Paunovic and Australian Capital Territory (Compensation)
[2020] AATA 5070
•20 November 2020
Paunovic and Australian Capital Territory (Compensation) [2020] AATA 5070 (20 November 2020)
Division:GENERAL DIVISION
File Number(s): 2019/3715
Re:Slobodan Paunovic
APPLICANT
AndAustralian Capital Territory
RESPONDENT
DECISION
Tribunal:Member W Frost
Date of decision: 20 November 2020
Date of written reasons: 16 December 2020
Place:Canberra
The application for review is dismissed pursuant to section 42B(1)(a) of the Administrative Appeals Tribunal Act 1975.
............[sgd]................................................
Member W Frost
Catchwords
Interlocutory decision - dismissal under s 42B(1)(a) AAT Act – dismissal after a reconsideration of own motion decision is made – when an application becomes vexatious – workers compensation – liability under SRC Act – written reasons after oral decision
Legislation
Administrative Appeals Tribunal Act 1975 ss 42B, 43
Safety, Rehabilitation and Compensation Act 1988 ss 4, 5A, 14, 16, 19, 62, 67
Cases
Abrahams v Comcare (2006) 93 ALO 147
De Courcy Brown and Comcare (1997) 49 ALO 766
Moggach and Comcare [1995] AATA 379
Telstra Corporation Ltd v Hannaford [2006] FCAFC 87
Thomson and Comcare [2017] AATA 34
Rebeiro and Comcare (1996) 44 ALO 632
Williams and Australian Electoral Commission [1995] AATA 160
REASONS FOR DECISION
Member W Frost
16 December 2020
INTRODUCTION
Mr Slobodan Paunovic applied to the Administrative Appeals Tribunal (Tribunal) for review of a decision which declined liability to pay him compensation for ‘adjustment reaction with depressed mood’ under the Safety, Rehabilitation and Compensation Act 1988 (SRCAct).[1]
[1] Prior to 1 March 2019, Comcare was the determining authority in respect of Mr Paunovic’s workers’ compensation claim.
During the Tribunal proceeding, the ACT conducted an own motion review provided for under the SRC Act and accepted liability to pay Mr Paunovic compensation for his injury. As a result of its decision, the ACT made an interlocutory application to dismiss Mr Paunovic’s application for review pursuant to section 42B(1)(a) of the Administrative Appeals Tribunal Act 1975 (AAT Act), on the basis that it had become vexatious. Both parties provided written submissions on this issue.
At an interlocutory hearing, the Tribunal heard from the parties regarding the ACT’s dismissal application. The Tribunal at that hearing dismissed Mr Paunovic’s application for review. As requested by Mr Paunovic, pursuant to subsection 43(2A) of the AAT Act, the Tribunal provides these written reasons for its dismissal of his application.
ISSUE
The issue before the Tribunal was whether Mr Paunovic’s application should be dismissed pursuant to subsection 42B(1)(a) of the AAT Act.
BACKGROUND
In 1984, Mr Paunovic commenced employment with Roads ACT.[2]
[2] T5, page 25.
On 6 January 2017, Mr Paunovic’s supervisor punched him in the mouth at work.[3]
[3] T3, pages 15-17; A1, page 1 (the ‘A’ documents referred to in these reasons are documents provided by the Agency pursuant to section 71 of the SRC Act and filed with the Tribunal on 31 January 2020, which are also referenced in the Respondent’s Statement of Issues, Facts and Contentions dated 2 June 2020); A2, page 2; Applicant's Witness Statement filed 5 February 2020.
On 23 January 2017, Mr Paunovic completed an Incident Report Form regarding the assault.[4]
[4] T3, pages 15-17.
In July 2017, an employee of Roads ACT made a complaint that she had been sexually harassed by Mr Paunovic.[5] Mr Paunovic denies all allegations of sexual harassment.
[5] A3, page 6.
On 7 August 2017, the Executive Director of City Places and Infrastructure with the ACT wrote to Mr Paunovic about the complaint and the commencement of an investigation into allegations of misconduct made against him in accordance with the ACT Public Sector Technical and Other Professional Enterprise Agreement 2013-2017.[6]
[6] T5, pages 51- 52; A5, page 15; A6 - A23; A26, pages 228-9; A25, page 130.
On 15 February 2018, the ACT Professional Standards Unit produced its report following a formal investigation into the allegations concerning Mr Paunovic.[7]
[7] A26, page 226.
