Romanov-Hughes and Comcare
[2004] AATA 514
•21 May 2004
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2004] AATA 514
ADMINISTRATIVE APPEALS TRIBUNAL )
) No V03/1322 & V03/1323
GENERAL ADMINISTRATIVE DIVISION ) Re ALEXANDER ROMANOV-HUGHES Applicant
And
COMCARE
Respondent
DECISION
Tribunal Mr J Handley, Senior Member Date21 May 2004
PlaceMelbourne
Decision The application by the respondent to dismiss these applications as frivolous or vexatious is refused. (Sgd) J Handley
Senior Member
PRACTICE AND PROCEDURE – claim by applicant for compensation for back and foot injuries – previous hearings in the Tribunal and findings of fact – application to dismiss – whether proceedings frivolous or vexatious – application dismissed
Administrative Appeals Tribunal Act 1975 (Cth) s33 and s42B
Re Quinn and Australian Postal Corporation (1992) 15 AAR 519
Attorney-General v Wentworth (1998) 14 NSWLR 481
Comcare v Grimes and Another (1994) 33 ALD 548
Hatchett v Bowater Tutt Industries Pty Ltd (No 2) (1991) 28 FCR 324
Re Matusko and Australian Postal Corporation (1995) 21 AAR 9
Re Mulheron and Australian Telecommunications Corp (1991) 23 ALD 309; 14 AAR 42
Morales v Minister for Immigration and Multicultural Affairs [1998] 334 FCA
REASONS FOR DECISION
21 May 2004 Mr J Handley, Senior Member 1. The respondent has applied for an Order pursuant to s42B of the Administrative Appeals Tribunal Act 1975 (“the Act”) to dismiss both applications lodged by the applicant.
2. Section 42B of the Act is reproduced in the following terms:
42B Power of Tribunal where a proceeding is frivolous or vexatious
(1)Where an application is made to the Tribunal for the review of a decision, the Tribunal may, at any stage of the proceeding, if it is satisfied that the application is frivolous or vexatious:
(a)dismiss the application; and
(b)if the Tribunal considers it appropriate, on the application of a party to the proceedings, direct 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.
(2)A direction given by the Tribunal under paragraph (1) (b) has effect despite any other provision of this Act or a provision of any other Act.
(3)The Tribunal may discharge or vary such a direction.
3. The applicant has issued two applications on 2 December 2003 to review decisions made by Comcare. He has been an applicant in seven previous applications for review before this Tribunal which have resulted in Reasons For Decision being published by three Tribunal Members. He has also been the subject of a previous application to have proceedings dismissed pursuant to s42B of the Act.
4. In application V1997/806 the applicant sought to review decisions made by Comcare to deny liability with respect to feet and ankle injuries and musculo-skeletal pain behind his knees. Senior Member Dwyer and Dr Fricker delivered Reasons For Decision on 6 July 1998 affirming the decisions which were then under review.
5. In 1998 and early 1999 the applicant lodged three further applications (V1998/1379, V1998/1398 and V1999/494) seeking to review decisions made by Comcare denying liability with respect to compensation associated with treatment by a physiotherapist, the provision of specialised footwear and for incapacity payments within a defined period.
6. Senior Member Gibbs delivered written Reasons For Decision on 22 May 2000 where he set aside the decision with respect to footwear and determined that the respondent was liable to pay, as compensation, the cost of the footwear. He varied a decision of the respondent concerning compensation for absences when attending for physiotherapy treatment, following a concession by the respondent. He also decided that the decision with respect to incapacity benefits for a defined period be affirmed.
7. In late 2000 and early 2001 the applicant lodged further proceedings (V2000/1174, V2001/109 and V2001/110). He then sought to review decisions made by Comcare where liability was denied for incapacity payments with respect to his left ankle, to deny compensation with respect to the injuries of L4/L5 and L5/S1 and decisions concerning the reasonable costs of the provision of special footwear, compensation with respect to a limited period of incapacity arising out of a foot and ankle injury and a decision ceasing liability with respect to the left ankle.
8. Before those proceedings were heard, Senior Member Dwyer heard an application at the initiation of the respondent to dismiss application V2000/1174 upon the basis that it was frivolous or vexatious. On 20 December 2001 written Reasons For Decision were published and the application was refused ([2001] AATA 1030).
9. The three applications immediately referred to above were heard by Member Friedman and on 14 December 2003 written Reasons For Decision were published. It was decided that the decision under review in application V2000/1174 be affirmed and a similar decision was made with respect to application V2001/109. Those two applications concerned decisions with respect to a claim for incapacity payments for the left ankle and a denial of compensation with respect to the applicant’s lower back. In application V2001/110 it was decided that the decision under review be set aside and in substitution the applicant was entitled to compensation for incapacity payments for two defined limited periods. In all other respects the decision under review was affirmed.
