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   

1. 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.

2. 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 for a Thursday. The Tribunal arranged for a member of staff of the Tribunal to advise Mr Romanov-Hughes that if he did not attend a copy of the transcript would be forwarded to him, and he would be invited to make written submissions as to the matters covered in the transcript. In the event this has not been necessary as the Tribunal has decided, without hearing from Mr Romanov-Hughes, to refuse the application made under s 42B(1) of the Act.

3. Mr Romanov-Hughes has lodged an application seeking review of a reviewable decision made on 3 August 2000 (T32 pp127-129).  That decision affirmed a primary determination (T29 pp122-123) made on 15 June 2000, in the following terms:

   With regard to the period 1 December 1998 to 17 January 1999, I am not satisfied having regard to subsection 4(9) and section 19 of the Act that the claimant was incapacitated for this period, further, I am satisfied that he was able to earn in suitable employment an amount equal to his normal weekly earnings.

4. Both the original determination and the reviewable decision relied on the reasoning of this Tribunal, (Senior Member Gibbs) in a decision delivered on 22 May 2000 (T27 pp90-120), which found that Mr Romanov-Hughes was not entitled to compensation for incapacity for the period 20 July 1998 to 30 November 1998.  The Tribunal decision of 22 May 2000 affirmed a reviewable decision of 11 March 1999 which rejected Mr Romanov-Hughes' claim for compensation for incapacity for work during that period.  That reviewable decision had affirmed a primary determination of 30 November 1998 which determined (T12 p46):

   I refer to your compensation claim for "sprained left ankle" sustained on 20/6/94 and request for surgery made by Dr William Edwards.
   As a delegate of Comcare Australia, I have considered the medical evidence on file and I have determined that liability be accepted for the surgery for exploration of the talo-navicular joint, the spring ligament and Tibialis posterior tendon.
   However, regarding on-going incapacity payments, I am not satisfied that you are totally incapacitated for work.  As Dr Edwards, indicates in his report (copy attached) "I do not believe this condition totally incapacitates him from work.  I believe he would be able to work with limited mobility and the use of his modified insoles and special shoes".
   Therefore, I deny payment of total incapacity payment for the period from 20/7/98 to date.  Please find enclosed a notice of rights.
   Please note that further incapacity resulting from the surgery would be considered based on the medical evidence available at the time.

5. The Comcare delegate who made the primary determination, and the delegate who made the reviewable decision, noted that the period 1 December 1998 to 17 January 1999, being the period covered by the reviewable decision in this matter, followed on immediately from the period as to which Senior Member Gibbs had found that Mr Romanov-Hughes had no entitlement to compensation for incapacity.  They also noted that, although Senior Member Gibbs' formal decision only covered the period 20 July 1998 to 30 November 1998, he had, in his reasons, considered the evidence as to whether Mr Romanov-Hughes was suffering an incapacity for work up until the date of surgery on his left ankle which took place on 18 January 1999.  The left ankle injury was suffered on 20 June 1994 and has been accepted as a compensable injury.  The delegate who made the primary determination of 15 June 2000 explained (T29 p122):

   There is nothing to indicate that the claimant's condition so changed as to render him incapacitated from that date until he had surgery on his ankle on 18 January 1999.  It is the contention of the Department of Defence that they were able to provide suitable duties to Mr Romanov-Hughes during this period, and I accept that contention.

The delegate also pointed out that Senior Member Gibbs in paragraph 70 of his reasons had made findings covering the period up to 18 January 1999 as follows:

70. From the material before me I am satisfied that during the period from 15 September 1998 to 18 January 1999, the reason why Mr Romanov-Hughes did not return to work was essentially because he regarded it as the respondent's fault that he did not have his operation until 18 January 1999, and that he would therefore simply remain off work until after the operation.
71. As submitted by the respondent, prior to the steroid injection into his ankle, Mr Romanov-Hughes had very few absences during the first half of 1998, and no significant change in his medical condition in early July, except for a claimed back condition.
72. As demonstrated, Mr Romanov-Hughes also asserted that between July and November 1998 he was not able to return to work because he could not afford the cost of appropriate shoe wear. Given the evidence to which I have referred concerning his financial resources I reject this assertion.
73. I have referred to the evidence of Mr Romanov-Hughes and Dr Sutcliffe concerning suitability of employment. I should, however, record that I prefer the evidence of Ms Jemison and Ms Thomson, both of whom in my view demonstrated that reasonable action was taken to provide Mr Romanov-Hughes with appropriate duties and workplace conditions.

