NXPQ and Comcare (Compensation)

[2021] AATA 4094

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 5028

REASONS FOR DECISION

INTRODUCTION

1. 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.

2. 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.

3. 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.

4. For the reasons which follow the applications will be dismissed.

   BACKGROUND

5. 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.

6. 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.

7. 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).

8. In her reasons for decision, Senior Member Kelly said, in part:

   The submission that the Applicant took VR [voluntary redundancy] because he was already sick is not accepted. His mental health deteriorated after the offer of VR was made and then accepted. That he was repatriated early from the Pacific on 14 August 2014 is consistent with him facing the reality of his decision that he was leaving the AFP, which he tried to change on 29 August 2014.

   Counsel for the Applicant argued that the lack of medical records to corroborate the Applicant’s symptoms between 2010 and 2013 was explained by the Applicant being on international postings during that period and that Dr Lovell conceded that the patient is sometimes the last to know that they are mentally ill. Counsel also referred to the Applicant’s evidence about “getting back on the horse” for every posting and that the events during his Pacific posting was when “pretty much the tub overflowed”.

   Counsel for the Applicant argued that it was common ground that the Applicant was genuine and honest. The Tribunal accepts that the Applicant genuinely believes that he has PTSD, is aggrieved with the AFP and he does suffer from a mental ailment.

   Of the medical opinions in evidence, Dr Lovell’s consideration best reflects the facts of the Applicant’s case. Dr Lovell gave oral evidence and maintained his opinions.

   The Tribunal has had the benefit of much more evidence than any of the practitioners who have considered the Applicant’s condition. It has also had the benefit of legal argument and time to consider the matter.

   As Dr Lovell said, while the Applicant witnessed traumatic events during his service which could have caused PTSD, they did not. There is no evidence that the Applicant suffered from PTSD prior to the dog attack. Ms Lilley’s evidence in her December 2014 report was that he responded well to treatment and was able to return to work. Dr Lovell referred also to a letter from Ms Lilley dated 1 October 2009 in which she wrote that he had recovered. The lack of reports or records of mental health issues until 2014, apart from in relation to personal issues, support a conclusion that the Applicant’s employment with the AFP was not impacting adversely on his mental health from 2009 to 2014. His most satisfying deployment in the Mediterranean country occurred during that period. Ms Lilley’s clinical notes and report of 24 December 2014 did not reflect the history later recorded by other practitioners, including Associate Professor Robertson, of the impact on the Applicant of a number of traumatic incidents during several deployments.

   Dr Takyar’s opinion that the Applicant’s condition was a new condition, unrelated to his previous PTSD, supports a finding that the Applicant was not suffering from PTSD after his 2014 deployment.

   The Tribunal does not accept the diagnosis of PTSD. The Applicant is not entitled to compensation under s 14 of the SRC Act for PTSD as a result of “the nature and conditions of his employment with the AFP” from 2007 to 2014, namely a number of alleged traumatic incidents while on various deployments abroad and within in Australia.[2]

   [2] ZDHG and Comcare [2019] AATA 5028, at [148]-[155].

9. The Applicant did not lodge an appeal in respect of the 2019 decision.

10. On 20 March 2020 the Applicant lodged another claim for compensation with Comcare.[3]  On this occasion he claimed:

    ·he was injured while employed by the Australian Federal Police;

    ·the condition claimed was “mental injury through nature and conditions of employment 25.06.07 – 29.8.14”;

    ·he first sought medical treatment for the condition on 6 July 2009.

    [3] T documents at 55.

11. On 7 August 2020 Comcare rejected the claim.[4]  During the reconsideration process the Applicant advised Comcare that his claim was not limited to a condition of post-traumatic stress disorder.

    [4] T documents at 8.

12. On 25 August 2020, the Applicant applied to the Tribunal to review Comcare’s decision to reject his claim.  In the application it was stated that:

    The Respondent erred not finding the Applicant was entitled to compensation under section 14 of the SRC act [sic] in respect of his mental injury (however described/diagnosed) sustained as a result of his employment, or contributed to, to a significant degree, by his employment, with the Australian Federal Police from 26 June 2007 to 29 August 2014. [5]

    [5] T documents at 6.

