Slater and Telstra Corporation Limited
[2007] AATA 1085
•26 February 2007
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2007] AATA 1085
ADMINISTRATIVE APPEALS TRIBUNAL )
) No Q200600900
GENERAL ADMINISTRATIVE DIVISION ) Re GORDON SLATER Applicant
And
TELSTRA CORPORATION LIMITED
Respondent
DECISION
Tribunal Deputy President P E Hack SC Date26 February 2007
PlaceBrisbane
Decision The Tribunal:
(a) dismisses, pursuant to s 42A(4) of the Administrative Appeals Tribunal Act 1975, the application filed on 4 December 2006;
(b) directs that the applicant must not, without the leave of the Tribunal, make any application to the Tribunal with respect to any claimed entitlements to compensation under s 19 of the Safety, Rehabilitation and Compensation Act 1988 prior to 1 June 2002.
...............Signed...............
Deputy President
CATCHWORDS
COMPENSATION – jurisdiction - injured in course of employment – request for long service leave entitlements whilst receiving compensation – respondent failed to respond to request – no decision, deemed decision or reconsideration for the Tribunal to review – no reviewable decision – Tribunal does not have jurisdiction to hear and determine the application - application dismissed
PRACTICE AND PROCEDURE – Anshun estoppel – prevents applicant from raising matters not raised in earlier proceedings – vexatious application - application dismissed
PRACTICE AND PROCEDURE – matters not raised in earlier proceedings - power of Tribunal to control its own procedures – application dismissed
PRACTICE AND PROCEDURE – frivolous or vexatious – application is obviously unsustainable – persistent vexatious applications – present application devoid of merit - direction made under s 42B(1)(b)
Safety, Rehabilitation and Compensation 1988 Act ss 14(1), 19, 38(4), 53, 54, 60(1), 62, 64(1), 116
Administrative Appeals Tribunal Act 1975 ss 3(3), 25(4A), (5), 33(1)(a), 42A(4), 42B(1)(a),(b)
Slater and Telstra Corporation Ltd [2002] AATA 597
Lees v Comcare (1999) 29 AAR 350
Semunigus v Minister for Immigration and Multicultural Affairs (2000) 96 FCR 533
Slater v Telstra Corporation Limited [2004] FCA 476
Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589
Singh v Secretary, Department of Employment and Workplace Relations [2006] FCA 1381
Henderson v Henderson (1843) 67 ER 313
Comcare v Grimes (1994) 50 FCR 60
Re Mulheron and Australian Telecommunications Corporation (1991) 23 ALD 309
Re Quinn and Australian Postal Corporation (1992) 15 AAR 519
Bogaards v McMahon (1988) 15 ALD 313
Slater and Telstra Corporation Limited [2004] AATA 1010
Slater and Telstra Corporation Limited [2005] AATA 527
REASONS FOR DECISION
26 February 2007 Deputy President P E Hack SC Background
1.By letter dated 4 December 2006 the applicant, Mr Gordon Slater, lodged what he described as an:
“Appeal against the refusal of Telstra Corporation Limited to determine my entitlements to Long Service and Pension Contribution Entitlements whilst in receipt of compensation under section 19 of the Safety, Rehabilitation and Compensation Act 1988.”
2.The respondent, Telstra Corporation Limited, has put in issue the jurisdiction of the Tribunal to hear and determine the application. It says, essentially, that there is no reviewable decision and thus no jurisdiction in the Tribunal to consider the applicant’s “appeal”. Moreover, it says the application is frivolous or vexatious and ought be dismissed under s 42B(1)(a) of the Administrative Appeals Tribunal Act1975 (“the AAT Act”) and that a direction ought be made pursuant to s 42B (1)(b) of that Act preventing the applicant from bringing similar applications without the leave of the Tribunal.
3.From the material before me it is common ground that the applicant was employed by the respondent in the period between 17 October 1995 and 17 October 1996. In the course of that employment the applicant apparently suffered an injury to his left knee on 11 July 1996.
4.It is material to note that the applicant made a claim for compensation in respect of that injury on 19 July 1996, that a determination was made by the respondent on 17 March 1997 in respect of that claim, and that that determination was affirmed following reconsideration by the respondent on 16 April 1997.
5.The reconsideration of 16 April 1997 was the subject of proceedings in this Tribunal, which resulted in a decision of the Tribunal of 19 July 2002[1]. The decision under review was set aside and, in substitution of that decision, it was decided that:
“(a) the respondent is liable, pursuant to section 14 of the Act, to pay compensation to the applicant in respect of his left knee injury; and
(b) the respondent is liable, pursuant to section 19 of the Act, to pay to the applicant compensation in the amount of $19.82 per week for the period from 1 October 1997 until 31 August 1998.”