1. The delegate who made the primary determination of 15 June 2000 found that Mr Romanov-Hughes had been incapacitated for work from 18 January 1999, the date of the left ankle surgery, until 28 February 1999, and from 1 March 1999 to 4 April 1999, on the basis of the medical certificate of the treating surgeon.  The delegate further found that Mr Romanov-Hughes was entitled to compensation for partial incapacity for work from 31 May 1999 to 19 November 1999.

2. Mr Romanov-Hughes sought reconsideration  of the decision of the delegate of 15 June 2000.  He set out his reasons as follows (T30 p124):

   1.        Comcare refused to provide prescribed footwear during this time, and have still not done so after over 3 years of requests for funding.

   2.        Following assurances by Ms. Lara Jemison that desk duties were available, Dr. Helen Sutcliffe and I attended a worksite assessment meeting at Victoria Barracks on 3 December 1998.  The duties offered involved collecting mail from the other side of Victoria Barracks at least once a day, processing this mail, and then distributing it internally within Army Health Records Office.  Ms. Heather Thompson was not present at these discussions and the duties offered were different, and in a different area, to those she commented on.  Ms. Jemison's assertion that I was being offered desk duties is ludicrous.  Dr. Sutcliffe, a highly qualified medical specialist in occupational health, recommended that I not return to work prior to the operation on my ankle which was performed on 18 January 1999.

   3.        The Department of Defence have refused to accept medical advice that I be employed in desk duties.  They have aggressively tried to have me perform the maximum amount of standing and walking duties and have employed contractors who have harrassed [sic] me and my doctors to try to achieve this objective.  They ignored my statements that I had a family history of varicose veins, and that operating a photocopier whilst seated was causing me back problems, until injuries and subsequent compensation claims were recorded.  They have not been providing a safe and healthy workplace.

3. The reconsideration decision again referred to the reasons of Senior Member Gibbs and added the following reasons (T32 p128):

• The circumstances and events surrounding your claim for incapacity following 30 November 1998 did not in any way alter until the date of surgery, 18 January 1999.

• Accordingly, although the decision before the Tribunal regarding incapacity related specifically to the period 20 July 1998 to 30 November 1998 and is therefore only binding and a final decision for this period, it was necessary for the Tribunal to consider the period in its entirety from 20 July 1998 to 17 January 1999, being the day prior to surgery having been undertaken on your ankle.

• The Tribunal's findings for the period 1 December 1998 to 17 January 1999 (as stated above), although not binding, are highly persuasive in the making of any future decision for this period.

The delegate then decided that, as the reasons supplied by Mr Romanov-Hughes in his letter of 8 July 2000 did not "bring to light any further evidence since the Tribunal's decision of 22 May 2000", he did not propose to revisit the same issues in view of the Tribunal's findings regarding incapacity for the period in issue.

1. The substance of Mr Gourlay's submissions was that the findings of Senior Member Gibbs as to the issue of incapacity from 1 December 1998 to 17 January 1999, should be applied.  Thus he submitted that the only possible decision in respect of the period 1 December 1998 to 17 January 1999, was that Mr Romanov-Hughes was not incapacitated for work during that period as a result of the previously accepted compensable left ankle injury.  That submission puts the matter more strongly than the delegates had done in making the primary determination and the decision under review.

2. It may well be that the Tribunal on hearing the evidence on this application for review will make identical findings to those made by Senior Member Gibbs. However, as was acknowledged by the reconsideration delegate, those findings are not binding in regard to the period 1 December 1998 to 17 January 1999. The Tribunal on this review may need to consider what weight if any it should give to Senior Member Gibb's findings. However, in order to succeed in this application for dismissal under s 42B of the AAT Act, Mr Gourlay had to show that the findings of Senior Member Gibbs would not only be highly persuasive, but should be taken to be decisive, as to a period which was not covered by the application for review before him. That was the difficulty facing the respondent's application.

