Russell and Australian Postal Corporation (Compensation)
[2022] AATA 3227
•6 October 2022
Russell and Australian Postal Corporation (Compensation) [2022] AATA 3227 (6 October 2022)
Division:GENERAL DIVISION
File Number: 2021/8517
Re:Keith Russell
APPLICANT
AndAustralian Postal Corporation
RESPONDENT
Decision
Tribunal:Senior Member Dr M Evans-Bonner
Date:6 October 2022
Place:Perth
Application 2021/8517 is dismissed pursuant to s 42B(1)(c) of the Administrative Appeals Tribunal Act 1975 (Cth).
............[Sgd]............................................................
Senior Member Dr M Evans-Bonner
CATCHWORDS
PRACTICE AND PROCEDURE – Workers’ Compensation – dismissal application brought by the Respondent – whether Applicant attempting to re-litigate issues from earlier proceedings resolved by consent decisions in 1997 and 2007 – re-litigation – res judicata – issue estoppel – policy considerations – Tribunal satisfied that application is an abuse of process of the Tribunal – objective of the Tribunal in s 2A of the Administrative Appeals Tribunal Act 1975 (Cth) applied – application for review dismissed pursuant to s 42B(1)(c) of the Administrative Appeals Tribunal Act 1975 (Cth)
LEGISLATION
Administrative Appeals Tribunal Act 1975 (Cth), s 2A, 34A(5), 34D(2), 42B, 42B(1), 42B(1)(c
Safety, Rehabilitation and Compensation Act 1988 (Cth), s 16, 19, 21, 57
Seafarers Rehabilitation and Compensation Act 1992 (Cth)
CASES
Australian Postal Corporation v Oudyn (2003) 73 ALD 659
Casarotto v Australian Postal Commission (1989) 10 AAR 191
Commonwealth v Snell [2019] FCAFC 57
Duncan v Fayle [2004] FCA 723
General Steel Industries Inc v Commissioner for Railways NSW [1964] HCA 69
Hennessey-Milne and Comcare [2018] AATA 4453
Kuligowski v Metrobus [2004] HCA 34
Novosel v Comcare [2017] FCA 722
Plumb v Comcare (1992) 39 FCR 236
Re Grimsley v Telstra Corporation Ltd [2010] AATA 106; (2010) 51 AAR 401
Re NXPQ and Comcare [2021] AATA 4094
Re Onassys and Comcare [2021] AATA 829
Re Quinn v Australian Postal Corporation (1992) 15 AAR 519
Re Williams v Australian Electoral Commission [1995] AATA 160Re ZDHG and Comcare [2019] AATA 5028
REASONS FOR DECISION
Senior Member Dr M Evans-Bonner
6 October 2022
Overview
On 11 November 2021, Mr Russell’s legal representatives lodged an application in the Tribunal on his behalf (T1) (Application 2021/8517).
In his application Mr Russell sought review of a redetermination decision of the Respondent dated 3 November 2021 (T148) (3 November 2021 Reviewable Decision).
The 3 November 2021 Reviewable Decision was that the Respondent was not liable to pay compensation to Mr Russell in respect of incapacity for work in the period 16 December 2005 to 27 April 2016 pursuant to s 19 of the Safety, Rehabilitation and Compensation Act 1988 (Cth) (SRC Act).
On 15 December 2021, the Respondent made an application to the Tribunal seeking that Application 2021/8517 be dismissed pursuant to s 42B(1) of the Administrative Appeals Tribunal Act 1975 (Cth) (AAT Act). The Respondent submitted that Mr Russell’s application was an abuse of process because the issues in Application 2021/8517 had been resolved in one or more previous applications by consent in 1997 and 2007. Specifically, the Respondent submitted in their dismissal application “that the applicant is impermissibly attempting to relitigate issues which were dealt with, or may be taken to have been dealt with, against him in one, or more than one, previous consent decisions made by the Tribunal” (R1).
Mr Russell’s current legal representatives, who were recently appointed and were not acting for him in the 1997 and 2007 applications, had a different interpretation of the SRC Act as it was in force at that time. They submitted that the legal issues in Application 2021/8517 were not previously litigated, that there was new evidence (a report from psychiatrist Dr Fredrick Ng dated 18 January 2021) that Mr Russell continued to be incapacitated after the consent decisions were made and that there had been a subsequent material change in circumstances or an intervening event (a workplace accident in 2004 in another workplace), whereby Mr Russell’s work-related symptoms resurfaced or recurred.
For the reasons set out below, I have found that Application 2021/8517 is indeed an attempt by Mr Russell to re-litigate issues that were resolved in the previous consent decisions. I have found that it is appropriate for Application 2021/8517 to be dismissed under s 42B(1)(c) of the AAT Act on the basis that it is an abuse of process of the Tribunal.
Background facts
Mr Russell worked for the Respondent as a delivery manager/supervisor (T5/19).
After working in that role for approximately three years and six months, he made a workers compensation claim in mid to late November 1995 for “depression and anguish”. Mr Russell stated in his claim form that he first noticed the injury on 8 November 1995 (T5/19).
In his first medical certificate, Mr Russell’s general practitioner recorded a diagnosis of “depression” which was “precipitated by recent events at work” (T4/18).
On 20 December 1995, the Respondent accepted liability for “depression” with a date of injury of 8 November 1995 (T13/33).
On 27 July 1996, Mr Russell ceased working for the Respondent when he accepted a voluntary early retirement package (T22/61; T24/63).
First consent decision
On 3 October 1996, the Respondent determined that it was not liable to pay further incapacity compensation payments to Mr Russell for “depression” and that he was entitled to medical expenses only (T22/61).
A reconsideration request was made on behalf of Mr Russell on 14 October 1996 by his then legal representatives (T23/62).
