Snell and Commonwealth of Australia (Compensation)

This matter concerned an application for compensation by the Applicant, a seafarer, who was suffering from metastatic malignant melanoma. The Applicant had previously been successful before the Tribunal in a consent decision where the Respondent’s legal predecessor accepted liability for a "solar induced skin disease" contracted during his employment. The Applicant argued that this prior decision should prevent the Tribunal from re-litigating the issue of whether his employment contributed to his current condition. The case was heard by Senior Member Theodore Tavoularis of the Administrative Appeals Tribunal.

The primary legal issues before the Tribunal were: firstly, whether the Applicant's current diagnosis of metastatic malignant melanoma was the same condition for which liability had previously been accepted; and secondly, if it was the same condition, whether the Applicant could rely on issue estoppel, or a similar principle based on the *Matusko* methodology, to prevent re-litigation of the contribution issue. If issue estoppel did not apply, the Tribunal also needed to determine if the Applicant's employment contributed in a material degree to his present condition, and if so, to assess the degree of permanent impairment and calculate non-economic loss.

Senior Member Tavoularis considered the Applicant's argument for issue estoppel, noting that while the Tribunal has historically expressed uncertainty about the applicability of strict issue estoppel, the Applicant relied on the *Matusko* methodology. This methodology allows a tribunal to refuse re-litigation of an issue if certain requirements are met, even if strict issue estoppel does not apply. The Tribunal noted that if the current condition was found to be different from the one in the 2013 decision, no issue estoppel or variant thereof could apply. The Tribunal also considered the Respondent's attempt to adduce new evidence, assessing whether this evidence could have been presented in earlier proceedings and whether justice favoured re-litigation.

The Tribunal found that the Applicant was suffering from metastatic malignant melanoma. However, it determined that the Respondent's attempt to re-litigate the contribution issue was not precluded by issue estoppel or the *Matusko* methodology. The Tribunal concluded that the discretion to allow re-litigation was not enlivened in this instance, implying that the Respondent could indeed seek to argue the contribution issue anew. The decision was ultimately set aside and remitted for further consideration, indicating that the Tribunal would proceed to determine the contribution issue and, if necessary, the quantum of compensation.