Whitlock and Comcare (Compensation)
[2019] AATA 1911
•16 July 2019
Whitlock and Comcare (Compensation) [2019] AATA 1911 (16 July 2019)
Division:GENERAL DIVISION
File Number(s): 2018/1138
Re:Jessica Whitlock
APPLICANT
AndComcare
RESPONDENT
DECISION
Tribunal:Senior Member Linda Kirk
Date:16 July 2019
Place:Canberra
The application for dismissal of the review application under s42B(1)(c) of the AAT Act is refused.
........................................................................
Senior Member Linda Kirk
Catchwords
PRACTICE AND PROCEDURE - application for dismissal – abuse of process – fraudulent conduct and deception in prosecuting the claim - public confidence in the decision-making of the Tribunal – breach of obligation under s 33(1AB) of the AAT Act – the Tribunal’s power to dismiss applications under s 42B(1)(c) - application for dismissal refused
Legislation
Administrative Appeals Tribunal Act 1975 ss 2A, 33, 42B
Safety Rehabilitation and Compensation Act 1988
Cases
Academy of Global Business Training Pty Ltd and Australian Skills Quality Authority [2019] AATA 1345
Batistatos v Roads and Traffic Authority of New South Wales (2006) 226 CLR 256
Briginshaw v Briginshaw [1938] HCA 34
Brignolf and Comcare [2018] AATA 2004
Commonwealth of Australia v Snell [2019] FCAFC 57
Dare v Pulham (1982) 148 CLR 658
Frugtniet v Australian Securities and Investments Commission [2016] FCA 995
Grant v Repatriation Commission (1999) 57 ALD 1
Jeffrey & Katauskas v SST Consulting Pty Ltd (2009) 239 CLR 75
Kennedy and Comcare [2018] AATA 4171
Novosel v Comcare [2017] FCA 722
Oliver and Comcare [2018] AATA 1964
Re Filsell and Comcare (2009) 109 ALD 198
Re Novosel and Comcare (2015) 66 AAR 549
Ridgeway v The Queen (1995) 184 CLR 19
Rogers v R (1994) 123 ALR 417
Secondary Materials
Explanatory Memorandum, Tribunals Amalgamation Bill 2014
REASONS FOR DECISION
Senior Member Linda Kirk
16 July 2019
APPLICATION FOR DISMISSAL
Ms Jessica Whitlock (‘the Applicant’) has applied for review of a decision by Comcare (‘the Respondent’) denying liability to pay her compensation for conditions she claimed she incurred in the course of her employment. This is an interlocutory application by Comcare for dismissal of this application for review, pursuant to s 42B(1)(c) of the Administrative Appeals Tribunal Act 1975 (‘the AAT Act’), on the basis that it is an abuse of process.
Section 42B(1) of the AAT Act allows the Tribunal to dismiss an application for review of a decision, at any stage of a proceeding:
42B Power of Tribunal if a proceeding is frivolous, vexatious etc.
(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 application was considered and oral submissions heard by the Tribunal at an interlocutory hearing on 31 May 2019.
BACKGROUND TO THE APPLICATION
The Applicant lodged a workers’ compensation claim form dated 1 August 2017 for “depression” and “anxiety” which she alleged was caused by being “bullied through rumours, isolated from co-workers and management through rumours, and treated differently by management”.[1]
[1] T3, 16- 20.
In an initial determination dated 7 December 2017,[2] a delegate of the Respondent denied liability under section 14 of the Safety, Rehabilitation and Compensation Act 1988 (‘SRC Act’). The delegate was not satisfied that the Applicant’s employment had made a “significant contribution” to the development of the claimed conditions, and also found that subsection 7(7) of the SRC Act operated to preclude the conditions from being compensable.
[2] T32, 155-158
On 5 January 2018, the Applicant requested a reconsideration of the determination dated 7 December 2017.[3]
[3] T35, 166-169.
In a decision dated 2 March 2018,[4] an independent review officer of the Respondent affirmed the determination dated 7 December 2017, denying liability to pay compensation for the claimed conditions (‘the Reviewable Decision’). The independent review officer found that subsection 7(7) of the SRC Act did not apply in the circumstances, but considered that the claimed conditions were pre-existing and contributed to by non-work related factors that pre-dated the Applicant’s employment with the Commonwealth.
[4] T43, 196-202.
The Applicant filed an application for review of the Reviewable Decision with the Administrative Appeals Tribunal (‘the Tribunal’) on 9 March 2018,[5] submitting “The decision is wrong”.
[5] T1, 1-14.
In its Statement of Issues dated 19 April 2018, the Respondent identified the following as the issues relevant to the review:
1.The diagnosis of the Applicant’s psychological condition;
2.Whether the Applicant suffers from a psychological condition or aggravation of a psychological condition, which was contributed to, to a significant degree, by her Department of Parliamentary Services (‘DPS’) employment;
3.Whether the Applicant made a wilful and false representation that she did not suffer or had not previously suffered from the psychological condition, such that the disease is not taken as an injury, pursuant to subsection 7(7) of the SRC Act;
4.Whether Comcare is liable to pay compensation for the Applicant’s claimed psychological condition pursuant to s14 of the SRC Act.
In her Statement of Facts, Issues and Contentions (SFIC) dated 18 January 2019, the Applicant identified the following as the issues relevant to the review:
1.What is the correct diagnosis of the psychiatric condition suffered by the Applicant?