In June 2018, the ACT terminated Mr Paunovic’s employment with immediate effect.[8]
[8] T5, pages 70-71.
On 6 December 2018, Mr Paunovic lodged a claim with Comcare for compensation under section 14 of the Act in respect of ‘pain and suffering’ and ‘Post-Traumatic Stress Disorder’ (PTSD) as a result of a ‘“one punch attack” by [his] senior manager in the office while on duty’ on 6 January 2017.[9] In the Claim Form, in answer to the question ‘what parts of your body are affected,’ Mr Paunovic answered, ‘head and neck’. He said he first noticed symptoms/injury on 6 January 2017, and that he first sought medical treatment on 10 January 2017. In the Incident Report Form from January 2017,[10] which Mr Paunovic supplied to Comcare with his Claim Form in December 2018, he noted that, since the incident on 6 January 2017, his life had been ‘changed’. Mr Paunovic said, ‘I can't sleep at night, I have nightmares, I feel like not speaking with people any more, I feel like hiding in a cave and never coming out’. Mr Paunovic had separately claimed compensation in respect of a physical injury arising from the same incident.
[9] T4, pages 18-24.
[10] T3, pages 15-17.
On 18 February 2019, Comcare denied liability under section 14 of the SRC Act to compensate Mr Paunovic for what it described as an ‘adjustment reaction with anxious mood’.[11]
[11] T9, pages 92-93.
On 8 May 2019, following Mr Paunovic’s request for reconsideration, Comcare affirmed its determination to refuse liability to pay him compensation under the SRC Act.[12] While Comcare was satisfied that Mr Paunovic had suffered an ‘ailment’, being an ‘adjustment reaction with anxious mood’, that had been significantly contributed to by his employment, it concluded that the ailment was a result of ‘reasonable administrative action taken in a reasonable manner’ in respect of Mr Paunovic’s employment pursuant to subsection 5A(1) of the SRC Act.
[12] T1.1, pages 7-13.
On 25 June 2019, Mr Paunovic applied to the Tribunal for review of Comcare’s decision.[13]
[13] T1, pages 1-6.
In March 2020, Dr Yvonne Skinner, Psychiatrist, provided a report following her assessment of Mr Paunovic and relevantly concluded that:[14]
(a)Mr Paunovic would have suffered an ‘acute stress disorder’ following the assault on 6 January 2017;
(b)this workplace incident ‘precipitated the condition’. The subsequent events, with Mr Paunovic perceiving that he was ‘deliberately isolated and harassed’ also contributed. In this regard, the complaint of sexual harassment against Mr Paunovic and his subsequent dismissal were ‘important contributing factors’. Dr Skinner stated that if Mr Paunovic had not been dismissed it is likely that he ‘would have gradually improved and his psychological symptoms would probably have resolved’. Mr Paunovic’s dismissal was a ‘severe blow to his psychological state because he had been proud of his work record and he believes that his treatment by other staff after the assault and his dismissal were out of proportion and unfair’;
(c)factors contributing to Mr Paunovic’s condition were the assault on 6 January 2017, his subsequent treatment by other staff which he perceived as harassment and isolation, and the complaint against him resulting in dismissal; and
(d)Mr Paunovic presently suffers from an ‘adjustment disorder with anxiety and depressed mood’.
[14] Report of Dr Yvonne Skinner dated 17 March 2020.
On 2 October 2020, the ACT, on its own motion pursuant to subsection 62(1) of the SRC Act, reconsidered Comcare’s determination dated 18 February 2019. The ACT set aside that decision and instead accepted liability to pay compensation under section 14 of the SRC Act for Mr Paunovic’s claimed psychological injury. The ACT’s own motion decision relevantly stated that:
I have decided, on the basis of Dr Skinner's opinion, that the initial determination dated 18 February 2019 is incorrect. Having noted Dr Skinner’s opinion, I have decided to conduct a review on own motion of the determination dated 18 February 2019.
Under section 62(1) of the Safety Rehabilitation and Compensation Act 1988 (Cth) (SRC Act), I set aside the determination dated 18 February 2019, and instead accept liability under section 14 of the SRC Act in respect of 'acute stress reaction'. I am satisfied that you suffered this injury as a result of the incident on 6 January 2017.
…
I am satisfied, on the balance of probabilities, that the one-punch incident occurred in the way that you described in your claim form dated 6 December 2018.