However, on 4 November 1996, the Respondent affirmed the determination of 3 October 1996 (4 November 1996 Reviewable Decision). This was because the decision-maker was satisfied that Mr Russell did not have any entitlement to incapacity payments pursuant to s 21 of the SRC Act (T24/63).
Mr Russell, through his then legal representatives, lodged an application seeking review of the 4 November 1996 Reviewable Decision in the Tribunal on 14 November 1996 (T25/65-67).
The statement of facts, issues and contentions (SFIC) filed by Mr Russell’s legal representatives provides an indication of the issues that were the subject of the 4 November 1996 Reviewable Decision. I note here that the contents of a SFIC should be viewed with some caution because the Tribunal is not limited in its consideration to the issues raised by the parties and can consider all the matters that were put before the original decision-maker (Novosel v Comcare [2017] FCA 722 (Novosel), [92]).
With that caveat in mind, the SFIC gives some indication of the issues, submissions, and contentions that were before the Tribunal for consideration. The SFIC referred to Mr Russell wanting to remain in his employment with the Respondent, but due to a lack of certainty about his employment, deciding to take a voluntary redundancy (E2, pages 7 and 8, paras [24] and [30]).
The SFIC also states the contentions that (E2/9-10):
(a)on and from 27 July 1996 the applicant continues to suffer from the effects of an injury sustained arising out of or in the course of employment by the respondent;
(b)by reason of the injury the applicant has been incapacitated for work since 27 July 1996 and continues to remain so incapacitated; …
…
(f)that he sustained injury arising out of or in the course of his employment by the respondent:
(i)for which liability has been accepted;
(ii)which injury has resulted in a permanent impairment;
(iii)in respect of which the applicant is entitled to compensation for permanent impairment pursuant to s 24 of the Act.
In summary, the SFIC indicates that the issues in those proceedings included whether Mr Russell continued to suffer from the injury from 27 July 1996 after his voluntary redundancy and whether the injury was a permanent impairment.
After a mediation, Mr Russell and the Respondent reached a consent agreement resulting in the Tribunal affirming the 4 November 1996 Reviewable Decision on 27 August 1997 (T41). The consent agreement was made in accordance with s 34A(5) of a now superseded version of the AAT Act.
Second consent decision
In June 1998, Mr Russell purchased a bobcat to run his own business. On 24 February 2004, Mr Russell had an accident where the bobcat was hit by a train (T147/478).
In a subsequent letter to the Respondent, received on 16 December 2004 (T60/136), Mr Russell requested that, “I am formally applying for re assessment of compensation from Australia Post”. He stated that his claim was based on loss of earnings, loss of employment prospects, the negative effect his condition had on his wife and family including strain and loss of financial stability, and that his medical situation had caused insurers to reject his application for work cover, income protection, sickness, and accident benefits. Mr Russell further summarised that:
… I still suffer from and I am under medical treatment for damage to my health caused by my employment by Australia post. Do [sic] to the injuries that I sustained during my employment with Australia post I am not able to find employment, I am not able to gain Insurance, I have been financially disadvantaged, this in turn has affected both my marriage and the living standards of my family.
On 21 October 2005, the Respondent determined that it was not liable to compensate Mr Russell for “depression” from 24 February 2004 when he ceased working in the bobcat business (T75/164-165).
Mr Russell requested reconsideration of the 21 October 2005 determination in a letter to the Respondent dated 26 October 2005 (T76). In this reconsideration request:
(a)Mr Russell confirmed that he was claiming “compensation for the loss of ability to gain employment commensurate to the level and income I had gained while employed by Australia Post prior to the forced, manipulated, and Not Voluntary Early Retirement Caused by my ill-health” and the associated impact on his family that his condition caused to his health and finances (first point).
(b)With respect to the 24 February 2004 bobcat accident, Mr Russell stated that the accident “effectively, put me out of business” because “I did not have the financials to continue”. He stated that if he had not had the accident, he would have continued working in the bobcat business. Mr Russell explained that he was working in the bobcat business out of necessity, rather than choice. This was because he was unable to gain other employment with many businesses and employers due to his medical condition, which he directly attributed to his employment with the Respondent (T75/164; T76/166) (second point).
(c)Mr Russell clarified some medical points that arose out of a report by Consultant Psychiatrist Dr Ng dated 14 February 2004. The Respondent had arranged for Dr Ng to examine the Applicant on 14 February 2005 and in his report of the same date, Dr Ng had referred to Mr Russell having bursitis in his left and right hips, pain in his left knee and lower left leg (T63/142). Mr Russell clarified in his letter of 26 October 2005 that he thought the problems with his lower back, left and right knees, ongoing depression and lack of confidence were directly caused by his employment with the Respondent and were affecting his “life and work prospects” (T76/166) (third point).
However, on 15 December 2005, the Respondent affirmed the 21 October 2005 determination, stating that it agreed that the Respondent was not liable to pay him compensation for incapacity from 24 February 2004 until the present date (being 15 December 2005) (T80). I will refer to this as the 15 December 2005 Reviewable Decision.
The Respondent gave the following reasons for making the 15 December 2005 Reviewable Decision (T80/172-173):
In regard to the response to the first point, the issue of your separation from Australia Post in July 1996 has been dealt with by the Administrative Appeals Tribunal decision dated 27 August 1997. The reviewable decision dated 4 November 1996 stated that you had accepted a voluntary early retirement and that you did not have an entitlement to receive compensation by way of incapacity payments. The Administrative Appeals Tribunal decision dated 27 August 1997 affirmed (that is, upheld) the reviewable decision dated 4 November 1996. I also note that you received a payment for permanent impairment in the amount of $47,865.75 in 1997. This payment included a component to compensate you for the effects of the depression on your life.
In regard to the response to the second point which relates to the accident on 24 February 2004, it is my view that this accident which resulted in the loss of your business has no relationship of your former employment with Australia Post, and therefore any subsequent loss of earnings or inability to earn is also not related to your former employment with Australia Post.
