FEDERAL COURT OF AUSTRALIA

Novosel v Comcare [2017] FCA 722

ORDERS

THE COURT ORDERS THAT:

1.    The appeal under s 44 of the Administrative Appeals Tribunal Act 1975 (Cth) is dismissed.

2.    The application for judicial review is dismissed.

3.    The applicant is to pay the respondent’s costs as agreed or assessed.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

PERRY J:

1.    INTRODUCTION

1    The applicant, Anthony Novosel, seeks judicial review of a decision of the Administrative Appeals Tribunal (the Tribunal) dismissing his application for review under s 42B of the Administrative Appeals Tribunal Act 1975 (Cth) (the AAT Act) on the grounds that it was an abuse of process and in any event had no reasonable prospect of success within s 42B(1)(c) and (b) respectively of the AAT Act: Novosel v Comcare [2015] AATA 476; (2015) 66 AAR 549 (Tribunal reasons). By his application no. 2015/877 to the Tribunal, the applicant alleged that the respondent, Comcare, is liable relevantly under s 19 of the Safety, Rehabilitation and Compensation Act 1988 (the SRC Act) to pay compensation for incapacity by reason of a work-related left knee injury sustained him on 7 June 2006. This was the applicant’s sixth application for a determination to the Tribunal as to his entitlement for compensation under s 19 for this injury, the applicant having withdrawn, or consented to decisions on, his earlier applications. Mr Novosel however had argued before the Tribunal that he should be entitled to raise the issues before the Tribunal because of a second report prepared by Professor Robert Oakeshott, an orthopaedic surgeon, in which, the applicant submitted, Professor Oakeshott had reversed his previous negative assessment of the applicant’s case.

2    The application for review to this Court is made under s 44 of the AAT Act which provides for an appeal on a question of law, s 5 of the Administrative Decisions (Judicial Review) Act 1977 (Cth) (ADJR Act), and s 39B of the Judiciary Act 1902 (Cth) pursuant to which the Court has jurisdiction to determine whether the decision is invalid. As such, this Court has jurisdiction to interfere in the event that it is established that the Tribunal fell into jurisdictional error or otherwise erred in law. It was not in dispute that this Court does not have jurisdiction to determine the merits the Tribunal’s decision. In this regard, s 44 of the AAT Act is concerned to ensure that the merits of the case are dealt with by the Tribunal and not by the Court, reflecting a “distribution of function [which] is critical to the correct operation of the administrative review process”: Repatriation Commission v Owens (1996) 70 ALJR 904 at 904 (the Court).

3    The applicant contends that the proceedings should not have been dismissed on the ground that it constituted an abuse of process because:

(1)    the Tribunal wrongly concluded that the question of the applicant’s entitlement (if any) to compensation for the incapacity was before it in a previous application, being No. 2013/1438, in the sense that the Tribunal could have made a decision about entitlements to compensation for incapacity;

(2)    the Tribunal incorrectly concluded that its decision in application no. 2013/1438 “must be taken to have been resolved in Comcare’s favour” the s 19 incapacity issue; and

(3)    the Tribunal erred in concluding that the applicant was attempting in the present application to relitigate an issue that had been resolved between him and Comcare.

4    Furthermore, the applicant contends that the Tribunal incorrectly found that his incapacity claim had no reasonable prospects of success without identifying the relevant legal test or examining any of the medical evidence before it, despite that evidence being in his favour.

5    Against this, the respondent contends in summary that:

(a)    The applicant did not materially disagree with the relevant legal principles discussed before, and ultimately applied by, the Tribunal. There is no reason for this Court to go behind the applicant’s concessions in the present context.

(b)    Contrary to the applicant’s submissions, the Tribunal’s reasons show that it identified the legal test that it applied in finding that the proceeding was an abuse of process and/or had no reasonable prospect of success. The Tribunal made findings of fact based on that test. In each context the Tribunal was satisfied that the applicant was seeking to relitigate issues that had already been decided. None of the matters put by the applicant in this “appeal”/application overcome that conclusion.

(c)    Against that background, and in all of the circumstances, the present matter basically amounts to an invitation to the Court to undertake a review of the factual findings made by the Tribunal or, alternatively, conduct a review of the merits of the Tribunals exercise of discretion under s 42B of the AAT Act. Such a course is not permitted to occur given the constraints inherent in an application under s 44 of the AAT Act, s 5 of the [ADJR Act] and/or s 39B of the Judiciary Act 1903 (Cth).

6    By a notice of contention, Comcare also contends that Mr Novosel’s proceedings ought to have been dismissed by the Tribunal pursuant to s 33 of the AAT Act. In view of the conclusion which I have reached, it is unnecessary to consider this issue.

7    For the reasons set out below, no reviewable error has been demonstrated in the Tribunal’s decision and the application must be dismissed with costs.

2.    RELEVANT PROVISIONS OF THE SRC ACT

8    The SRC Act applies to an injury upon the provision of notice of the injury (s 53). In order to attract compensation, a claim must be made under s 54. Section 69(a) in turn provides that Comcare has relevantly the function of making determinations accurately and quickly in relation to claims and requests made to it under the SRC Act. That function must be undertaken in the manner provided for in s 72 which reads:

In performing the function referred to in paragraph 69(a), Comcare:

(a)    shall be guided by equity, good conscience and the substantial merits of the case, without regard to technicalities;

(b)    is not required to conduct a hearing; and

(c)    is not bound by the rules of evidence.

9    Section 14(1) of Part II of the SRC Act imposes liability on Comcare to pay compensation to injured employees in the following terms:

Subject to this Part, Comcare is liable to pay compensation in accordance with this Act in respect of an injury suffered by an employee if the injury results in death, incapacity for work, or impairment.

10    It is not in dispute that the applicant is an “employee” as defined in s 5 relevantly to mean a person employed by the Commonwealth or a Commonwealth authority. The term “injury” is defined in s 5A(1)(b) relevantly to mean “an injury (other than a disease) suffered by an employee, that is a physical or mental injury arising out of, or in the course of, the employee’s employment”. By s 4(9) of the SRC Act, the phrase “incapacity for work” is in turn a reference to:

…an incapacity suffered by an employee as a result of an injury, being:

(a)    an incapacity to engage in any work; or

(b)    an incapacity to engage in work at the same level at which he or she was engaged by the Commonwealth or a licensed corporation in that work or any other work immediately before the injury happened.

11    Section 14 operates in effect as “gateway” through which claims to compensation must pass. As the Full Court held in Lees v Comcare [1999] FCA 753; (1999) 56 ALD 84 (Lees):

…s 14 is the central provision of the Act so far as the liability of Comcare to pay compensation is concerned. Section 14 creates a liability in Comcare in respect of injuries suffered by employees which result in death, incapacity for work or impairment. However, the liability in Comcare created by s 14 is qualified in two ways. First, such liability is a liability “[s]ubject to” Pt II of the Act. That is, it is a liability limited in its extent by other provisions of Pt II of the Act: see, for example, s 17(2). Secondly, the liability is a liability to pay compensation “in accordance with” the Act. That is, it is a liability to pay the compensation for which the statute provides, as required by the Act: see, for example, ss 17(3), (4), (5), 19, 20, 24 and 25.

12    Once liability is established under s 14 of the SRC Act, s 16 makes provision for compensation in respect of medical expenses while separate provision is made for calculating compensation in relation to injuries resulting in death under Division 2 of Part II, incapacity for work under Division 3, and impairment under Division 4. Thus, despite the central role of s 14, the amount of compensation, the person to whom compensation is payable, and the time or times at which Comcare’s liability will give rise to a present obligation to make payments, are matters to be determined under other provisions of the Act: Lees at [34].

13    Relevantly in this regard, s 16(1) provides that:

Where an employee suffers an injury, Comcare is liable to pay, in respect of the cost of medical treatment obtained in relation to the injury (being treatment that it was reasonable for the employee to obtain in the circumstances), compensation of such amount as Comcare determines is appropriate to that medical treatment.

