Novosel and Comcare
[2015] AATA 476
•2 July 2015
Novosel and Comcare (Compensation) [2015] AATA 476 (2 July 2015)
Division GENERAL DIVISION File Number
2015/0877
Anthony Novosel
APPLICANT
And
Comcare
RESPONDENT
Decision
Tribunal Dr James Popple, Senior Member
Date 2 July 2015 Date of written reasons 2 July 2015 Place Canberra The application is dismissed under ss 42B(1)(b) and (c) of the Administrative Appeals Tribunal Act 1975.
............................[sgd]............................................
James Popple, Senior Member
Catchwords
PRACTICE AND PROCEDURE — Proceedings — whether application is an abuse of process — whether application has no reasonable prospect of success — whether Applicant may relitigate issues — prior applications finalised by consent — no new evidence to suggest result would be different — application dismissed — whether direction should be made that no further application be made without leave of Tribunal — no direction made.
Legislation
Administrative Appeals Tribunal Act 1975, ss 2A(c), 42B
Safety, Rehabilitation and Compensation Act 1988, ss 14, 16, 19
Tribunals Amalgamation Act 2015, Schedule 1, item 116; Schedule 9, item 15AA
Cases
Quinn and Australian Postal Corporation (1992) 15 AAR 519
Reasons for decision
James Popple, Senior Member
2 July 2015
On 2 July 2015, I conducted a hearing in this matter. I gave my decision, and my reasons, orally at that hearing. These are the written reasons for my decision. They differ from the reasons given orally only by the addition of this paragraph, and of headings and notes. My reasons have been prepared having regard to the requirement, in s 2A(c) of the Administrative Appeals Tribunal Act 1975 (the AAT Act), that the Tribunal pursue the objective of providing a mechanism of review that is proportionate to the importance and complexity of the matter.
Background
Comcare seeks an order dismissing this application for review under s 42B of the AAT Act. Section 42B was repealed and substituted on 1 July 2015 by the Tribunals Amalgamation Act 2015.[1] The new provision applies including in relation to proceedings (like this application for review) that commenced before 1 July.[2] Section 42B now provides:
[1] Schedule 1, item 116.
[2] Schedule 9, item 15AA.
42B Power of Tribunal if a proceeding is frivolous, vexatious etc.
(1)The 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.
(2)If 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.
(3)The direction has effect despite any other provision of this Act or any other Act.
Comcare seeks an order under s 42B(1) and a direction under s 42B(2). Comcare says that Mr Novosel is attempting to relitigate a matter that the Tribunal has previously determined.
Previous decisions by agreement
On 28 October 2011, the Tribunal[3] made a decision, by agreement, in a matter between Mr Novosel and Comcare.[4] That first decision covered:
·Mr Novosel’s entitlement to compensation:
ounder s 16 of the Safety, Rehabilitation and Compensation Act 1988 (the SRC Act) (which is about compensation in respect of medical expenses etc.); and
ounder s 19 of the SRC Act (which is about compensation for injuries resulting in incapacity for work)
for an injury to his left knee; and
·costs.
[3] Creyke SM.
[4] Application 2010/5559.
On 1 May 2014, the Tribunal[5] made a decision, by agreement, in three other matters between Mr Novosel and Comcare.[6] That second decision covered:
·Comcare’s liability to pay compensation to Mr Novosel under s 14 of the SRC Act for injuries to his left knee and his right knee;
·Mr Novosel’s entitlement to compensation under s 16 of the SRC Act for the injury to his left knee; and
·costs.
[5] Creyke SM.
[6] Applications 2013/1438, 5464 and 5465.
In making the first decision, the Tribunal noted that the parties agreed that the effects of Mr Novosel’s left knee injury had resolved as at 28 October 2009, and did not give rise to an entitlement to compensation under ss 16 or 19.
In making the second decision, the Tribunal noted that the parties agreed that, as at 27 November 2013, Mr Novosel did not have a present entitlement to compensation under ss 16, 19, 24, 27 or 29 of the SRC Act in respect of the right knee injury.
The current application
In this current application, Mr Novosel argues that Comcare is liable under ss 16 and 19 in respect of his left knee for the period since 28 October 2009.
Mr Novosel says that he should be able to raise these issues in this review because of a report prepared by Professor Robert Oakeshott, an orthopaedic surgeon, on 27 November 2013. In that report, Mr Novosel says, Professor Oakeshott reversed his previous negative assessment of Mr Novosel’s case. Mr Novosel says that both the first and second decisions were substantially influenced by Professor Oakeshott’s previously expressed opinions.
That may be true in relation to the first decision. But the second decision was made more than five months after Professor Oakeshott’s report. The second decision makes no reference to liability under s 19 in relation to Mr Novosel’s left knee. Mr Novosel says that that issue was not before the Tribunal in a practical sense, because it was not the subject of negotiation leading to the second decision. But it was before the Tribunal in the sense that it would have been open to the Tribunal to make a decision about the issue had the relevant application[7] proceeded to hearing. When the second decision set aside the relevant reviewable decision and substituted it with a decision that made no reference to s 19, that issue must be taken to have been resolved in Comcare’s favour. This means that Mr Novosel is seeking in this application to relitigate an issue that has been resolved between him and Comcare.
[7] Application 2013/1438.
As the Tribunal said in Quinn and Australian Postal Corporation, “[t]he Tribunal should not generally allow relitigation of issues already decided”.[8] I think that Mr Novosel’s relitigation of the issue of Comcare’s liability under s 19 of the SRC Act in relation to his left knee amounts to an abuse of process for the purposes of s 42B(1) of the AAT Act.
[8] (1992) 15 AAR 519 at 526 per O’Connor J and Barbour M.
In any event, in my view, Mr Novosel’s application has no reasonable prospect of success. One of my reasons for coming to that view is the manner in which the issue that Mr Novosel is attempting to relitigate was resolved against him. The second decision was made when both parties had the benefit of Professor Oakeshott’s report of 27 November 2013. His earlier evidence was not the only evidence that was unfavourable to Mr Novosel. In coming to the agreement that became the second decision, the parties must have considered the likely result if the applications had proceeded to hearing, having regard to all of that evidence. There would appear to be no new evidence to suggest that the result would be different if the current application were to proceed.
Having regard to written and oral submissions from counsel, and to the extensive history of litigation in the Tribunal relating to Mr Novosel’s injuries, I think that this application is an abuse of process and has no reasonable prospect of success. I dismiss the application under ss 42B(1)(c) and (b) of the AAT Act.
Subsequent applications
Comcare has also sought a direction, under s 42B(2) of the AAT Act, that Mr Novosel “must not, without the leave of the Tribunal, make an application to the Tribunal in relation to the question … whether he is entitled to incapacity payments in relation to the left knee injury from 28 October 2009 to the present”. I have decided not to make that direction. It is open to Mr Novosel, armed with new evidence in the future, to relitigate the question of incapacity payments in relation to his left knee injury, even though he has no reasonable prospect of successfully doing so in this current application.
I certify that the preceding 13 (thirteen) paragraphs are a true copy of the reasons for the decision herein of Senior Member Popple ..............................[sgd]..........................................
Associate
Dated 2 July 2015
Date of hearing 2 July 2015 Counsel for the Applicant Mr Allan Anforth Solicitors for the Applicant Capital Lawyers Counsel for the Respondent Mr Peter Woulfe Solicitors for the Respondent Sparke Helmore Lawyers
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