QVLL and Military Rehabilitation and Compensation Commission (Compensation)

[2022] AATA 3203

QVLL and Military Rehabilitation and Compensation Commission (Compensation) [2022] AATA 3203 (4 October 2022)

Division:VETERANS’ APPEALS DIVISION

File Number:          2019/3196

Re:QVLL

APPLICANT

AndMilitary Rehabilitation and Compensation Commission

RESPONDENT

Decision

Tribunal:R Cameron, Senior Member

Date:4 October 2022

Place:Melbourne

The Tribunal DECIDES that the discretion under s 42B(1)(c) of the Administrative Appeals Tribunal Act 1975 (Cth) should not be exercised with respect to the psychiatric and psychological diseases, and the discretion under s 42B(1)(a) and (b) should not be exercised in relation to the insomnia and bruxism components of the applicant’s claim.

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

R Cameron, Senior Member

Catchwords

INTERLOCUTORY APPLICATION – claims lodged in relation to psychiatric/psychological diseases and insomnia and bruxism – additional report in evidence – application permitted under section 322 of the Military Rehabilitation and Compensation Act 2004-discretion should not be exercised

Legislation

Administrative Appeals Tribunal Act 1975 (Cth)

Military Rehabilitation and Compensation Act 2004 (Cth)

Cases

Commonwealth v Snell [2019] FCAFC 57
Keldie and Repatriation Commission (1996) 43 ALD  479
Mathews and Australian Securities and Investments Commission (2010) 118 ALD 23

Re: Westbrook and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs (2013) 60 AAR 23

REASONS FOR DECISION

R Cameron, Senior Member

4 October 2022

INTRODUCTION

1. This is an interlocutory application by the respondent seeking orders under s 42B(1) of the Administrative Appeals Tribunal Act 1975 (Cth) (“AAT Act”) for dismissal of the applicant’s application on two grounds, namely:

   (a)the psychiatric/psychological diseases component of the applicant’s application (however those diseases are diagnosed) is an abuse of process because the applicant is seeking to re-litigate an issue that has already been determined by the Tribunal in application number 2013/6027 (s 42B(1)(c)); and

   (b)the insomnia and bruxism components of the applicant’s application are vexatious or lacking in substance or have no reasonable prospect of success (ss 42B(1)(a) and (b)).

   RELEVANT FACTS

2. The applicant served in the Royal Australian Navy (“RAN”) from 28 August 2006 until 3 March 2007. The claim that is the subject matter of this application is one of several that he has made in this Tribunal.

3. By way of a claim made on 2 October 2011, he sought compensation for an injury to his left hand and post-traumatic stress disorder (“PTSD”) (“the 2011 claim”). At the same time as lodging the 2011 claim, the applicant attached to the 2011 claim an “injury or disease details sheet”. It should be emphasised that this document is not or was not treated as a claim form but an attachment to the claim form submitted by the applicant. In the “injury or disease details sheet” the applicant claimed he suffered from an injury or disease of “anxiety and depression secondary to sexual assault”. In the section of that form entitled “medical diagnosis” he wrote, “anxiety depression with adjustment disorder”.

4. Shortly after lodging the 2011 claim, the applicant was referred by the Department of Veterans Affairs (“the Department”) for assessment by a Consultant Psychiatrist, Dr Aizenstros. Dr Aizenstros prepared a report dated 5 December 2011 which was in evidence before the Tribunal.[1] On the second and third pages of that report, specific details are recorded by Dr Aizenstros of events that the applicant experienced in November and December 2006 and January 2007. These events included serious sexual assaults suffered by him in the course of his service with the RAN. For the purposes of these reasons, those details need not be reproduced. Dr Aizenstros made a final diagnosis of alcohol dependence, chronic PTSD and chronic pain syndrome in the left wrist.

   [1] Document T10 of the T documents.

5. The Department, by way of a letter dated 6 January 2012, requested a supplementary report from Dr Aizenstros after furnishing him with additional material including material concerning the sexual assault the applicant experienced in January 2007. Dr Aizenstros produced a supplementary report on 12 January 2012.[2] He made several conclusions in the supplementary report. One of them was as follows: “With this additional information regarding his (the applicant’s) background, history of untruthfulness, and recurring antisocial behaviour both at school prior to entry into the Navy, and during his time at HMAS Cerberus both before and after the alleged sexual assaults, I now change my diagnosis. I am unable to verify the truthfulness of his allegations of serious sexual assaults, and therefore am unable to confirm a diagnosis of PTSD”.[3] He diagnosed the applicant as suffering from alcohol dependence, chronic pain syndrome in the left wrist, antisocial personality disorder together with mixed anxiety and depressive disorder not otherwise specified.

   [2] Document T12 of the T documents.