14    Relevantly also for this case, s 19 of the SRC Act provides that Comcare is to pay to an employee who is incapacitated for work as a result of an injury, compensation for each week during which the employee is incapacitated in accordance with a statutory formula. Notably, payments are to be made under s 19 in the context of the circumstances which pertain from week to week. The provision of compensation on this basis reflects a central object of the SRC Act, namely, to allow progressively for ongoing relief in circumstances which accommodate changing circumstances. As, for example, Conti J (with whose reasons Heerey and Dowsett JJ agreed) explained in Telstra Corporation v Hannaford [2006] FCAFC 87; (2006) 151 FCR 253 at 273 [57]:

The stautory scheme allows for progressive and evolving decision-making giving effect to the provisions of ongoing review of relief or entitlements in the nature of course of workers compensation, being review which allows for adjustment or change in the light of events and circumstances which may subsequently happen. The statutory scheme hence reflects a flexible scope for adjustment by way of decisions in the nature of awards to be made subsequently to the determination of s 14 liability, whether that determination be made in isolation, or in the context of decision-making concerning consequential relief that may be required in the light of evolving circumstances. It is therefore a scheme which allows progressively for ongoing relief, and is thus not comparable of course with the process of curial resolution of the traditional common law entitlement of an injured employee for damages as a consequence of the negligent conduct of an employer. The opening words of s 14(1) “[s]ubject to this Part” are consistent with the flexibility inherent in the ensuing codification of the various facets of compensation envisaged.

(See also John Holland Group Pty Ltd v Robertson (2010) 185 FCR 566 at 571 [19] (Dowsett J); Bortolazzo v Comcare (1997) 75 FCR 385 at 388 (Heerey J); and Comcare v Simmons [2014] FCAFC 4 at [91]-[92] (Perry J).)

15    The making of claims for compensation is dealt with in Part V of the SRC Act. Mention has already been made of s 53 and 54 requiring appropriate notice of an injury and the making of a claim for compensation. Under s 54(2), a claim is made by giving the relevant authority a written claim in accordance with form approved by Comcare. In this regard, the Full Court observed in Lees that:

30.    It is clear that Pt V of the Act envisages first, the giving of notice of an injury and separately, and in most cases it may be assumed subsequently, the making of a claim for compensation in accordance with an approved form. The claim for compensation envisaged by s 54 is not, it would seem, necessarily a claim for compensation under a particular section, or particular sections, of the Act. The form approved by Comcare as required by s 54(2)(a) reflects the generic nature of a claim under the section. It is headed “Claim for Rehabilitation and Compensation”. It requires the provision of detailed information concerning the injury and time taken off work because of the injury, but it does not provide for the provision of information of the kind that would be necessary before a determination could be made under, for example, ss 16, 17, 18, 20, 21, 24 and 25 of the Act.

16    Their Honours further explained that:

31.    The claim, and the claim form, envisaged by s 54 of the Act reflects the practical reality that a claim for compensation is likely to be made relatively soon after the suffering of an injury, particularly if incapacity for work or significant medical expenses result from the injury. At the time that this initial claim is made it may be quite impossible for the employee to provide details of, for example, the fact or extent of any permanent impairment. For the reasons expressed below, the determination which is made on a claim, as required by s 54 of the Act, will ordinarily be a determination under s 14 of the Act

17    Part VI of the SRC Act in turn creates three tiers of decision-making for s 14 liability and with respect to the award of compensation.

(1)    First, Comcare (relevantly) as the determining authority makes an initial decision under s 61.

(2)    Secondly, Comcare may reconsider the s 61 determination of its own motion under s 62(1) or pursuant to a request under s 62(2) by a claimant to reconsider the s 61 determination. The reconsideration must be undertaken by a person who is independent of the initial determination under s 61 (s 62(4)). Under s 62(5), the decision-maker on the reconsideration has power to make a decision affirming, revoking or varying the initial determination. The decision under s 62 must be notified in writing with reasons (s 63).

(3)    Thirdly, under s 64 of the SRC Act an application may be made, relevantly, by the claimant to the Tribunal for review of the determining authority’s decision under s 62, that decision being a “reviewable decision” as defined in s 60(1). In this regard, the Full Court held in Lee at [39] that “the AAT is authorised by s 64 of the Act to review only reviewable decisions — that is, for present purposes, second tier or reconsideration decisions made under s 62 of the Act.”

3.    FACTUAL BACKGROUND

3.1    Introduction

18    The background facts which are summarised below were not in issue before the Tribunal; nor were they in issue in this Court. However, as I later explain, the scope and effect of certain decisions made in the relevant chronology of events was in issue.

3.2    The work related injury to the left knee

19    The applicant was born in 1973. On 14 June 2006, he made a claim for compensation under the SRC Act. The applicant alleged that he had suffered a ligamentous sprain/tear affecting his left knee on 7 June 2006 while engaged in a work endorsed sporting activity. At the time of the injury, he was employed as a parking inspector (ASO2) with the ACT Urban Services (the employer).

3.3    Acceptance of the applicant’s claim under s 14, SRC Act and subsequent medical reports

20    On 13 June 2006, an MRI of the applicant’s left knee revealed a ruptured anterior cruciate ligament with bony contusions in the posterolateral tibial plateau. 29 June 2006, Comcare accepted liability under s 14 of the SRC Act to pay compensation to the applicant for what was described as a “sprain of other specified sites of knee & leg (left)” which occurred on 7 June 2006.

21    In his report dated 11 December 2006, Dr David Hughes (sports physician) noted that Dr Kevin Woods (treating surgeon) reconstructed the applicant’s anterior cruciate ligament on 17 July 2006. Dr Hughes considered that the applicant had had a successful reconstruction, did not appear to have a major problem with his left knee, and was not at significant risk of further knee injury. Dr Hughes was of the opinion that the applicant could return to normal work activities without any restrictions from 17 January 2007.

22    On 14 March 2007, Dr Virginia Pascall (occupational physician) assessed the applicant at his employer’s request. In her report dated 28 March 2007, Dr Pascall agreed with Dr Hughes that examination of the applicant’s left knee demonstrated a very good recovery from surgery. She considered that further muscle strengthening of the left thigh should occur before it could be said that the applicant had achieved a full recovery.

23    The applicant was assessed by Dr Derrick Billett (orthopaedic surgeon) at Comcare’s request on 25 July 2007. In his report dated 31 July 2007, Dr Billett considered among other things that the applicant had not fully recovered because there was still slight laxity of the medial ligament and anterior cruciate and damage to cartilage under the kneecap. Noting that the applicant was working as a parking inspector and took rest breaks to prevent prolonged standing and walking, Dr Billett considered that the applicant should not perform over-time and recommended that he take frequent rest breaks to rest his knee.

24    Dr Pascall reassessed the applicant at his employer’s request on 22 January 2008. In a report of the same date, Dr Pascall noted that the applicant’s left knee examined fairly much the same as the right, with some crepitus on flexion and extension in both knees but otherwise no swelling or tenderness.

3.4    The first report of Associate Professor Oakeshott (4 April 2008)

25    On 4 April 2008, Associate Professor Robert Oakeshott (orthopaedic surgeon) examined the applicant for the first time at Comcare’s request. In his report dated 4 April 2008, Professor Oakeshott diagnosed the applicant as suffering a ruptured anterior cruciate ligament of his left knee in the accident on 7 June 2006. He considered that the applicant had made a good recovery from repair to his left knee injury. He did not consider that the applicant had any permanent damage as a result of the injury to his left knee and that the prognosis of his left knee was good. In his view, the applicant was fit for full-time modified duties immediately and that return to full-time, unrestricted work was a reasonable goal from the medical perspective.

3.5    The first AAT application no. 2009/0050

3.5.1    The determination by Comcare dated 24 September 2008 and reviewable decision dated 17 November 2008

26    On 24 September 2008, Comcare determined that compensation was not payable to the applicant for his left knee condition pursuant to ss 16 and 19 of the SRC Act based on the evidence at that time including Associate Professor Oakeshott’s report. Subsequently, on 17 November 2008 Comcare issued a reviewable decision affirming the determination on 24 September 2008. In her reasons, the reviewing officer considered the medical evidence and was persuaded by the evidence of Associate Professor Oakeshott that the applicant had recovered from his left knee injury. Accordingly, the reviewing officer affirmed the decision under reconsideration.

3.5.2    Subsequent medical reports and application no. 2009/0050

27    On 22 December 2008, an MRI of the applicant’s left knee apparently revealed an intact anterior cruciate ligament graft with no complications although the assessing radiologist observed minimal irregularity of the posterior horn of the medial meniscus in keeping with early fraying. The referral notes apparently recorded the applicant’s complaints of “Decreased flexion and normal use. Gives way. Pain is all the time.”

