Filsell and Comcare [2009] AATA 90; (2009) 109 ALD 198; (2009) 49 AAR 506 (12 February 2009)

Last Updated: 4 November 2010

ADMINISTRATIVE APPEALS TRIBUNAL

No: 2007/4777

GENERAL ADMINISTRATIVE DIVISION

Re: Jeffrey Filsell
Applicant

And: Comcare
Respondent

CORRIGENDUM TO DECISION NO. [2009] AATA 90

TRIBUNAL: Deputy President D G Jarvis

DATE: 13 February 2009

PLACE: Adelaide

The Tribunal directs the Registrar, pursuant to subsection 43AA(1) of the Administrative Appeals Tribunal Act 1975 (Cth), to alter the text of the decision in the interlocutory application by amending an incorrect reference to the Administrative Appeals Tribunal Act 1975 (Cth) in the third to last line of paragraph 59 from section “45B” to “42B”.

(Signed)
D G Jarvis
(Deputy President)

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2009] AATA 90

ADMINISTRATIVE APPEALS TRIBUNAL )

) No 2007/4777

GENERAL ADMINISTRATIVE DIVISION		)
	Re		JEFFREY FILSELL

Applicant

And

COMCARE

Respondent

DECISION

Tribunal

Deputy President D G Jarvis

Date 12 February 2009

Place Adelaide

Decision

The tribunal refuses the respondent’s application to dismiss the application for review pursuant to s 42B of the Administrative Appeals Tribunal Act 1975 (Cth).

D G Jarivs
(Signed)
Deputy President

CATCHWORDS

COMPENSATION – Commonwealth employee – liability accepted for physical injury – subsequent claim for psychiatric injury caused by employment – rejection of claim affirmed by consent decision of AAT – new claim for psychiatric injury – held that AAT not functus officio – new evidence that injury was employment related – relevance of new evidence and justice of the case – effect of consent decision on future claim for same asserted injury – validity of consent decision – cause of action estoppel and issue estoppel do not apply to application for review of subsequent reviewable decision made under Safety, Rehabilitation and Compensation Act – general principle that applicants may not re-visit issues previously determined by AAT – Tribunal not satisfied that later proceedings are frivolous or vexatious.

PRACTICE AND PROCEDURE – Commonwealth employee – liability accepted for physical injury – subsequent claim for psychiatric injury caused by employment – rejection of claim affirmed by consent decision of AAT – new claim for psychiatric injury – held that AAT not functus officio – principles applicable to applications to dismiss proceedings as frivolous or vexatious – general principle that applicants may not re-visit issues previously determined by AAT – fresh evidence that injury was employment related – relevance of new evidence and justice of the case – effect of consent decision on future claim for same asserted injury – validity of consent decision – cause of action estoppel and issue estoppel do not apply to application for review of subsequent reviewable decision made under Safety, Rehabilitation and Compensation Act – Tribunal not satisfied that later proceedings are frivolous or vexatious.

Safety, Rehabilitation and Compensation Act 1988 (Cth), ss 4, 14 and 62

Administrative Appeals Tribunal Act 1975 (Cth), ss 42B and 42C

Abrahams v Comcare [2006] FCA 1829; (2006) 93 ALD 147

Administration of Papua and New Guinea v Daera Guba [1973] HCA 59; (1973) 130 CLR 353

Attorney-General v Wentworth (1988) 14 NSWLR 481

Australian Postal Corporation v Oudyn [2003] FCA 318; (2003) 73 ALD 659

Blair v Curran [1939] HCA 23; (1939) 62 CLR 464

Bogaards v McMahon [1988] FCA 161; (1988) 80 ALR 342

Chamberlain v Deputy Commissioner of Taxation [1988] HCA 21; (1988) 164 CLR 502

Comcare v Mooi (1996) 69 FCR 439

General Steel Industries Inc v Commissioner for Railways (NSW) [1964] HCA 69; (1964) 112 CLR 125

Hart v Comcare [2005] FCAFC 16; (2005) 145 FCR 29

Kuligowski v Metrobus [2004] HCA 34; (2004) 220 CLR 363

Morales v Minister for Immigration and Multicultural Affairs [1998] FCA 334; (1998) 82 FCR 374

Pitt v OneSteel Reinforcing Pty Ltd [2008] FCA 923

Plumb v Comcare [1992] FCA 595; (1992) 17 AAR 1

Port of Melbourne Authority v Anshun Pty Ltd [1981] HCA 45; (1981) 147 CLR 589

Re Brian Lawlor Automotive Pty Ltd and Collector of Customs (NSW) (1978) 1 ALD 167