13. On 13 May 2021, the Applicant applied to the Tribunal to review Comcare’s decision to reject his permanent impairment and non-economic loss claims.  In the application it was stated that:

    The decision maker erred in declining [sic] liability for permanent impairment and non-economic loss under sections 24 and 27 of the SRC Act in respect of the Applicant’s mental injury.

14. On 18 May 2021 Comcare applied for dismissal of the Applicant’s application for review in accordance with section 42B of the Administrative Appeals TribunalAct 1975 (Cth) (the AAT Act) on the ground that the Applicant is “seeking to essentially relitigate a matter that has already been decided or which belonged to an earlier proceeding.”[6]

    [6] Comcare’s Outline of Submissions dated 5 July 2021 at para. 25.

    LEGISLATION

15. Section 14(1) of the SRC Act provides:

    (1)  Subject to this Part, Comcare is liable to pay compensation in accordance with this Act in respect of an injury suffered by an employee if the injury results in death, incapacity for work, or impairment.

16. Section 42B(1) of the AAT Act provides:

    (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.

    THE ARGUMENT ON BEHALF OF THE APPLICANT

17. Counsel for the Applicant referred me to two judgements of the Full Court of the Federal Court which he said are highly relevant in this matter, namely Commonwealth v Snell[7] (Snell) and Telstra Corporation Ltd v Hannaford (Hannaford).[8]

    [7] (2019) 269 FCR 18; [2019] FCAFC 57.

    [8] (2006) 151 FCR 253; [2006] FCAFC 87.

18. I accept that the Applicant provided an up-to-date statement with his claim form[9] and that he has provided several reports by treating medical practitioners prepared after the matter was heard by the Tribunal in 2019.  Obviously, this is evidence which was not before the Tribunal on that occasion.

    [9] Exhibit R1 at 60-73.

19. Counsel further argued that the precise diagnosis of the Applicant’s mental illness was a matter of controversy before SM Kelly and that the Applicant has continued to suffer a mental illness since that time.  In October 2020 the Applicant was diagnosed as suffering two distinct clinical conditions, being post-traumatic stress disorder and major depressive disorder.  The Federal Court held these conditions were separate conditions in Robson v Military Rehabilitation and Compensation Commission.[10]

    [10] [2013] FCAFC 101.

20. The Snell judgement was relied upon for the proposition that the maker of a decision determining liability to pay compensation under a statutory compensation scheme, and the Tribunal on reviewing that decision, are able to review a previous decision by the Tribunal relating to an earlier compensation claim by the same claimant.  In other words, “the Tribunal can review its own decisions.”[11]Counsel referred to the judgement of Conti J. in Telstra Corporation v. Hannaford that the statutory scheme provided by the Safety, Rehabilitation and Compensation Act  “allows for progressive and evolving decision-making giving effect to the provisions of ongoing review of relief or entitlements in the nature of course of workers compensation, being review which allows for adjustment or change in the light of events and circumstances which may subsequently happen.” [12]

    [11] Applicant’s Written Submissions dated 19 July 2021 at para. 31.

    [12] Telstra Corporation Ltd v. Hannaford at 57.

21. Or in other words, as Heerey J summarised in that judgement, “the SRC Act allows for progressive and evolving decision-making allowing for the changes in circumstances which are inevitably likely to happen”.[13]

    [13] Ibid at 10.

22. It was contended on behalf of the Applicant that:

    In circumstances where the Applicant previously ran a case arguing that he suffered from PTSD, where Comcare kept him strictly to the confines of that PTSD case and where the Tribunal rejected that diagnosis it must be the case that the Applicant is, at the very least, allowed to argue in this Tribunal that he suffered a mental illness attracting another diagnosis or diagnoses or even a differential diagnosis.

    ………………..