28    On 7 January 2009 the applicant filed application no. 2009/0050 in the Tribunal for review of the 17 November 2008 reviewable decision.

29    On 19 March 2009, Dr Graeme Griffith, consultant surgeon and medico-legal consultant, assessed the applicant at his solicitors’ request. In his report, Dr Griffith noted that the applicant continued to complain of aching discomfort in his left knee with periodic instability, borderline knocking and problems with kneeling. In his opinion, “[t]here is no doubt that the rupture of the cruciate ligament, hemarthrosis and other conditions listed initially were acute phenomena, and no longer exist following the reparative surgery.” He considered that the applicant’s current condition is perceived as impairing his ability to lead a normal life and was as much due to perception of pain and his consequent restriction of activities, as it was to actual injury to the joint. Dr Griffith considered that “[t]heoretically the applicant should be able to perform any activity in the workplace similar to that which he previously performed with restrictions on kneeling and twisting whilst the knees bent, e.g., when chalking tyres. He should be able to walk for protracted periods without restriction, and indeed this would help to strengthen his quadriceps. Restrictions on his employment should be temporary.” Dr Griffith considered that the applicant’s prognosis must be guarded having regard to the fact that he remains symptomatic as he does in regard to his perception of pain. He concluded that:

There is virtually a normal range of motion in his knee, with no significant ligamentous laxity, effusion, instability or varus or valgus deformity. The presence of discomfort or frank pain does not constitute impairment in terms of the [Comcare Permanent Impairment Guide]. He therefore has a ZERO permanent impairment on the basis of his current presentation, in spite of his complaints and apparent distress.

30    On 16 April 2009, Dr Edwin Cassar, treating physician, reported to the applicant’s solicitors. Dr Cassar considered that the applicant’s current condition incapacitated him from kneeling, squatting and walking and would continue to do so until arthroscopic debridement of his degenerative left knee medial meniscus is undertaken and he lost a significant amount of weight. If these steps were taken, Dr Cassar considered that the applicant’s restriction to sedentary occupation would cease and that he would be capable of returning to pre-injury ambulatory parking officer employment.

31    On 1 April 2009, Dr Garth Eaton assessed the applicant at his solicitor’s request. In his report dated 11 May 2009, Dr Eaton diagnosed the applicant as suffering persistent left knee pain and dysfunction, and a probable damaged medial meniscus. He gave a guarded prognosis. Dr Eaton noted the applicant’s reports that he finds it difficult to stand and walk for extended periods of time. He considered that, if the medial meniscus is confirmed to be torn, treatment with arthroscopic surgery should eradicate his left knee pain and restore normal function enabling him to return to normal activities. Dr Eaton considered that the applicant’s prognosis should be “reasonably good for eventual resolution of his left knee symptoms and dysfunction.”

32    On 14 May 2009, Dr Pascall reassessed the applicant at the request of Comcare’s solicitors. In her report dated 21 June 2009, Dr Pascall diagnosed the applicant as having suffered a torn anterior cruciate ligament of the left knee which was repaired/reconstructed approximately six weeks after the injury with a very good result. In addition she noted that there was some minor medial meniscus damage which Dr Woods had also tidied up when he carried out the reconstruction. She considered that the applicant continued to have some symptoms associated with the left knee and attributable to the accident on 7 June 2006. In Dr Pascall’s opinion, at that time, the applicant was capable of working full-time hours and overtime hours, but Dr Pascall would place a number of restrictions on his employability including avoiding twisting of the knee, frequent or sustained squatting and frequent climbing stairs.

33    On 3 August 2009, Dr Woods performed an arthroscopy on the applicant together with partial medial meniscectomy, and removal of staple on the applicant’s left knee.

34    In his report to the applicant’s solicitors on 16 September 2009, Dr Woods diagnosed the applicant as recovering post-surgery and advised that he had not placed any restrictions or limitations on the applicant’s ability to undertake employment. He also advised that he did not anticipate that the applicant’s condition would limit his ability to undertake overtime work. He said that he expected continued satisfactory function from the applicant’s left knee and did not anticipate the need for any surgery in the near future.

35    Subsequently in his report to Dr Renshaw dated 27 October 2009, Dr Woods noted that the applicant reported that he is still troubled by discomfort in the knee. Dr Woods said that on examination, he reassured the applicant that he has good motion and normal stability, and that structurally the knee is quite satisfactory. In Dr Wood’s opinion, the applicant’s residual symptoms should improve as he regains normal muscle function.

3.5.3    Withdrawal of application no. 2009/0050

36    On 7 December 2009, the applicant lodged a request for his application for review no.w 2009/0050 to be withdrawn pursuant to s 42A(1A) of the AAT Act. The matter was finalised on the same day upon the Tribunal dismissing the application under s 42A(1B) of the AAT Act without the Tribunal proceeding to a review of the decision.

3.6    The second AAT application no. 2010/5559

37    The applicant again sought review by the Tribunal of the determination made on 17 November 2008 which had been the subject of the first AAT application. On 28 October 2011, the Tribunal decided in accordance with the agreement reached between the parties at the conclusion of an alternative dispute resolution process that:

Pursuant to subsection 34D(2) of the Administrative Appeals Tribunal Act 1975 (Cth), the Tribunal decides that:

1.    The reviewable decision dated 17 November 2008 is set aside and in substitution it is decided that from 24 September 2008 to 27 October 2009, Mr Novosel was entitled to compensation under sections 16 and 19 of the Safety, Rehabilitation and Compensation Act 1988 (Cth) (SRC Act), in respect of “sprain of other specified sites of knee and leg (left)” (the left knee injury).

2.    Comcare is to pay Mr Novosel’s reasonable party/party costs and disbursements in accordance with section 67(8) of the SRC Act, to be agreed or taxed.

38    Importantly, the Tribunal also noted the parties’ agreement that:

III. As at 28 October 2009, the effects of Mr Novosel’s left knee injury resolved and did not give rise to an entitlement to compensation for medical treatment or incapacity to work.

IV. Mr Novosel acknowledges that consideration of any specific claims for benefits under the SRC Act in respect of the left knee injury will occur by way of separate determination in accordance with the relevant legislative tests.

3.7    The third AAT application no. 2011/2195

3.7.1    The determination by Comcare dated 8 December 2010 and reviewable decision dated 13 May 2011

39    On 8 December 2010, Comcare determined that it was not liable to pay compensation to the applicant pursuant to ss 16 and 19 of the SRC Act, finding that “[b]ased on the evidence presented at this time I have decided that you do not presently suffer from the effects of your compensable injury on 8 December 2010.” That decision was preceded by a letter to the applicant dated 5 November 2010 in which the decision-maker advised that, based upon the medical evidence including that of Associate Professor Oakeshott, compensation may not be payable and invited the applicant to present further medical evidence supporting his claims for compensation under ss 16 and s 19 of the SRC Act.

40    By letter dated 20 December 2010, the applicant’s solicitors sought a reconsideration of the determination made on 8 December 2010. In support of that request, enclosed with the letter was a report of Dr Renshaw dated 22 November 2010 and clinical notes from Dr Woods.

41    On 13 May 2011, Comcare issued a reviewable decision affirming the determination made on 8 December 2010 in relation to the applicant’s left knee injury. In reaching that decision, the decision-maker summarised the medical evidence and found as follows:

The question for my consideration is whether at 8 December 2010 you continued to suffer the effects of your work related “sprain of other specified sites of knee & leg (left)”.

I find that as at 8 December 2010, you did not continue to suffer the effects of this condition or, if you did, those effects were insignificant. I note that Dr Woods operated on your knee on 3 August 2009 and provided two subsequent reports dated 16 September 2009 and 27 October 2009. Dr Woods considered your need to be structurally satisfactory. Medical reports from Dr Cassar and Dr Renshaw suggest that any symptomology you experienced was related to your “adjustment reaction”. I also find that your physical condition was unlikely to result in an incapacity for work, and it was unlikely to reasonably require an immediate medical treatment, as at 8 December 2010.

42    The effect of this decision was that the applicant had no present entitlement to compensation under ss16 and 19 for left knee as at 8 December 2010.

