Oudyn and Australian Postal Corporation (Compensation)
[2023] AATA 2730
•28 August 2023
Oudyn and Australian Postal Corporation (Compensation) [2023] AATA 2730 (28 August 2023)
Division:GENERAL DIVISION
File Number(s): 2020/6954
Re:Hendrikus Oudyn
APPLICANT
AndAustralian Postal Corporation
RESPONDENT
DECISION
Tribunal:Deputy President Hanger
Date:28 August 2023
Place:Brisbane
The application by the respondent is dismissed.
...............................[SGD]......................................
Deputy President Hanger
CATCHWORDS
PRACTICE AND PROCEDURE – dismissal application – whether application is frivolous, vexatious, misconceived or lacking in substance – whether application is an abuse of process – whether application has no reasonable prospect of success – whether Applicant may relitigate issues – new evidence produced by Applicant – dismissal application is dismissed.
LEGISLATION
Administrative Appeals Tribunal Act 1975 (Cth)
Safety Rehabilitation and Compensation Act 1988 (Cth)
CASES
Agar v Hyde [2000] HCA 41; 201 CLR 552
Batistatos v Roads and Traffic Authority of New South Wales [2006] HCA 27; 226 CLR 256
Commonwealth of Australia v Snell [2019] FCAFC 57; 269 FCR 18
Novosel v Comcare [2017] FCA 722; 72 AAR 269
Re Paraponiaris and Secretary, Department of Employment [2015] AATA 895; 68 AAR 143Spencer v Commonwealth of Australia [2010] HCA 28; 241 CLR 118
REASONS FOR DECISION
Deputy President Hanger
28 August 2023
For this application the tribunal has been reconstituted to me pursuant to an order of the President.
With the consent of both parties the matter is being heard and determined by me on the papers and transcript. However, in the course of considering the matter I held a directions hearing to clarify a couple of matters. I have heard no oral evidence but have been assisted by lengthy sets of submissions by counsel for both parties.
This is an application by the respondent, Australian Postal Corporation, pursuant to sections 33 and 42B of the Administrative Appeals Tribunal Act 1975 (Cth) (AAT Act) for summary dismissal of the applicant’s present application. That application is dated 17 May 2020,[1] and the applicant seeks compensation and rehabilitation in respect of major depression, chronic regional pain syndrome (CRPS) and anxiety disorder emanating from an incident at work on 2 August 1999. The applicant was pinned between two vehicles and suffered a “soft tissue injury to the knees and muscular to thighs, knees, groin and upper legs”.[2] The respondent rejected the claim on 24 September 2020. The applicant applied for a reconsideration of that decision and that reconsideration confirmed the rejection of the claim. It is that decision which the applicant seeks to review.
[1] Documents lodged at the Tribunal under s 47 of the AAT Act (T Documents), T36, Applicant’s Claim for Rehabilitation and Compensation dated 17 May 2020.
[2] T4, Applicant’s Claim for Rehabilitation and Compensation dated 5 April 1999.
Relevant Statutory Provisions
Section 42B of the AAT Act provides:
1The tribunal may dismiss an application for the review of the 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.
2If 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.
3The direction has effect despite any other provision of this act or any other act.
Section 33(1)(a) of the AAT Act provides:
1In a proceeding before the Tribunal:
(a)the procedure of the tribunal is, subject to this act and the regulations and to any other enactment, within the discretion of the tribunal.
The exercise of powers to summarily terminate proceedings must always be attended with caution. That is so whether such disposition is sought on the basis that the pleadings failed to disclose a reasonable cause of action or on the basis that the action is frivolous or vexatious or an abuse of process.[3]
[3] Re Paraponiaris and Secretary, Department of Employment [2015] AATA 895; 68 AAR 143, [23]; Spencer v Commonwealth of Australia [2010] HCA 28; 241 CLR 118, [24].
In Agar v Hyde,[4] a majority of the High Court said:
Ordinarily, a party is not to be denied the opportunity to place his or her case before the court in the ordinary way, and after taking advantage of the usual interlocutory processes. The test to be applied has been expressed in various ways but all of the verbal formulae which have been used are intended to describe a high degree of certainty about the ultimate outcome of the proceedings if it were allowed to go to trial in the ordinary way.
[4] [2000] HCA 41; 201 CLR 552; see also Batistatos v Roads and Traffic Authority of New South Wales [2006] HCA 27; 226 CLR 256 [46].
The principal ground of the respondent’s application is that the applicant is seeking to relitigate issues which have been the subject of both a previous consent Tribunal decision, and a withdrawn and consequently dismissed Tribunal application.
There is no presumption against relitigation or reopening issues that had previously been determined by the Tribunal under the kind of scheme established by the Safety Rehabilitation and Compensation Act 1988 (Cth) (SRC Act).