[1] See Slater and Telstra Corporation Limited [2002] AATA 597.
6.There have been, and are, other proceedings in the Tribunal between the applicant and the respondent but the detail of these proceedings is not relevant to this history.
7.The present matter arises from a letter sent by the applicant to the respondent’s insurer dated 28 September 2006. After reference to the Tribunal’s decision of 19 July 2002 the letter continued:
“Under section 116 of the SRC Act 1988 there is also a liability for long service leave entitlements to accrue during the whole period of the compensation leave, as if the employee were not absent from work, furthermore superannuation credits would also have to be applied
As both of these items were ceased by Telstra on 16 October 1996, Telstra still has a liability to compensate me for these items for the period from 16 October 1996 until 31 August 1998
I would ask that you calculate the amount owed to me and forward it without delay”
8.Seemingly the applicant received no response to this letter for, on 16 November 2006, he wrote to the respondent in the following terms:
“Under the AAT Act a failure to make a decision under the act is deemed to be a decision. Not having received a response to the above letter it must be assumed Telstra are refusing to pay me the entitlements to which I am due under s 116 of the SRC Act
This is a request for a reconsideration of that deemed decision
If I do not receive a response within 14 days of the date of this letter proceedings will be instituted in the Administrative Appeals Tribunal.”
9.The present proceedings were instituted by letter from the applicant dated 4 December 2006.
10.In light of the arguments of both parties to this proceeding, the issues that I have to decide are these:
(a)Does the Tribunal have jurisdiction, that is, is there a reviewable decision?
(b)Is the application additionally, or in any event, frivolous or vexatious?
(c)If the answer to (b) above is ‘yes’, should a direction under s 42B(1)(b) of the AAT Act be made in relation to the applicant?
Jurisdiction
11.In considering the issues raised by this application it is necessary to bear in mind that the Tribunal does not have jurisdiction to review all administrative decisions; it has power to review only those decisions where an enactment makes provision for such a review[2].
[2] See AAT Act s 25.
12.By virtue of s 3(3) of the AAT Act the reference to “decision” includes a reference to refusing to make a determination or any other act or thing but importantly, that subsection does not extend to a failing to make a decision. The failure to make a decision constitutes the making of a decision only in the limited circumstances set out in s 25(5) of that Act in these terms:
“For the purposes of an enactment that makes provision in accordance with this section for the making of applications to the Tribunal for review of decisions, a failure by a person to do an act or thing within the period prescribed by that enactment, or by another enactment having effect under that enactment, as the period within which that person is required or permitted to do that act or thing shall be deemed to constitute the making of a decision by that person at the expiration of that period not to do that act or thing.”
13.The Safety, Rehabilitation and Compensation Act 1988 (“the SRC Act”) is an enactment that makes provision for the making of applications to the Tribunal. It does so in s 64(1) which provides:
“(1) Application to the Administrative Appeals Tribunal for review of a reviewable decision may be made by:
(a) the claimant; or
…”
Thus the subject matter of a review by the Tribunal is a “reviewable decision”. That expression is defined by s 60(1) of the SRC Act as meaning:
“… a decision made under subsection 38(4) or section 62.”
Section 38(4) has no present relevance. It deals with decisions about rehabilitation programmes.
14.Section 62 needs to be considered but it will be helpful to do so in the overall context of the SRC Act.
15.Section 14(1) of that Act creates a liability to pay compensation, in accordance with the Act, in respect of an injury suffered by an employee where the injury results in death, incapacity for work or impairment. The amount or extent of that compensation is set out in succeeding sections within Part II of the SRC Act. Those sections include s 19. That section provides for the amount of compensation payable to an employee who is incapacitated for work. The section sets out, in some detail, a mechanism for the calculation of the amount of compensation payable.
16.It is next necessary to notice Part V of the SRC Act which deals with claims for compensation. Collectively, subsections 53 and 54 make the payment of compensation dependant upon the giving of timely notice in writing of the injury and the making of a written claim to the relevant authority.
17.Part VI of the SRC Act is headed “Reconsideration and Review of Determinations.” It creates what was described in Lees v Comcare[3] as:
“a three tiered decision-making process: the original decision or determination to be made by an authorised person within Comcare or a licensed authority, a reconsidered determination to be made within the same authority as the original decision – but ordinarily by a fresh decision maker, and a decision of the AAT reviewing the reconsidered determination.”