You submitted an incident report dated 23 January 2017 in respect of the incident, in which you described the series of events leading up to the incident. You said:
1. At approximately 4:15 pm on 6 January 2017, you had been walking from your desk to a nearby photocopier when your supervisor walked backward into you;
2. Without warning, your supervisor turned, punched you in the face, and left toward the exit door;
3. You were in shock after the incident. Your glasses were knocked to the floor. You suffered a cut lip.
You have stated that this incident left you feeling 'humiliated, belittled and angry'. We have received statements of your colleagues…that corroborate your version of events.
Dr Yvonne Skinner (psychiatrist) assessed you at our request on 18 February 2020, and provided a report dated 17 March 2020. We asked Dr Skinner whether you had suffered a psychological condition as a result of the incident on 6 January 2017 and, if you continued to suffer a condition, if there was anything aside from the events of 6 January 2017 that contributed to that condition.
Dr Skinner reported:
1. You suffered an 'acute stress disorder', and this condition was precipitated by the events of 6 January 2017.
2. The investigation into your conduct, culminating in the termination of your employment on 5 June 2018, were 'important contributing factors,' and 'if [you] had not been dismissed, it is likely that [you] would have gradually improved and [your] psychological symptoms would probably have resolved’.
I accept Dr Skinner's opinion. I am therefore satisfied that you have suffered an ailment for the purpose of the SRC Act, namely an 'acute stress disorder', and that this ailment was significantly contributed to by your employment. Consequently, I am satisfied that the ACT is liable under section 14 of the SRC Act to pay compensation in respect of your 'acute stress reaction'.
I note that your general practitioner, Dr George Guirguis, provided a report dated 25 February 2019, in which he considered that you had suffered Post-Traumatic Stress Disorder. I prefer the diagnosis given by Dr Skinner, on the basis that she has specialised experience in the field of psychiatry.
I also note that Associate Professor Shashjit Varma (psychiatrist) provided two reports to Comcare dated 15 and 18 February 2019. I have adopted the opinion of Dr Skinner instead of that of A/Prof Varma, as Dr Skinner had the benefit of a greater range of primary medical and employment materials from which to form her opinion. In any event, the opinions of Dr Skinner and A/Prof Varma do not differ substantially on the fundamental points pertaining to liability.
Further, I note that, on the evidence before me, your condition was aggravated by the code of conduct investigation and ultimate termination of your employment on 5 June 2018, and that this aggravation has overtaken your primary condition.
The ACT's liability may cease no later than 7 August 2017 as this is the date on which you were notified about the investigation into your conduct and the date on which you suffered a non-compensable aggravation which appears to have overtaken your primary condition. The question of your ongoing entitlements will be determined upon receipt of claims that you may choose to make in respect of medical treatment, and incapacity for employment.
On 7 October 2020, the ACT applied for dismissal of Mr Paunovic’s Tribunal application pursuant to section 42B(1)(a) of the AAT Act because:
in circumstances where the application before the Tribunal is to review the Respondent's decisions to decline liability in respect of the Applicant's claimed psychological condition under section 14 of the SRC Act, the Respondent's decision to reverse its earlier determinations has removed the basis for the application.
On 13 October 2020, Mr Paunovic wrote to the Tribunal opposing the dismissal of his application and stating that:
According to my treating clinical psychologist Mr John Cochran and my GP Dr George Guirguis, I suffer from Post-Traumatic Stress Disorder associated with one punch attack by my Senior Manager at my workplace dated 6 January 2017. This view was supported by the Respondent's own appointed psychiatrist Dr Vanna who, in the "Opinion" paragraph makes a diagnoses that I suffer from "adjustment disorder with anxiety features, secondary to an assault at work, with post-traumatic stress disorder symptoms, like a flashbacks of the incident".
In summary, I am not satisfied with the Applicant's' offer that: 'The ACT's liability may cease no later than 7 August 2017'. If I was not punched and if I had not reported the incident, none of the subsequent consequences would eventuate. I would still be working for the ACT Government with the unblemished record, as during the previous 34 years. Hence I wish to continue with my application. [errors in original]
On 28 October 2020, the ACT provided written submissions in support of its dismissal application.
On 8 November 2020, Mr Paunovic provided submissions in response to the ACT’s dismissal application, relevantly as follows:
1. ACT Government accepted liability ceasing on 5 June 2018, although my suffering resulting from ‘one punch attack’ by my Senior Manager…on 6 January 2017 is ongoing. I have been treated for the PTSD by clinical psychologist Mr John Corcoran. I suffer hypervigilance, sleep disturbance, distressing and intrusive memories of the attack.