10. In the present applications, the applicant seeks to review determinations respectfully made as follows:
V2003/1322 The injury claimed is “slowly progressing tibialis posterior tendon dysfunction and spring ligament stretching”. Liability for payment of compensation for that condition was denied.
V2003/1323 The injury claimed is “chronic back pain (annular tear and loss of disc height at L5/S1)”. Liability to pay compensation for that injury was denied.
11. The history of the applicant’s claims upon the respondent was summarised in the written Reasons For Decision of Member Friedman. Additionally he referred to claims that had been made upon the respondent which were not the subject of litigation. Some of those claims made were accepted by the respondent and compensation was paid.
12. The respondent in the present application also lodged a comprehensive and detailed history of the claims made upon the respondent to date and the outcome of proceedings in the reviews of Decisions conducted by this Tribunal.
Written Submissions Of The Respondent
13. The respondent in its written submissions contended that the decision of the respondent made on 7 October 2003 with respect to application V2003/1322 concerned “the same injury that had already been previously considered and reviewed by the Tribunal on 14 February 2003” (in the Decision of Member Friedman) (refer submissions at paragraph 39).
14. In relation to the back injury which is the subject of application V2003/1323 the respondent in its written submission contended that the Decision of Member Friedman in the previous proceedings “found no liability for any injuries to the applicant’s back. Furthermore, that the applicant’s symptoms did not arise in compensable circumstances”.
15. In its summary of written contentions the respondent submitted that the Decision of Member Friedman on 14 February 2003 “has already decided that the Applicant has no entitlement to ongoing compensation in respect of his left ankle. . . and that the respondent is not liable to pay compensation to the applicant for injuries to the applicant’s back. The respondent therefore submits that the Tribunal should not allow a finally determined matter to be re-litigated (res judicata)”.
16. Additionally it was submitted that the medical conditions from which the applicant now applies for compensation are identical to the injuries previously sought and over which evidence was heard and findings of fact were made. It was submitted that the applicant did not appeal the Decisions made by Member Friedman and the evidence presented by the applicant in support of his present applications were identical to the evidence previously considered, save for a form completed with respect to an application for a Centrelink benefit. Additionally it was submitted that the back injury for which the applicant presently seeks to claim, occurred at his home in non-compensable circumstances.
17. The respondent concluded that the applications presently before the Tribunal should be dismissed as vexatious or frivolous under s42B of the Act.
Oral Submissions Of The Respondent
18. At the hearing of the present applications, Mr Gourlay on behalf of the respondent submitted that the decision of Member Friedman should be regarded as a comprehensive review with respect to the claims made by the applicant. It was submitted that his Decision comprehensively determined the respondent’s liability as a result of the extensive evidence heard and the lengthy submissions made. He said it was clear from the Decision of Member Friedman that a thorough history of the litigation initiated by the applicant against the respondent had been understood and considered and the applicant should not be permitted to pursue his present applications.
19. Additionally it was submitted that the injuries now sought to be claimed were in fact the same injuries which were the subject of the proceedings before Member Friedman and over which he made findings of fact.
20. It was acknowledged that issue estoppel had no application in AAT proceedings. Nonetheless it was submitted that the Tribunal should exercise the flexibility of its powers under s33 of the Act and in reliance of a Decision of the Tribunal in Re Quinn and Australian Postal Corporation (1992) 15 AAR 519 (“Quinn”) it should presently be decided that the applicant be prohibited from pursuing his present applications. It was submitted that the applicant has not produced any new or additional evidence and the legislative intent inherent by s33 of the Act should be understood as prohibiting the continuity of these proceedings. It was also submitted that in fairness and in the exercise of justice, the respondent is entitled to regard its relationship with the applicant to have been completed, no less because there have been three contested hearings before the Tribunal involving extensive evidence and findings of fact.
21. In so far as the alleged back injury is concerned, which is the subject of the application in V2003/1323, Mr Gourlay submitted that Member Friedman found as a fact that the (lumbar) back injuries had resolved and that the respondent had no ongoing liability. It followed therefore that the applicant should not be permitted to claim compensation for back injuries. Mr Gourlay acknowledged that the applicant had had a previous thoracic injury (for which the respondent accepted liability) which produced symptoms of a different nature to the symptoms produced by the lumbar injury. Nonetheless he submitted that the claim then made for the thoracic injury was a “self contained claim” of limited duration of incapacity and different in nature to the lumbar injury. He said the thoracic injury had “finite consequences” and there was nothing presently before the Tribunal to support thoracic injury giving any entitlement to compensation.