    Ultimately a new Tribunal might well come to the conclusion, on all of the evidence before it, that the Applicant does indeed suffer from PTSD or MDD or both. The Tribunal is always bound to reach the correct and preferable decision. The new Tribunal might implicitly decide that Kelly SM was wrong not to accept the diagnosis of PTSD. Alternatively, the new Tribunal might prefer the diagnosis of MDD or even some other diagnosis. The AAT cannot bind itself into the future. The Tribunal is not bound by the previous decision dated 28 November 2019. This Tribunal has a free hand. That must be the case in a system based on an ever-evolving decision-making process.[14]

    CONSIDERATION

    [14] Applicant’s Written Submissions dated 19 July 2021 at para. 30-31.

    Commonwealth v Snell

23. In Snell, the question on appeal was “the entitlement of the Tribunal when reviewing a decision to refuse to consider cogent, persuasive and relevant evidence on the basis that the issue to which the evidence relates had been determined by it in the course of the making of an earlier decision.[15]  The Court proceeded on the basis that had the Tribunal considered and accepted the evidence then available, it may have determined that the earlier decision (which was made with the consent of the parties) was founded upon a false premise. 

    [15] Snell at paragraph 40.

24. Further, the Court considered that the relevant provisions of the Seafarers Rehabilitation and Compensation Act 1992 (Cth) and the SRC Act were comparable as under section 62 of the latter Act the employer had the power to reconsider its earlier decisions.

25. Having considered the relevant authorities (including Hannaford), the Court said:

    The authorities to which reference has been made suggest that the existence of s 78 (or its equivalent) has two distinctive impacts on the decision-making process. First, the decision-maker may expressly reconsider an earlier decision and make a different decision in its stead. Secondly, a decision-maker faced with a further claim from an employee, may make a decision on the new claim which is inconsistent with the first decision in which case it can be said the original decision is implicitly reconsidered. However, the effect of this approach is that the original decision remains operative to the extent that it is not eclipsed by the latter.

    The combined effect of s 43(1) of the AAT Act and s 78 is to allow the Tribunal, when reviewing a decision, to reconsider any earlier decision of the employer as well as any of its previous decisions which are deemed to be of the employer. That being so it would be inconsistent or lacking in coherency for the Tribunal to conclude that it was bound by an earlier determination. To do so would render the power of reconsideration inutile or, at least, substantially diminish its operative effect.

26. However, later in its judgement the Court turned to consider whether an applicant can require the Tribunal to constantly review rejection by an employer of the same claim:

    That is not to say that dissatisfied employees under the Seafarers Act might simply make repetitious claims based on substantially the same facts and require the Tribunal to constantly review the rejection of the same by the employer. The Tribunal has considerable power under s 42B to expeditiously deal with any such applications for review. Such proceedings may be easily seen as frivolous, vexatious, misconceived or lacking in substance. Alternatively, they may be seen as an abuse of process and it is to be kept in mind that the categories of cases which fit that description are not closed and cannot be exhaustively defined. A careful review of the authorities concerning the concept of abuse of process was undertaken by Perry J in Novosel v Comcare (2017) 72 AAR 269 at [104]-[114]. Nevertheless, before the Tribunal determines to dismiss a proceeding relying on s 42B it would need to be satisfied that the proceeding was of such a nature that the issues raised should not be accorded a proper hearing. [Emphasis added].

    Novosel v Comcare

27. In Novosel v Comcare[16], Mr Novosel sought judicial review by the Federal Court of a decision of the Tribunal to dismiss his application for a review of Comcare’s decision made 5 February 2013.

    [16] (2017) 72 AAR 269 (Novosel).

28. A chronology of the events considered by the Court is as follows:

    ·Mr Novosel injured his left knee on 7 June 2006 while engaged in a sporting event endorsed by his employer;

    ·on 14 June 2006 he lodged a claim for compensation under the SRC Act;

    ·on 26 June 2006 Comcare accepted liability to compensate Mr Novosel in respect of the injury;

    ·on 17 November 2008 Comcare decided that Mr Novosel had recovered from the injury and that Comcare was not liable to pay compensation under section 16 (medical expenses) or section 19 (incapacity);

    ·in 2010 Mr Novosel applied to the Tribunal to review the decision of 17 November 2008 (the 2010 application);

