Slater and Telstra Corporation Limited

[2005] AATA 527

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2005] AATA 527

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No  Q2002/563

GENERAL ADMINISTRATIVE DIVISION		)
Re		GORDON SLATER

Applicant

And TELSTRA CORPORATION LIMITED

Respondent

DECISION

Tribunal Senior Member B J McCabe

Date6 June 2005

PlaceBrisbane

Decision Pursuant to s25(4A) of the Administrative Appeals Tribunal Act 1975, I determine 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 consider any arguments about the amount of compensation already awarded to the applicant.

...................[Sgd].......................

SENIOR MEMBER

CATCHWORDS

PRACTICE AND PROCEDURE – Application for review – hearing of jurisdiction – Tribunal has jurisdiction to hear the application before it – various issues decided in previous applications – scope of current application limited to new evidence and changes in circumstances.

Safety Rehabilitation and Compensation Act 1988

Slater and Telstra Corporation Limited [2002] AATA 597

Slater and Telstra Corporation Ltd [2004] AATA 1207

Slater v Telstra Corporation Limited [2001] FCA 1417

Slater v Telstra Corporation Limited [2004] FCA 476

Slater and Telstra Corporation Limited [2004] AATA 1010

Re Quinn and Australian Postal Corporation (1992) 15 AAR 519

REASONS FOR DECISION

6 June 2005  Senior Member B J McCabe

introduction

1.      These proceedings arise out of an accident at work on 11 July 1996. Mr Gordon Slater, the applicant, was working for Telstra on a short term contract. He injured his knee. He sought compensation under the Safety Rehabilitation and Compensation Act 1988 (the Act). The Tribunal decided in Slater and Telstra Corporation Limited [2002] AATA 597 (“Slater”) that Telstra was liable to pay compensation to the applicant in respect of his injury under s 14 of the Act. Mr Kenny, who constituted the Tribunal on that occasion, concluded the applicant was capable of returning to full-time work, albeit that his knee injury prevented him from returning to the same kind of work that he had been doing at Telstra. After applying the formula in s 19, the Tribunal decided Telstra was liable to pay compensation in the amount of $19.82 per week for the period 1 October 1997 to 31 August 1998.  The Tribunal concluded no compensation was payable in respect of other periods under review (i.e. up until June 2002).

2.      The Tribunal’s decision in Slater (and the decision as to costs: see Slater and Telstra Corporation Ltd [2004] AATA 1207) came towards the end of a lengthy process which included an appeal to the Full Federal Court (Slater v Telstra Corporation Limited [2001] FCA 1417). The history of those proceedings is set out in Mr Kenny’s comprehensive decision in Slater. I note an appeal against the decision in Slater was unsuccessful: Slater v Telstra Corporation Limited [2004] FCA 476.

3.      The applicant claims in these proceedings that he is totally incapacitated as a result of his injury. The proceedings arise out of a claim he made on 15 March 2002 seeking compensation for total incapacity as of 3 March 1999. The respondent issued a determination dated 23 April 2002 in which it denied liability. The applicant requested a reconsideration of the decision on 1 May 2002. The respondent affirmed the decision on 5 June 2002 and the applicant lodged a fresh application with the Tribunal on 28 June 2002.

4.      The respondent says the decision in Slater settled the question of compensation up until June 2002. Telstra says Mr Slater is seeking to re-contest those proceedings. It says these proceedings are vexatious. These reasons are intended to determine the scope of these proceedings pursuant to s25(4A) of the Administrative Appeals Tribunal Act 1975 (the AAT Act).

the reviewable decision

5.      The reviewable decision is the starting point when the Tribunal is seeking to divine the issues in dispute between the parties. The decision in this case is contained in a letter from GIO dated 5 June 2002. The letter includes a statement of reasons. The letter refers to the findings of the Tribunal and the decisions of the Federal Court. It concludes there is no evidence that the applicant is totally incapacitated after March 1999.

6.      The reviewable decision was released to the applicant before the Tribunal’s decision in Slater was handed down. The proceedings in Slater arose out of an earlier reviewable decision in relation to the applicant’s claim for compensation for his knee condition. In that decision, Mr Kenny concluded (at paragraph 79) after a careful review of the evidence:

It is now almost five years since the applicant was injured in his work with Telstra. The evidence is, and the decision of the Tribunal in 1998 was, that he is only partially incapacitated for work and is fit for full-time work in suitable employment.

7. The applicant filed submissions with the Tribunal in connection with this hearing which question whether Mr Kenny’s calculations were compromised because the respondent withheld material that should have been taken into consideration. I note the applicant has filed a number of other applications in which he claimed Telstra had wrongly refused to consider arguments about the calculation of normal weekly earnings (NWE) for the purposes of s 19. Deputy President Muller dismissed two of those claims (Q2004/395 and Q2004/409) on 28 June 2004 pursuant to s 42B(1)(a) of the Administrative Appeals Tribunal Act 1975. Mr Muller concluded the appeals were vexatious because they sought to revisit matters that were finalised in the Tribunal’s decision in Slater and which could have been canvassed in the Federal Court appeal from that decision. Mr Slater filed two further applications (Q2004/603 and Q2004/630) that effectively reproduced the grounds of appeal rejected by Mr Muller. The applicant said the earlier appeals had been filed out of time so that Mr Muller’s decision was of no effect since the matters were not properly before him.

8.      Mr Kenny heard and rejected the applications in Q2004/603 and Q2004/630. He doubted whether the Tribunal had jurisdiction to hear the claims: see Slater and Telstra Corporation Limited [2004] AATA 1010. He added (at paragraph 12) that he saw no reason to re-litigate the matters that had already been finalised in any event. Mr Kenny referred to the Tribunal’s decision in Re Quinn and Australian Postal Corporation (1992) 15 AAR 519. In that case, Mr Katz opined (at 526):

It would seem inappropriate and unreasonable to us for there to be re-litigation without reason of the same issues before the tribunal. It would be unjust to applicants to have to face a situation where a decision may be made today and re-litigated tomorrow on the very same facts. The Tribunal should not generally allow re-litigation of issues already decided and previous Tribunal decisions should be regarded as establishing the matters actually decided and of the grounds for the determination.

9.      In Slater and Telstra Corporation Limited [2004] AATA 1010 Mr Kenny noted the applicant’s argument that Telstra withheld information in relation to his suitability for employment and overtime payments prior to the hearing in Slater on 31 May 2002. Mr Kenny decided the evidence did not justify revisiting the earlier decision. He explained (at paragraph 14):

… Mr Slater was legally represented at that hearing and submissions were made in relation to both NWE and his entitlement to overtime payments. Those matters were considered and determined by the Tribunal on the basis of those submissions and I am satisfied that these issues do not provide a basis which would justify re-litigation of those same matters.

10.     The submissions of the applicant and the other material do not contain anything that justify me re-visiting what are in essence the same issues as those canvassed in Slater 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.

11. 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 s25(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. If Mr Slater argues he has become totally incapacitated, it will presumably be necessary for him to call evidence to that effect. The Tribunal will not re-visit any of the arguments about the amount of compensation that has already been awarded to the applicant.

I certify that the 11 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member B J McCabe.

Signed:         .....................................................................................
  Associate:      Sam J Appleton

Date of Hearing  21 October 2004
Date of Decision  6 June 2005
The applicant appeared in person.
The respondent was represented by Mr Dickson and Mr Routh.