In regard to the response to the third point, I have noted your assertions that the problems with your lower back and left and right knees are related to your former employment with Australia Post. I advise that I am unable to find any records regarding any work-related incidents relating to your knees. In regard to your lower back, I advise that you have an accepted claim for compensation for ‘injury to lumbar spine’, date of injury 17 October 1995, which was clearly a very minor injury is the compensation paid consisted of one consultation with a general practitioner on 19 October 1995.
I also make the comment that Australia Post in 1997 provided support to you by paying for a non-statutory rehabilitation program in the amount of $20,000 to assist you in setting up your own business.
The Applicant lodged an application on 2 February 2006 seeking review of the 15 December 2005 Reviewable Decision in the Tribunal (T85).
Again, Mr Russell and the Respondent reached a consent agreement after a dispute resolution process and pursuant to s 34D(2) of the AAT Act, on 18 April 2007, the Tribunal affirmed the 15 December 2005 Reviewable Decision (T88).
Recent events from 2019
On 5 June 2019, the Respondent wrote to Mr Russell requiring him to attend a medical examination. Mr Russell had been claiming for medication and general practitioner consultations. The Respondent required the medical examination pursuant to s 57 of the SRC Act because it had been some time since there had been independent medical opinion to support these claims (T130 and T132).
The Applicant was examined and assessed by Psychiatrist Dr Victor Cheng on 8 August 2019. Dr Cheng wrote a medical report dated 12 August 2019 (T133).
In this report, Dr Cheng opined that Mr Russell’s psychological condition was relatively stable. Further, he was not of the opinion that Mr Russell met the diagnostic criteria for a Major Depressive Disorder at the time of his assessment (T133/427).
Dr Cheng opined that he was “unable to state that [Mr Russell’s] current psychological condition was a direct result of the Incident of November 1995” (T133/428).
Dr Cheng further opined that, “in view of the time that has elapsed since [Mr Russell’s] employment and the other life stressors that have occurred subsequent to his employment, I am unable to conclude that his current psychological condition is a direct result of his employment and that on the balance of probability that he would be in the same situation regardless of his employment”.
And further that, “there is a distinct and reasonable probability that he would have developed mood symptoms with other stressors regardless of his employment” (T133/429).
On 29 July 2021, Mr Russell’s current legal representatives wrote to the Respondent advising that they were representing him in another application, application 2019/8282, in the Tribunal. They advised that during that application, the 15 December 2005 Reviewable Decision had come to their attention (T145). Also:
There has, further, been recent evidence from Dr Fredrick Ng (who used to treat Mr Russell), where he certifies that Mr Russell was totally unfit for work between 21 October 2005 and 27 April 2016 as a consequence of his ongoing and chronic psychiatric difficulties (attached is a copy of the report of Dr Ng dated 18 January 2021).
Accordingly, we ask that Australia Post review our client’s entitlement for incapacity payments, and make a determination of his entitlements for the period 16 December 2015 and 27 April 2016 (Mr Russell’s 65th birthday).
On 4 October 2021, the Respondent made a determination that it was not liable to pay compensation to Mr Russell in respect of incapacity for work in the period from 16 December 2015 to 27 April 2016 (T146). The reasons for this determination were:
1. The issue of whether Australia Post continued to be liable to pay compensation to Mr Russell in respect of incapacity for work after his voluntary early retirement in or about July 1996 was determined and reconsidered by Australia Post many ago.
2. The issue of whether Mr Russell suffered incapacity for work as a result of his “depression” sustained on 8 November 1995 was also determined and reconsidered by Australia Post many years ago.
3. In each of the two above contexts, Australia Post decided that it did not continue to be liable to pay compensation to Mr Russell because of either or both of the effects of his voluntary early retirement and the fact that he did not continue to suffer incapacity for work as a result of his “depression” sustained on 8 November 1995 at all material times.
4. Again, in each of the two above contexts, Mr Russell applied to the Administrative Appeals Tribunal for review of Australia Post’s reconsideration decisions.
5. However, the Administrative Appeals Tribunal (with Mr Russell’s agreement) made decisions affirming Australia Post’s decisions denying ongoing liability to pay compensation to Mr Russell.
6. In the circumstances, I consider that Australia Post ought to be permitted to treat the relevant matters between it and Mr Russell as decided and that it would be inappropriate for Mr Russell to be permitted to relitigate and/or reclaim the issues which he previously agreed would be decided against him.
7. Alternatively, having reviewed all of the evidence, I agree with Australia Post’s decision that it was not liable to continue paying compensation to Mr Russell because of his voluntary early retirement. That circumstance means that at all material times Mr Russell’s ability to earn (AE) was at least equal to his normal weekly earnings (NWE) for the purpose of the formula in s 19(2) of the SRC Act. Compensation does not continue to be payable in the circumstances.
8. Alternatively, having reviewed all of the evidence, I also agree with Australia Post’s decision that Mr Russell did not continue to suffer incapacity for work as a result of his “depression” sustained on 8 November 1995. The passage of time and circumstance means that Mr Russell’s “depression” is/was either no longer work-related or, alternatively, no longer results in a compensable incapacity for work.
In an email dated 18 October 2021, Mr Russell’s legal representatives requested that the Respondent reconsider the 4 October 2021 determination (T147/477). The reasons for the request for reconsideration included that:
1. Although Mr Russell (the Applicant) was recorded as having accepted voluntarily early retirement in or about July 1996, it was the case that he had no real choice. …
2. After leaving [his employment with Respondent], the Applicant continued to suffer from varying levels of incapacity. Whilst able to work at times, he suffered an aggravation and recurrences of the accepted injury, and at other times had no capacity or only partial capacity for work.
3. For some time his depression was well-controlled with antidepressants.
4. In June 1998, the applicant purchased a bobcat and ran his own business. Whilst working and under medication, there was no incapacity for work, and relevantly there was no entitlement to incapacity payments.
