Novosel and Comcare - [2015] AATA 476

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 Section 42B was repealed and substituted on 1 July 2015 by the Tribunals Amalgamation Act 2015.[1] The new provision applies including in relation to proceedings (like this application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…

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 Novosel and Comcare

Details

AGLC: Novosel and Comcare [2015] AATA 476
Case: [2015] AATA 476
Decision Date: 2 July 2015

CaseChat Overview and Summary

Mr Novosel brought an application against Comcare concerning compensation for injuries to his knees. This case involved an application to the Administrative Appeals Tribunal (AAT) to reconsider previous decisions on compensation liability under the Safety, Rehabilitation and Compensation Act 1988 (SRC Act). The AAT had previously decided on Comcare's liability to pay compensation for Mr Novosel's left and right knee injuries, and on costs. Mr Novosel argued that Comcare should be liable for his left knee injury under sections 16 and 19 of the SRC Act from 28 October 2009, based on a new report by an orthopaedic surgeon. However, the AAT found that the previous decisions had already settled the issue of Comcare's liability for Mr Novosel's left knee injury, and that Mr Novosel's current application was an attempt to relitigate a matter already decided. The AAT held that allowing Mr Novosel to relitigate the issue amounted to an abuse of process and that his application had no reasonable prospect of success as there was no new evidence suggesting a different outcome.

In dismissing Mr Novosel's application, the AAT noted that the second decision, made after the orthopaedic surgeon's report, explicitly resolved the issue of Comcare's liability under section 19 in Comcare's favour. The AAT also referenced its previous statement in Quinn and Australian Postal Corporation that it should not generally allow the relitigation of already decided issues. The Tribunal concluded that Mr Novosel's application was not only an abuse of process but also lacked a reasonable chance of success, given the prior decisions and the evidence available at the time. The AAT dismissed the application under sections 42B(1)(b) and (c) of the Administrative Appeals Tribunal Act 1975.

Orders

Orders of the court

The application is dismissed under ss 42B(1)(b) and (c) of the Administrative Appeals Tribunal Act 1975.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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.

Ratio Decidendi

Legal Principle Established

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Division	GENERAL DIVISION
File Number	2015/0877
Anthony Novosel
APPLICANT
And	Comcare
RESPONDENT

Tribunal	Dr James Popple, Senior Member
Date	2 July 2015
Date of written reasons	2 July 2015
Place	Canberra