   [3] Document T12, page 93 of the T documents.

6. A delegate of the respondent on 29 February 2012 refused the applicant’s claim for alcohol dependence, antisocial personality disorder and mixed anxiety and depressive disorder. The delegate did so as he made a finding that on the evidence before him none of the factors in the applicable Statements of Principles had been met in that claim. This was because he found that Dr Aizenstros had been unable to verify the version of events of the reported incident of sexual misconduct.[4]

   [4] The delegate’s Reasons for Decision are document T13 of the T documents.

7. Subsequently, the applicant sought review of the delegate’s decision before the Veterans Review Board (“the Board”). The Board on 14 November 2013 affirmed the delegate’s decision (“the Board’s decision). The Board’s reasons outline two incidents of sexual assault.[5] The Board concluded that on the basis of the material before it, it could not be reasonably satisfied that the applicant was subjected to a sexual assault in December 2006 or January 2007 and consequently, the factor in each relevant Statements of Principles relating to experiencing a category 1A stressor was not raised by the material.[6]  The Board was therefore reasonably satisfied that there was no connection between the applicant’s alcohol dependence, antisocial personality disorder or anxiety and depressive disorder and the relevant service as required by the applicable Act, namely the Military Rehabilitation and Compensation Act 2004 (Cth) (“MRC Act”).

   [5] Paragraphs 12 and 13 of the Board’s reasons are referred to. (Page 109 of the T documents). Document T17.

   [6] The Board considered that there were four relevant Statements of Principles to which a category 1A stressor applied. They are referred to in paragraph 19 of the Board’s Reasons for Determination dated 14 November 2013 and need not be reproduced. The Reasons for Determination are at T17 of the T documents.

8. On 21 November 2013, the applicant sought review of the Board’s decision in this Tribunal in application number 2013/6027. In that application, a Statement of Facts, Issues and Contentions was lodged on 24 October 2014 and an amended Statement of Facts, Issues and Contentions was subsequently lodged on 7 May 2015.

9. The two incidents outlined in Dr Aizenstros’ first report were relied upon by the applicant in support of his claim in application number 2013/6027.

10. Following a conciliation conference, the parties in application number 2013/6027 requested the Tribunal to make consent orders. Accordingly, on 23 January 2017, the Tribunal affirmed the Board’s decision by consent.[7]

    [7] Document T25 of the T documents.

11. The applicant lodged a further claim on 21 April 2017 for chronic PTSD, antisocial disorder, chronic insomnia, mixed anxiety and depressive disorder, substance abuse disorder, alcohol dependence, restless legs syndrome, bruxism and major depressive disorder (“the 2017 claim”). The date of the event or incident causing each of the conditions was said to have occurred on 28 January 2007 and for the condition of major depression and anxiety on 30 January 2007.

12. The Department referred the applicant for an assessment by a Psychiatrist, Dr Dennerstein. She prepared a report dated 17 November 2017. The conditions which she diagnosed the applicant as continuing to suffer from were chronic pain disorder, PTSD, substance use disorder (marijuana), generalised anxiety disorder with agoraphobia and persistent depressive disorder which was in partial remission with treatment. Dr Dennerstein also recorded that she had read the opinion of Dr Aizenstros. She observed that she had not been supplied with any material which would lead her to doubt the account of events provided by the applicant. Thus, she stated her opinion differed from that of Dr Aizenstros in his supplementary report that has been referred to earlier.

13. A delegate of the respondent on 7 February 2018 rejected the applicant’s claim (“the Determination”). The claim for PTSD was rejected because the delegate considered that he was unable to obtain evidence of the applicant having suffered an event that would meet the requirements of any of the factors in the applicable Statements of Principles. With respect to insomnia and bruxism, they were rejected because the conditions could not be confirmed by the medical evidence before the delegate. It was also recorded by the delegate that the applicant had been requested to obtain diagnoses for those conditions, however the Department had not received the required information.

14. On 7 February 2018, the applicant requested a reconsideration of the determination by the delegate to the Board. On 14 March 2019, the Board affirmed the determination in relation to chronic insomnia and bruxism as there was no diagnosis to answer the claims. It varied the diagnosis to answer the claim for “chronic PTSD, anxiety and depressive disorder, substance abuse disorder, alcohol dependence, antisocial disorder and major depression and anxiety” to “alcohol dependence, mixed anxiety and depressive disorder not otherwise specified and antisocial personality disorder”, thereupon affirming the determination under review as so varied.

15. The applicant on 5 June 2019 applied to the Tribunal seeking review of the 14 March 2019 decision of the Board.

    THE PARTIES’ SUBMISSIONS

    Psychiatric and psychological claim

16. The respondent seeks to rely upon s 42B(1)(c) of the AAT Act to contend that the psychiatric and psychological component of the current proceeding should be dismissed as an abuse of process. It does so because the proceeding constitutes, in the respondent’s submission, re-litigation of the consent decision made by the Tribunal on 23 January 2017 affirming the Board’s decision concerning the psychiatric condition.