2.Was the Applicant’s condition contributed to, to a significant degree, by her employment with the Agency?
3.Is Comcare liable to compensate the Applicant pursuant to section 14 of the SRC Act?
In its SFIC dated 4 February 2019, the Respondent contended that it is not liable to pay compensation for the Applicant’s ‘anxiety and depression’ under s14 of the SRC Act on the basis that:
(a)The Applicant did not suffer from an ‘injury’ that was contributed to, to a significant degree, by her employment with DPS;
(b)Further, in the alternative, if the Applicant did suffer from an ‘injury’ that was contributed to, to a significant degree, by her employment with DPS, it was caused or contributed to by reasonable administrative action taken in a reasonable manner in connection with her employment; and
(c)Further, any ‘injury’ suffered by the Applicant is excluded from being compensable due to the operation of subsection 7(7) of the SRC Act, on the basis that the Applicant made wilful and false representations that she did not suffer, or had not previously suffered from mental health issues (including anxiety, depression and agoraphobia) prior to her employment with DPS.
To date, the medical evidence filed by the parties is as follows:
(a)Report of Dr Catherine Oelrichs, Consultant Psychiatrist dated 29 November 2017;
(b)Report of Dr Matthew Lewis dated 4 December 2017;
(c)Report of Dr Deepinder Miller, Psychiatrist dated 10 September 2018;
(d)Report of Dr Yvonne Skinner, Consultant Psychiatrist dated 23 October 2018.
In its SFIC, the Respondent contends that the weight of the available medical evidence indicates that the Applicant suffered from an aggravation of one or more of her pre-existing psychological conditions in early 2017. It further contends that the opinion of Dr Skinner be preferred to the opinions of Dr Oelrichs, Dr Lewis and Dr Miller for the primary reason that only Dr Skinner has been properly and comprehensively briefed with the Applicant’s full relevant medical history.[6]
[6] Applicant’s SFIC, [41].
The parties had until 30 June 2019 to file further evidence, and the hearing is listed for 9-11 September 2019.
SUBMISSIONS
Respondent’s submissions
In support of its application for dismissal of the review application pursuant to s42B(1)(c), the Respondent relies on the following grounds:[7]
(i)The proceedings should not have been instituted as they involve prosecuting a potentially fraudulent claim made under the SRC Act;
(ii)The Applicant is represented by an experienced legal practitioner. The Applicant’s conduct is in serious breach of the obligation under s 33(1AB) of the AAT Act, including because it involves attempting to obscure important facts relevant to the Tribunal’s review;
(iii)The resources of the Tribunal and the Respondent are being wasted and misused because of the Applicant’s conduct both in her employment (as it affects these proceedings), and in the substantive application for review;
(iv)Continuation of these proceedings risks undermining public confidence in the administration of justice, including because it would see the Tribunal permitting a potentially fraudulent claim to continue through the Tribunal’s processes, thus wasting significant resources of the Tribunal, the Respondent, and the witnesses called by both parties to give evidence at a hearing;
(v)The application for review is embarrassing because it involves obfuscation, and that obfuscation will create delays in hearing the matter or unreasonably and unnecessarily extend the time necessary to hear the matter fairly.
[7] Respondent’s written submissions dated 14 May 2019, [47].
In its written and oral submissions, the Respondent provided further detail in relation to these grounds.
Fraudulent conduct and deception in prosecuting the claim
The Applicant’s deception led her to be employed in a role for which she was wholly unsuited, namely as a security guard at Parliament House.[8] The Applicant furthered that deception by making a workers’ compensation claim which involves deception to obtain a benefit.[9] The Applicant was put on notice that her deception is in issue by way of the Respondent’s Statement of Issues and its SFIC. In an attempt to explain this, she supplied a Statement dated 6 December 2018, in which she falsely denies receiving treatment for a psychiatric condition between 2011 and 2017.
[8] Respondent’s written submissions dated 14 May 2019, [49].
[9] Respondent’s written submissions dated 14 May 2019, [50].
The expert evidence on which the Applicant relies includes a report of Dr Miller dated 10 September 2018. Dr Miller was not provided with the Applicant’s full, extensive and relevant psychiatric history as part of the brief provided by the Applicant’s solicitors on 15 August 2018.[10] Consequently, her report contains inaccuracies which significantly impact her opinion in a manner going directly to the issues of the Applicant’s past psychiatric history and employment contribution. As Dr Miller was given only partial and sometimes incorrect information, she has inadvertently produced an opinion which has the potential to mislead the Tribunal.[11] The Applicant did not seek to correct any errors in Dr Miller’s understanding of her past medical history when she was examined by her on 22 August 2018. Nor did she or her solicitors seek a supplementary report from Dr Miller to correct the initial report and thereby assist the Tribunal.[12]
[10] Respondent’s written submissions dated 14 May 2019, [54.9]-[54.10].
[11] Respondent’s written submissions dated 14 May 2019, [54.10].
[12] Respondent’s written submissions dated 14 May 2019, [54.10].
Despite having knowledge of the inaccuracies contained in Dr Miller’s report, the Applicant relied on it in her SFIC dated 18 January 2019, and did not take steps to alert the Tribunal or the Respondent in any way to the serious misleading effect of the report.
