applications. However, be that as it may, the point is to a large extent moot. If I were to dismiss application number 2016/2608, it would render application number 2016/3165 hollow. As recognised by the Applicant in his own Application for Review of the June 2016 reviewable decision,[54] each of the conditions that were subject of that application were “sequelae to the primary decisions of PTSD and Right Tempro Mandibular Joint Dysfunction”.[55] There is, to my mind, no sense subjecting the parties to a continued propounding of the latter proceeding in circumstances where dismissal of the former renders the latter nugatory.
[54] The application that became proceeding number 2016/3165,
[55] T Documents for case no 2016/3165, T2, page 5.
Conclusion: Is there a Reason to Consider these Issues Again?
Having regard to my preceding comments and findings, I cannot find that there is a convincing reason for the Tribunal to revisit the issues resolved in the 2008 decision. The fact the May 2016 reviewable decision and June 2016 reviewable decision were different decisions to that in the previous proceedings is not material here. The Tribunal is still tasked with solving the same questions. Nor is there sufficient new evidence, or a change of circumstances, to warrant re-litigating this case. Finally, justice does not require that the issues resolved in the 2008 decision be re-opened. Consequently, the Applicant has not shown a sufficient reason for the case to be re-litigated.
CONCLUSION
As the Applicant has not provided a sufficiently compelling reason for the Tribunal to allow for his case to be re-litigated, the Tribunal will follow the general rule of not allowing the re-litigation of issues.
I therefore order that the Applications for Review, specifically proceeding number 2016/2608, and number 2016/3165 be dismissed pursuant to section 33(1)(a) of the Administrative Appeals Tribunal Act 1975.

I certify that the preceding 72 (seventy -two) paragraphs are a true copy of the reasons for the decision herein of Senior Member T Tavoularis

...................................[sgd].....................................
Associate
Dated: 24 April 2017

Date of hearing: 28 October 2016

Counsel for the Applicant: Mr A Harding

Solicitors for the Applicant: Terence O’Connor Solicitor

Counsel for the Respondent: Mr C Clarke

Solicitors for the Respondent: Moray & Agnew Lawyers

Date of hearing:	28 October 2016
Counsel for the Applicant:	Mr A Harding
Solicitors for the Applicant:	Terence O’Connor Solicitor
Counsel for the Respondent:	Mr C Clarke
Solicitors for the Respondent:	Moray & Agnew Lawyers