In Commonwealth of Australia v Snell,[5] the Full Court of the Federal Court said at [76]:
“An earlier decision by the decision-maker (including an earlier decision of the Tribunal which is deemed to be that of the decision-maker) is information or material with which the tribunal may inform itself (s33(1)(c) of the AAT Act) and it can give it the weight which it considers to be appropriate. Where no new evidence has been advanced which relevantly undermines or alters the effect of the earlier decision it is most likely that, if the application for review is not disposed of in a summary manner, the earlier decision will have significant if not overwhelming weight. Where, on the other hand, new information is available which suggests the earlier decision was based on incorrect facts or limited knowledge, be it scientific knowledge or otherwise, the weight which might be afforded to the earlier decision may be minimal or non-existent.”
[5] Commonwealth of Australia v Snell [2019] FCAFC 57; 269 FCR 18 (Snell).
Mr Oudyn has doubtless had an unhappy 24 years and his pain both physical and mental continues. He attributes that to his accident at work. The history of this matter is long and complex.
His initial application on 5 August 1999 stipulated that he had suffered “soft tissue injury to the knees and muscular to thighs, knees, groin and upper legs.”[6] On 19 August 1999 the respondent accepted liability for “soft tissue crush injury to both legs.”
[6] T4, Applicant’s Claim for Rehabilitation and Compensation dated 5 April 1999.
By 18 May 2000 the respondent was in receipt of an assessment by Dr Bruce Martin, Orthopaedic Surgeon, that his assessment of the applicant revealed “no identifiable residual effect from the soft tissue injury sustained in August 1999”.[7]
[7] T6, Respondent’s Determination regarding leg injury dated 18 May 2000.
An assessment from Dr Jill Reddan, psychiatrist, expressed the opinion that the applicant was not then suffering from any nervous or mental illness resulting from his work injury.[8]
[8] T6, Respondent’s Determination regarding leg injury dated 18 May 2000.
Those reports resulted in a decision by a claims manager that the effects of the injury sustained in August 1999 had resolved and that there was no further entitlement to compensation under the terms of section 14(1) of the SRC Act.
Following that decision litigation ensued and the matter was remitted to the tribunal for further hearing and determination. The applications before the Tribunal were resolved by way of consent decisions on 21 September 2005 in the following terms:[9]
Application Q2001/753: that the decision under review dated 27 July 2001 be set aside and in substitution it be decided that the applicant sustained a “crush injury to both legs leading to an adjustment disorder and reflex sympathetic dystrophy” resulting in a combined 40% whole person impairment (25% WPI under table 5.1 and 20% WPI under table 9.5 of the Guide) with the applicant being entitled to $91,094.07 pursuant to section 24 of the SRC Act; and
Application Q2001/316; the decision under review dated 27 February 2001 be set aside and, in substitution, the applicant be entitled to compensation pursuant to sections 16 and 19 of the SRC act for the period 18 May 2000 to date in the amount of $3369 and $59,074.88 respectively and further, that the applicant has no present entitlement to any additional compensation under sections 16 and 19 of the Act.
[9] Respondent’s submissions in respect of a preliminary application dated 3 February 2021, [13].
I have been advised by the Respondent and accept that the term Reflex Sympathetic Dystrophy is now called CRPS.
For the purpose of completeness, I should refer to subsequent events. On 25 October 2008 the applicant lodged further claims for compensation and permanent impairment compensation in respect of “bilateral lower limb, complex regional pain syndrome, major depression, liver damage”.[10]
[10] T9, Applicant’s Claim for Worker’s Compensation dated 25 October 2008; T10, Applicant’s Compensation Claim for Permanent Impairment dated 25 October 2008.
Those claims were rejected on 14 January 2010 and then by a reviewable decision of the 1 March 2010.[11]
[11] T13, Respondent’s Determination dated 14 January 2010; T19, Respondent’s Reconsideration Decision dated 1 March 2010.
The Applicant sought review of those decisions by this tribunal.
For the purposes of dealing with that review the respondent obtained a further assessment by Dr Cameron, neurologist and Dr Reddan, psychiatrist. Dr Cameron said that he considered the applicant did not suffer from CRPS,[12] and Dr Reddan concluded that the applicant no longer suffered a dysthymic disorder.[13] She considered that the earlier adjustment disorder which she had diagnosed was one of mild chronic depression. She noted that the applicant was prone to develop further psychiatric symptomatology as a result of untreated sleep apnoea and if he were to return to smoking cannabis regularly.
[12] T21, Report by Dr John Cameron dated 10 October 2010; T 22, Report by Dr John Cameron dated 5 November 2010.
[13] T23, Report by Dr Jill Reddan dated 23 December 2010.