The Respondent raised a subsection 7(7) issue at the commencement of the review proceedings in its Statement of Issues dated 19 April 2018. The Applicant was thereby made aware that her honesty and concealment of her past psychiatric history is in issue.[13] Despite this, the Applicant did not address the subsection 7(7) issue in her SFIC dated 18 January 2019. Nor has she subsequently filed an amended SFIC that engages with the past medical history and the subsection 7(7) issue, both of which are comprehensively addressed in the Respondent’s SFIC dated 4 February 2019.[14] This is a clear case of filing material and conducting the proceedings in a manner which constitutes an abuse of process.[15]
[13] Respondent’s written submissions dated 14 May 2019, [54.8].
[14] Respondent’s written submissions dated 14 May 2019, [55].
[15] Respondent’s written submissions dated 14 May 2019, [57].
Similarly, the Applicant relies on the report of Dr Oelrichs dated 29 November 2017 in her SFIC.[16] Dr Oelrichs also was not aware of the Applicant’s full psychiatric history nor was it provided to her by the Applicant when she was examined by Dr Oelrichs. Accordingly, Dr Oelrichs’ report contains inaccuracies which reflect her misunderstandings because of the incomplete information on which it is based. Despite this, the Applicant quotes in her SFIC parts of Dr Oelrichs’ report which contain inaccuracies in support of her arguments to persuade the Tribunal to set aside the Reviewable Decision.
[16] Applicant’s SFIC [25]-[27].
No attempt has been made by the Applicant to correct the record of the Tribunal despite being on notice of inaccuracies in filed materials, including her SFIC, since at least February 2019. Since the date of the filing of the Application for Dismissal on 14 May 2019, the Applicant has not filed further information or sought to explain why the incomplete briefing was given to Dr Miller, and why her report was referred to in a misleading way in the Applicant’s SFIC.
Abuse of process
The proceedings are an abuse of process by reason of the provision by the Applicant of material to the Tribunal that is known to be misleading, and the failure to correct misinformation even when it is brought to her attention. More case management will not address the deception that is being perpetrated on the Tribunal. Applying more Tribunal resources to remedy the misrepresentations made during the proceedings is contrary to the objectives of the Tribunal. The Tribunal cannot make directions to require the Applicant to provide honest evidence and correct the misleading and inaccurate statements contained in the Applicant’s SFIC. The Tribunal protects its processes and does not allow them to be misused by parties to proceedings. When there is a clear misuse of Tribunal processes, and no evidence to explain the misuse, the Tribunal cannot allow a matter to continue without any response from the party responsible for this misuse.
The purpose of summary dismissal is to deny an applicant the opportunity to continue their application for review. This may be unfair in that the applicant is denied full merits review, but this is the intended consequence of the legislation in circumstances where, inter alia, there is an abuse of process.
In determining what will amount to an ‘abuse of process’ it is necessary to look to sections 2A and 33 of the AAT Act. These provisions detail the Tribunal’s processes and its statutory objective. They in turn inform what s42B(1)(c) is designed to protect or prevent. An abuse of process might be constituted by a party not assisting the Tribunal to achieve its objective. However, it generally requires more than a party being tardy in filing evidence or not complying with directions. It arises in circumstances where a party’s actions are inconsistent with or hinder the Tribunal’s statutory objective by making the proceedings less economic, more drawn out, more expensive and undermining public trust and confidence in the Tribunal’s decision-making process.
Breach of the obligation under s 33(1AB) of the AAT Act
Section 33(1AB) of the AAT Act obliges the Applicant and her representatives to use their best endeavours to assist the Tribunal to fulfil its statutory objective of undertaking a review that is fair, just, economical, informal and quick, and which promotes public trust and confidence in its decision-making.
The Applicant and her representatives have not met this requirement for reason that they have not ensured that the evidence submitted to date to the Tribunal and the contentions contained in the Applicant’s SFIC are not misleading or inaccurate. They have not therefore taken all reasonable steps to ensure that the information before the Tribunal will assist it to achieve its statutory objective.
Undermining public confidence in the decision-making of the Tribunal
Continuing this application would seriously damage public confidence in the decision-making of the Tribunal because it would involve the Tribunal allowing such a claim to continue to take up the time and resources of the Tribunal and the Respondent, and it would send a message that this behaviour is tolerated.
The review application and the way it has been prosecuted through the Tribunal’s processes are eroding the Tribunal’s ability to protect its own processes. To not dismiss the application will erode public trust and confidence in the Tribunal’s decision-making, an objective made explicit in section 2A of the AAT Act.
The addition to s42B of the power to dismiss where an application is an ‘abuse of process’ gives the Tribunal a much broader power to take into account actions that are contrary to the legislative scheme of both the SRC Act and the AAT Act.[17]
Applicant’s submissions
[17] Respondent’s Submissions at [62].
Abuse of process
The threshold for dismissal on the grounds of ‘abuse of process’ is only reached in the clearest of circumstances.[18] Low prospects of success in a factually or legally difficult case will not ground an ‘abuse of process’ submission.[19] The Applicant’s primary case, while medically and factually complex, comes nowhere near the category of cases amounting to an ‘abuse of process.[20] The authorities establish that if there is a real question to be determined whether of fact or law, and the rights of the parties depend on it, then it is not competent for the court or tribunal to dismiss the action as an abuse of process. A person should not be deprived of a right to have their case heard without very good reason. This matter is a ‘work in progress’ as the evidence is continuing to be gathered in preparation for the hearing in September.
[18] Applicant’s Submissions at [1.3].
[19] Applicant’s Submissions at [1.3].