43    Professor Oakeshott reassessed the applicant at the request of Comcare on 16 June 2011. In his report of the same date, Professor Oakeshott was of the opinion that:

… Mr Novosel has made a good functional recovery from the repair to the ruptured anterior cruciate ligament which occurred at work on 7 June 2006.

Objective clinical examination today revealed good, strong, pain-free left knee function.

His latest MRI scan in December 2008 did not reveal any significant abnormality and the “minimal irregularity” of the posterior horn of the medial meniscus noted in this MRI scan has been appropriately treated at arthroscopic surgery (3 August 2009).

At today’s consultation and clinical examination, I was unable to identify any physical abnormality in relation to his left knee that could explain his ongoing alleged symptoms.

It is my opinion that his symptoms are related to factors other than the physical injury that occurred to his left knee on 7 June 2006.

44    Professor Oakeshott reiterated his opinion that the applicant had made a complete recovery from his anterior cruciate ligament injury when he examined the applicant on 4 April 2008 and his opinion on the question of the applicants incapacity for employment expressed in his report for April 2008: see above at [25].

45    On 7 June 2011, Dr Griffith reassessed the applicant at the request of his solicitors. In his report dated 20 June 2011, Dr Griffith diagnosed the applicant as having suffered a complete rupture of the anterior cruciate ligament (now repaired), acute haemarthrosis (resolved), and a partial tear of the medial meniscus. Dr Griffith noted that because of continued pain in the left knee, the applicant undertook a further MRI which confirmed a further tear in the medial meniscus which required repeat surgery by Dr Woods on 3 August 2009. He noted that at surgery, the medial meniscus apparently displayed a further split and tear, resulting in removal of approximately half of its medial portion. The applicant reportedly remained symptomatic since that time.

3.7.2    Application no. 2011/2195

46    On 1 June 2011, the applicant filed in the Tribunal an application for review of the reviewable decision dated 13 May 2011 alleging that the “[d]ecision is wrong both in law and fact” (AAT application No. 2011/2195).

47    On 28 October 2011, a review of the decision made on 13 May 2011 was finalised pursuant to consent orders under s 34D(2) of the AAT. Those orders set aside the reviewable decision in respect of the applicant’s psychological condition (reconsideration no. 23712318) and substituted a different decision, but otherwise affirmed the reviewable decision made on 8 December 2010 (reconsideration no. 23712474).

3.8    The fourth AAT application no. 2012/2434

3.8.1    The determination by Comcare dated 29 February 2012 and reviewable decision dated 3 May 2012

48    On 5 February 2012, the applicant wrote to Comcare enquiring as to the policy relating to his “overtime top up continuance payment from Comcare”. He alleged that he could no longer perform the duties of a parking inspector and that, while he was completing full-time duties, he was still disadvantaged because he earned more before the injury. On 14 February 2012, the applicant wrote to Comcare requesting a determination from Comcare regarding the issue of his overtime top up entitlement. Comcare responded by letter dated 15 February 2012 advising that there was no evidence that altered the findings and/or agreement outlined in the AAT decision given on 8 December 2010, and noting that it was agreed that as at 28 October 2009 the effects of his compensable knee injury had resolved and no longer gave rise to compensation for medical treatment or incapacity to work. In response to a request for a determination on the issue, Comcare determined on 29 February 2012 that “in view of the AAT decision dated 28 October 2011 including the medical certificates mentioned above, I am not satisfied you continue to suffer from incapacity for work due to any of your compensable condition beyond 28 October 2009. Accordingly I deny liability under section 19 in respect of your claim for ongoing overtime payments.” The medical certificates referred to were submitted by the applicant following the Tribunal decision, being medical certificates dated 29 October 2011 and 30 November 2011 issued by Dr Renshaw. The Tribunal noted that in the certificates Dr Renshaw did not indicate any incapacity for work even though he provided the diagnoses “‘adjustment reaction + chronic pain syndrome + repair torn medial meniscus left leg’ due to your ‘torn ACL left knee’.”

49    By a letter dated 30 March 2012, the applicant’s solicitors requested a reconsideration of the determination given on 29 February 2012 on the ground that the determination had failed to take into account the fact that the applicant’s post-injury weekly earnings had allegedly remained much lower than his pre-injury normal weekly earnings.

50    On 3 May 2012, Comcare issued a reviewable decision affirming the determination dated 29 February 2012.

3.8.2    Withdrawal of application no. 2012/2434

51    The applicant applied for review of the reviewable decision dated 29 February 2012 in application no. 2012/2434. On 19 October 2012 the Tribunal dismissed that application following lodgement by the applicant of a written notification pursuant to s 42A(1A) of the AAT Act requesting that his application no. 2012/2434 be withdrawn.

3.9    The fifth AAT application no. 2013/1438

3.9.1    The determination by Comcare on 30 October 2012

52    These proceedings were identified as being one of the two key proceedings by the applicant, the other being the sixth AAT application no. 2015/877.

53    On 27 July 2012 the applicant lodged a claim for compensation under the SRC Act, being a further claim in relation to his left knee injury in June 2006.

54    On 30 October 2012, Comcare determined that compensation was not payable for medical expenses of incapacity for this claim, finding that:

…

In a determination dated 24 September 2008, it was held that you no longer suffered from the effects of your compensable left knee injury. This decision was then affirmed in a reviewable decision, dated 17 November 2008.

In a determination dated 8 December 2010, it was held that you did not presently suffer from the effects of your compensable left knee injury, or adjustment reaction, giving rise to incapacity for work or need for medical treatment. This determination was varied in a reviewable decision dated 13 May 2011 (allowing the payment of compensation for reasonable medical treatment for your adjustment reaction).

You appealed the reviewable decisions dated 17 November 2008 and 13 May 2011 to the AAT. On 28 October 2011, the [AAT] set aside Comcare’s determination of 17 November 2008 and found Comcare liable to pay compensation for reasonable medical expenses under section 16 of the SRC Act for the period 24 September 2008 to 27 October 2009, in respect of your left knee injury. It is also noted as at 28 October 2009, the effects of your left knee injury resolved and did not give rise to an entitlement to compensation for any further medical treatment.

I have reviewed all the evidence noting the primary decision, reviewable decision and the decision by the Administrative Appeals Tribunal.

I have also reviewed the medical evidence provided by Dr Kevin Woods, in his report dated 24 July 2012. Dr Woods states in his report “Anthony was reviewed today. Recent X-rays of his knee are quite satisfactory with the exception of some minor medical joint space narrowing…I have reassured him that structurally his knee is quite satisfactory and I cannot see any cause for his ongoing symptoms on these investigations. I have not made arrangements to see him again…”

Having reviewed your claim, I am not satisfied that you still suffer the effects of your compensable condition. Dr Woods is of the opinion that he is unable to identify any cause for your ongoing symptoms.

Therefore, having assessed the evidence on your claim file, I have determined that compensation is not payable for medical expenses or for periods of incapacity relating to your claimed condition of ‘Torn/ruptured ACL and Meniscus tear, left knee injury’.

(emphasis added)

55    As the applicant acknowledged, this decision dealt both with any claim under s 16 (medical expenses) and s 19 (incapacity).

3.9.2    The request for the determination dated 30 October 2012 to be reconsidered

56    By a letter dated 22 November 2012, the applicant’s solicitors sought a reconsideration of this determination. In the letter, the applicant’s solicitors wrote that:

We advise that we act for Mr Novosel in relation to your recent denial of liability to pay medical expenses associated with the accepted condition of “torn/ruptured ACL and meniscus tear, left knee injury”.

We have instructions to seek a reconsideration of the determination dated 30 October 2012.

Our client has suffered from an aggravated/exacerbation of accepted condition and this is clearly borne out by Dr Wood’s letter of 7 August 2012 in which he recommended an injection of fish oil and Glucosamine preparations. We note that you did not take into account Dr. Wood’s letter of 7 August 2012 in your determination.

We ask that you review the determination…

57    I note that the reconsideration request raised only the denial of liability to pay medical expenses, and did not raise the denial of compensation for incapacity under s 19 of the SRC Act, a matter on which the applicant placed particular weight for reasons which will later become apparent.