The applicant withdrew his application by letter dated 23 May 2011.[14] In that letter he states that he was withdrawing his claim under duress and advises that he does not now have a lawyer acting for him. I note however that he was legally represented and advised at the time of the withdrawal.
[14] T24, Applicant’s Withdrawal of Application for review dated 23 May 2011.
In resisting the present application by the respondent, the applicant has provided a report of 4 April 2022 by consultant psychiatrist Dr Axel Estensen. The doctor saw him on 15 March 2022. His report is 44 pages in length and is exceedingly thorough. He refers to approximately 70 other medical reports which he summarises. Some of those reports opine that the applicant does suffer from chronic regional pain syndrome and others that he does not.
This is new evidence which the applicant would seek to rely on if his application is permitted to proceed. The doctor appropriately expresses the opinion that he does not have expertise in the area of CRPS. However, he expresses the opinion that the applicant suffers from major depressive disorder of moderate severity which is in partial remission. He says that based on the material briefed, voluminous contemporaneous medical records, and his discussions with the applicant, the major depressive disorder is a sequela of his physical injuries. He says that extensive records are available relating to the applicant’s psychiatric symptomatology and his treatment spanning more than two decades. His medical records are consistent with the history that he provided in person. His records support the contention that the severity of his illness has progressed from a dysthymic disorder to a major depressive disorder.
In its initial submissions in this application the respondent argued that there was no new cogent medical evidence going beyond that ventilated in the earlier applications which seeks to establish a causal connection between what ails him now and what occurred in 1999. Such a submission may indeed have been the case when made, but the report of Dr Estensen is to the contrary. The respondent also submits that the applicant is unable to establish that the psychiatric disorder is attributable to the physical disorder. There is evidence which, if accepted, is to the contrary.
The respondent relies on a decision of Perry J in Novosel v Comcare,[15] in which an applicant brought an application to the tribunal in relation to the same claim which of more than one occasion he had earlier withdrawn. His Honour said that such conduct increases the time expense and allocation of resources the comp care needs that relate to repeatedly answering the same claim over many years. He said that it may be an abuse of process not only to litigate the same issue twice, but also to seek to litigate an issue that properly belonged to the earlier litigation.[16]
[15] [2017] FCA 722; 72 AAR 269 (Novosel).
[16] Novosel, [112].
The applicant is not in the same position in this matter as in Novosel. He has produced new evidence from an expert which, if admitted, is very persuasive.
In Snell, the Full Court of the Federal Court said: “a final assessment of an employee’s level of impairment arising from an injury may well be subsequently reviewed where the impairment increases with the consequence that a further entitlement to compensation will arise”.[17]
[17] Snell, [33].
The purpose of the SRC Act fundamentally is to care for the employee injured at work in relation to the injury he or she sustains at work. I suspect that this matter has been made unduly complex by the use of medical terms which may or may not be used precisely. Without giving serious consideration to the issue, some who provide treatment or assessment refer loosely to CRPS while others apply a strict definition. Dr Cameron for example while not appearing to doubt the existence of symptoms opines that they do not fall within a particular definition of CRPS. That may well be the case. It does not necessarily mean that the applicant does or does not have what I will colloquially describe as backpain. Similarly in the psychiatric field the term “dysthymic disorder” is used while others use the terms “depression” and “major depression”. The people using such terms may not be qualified in psychiatry where each term doubtless has a precise meaning. Such matters have not been tested.
The 2005 settlement decision and the 2008 withdrawal decision as well as all the medical reports would be very relevant to this application if it proceeds. Furthermore, the effect of the 2005 settlement may be the subject of legal arguments. The respondent submits that it is prejudiced by the delay involved in seeking to deal with a third tribunal application. Given the lengthy history of the matter and the great number of medical documents to which I have earlier referred I reject that submission.
I stress that my task is not to determine whether the applicant will succeed if this matter goes further. My task is to decide whether it should be allowed to proceed further. I refrain from commenting on the merits of the application.
Based on all of the medical records and most significantly the report of Dr Estensen, I am not satisfied that the application has no reasonable prospect of success, or that it is frivolous, vexatious, misconceived, or lacking in substance, or that it is an abuse of the process of the tribunal.
The application by the respondent is dismissed.
I certify that the preceding 33 (thirty-three) paragraphs are a true copy of the reasons for the decision herein of Deputy President Hanger
.................................[SGD].......................................
Associate
Dated: 28 August 2023
Date of hearing: 8 June 2021 Date final submissions received: 19 July 2023 Applicant (at hearing): By phone Solicitors for the Applicant:
(engaged for final submissions)Ms J Hodge, Hall Payne Lawyers
Counsel for the Respondent: Mr C Clarke Solicitors for the Respondent: Mr M Hawker, Sparke Helmore
0
6
0