Re Jebb and Repatriation Commission [2005] AATA 470; (2005) 86 ALD 182

Re Kowalski and Repatriation Commission [2008] AATA 903

Re Lewis and Comcare [2000] AATA 158

Re Matusko and Australian Postal Corporation [1995] AATA 14; (1995) 21 AAR 9

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

Re Rana and Military Rehabilitation and Compensation Commission [2008] AATA 558; (2009) 104 ALD 595

Re Slater and Telstra Corporation Limited [2005] AATA 527; (2005) 40 AAR 369

Shi v Migration Agents Registration Authority [2008] HCA 31; (2008) 103 ALD 467

Singh v Secretary, Department of Employment and Workplace Relations [2007] FCAFC 174; (2007) 46 AAR 447

Wong v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 81 ALD 109

D Pearce, Administrative Appeals Tribunal (2nd Edition, 2007)

R Creyke and P Sutherland, Veterans’ Entitlements Law (2nd Edition, 2008)

J O Ballard and P Sutherland, Annotated SRC Act 1988 (8th Edition, 2007)

REASONS FOR DECISION

12 February 2009

Deputy President D G Jarvis

1. The applicant, Jeffrey Filsell, was an employee of the former Department of Finance and Administration. On 6 March 1995 he sustained an injury at work that resulted in pain in his neck and shoulders. He claimed for compensation in respect of that injury pursuant to the Safety, Rehabilitation and Compensation Act 1988 (Cth) (SRC Act), and the claim was accepted by Comcare.
2. In October 1997 Mr Filsell made a further claim for a psychological injury arising from his employment. Comcare rejected that claim, and its rejection was affirmed on reconsideration in June 1998. Mr Filsell then applied to this tribunal for review of the decision on reconsideration. That application was resolved by a consent decision dated 6 July 1999, in which a senior member of this tribunal affirmed the decision on reconsideration, and noted that Comcare had agreed to pay certain costs and disbursements.
3. In June 2006 Mr Filsell made a further claim for compensation for depression and anxiety. His claim referred to a letter dated 23 May 2006 from Dr A C Roberts, which certified that those conditions were a consequence of the injury to his neck and shoulder on 6 March 1995 and work related stress (T146, pages 345 and 349, and T143, page 336). This further claim was rejected by Comcare on the basis that the issues raised in the claim had been dealt with in the 1997 claim, when that claim was resolved by the reconsideration decision of June 1998. The rejection of the 2006 claim was affirmed on reconsideration in October 2006, on the grounds that the review officer was not satisfied that Mr Filsell had suffered a disease for the purposes of the SRC Act (T159, page 375).
4. A review officer subsequently revoked that affirming decision in September 2007 in a reconsideration on own motion, on the grounds that the subject of the 2006 claim was the same injury as that for which compensation had been claimed in the 1997 claim, and that later claim had been determined by Comcare, and this tribunal had affirmed the decision to reject the claim, so that the issue of the liability of Comcare for the claimed psychological condition had been finally determined adversely to Mr Filsell. The review officer, having revoked the determination of October 2006 for those reasons, decided not to substitute a determination in place of the determination so revoked, as the claim had been previously made and finally determined (T22, page 566).
5. Mr Filsell applied to this tribunal for review of the decision of September 2007. Comcare subsequently applied, pursuant to s 42B of the Administrative Appeals Tribunal Act 1975 (Cth) (AAT Act), to dismiss Mr Filsell’s application on the grounds that it is frivolous or vexatious.

ISSUES BEFORE THE TRIBUNAL

6. The issues before the tribunal are as follows:

(a) whether the 2006 claim involves the same injuries and issues as the 1997 claim;
(b) if so, whether this tribunal is functus officio;
(c) whether the consent decision of 6 July 1999 was a valid exercise of the tribunal’s powers under s 42C of the AAT Act;
(d) whether the current proceedings are barred by the doctrines of res judicata, issue estoppel or Anshun estoppel; and
(e) whether Mr Filsell’s application for review should be dismissed on the grounds that it is frivolous or vexatious.