    ·on 13 May 2011 Comcare decided that, as at 8 December 2010, Mr Novosel had no entitlement to compensation under sections 16 and 19 in respect of the injury to his left knee;

    ·on 1 June 2011 Mr Novosel applied to the Tribunal to review Comcare’s decision of 13 May 2011 (the 2011 application);

    ·on 28 October 2011, at the request of the parties and without proceeding to a hearing, the Tribunal set aside the decision of 17 November 2008 and substituted a decision that Mr Novosel was entitled to compensation under both sections 16 and 19 of the SRC Act in respect of his left knee injury;

    ·also on 28 October 2011 the Tribunal noted the agreement of the parties that “as at 28 October 2009 the effects of the injury had resolved and did not give rise to an entitlement to compensation for medical treatment or incapacity to work”; [17]

    [17] Ibid at para. 38.

    ·on 14 February 2012 Mr Novosel requested a determination from Comcare concerning payment in relation to overtime earnings he claimed to have lost as a result of his injury;

    ·on 29 February 2012 Comcare determined that “in view of the AAT decision dated 28 October 2011 including the medical certificates mentioned above, I am not satisfied you continue to suffer from incapacity for work due to any of your compensable condition beyond 28 October 2009. Accordingly I deny liability under s 19 in respect of your claim for ongoing overtime payments”[18];

    [18] Ibid at para. 48.

    ·the medical certificates referred to were issued after the Tribunal’s decision of 29 October 2011;

    ·on 3 May 2012 Comcare affirmed its determination of 29 February 2012;

    ·Mr Novosel applied to the Tribunal to review Comcare’s decision (application no. 2012/2434) but withdrew his application on 19 October 2012 before it was decided by the Tribunal;

    ·on 27 July 2012 Mr Novosel lodged a claim for compensation under the SRC Act, being a further claim in relation to his left knee injury;

    ·on 30 October 2012 Comcare determined that “compensation is not payable for medical expenses or for periods of incapacity relating to your claimed condition of  ………..  left knee injury” (emphasis added);[19]

    [19] Ibid at para. 54.

    ·on 22 November 2012 Mr Novosel requested Comcare to reconsider its determination, referring only to the denial to pay compensation in relation to medical expenses without reference to the denial to compensate him for incapacity;

    ·on 5 February 2013 Comcare affirmed its determination of 30 October 2012 stating that “I am not satisfied, having regard to the available evidence that you continue to suffer the effects of your accepted left knee condition.”[20]

    [20] Ibid at para. 58.

    ·on 13 April 2013 Mr Novosel applied to the Tribunal to review the decision of 5 February 2013 (the 2013 application);

    ·during the proceedings before the Tribunal Mr Novosel identified the reviewable decision as purporting to cease liability to pay compensation under section 16 of the SRC Act and the issue being whether he reasonably required ongoing medical treatment in respect of his medical condition;

    ·on 1 May 2014 the Tribunal made a decision with the consent of the parties setting aside Comcare’s decision of 5 February 2013 and substituting a decision providing for payment by Comcare of specified medical expenses in relation to the injury (the 2014 decision);

    ·the consent decision made no reference to incapacity payments;

    ·on 10 October 2014 Mr Novosel requested Comcare to reinstate his entitlement to incapacity payments from 8 December 2010 based on a report of his Orthopaedic Specialist issued on 27 November 2013;

    ·on 17 November 2014 Comcare denied liability to pay the incapacity payments requested;

    ·Mr Novosel requested Comcare to reconsider its decision on the ground that the Specialist had changed the opinion he had expressed in an earlier report;

    ·on 12 February 2015 Comcare affirmed its decision of 17 November 2014;

    ·on 19 February 2015 Mr Novosel applied to the Tribunal to review the decision of 12 February 2015, arguing that Comcare was liable to compensate him for both medical expenses and incapacity (the 2015 application);

    ·Comcare applied to the Tribunal for the 2015 application to be dismissed under subsection 42B(1) of the AAT Act;

    ·on 2 July 2015 the Tribunal dismissed Mr Novosel’s application for review under subsections 42B(1)(b) and 42B(1)(c).