22. Mr Gourlay also submitted that in the hearing before Member Friedman, the applicant did not allege any ongoing consequences by reason of any thoracic injury and the applicant did not seek to attribute any consequence by the thoracic injury to employment nor did he seek any compensation in those proceedings arising out of a thoracic injury.
Written Submissions Of The Applicant
23. Prior to the hearing of the present application the applicant lodged extensive written submissions and 66 pages of documents in support of his submissions.
24. Most of these documents were contained within T-documents from previous proceedings. The written submissions contained a history of claims made upon the respondent and contained extensive references to conversations the applicant has had with various persons responsible for processing his claims, including persons from the employer’s Personnel Department, his Managers and Rehabilitation providers. Additionally, the contentions contained assertions made by the applicant which are irrelevant for present purposes but which extend to his perception of collusion or collaboration between the respondent and the Department of Defence to deny him compensation, complaints directed towards the respondent for failing to forward correspondence to his postal address and other comments of a defamatory nature with respect to some medical practitioners. These comments are unhelpful and unnecessary and misdirected. If, for example, the applicant genuinely has a complaint with respect to medical practitioners, he should exercise any rights that may be available to him at an appropriate forum or agency. Complaints that he has made concerning the conduct of the respondent or the Department of Defence are irrelevant with respect to his entitlement, if any, to compensation for the injuries now claimed and if allowed to stand can only divert a focus away from the only issue of relevance presently, namely, whether the two current applications should be dismissed as being vexatious or frivolous.
25. The applicant did submit continuing total incapacity and entitlement to compensation for injuries affecting his left foot, ankle and lower back. The documents submitted with his written submissions – which were received after the respondent lodged its submissions, do contain two additional medical reports, being a report from Ms Alysandratos of 23 December 2003 (a chiropractor) and Dr Sutcliffe (an occupational physician) of 20 February 2004. In addition to the applicant’s reliance upon those reports in support of his entitlement to continue with the present proceedings, the applicant submitted that the respondent was incorrect in “linking his new back injury claim to the previous claim” (claim No. 69119/08) which related to a workplace accident on 20 June 1994. He submitted that the present back injury claim relates to an “RSI” type injury which developed over many years but worsened in November 2000.
26. The applicant concluded in his written submissions that “the respondent has behaved in an irrational, irresponsible, dishonest and vexatious way in dealing with these new claims” (refer written submissions at paragraph 69).
Oral Submissions Of The Applicant
27. The applicant appeared without representation at the hearing of these applications and submitted that the content of his claims for compensation which have given rise to these proceedings were a consequence of the questions asked of him. He acknowledged that he has claimed for a lumbar injury when in fact he now seeks to also claim for a thoracic injury. He submitted that the description of injury given in his claim form at question 13, “chronic back pain (annular tear and loss of disc height at L5/S1)”, was in response to the question asked of him, “what is the precise diagnosis as stated on your medical certificate?”. Additionally he submitted that an episode on 20 June 1994 which initiated foot and back injuries was referred to in answer to a question at 18(a) in the compensation claim form because the question then asked of him was “have you ever had a similar injury or illness before work related or otherwise (even if you think it is unrelated to this injury or illness)?”.
28. Whilst the applicant continued to assert his complaints concerning the administration of his application by Comcare and the Department of Defence, he eventually focussed on the injuries that he in fact sought to claim compensation in the current proceedings and submitted that his current claims for foot and back injuries “revolve around the worsening back condition of November 2000”. The applicant submitted that both applications therefore were “inter connected”. He submitted that he had previously claimed compensation for thoracic spinal injury where liability was admitted and compensation was paid for a finite period. He said that Comcare did not “close off the claim” and it should be regarded as remaining “open”. He said he in fact is now seeking to recover compensation for thoracic injury and, when pressed by me to define or at least articulate the basis upon which he sought to claim compensation he submitted:
(i)He presently suffers from a lumbar injury which causes pain to travel up his spine to the middle of his back; and
(ii)Whilst in some respects he does now seek to claim compensation for the “same injury”, it is not “static” and the foot and ankle injuries are “changing”; and
(iii)There is an inter relationship between the thoracic and lumbar injuries and they are deteriorating, in part, because of poor posture; and
(iv)Some relief from back pain is achieved by standing and walking but this has caused, by weight bearing, deterioration and increasing pain in his left foot and ankle.