[3] (1999) AAR 350 at par. [32]
18.It is the reconsideration, undertaken pursuant to s 62 of the SRC Act, which may be the subject of a review by this Tribunal.
19.In this case, the question that arises is whether there is any reconsideration for the Tribunal to review.
20.It is evident that there has been no decision in the sense used by Finn J in Semunigus v Minister for Immigration and Multicultural Affairs[4]; that is, a conclusion reached as a result of a mental process and the translation of that conclusion into a decision by means of an overt act. There is here no overt act, either at the level of primary determination or at the reconsideration level.
[4] [1999] FCA 422.
21.Moreover, as there is no prescribed time for the making of a determination by Comcare or a licensed authority, s 25(5) of the AAT Act does not operate to create a “deemed decision” out of the respondent’s failure to respond to the applicant’s correspondence.
22.Thus, in my view, what the applicant describes in his letter of 4 December 2006 as the respondent’s refusal to determine entitlement to long service and pension contribution does not amount to a “reviewable decision” and, thus, on the basis of the application as originally framed, the Tribunal lacks jurisdiction.
Frivolous or Vexatious
23.When pressed in the course of the hearing to identify the reviewable decision the applicant resorted to contending that the reviewable decision was the reconsideration of 16 April 1997. However that reviewable decision has already been the subject of a review by the Tribunal resulting in the decision of 19 July 2002 set out in paragraph [5] above. An appeal by the applicant from that decision was unsuccessful[5].
[5] See Slater v Telstra Corporation Ltd [2004] FCA 476.
24.Even if it were to be assumed (contrary to my view) that there was merit in the matters that the applicant now seeks to agitate, his argument is met by the estoppel discussed in Port of Melbourne Authority v Anshun Pty Ltd[6]. That this principle applies to this Tribunal is made clear by the decision in Singh v Secretary, Department of Employment and Workplace Relations[7].
[6] (1981) 147 CLR 589.
[7] [2006] FCA 1381.
25.In that case, Mr Singh, having already made an application to the Tribunal that had been determined (and affirmed on appeal), lodged a fresh application. His contention was that there was an aspect of the reasons of the Social Security Appeals Tribunal that was erroneous but which had not been made the subject of complaint in the earlier proceedings in this Tribunal. His subsequent application to this Tribunal was dismissed on the grounds that it was frivolous and vexatious. On the appeal from that decision Weinberg J stated:
“In Anshun, the Court found that the principle laid down in Henderson[[8]] extended beyond res judicata. That broader form of estoppel applies to this case. I note that Ryan J, in his reasons for directing non-acceptance of process given on 8 March 2006, relied upon Anshun. Had Mr Singh read the 13 May 2002 reasons for decision, he would have seen the sentence to which he now objects. He could then, as part of ordinary merits review, have challenged the correctness of the assertion contained within it, and arguably gained some support for his broader challenge to the 4 November 1999 decision. His failure to read the reasons for decision, whether through “negligence, inadvertence or even accident” led to his not having raised the point at a time when something could have been done about it. He cannot now, years later, having failed at all stages to demonstrate relevant legal error, come back to the Tribunal, and thence to this Court, with a point that should have been raised long before this[9].”
[8] Henderson v Henderson (1843) 3 Hare 100 at 115; (1843) 67 ER 313 at 319.
[9] At par. 42.
26.In my view, and for identical reasons, the applicant cannot now rely upon the earlier reconsideration as the reviewable decision giving the Tribunal jurisdiction to hear and determine his complaints regarding long service leave and superannuation entitlements. Those matters ought to have been raised in the earlier proceedings.
27.In any event, there is an alternative way of reaching the same conclusion without resort to arguments involving estoppel and that is by reference to the Tribunal’s power under s 33(1)(a) of the AAT Act to control its own procedures. The nature of that power, in a similar context to the present, was considered by Wilcox J in Comcare v Grimes[10]. There, after considering the earlier Tribunal decisions of Re Mulheron and Australian Telecommunications Corporation[11]and Re Quinn and Australian Postal Corporation[12], both decisions of the then President of the Tribunal, O’Connor J., his Honour continued:
“… there is clearly a close correspondence between issue estoppel and cause of action estoppel and there is high authority for the proposition that issue estoppel does not apply to AAT decisions. It would be curious if a different rule applies to cause of action estoppel. It seems to me that the conclusion reached in Bogaards v McMahon[[13]], which was clearly correct, can readily be accommodated by the approach taken in Mulheron and Quinn; the AAT, which is master of its own procedures, will not allow a finally determined matter to be relitigated [14].”