1. Comcare’s decision was that it was not liable to continue compensating Mr Novosel in respect of his knee injury as he had ceased to suffer the effects of the injury which occurred on 7 June 2006.  The Tribunal had dismissed his application on the grounds that it was an abuse of process and that, in any event, it had no reasonable prospects of success.  Before the Federal Court, Mr Novosel argued that in a second report, an orthopaedic surgeon had reversed his previous negative assessment of Mr Novosel’s case.

2. The decision of Comcare which gave rise to the Tribunal proceeding was that Mr Novosel did not continue to suffer the effects of an accepted left knee condition.  Comcare’s decision was made on 5 February 2013.

3. In his 2015 application to the Tribunal, Mr Novosel identified the decision under review as being the one made on 5 February 2013 and which purported to cease liability to pay compensation for medical expenses to him under section 16 of the Act in relation to his accepted condition. He identified the issue as whether he reasonably required ongoing medical treatment in respect of his accepted condition. Section 16 of the Act provides for the payment of medical expenses incurred for treatment of an injury. There was no claim for, or reference to, payment of compensation for incapacity arising from the injury.

4. In the usual course of the proceeding in the Tribunal, the parties engaged in an alternative dispute resolution process.  As a result, at the request of both parties, on 28 October 2011 the Tribunal made a decision by consent that Mr Novosel was entitled to compensation for specified medical expenses incurred in the treatment of his left knee injury.  There was no reference to compensation for incapacity in the consent decision.

5. In October 2014 Mr Novosel requested Comcare to compensate him for his incapacity for employment from a date in December 2014 and continuing in light of the second of the reports by the orthopaedic surgeon.  The incapacity was alleged to have arisen from the injury to his left knee which occurred on 7 June 2006.  Comcare denied liability to compensate Mr Novosel. 

6. The Court held that the Tribunal was plainly right in finding that it would have been open to it to make a decision about the incapacity claim if the previous proceedings had progressed to a hearing as it was seized of that issue in those proceedings.  In reaching this conclusion the Court said:

   It is true, as the applicant submits, that his request for reconsideration of the October 2012 determination pursuant to s 62(2) referred only to the denial of liability to pay medical expenses by the first tier decision-maker (see above at [56]). However, that represents no more than a forensic decision made by him at the time of making the request to challenge only that matter on the reconsideration. It does not mean that liability under s 19 could not also have been reconsidered by the reviewing officer under s 62, given that liability under s 19 had been the subject of the first tier decision, as in fact the reviewing officer did in affirming the first tier decision (see above at [58]). The terms of the request to reconsider, in other words, did not fetter the scope of the reviewing officer’s powers as Comcare submits. Accordingly, while the Tribunal should not embark upon any matter not properly before the original decision-maker, as Hill J held in Casarotto v Australian Postal Commission (1989) 86 ALR 399 at 402:

   …once a matter properly before the original decision maker comes to the Tribunal for review the whole matter before the decision maker is open to review and an applicant for review will not be confined by the submissions put to the original decision maker but the tribunal must decide for itself whether the decision made by the administrator … was the right decision which ought to have been made in the circumstances: Drake v Minister for Immigration (1979) 24 ALR 577; 46 FLR 409 at 429-30.

   (emphasis added by the Federal Court)

   ……

   The s 19 issue having been the subject of the first and second tier decisions, it follows that it was not beyond the Tribunal’s power to make a decision on liability under s 19 of the Act, as well as liability under s 16. The fact that the applicant’s statement of facts and issues filed in the Tribunal did not raise the s 19 issue (see above at [60]) does not mean that the applicant could not have done so if he had so wished once he received the second Oakeshott report or otherwise. [Emphasis added].

   ……

   Equally, there is no error in the Tribunal’s finding that the consent decision made on 1 May 2014 in no. 1438/2013 must be taken to have resolved the s 19 issue in Comcare’s favour notwithstanding that it was not referred to in the consent decision.[21]

   [21] Novosel at paras 92, 94 and 96.