3. Mr Gourlay relied on the decision of the Tribunal comprised of Matthews J, President, Hill and Beaumont JJ, Presidential Members in Re Williams and Australian Electoral Commission (1995) 21 AAR 467 as to the approach to be adopted in considering an application for dismissal under s 42B. The Tribunal in Re Williams emphasised that the power for peremptory dismissal of proceedings is to be exercised cautiously and sparingly.  The Tribunal cited the reasons of Barwick CJ in General Steel Industries Inc. v Commissioner for Railways New South Wales (1964) 112 CLR 125, as authority for this proposition. The Tribunal then set out the test to be applied in determining whether proceedings are vexatious, from the reasoning of Roden J in Attorney-General v Wentworth (1998) 14 NSWLR 481 at 491:

   "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.They 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.

4. As to the first two aspects referred to by Roden J, there is no evidence that Mr Romanov-Hughes is pursuing these proceedings for any reason other than to obtain weekly payments of compensation for the six weeks from 1 December 1998 to 17 January 1999.  Mr Gourlay acknowledged that in this matter, as in Re Williams, there was no evidence that the applicant is motivated by ill-will, malice or by any deliberate intention to pursue these proceedings for an unjustified collateral purpose. 

5. As to point 3, in the passage quoted from Roden J, the Tribunal in Re Williams went on to say (p475):

   As Von Doussa J commented in Hatchett, [Hatchett v Bowater Tutt Industries Pty Ltd (No 2) (1991) 28 FCR 324] an applicant who genuinely holds a mistaken belief as to a state of facts which, if correct, would support the claim which is made in the proceedings, is ordinarily entitled to "a day in court".  In that event, it could operate very unfairly to an applicant to pre-judge the issues without affording him/her an opportunity to support his/her case with appropriate evidence.  But where, as here, the significant factual matters are agreed between the parties, and the only issues in dispute relate to the legal consequences which follow, the genuineness of the applicant's belief as to the legitimacy of his claim must bow before a finding that, as a matter of law, no legitimate purpose can be achieved by continuing with the proceeding.  And this is the finding we have reached in this case.

6. Applying the test, as set out in that passage, the issue between Mr Romanov-Hughes and Comcare is an issue of fact.  Was he incapacitated for work as a result of his compensable left ankle injury in the six weeks immediately prior to undergoing surgery for that condition?  Roden J, in Wentworth, suggested that proceedings are vexatious if they are "so obviously untenable or manifestly groundless as to be utterly hopeless".  Were it not for the fact that Senior Member Gibbs had already considered the issue of incapacity during the relevant period, there would be no way in which it could be submitted that Mr Romanov-Hughes' proceedings are, "obviously untenable or manifestly groundless" or "utterly hopeless". 

7. As I pointed out during the hearing there is medical evidence contained in the T documents which could suggest that Mr Romanov-Hughes' application should be successful.  First, and most significantly, there is a report (T21 pp72 and 73) dated 9 August 1999, in which Mr Edwards, the treating surgeon, addressed the very issue which will be before the Tribunal on the hearing of this application.  He wrote:

   You asked whether Mr Romanov-Hughes without special shoes, was capable of undertaking travel to and from work prior to having surgery on 18th January 1999.  In answer, although on occasion Mr Romanov-Hughes would have been able to travel, it would significantly aggravate his hind foot problem and I would expect limiting his mobility.  I do not however have a specific record of whether he was able to travel to work at this stage.

8. Mr Edwards' opinion that travel to work would have significantly aggravated Mr Romanov-Hughes' hind foot problem in the period prior to his surgery, must be a relevant matter in considering whether or not Mr Romanov-Hughes is entitled to compensation for incapacity for work during that period.  Although Mr Edwards gave evidence before Senior Member Gibbs, there is no reference in his reasons for decision to the passage quoted above from the report of 9 August 1999.  Senior Member Gibbs, in his reasons for decision at paragraph 56, set out the evidence as to how Mr Romanov-Hughes got to work as follows:

   56. Mr Romanov-Hughes resides in Northcote. To commute to work Mr Romanov-Hughes walks approximately two hundred metres to a tram stop. He travels thirty minutes by tram, generally standing during peak hour periods because there are no available seats. Mr Romanov-Hughes then changes trams at the intersection of Collins and Swanston Streets and undertakes a further tram trip lasting approximately ten minutes, during which he is generally seated. Upon disembarking the tram Mr Romanov-Hughes is required to walk approximately three hundred metres to the administration office where he works. A similar trip is undertaken when commuting home at the end of the day. 

Senior Member Gibbs did not refer to Mr Edwards' opinion as to the effect of that journey on Mr Romanov-Hughes' hind foot problem.  Perhaps that issue was not raised during the hearing.