2. By trying to portray my case as vexatious, the Respondent ignored Lim v Comcare [2017] FCAFC 64t (see attached), and the report by their own appointed psychiatrist - Dr Varma.In Lim v Comcare, the Full Court of the Federal Court of Australia found that an error in law had been made by failing to answer the key question: would the employee have suffered the disease, or aggravation of that disease, in the absence of the claimed reasonable administrative action. In other words, if there are multiple employment related factors which have significantly contributed to the injury, the fact that one or more might be considered reasonable administrative action, is not sufficient to trigger the exclusion. All the factors need to be weighted up to determine whether, had it not been for the reasonable administrative action, would the injury still have occurred?
Even the Respondent's appointed psychiatrist Dr Varma, consistent with my GP and my treating Clinical Psychologist, diagnosed that I suffer from “adjustment disorder with anxiety features, secondary to an assault at work, with post-traumatic stress disorder symptoms, like a flashbacks of the incident”.
3. Despite not being medically qualified, the Respondent rejected Dr Varma’s report that they paid for, sending me instead to another psychiatrist - Dr Skinner! Nevertheless, even Dr Skinner was of the opinion that my condition, initiated by one punch attack, might not be resolved by now. Being violently assaulted by a Senior Manager within the safe confines of an office environment just does not happen.
4. As the Respondent could not prove that one punch attack, and subsequent bullying…on 10 January 2017 and his work friends, has not contributed significantly to my PTSD, they had to rely on disgustingly fabricated explicit quotes from [the complainant’s] complaint, to try to defame my character (see Respondents’ email dated 2 June 2020 as attached). After being ‘violently attacked’ by [the Senior Manager], he was removed from the workplace while his work friends continued bullying me. This concluded by [the complainant] submitting a fabricated complain on 17 July 2017, with assistance of [the Senior Manager] and their other work friends. Why [the complainant] hadn’t raised a sexual complaint during the seven years we worked together, if there was any reason for, instead waiting six months after I was punched by [the Senior Manager]! Upon a formal investigation all three of us ([the complainant] - the complainant, [the Senior Manager] and I) were dismissed, which further strengthens a view that I was setup. Nevertheless, I was mentally unwell to defend against her vexatious complaint.
5. The above demonstrates that, without the violent one punch attack by my Senior Manager I would not be suffering hypervigilance, sleep disturbance and distressing and intrusive memories of the attack, and I would still be working with an unblemished record, the same as for the previous 34 years in the ACT Government.
I seek order that the ACT Government accepts ongoing liability for my condition. [emphasis in original]
On 20 November 2020, the Tribunal held an interlocutory hearing to determine the ACT’s application for dismissal of Mr Paunovic’s substantive application before the Tribunal. The Tribunal carefully considered the written and verbal submissions made by the parties. At the hearing, the Tribunal decided to dismiss Mr Paunovic’s application and provided brief oral reasons for its decision. On 29 November 2020, Mr Paunovic requested written reasons for the Tribunal’s decision and these are those reasons produced pursuant to subsection 43(2A) of the AAT Act.
LEGISLATION
The SRC Act
Subsection 14(1) of the SRC Act provides:
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.
Section 4 of the SRC Act defines ‘impairment’ to mean:
the loss, the loss of the use, or the damage or malfunction, of any part of the body or of any bodily system or function or part of such system or function.
Section 4 also defines ‘ailment’ to mean ‘any physical or mental ailment, disorder, defect or morbid condition (whether of sudden onset or gradual development)’.
‘Injury’ is defined in subsection 5A(1) of the SRC Act to mean:
(a) a disease suffered by an employee; or
(b) an injury (other than a disease) suffered by an employee, that is a physical or mental injury arising out of, or in the course of, the employee’s employment; or
(c) an aggravation of a physical or mental injury (other than a disease) suffered by an employee (whether or not that injury arose out of, or in the course of, the employee’s employment), that is an aggravation that arose out of, or in the course of, that employment;
but does not include a disease, injury or aggravation suffered as a result of reasonable administrative action taken in a reasonable manner in respect of the employee’s employment.
Subsection 62(1) of the SRC Act provides that a ‘determining authority’ may, ‘on its own motion’, reconsider a determination made by it, whether or not a proceeding has been instituted or completed under Part VI of the SRC Act in respect of a reviewable decision made in relation to that determination.