7. The Court concluded that Mr Novosel had “failed to establish any reviewable error in the Tribunal’s conclusion that the applicant is seeking by application No 2015/877 to “relitigate” an issue already resolved between him and Comcare. ………. I consider that the Tribunal used the term “re-litigate” loosely to refer to the applicant’s repeated attempts to bring s 19 claims with respect to the left leg injury and not in any technical sense of litigation in a court.[22]

   [22] Ibid at paras 99 and 100.

8. The Court held that Mr Novosel’s 2015 application was an abuse of process within the meaning of subsection 42B(1)(c) of the AAT Act.

   Discussion

9. I have set out the chronology in Novosel in some detail to show that the principles set out by the Court are relevant to this application.  To reiterate, the Court found that the issue of compensation for loss of income was before the Tribunal when it made the 2014 decision, even though it did not deal with it.  For this reason, Mr Novosel was prevented from again seeking to have the issue determined in the 2015 application.

   What was the issue before the Tribunal in the 2019 decision in this matter?

10. Turning to the facts of this matter, I am satisfied that the issue before SM Kelly was whether the Applicant had suffered a psychological injury, irrespective of how that injury was described.  My reasons for reaching this conclusion are set out in the following nine paragraphs.

11. First, it is clear from documents lodged on behalf of the Applicant that his claims in the two applications to the Tribunal are the same.  In his claim dated 8 April 2020 and submitted to Comcare, the Applicant described the injury he suffered as a “Mental injury through nature and conditions of employment 25.6.07-29.8.14.” [23] He first sought treatment for this injury on 6 July 2009.[24]  This is the claim presently before the Tribunal.

    [23] T documents at 56.

    [24] T documents at 57.

12. In his claim dated 14 August 2017, which was the basis for the reviewable decision considered by SM Kelly, the Applicant described the condition for which he was claiming as a “Psychiatric injury”  and the tasks he was doing when he was injured as “[the] nature and conditions of my employment with the AFP, between 2007 and my resignation in 2014 were causative of my condition.”[25]He first sought treatment for this condition on 6 July 2009[26], the same day he sought treatment for the condition claimed in the present application.

    [25] Supplementary T documents at 380.

    [26] Supplementary T documents at 381.

13. Importantly, in his claim form of 8 April 2020 the Applicant answered “no” to the question:

    Have you ever experienced a similar symptom, injury or illness, work-related or otherwise?[27]

    This indicates that the injury for which he was claiming compensation was the same as that for which he had previously claimed.

    [27] T documents at 57.

14. Secondly, SM Kelly was satisfied that the Applicant suffered from a mental ailment at the time of the hearing (see the third paragraph within paragraph 8 above in these reasons).  She also noted that the Respondent conceded that the Applicant suffered a mental ailment at the time.[28]

    [28] T documents at 16.

15. Thirdly, SM Kelly had evidence before her that the Applicant suffered from depression beyond the depressive symptoms found in post-traumatic stress disorder.[29] 

    [29] Report dated 23 August 2017 by Associate Professor Robertson, T documents at 118.

16. Fourthly, Counsel for the Applicant sought to argue before SM Kelly that the injury suffered by him was not limited to a diagnosis of post-traumatic stress disorder.  SM Kelly noted that the claim made by the Applicant in his claim form was for a “psychiatric injury due to the nature and condition [of work]”.

17. To which Counsel for Comcare responded:

    This was not a case where what is in issue is whether the Tribunal has jurisdiction to entertain such a claim if it had been articulated and run on that basis through the course of the proceedings. The case had been run on a particular basis precisely because the applicant pursued one diagnostic label and preferred another.[30]

    [30] Transcript 12 April 2019 at 5.

18. During the hearing before SM Kelly, the Tribunal and both parties approached the proceedings on the basis that the issue before the Tribunal was whether the Applicant had suffered a psychiatric injury.  It was a forensic choice made on behalf of the Applicant to present the case as a claim for post-traumatic stress disorder.  Counsel for the Applicant sought to change the description of the injury during final submissions.  When faced with the prospect of the hearing being adjourned, the Applicant made the choice of continuing to limit his claim to post-traumatic stress disorder.[31] 

    [31] Transcript 12 April 2019 at 7.