5. In October 2003, the applicant was referred to Dr Ng by Dr Jane Deacon as his symptoms re-emerged. Dr Ng documents that he suffers from chronic major depressive symptoms, and the medication does not seem to be helping as much as it used to. The deterioration was compounded by the write-off of his bobcat when it was hit by a train on 24 February 2004.
6. The applicant immediately prior to the train accident in 2004 was not in remission at was still suffering from symptoms of depression. Dr Ng said that he was in remission in the years prior because the large doses of antidepressants likely controlled his symptoms. His relapse of the symptoms was an indicator of medication not controlling his symptoms or other stressors in life. Dr Ng confirmed that his psychiatric symptoms would effectively preclude him from managing full-time work. (Dr Ng report dated 14 February 2005).
…
12. The applicant has been totally unfit for work between 21 October 2005 and 27 April 2016 as a consequence of his ongoing and chronic psychiatric difficulties (see report of Dr Ng dated 18 January 2021 which has been provided to you).
The reasons for the request for reconsideration also mentioned that there was a typographical error in their letter to the Respondent dated 29 July 2021, which referred to 2015 instead of 2005. Specifically, Mr Russell had instructed his legal representatives to seek entitlements for incapacity payments from 16 December 2005 to 27 April 2016 (not 16 December 2015 to 27 April 2016) (T147/477).
Accordingly, on 3 November 2021, the Respondent varied the 4 October 2021 determination “such that Australia Post is not liable to pay compensation to Mr Russell in respect of incapacity for work in the period from 16 December 2005 to 27 April 2016, pursuant to section 19 of the SRC Act” (T148/481). This was the decision I defined above as the 3 November 2021 Reviewable Decision.
On 11 November 2021, Mr Russell’s legal representatives lodged an application in the Tribunal seeking review of the 3 November 2021 Reviewable Decision (T1).
This is the application that is the subject of these dismissal proceedings, and which I defined in the first paragraph of these reasons as Application 2021/8517.
The legal framework
The dismissal power
Subsection 42B(1) of the AAT Act provides that:
(1) The Tribunal may dismiss an application for the review of a decision, at any stage of the proceeding, if the Tribunal is satisfied that the application:
(a) is frivolous, vexatious, misconceived or lacking in substance; or
(b) has no reasonable prospect of success; or
(c) is otherwise an abuse of the process of the Tribunal.
The Respondent primarily relied on two authorities in support of their dismissal application which I will now discuss. These were: Commonwealth v Snell [2019] FCAFC 57 (Snell); and Novosel.
Snell
Snell concerned the Seafarers Rehabilitation and Compensation Act 1992 (Cth), an Act that has a similar statutory framework to the SRC Act. The issue in Snell was whether the Tribunal, when exercising the powers of an employer during a review, was constrained in the evidence it might consider by reason of an earlier decision by it on the same issue between the same parties.
The Full Court found that the Tribunal was not so constrained. The Court stated, at [77]:
The obligation of the decision-maker and of the Tribunal on review is to consider the material relevant to the claim being advanced. There is nothing in the scheme of the Seafarers Act which suggests that some higher justification for the reception of material is required. There is nothing which requires commencing the decision-making process with any predisposition that any relevant material ought not to be considered merely because the issue to which it is relevant has been determined as part of an earlier decision. To the contrary, the power to reconsider earlier decisions negates the suggestion that the entity exercising the power should or could refuse to take into account any relevant material. To do so would necessarily diminish the power to reconsider. Additionally, it may deny a claimant their entitlement under the compensation scheme or impose on an employer a liability for compensation for which it is not responsible. It would also impose a rigidity on the flexible and continuous decision-making process provided for in these compensation schemes. …
The Court confirmed that “the doctrine of issue estoppel is not apposite to the constitutional and statutory context of the Tribunal, and ought not to be extended to it” (Snell, para [51]).
The absence of these constraints and of issue estoppel does not, however, mean that an unsuccessful Applicant will be permitted to proceed with a subsequent claim that is repetitious. The Court in Snell explained, at [78]:
That is not to say that dissatisfied employees under the Seafarers Act might simply make repetitious claims based on substantially the same facts and require the Tribunal to constantly review the rejection of the same by the employer. The Tribunal has considerable power under s 42B to expeditiously deal with any such applications for review. Such proceedings may be easily seen as frivolous, vexatious, misconceived or lacking in substance. Alternatively, they may be seen as an abuse of process and it is to be kept in mind that the categories of cases which fit that description are not closed and cannot be exhaustively defined. A careful review of the authorities concerning the concept of abuse of process was undertaken by Perry J in Novosel v Comcare (2017) 72 AAR 269 at [104]-[114]. Nevertheless, before the Tribunal determines to dismiss a proceeding relying on s 42B it would need to be satisfied that the proceeding was of such a nature that the issues raised should not be accorded a proper hearing.
As explained by the Court in this excerpt, a subsequent repetitious claim may nevertheless be frivolous, vexatious, misconceived or lacking in substance, or an abuse of process so that it would not be appropriate for the issues raised to progress to, and be afforded, a proper hearing.
Novosel
The Respondent also submitted that there are similarities between the current application and the case of Novosel.
Like Mr Russell, Mr Novosel made claims for compensation and applications to the Tribunal which concerned whether Comcare was liable to compensate him for incapacity after a particular point in time. As with Mr Russell’s situation, in Novosel, two of the applications were resolved by consent.
On 28 October 2011, the Tribunal made a decision by consent under s 34D(2) of the AAT Act. The reviewable decision was set aside and substituted with a decision that Mr Novosel was entitled to compensation under s 16 and 19 of the SRC Act for a left knee injury from 24 September 2008 to 27 October 2009. The Tribunal noted the parties’ agreement that Mr Novosel’s left knee injury had resolved from 28 October 2009 and did not give rise to an entitlement for medical treatment or incapacity to work from that time (Novosel, para [37]).