[20] Applicant’s Submissions at [2.5].
The issues in this matter have been identified and the majority of the evidence has been produced. The Applicant intends to obtain a supplementary report from Dr Miller addressing the more extensive records of the Applicant’s past psychiatric history, and additional lay statements and medical reports are being sought.[21] The lateness of the provision of additional reports and statements does not involve ‘abuse of process.’[22]
[21] Applicant’s Submissions at [2.4].
[22] Applicant’s Submissions at [2.4].
Even if the preparation of the case to date may be subject to criticism, this does not go to the question of whether the claim made by the Applicant has merit. It may be that closer management of the case is required to ensure that it is ready to proceed in September. A timetable may need to be set and orders made by the Tribunal at a directions hearing. The Tribunal is established to hear cases like this on the merits, and it would be putting the convenience of the Respondent, and perhaps less so the convenience of the Tribunal, above the purpose for which the compensation jurisdiction exists.
This is not a case where the matter cannot be won because there is a significant obstacle in the way, for example, an amendment to legislation. Abuse of process applications are not appropriate in cases where there is simply a very powerful difference of opinion between the parties. Procedural failings three and a half months out from the hearing should not get in the way of the matter proceeding. That would be unfair to the Applicant and deny her the opportunity for the Tribunal to decide the merits of the application or the claim for compensation.
There are many areas in court litigation where matters may be described as abuse of process because there are certain pleading requirements, or other matters which, if not complied with, will result in the end of the case, or strict rules dealing with matters of res judicata or issue estoppel. But in the Tribunal context, the obligation is to look at the merits of the case. It cannot be said that because something applies in a court it will necessarily apply in the Tribunal.
Fraudulent conduct
The allegation of a ‘potentially fraudulent claim’ based on a series of ‘deceptions’ is not self-evidently true as it would need to be to found an ‘abuse of process’ application. It would be entirely unjust for the Tribunal to determine whether the claim was fraudulent without a full hearing and consideration of evidence requiring the finding of facts to the Briginshaw standard.[23]
[23] Applicant’s Submissions at [3.3] and [5.4]
The determination of whether the Applicant falls within the exclusion in s7(7) of the SRC Act will require detailed analysis of the evidence of the Applicant and medical experts, and consideration of the parties’ submissions and Federal Court authority.[24] The Respondent could have, but chose not to, apply for a separate hearing on the s7(7) issue.[25]
[24] Applicant’s Submissions at [4.3]-[4.4]
[25] Applicant’s Submissions at [4.3]
The Applicant should be given her ‘day in court’ unless the so-called deception is so egregious and so apparent that it would result in an abuse of process. What is argued here by the Respondent in relation to deception is really based on the way the case has been prepared to date.
Section 33(1AB) AAT Act
It is inapt to treat s33(1AB) as an obligation capable of being specifically ‘breached’ by one or more specific acts of a party. The Respondent wishes to treat s33(1AB) as though it is a mandatory provision which can be isolated out in particular acts, and then if a party ‘breaches’ the provision by engaging in a particular act, this provides a basis for grounding a dismissal application. Rather, much like the ‘model litigant’ guidelines, s33(1AB) expresses an aspirational goal that all parties should strive to achieve over the course of the proceedings, at the risk of being criticised by the Tribunal. It cannot be treated as if it were an offence provision. It is designed to bring people to an understanding of how the Tribunal expects to interact with those before it. The Tribunal does not have the resources to engage in inquisitorial inquiries even though it is a merits review tribunal. The way in which this is compensated for is that parties are required to do everything they can to assist the Tribunal. Section 33(1AB) is not intended as a ‘stick’ which can be used to ‘beat’ parties to Tribunal proceedings. It cannot be raised into a provision that can be used where a series of failures to comply are added up and reach a critical mass, and then are relied on to ground an application for dismissal. If the provision is being abused, the Tribunal itself would be the initiator of the application to intervene to ensure proper management of the matter. In this case no occasion presently arises for reliance on s33(1AB).[26]
[26] Applicant’s Submissions at [5.3].
Oppression
It is oppressive for the statutory authority charged with administering statutory entitlements to compensation in accordance with the SRC Act to prevent the Applicant from having her case heard by the Tribunal by bringing an application of this kind which necessarily presents the issues and evidence in a one-sided way. It imposes upon the Applicant an additional hearing as well as additional stress and cost.[27]
[27] Applicant’s Submissions at [6.2].
The Respondent chose to ambush the Applicant leaving her a relatively short period of time to address the issues raised in the application. It has the appearance of an attempt to bully an unwell and vulnerable applicant.[28] The appropriate course would have been for the Respondent to make contact with the Applicant’s representative to express its concerns about the preparation of the case and deficiencies in the evidence.[29]
CONSIDERATION AND REASONS
[28] Applicant’s Submissions at [5.7].
[29] Applicant’s Submissions at [5.8]
The Tribunal’s power to dismiss an application for review - s 42B(1)
Section 42B was introduced into the AAT Act by the Tribunals Amalgamation Act 2015 (Cth). The Explanatory Memorandum to the Tribunals Amalgamation Bill 2014 explained:
550. New section 42B would … provide for additional circumstances in which the Tribunal may dismiss an application for review…
552. This amendment would modernise the language of existing paragraph 42B(1)(a) and clarify the policy surrounding the grounds for dismissal. The proposed new grounds are similar to dismissal powers available to other bodies. For example Rule 26.01 of the Federal Court Rules 2011 allow for summary judgment on matters which have no reasonable prospect of success, or are an abuse of process. Similarly, section 47 of the Queensland Civil and Administrative Tribunal Act 2009 provides for dismissal of applications where the application is frivolous, vexatious, misconceived, lacking in substance or otherwise an abuse of process. These powers would provide the Tribunal with greater power to dismiss unmeritorious matters early where appropriate.