17. The respondent relies upon several facts in support of this contention. It points to the fact that the lay evidence comprising statements from the applicant and his parents are the same statements that were used in the earlier proceeding. It also points to the fact that the applicant’s Statement of Facts, Issues and Contentions, with limited exceptions, is identical to the Statement of Facts, Issues and Contentions filed in the earlier proceeding.

18. One of the changes to the Statement of Facts, Issues and Contentions involves a reference to a report from Associate Professor Paoletti, a Psychiatrist. That report is dated 17 September 2014 and clearly predates the consent decision made in the earlier proceeding. It is contended that the Tribunal can be satisfied that the applicant had ample opportunity to consider this report when deciding to enter into the consent agreement which led to the decision made by the Tribunal on 23 January 2017.

19. The respondent contends that the report of Dr Dennerstein dated 17 November 2017, whilst it postdates the consent decision made on 23 January 2017, does not constitute new information or evidence capable of supporting a contention that the applicant’s decision to enter into the consent agreement in the earlier proceeding was based upon incorrect facts or limited knowledge. Put another way, the respondent argues that the report does not provide the applicant with new or additional information which would lay the foundation for a fresh claim.

20. It is further contended by the respondent that the opinions and diagnosis expressed by Dr Dennerstein in her report of 17 November 2017 are consistent with the opinion expressed by Associate Professor Paoletti. In that sense, it is said by the respondent that Dr Dennerstein’s report does not constitute new information capable of supporting a contention that the applicant’s decision to enter into the consent decision on 23 January 2017 was based upon incorrect facts or limited knowledge.

21. The applicant on the other hand rejects the contention of the respondent and says his claim does not constitute an abuse of process within the meaning of s 42B(1)(c) of the Act.

22. He contends that one needs to start by considering the actual words used in s 322(3) and (5) of the MRC Act, which permit not only one claim, but further claims provided there is additional evidence. This statutory framework, it is contended, enables further claims if additional evidence is forthcoming. It is submitted by the applicant that it cannot be an abuse of process if a party does what Parliament expressly permits it to do in s 322 of the MRC Act. In other words, there is no predisposition against re-litigation.

23. The additional evidence relied upon by the applicant is the report of Dr Dennerstein of 17 November 2017. It is said that such report draws a link between the incidents alleged by the applicant and the psychiatric conditions that have now been diagnosed from which he suffers. By reason of the consent agreement, there has been no previous hearing and a determination on the merits is what the applicant seeks. He emphasises the seriousness of the allegations, the fact that he was not represented in several of his applications and contends that there is an interest in having those allegations determined in the ordinary way.

    CONSIDERATION

24. Both parties referred to several passages from the case of Commonwealth v Snell (“Snell”),[8] in particular at [76] and [78]. It is important to note that this was a decision involving an application of the Seafarers Rehabilitation and Compensation Act 1992 (Cth). It is worthwhile reproducing those two paragraphs:

    “… An earlier decision by the decision-maker…. is information or material with which the Tribunal may inform itself (s 33(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.

    That is not to say that dissatisfied employees under the (Seafarers Rehabilitation and Compensation Act) might simply make repetitious claims based on substantially the same facts and require the Tribunal to constantly review the rejection of 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 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.

    ….”

    [8] [2019] FCAFC 57.

25. The Tribunal is not satisfied that the proceeding is of such a nature that the issues that have been raised by the applicant should not be accorded a final hearing.

26. It is not so satisfied because it accepts the applicant’s contention concerning the proper construction and application of the provisions of s 322 of the MRC Act. The use of the term “additional evidence” in s 322 is unconstrained. The statutory framework permits not only one claim but a second claim provided there is “additional evidence”. It does not use concepts that are well-known in law such as “fresh evidence” which, if it had been the case, would have placed a more restrictive construction on the section and so applied would have limited an applicant’s ability to make further applications arising from the same subject matter.

27. The Tribunal considers that Dr Dennerstein’s report of 17 November 2017 was additional evidence within the meaning of s 322 of the MRC Act. It is additional evidence rather than “new information”, which was the test or requirement referred to by the Full Court of the Federal Court in Snell. The statutory framework makes it different from that under consideration in Snell.

28. As for the respondent’s contention that the applicant had possession of Associate Professor Paoletti’s report prior to entering into the consent decision on 23 January 2017, the Tribunal does not find that it prevents the applicant from bringing this application as he does. It is true of course that the diagnoses and conclusions reached by Associate Professor Paoletti, particularly with respect to post-traumatic stress disorder, depressive disorder and the like are the same, if not similar to those reached by Dr Dennerstein. However, Dr Dennerstein’s report is an additional report and in the view of the Tribunal constitutes additional evidence within the meaning of s 322 of the MRC Act.