On 1 May 2014, the Tribunal made another consent decision pursuant to s 34D(2) of the AAT Act in another application brought by Mr Novosel (2014 Consent Decision). This consent decision set aside another reviewable decision of Comcare and substituted the decision that Mr Novosel was entitled to compensation under s 16 of the SRC Act for certain medical treatments, scans and medicine related to his left knee between June 2012 and February 2013, but not for three other claimed medications/ vitamin supplements. There was no reference to s 19 in this consent decision (Novosel, para [66]-[67]).
However, Mr Novosel made a subsequent claim to Comcare, requesting that his entitlement to incapacity payments be reassessed and reinstated from 8 December 2010 due to a report by Professor Oakeshott dated 27 November 2013. This report reversed Professor Oakeshott’s prior opinion, which was averse to Mr Novosel and which, Mr Novosel said, the previous Tribunal consent decisions were substantially influenced by. Comcare denied liability to pay Mr Novosel compensation under s 19 of the SRC Act from 8 December 2010 (Novosel, paras [68]-[69]; [78]). The decision-making process resulted in Mr Novosel making a further application to the Tribunal. This application submitted that Comcare was liable under ss 16 and 19 of the SRC Act for an injury to his left knee from 28 October 2009.
The Tribunal dismissed Mr Novosel’s application pursuant to s 42B of the AAT Act. Perry J summarised the reasoning of the Tribunal at [78]-[80]:
The Tribunal then referred to the applicant’s argument that he should be able to raise Comcare’s liability under ss 16 and 19 for his left knee injury for the period since 28 October 2009 because the report by Professor Oakeshott on 27 November 2013 reversed his previous negative assessment of the applicant’s case and the first and second AAT consent decisions were said to have been substantially influenced by Professor Oakeshott’s previously expressed opinions (at [8]). The Tribunal rejected that submission in the following passages:
9.That may be true in relation to the first decision. But the second decision was made more than five months after Professor Oakeshott’s [second] report. The second decision makes no reference to liability under s 19 in relation to Mr Novosel’s left knee. Mr Novosel says that that issue was not before the Tribunal in a practical sense, because it was not the subject of negotiation leading to the second decision. But it was before the Tribunal in the sense that it would have been open to the Tribunal to make a decision about the issue had the relevant application [i.e. 2013/1438] proceeded to hearing. When the second decision set aside the relevant reviewable decision and substituted it with a decision that made no reference to s 19, that issue must be taken to have been resolved in Comcare’s favour. This means that Mr Novosel is seeking in this application to relitigate an issue that has been resolved between him and Comcare.
10.As the Tribunal said in [Re Quinn and Australian Postal Corporation (1992) 15 AAR 519 at 526 (O’Connor J and Barbour M)], “[t]he Tribunal should not generally allow relitigation of issues already decided”. I think that Mr Novosel’s relitigation of the issue of Comcare’s liability under s 19 of the SRC Act in relation to his left knee amounts to an abuse of process for the purposes of s 42B(1) of the AAT Act.
In addition, the Tribunal found that the application has no reasonable prospect of success:
11.In any event, in my view, Mr Novosel’s application has no reasonable prospect of success. One of my reasons for coming to that view is the manner in which the issue that Mr Novosel is attempting to relitigate was resolved against him. The second decision was made when both parties had the benefit of Professor Oakeshott’s report of 27 November 2013. His earlier evidence was not the only evidence that was unfavourable to Mr Novosel. In coming to the agreement that became the second decision, the parties must have considered the likely result if the applications had proceeded to hearing, having regard to all of that evidence. There would appear to be no new evidence to suggest that the result would be different if the current application were to proceed.
Accordingly the Tribunal concluded that:
12. Having regard to written and oral submissions from counsel, and to the extensive history of litigation in the Tribunal relating to Mr Novosel’s injuries, I think that this application is an abuse of process and has no reasonable prospect of success. I dismiss the application under ss 42B(1)(c) and (b) of the AAT Act.
Mr Novosel appealed the Tribunal’s decision to the Federal Court. Perry J dismissed Mr Novosel’s appeal and in doing so outlined principles that are directly relevant to Mr Russell’s Application 2021/8517:
(a)Perry J confirmed that “a consent decision made under s 34D of the AAT Act is no less final than a decision made on the merits following a hearing” (para [103]).
(b)As I mentioned in the “Background” section above, the Tribunal’s jurisdiction extends to the whole of the matters that were put before the original decision-maker (para [92]). Perry J cited the following passage from Casarotto v Australian Postal Commission (1989) 10 AAR 191 at 194 regarding the scope of the Tribunal’s review:
... once a matter properly before the original decision maker comes to the Tribunal for review the whole matter before the decision maker is open to review and an applicant for review will not be confined by the submissions put to the original decision maker but the tribunal must decide for itself whether the decision made by the administrator ... was the right decision which ought to have been made in the circumstances: Drake v Minister for Immigration (1979) 24 ALR 577; 46 FLR 409 at 429-30.
(Emphasis in original.)
Thus, despite the 2014 Consent Decision solely mentioning s 16, both ss 16 and 19 of the SRC Act were before the original decision-maker and therefore before the Tribunal. Perry J also observed that the fact that Mr Novosel did not raise an issue under s 19 with respect to the 2014 Consent Decision did not mean that he could not have done so if he had wished (para [94]).