Prior to the amendment, the power to dismiss was limited to an application that the Tribunal was satisfied was frivolous or vexatious.
As Deputy President Humphries observed in Oliver and Comcare [2018] AATA 1964 (‘Oliver’) at [67], the Explanatory Memorandum makes clear that the power conferred by s 42B is intended to provide the Tribunal with more extensive power to dismiss unmeritorious matters than it had prior to the amendment to the provision. Paragraphs (a) to (c) of s 42B(1) are expressed in the alternative: Novosel v Comcare [2017] FCA 722 (‘Novosel’) at [83]. The Tribunal may dismiss an application for review of a decision at any stage of the proceeding if it is satisfied that the criteria in one or more of these sub-paragraphs are met.
Summary dismissal for abuse of process
As Justice Perry observed in Novosel at [104], ‘in the context of judicial proceedings the categories of abuse of process are not closed.’[30] Gaudron J explained the reasons for this in Ridgeway v The Queen (1995) 184 CLR 19 at 75:
Abuse of process cannot be restricted to ‘defined and closed categories’ because notions of justice and injustice, as well as other considerations that bear on public confidence in the administration of justice, must reflect contemporary values and, as well, take account of the circumstances of the case.
[30] Citing Batistatos v Roads and Traffic Authority of New South Wales [2006] HCA 27; (2006) 226 CLR 256 (Batistatos) at 265 [9] (Gleeson CJ, Gummow, Hayne and Crennan JJ)
Whereas the categories of abuse of process are not defined or closed, as Justice McHugh recognised in Rogers v R (1994) 123 ALR 417 at 443, they usually fall into one of three categories:
... abuses of procedure usually fall into one of three categories:
(1)the court’s procedures are invoked for an illegitimate purpose;
(2)the use of the court’s procedures is unjustifiably oppressive to one of the parties; or
(3)the use of the court’s procedures would bring the administration of justice into disrepute.
Many, perhaps the majority of, cases of abuse of procedure arise from the institution of proceedings. But any procedural step in the course of proceedings that have been properly instituted is capable of being an abuse of the court’s process. In Walton v. Gardiner [(1992) 177 CLR 318 at 393], Mason CJ, Deane and Dawson JJ said that the jurisdiction to stay proceedings that are an abuse of process ‘extends to all those cases in which the processes and procedures of the court, which exist to administer justice with fairness and impartiality, may be converted into instruments of injustice or unfairness.’
In Jeffrey & Katauskas v SST Consulting Pty Ltd (2009) 239 CLR 75, the majority of the High Court noted four categories of conduct relating to abuse of process which have historically attracted the intervention of the courts at [27]:
(a)proceedings which involve a deception on the court, or are fictitious or constitute a mere sham;
(b)proceedings where the process of the court is not being fairly or honestly used but is employed for some ulterior or improper purpose or in an improper way;
(c)proceedings which are manifestly groundless or without foundation or which serve no useful purpose;
(d)multiple or successive proceedings which cause or are likely to cause improper vexation or oppression.
At [28] the majority held:
The term “abuse of process”, as used in Australia today, is not limited by the categories mentioned above… It has been said repeatedly in the judgments of this Court that the categories of abuse of process are not closed…This does not mean abuse of process is a term at large or without meaning… It is clear, however, that abuse of process extends to proceedings that are “seriously and unfairly burdensome, prejudicial or damaging” or “productive of serious and unjustified trouble and harassment”.[31]
[31] Batistatos (2006) 226 CLR 256 at 267 [14]
Having regard to these authorities, it is clear that whereas the categories of abuse of process are not defined or closed, for conduct to be regarded as amounting to abuse of process it must meet a high threshold of inappropriateness, impropriety, dishonesty, oppression, unfairness or lack of foundation, impose serious burden, prejudice, damage or harassment, or have the effect of bringing the administration of justice into disrepute.
Dismissal by Tribunal of review application for abuse of process – s42B(1)(c)
In Novosel, Justice Perry at [107] observed that in empowering the Tribunal to summarily dismiss an application for review under s 42B(1)(c) of the AAT Act for reason that it amounts to 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’. Her Honour emphasised that protections against abuse of process are not merely concerned with prejudice to a respondent, ‘but also with matters of broader public policy’ at [112]. As she explained:
[112] … 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 its recent judgment in Commonwealth of Australia v Snell [2019] FCAFC 57 (‘Snell’), the Full Federal Court confirmed at [78] that the categories of cases which fit the description of an abuse of process ‘are not closed and cannot be exhaustively defined.’ Allsop CJ, Reeves and Derrington JJ referred to the ‘careful review of the authorities concerning the concept of abuse of process’ in Perry J’s judgment in Novosel, and noted,
Nevertheless, before the Tribunal determines to dismiss a proceeding relying on s42B 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.
These authorities support a finding that s42B empowers the Tribunal to protect its processes from conduct analogous to that regarded as an abuse of process in judicial proceedings. The Tribunal should proceed cautiously, and before dismissing an application for review under s42B(1)(c), it must be satisfied that the conduct meets a threshold analogous to that regarded as an abuse of process in judicial proceedings, and be satisfied that the issues raised do not warrant a full hearing on the merits.