1. Senior Member Gibbs referred to Dr Sutcliffe's evidence that in her opinion the manner in which Mr Romanov-Hughes travelled to and from work would cause him difficulty and pain.  The T documents include a report (T14 pp49-52) from Dr Sutcliffe, written after a worksite assessment she performed on 3 December 1998.  That date of course is after the expiration of the period covered by the decision Senior Member Gibbs was reviewing.  Dr Sutcliffe wrote (T14/50):

   I believe that the difficulties of Mr Romanov-Hughes travelling by tram in peak hour traffic and so having no seat, alighting from one tram and boarding another and then walking a city block to work for a period of only 5 weeks prior to the surgery dictate that for all practical purposes the return to work would not be appropriate.

1. Senior Member Gibbs stated that he preferred the evidence of Ms Jemison, Mr Romanov-Hughes' team leader, and Ms Thomson a rehabilitation case manager, to that of Mr Romanov-Hughes and Dr Sutcliffe concerning suitability of employment.  It is obvious that he could not have preferred the evidence of Ms Jemison and Ms Thomson to that of Dr Sutcliffe on medical issues.  Senior Member Gibbs', comments were related to the issue of whether suitable duties were made available at the workplace, rather than to the issue of how Mr Romanov-Hughes was to get to work.  In any event, Dr Sutcliffe's report, in so far as it referred specifically to the period after 1 December 1998, was not relevant to the issues before Senior Member Gibbs.  However it is relevant to the current application. 

2. Dr Sutcliffe's opinion that it would not have been appropriate for Mr Romanov-Hughes, to travel by tram in peak hour traffic, change trams and then walk a city block to work, for a period of only five weeks prior to the surgery must be considered by the Tribunal in these proceedings.  That opinion, like that of Mr Edwards, that travel to work during those five or six weeks prior to surgery, would have significantly aggravated Mr Romanov-Hughes' problem, does indicate that his claim could not be characterised as "so obviously untenable or manifestly groundless as to be utterly hopeless".  If the Tribunal is free to consider the issue of entitlement to compensation for incapacity for work during the period 1 December 1998 to 17 January 1999, unaffected by the finding of Senior Member Gibbs, there is evidence on which Mr Romanov-Hughes could succeed.

3. Thus the only way in which it could be said that Mr Romanov-Hughes' case was "obviously untenable, manifestly groundless" or "utterly hopeless", would be if the findings of Senior Member Gibbs, as to a period which was not covered by the decision he was reviewing, were binding on a Tribunal hearing an application for review of a determination in regard to that later period.

4. Mr Gourlay did not submit that the findings were binding on the Tribunal.  But he asked the Tribunal in the exercise of its discretion to dismiss the proceedings as frivolous and vexatious, because of the findings made by Senior Member Gibbs.

5. Clearly, Mr Romanov-Hughes has a right to apply to this Tribunal, under Part VI of the Safety, Rehabilitation and Compensation Act 1988.  He is therefore entitled to a decision on his application for review.  That decision must be made on the evidence before the Tribunal which hears the application for review, unless there is something which prevents the Tribunal making its own decision on the issue.  Mr Gourlay conceded that the Tribunal was not bound by the findings of Senior Member Gibbs.  He did not refer the Tribunal to issue estoppel.  There can be no issue estoppel as a result of a Tribunal decision dealing with one period of time, when the Tribunal comes to consider a subsequent period of time.  The Full Court of the Federal Court considered the issue of estoppel by a decision of the Tribunal in Plumb v Comcare (1992) 17 AAR 1. The Tribunal had in 1988 first considered Mr Plumb's entitlement to compensation for incapacity. It said in its reasons for decision Plumb v Department of Aviation (Unreported, AAT, 2 March 1988) at paragraph 47:

   We have no hesitation in finding that from 20 July 1987, the date on which the  Applicant joined the first firm of accountants, he had ceased to be incapacitated to any degree whatsoever. . . . The maximum period of his compensible incapacity therefore is from 18 February 1985 to 20 July 1987, a closed period.

The Tribunal later in its reasons said:

We cannot of course pre-judge any new application which may arise as a result of an alleged recurrence of the applicant's disease. We do wish however to observe that prima facie the applicant may well face a more difficult task in the future than he has faced in the present application.