(c)Perry J found no error with the Tribunal accepting that, in the 2014 Consent Decision, the s 19 issue was resolved in Comcare’s favour. Perry J reasoned, at paras [97]-[98]:
First, in setting aside the reviewable decision made on 5 February 2013 which covered liability under both ss 16 and 19, and substituting a decision accepting some entitlement to compensation under s 16 only, the Tribunal has implicitly rejected any present liability under s 19. …
Secondly, even if no such implication is to be drawn and the consent decision is to be read as dealing only with liability under s 16 of the SRC Act, the effect of the consent decision would be to leave undisturbed the decision of the reviewing officer on 5 February 2013 to affirm the initial decision on 30 October 2012, namely, that compensation was not payable for periods of incapacity relating to the left knee injury. The applicant’s submission that the effect would be to set aside the decision on 30 October 2012 with the result that there was no extant s 19 determination in force is put no higher than bare assertion and with respect, is illogical.
(Original emphasis)
Perry J further found that Mr Novosel had “failed to establish any reviewable error in the Tribunal’s conclusion that the applicant is seeking by application No 2015/877 to “relitigate” an issue already resolved between him and Comcare”, at [99].
Re-litigation
In relation to the issue of re-litigation and the Tribunal’s powers to dismiss an application for abuse of process under s 42B(1)(c) of the AAT Act, the following principles stated by Perry J in Novosel are relevant:
(a)“even in cases where re-litigation of an issue may not be barred by res judicata or an issue estoppel, nonetheless the institution or continued pursuit of proceedings may constitute an abuse of process” (at para [106]). Perry J (at paras [107]-[108]) cited illustrative passages from the Federal Court decision of Re Quinn v Australian Postal Corporation (1992) 15 AAR 519 and the Tribunal decision of Re Grimsley v Telstra Corporation Ltd [2010] AATA 106; (2010) 51 AAR 401:
In expressly empowering the Tribunal summarily to dismiss proceedings under s 42B(1)(c) of the AAT Act on the ground that they constitute an abuse of process, it is apparent that the Parliament intended to empower the Tribunal to protect its own processes against analogous forms of abuse. Thus, the AAT found in Re Quinn v Australian Postal Corporation (1992) 15 AAR 519 at 526 (upon which the Tribunal here relied) that:
Section 33 of the Administrative Appeals Tribunal Act provides for the Tribunal the flexibility needed to control its process. It is with regard to the dictates of fairness and expedition, after proper consideration of all the facts, that the Tribunal conducts itself.
It would seem inappropriate and unreasonable to us for there to be relitigation 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 relitigated tomorrow on the very same facts. The Tribunal should not generally allow relitigation of issues already decided and previous Tribunal decisions should be regarded as establishing the matters actually decided and of the grounds for the determination.
The same approach was adopted by Hack DP in Re Grimsley v Telstra Corporation Ltd [2010] AATA 106; (2010) 51 AAR 401 at [11] in finding that it would be unfair to Telstra to permit the applicant in that case to re-litigate issues already determined in earlier proceedings by a consent decision. As the Deputy President held at [13]:
Prima facie, the consent decision in the matter ought to be regarded as having determined the matters in controversy. Here the issue of causation was one of the matters in controversy. Ms Grimsley contended that the effects of the accepted injury continued. Telstra contended that they no longer did so. I do not regarded as unfair to Ms Grimsley to not permit her to agitate the very issue determined by consent on the earlier proceedings. Indeed it would be unfair to Telstra to permit that to happen. In reality, what Ms Grimsley seeks to do is to go back on the resolution of the matter that she consented to in July 2009.
(b)In summary, “the fact that an applicant may be able to bring a further claim does not mean that if a further claim is made, it cannot constitute an abuse of process in the circumstances of the particular case” (para [110]).
Policy considerations: s 2A of the AAT Act
Even though re-litigation of an issue may not be barred by res judicata or issue estoppel, the Tribunal may take broader policy considerations into account when considering whether the continuation of an application would be an abuse of process. In this regard, the Tribunal may be informed by s 2A of the AAT Act which provides for the Tribunal’s objective:
In carrying out its functions, the Tribunal must pursue the objective of providing a mechanism of review that:
(a) is accessible; and
(b) is fair, just, economical, informal and quick; and
(c) is proportionate to the importance and complexity of the matter; and
(d)promotes public trust and confidence in the decision-making of the Tribunal.
Perry J explained in Novosel, at [112]:
Presumably the applicant’s submission is that there could therefore be no unfairness or oppression in permitting him to re-litigate the s 19 liability issue in AAT 2015/877. That submission, however, overlooks the fact that the onus lies upon the applicant to establish a jurisdictional or other error of the kind that could attract the grant of relief sought, rather than upon Comcare to rebut the allegation. It also overlooks the fact that abuse of process is not merely concerned with prejudice to a respondent but also with matters of broader public policy. Thus, principles of res judicata, issue estoppel and the like in judicial proceedings, are underpinned by broader issues of public policy, namely, that it would be an abuse of process to allow parties to litigate repeatedly matters that have been finally determined by the Court not only because “a person ought not to be vexed twice for one and the same cause”, but also because it is in the interests of the State that there be an end to litigation: see e.g. Wong v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 242; (2004) 146 FCR 10 (Wong) at [36]-[37]. The same policy considerations may equally inform the Tribunal’s approach to issues of abuse of process as they would plainly promote the objective which the Tribunal is to pursue by virtue of s 2A of the AAT Act, namely, to provide a mechanism of review that is fair, just, economical, informal and quick. In any event, I accept the respondent’s submission that the prejudice to Comcare is clear in circumstances where the applicant, inconsistently with prior agreements and his earlier conduct in withdrawing claims, has brought yet another application to the Tribunal in relation to the same claim. As Comcare submits, such conduct increases the time, expense and allocation of resources that Comcare needs to devote to repeatedly answering the same claim over many years. Moreover the fact that the applicant may not have raised the issue in the negotiations leading to the consent decision in AAT application no 2013/1438 is ultimately not to the point. It may be an abuse of process not only to re-litigate the same issue twice, but also to seek to litigate an issue that properly belonged to the earlier litigation: Wong at [37] (by analogy).