BACKGROUND

7. In the first claim for compensation for work related stress, being the claim made in October 1997, Mr Filsell described his injury or illness as follows:

“Neck injury already accepted. Psychological trauma of subsequent events are known by D.A.S. and have been profound as Retrenchment followed as a direct result of injuries!!” (T25, page 61)

He stated that the part of his body that was affected was “psychological”, and described his injury or illness as “stress”. The claim was supported by a medical certificate from Dr Z M Baran, in which the doctor diagnosed Mr Filsell’s condition as “anxiety disorder resultant upon physical injury” (T24, page 58). Mr Filsell had been retrenched on 25 July 1996.

8. In Mr Filsell’s second claim for work-related stress, being the claim of June 2006, he described his injury or illness as:

“Chronic depression and anxiety exacerbated by anger following employer’s behaviour in the workplace as a result of severe neck injury (diagnosed as Myalgia (over C7)).” (T146, page 345)

9. This second claim for work-related stress specifically referred to depression, but the first claim referred only to a diagnosis of anxiety disorder. However, various medical reports had been lodged with this tribunal prior to the making of the consent decision in July 1999 in the earlier proceedings, and the question of whether Mr Filsell was suffering from depression, or some other psychiatric condition apart from anxiety, was canvassed in those reports. I now refer to certain relevant aspects of those reports.
10. There is a reference to “occupational stress” in a report dated 17 March 1995 from Mr J Malcolm, a psychologist (T6, page 8), but the first reference to depression is contained in a report dated 24 April 1996 from Dr Nigel Richards, an Australian Government Health Service medical adviser. In that report, Dr Richards makes a working diagnosis of “(o)bsessive, conscientious, obsessional personality traits with associated anxiety manifest in the work place”, but in a list of Mr Filsell’s symptoms, he includes “(o)ngoing anxiety and depression particularly when considering his dealings with his employer over the last two years” (T11, page 19).
11. In a report of 12 November 1997, Mr Rinaldi, a psychologist, refers to some “depressive symptomatology” and to tests that indicated a diagnosis of adjustment disorder, with personality factors contributing to the severity of his reaction to workplace stress (T31, pages 76 – 82).
12. In a report dated 22 March 1999 obtained at the request of Mr Filsell’s then solicitor, Dr Peter Black, a psychiatrist, found on examination that Mr Filsell was suffering from a reactive depression that was work-related (T123, pages 284 – 292).
13. The T-Documents include other reports to Comcare that refer to a diagnosis not of depression and anxiety, but of obsessive compulsive personality disorder. Diagnoses to that effect, or referring to personality traits, are referred to in a report dated 27 May 1996 from Mr Keith Smith, a psychologist (T12, pages 22 – 23), the report of Dr Nigel Richards of 24 April 1996 to which I referred above (T11, at page 16), reports provided in February 1998 and 3 June 1999 by Dr M Ewer (T51, pages 134 – 142 and T125, pages 296 – 300), and a report of Dr Z Baran of 22 April 1998. In this last report, Dr Baran says:

“Whilst Mr Filsell may have had pre-existing obsessive personality traits there is no doubt that the injury sustained on the 6th March 1995 triggered a anxiety disorder.” (sic) (T119, page 276)

14. In a letter dated 3 June 1998 to a South Australian senator, a psychologist, Joan Chataway recorded that she had seen Mr Filsell on two occasions in May 1998, and that he was showing signs of severe stress and anxiety resulting from his perceived unjust treatment from DAS and Comcare. After describing his symptoms and concerns, she referred to the usual psychological treatment for post-traumatic stress disorder (PTSD). However, if she intended by that reference to convey that her diagnosis was PTSD, no such diagnosis was made by any other practitioners.
15. The T-Documents also contain copies of communications passing between Mr Filsell and Comcare and the solicitors for each party that refer to the basis of Mr Filsell’s claim, and Comcare’s response. The proceedings in this tribunal were eventually settled, and the T-Documents include a copy of the consent decision made by this tribunal on 6 July 1999. This consent decision reads as follows:

“In accordance with section 43 of the Administrative Appeals Tribunal Act 1975, the Tribunal affirms the decision of the respondent dated 16 June 1998.
The Tribunal also notes that:

1. the applicant acknowledges that he has no further claim or entitlement pursuant to the Safety, Rehabilitation and Compensation Act 1988; and
2. the respondent is to pay the applicant’s costs of representation incidental to the application and disbursement, such costs and disbursements being agreed in the sum of $5,000.00 plus payment of the account of Dr P. Black, psychiatrist.”
16. As the tribunal’s file in relation to the earlier proceedings has been destroyed, I asked Comcare’s solicitors to provide any evidence that might now be available to the effect that the competing opinions of Dr Black and Dr Ewer had been taken into account prior to the making of the consent decision. I was subsequently provided with a bundle of copy correspondence and other documents that preceded that consent decision. This bundle included a copy of the applicant’s Statement of Facts, Issues and Contentions, and of correspondence from the then solicitors for Comcare which referred to the negotiations that led to the settlement of the earlier proceedings.

