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.
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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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).