3.9.3    The reviewable decision by Comcare on 5 February 2013

58    On 5 February 2013 Comcare affirmed the determination dated 30 October 2012. The reviewing officer found that, having regard to the available evidence including Dr Woods report dated 7 August 2012, she was not satisfied that the applicant continued to suffer the effects of his accepted knee condition. In her reasons, the review officer stated that:

By determination dated 30 October 2012, Comcare determined that compensation for incapacity or medical treatment for your claimed condition of ‘torn/ruptured ACL and meniscus tear left knee injury’ was not payable.

…

Reasons

In reviewing the determination of 30 October 2012, I have had regard to all the evidence contained within your claim file, the reasons for requesting a reconsideration and the relevant provisions of the SRC Act.

Dr Kevin Woods, Orthopaedic Surgeon, in a report dated 24 July 2012 wrote that recent x-rays of your knee were satisfactory with the exception of what he considered some minor medial joint space narrowing. Dr Woods wrote that your MRI demonstrated an intake ACL graft with satisfactory menisci. Dr Woods considered that the medial meniscus which previously had a partial meniscectomy performed was thinner in volume but showed no recurrent tears. Dr Woods considered the articular surface of the medial femoral condyle and medial compartment looks satisfactory and there was no subchondral oedema. Dr Woods wrote that he reassured you that structurally your knee was quite satisfactory and that he could see no cause for your ongoing symptoms on your investigations.

Dr Woods, in a report dated 7 August 2012, wrote that he discussed the results of the MRI of your left new knee with you. Dr Woods wrote that he advised you surgical treatment was not recommended. Dr Woods wrote nonoperative measures including the possible benefits of Chondolitin, Glucosamine preparastion and possible fish oil were discussed.

Discussion

Mr Chen stated you had suffered an aggravation/exacerbation of your accepted knee condition which was clearly borne out by Dr Wood’s report of 7 August 2012 which recommended an injection of fish oil and Glucosamine preparations.

I have reviewed the evidence on your claim and I note that in his report of 24 July 2012, Dr Woods considered that your left knee was structurally satisfactory and he could find no cause for your ongoing symptoms. Whilst Dr Woods recommended non-operative measures in his report of 7 August 2012, he has given no causation of your current systems.

I am not satisfied, having regard to the available evidence that you continue to suffer the effects of your accepted left knee condition.

Therefore, I have decided to affirm the determination dated 30 October 2012.

(emphasis added.)

59    It is apparent that this decision was not expressed to be limited to a reconsideration of the claim for medical expenses.

3.9.4    The AAT application no. 2013/1438

60    The applicant filed an application for review of this decision in the Tribunal on 3 April 2013, being AAT application no. 2013/1438. In his statement of issues filed in that proceeding, the applicant identified the following:

1. Decision Under Review

1.1     The decision under review is the decision dated 5 February 2013 affirming the initial determination of 30 October 2012 which purports to cease liability to pay compensation to the Applicant under section 16 of the Act in relation to the accepted condition.

2. Issues

2.1 Whether the Applicant reasonably requires ongoing medical treatment in respect of his medical condition.

61    The respondent identified the issues in its statement of issues dated 9 May 2013 as:

2.1    Whether the Applicant is attempting to re-litigate issues concluded to finality and determined by the Tribunal in application 2011/2195?

2.2    Whether the Applicant reasonably requires medical treatment in respect of sprain of other specified sites of knee & leg (left)?

62    As I later explain, the applicant places weight on the fact that neither statement of issues identifies compensation for incapacity as being an issue in the Tribunal.

3.9.5    The second report of Professor Oakeshott dated 27 November 2013

63    Before the AAT proceeding was resolved, Professor Oakeshott reassessed the applicant on 27 November 2013 at the request of Comcare’s solicitors. In his report of the same date, Professor Oakeshott considered that:

…. It is my opinion that there is now an ongoing issue with his left knee.

As a result of the medial meniscus injury, and subsequent surgery to that meniscus, he has developed joint space narrowing and osteophytes.

This development is consistent with a significant injury to the medial meniscus and the development of arthritic changes in that knee and particularly the medial compartment of that knee is likely in the future (more than 50% likely).

… He did not have significant left knee symptoms at today’s consultation and examination of his left knee to day [sic] did not reveal any significant abnormality.

However, there was significant wasting of the left thigh muscle and now some evidence of slight weakness in the left knee.

64    With respect to the applicant’s work capacity, Professor Oakeshott was of the opinion that:

It is my opinion that, because of his left knee condition, he should avoid work that involves heavy lifting, pushing or pulling heavy objects or climbing ladders. He should avoid walking on uneven circumstances. These restrictions are permanent.

His current work situation is ideal from the medical point of view and in regard to his left knee condition. He should be able to sit and stand at will at work.

I consider that he should avoid his pre-injury fulltime duties as a fulltime parking inspector as this involved prolonged walking and sometimes over uneven surfaces.

He should be able to continue working full-time on his present job (alternative duties). His present job is described above.

In other words, his present incapacity to return to his preinjury level of work is related to his left knee condition which is described above.

65    In his report Professor Oakeshott had earlier described the applicant as currently working in a full-time, permanent position with WorkSafe ACT working at a desk using a computer and answering the phone.

3.9.6    The consent decision in application no. 2013/1438

66    Following an alternative dispute resolution process, on 1 May 2014 the Tribunal delivered a consent decision pursuant to s 34D(2) of the AAT Act in application no. 2013/1438. The consent decision was in the following terms:

1.    The reviewable decision dated 5 February 2013 is set aside and in substitution it is decided that:

(i)    the applicant is entitled to compensation under section 16 of the [SRC Act] for;

a.    injections to the left knee performed by Dr Renshaw on 17 November 2012 and 11 February 2013 and related Celestone Chronodose medication.

b.    MRI scan left knee performed on 16 July 2012

c.    X-ray of left knee performed on 16 July 2012

d.    Consultations with Dr K Woods held on 16 and 24 July 2012

e.    Panadeine Forte tablets purchased on 15 June 2012

f.    Mobic medication purchased on 15 June 2012 and 5 January 2013

g.    Consultation with Dr Renshaw held on 2 August 2012

(ii)    The applicant is not entitled to compensation under section 16 of the SRC Act for chondroitin, glucosamine preparation, or fish oil. These medical treatments are not reasonably required by the applicant in respect of his ‘sprain of other specified sites of knee and leg (left)’ deemed to have been sustained on 7 June 2006.

2.    The respondent is to pay the applicant’s reasonable party-party costs in application 2013/1438 as agreed or assessed under section 67 of the SRC Act and section 6.10 of the Tribunal’s Guide to Workers Compensation Jurisdiction dated September 2013.

67    I note that no reference is made to resolving any claim to compensation under s 19 of the SRC Act in the consent determination – a matter on which the applicant placed weight for reasons I later explain.

3.10    The sixth AAT application no. 2015/877

3.10.1    The determination by Comcare dated 17 November 2014

68    On 10 October 2014, the applicant requested that his entitlement to incapacity payments be reassessed and reinstated for the period 8 December 2010 onwards in light of Professor Oakeshott’s report dated 27 November 2013. The request was apparently for what was described as “top up over time incapacity payments” until the applicant resigned or retired from the workforce.

69    On 17 November 2014, Comcare issued a determination denying liability to pay compensation to the applicant under s 19 of the SRC Act from 8 December 2010 to the date of the determination. The Comcare delegate reasoned that:

I refer to the AAT Application 2010/5559 dated 1 May 2014:

Pursuant to subsection 34D(2) of the Administrative Appeal Tribunal Act 1975 (Cth), the Tribunal decides that:

1.    the reviewable decision dated 17 November 2008 is set aside and in substitution it is decided that from 24 September 2008 to 27 October 2009, Mr Novosel was entitled to compensation under sections 16 and 19 of the [SRC Act], in respect of ‘sprain of other specified sites of knee and leg (left)’…

2.    Comcare is to pay Mr Novosel’s reasonable party/party costs and disbursements in accordance with section 67(3) of the ARC Act, to be agreed or taxed.

The Tribunal also notes all parties’ agreement to the following:

…

iii.     As at 28 October 2009, the effects of Mr Novosel’s left knee injury resolved and did not give rise to an entitlement to compensation for medical treatment or incapacity for work.

….

Having assessed the evidence available on your file including the AAT decision dated 1 May 2014 and Dr Oakeshott’s report dated 27 November 2013, Comcare is unable to accept your claim for incapacity entitlements from 8 December 2010 to present in relation to your left knee.