Examples of successful dismissal applications under s42B(1)(c)
In Re Novosel and Comcare (2015) 66 AAR 549, the Tribunal held that Mr Novosel’s relitigation of issues that had previously been dealt with by the Tribunal amounted to an abuse of process at [10] and had no reasonable prospect of success at [10]-[12]. The Tribunal dismissed Mr Novosel’s application under s 42B(1)(b) and 42B(1)(c) of the AAT Act. On appeal in Novosel v Comcare [2017] FCA 722 Justice Perry held at [104] – [110] that a further claim in respect of matters already decided may amount to an abuse of process.
In Kennedy and Comcare [2018] AATA 4171 the Tribunal dismissed the applications for review under s42B(1) of the AAT Act. It found that the applications for review were an attempt to relitigate issues that were previously determined by the Tribunal in two previous decisions in which the substantive merits of the Applicant’s compensation claim were considered and finally determined. For the reasons identified in Novosel, the Tribunal found that it should not ‘allow relitigation of issues already decided and previous decisions should be regarded as establishing the matters actually decided and of the grounds for the determination’ at [63]. The finding that the attempt to relitigate matters which had been finally determined amounts to an abuse of process is consistent with the stated objective of the Tribunal in s2A of the AAT Act at [66].
In Brignolf and Comcare [2018] AATA 2004 the Tribunal dismissed the Applicant’s application under s42B(1)(c) of the AAT Act as an abuse of process because of the Applicant’s harassing and abusive behaviour towards Tribunal staff which caused unnecessary delays and costs, and his unwillingness to participate as required in the Tribunal proceedings at [15]-[17], [22]-[24].
Dismissal applications in the early stages of Tribunal proceedings
In Re Filsell and Comcare (2009) 109 ALD 198, Deputy President Jarvis set out at [33] the principles that should be followed in regard to s42B applications under the previous version of the section. In relation to dismissal applications made at an early stage of Tribunal proceedings, the Deputy President observed:
(f) Medical or other expert evidence generally needs to be evaluated in the context of evidence from the applicant or other lay witnesses. Where an application is made under s 42B at an early stage of proceedings in this tribunal, the parties may not have submitted, or may not be in a position to submit, all of the lay or medical evidence that might be available in relation to the proceedings. Further, if the applicant is unrepresented, there is no obligation to file any document in this tribunal that would have the status of pleadings in a civil court. In addition, in some circumstances (depending on the evidence adduced at the hearing) this tribunal exercises a limited inquisitorial role, whereby it considers a case not articulated by the applicant: see the authorities I discussed in Re Kowalski and Repatriation Commission [2008] AATA 903 at [33]–[35] . All of these matters mean that the basis of the application for review is often not as readily ascertainable as is the case where applications are made to strike out actions in civil courts on the grounds that the pleadings do not disclose a cause of action. This underlines the need for the tribunal to proceed cautiously when considering applications for dismissal under s 42B (emphasis added).
The differences between the function and procedures adopted by courts and tribunals identified by Deputy President Jarvis, including the distinctive nature of merits review, are relevant to the determination of the threshold that must be met for a successful dismissal application for abuse of process under s42B(1)(c).
Court proceedings are distinguished by the use of pleadings to identify the issues in dispute. In Academy of Global Business Training Pty Ltd and Australian Skills Quality Authority [2019] AATA 1345 (‘Academy of Global Business Training’), Deputy President Forgie referred to the following description by the High Court in Dare v Pulham of the purpose of pleadings and particulars in court proceedings:[32]
Pleadings and particulars have a number of functions: they furnish a statement of the case sufficiently clear to allow the other party a fair opportunity to meet it (Gould and Birbeck and Bacon v. Mount Oxide Mines Ltd. (In liq.) [1916] HCA 81; (1916) 22 CLR 490, at p 517); they define the issues for decision in the litigation and thereby enable the relevance and admissibility of evidence to be determined at the trial (Miller v. Cameron [1936] HCA 13; (1936) 54 CLR 572, at pp 576-577); and they give a defendant an understanding of a plaintiff's claim in aid of the defendant’s right to make a payment into court. Apart from cases where the parties choose to disregard the pleadings and to fight the case on issues chosen at the trial, the relief which may be granted to a party must be founded on the pleadings (Gould and Birbeck and Bacon (1916) 22 CLR, at pp 517, 518; Sri Mahant Govind Rao v. Sita Ram Kesho (1898) LR 25 Ind App 195, at p 207). But where there is no departure during the trial from the pleaded cause of action, a disconformity between the evidence and particulars earlier furnished will not disentitle a party to a verdict based upon the evidence. Particulars may be amended after the evidence in a trial has closed (Mummery v. Irvings Pty. Ltd. [1956] HCA 45; (1956) 96 CLR 99, at pp 111, 112, 127), though a failure to amend particulars to accord precisely with the facts which have emerged in the course of evidence does not necessarily preclude a plaintiff from seeking a verdict on the cause of action alleged in reliance upon the facts actually established by the evidence (Leotta v. Public Transport Commission (N.S.W.) (1976) 9 ALR 437, at p 446; 50 ALJR 666, at p 668).”[33]
[32] [1982] HCA 70; (1982) 148 CLR 658; Murphy, Wilson, Brennan, Deane and Dawson JJ
[33] [1982] HCA 70; (1982) 148 CLR 658 at [6]; 664.