29. It may well be that the applicant was indeed fortified by the contents of Dr Dennerstein’s report largely aligning with that of Associate Professor Paoletti and prompted to bring this application. Given that Dr Dennerstein’s report is additional evidence, it cannot be an abuse of process within the meaning of s 42B(1)(c) of the AAT Act for the applicant to bring this proceeding as he is doing what Parliament has permitted in s 322 of the MRC Act.

30. Accordingly, the Tribunal will not dismiss the psychiatric/psychological claims made by the applicant under s 42B(1)(c) of the Act.

    Insomnia and Bruxism

31. The applicant has contended with respect to the claim for bruxism that, subject to the outcome of the application with respect to psychological claims, liability for this condition may be accepted by the respondent.

32. No medical evidence has been produced by the applicant in support of the claim for the condition of bruxism.

33. Concerning insomnia, it is contended by the applicant that it may require further medical investigation to determine if it is a diagnosable medical condition or a comorbidity of the psychological condition suffered, that is the subject of the application before the Tribunal.

34. The respondent contends that it is open to the Tribunal to make an order under s 42B(1)(a) and (b) dismissing this aspect of the application on several grounds.

35. It starts by pointing out that on 28 November 2017, the respondent made a request under s 330 of the MRC Act seeking that the applicant provide a diagnosis made by an appropriate medical specialist for these claims. No response was provided by the applicant. A further request was made on 16 January 2018. Once again, no response was forthcoming from the applicant. These claims were rejected by the respondent on 7 February 2018 on the grounds that they were not confirmed by medical evidence.

1. On 14 March 2019, the Board affirmed the determination with respect to these claims. Once again, this was because there was no medical evidence before it in support of them.

2. There has been no medical evidence produced with respect to these claims to date and, apart from a brief reference to those claims in the applicant’s Statement of Facts, Issues and Contentions, no other references are made to them or proper rational argument developed concerning them. There is certainly no evidentiary foundation or platform supporting such claims.

3. The Tribunal accepts the contention of the respondent that several matters are relevant to whether or not these claims should be dismissed under s 42B(1)(a) and (b).

4. They may be summarised as follows:

   (a)the application for review is not at an early stage;

   (b)the applicant is represented;

   (c)no evidence (lay or medical) has been filed and served in relation to such claims;

   (d)no contentions have been advanced in respect of such claims; and

   (e)there is nothing in the material filed on behalf of the applicant that suggests he has not submitted, or is not in a position to submit, all of the evidence (in particular the medical evidence) on which he proposes to rely.

5. The Tribunal agrees with the respondent’s contentions concerning these claims. It is surprising indeed, given the length of time that this matter has been on foot, not to mention the several requests that have been made to the applicant to produce medical evidence in support of the claimed conditions, that none have been forthcoming. This observation is reinforced by the Board’s decision which found that these claims were rejected because there was no evidence to support them. If these claims had any merit, one would have expected proper medical evidence to have been produced in support of them and produced long ago. This point is amplified by the fact that several requests have been made of the applicant to furnish same and there is the finding of the Board that such claims were rejected due to a lack of medical evidence.

6. Notwithstanding these findings, the Tribunal considers that the power open to it under s 42B of the AAT Act is applicable to the whole of an application and cannot be used to dismiss one part of it. Support for this conclusion is found in several authorities including Keldie and Repatriation Commission,[9] Mathews and Australian Securities and Investments Commission[10] and Re: Westbrook and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs.[11] Therefore, having found that it will not dismiss the psychiatric/psychological claims made by the applicant under s 42B(1)(c) of the AAT Act, the Tribunal cannot not dismiss the remaining part of the application before it.

   [9] (1996) 43 ALD 479 at [10].

   [10] (2010) 118 ALD 23 at [150].

   [11] (2013) 60 AAR 23 at [13]

   CONCLUSION

7. By reason of the foregoing matters the Tribunal will not dismiss the application for review of the reviewable decision made on 14 March 2019 under s 42B(1) of the AAT Act.

   DECISION

8. The Tribunal refuses the respondent’s application to dismiss the application under s 42B(1) of the AAT Act.

I certify that the preceding 43 (forty-three) paragraphs are a true copy of the decision herein of R Cameron, Senior Member 44.      

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

Associate

Dated: 4 October 2022

45.      

46.     Date of hearing:

3 June 2022

Counsel for the Applicant:

Solicitors for the Applicant:

M Black

KCI Lawyers

Counsel for the Respondent:

Solicitors for the Respondent:

C Dowsett

Sparke Helmore Lawyers