[10] (1994) 50 FCR 60.
[11] (1991) 23 ALD 309
[12] (1992) 15 AAR 519.
[13] (1988) 15 ALD 313
[14] (1994) 50 FCR at 67.
28.For the same reasons and relying upon the same power, the Tribunal will not now allow a matter to be litigated that ought to have been litigated in proceedings heard and determined many years ago.
29.On either of these bases the application is frivolous using frivolous in the sense of obviously unsustainable[15].
[15]Attorney-General (Duchy of Lancaster) v London and North Western Railway Co [1892] 3 Ch 274.
30.But even if I had concluded that there was jurisdiction I would have dismissed the application as being frivolous.
31.An employee’s entitlement to compensation is governed by the SRC Act. Section 116, which is relied upon by the applicant as founding his claimed entitlement to be paid long service leave whilst on compensation leave, is in these terms:
“In spite of any provision of any other Act or an award, an employee is not entitled to be granted any kind of leave of absence with pay (other than maternity leave with pay) during, or in respect of, any period when the employee is or was on compensation leave but:
(a) sick leave and recreation leave entitlements continue to accrue in relation to the employee during each of the first 45 weeks during which he or she is on compensation leave; and
(b) long service leave entitlements continue to accrue in relation to the employee during the whole of the period of the compensation leave;
as if the employee were not absent from work.”
32.This section does not create any entitlement to be paid compensation for long service leave entitlement. It does no more than provide that, as between employer and employee, the employee’s entitlement to long service leave continues to accrue notwithstanding an absence from employment on compensation leave.
33.So far as the claim for superannuation (or pension) benefits is concerned it seems to me that the applicant’s argument proceeds upon a fundamental misunderstanding of an employer’s obligations in relation to superannuation. That obligation is to pay an amount, prescribed either by legislation or industrial agreement, to a superannuation fund, for the benefit of the employee.
34.But in the case of each of these supposed “entitlements” there is no independent entitlement. The entitlements that the applicant had for compensation for incapacity for work are, in the ordinary case, those set out in s 19 of the SRC Act. The entitlements claimed by the applicant are not entitlements specified in that Act and accordingly the applicant could not succeed even if there had been jurisdiction.
35.In my view, both claims are obviously unsustainable. The present case is one where the flaws in the applicant’s arguments are plain; nothing but additional public and private expense would be achieved by undertaking a hearing on the merits of the matters that the applicant seeks to raise.
36.It remains for the Tribunal to consider the respondent’s application for a direction under s 42B(1)(b) of the AAT Act. That section empowers the Tribunal, if satisfied that an application is frivolous or vexatious, to 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. The direction sought here by the respondent is one “in respect of [the applicant’s] entitlement to compensation under s 19 of the SRC Act prior to 1 June 2002.”
37.I am satisfied that the application is frivolous and thus the discretion in s 42B(1)(b) is enlivened.
38.As it happens, there is a helpful discussion by Weinberg J. in Singh[16] of the principles that guide the exercise of the discretion. His Honour said:
“… it is implicit in the section that a direction under s 42B(1)(b) will not be lightly made and will normally require some element of habitual or persistent conduct.”
[16] [2006] FCA 1381 at par. [49].
39.The matters relied upon by the respondent (apart from the present matter) were applications Q2004/395, Q2004/409, Q2004/603 and Q2004/630. There are no published reasons for decision in relation to the first two of these applications. However, in his decision on the latter two matters[17] Mr R G Kenny, Member, described the proceedings in this way:
[17] See Slater v Telstra Corporations Ltd [2004] AATA 1010 at paras. [4] – [6].
“Mr Slater has made further applications to the Tribunal for review of decisions by Telstra. These relate to documents dated 1 May 2002 and 30 May 2002. On 1 May 2002, Kevin Standish, solicitor for Telstra, wrote to Mr Slater and enclosed a table of NWE calculations which he declared were applicable to Mr Slater. On 20 May 2002, Mr Slater’s solicitors, Mahoney and Hersford, replied to Mr Standish and requested that the NWE calculations be re-determined because they had not included an overtime component. On 30 May 2002, Mr Standish again prepared a document of NWE for Mr Slater which reproduced the same figures as were included in the earlier table of 1 May 2002. Mr Slater’s further applications to the Tribunal for review include:
· an application dated 13 May 2004 (Q2004/395) where he sought review of a “deemed refusal” by Telstra to re-determine the decision dated 1 May 2002; and
· an application dated 29 May 2004 (Q2004/409) where he sought review of the “decision” by Telstra of 30 May 2002 relating to NWE.