Oral Submissions In Reply
29. In reply Mr Gourlay submitted that the new medical reports of Dr Sutcliffe and Ms Alysandratos contain no reference at all to any thoracic injury save that in the report of Dr Sutcliffe she refers to a history of back pain related to repetitive rotation of the applicant’s back whilst performing alternative work duties in 1998 which she then attributed to musculo-ligamentous strain. On the history that she obtained, it had “become more extensive and more severe”. (For the purposes of this submission it was assumed that the alternative work duties in 1998 as referred to by Dr Sutcliffe were a reference to the claim made in 1998 for compensation for a thoracic injury).
30. Mr Gourlay however pointed to the claim form completed by the applicant where he specifically referred to lower back injury and described it as “base of spine”. He submitted that the claim form contained no reference to any deterioration associated with increased standing or walking, thereby causing a deterioration in his foot and ankle injuries. It was submitted that a claim has not been made by the applicant with respect to his thoracic spine and it would, in the circumstances, be unfair and unjust and beyond the spirit of s42B of the Act to permit the applicant to now claim for thoracic injury.
31. Additionally Mr Gourlay submitted that, having the benefit of being involved in the hearing before Member Friedman, the thoracic spinal injury – if any – was considered by Member Friedman and he had been mindful of it when making his decision ceasing liability for back injuries.
CONCLUSION AND REASONS FOR DECISION
32. In Attorney-General v Wentworth (1998) 14 NSWLR 481 at 491 (“Wentworth”) Roden J decided:
It seems then that litigation may properly be regarded as vexatious for present purposes on either objective or subjective grounds. I believe that the test may be expressed in the following terms:
1.Proceedings are vexatious if they are instituted with the intention of annoying or embarrassing the person against whom they are brought.
2.There are vexatious if they are brought for collateral purposes and not for the purpose of having the court adjudicate on the issues to which they give rise.
3.They are also properly to be regarded as vexatious if, irrespective of the motive of the litigant, they are so obviously untenable or manifestly groundless as to be utterly hopeless.
33. In Hatchett v Bowater Tutt Industries Pty Ltd (No 2) (1991) 28 FCR 324 (“Hatchett”) Von Doussa J decided that an applicant who might even hold a mistaken belief as to a state of facts would be entitled to “a day in court” because it may be that facts if found to be correct, would support the claim. His Honour found that it would “operate very unfairly to an applicant to prejudge the issues without affording him/her an opportunity to support his/her case with appropriate evidence”.
34. In Quinn the Tribunal considered the operation of s33 of the Act. The Tribunal decided that it would “seem inappropriate and unreasonable to us for there to be re-litigation without reason of the same issues before the Tribunal. It would be unjust to applicants to have to face a situation where a decision may be made today and re-litigated tomorrow on the very same facts. The Tribunal should not generally allow re-litigation of issues already decided and previous Tribunal decisions should be regarded as establishing the matters actually decided and of the grounds for the determination”. Whilst the Tribunal was then considering an application concerning the review of a decision made by a respondent following a previous finding of the Tribunal in favour of an applicant the Tribunal ultimately concluded that if there are “attempts to adduce or present evidence the subject of previous decisions, the Tribunal should consider the evidence and make appropriate directions as to its admissibility during the course of the hearing, applying the principles we have enunciated in these reasons”.
35. Wilcox J in Comcare v Grimes and Another (1994) 33 ALD 548 (“Grimes”) considered previous decisions as to issue estoppel (refer Bogaards v McMahon(1988) 80 ALR 342; 15 ALD 313) and also considered Tribunal decisions of Re Mulheron and Australian Telecommunications Corp (1991) 23 ALD 309; 14 AAR 42 and Quinn and concluded that the Tribunal as the “master of its own procedures, will not allow a finally determined matter to be relitigated”.
36. In Re Matusko and Australian Postal Corporation (1995) 21 AAR 9 the Tribunal recited a number of issues which should be considered if the “flexible procedures” of the Tribunal are invoked where it is perceived that relitigation will ensue. (For the purposes of the present application one of those issues was “a change in circumstances or fresh evidence”).
37. The Tribunal then concluded that the AAT “should usually consider the evidence proposed to be called and make appropriate directions as to its admissibility during the hearing, as suggested in Re Quinn, rather than in a directions hearing prior to the substantive hearing”.