The Deputy President observed at [34] that in Tribunal proceedings, a SFIC shares similarities with pleadings, in ‘that it sets out a statement of issues as each party sees them as well as each party’s contentions regarding those issues and the facts’ and does ‘not set out the evidence on which each party relies just as pleadings would not.’ In contrast to court pleadings, ‘SFICs lodged by the parties do not define the issues to be determined by the Tribunal in that case.’ The Tribunal is obliged ‘to consider the issues raised by the relevant enactment and the material even if those issues have not been raised by the parties in their SFICs or elsewhere.’ at [34] (emphasis added)
The review function of the Tribunal was further elaborated by the Full Court of the Federal Court in Grant v Repatriation Commission:[34]
An inquisitorial review conducted by the AAT ... is one in which the tribunal is required to determine the substantive issues raised by the material and evidence advanced before it and, in doing so, it is obliged not to limit its determination to the ‘case’ articulated by an applicant if the evidence and material which it accepts, or does not reject, raises a case on a basis not articulated by the applicant ...[35] (emphasis added)
[34] [1999] FCA 1629; (1999) 57 ALD 1; Merkel, Goldberg and Weinberg JJ.
[35] [1999] FCA 1629; (1999) 57 ALD 1 at [18]; 6.
As Deputy President Forgie explained in Academy of Global Business Training at [35] unlike court proceedings, applications for review are not decided by the Tribunal on the basis of resolving a dispute between the parties to that application. Matters are determined by the Tribunal
… on the basis of reaching what is the correct (or preferable if a discretion is involved) decision of the rights, duties, privileges, obligations and so on of the person affected by the decision. It is made in the context of a statutory framework that applies equally to others and so, having regard to the variations in factual circumstances that may be present from one case to another, must be made consistently with all other decisions made in that context.
The Deputy President observed at [37] that this difference between the bases of proceedings in the courts and in the Tribunal,
means that it is important that the focus in considering an application for dismissal not be entirely on the evidence that has been, or has not been, lodged at that time or even on the assertions of fact. There must be some focus, however, for if there is no assertion of a fact essential to support an applicant’s case, the very absence of that assertion may lead to an exercise of power to dismiss on the basis that the application has no reasonable prospects of success. Before it actually leads to that exercise of power, however, thought would need to be given to whether an applicant should have the opportunity to consider whether he or she can establish that fact. The Tribunal is intended to act fairly and to give parties an opportunity to address any such issues rather than act according to strict formulaic rules. (emphasis added)
The primary criticism of the Respondent in relation to the prosecution by the Applicant of her application for review, which it claims amounts to an abuse of process, is the misleading and inaccurate information contained in expert medical reports as a direct consequence of incomplete information in relation to the Applicant’s prior psychiatric history provided by the Applicant’s solicitors to the medical practitioners in the briefing materials. The inaccuracies in these medical reports have not been corrected, for example by the submission of a supplementary report, or by the Applicant herself in a statement, and the deception has been compounded by the subsequent reliance on these reports in contentions contained in the Applicant’s SFIC to persuade the Tribunal to set aside the Reviewable Decision.
In determining whether the provision by the Applicant of misleading and inaccurate evidence and the submission of contentions by way of her SFIC amounts to an abuse of process under s42B(1)(c), the Tribunal has had regard to the above authorities which distinguish Tribunal proceedings from those of the courts. Unlike pleadings, SFICs lodged by the parties do not define the issues to be determined by the Tribunal in the review. The Tribunal must ‘consider the issues raised by the relevant enactment and the material even if those issues have not been raised by the parties in their SFICs’.[36] In other words, the SFIC and evidence relied on by the Applicant do not limit the inquiry to be made by the Tribunal in conducting the review and reaching a decision as to what is the correct or preferable decision. Accordingly, in determining whether an application for review should be dismissed, consideration should not be limited to the evidence lodged or facts asserted at the time of the dismissal application. This applies to applications for dismissal under all three sub-paragraphs of s42B(1).
[36] Academy of Global Business Training, [38].
Against this background, the Tribunal finds that the threshold to be met for dismissal for abuse of process under s42B(1)(c), at least in the early stages of the proceedings, is higher than that in judicial proceedings as the parties’ SFICs do not define the issues to be determined by the Tribunal in the review. In circumstances such as the present application for review, when evidence may still be lodged by the parties, SFICs may be amended, and the hearing is not scheduled for several months, the Tribunal must take a particularly cautious approach in determining whether the application for review should be dismissed. The Tribunal is satisfied that whereas the Applicant’s SFIC contains misrepresentations and inaccuracies, as the issues in the matter are not limited to those identified by the parties but are instead for the determination of the Tribunal, these deficiencies in the Applicant’s SFIC are insufficient to meet the threshold required for abuse of process for the purposes of s42B(1)(c). The Tribunal finds that the issues that have been raised by the parties warrant a full hearing on the merits.
Parties’ obligation to assist the Tribunal - section 33(1AB)
Section 33(1AB) of the AAT Act imposes an obligation on parties to use their best endeavours to assist the Tribunal to fulfil its statutory objective in section 2A.
33 Procedure of Tribunal
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(1AB) A party to a proceeding before the Tribunal, and any party representing such a party, must use his or her best endeavours to assist the Tribunal to fulfil the objective in section 2A.