I have assessed the evidence on your claim file and under section 19 of the Safety, Rehabilitation and Compensation Act 1988 (SRC Act), determined that compensation is not payable for incapacity payments in relation to your left knee.

70    I note that the reference above to the AAT Application 2010/5559 having been decided on 1 May 2014 is in error, as the applicant pointed out. The consent orders in application no. 2010/5559 were made on 28 October 2011. However, no point was sought to be made with respect to that error.

3.10.2    The reviewable decision dated 12 February 2015

71    Subsequently by a letter dated 9 December 2014, the applicant’s solicitors requested a reconsideration of the determination made on 17 November 2014. In the letter, the applicant’s solicitors contended that Comcare’s delegate had “relied on selective paragraphs from the report of Dr Oakeshott dated 27 November 2013. We do not believe that this is an appropriate approach and ask that Comcare take into consideration the entirety of Dr Oakeshott’s report in considering our client’s request.” The solicitors further submitted that the applicant’s agreement to resolve his application no. 2010/5559 on 20 October 2011 together with the terms which he accepted was very much influenced by the previous reports of Dr Oakeshott from which it was said the doctor had now retracted.

72    On 12 February 2015, a review officer for Comcare affirmed the reviewable decision made on 17 November 2014. In her reasons, the review officer stated that she had had regard to all of the evidence on the applicant’s claim file, the reasons why a reconsideration had been requested, and the relevant provisions of the SRC Act. She then set out the submissions by the applicant’s solicitors. However the review officer rejected those submissions and found that:

Your solicitor had contended that Comcare should consider the entire report from Associate Professor Oakeshott, consultant surgeon, dated 27 November 2013. I note that this report was obtained in relation to the AAT proceedings in 2013/2014 and was considered as part of the evidence in the consent decision of 1 May 2014.

The AAT Consent decision of 1 May 2014 found that you had an ongoing entitlement to various medical expenses from June 2012 to February 2013, and then yearly reviews with Dr Cassar for your left knee injury. The decision did not disturb the findings of the previous AAT decision of 28 October 2011 in relation to your incapacity to work as a result of your left knee injury. The AAT consent decision of 28 October 2011 found you had no entitlement to incapacity from 28 October 2009.

I further noted that in November 2013, Assoc Prof Oakshott stated you had the capacity to work full-time with restrictions on heavy lifting, pushing or pulling heavy objects, climbing ladders and walking on uneven ground.

On the basis of the previous AAT decisions, and the fact that Assoc Prof Oakeshott considered you have the capacity for full-time work, I find that you were not incapacitated for work as a result of your left knee injury from 8 December 2010 to present.

3.10.3    The summary dismissal of application no. 2015/877 under s 42B(1), AAT Act

73    By an application for review dated 19 February 2015, the applicant sought review of the decision of the reviewing officer in the Tribunal. The application simply stated that the reasons for the application were that “Decision was wrong in both fact and law”.

74    No statements of issues were filed in these proceedings. Rather, Comcare applied for the proceedings to be dismissed under s 42B(1) of the AAT Act.

75    However, the applicant argued that Comcare was liable under ss 16 and 19 of the SRC Act in respect of his left knee for the period since 28 October 2009.

3.10.4    The Tribunal’s reasons for dismissing application 2015/877

76    On 2 July 2015, the Tribunal gave reasons for deciding to dismiss the application under ss 42B(1)(b) and (c) of the AAT Act which were stated to have been prepared having regard to the requirement in s 2A(c) of the AAT Act (Tribunal reasons at [1]).

77    The Tribunal referred first to the previous decisions reached by agreement, in particular:

(1)    The first Tribunal decision by consent in the AAT, being that in application no. 2010/5559, which covered the applicant’s entitlement to compensation under ss 16 and 19 of the SRC Act for his left knee injury;

(2)    the notation on that decision that the parties were agreed that, as at 28 October 2009, the effects of the applicant’s left knee injury had resolved and did not give rise to an entitlement to compensation under ss 16 or 19 (at [5]); and

(3)    the second Tribunal consent decision, being that (relevantly) in application no. 1438 of 2013 which was given on 1 May 2014 and “covered the applicant’s entitlement to compensation under s 16 of the SRC Act for the injury to his left knee” (at [4]).

78    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.

79    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.

80    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.

3.11    Summary of the six relevant AAT applications

81    Given their complexity, it is helpful briefly at this point to summarise the outcome of the six AAT applications relating to the left knee injury as follows.

(1)    First AAT application no. 2009/0050

(a)    On 24 Sept 2008, Comcare found that there is no present entitlement to compensation under s 16 (medical expenses) and s 19 (injury resulting in incapacity) of the SRC Act.

(b)    On 17 November 2008, the Comcare decision on 24 September 2008 was affirmed on reconsideration by Comcare.

(c)    At the applicant’s request, on 7 December 2009 the Tribunal dismissed under s 42A(1B), AAT Act, the application for review of the reviewable decision given on 17 November 2008.

(2)    Second AAT application no. 2010/5559

(a)    Pursuant to s 34D(2) of the AAT Act, on 28 October 2011 the Tribunal set aside by consent the reviewable decision given on 17 November 2008 and in substitution decided that from 24 September 2008 to 27 October 2009, the applicant was entitled to compensation under ss 16 and 19 of the SRC Act in respect of “sprain of other specified sites of knee and leg (left)” (the left knee injury).

(b)    The consent decision noted the parties’ agreement that as at 28 October 2009, the effects of the applicant’s left knee injury had resolved and did not give rise to an entitlement to compensation for medical treatment or incapacity to work.

(3)    Third AAT application no. 2011/2195

(a)    On 8 December 2010, Comcare decided that the applicant did not presently suffer the effects of his left knee injury and determined that compensation was not presently payable pursuant to s 16 and s 19 of the SRC Act.

(b)    On 13 May 2011, the decision on 8 December 2010 was varied with respect to medical treatment for adjustment disorder under s 16 of the SRC Act (reconsideration no. 23712318) but was otherwise affirmed (reconsideration no. 23712474).

(c)    On 28 October 2011, a review of the decision made on 13 May 2011 was finalised pursuant to consent orders under s 34D(2) of the AAT Act which set aside the reviewable decision in respect of the applicant’s psychological condition (reconsideration no. 23712318) and substituted a different decision, but otherwise affirmed the reviewable decision made on 8 December 2010 (reconsideration no. 23712474).

(4)    Fourth AAT application no. 2012/2434

(a)    On 29 February 2012, Comcare denied the applicant’s claim for ongoing overtime payments on the ground that it was not satisfied that the applicant continued to suffer from incapacity for work due to his compensable condition beyond 28 October 2009.

(b)    On 3 May 2012, Comcare affirmed the reviewable determination given on 29 February 2012 denying liability for incapacity payments.

(c)    On 19 October 2012, the applicant notified of his request to withdraw his application for review of the decision given on 3 May 2012 and the Tribunal dismissed the application for review under s 42A(1B) of the AAT Act.

(5)    Fifth AAT application no. 2013/1438

(a)    On 30 October 2012, Comcare determined that compensation was not payable for medical expenses or incapacity relating to his left knee injury.

(b)    On 5 February 2013, on review Comcare affirmed the determination made on 30 October 2012 (I note that Associate Professor Oakeshott’s second report was given on 27 November 2013).

(c)    On 1 May 2014, the AAT by consent set aside the reviewable decision dated 5 February 2013 and substituted that decision with a decision that the applicant is entitled to compensation under s 16 for specified treatment.

(6)    Sixth AAT application no.2015/877 (being the subject of the present proceedings)

(a)    On 17 November 2014, Comcare decided that the applicant was not entitled to payments for incapacity in relation to his left knee from 8 December 2010 to the date of the decision.

(b)    On 12 February 2015, Comcare affirmed the decision given on 17 November 2014.

(c)    On 2 July 2015, the Tribunal summarily dismissed under s 42B of the AAT Act, the application for review of Comcare’s decision on 12 February 2015.

4.    CONSIDERATION

4.1    The issues

82    The applicant challenges both grounds on which the Tribunal decided on 2 July 2015 summarily to dismiss his application no. 2015/877. At the time that the Tribunal made its decision, s 42B(1) of the AAT Act relevantly provided that:

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.