38. In Morales v Minister for Immigration and Multicultural Affairs [1998] 334 FCA a Full Federal Court considered previous Tribunal and Federal Court decisions and acknowledged that s33 of the Act “provides a series of bases on which the Tribunal can decline to revisit previously determined matters or, as the situation demands, reconsider the totality of the matter or some aspect of it”. The Court then concluded:
In our view, the essentially administrative nature of the Tribunal's function and the nature of its task in looking to the correct or preferable decision, in circumstances where it is to have regard amongst other things to the dictates of fairness, point to the conclusion that the Tribunal may, in appropriate circumstances, conclude that a previous decision should be applied again as the correct and preferable decision when it is sought to revisit the earlier decision at some later time. Of course, the circumstance that a Court has set aside an entire decision may mean that it is either impermissible, or quite inappropriate, to adopt such a course but that would not necessarily be the case where, as here, a particular determination had not itself been the subject of challenge.
39. In the review of the decision by Member Friedman concerning the back injury, the applicant claimed for a condition he described as “small central circumferential annular tear with mild degeneration of the L5/S1 disc of spine” (refer to T-documents in V2001/109 at p47). The decision-maker, in response, decided to deny liability to pay compensation with respect to disc degeneration at L4/L5 and L5/S1.
40. There was no claim made by the applicant and no decision made by the respondent concerning the thoracic spine. Accordingly any liability with respect to the thoracic spine could not be reviewed.
41. Member Friedman referred to the thoracic injury of 1998 in his reasons (paragraph 19) but on review of his decision, the reference to the thoracic injury is within the chronology of injuries suffered and claims made by the applicant.
42. In his Reasons For Decision with respect to the back injury, Member Friedman referred to an apparent complaint made by the applicant at the hearing of thoracic pain by reason of undertaking photocopying duties in employment but there was then no evidence associating thoracic pain with lumbar spinal injury as alleged (paragraph 39).
43. Member Friedman referred to “the back injury” in the absence of a report of “back pain” following “the incident”. MRI scans then available were referred to and were recorded as demonstrating an annular tear at the base of the spine. Member Friedman found that there was “no demonstrable link between the back problem suffered by the applicant and the accident” and concluded that the respondent was not liable to pay compensation to the applicant for incapacity “due to injuries to the applicant’s back” (refer Reasons For Decision at paragraph 49).
44. Whilst I am satisfied that there was no basis for Member Friedman to review entitlement with respect to thoracic spinal injury, I am satisfied, having read his reasons that his reference to “back pain”, “back problems” and “back injuries” were a reference only to the back injury which was then the subject of review, namely a lumbar back injury.
45. In the present applications, I would assume that the respondent is annoyed with the applicant bringing the proceedings and would prefer that he regard his entitlements against Comcare as having been decided and therefore ended. I cannot however find that these proceedings have been instituted “with the intention of annoying or embarrassing” nor can I find that the proceedings have been instituted for any “collateral purpose”. Whilst it was difficult to have the applicant focus on the basis on which he sought to recover compensation – and it may be upon hearing that the Tribunal will decide that the respondent has no liability – nonetheless it cannot presently be decided that the proceedings are “so obviously untenable or manifestly groundless as to be utterly hopeless” (refer Wentworth).
46. Having regard to the decision of Wilcox J in Grimes it cannot be found that the previous proceedings have “finally determined (the) matter to be relitigated”. The present application involves a claim for compensation for thoracic injury which was not the subject of previous proceedings.
47. Administrative review permits a relatively unfetted opportunity for citizens to review the decisions made by government or its agencies. It would be in my view an extreme and unusual circumstance for the Tribunal to find that proceedings are frivolous or vexatious. Ultimately the applicant may fail in these applications, but he should not be denied the opportunity to seek compensation upon the basis that he now pleads.
48. It would appear that the applicant is also seeking a decision upon the respondent’s liability for his foot/ankle injury/ies. He is now asserting a new basis for pain and discomfort (refer paragraph 28 earlier) which, if factually correct, would support his application. To “prejudge the issues” – and the issues in the application made concerning the back injury – would be unfair and deny him the opportunity to support his case with appropriate evidence (refer Hatchett).
49. I cannot, for the above reasons find that the applications lodged by the applicant are frivolous or vexatious. I propose to dismiss the respondent’s application. I will direct that the applications be listed for a Directions Hearing to set an agenda for the filing by both parties of documents in support and completion of investigations.
I certify that the 49 preceding paragraphs are a true copy of the reasons for the decision herein of
Mr J Handley, Senior MemberSigned: Holly Weston
AssociateDate of Hearing 19 April 2004
Date of Decision 21 May 2004
Solicitor for the Applicant Self Represented
Counsel for the Respondent Mr I Gourlay
Solicitor for the Respondent Australian Government Solicitor
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