Section 2A provides the statutory objective of the Tribunal:
2A 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.
Section 33(1AB) was introduced into the AAT Act by the Tribunals Amalgamation Act 2015 (Cth). The Explanatory Memorandum to the Tribunals Amalgamation Bill 2014 explained:
398. Item 55 would insert a new subsection 33(1AB) after subsection 33(1AA) of the AAT Act, that would require parties and their representatives to use their best endeavours to assist the Tribunal to fulfil its statutory objective in section 2A (Item 1). This is intended to assist the Tribunal in managing the conduct of reviews, by encouraging parties and their representatives to conduct themselves in a manner that would facilitate the fair, just, economical, informal and quick resolution of the matter at hand (amongst the other aspects of the Tribunal`s objective).
In Frugtniet v Australian Securities and Investments Commission [2016] FCA 995 (‘Frugtniet’), Bromberg J at [58] considered whether the Tribunal erred in finding that the Applicant was under an ‘obligation’ to disclose in a complete and accurate manner his past conduct to ASIC and the AAT, including in his SFIC and Reply to the Respondent’s SFIC.[37] The particular past conduct concerned complaints made against him as a migration agent that led to proceedings against him by the Migration Agent Registration Authority (“MARA”). His Honour was not persuaded that the Tribunal used the word ‘obligation’ to ‘denote a strictly legal obligation, in the sense of identifying a statutory provision that would be contravened in the absence of disclosure by Mr Frugtniet of the facts relating to MARA.’ at [159] The duty of disclosure the Tribunal had in mind was ‘something more informal’. The Tribunal determined that the manner in which the Applicant dealt with the disclosure of the information ‘carried with it the real risk of misleading the AAT and ASIC by omission or by half-truth’ at [159] and this deception counted against him in determining whether he was a fit and proper person. The absence of a legal obligation did not detract from the wrongfulness of the Applicant’s conduct. In relation to the ‘obligation’ of a party to make complete and accurate disclosures of relevant information, Bromberg J found that this finds legislative expression in the AAT Act:
[169] I do not think any reasonable litigant could disagree with the proposition that to mislead the fact-finder, or one’s opponent, by omission or by stating half-truths would be wrong, and probably dishonest, even if it did not attract legal sanction. In any event, were it necessary to find a legislative expression of that sentiment I think it could be found in the combination of ss 2A and 33 of the AAT Act …
[170] It seems to me highly likely that to mislead the AAT and one’s opponent by omission or by half-truth would be inconsistent with a party’s obligation under s 33(1AB) of the AAT Act.
[37] In Frugtniet v Australian Securities and Investments Commission [2015] AATA 128 at [51].
The Respondent contends that the Applicant’s SFIC contains misleading statements and inaccuracies, and relies on expert reports which themselves were produced on the basis of an incomplete medical history provided to the experts by the Applicant’s solicitors. The failure of the Applicant to correct these misleading statements and inaccuracies by, for example, submitting a statement or amended SFIC, adds to the deception that is being perpetrated on the Tribunal. These actions are contrary to the requirement in s33(1AB) that parties use their best endeavours to assist the Tribunal to fulfil its statutory objective, and are grounds for dismissal of the application for abuse of process under s42B(1)(c).
On the basis of Bromberg J’s observations in Frugtniet above, the Tribunal finds that the misleading by the Applicant of the Tribunal and the Respondent by the omissions, half-truths, or false statements contained in her SFIC, and her failure to correct these when these were brought to her attention, is inconsistent with her, and her solicitors, obligation under s33(1AB).
The Tribunal however finds that the failure by the Applicant and her solicitors to meet the obligation imposed on them by s33(1AB) does not, of itself, amount to an abuse of process that would found dismissal of the application for review under s42B(1)(c). The requirement in s33(1AB) imposes an obligation on the parties to assist the Tribunal to perform its merits review function and meet its statutory objective. A failure by a party or their representatives, such as the Applicant and her solicitors, to meet this obligation may be, and here is, the subject of criticism by the Tribunal. However, for the reasons outlined above, the Tribunal is not restricted in its consideration to the matters identified by the parties in their SFICs in conducting a review on the merits and reaching the correct or preferable decision.
Accordingly, whereas the provision of misleading evidence, statements and contentions by the Applicant amounts to a failure to meet the obligation in s33(1AB), it does not meet the threshold to amount to an abuse of process to found a dismissal of the review application under s42B(1)(c). The Tribunal is not satisfied that the issues raised do not warrant a full hearing on the merits.
For the reasons stated above, the Tribunal finds that the Applicant’s conduct and that of her solicitors in the proceedings, while amounting to a failure to meet their obligations under s33(1AB), does not meet the threshold for dismissal of the application for abuse of process under s 42B(1)(c) of the AAT Act.
DECISION
The application for dismissal of the review application under s42B(1)(c) of the AAT Act is refused.
I certify that the preceding 75 (seventy-five) paragraphs are a true copy of the reasons for the decision herein of Senior Member Linda Kirk
………………………………………
Associate
Dated: 16 July 2019
Date(s) of hearing: 31 May 2019 Applicant: In person Counsel for the Applicant: Mr Leo Grey Solicitor for the Applicant: Mr Nigel Gabbedy, Gabbedy Milson Lee Counsel for the Respondent: Ms Sarah Wright Solicitors for the Respondent: Mr Scott Moloney, Moray & Agnew Lawyers
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