83    Paragraphs (a) to (c) of s 42B(1) are expressed in the alternative. It follows that the applicant must successfully challenge both grounds on which the Tribunal reached its decision, if his appeal/application for judicial review is to succeed. As a result, unless the applicant can establish that the Tribunal’s finding that the application should be dismissed under s 42B(1)(c) of the AAT Act is tainted by reviewable error, it is unnecessary to consider whether an error has been established with respect to the second and additional ground on which the Tribunal would have dismissed the application in any event.

4.2    Did the Tribunal err in dismissing application 2015/877 as an abuse of process?

4.2.1    The applicant’s submissions

84    The applicant contends that the Tribunal wrongly dismissed the application as an abuse of process for the reasons that the Tribunal erred in concluding that:

(1)    the question of the applicant’s entitlement (if any) to payments for incapacity under s 19 of the SRC Act was before it in the earlier AAT application no. 2013/1438 in the sense that it would have been open to the Tribunal in that earlier proceeding to make a decision about that issue if the application had proceeded to hearing (the first proposition);

(2)    when the consent decision was made in application no. 2013/1438 to set aside the reviewable decision and substitute it with a decision that did not refer to s 19, the s 19 incapacity issue must be taken to have been resolved in Comcare’s favour, i.e., that there was no entitlement under s 19 (the second proposition); and

(3)    based upon these errors “[t]his means that Mr Novosel is seeking in this application to relitigate an issue that has been resolved between him and Comcare” (the third proposition).

85    Rather, the applicant contends that:

The request for reconsideration the subject of 1438/13 related only to s 16, the parties only raised s 16 as the relevant issue in their filed Statements of Issues, the parties only negotiated with respect to s 16 and the consent orders only purported to resolve the s 16 claim. The AAT has never heard a left knee s 19 claim on its merits. In any event, even if Mr Novosel was seeking to relitigate a further s 19 claim, that would not have been an abuse of process.

86    Each of the errors identified by the applicants on this ground relate to the Tribunal’s reasoning at [9]-[10] of its reasons for decision.

87    In my view the applicant has not established any reviewable error in the Tribunal’s decision to dismiss application no. 2015/877 for the reasons which follow. Rather, as the respondent submits, the challenge ultimately amounts to dissatisfaction by the applicant with the merits of the Tribunal’s decision which is beyond the power of this Court to consider.

4.2.2    The applicant’s first proposition

88    Contrary to the applicant’s submission as to proposition 1 above, the Tribunal was plainly right in finding that it would have been open to it to make a decision about the s 19 issue if application no. 2013/1438 had proceeded to a hearing. In other words, in my view the Tribunal was seized of that issue in those earlier proceedings for the following reasons.

89    The first question is what powers did the Tribunal have on review under s 64 of the SRC Act with respect to application no. 2013/1438? The starting point is  43 of the AAT Act which provides that:

(1)    For the purpose of reviewing a decision, the Tribunal may exercise all the powers and discretions that are conferred by any relevant enactment on the person who made the decision and shall make a decision in writing:

(a)    affirming the decision under review;

(b)    varying the decision under review; or

(c)    setting aside the decision under review and:

(i)    making a decision in substitution for the decision so set aside; or

(ii)    remitting the matter for reconsideration in accordance with any directions or recommendations of the Tribunal.

90    Thus the Tribunal is vested by s 43(1) with the powers and discretions of the decision-maker whose decision is the subject of the application for review. On the other hand, as the Full Court held in Lees at [39], “[t]he AAT will not be authorised on review of a reviewable decision to exercise any powers and discretions which would not have been available to the determining authority at the second tier decision-making stage, albeit that such powers and discretions might have been available to the determining authority at the first tier decision-making stage” (emphasis added). Furthermore, those powers may be exercised under s 43(1) only “[f]or the purpose of reviewing” the reviewable decision. Thus as the Full Court also held in Lee at [37], the powers vested in the Tribunal by s 43 of the AAT Act are not powers exerciseable at large. In short, therefore, the Tribunal was required to make the correct and preferable decision at the time that it made its decision (Shi v Migration Agents Registration Authority [2008] HCA 31; (2008) 235 CLR 286), standing in the shoes of the decision-maker from whom the application for review is brought.

91    Applying these principles, the reviewable decision here was the decision of the reviewing officer under s 62 of the SRC Act to reconsider the determination made on 30 October 2012 by Comcare’s delegate. The October 2012 determination, in turn, dealt both with any claim for medical expenses under s 16 and for incapacity under s 19, as the applicant’s counsel accepted (see above at [54]) It was that decision which was therefore reconsidered and affirmed by the reviewing officer on 5 February 2013 (see above at [58]). It follows that, by virtue of s 43 of the AAT Act it was open to the Tribunal also to reconsider the question of liability under s 19 of the SRC Act, as well as the question of liability under s 16 of the SRC Act.

92    It is true, as the applicant submits, that his request for reconsideration of the October 2012 determination pursuant to s 62(2) referred only to the denial of liability to pay medical expenses by the first tier decision-maker (see above at [56]). However, that represents no more than a forensic decision made by him at the time of making the request to challenge only that matter on the reconsideration. It does not mean that liability under s 19 could not also have been reconsidered by the reviewing officer under s 62, given that liability under s 19 had been the subject of the first tier decision, as in fact the reviewing officer did in affirming the first tier decision (see above at [58]). The terms of the request to reconsider, in other words, did not fetter the scope of the reviewing officer’s powers as Comcare submits. Accordingly, while the Tribunal should not embark upon any matter not properly before the original decision-maker, as Hill J held in Casarotto v Australian Postal Commission (1989) 86 ALR 399 at 402:

…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 added)

93    Similarly in Comcare v Lofts [2013] FCA 1197; (2013) 217 FCR 220 (Lofts) at [78], Mortimer J referred with apparent approval to a concession made by Comcare that “it was possible for the first two tiers of decision-making to involve claims only under s 14 and other provisions of the SRC Act, for a decision only to be made in respect of s 14 and yet for the Tribunal to have jurisdiction in respect of all claims made.” As her Honour continued, “[i]t all depends on what was ‘put before’ the decision-maker” in the sense that reflects the statutory scheme, that is, the requirements of ss 54, 61 and 62 and the limits and qualifications imposed by other compensation provisions: Lofts at [78]-[79].

94    The s 19 issue having been the subject of the first and second tier decisions, it follows that it was not beyond the Tribunal’s power to make a decision on liability under s 19 of the Act, as well as liability under s 16. The fact that the applicant’s statement of facts and issues filed in the Tribunal did not raise the s 19 issue (see above at [60]) does not mean that the applicant could not have done so if he had so wished once he received the second Oakeshott report or otherwise. As Comcare submits, “the contents of a party’s Statement of Issues does not fetter the Tribunal’s jurisdiction.”

95    It follows that the applicant’s challenge to the first proposition (as set out at [84] above) is based upon a misunderstanding of the statutory framework applicable to Comcare’s and the Tribunal’s decision-making processes.

4.2.3    The applicant’s second proposition

96    Equally, there is no error in the Tribunal’s finding that the consent decision made on 1 May 2014 in no. 1438/2013 must be taken to have resolved the s 19 issue in Comcare’s favour notwithstanding that it was not referred to in the consent decision.

97    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. That this implication is properly drawn is consistent with the notation at the end of the consent decision that “Comcare will fund annual reviews for the applicant to consult with Dr Cassar, to monitor the progress of his left knee injury.” It is also consistent with the fact that the consent decision also notes that the only treatment presently required by the applicant for his left knee injury is “a self-managed exercise program” – a notation that, while dealing with the need for medical treatment, is nonetheless not suggestive of an ongoing incapacity for the purposes of the Act. That the Tribunal may reject a claim by implication was rightly accepted by Mortimer J in Lofts at [80].

98    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. That being so, it is difficult to see any utility in the applicant’s submissions on this point. As Comcare submits:

…one only has to ask what benefit (if any) the applicant would obtain if he could establish that a claim for incapacity was not the subject of the reviewable decision dated 5 February 2013? What would be left? The only situation which would obtain is that the applicant, through his solicitors, would have left standing earlier decisions made by Comcare that he was not entitled to compensation for incapacity under s 19 of the SRC Act. This would not help him in the present case because the effect of leaving an adverse decision on foot is effectively the same as an express or implied affirmation of that decision in a consent decision of the Tribunal.