1. As the summary of facts in the decision of the Full Court sets out, the issue before the Full Court concerned the effect of those findings in a later Tribunal hearing, which was considering whether, in 1989, Mr Plumb had been incapacitated for work as a result of "work related anxiety disorder".  The Full Court said (at p5):

   The determination the subject of the review before the AAT constituted by Moss J. which gave rise to his Honour's decision of 14 February 1982 was a determination made on 21 August 1990. They were different determinations and the applicant was entitled to seek a review by the AAT of each of them. The1990 decision of the AAT related to a different period of incapacity from the period covered by the 1988 decision.
   The 1988 decision of the AAT was based on the evidence that was before it and considered the applicant's case asserting incapacity upon the evidence as it stood at that time. In the circumstances of this case, the AAT did not have power, nor did the original decision maker have power, to make a decision that extended beyond the date of the decision. It is true that the AAT said in its reasons which led to the 1988 decision that from 20 July 1987 the applicant "ceased to be incapacitated to any degree whatsoever". But, as mentioned earlier, it said later in its reasons that it could not "pre-judge any new application which may arise as a result of the alleged recurrence of the applicant's disease." Thus, the AAT, although thinking it was appropriate to make the observation which it did about 20 July 1987, made it clear that this was not a finding which could bind anybody with respect to any future application because a future application would be with respect to a later period of incapacity and the AAT (also the respondent) cannot bind itself in advance of any such subsequent application.

2. Applying that explanation to this matter, the determination before this Tribunal and that before Senior Member Gibbs, are different determinations, and they cover different periods of incapacity, and Mr Romanov-Hughes is entitled to seek a review by the Administrative Appeals Tribunal ("the AAT") of each of them.  Senior Member Gibbs did not have power to make a decision that extended beyond 30 November 1998.  The fact that in his reasons he went further, and covered the period up to the surgery, "could not prejudge any new application" as to a later period.  Senior Member Gibbs' reasoning, as to the period subsequent to that covered by the determination which he was reviewing, "was not a finding which could bind anybody with respect to any future application, because a future application would be with respect to a later period of incapacity and the AAT cannot bind itself in advance of any such subsequent application."  The Federal Court decision of Plumb is directly in point and binding on this Tribunal.

3. Another relevant Federal Court decision is Comcare v Grimes and Another (1994) 19 AAR 422, a decision of Wilcox J, in which his Honour said (at p426):

   Counsel conceded that an AAT decision cannot give rise to an issue estoppel. This concession is plainly correct: see Minister for Immigration and Ethnic Affairs v Drake (1981) 61 FLR 354 at 359, Commonwealth of Australia v Sciacca (1988) 17 FCR 476 at 480 and Midland Metals Overseas Limited v Comptroller-General of Customs (1991) 30 FCR 87 at 96-97.

The Tribunal cannot characterise the current proceedings as "utterly hopeless".  I have so far considered whether the proceedings before the Tribunal are "vexatious".  I decide that they are not.

1. The next issue is whether the proceedings are "frivolous".  The submissions at the hearing were based on the comments of Roden J in Attorney-General v Wentworth.  The Tribunal was not referred to authorities on the issue of whether the proceedings are "frivolous".  Generally that concept seems to have been understood to apply where there is nothing to be gained from the proceedings.  In Re Frazzetto and Australian and Overseas Telecommunication Corporation (1994) 19 AAR 174, the Tribunal dismissed the proceedings pursuant to s 42B saying that, although the application was not frivolous when it was made, maintaining it after a further determination would be frivolous, because if the application were to proceed to a hearing on the merits, any decision made by the Tribunal would not provide any greater benefit to the applicant than the further determination, which had already been made. A similar interpretation was adopted in Re Knight and Comcare (1994) 20 AAR 455.

2. In this matter, if Mr Romanov-Hughes succeeds, he will be paid compensation for incapacity for approximately six weeks.  Thus there is clearly a gain to him in continuing with the proceedings and they are not frivolous, in the sense, used by the Tribunal in Re Frazzetto and Re Knight.

3. The application for the matter to be dismissed under s 42B of the AAT Act will be refused.

   I certify that the 28 preceding paragraphs are a true copy of the reasons for the decision herein of Mrs Joan Dwyer, Senior Member

   Signed:         Grace Carney
     Personal Assistant

   Date/s of Hearing  29 November 2001
   Date of Decision  20 December 2001
   Counsel for the Applicant        Nil
   Solicitor for the Applicant         Nil
   Counsel for the Respondent    Mr I Gourlay
   Solicitor for the Respondent    Australian Government Solicitor