The Respondent referred me to two other relevant Tribunal decisions. The first was Re NXPQ and Comcare [2021] AATA 4094 (NXPQ), where Deputy President Constance applied s 2A when dismissing an applicant’s application for being an abuse of process because it was an attempted re-litigation of an earlier application.
In NXPQ, the Applicant claimed compensation for a “psychiatric injury” due to the nature and conditions of his employment. Deputy President Constance found that he had already claimed compensation for this injury in Re ZDHG and Comcare [2019] AATA 5028 (ZDHG). In ZDHG, the Applicant’s counsel made a forensic choice to change the description of the injury to post-traumatic stress disorder. In NXPQ, the Applicant had made another application for a more broadly described mental injury. Deputy President Constance found that the issue before the previous Tribunal in ZDHG was the same issue that the Applicant was trying to re-litigate before him. The Deputy President dismissed the application, together with another related application. The Deputy President explained, at [50]-[51]:
I accept the argument put by Counsel for Comcare that to permit the Applicant to continue with this application would be:
· unfair and unjust – because Comcare would be required to respond without good reason to essentially the same claim a second time;
· uneconomical – because Comcare has already had to expend many hours of time and resources, as well as legal costs and disbursements for at least three days of hearing, in responding to essentially the same claim in Re ZDHG;
· not quick – because of the lapse of time between relevant events (including the period between the decision in Re ZDHG and any “final” hearing of the present application);
· not promote public trust and confidence in the decision-making of the Tribunal – for instance, Commonwealth-funded resources would continue to be used to manage and respond to a case which was, or ought to have been, finalised years ago.
I am satisfied that this application should be dismissed as being an abuse of process of the Tribunal.
Prejudice to the Respondent
The second relevant Tribunal decision that the Respondent referred me to was Re Onassys and Comcare [2021] AATA 829 (Onassys). In Onassys, the Tribunal dismissed an application which involved the same claim for an injury made some years earlier, which Comcare had denied liability for, and which the applicant had not sought review of.
Specifically, in Onassys, the Applicant made a claim to Comcare in 2003 for mental ailments she claimed to have suffered in 2003 due to her employment. Comcare denied liability and she did not seek review of that decision. However, the Applicant made another claim for compensation in 2020 for mental ailments she claimed to have suffered in 2003. Comcare again denied liability and after that denial decision was affirmed in a reconsideration decision, the Applicant sought review in the Tribunal. Deputy President Pascoe dismissed the Applicant’s 2020 application under s 42B(1)(c) of the AAT Act on the basis that it was an abuse of process.
The learned Deputy President explained, at [49]-[50], that it would not be appropriate for the applicant to re-litigate a decision some 17 years later which the parties regarded as being settled at the time. However, if she had new information, or was suffering from different ailments, it was open to her to make a further application:
It is significant in my opinion that the Applicant did not seek a review of the decision at that time. Accordingly, the Respondent was entitled to act on the basis that the matter had been dealt with and the question was settled. The Applicant cannot agitate the same matters in 2020 in the hope of a more favourable decision being made. To do so would in my opinion clearly amount to an abuse of process within the terms of section 42B(1) of the AAT Act.
There is no issue estoppel in this matter (Commonwealth v Snell [2019] FCAFC 57). If the Applicant has new information, or is suffering from a different set of ailments, she is at liberty to make a further application. The report of psychiatrist Dr Michael Hong dated 25 September 2015 would suggest that this is not the case. At page 6 of the report, Dr Hong notes:
Ms Onassys reported having suffered physical injury and chronic pain. However it was the way she perceives she has been treated in the workplace, that has been particularly distressing for her, leading to the onset of significant psychological symptoms by 2004. Ms Onassys has not fully recovered since that time. Over time, there has been a diagnosis of Post Traumatic Stress Disorder; however, I did not identify the type of trigger or psychological response that would fulfil the DSM-IV or DSM-5 criteria of the PTSD condition.
Relevantly, the learned Deputy President continued by addressing the issue of prejudice to the respondent that may result from the applicant being permitted to re-litigate claims that had been previously dealt with, at [51]-[53]:
In addressing the issue of the Commonwealth and unfairness, and of it being entitled to rely on a decision, it is not difficult to see how the respondent may face significant prejudice if the Applicant were allowed to relitigate claims dealt with in 2004.
It may be difficult to relocate the relevant witnesses, and in any event, it is likely that the recollection of those witness may have faded with the effluxion of time. This is illustrated by the evidence of Ms Beverley Smith, who says at [7] in her Statement of 17 February 2021 that her recollection of the events in question is poor:
... I believe that Mr Sinclair would have advised me of this allegation and that would have commenced the formal investigation, but I do not have any recollection of this
Documents may have been destroyed, or simply no longer be available. Many former employees may simply be uncontactable.
The Applicant relied upon four additional authorities cited at the conclusion of their submissions in reply to the application for dismissal. The authorities were not relevant to these proceedings because they related to: a state compensation jurisdiction (Kuligowski v Metrobus [2004] HCA 34); summary dismissal of court proceedings (General Steel Industries Inc v Commissioner for Railways NSW [1964] HCA 69); and dismissal on a different ground to the current application on the basis of an application being frivolous or vexatious (Duncan v Fayle [2004] FCA 723; Re Williams v Australian Electoral Commission [1995] AATA 160).
Consideration
I agree that there are substantial similarities between Mr Russell’s situation, and that of Mr Novosel. Like Mr Novosel, Mr Russell is attempting to re-litigate issues that belonged to earlier proceedings in 1997 and 2007 that were resolved against him in the First Consent Decision and the Second Consent Decision.
The issue of the effect of Mr Russell’s voluntary retirement and whether the Respondent was liable to pay compensation by way of incapacity payments to Mr Russell after his retirement was an issue that was before the Tribunal when it made the First Consent Decision. It was also noted by the decision-maker leading up to the Second Consent Decision as having already been considered in the First Consent Decision.
