Re Filsell and Comcare

Case [2009] AATA 90


ADMINISTRATIVE APPEALS TRIBUNAL

No: 2007/4777

General Administrative Division

Re: Jeffrey Filsell
Applicant

And: Comcare
Respondent

CORRIGENDUM TO DECISION NO. [2009] AATA 90

TRIBUNAL:             Deputy President D G Jarvis

DATE:                      13 February 2009

PLACE:                   Adelaide

The Tribunal directs the Registrar, pursuant to subsection 43AA(1) of the Administrative Appeals Tribunal Act 1975 (Cth), to alter the text of the decision in the interlocutory application by amending an incorrect reference to the Administrative Appeals Tribunal Act 1975 (Cth) in the third to last line of paragraph 59 from section “45B” to “42B”.

(Signed)
  D G Jarvis
  (Deputy President)

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2009] AATA 90

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No   2007/4777

GENERAL ADMINISTRATIVE DIVISION )
Re JEFFREY FILSELL

Applicant

And

COMCARE

Respondent

DECISION

Tribunal Deputy President D G Jarvis

Date12 February 2009

PlaceAdelaide

Decision The tribunal refuses the respondent’s application to dismiss the application for review pursuant to s 42B of the Administrative Appeals Tribunal Act 1975 (Cth).

D G Jarivs
  (Signed)
  Deputy President

CATCHWORDS

COMPENSATION – Commonwealth employee – liability accepted for physical injury – subsequent claim for psychiatric injury caused by employment – rejection of claim affirmed by consent decision of AAT – new claim for psychiatric injury – held that AAT not functus officio – new evidence that injury was employment related – relevance of new evidence and justice of the case – effect of consent decision on future claim for same asserted injury – validity of consent decision – cause of action estoppel and issue estoppel do not apply to application for review of subsequent reviewable decision made under Safety, Rehabilitation and Compensation Act – general principle that applicants may not re-visit issues previously determined by AAT – Tribunal not satisfied that later proceedings are frivolous or vexatious.

PRACTICE AND PROCEDURE – Commonwealth employee – liability accepted for physical injury – subsequent claim for psychiatric injury caused by employment – rejection of claim affirmed by consent decision of AAT – new claim for psychiatric injury – held that AAT not functus officio – principles applicable to applications to dismiss proceedings as frivolous or vexatious – general principle that applicants may not re-visit issues previously determined by AAT – fresh evidence that injury was employment related – relevance of new evidence and justice of the case – effect of consent decision on future claim for same asserted injury – validity of consent decision – cause of action estoppel and issue estoppel do not apply to application for review of subsequent reviewable decision made under Safety, Rehabilitation and Compensation Act – Tribunal not satisfied that later proceedings are frivolous or vexatious.

Safety, Rehabilitation and Compensation Act 1988 (Cth), ss 4, 14 and 62

Administrative Appeals Tribunal Act 1975 (Cth), ss 42B and 42C

Abrahams v Comcare (2006) 93 ALD 147

Administration of Papua and New Guinea v Daera Guba (1973) 130 CLR 353

Attorney-General v Wentworth (1988) 14 NSWLR 481

Australian Postal Corporation v Oudyn (2003) 73 ALD 659

Blair v Curran (1939) 62…

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AGLC
Re Filsell and Comcare [2009] AATA 90
Case
[2009] AATA 90
Decision Date

CaseChat Overview and Summary

In this case, the applicant, a Commonwealth employee, had previously made a claim for psychiatric injury caused by his employment. This claim was rejected and the decision was affirmed by a consent decision of the Administrative Appeals Tribunal (AAT). The applicant then made a new claim for the same psychiatric injury. The respondent, Comcare, applied to the Administrative Appeals Tribunal for an order dismissing the applicant's new claim as frivolous or vexatious. The tribunal was required to decide whether it was functus officio and whether the later proceedings were frivolous or vexatious.

The tribunal considered whether the AAT was functus officio and thus unable to review the merits of the new claim. The tribunal noted that there was no authority suggesting that the AAT would be functus officio in such circumstances. The tribunal further considered whether the later proceedings were frivolous or vexatious. It found that the application did not satisfy the principles applicable to such applications, as the applicant had provided fresh evidence that the injury was employment related. The tribunal was not satisfied that the later proceedings were frivolous or vexatious.

The tribunal held that cause of action estoppel and issue estoppel do not apply to an application for review of a subsequent reviewable decision made under the Safety, Rehabilitation and Compensation Act 1988 (Cth). The tribunal also noted that there is a general principle that applicants may not re-visit issues previously determined by the AAT, but that this principle may be displaced if there is fresh evidence. The tribunal was not satisfied that the later proceedings were frivolous or vexatious.

The tribunal refused the respondent's application to dismiss the application for review.

Orders

Orders of the court

The tribunal refuses the respondent’s application to dismiss the application for review pursuant to s 42B of the Administrative Appeals Tribunal Act 1975 (Cth).

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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