NXPQ and Comcare (Compensation) [2021] AATA 4094 (9 November 2021)
Division:General Division
File Numbers: 2020/5187, 2021/3095
Re:NXPQ
APPLICANT
AndComcare
RESPONDENT
DECISION
Tribunal:Deputy President J W Constance
Date:9 November 2021
Place:Sydney
The applications for review are dismissed.
.................................[sgd].......................................
Deputy President J W Constance
CATCHWORDS
WORKERS’ COMPENSATION – previous application for review to Administrative Appeals Tribunal – previous application affirmed by the Tribunal – where new application based on substantially same facts as in previous application – abuse of process – application for review dismissed
LEGISLATION
Administrative Appeals Tribunal Act 1975 (Cth)
Safety, Rehabilitation and Compensation Act 1988 (Cth)
Seafarers Rehabilitation andCompensation Act 1992 (Cth)
CASES
Commonwealth v Snell (2019) 269 FCR 18
Novosel v Comcare (2017) 72 AAR 269
Robson v Military Rehabilitation and Compensation Commission [2013] FCAFC 101
Telstra Corporation Ltd v Hannaford (2006) 151 FCR 253
ZDHG and Comcare [2019] AATA 5028REASONS FOR DECISION
INTRODUCTION
On 25 August 2020, the Applicant applied to the Tribunal to review a decision of Comcare to refuse his claim for compensation under the Safety, Rehabilitation and Compensation Act 1988 (Cth) (the SRC Act) (2020/5187). I shall refer to this decision as the reviewable decision. The Applicant’s claim was made in respect of a mental injury he claimed he suffered as a result of his employment by the Australian Federal Police during the period 2007 to 2014.
On 14 May 2021, the Applicant applied to the Tribunal to review a decision of Comcare to refuse his claim for permanent impairment and non-economic loss for a psychological condition (2021/3095). The review of the permanent impairment decision has been linked with the reviewable decision in the Tribunal.
On 18 May 2021, Comcare applied to have the Applicant’s application dismissed on the basis that it was an abuse of the processes of the Tribunal as it was made on substantially the same facts as a claim which had previously been decided by the Tribunal.
For the reasons which follow the applications will be dismissed.
BACKGROUND
In 2000, the Applicant commenced employment by the Commonwealth as an Australian Federal Police Officer. With his agreement he was made redundant from this position in 2014.
In August 2017, the Applicant lodged a claim with Comcare for a “psychiatric injury”. He alleged that “the nature and conditions of my employment with the AFP, between 2007 and my resignation in 2014 were causative of my condition.” The Applicant stated that he first sought medical treatment for the condition on 6 July 2009.[1] On 23 November 2017 Comcare refused to accept liability for this claim and the Applicant applied to the Tribunal to review Comcare’s decision.
[1] Supplementary T documents at 380.
The application for review was heard by the Tribunal in February and April 2019. Senior Member Kelly was the Presiding Member. On 28 November 2019, the Tribunal affirmed Comcare’s decision to refuse to accept liability for the condition suffered by the Applicant (the 2019 decision).
In her reasons for decision, Senior…
Continue reading NXPQ and Comcare (Compensation)
Sign in free to access the full text
- AGLC
- NXPQ and Comcare (Compensation) [2021] AATA 4094
- Case
- [2021] AATA 4094
- Decision Date
CaseChat Overview and Summary
The central legal issue before the court was whether the Applicant's subsequent application constituted an abuse of process, given that it was based on substantially the same facts as the previous application that had been reviewed and affirmed by the Tribunal. The court was required to determine if the Applicant was attempting to relitigate issues that had already been finally determined.
The court reasoned that the Applicant's current application was based on the same factual matrix and sought to challenge the same decision that had been the subject of the 2019 AAT review. The Tribunal's previous decision had thoroughly considered the evidence, including medical opinions and the Applicant's employment history, and had concluded that the Applicant was not entitled to compensation for PTSD as a result of his employment. The court found that allowing a new application based on the same grounds would undermine the finality of the Tribunal's decisions and constitute an abuse of process.
Consequently, the court dismissed the Applicant's application for review.
Orders
Orders of the court
Full text does not contain this section.
Background
Background to the litigation
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
Ratio Decidendi
Legal Principle Established
Full text does not contain this section.