The AAT Act
Section 42B(1) of the AAT Act provides the Tribunal with power to dismiss an application:
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.
CONSIDERATION
Was the ACT’s ‘own motion’ decision validly made?
The Tribunal is satisfied that the ACT’s ‘own motion’ reconsideration of the determination made in relation to Mr Paunovic’s workers’ compensation claim was validly made pursuant to subsection 62(1) of the SRC Act. That provision provides a determining authority the ability to reconsider a determination ‘whether or not a proceeding has been instituted or completed’ in respect of ‘a reviewable decision made in relation to that determination’. In Mr Paunovic’s case, the ACT, on its own motion reconsidered the determination made in February 2019 by Comcare and accepted liability for Mr Paunovic’s claimed injury, thus making the ACT liable to pay him compensation under section 14 of the SRC Act. as previously noted in these reasons, before 1 March 2019, Comcare was the determining authority in relation to Mr Paunovic’s workers’ compensation claim. Accordingly, after this time, the ACT became the relevant authority under the compensation scheme.
While the power to reconsider a determination under section 62 of the SRC Act is broad, the Tribunal has previously found that that it is inconsistent with behaving as a ‘model litigant’ to undertake an own motion reconsideration in the absence of new evidence and at a late stage of an application.[15] Here, the Tribunal is satisfied that the ACT has acted as a model litigant in undertaking an own motion reconsideration of the determination upon receipt of new evidence, being the report of Dr Skinner from March 2020 that was favourable to Mr Paunovic’s claim, and following a conciliation conference in July 2020. To this end, the ACT determined that it should accept liability for Mr Paunovic’s claimed injury, given the evidence favouring that conclusion. As a result of the ACT’s decision, Mr Paunovic can make claims for compensation in respect of his accepted injury pursuant to Part II of the SRC Act, which relevantly provides for compensation for medical expenses, incapacity and impairment.
[15] See Thomson and Comcare [2017] AATA 34 at paragraph 22.
Accordingly, the Tribunal finds that the ACT’s approach is consistent with the workers’ compensation scheme provided for by the SRC Act, allowing ‘progressive and evolving decision-making giving effect to the provisions of ongoing review of relief or entitlements’ and ‘adjustment or change in the light of events and circumstances which may subsequently happen’.[16]
[16] Telstra Corporation Ltd v Hannaford [2006] FCAFC 87 at paragraph 57, per Conti J.
Does the Tribunal retain jurisdiction?
The Tribunal is satisfied that it retains jurisdiction to consider the reviewable decision the subject of this proceeding. The ACT’s decision to reconsider the primary determination does not affect or disturb the Tribunal’s jurisdiction in relation to the reviewable decision that gave rise to Mr Paunovic’s application to the Tribunal. In this regard, the Tribunal follows earlier decisions in De Courcy Brown and Comcare (1997) 49 ALO 766, Moggach and Comcare [1995] AATA 379, and Rebeiro and Comcare (1996) 44 ALO 632.
Accordingly, the real issue for determination by the Tribunal is whether or not Mr Paunovic has anything to gain from his application remaining before the Tribunal. If not, then no legitimate purpose can be achieved by continuing with that application and it will have therefore become vexatious.
What is the injury?
Mr Paunovic made a claim in respect of a psychological ailment, which he described in his workers’ compensation claim form as ‘pain and suffering’ and PTSD, which symptoms included difficulty sleeping, nightmares and withdrawal.
The Tribunal sets out a brief summary of the medical evidence in this proceeding, as follows:
(a)Dr Shashjit Varma, Consultant Psychiatrist, examined Mr Paunovic on behalf of Comcare in January 2019, and considered that he had suffered an ‘adjustment disorder with anxiety features, secondary to an assault at work, with post-traumatic stress disorder symptoms, like flashbacks of the incident’ on 6 January 2017;[17]
(b)Dr George Guirguis, Mr Paunovic’s General Practitioner, provided a report to Comcare in February 2019, stating that Mr Paunovic ‘suffers from post-traumatic stress due to the work incident’ on 6 January 2017;[18]
(c)Mr John Corcoran, Mr Paunovic’s treating Psychologist, provided a report in June 2019 stating that he was, at that time, displaying symptoms ‘consistent with a diagnosis of Post-Traumatic Stress Disorder (PTSD)’;[19] and
(d)Dr Skinner, Consultant Psychiatrist, provided a report to the ACT on 17 March 2020 in which she said that, as a result of the incident on 6 January 2017, Mr Paunovic had suffered an ‘acute stress disorder’ and relevantly noted, including in relation to PTSD, that:
The sudden and unprovoked assault on 6 January 2017 would have caused shock and distress, and Mr Paunovic reports that he experienced symptoms consistent with a diagnosis of post-traumatic stress disorder, recurrent thoughts of the incident and recurrent nightmares. He did not display the symptoms of hypervigilance and avoidance that are characteristic of post-traumatic stress disorder. He would have experienced pain and suffering, severe enough to cause him to consult his general practitioner several days later for treatment for psychological symptoms. He described to the doctor that he felt embarrassed, humiliated and angry. It is my opinion that he would have suffered an acute stress disorder following the assault. [emphasis in original]
[17] T6, pages 72-78.