19. I do not agree with Counsel for the Applicant that “Comcare kept him strictly to the confines of that PTSD case …….” [32] Although in submissions before me, Counsel for Comcare in the previous matter was criticised for suggesting that a further claim could be made, Counsel also referred to the alternative of the Applicant re-opening his case in the application then being considered.[33]  The Applicant did not exercise this option.[34]

    Should the discretion given by section 42B to dismiss the Applicant’s application for review be exercised?

    [32] See para. 18 of these reasons.

    [33] Transcript 12 April 2019 at 6.

    [34] Transcript 12 April 2019 at 6.

20. In Snell, the Court made it clear that the conclusion that the Tribunal is not bound by its previous decisions does not mean that an employee can repeatedly require the Tribunal to review decisions of an employer based on substantially the same facts. Section 42B provides the power to the Tribunal to deal with attempts to do so.

21. Perry J. considered the issue of abuse of process in Novosel.  In considering an argument that there could be no unfairness or oppression in allowing Mr Novosel to re-litigate the claim for loss of earnings, Her Honour said, in part:

    [The] submission, however, overlooks the fact that the onus lies upon the applicant to establish a jurisdictional or other error of the kind that could attract the grant of relief sought, rather than upon Comcare to rebut the allegation. It also overlooks the fact that abuse of process is not merely concerned with prejudice to a respondent but also with matters of broader public policy. Thus, principles of res judicata, issue estoppel and the like in judicial proceedings, are underpinned by broader issues of public policy, namely, that it would be an abuse of process to allow parties to litigate repeatedly matters that have been finally determined by the Court not only because “a person ought not to be vexed twice for one and the same cause”, but also because it is in the interests of the State that there be an end to litigation: see e.g. Wong v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 242; (2004) 146 FCR 10 (Wong) at [36]-[37]. The same policy considerations may equally inform the Tribunal’s approach to issues of abuse of process as they would plainly promote the objective which the Tribunal is to pursue by virtue of s 2A of the AAT Act, namely, to provide a mechanism of review that is fair, just, economical, informal and quick.[35]

    [35] Novosel at 112.

22. I accept the argument put by Counsel for Comcare that to permit the Applicant to continue with this application would be:

    ·unfair and unjust – because Comcare would be required to respond without good reason to essentially the same claim a second time;

    ·uneconomical – because Comcare has already had to expend many hours of time and resources, as well as legal costs and disbursements for at least three days of hearing, in responding to essentially the same claim in Re ZDHG;

    ·not quick – because of the lapse of time between relevant events (including the period between the decision in Re ZDHG and any “final” hearing of the present application);

    ·not promote public trust and confidence in the decision-making of the Tribunal – for instance, Commonwealth-funded resources would continue to be used to manage and respond to a case which was, or ought to have been, finalised years ago.[36]

    [36] Comcare’s Outline of Submissions dated 5 July 2021 at para. 37.

23. I am satisfied that this application should be dismissed as being an abuse of process of the Tribunal.

24. The application relating to the permanent impairment decision should be similarly dismissed. The application is a further claim for permanent impairment and non-economic loss. The threshold issue is whether the Applicant suffered an “injury” (which includes one which resulted in impairment). In circumstances where the claim is made on the basis of substantially the same facts as previously dealt with by the Tribunal, which found that the Applicant had not suffered an injury as I have explained, the application relating to the permanent impairment decision cannot succeed.

    CONCLUSION

25. The applications for review made to the Tribunal by the Applicant on 25 August 2020 (2020/5187) and on 14 May 2021 (2021/3095) will be dismissed under section 42B of the AAT Act.

I certify that the preceding 53 (fifty-three) paragraphs are a true copy of the reasons for the decision herein of Deputy President J W Constance

...............................[sgd].........................................

Associate

Dated: 9 November 2021

Date of hearing:	29 July 2021
Counsel for the Applicant:	J Mrsic
Solicitors for the Applicant:	G Watson, Grieve Watson Kelly Lawyers
Counsel for the Respondent:	P Woulfe
Solicitors for the Respondent:	C King, McInnes Wilson Lawyers