4.2.4    The applicant’s third proposition

99    Bearing in mind the difficulties with the applicant’s challenge to the first and second propositions, the applicant has 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.

100    First, it will be recalled that the applicant’s argument before the Tribunal in support of re-opening the issue of s 19 liability despite the consent decision in no. 2015/877, was the alleged reversal of opinion by Professor Oakeshott in his second report. It is true that the second Oakeshott report was not in existence when the first and second tier decisions in application no 2013/1438 were made. However, as the Tribunal found, that report was in existence for more than five months before the consent decision was made by the Tribunal in that application on 1 May 2014 (Tribunal reasons at [9]). That being so, it was open to the Tribunal to consider that the applicant had had ample opportunity to take Professor Oakeshott’s second report into account in reaching the agreement embodied in the consent decision made by the Tribunal in 2013/1438 and to regard the applicant’s attempt to raise the issue again in application no. 2015/877 as an attempt to relitigate the issue where there was no material change in circumstances that might justify doing so. In this regard, fairly read in its context, I consider that the Tribunal used the term “re-litigate” loosely to refer to the applicant’s repeated attempts to bring s 19 claims with respect to the left leg injury and not in any technical sense of litigation in a court.

101    Secondly, while the applicant alleges that the parties did not negotiate or reach a settlement with respect to the s 19 issue in application no. 2013/1438, the applicant did not refer to any direct evidence as to the subject matter of the negotiations in support of that submission. In this regard, contrary to the assertion in the applicant’s submissions, the Tribunal made no finding “that s 19 was not the subject of negotiations leading to the consent orders of 1 May 2014”. Furthermore, to the extent that the applicant invited the Court to infer that the negotiations did not touch upon the s 19 issue, I consider that no adequate basis for the inference has been established given in particular that the Tribunal was seized of the issue of s 19 liability for reasons earlier explained and that the applicant was legally represented.

102    Thirdly, the applicant’s reliance upon the fact that the Tribunal had not at any time considered and determined the merits of his claim under s 19 of the SRC Act with respect to his left knee is not to the point. The Tribunal plainly had power summarily to dismiss the proceedings under s 42B of the AAT Act. The question is whether it did so in accordance with law. The submission also overlooks the fact that the applicant’s claim for compensation under s 19 was considered on its merits by Comcare in the first and second tier decisions which led to AAT application no. 2015/877, albeit that the applicant is dissatisfied with the outcome of those determinations. As to the previous decisions covering s 19 liability for the left knee, there was no obligation upon the Tribunal to determine whether Comcare was liable under s 19 on its merits in circumstances where the applicant had either withdrawn his s 19 claim or a consent decision was made with respect to that issue in those earlier proceedings.

103    Further and in any event, 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. As the respondent contends, “[i]t would be contrary to the intention of the legislature in enacting a range of alternative dispute resolution mechanisms to conclude that a consent decision is any less final than a decision that has been dealt with on the merits.” That Parliament so intended is supported by the fact that a consent decision can be made under s 34D(1) of the AAT Act only where neither party has notified the Tribunal that she or he wishes to withdraw from the agreement within a seven day “cooling off” period after agreement is reached and the Tribunal is satisfied that a decision giving effect to the agreement is within its powers. Nor as the respondent contends, did the applicant at any time seek judicial review of any of the earlier consent decisions, or to reinstate any of his withdrawn applications under s 42A(10) of the AAT Act.

4.2.5    The conclusion that application no. 2015/877 was an abuse of process

104    It has long been held in the context of judicial proceedings that the categories of abuse of process are not closed: 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). Rather, as Gaudron J explained in Ridgeway v The Queen (1995) 184 CLR 19 at 75 (in a passage quoted with approval in Batistatos at 266-267 [14] (Gleeson CJ, Gummow, Hayne and Crennan JJ)):

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.

105    Nonetheless certain categories are well-established. As Justice McHugh observed in Rogers v R [1994] HCA 42; (1994) 181 CLR 251 at 286:

…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’.

106    In line with these principles, 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.

107    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.

108    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.

109    The applicant, however, relied upon the fact that a claimant may lodge further claims even after an adverse decision of the Tribunal in line with the object of the SRC Act to allow progressively for ongoing relief where circumstances change (see above at [14]). In other words, the Tribunal and original decision-makers did not have power to make a decision that extended beyond the date of the decision: Plumb v Comcare (1992) 39 FCR 236 (Plumb) at 240 (Lockhart J (with whose reason Black CJ and Gummow J agreed)). Thus, as Cooper J held in Australian Postal Corporation v Oudyn [2003] FCA 318 (Oudyn), a determination under a section of the SRC Act:

33.    …operates in respect of the claim then in existence for the payment of compensation under that section. It does not operate as a bar to future claims in respect of that injury if the circumstances under the section can be made out again in the future, or if it can be brought under another applicable section of the Act.

34.    [The determining authority] cannot bind itself in advance to reject any future application on the basis of a determination made to cease payment of compensation for an injury under a particular section of the Act: Plumb v Comcare (1992) 39 FCR 236 (FC) at 240.

(See also e.g. Australian Postal Corporation v Mowbray [2003] FCA 1258; (2003) 134 FCR 179 at [28] (Stone J)

110    The short answer to the applicant’s submission, however, is that 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: see by analogy Batistatos at [63]-[65]. Thus authorities such as Plumb and Oudyn do not assist where, as here, the Tribunal found that there was no new evidence warranting a further decision contrary to the applicant’s submission.

111    The applicant also submitted that:

There was no evidence from Comcare that it had negotiated with respect to s 19 (which it had not), nor that it had acted on the basis that it considered it was settling a claim with respect to s 19 (which it did not) or that it was prejudiced in any way by the manner in which it had agreed to the consent orders (which it was not). The only “palpable prejudice” Comcare identified was that it might have to pay a legitimate claim…

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).

113    Finally, I do not consider that there is any merit in the suggestion by the applicant that in effect the Tribunal wrongly applied principles of issue estoppel and res judicata. It is plain from the Tribunal’s acceptance at the critical point of its reasoning of the statement in Quinn that it “should not generally allow relitigation of issues already decided” that the Tribunal did not consider it was bound to dismiss the application because the applicant sought to relitigate issues already resolved by earlier Tribunal decisions.

114    That being so and having regard to the matters considered at [88]-[103] above, it cannot in my view be said that the Tribunal fell into reviewable error in determining that in the circumstances, the applicant’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. It was open to the Tribunal in law to find that the second Oakeshott report did not provide a sufficient reason for the applicant to relitigate the s 19 liability for his left knee determined by consent in 2013/1438.

4.3    Did the Tribunal err in considering that application 2015/877 had no reasonable prospects of success in any event?

115    As I have earlier explained, it is unnecessary to consider whether the Tribunal erred in dismissing the application for review on the ground that it had no reasonable prospects of success given that the applicant has not established any reviewable error in the Tribunal’s finding that application no. 2015/877 constitutes an abuse of process. However, I note that the applicant took issue with the Tribunal’s finding relevantly at [11] that Associate Professor Oakeshott’s first report “was not the only evidence that was unfavourable to Mr Novosel” and that “there would appear to be no new evidence to suggest that the result would be different if the current application were to proceed”. Specifically the applicant submitted that “[t]his was not a case where there was any doubt about the merits of the applicant’s case on incapacity. In fact, on the available evidence he was bound to win.” That submission cannot, with respect, be sustained. As the respondent submits, the T-documents containing the medical reports which were summarised earlier, were before the Tribunal (as the applicant acknowledged), and they reveal the existence of evidence that was open to the Tribunal to regard as unfavourable to the applicant. It follows that there is no substance to the applicant’s submission that there was no evidence that the Tribunal could have found was unfavourable to him and the submission ultimately amounts to an impermissible invitation to this Court to embark upon a review of the merits of the applicant’s claim.

5.    CONCLUSION

116    For the reasons set out above, the appeal and application for judicial review must be dismissed with costs. The applicant has failed to establish any reviewable error on the part of the Tribunal in summarily dismissing his application no. 2015/877 on the ground that it was an abuse of the process of the Tribunal within the meaning of s 42B(1)(c) of the AAT Act.

Associate:

Dated:    26 May 2017