Additionally, the bobcat accident in 2004 was not a subsequent material change in circumstances or intervening event. This is because the issue of the bobcat accident and its relationship with Mr Russell’s employment with Australia Post was considered by the decision-maker and was therefore before the Tribunal when the Tribunal made the Second Consent Decision. The effect of Mr Russell’s voluntary early retirement on his incapacity payments, including his claims that his retirement was not voluntary, were also before the decision-maker, and therefore the Tribunal when it made the Second Consent Decision.
The Applicant argued that a report from Consultant Psychiatrist Dr Ng dated 18 January 2021 (T143) suggests a change in his circumstances that could not have been put before the previous Tribunals. The report states that Mr Russell’s emotional state deteriorated approximately two years ago (which I infer to be in approximately 2019) when the Respondent stopped paying for medications (T143/453; see also 455). On this point I note that this change in circumstances occurred as part of the compensation process and is therefore unlikely to relate to employment. For example, in Hennessey-Milne and Comcare [2018] AATA 4453, Deputy President Sosso stated, at [333] that: “As a general rule, incidents flowing from the rehabilitation and compensation process are not to be regarded as employment-related in assessing ongoing liability: see Pettiford and Comcare (2014) 139 ALD 411 and Pedersen and Comcare [2016] AATA 449”.
I do not think that it assists Mr Russell that he is seeking incapacity payments for a later period than those periods in the previous consent decisions. In Novosel at [109], Perry J cited Plumb v Comcare (1992) 39 FCR 236 at [240] as authority for the proposition that the Tribunal and original decision-makers did not have the power to make a decision that extended beyond the date of their decision. In other words, the decision-maker or Tribunal “cannot bind itself in advance to reject any future application” (Australian Postal Corporation v Oudyn (2003) 73 ALD 659, cited in Novosel at para [109]). This is because there may be “new evidence warranting a further decision”. However, as was noted by Perry J in Novosel at [110], “the fact that an applicant may be able to bring a further claim does not mean that if a further claim is made, it cannot constitute an abuse of process in the circumstances of the particular case”.
I have already outlined that I do not think there has been any material change in circumstances. Nor do I think there has been new evidence warranting a further decision. I note Dr Ng’s conclusion in his report dated 18 January 2021 “that between 21 October 2005 and 27 April 2016, [Mr Russell] was totally unfit for any work whatsoever including his pre-injury work” (T143/461). Dr Ng was the Applicant’s treating psychiatrist from February 1997 to May 2009 (T143/452). There was substantial evidence from Dr Ng before the Tribunal from 2005 to 2009. Therefore, evidence of any exacerbation of Mr Russell’s incapacity after his voluntary early retirement was capable of being put before the Tribunal by Mr Russell leading up to the Second Consent Decision. For example, Dr Ng had reviewed Mr Russell in 2003 and concluded that his “condition had exacerbated in the years leading up to 2003” (T119/224). As was noted in the Applicant’s submissions, there is some question as to Mr Russell’s ongoing incapacity due to his inability to obtain paid work from approximately 2007 (para [32]). It is possible that this could have been put before the Tribunal given that they did not make that consent decision until April 2007. However, even if that did not happen, if there was a material change of circumstances in 2007, that should have been the subject of a claim in the several years following that time, and not some 15 years after the Second Consent Decision.
The Applicant’s representative stated that there was contrary evidence to the evidence of Dr Ng, in a recent report of Dr Cheng dated 12 August 2019 (T133), which he submitted, warranted the evidence being tested at a substantive hearing. However, the Applicant’s representative also conceded that proceeding to a substantive hearing would involve a re-hearing of some of the same issues and evidence before the previous two Tribunals when they made the First and Second Consent Decisions. This brings me to the prejudice to the Respondent and issues of broader public policy that would be caused by re-litigating issues that properly belonged to earlier Tribunal proceedings (Novosel, para [112]).
Approximately 25 years have passed since the First Consent Decision, and approximately 15 years since the Second Consent Decision. After the passage of so many years, it is reasonable to expect the Respondent to regard those issues as determined and that Mr Russell would not seek to revive them. In this regard, I note the Respondent’s confirmation that the Respondent’s legal representatives do not have access to the documents, such as the SFICs, relating to the Second Consent Decision because they were destroyed, and the Respondent cannot locate them (Onassys, para [53]). Locating witnesses and the recollection of witnesses is also likely to be problematic due to the passage of time (Onassys, para [52]). Accordingly, it would be inconsistent with s 2A of the AAT Act to permit Mr Russell to re-litigate issues that were determined by, or belonged to, the earlier consent decisions made by the Tribunal. My reasons for this conclusion are the same as those expressed by Deputy President Constance in NXPQ at [50], which I have reproduced above at paragraph [61]) and so there is no need for me to repeat them. In summary, I find that it would be contrary to the objective of the Tribunal in s 2A of the AAT Act, and unfair and prejudicial for the Respondent to be called upon to revive liability or defend a proceeding on issues that they were entitled to regard as determined in 1997 and 2007.
I am therefore satisfied that Application 2021/8517 should be dismissed under s 42B(1)(c) of the Act on the basis that it is an abuse of the process of the Tribunal.
Decision
Application 2021/8517 is dismissed pursuant to s 42B(1)(c) of the Administrative Appeals Tribunal Act 1975 (Cth).
I certify that the preceding 76 (seventy-six) paragraphs are a true copy of the reasons for the decision herein of Senior Member Dr M Evans-Bonner
..............[Sgd].......................................................
Associate
Dated: 6 October 2022
Date of interlocutory hearing: 27 April 2022 Counsel for the Applicant: Mr B Nugawela instructed by Mr K Wong of Soul Legal Counsel for the Respondent:
Mr PG Woulfe instructed by Ms R Waldron-Hartfield of Moray & Agnew
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