[18] T10, pages 94-99.
[19] T11, pages 103-104.
Given the nature of the workers’ compensation scheme provided for under the SRC Act, a claimant is not bound by the description of a claimed injury that has been provided on a claim form. The description of injury is necessarily given a practical interpretation. As the Federal Court explained in the case of Abrahams v Comcare:[20]
Nothing is more common than that medical diagnoses change and evolve, or are or become various. In my opinion, to hold that the Applicant was irretrievably asserting that he had a right carpal tunnel syndrome as the injury to his hand is to take an over-literal view of a document that, as I have indicated, should be beneficially, broadly and practically interpreted.
[20] (2006) 93 ALO 147 at 152, per Madgwick J.
In this regard, Mr Paunovic made a claim for a psychological ailment, however described, the significant feature of which was that it was claimed to be a reaction to the workplace incident on 6 January 2017. This claim is not now in dispute.
Has the ACT accepted liability for the injury?
The ACT has accepted liability for Mr Paunovic’s psychological injury that arose from the workplace incident in January 2017. The ACT found that this liability ‘may cease no later than 7 August 2017’, being the date on which Mr Paunovic received notice of the investigation into sexual harassment allegations that had been made against him by a work colleague and the date he suffered a non-compensable aggravation of his accepted condition. In this regard, Dr Skinner’s assessment was that the complaint of sexual harassment made in July 2017 that led to the investigation (with Mr Paunovic being notified of its commencement on 7 August 2017) and Mr Paunovic’s ultimate dismissal in June 2018 as a result of that investigation were ‘important contributing factors’ to his condition. That is, Mr Paunovic’s present condition was contributed to by events subsequent to the January 2017 incident.
As previously mentioned in these reasons, the ACT relied on the recently received expert opinion of Dr Skinner to determine that it was liable to pay compensation to Mr Paunovic in respect of an injury, which it described as an ‘acute stress reaction’ caused by the incident at his place of employment on 6 January 2017. This is the same injury for which Mr Paunovic claimed compensation and the reason he commenced this proceeding in the Tribunal. Notwithstanding that in Mr Paunovic’s claim form he described his condition as 'pain and suffering' and PTSD, it was open to the decision-maker, based on the medical evidence, to accept liability for a psychological ailment differently described to that propounded by Mr Paunovic.
The Tribunal is satisfied, in accordance with Dr Skinner’s opinion and reflecting the ACT’s own motion decision, that liability for Mr Paunovic’s accepted injury may cease no later than 7 August 2017 and questions of ongoing entitlements are subject to the provision of any future claims by Mr Paunovic to the ACT.
Is there anything else Mr Paunovic can achieve by the application continuing?
The Tribunal is satisfied that there is nothing else Mr Paunovic can presently achieve by this application continuing in the Tribunal. The issue for resolution at a substantive hearing of Mr Paunovic’s application would be whether he suffered an injury as a result of the workplace incident in January 2017. The ACT has now found that Mr Paunovic did suffer an injury and has therefore accepted liability to pay him compensation under the SRC Act pursuant to his claim for such compensation. In circumstances where Mr Paunovic has been successful in having his claim accepted by the ACT pursuant to section 14 of the SRC Act, the proceeding now has no utility; as submitted by the ACT, notwithstanding the different views as to the appropriate diagnosis, the substantive issue in this proceeding of whether the ACT is liable to pay Mr Paunovic compensation for an ‘injury’ under section 14 of the SRC Act is no longer contentious and has been decided in Mr Paunovic’s favour. This was the claim made by Mr Paunovic and he has been successful in that claim.
