Romanov-Hughes and Comcare - [2001] AATA 1030

DECISION AND REASONS FOR DECISION [2001] AATA 1030

ADMINISTRATIVE APPEALS TRIBUNAL )

) No V00/1174

GENERAL ADMINISTRATIVE DIVISION       )
           Re      ALEXANDER ROMANOV-HUGHES
  Applicant
           And    COMCARE
  Respondent

DECISION

Tribunal Mrs Joan Dwyer, Senior Member

Date20 December 2001
PlaceMelbourne

Decision      The Tribunal refuses the application for this matter to be dismissed under s 42B of the Administrative Appeals Tribunal Act 1975.
  (sgd) Joan Dwyer
  Senior Member
PRACTICE AND PROCEDURE - COMPENSATION – application for dismissal under s 42B(1) of the Administrative Appeals Tribunal Act – whether vexatious and frivolous – whether earlier Tribunal decision creates an issue estoppel – current application as to period subsequent to earlier decision - application refused
The Administrative Appeals Tribunal Act 1975 s 42B

Re Williams and Australian Electoral Commission (1995) 21 AAR 467 6Attorney-General v Wentworth (1998) 14 NSWLR 481

General Steel Industries Inc. v Commissioner for Railways New South Wales

(1964) 112 CLR 125

Plumb v Comcare (1992) 17 AAR 1

Plumb v Department of Aviation (Unreported, AAT, 2 March 1988)

Comcare v Grimes and Another (1994) 19 AAR 422

Re Frazzetto and Australian and Overseas Telecommunication Corporation

(1994) 19 AAR 174

Re Knight and Comcare (1994) 20 AAR 455

REASONS FOR DECISION

20 December 2001 Mrs Joan Dwyer, Senior Member

This is an application by Comcare under s 42B(1) of the Administrative Appeals Tribunal Act 1975 ("the AAT Act"), seeking that the Tribunal dismiss Mr Romanov-Hughes' application for review in matter V00/1174 on the ground that it is frivolous or vexatious. Comcare also applied for a direction under s 42B(1)(b) of the AAT Act. Section 42B(1) of the AAT Act provides as follows:
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.
Mr I Gourlay of Counsel appeared for Comcare. The Tribunal had before it the documents ("the T documents") lodged pursuant to s 37 the AAT Act and also the exhibits tendered during the hearing. Mr Romanov-Hughes had written to the Tribunal saying that he was unable to attend the hearing on 29 November 2001 because he was attending an intensive pain management course from 16 November 2001 to 14 December 2001. It was because he had advised that the course only required his attendance on Monday, Wednesday and Friday, that the Tribunal had listed the matter…

Grounds of appeal

[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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Details

Case: [2001] AATA 1030
Decision Date: 20 December 2001

CaseChat Overview and Summary

The applicant, Mr Alexander Romanov-Hughes, sought review of a decision made by Comcare, the respondent, regarding his claim for compensation for incapacity resulting from a compensable left ankle injury. The dispute involved whether Mr Romanov-Hughes was entitled to compensation for incapacity during a specific period prior to surgery on his left ankle. Comcare applied for the matter to be dismissed under section 42B of the Administrative Appeals Tribunal Act 1975 on the grounds that the proceedings were frivolous or vexatious.

The central legal issue was whether the application for review should be dismissed as frivolous or vexatious. The court considered whether there was evidence to support Mr Romanov-Hughes' claim of incapacity for work during the period in question, and whether the findings of a previous Tribunal decision could bind the current application. The court also examined whether the application was brought for an improper purpose and whether it was manifestly groundless.

The court found that the application was not vexatious as there was no evidence suggesting that Mr Romanov-Hughes was pursuing the proceedings for an improper purpose or that the claim was manifestly groundless. The court highlighted that there was medical evidence indicating that Mr Romanov-Hughes' journey to work would have significantly aggravated his condition, suggesting his claim could not be considered hopeless. The court further determined that the previous Tribunal decision did not create an issue estoppel for the current application as the decisions covered different periods of incapacity. Consequently, the application for dismissal was refused as the proceedings were neither vexatious nor frivolous.

In conclusion, the application for dismissal was refused, and Mr Romanov-Hughes was entitled to have his claim for compensation reviewed by the Tribunal. The Tribunal found that there was sufficient evidence to support the continuation of the proceedings, and the previous decision did not preclude the current application.

Orders