Both of these applications were dismissed by Deputy President Muller on 28 June 2004 under section 42B(1)(a) of the Administrative Appeals Tribunal Act 1975 (the AAT Act) on the basis that they were frivolous and vexatious because they sought to re-litigate the same matters that were the subject of the proceedings before the Tribunal and the Federal Court.
On 28 July 2004, Mr Slater completed a further application for review of the decision dated 1 May 2002 (Q2004/603). Again, this was on the basis that it did not include references to overtime payments. On 8 August 2004, he completed another application for review (Q2004/630). This was in relation to the “decision” of 30 May 2002. Although he conceded that these applications reproduced those that had been dismissed by Mr Muller (Q2004/395 and Q2004/409), Mr Slater submitted that he was able to do this because those earlier applications were not properly before the Tribunal. He submitted that this was because they were out of time and no extension of time had been granted by the Tribunal.”
40.It is also relevant to note a recent decision of Senior Member McCabe[18] involving the applicant’s attempts to raise in other proceedings (Q2002/563) matters the subject of the earlier Tribunal decision by Member Kenny. Those proceedings involved a review of a reconsideration decision of the respondent made on 5 June 2002 which concluded there was no evidence that the applicant was totally incapacitated after March 1999. However, in those proceedings the applicant filed submissions that questioned whether the calculations undertaken by Mr Kenny in his decision of 19 July 2002 had been compromised because, so he alleged, the respondent had withheld material that should have been taken into consideration. Senior Member McCabe exercised the Tribunal’s powers under s 25(4A) of the AAT Act to determine the scope of the review in that case. He said:
“The submission of the applicant and the other material do not contain anything that justifies me re-visiting what are in essence the same issues as those canvassed in Slater [[2002] AATA 597] and referred to in the Tribunal’s subsequent decisions in relation to files Q2004/395 and Q2004/409 (the decision of Deputy President Muller) and Slater and Telstra Corporation Limited [2004] AATA 1010.
Mr Slater is unhappy with the decisions that have been made. But he has had the opportunity to present his case before. He had competent lawyers to represent him on those occasions. He had appeal rights that were exhausted. In those circumstances, I determine pursuant to s 25(4A) of the AAT Act that these proceedings will be confined to a discussion of whether or not Mr Slater’s condition or circumstances have changed since 1 June 2002. … The Tribunal will not re-visit any of the arguments about the amount of compensation that has already been awarded to the applicant[19].
[18] See Slater and Telstra Corporation Ltd [2005] AATA 527.
[19] At paras. [10] – [11].
41.I have come to the conclusion that I ought to make the direction sought by the respondent. The applicant has had a hearing that determined the merits of his claim for compensation for incapacity for work in the period up to June 2002. The applicant, as he was entitled, appealed that decision but was unsuccessful. Thereafter, in the guise of applications Q2004/395 and Q2004/409, he sought to re-litigate issues that had already been determined by the Tribunal. Having failed in that attempt he tried again in Q2004/603 and Q2004/630. He again, in Q2002/563, sought to agitate the same issues. He has been told on a number of occasions that the Tribunal will not permit him to raise matters that ought to have been the subject of the earlier proceedings.
42.The applicant, in this application, seeks to agitate issues that, if meritorious, ought to have been the subject of the earlier hearing. The need to make a direction in the present case is underlined by the fact that the present application is entirely devoid of merit.
43.In my view the applicant’s attempts to re-litigate issues that are connected with his entitlement to compensation under s 19 of the SRC Act prior to June 2002 may be described accurately as habitual or persistent. Whilst the entitlements claimed had different labels the common thread has been an attempt to raise matters that ought to have been raised in the earlier proceedings. The respondent ought not be vexed repeatedly by applications that seek to agitate stale issues, a fortiori where the Tribunal lacks power to award costs to the respondent.
44.Accordingly I would:
(a)dismiss the application filed on 4 December 2006;
(b)direct that the applicant must not, without the leave of the Tribunal, make any application to the Tribunal with respect to his entitlements to compensation under s 19 of the Safety, Rehabilitation and Compensation Act 1988 prior to 1 June 2002.
I certify that the 44 preceding paragraphs are a true copy of the reasons for the decision herein of Deputy President P E Hack SC
Signed: ......................Signed..............................................
Associate, Eleanor O’GormanDate of Hearing 9 February 2007
Date of Decision 26 February 2007
The Applicant appeared in person (by telephone)
Solicitors for the Respondent Sparke Helmore
3
14
0