There are currently no other claims before the Tribunal in relation to Mr Paunovic’s accepted injury. The question of the ACT’s ongoing liability to pay compensation would arise if Mr Paunovic makes a claim for medical expenses or incapacity as a result of the accepted injury. To that end, and as confirmed by the ACT at the interlocutory hearing, it is open to Mr Paunovic to make any related claims for compensation regarding his accepted injury. Any such claims should be made to the ACT in the first instance. In this regard, given the evolutionary nature of the workers’ compensation scheme provided for under the Act, the nature and extent of Mr Paunovic’s injury can be revisited as necessary when any claims for different heads of compensation are made under Part II of the SRC Act. Additionally, it is currently open to Mr Paunovic to make claims for compensation in relation to his now accepted injury as a result of the January 2017 workplace incident. These include claims for compensation in respect of medical expenses or incapacity under sections 16 and 19 of the SRC Act, respectively.[21]
[21] Noting that section 20 of the SRC Act may be the applicable provision in circumstances where Mr Paunovic has stated that he is in receipt of a superannuation pension.
Although Mr Paunovic disagrees with the ACT’s diagnosis of his condition on the evidence of Dr Skinner, even if the Tribunal were to find in his favour on the issue of the correct diagnosis at or after a future hearing of his application, there would be no practical gain available to Mr Paunovic. In this regard, any future favourable decision of the Tribunal in this proceeding regarding the ACT’s liability to pay compensation for an ‘injury’ would not provide Mr Paunovic anything that he has not already obtained by way of the ACT’s recent own motion decision finding in his favour.
Has the application become ‘frivolous, vexatious, misconceived or lacking in substance’?
As set out above in these reasons, under section 42B(1)(a) of the AAT Act, the Tribunal may dismiss an application for the review of a decision, at any stage of the proceeding, if the Tribunal is satisfied that it is ‘frivolous, vexatious, misconceived or lacking in substance’.
Having regard to the above findings in these reasons, the Tribunal is satisfied that Mr Paunovic’s application has become ‘vexatious’; it has no serious purpose or value following the ACT’s recent own motion decision to accept liability for his compensation claim. That is, were the application to continue and be successful it would nevertheless be devoid of any practical effect.[22] Accordingly, as the Tribunal held in Williams and Australian Electoral Commission, ‘whilst the proceedings were not instituted vexatiously, they have become vexatious’[23] and they presently have no practical purpose and would therefore impose unnecessary burden and expense on both the ACT and the Tribunal were they to continue.
[22] Williams and Australian Electoral Commission [1995] AATA 160 at paragraph 40.
[23] ibid.
Should Mr Paunovic’s application be dismissed?
The Tribunal’s power to dismiss an application is not to be exercised lightly. It is a grave step to dismiss a person’s application without allowing the opportunity for it to proceed to its natural resolution through hearing and substantive decision, unless otherwise settled between the parties and by the associated consent decision of the Tribunal. However, in circumstances where the Tribunal has found that any future decision would be devoid of practical effect because of the ACT’s own motion decision accepting liability to pay compensation to Mr Paunovic under the SRC Act, the Tribunal is satisfied that the proceeding has become vexatious and should accordingly be dismissed. There is nothing further that Mr Paunovic can achieve by the application continuing in the Tribunal.
The Tribunal acknowledges that this will be a difficult decision for Mr Paunovic to accept, but the ACT has found his claim for compensation successful and it is therefore liable to pay him compensation for his injury under the SRC Act. There is accordingly now no further benefit the Tribunal can provide in relation to Mr Paunovic’s application for compensation the subject of this proceeding. The Tribunal again notes that Mr Paunovic may make future claims to the ACT for compensation in relation to his accepted injury.
DECISION
The Tribunal is satisfied that the application for review is vexatious and dismisses it pursuant to subsection 42B(1)(a) of the AAT Act. The Tribunal also orders, pursuant to the ACT’s submission, that the ACT pay Mr Paunovic’s reasonable costs of the application in the Tribunal pursuant to subsection 67(2) of the SRC Act.
I certify that the preceding 48 (forty-eight) paragraphs are a true copy of the reasons for the decision herein of Member W Frost.
.......[sgd].................................................................
Associate
Dated: 16 December 2020
Date(s) of hearing: 20 November 2020 Applicant: By telephone Solicitors for the Respondent: Mr Adrian Hearne, HWL Ebsworth Lawyers
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