APPLICATION TO DISMISS PRESENT PROCEEDINGS

17. Comcare made an earlier application to dismiss Mr Filsell’s current application pursuant to s 42B of the AAT Act. I did not grant that application, but directed Mr Filsell to lodge and serve a copy of any medical report(s) or medical certificate(s), other than reports or certificates already in the possession of the tribunal and Comcare’s solicitors, on which he intended to rely in support of his present application. I also suggested that certain further issues should be investigated at pre-hearing conferences, including whether the medical conditions now asserted are a continuation of the medical conditions that were the subject of the earlier proceedings, and whether Mr Filsell had become aware of relevant facts that were not in his possession at the time of the settlement of the earlier proceedings, and if so, the nature of those facts, and when he became aware of them.
18. In a written response received on 21 May 2008, Mr Filsell made a number of assertions, including that his current medical condition had been “markedly exacerbated and aggravated” by the settlement of the earlier proceedings, as well as the failure to resolve the issues over a very long period of time. He also referred to his perceiving the settlement as “reneging and dis-honouring of the respondent’s offer to refund Costs”. He said further that he had agreed to sign the settlement documents because he had been “bullied” into complying with various conditions of his claim, and referred by way of example to attending a psychiatrist of Comcare’s choice, and accepting the rejection of his initial claim by an “incompetent and grossly offensive” claims officer. He said further that “undue duress” had been applied, and referred to the psychological and emotional effects of the conduct of the claim and asserted that Comcare had reneged on an offer. He said his current medical condition had been diagnosed as “permanent PTSD and Dysthymia”, and described it as “a serious aggravation and exacerbation of the anxiety and depression, immediately followed by my being ‘cheated’ out of my rightful entitlements and and understandable expectation of Costs being refunded” (sic). He said that the timing of the onset of his exacerbated, more serious condition was almost immediately following the settlement of the earlier proceedings, a very serious family illness and traumatisation resulting from the conduct of the claim.
19. Following the hearing of the first strike out application, Mr Filsell also provided copies of certain further medical reports, correspondence and notes, including notes from Comcare and DASFLEET, a medical certificate dated 9 March 1995, reports and letters from the Physical Disability Council of South Australia, the president of a rate payers association, and reports from Doctors Nicholson, Phan and Larwood, and Mr L Guglielmin, a psychologist. In a report dated 22 November 2007, Dr Larwood diagnosed a depressive illness. In a report dated 14 January 2009 Mr Guglielmin diagnosed major depression coupled with significantly elevated anxiety, and in an earlier report of 25 November 2007 he concluded that Mr Filsell was suffering from a severe depressive illness.
20. Certain other updated medical information is included in the T-Documents relating to the present proceedings. I refer first to a form completed on 8 January 2007 by Dr A C Roberts, who has been Mr Filsell’s GP for the preceding six years. He describes Mr Filsell’s symptoms as anxiety and depression, which he relates to ongoing unresolved issues with Mr Filsell’s employer, and recommends counselling from a psychologist and anti-depressant medication if needed.
21. Dr Roberts referred Mr Filsell to Mr S Litt, a psychologist and hypnotherapist. He provided a report dated 21 February 2007, in which he records the result of two different diagnostic tests used by psychologists. He reports that the tests revealed various symptoms including anxiety, dysthymia, PTSD, depression and paranoia. He expressed his conclusion as follows:

“In my belief, Mr Filsell does have an on-going depression which I believe is a direct result of his treatment in the workplace and the non-resolution of these issues.” (T179, page 433)

22. Comcare’s solicitors also obtained a further report, dated 17 June 2008, from Dr Nigel Richards, in which he reverses the opinion he had expressed in his report of 19 April 1996 (see paragraph 10 above). In his 2008 report, Dr Richards explains that he is not a psychiatrist, but over the last twenty years he had seen more than 10,000 people with different psychiatric conditions whose treatment programs he had been asked to independently assess for the Commonwealth. He said that in his opinion, Mr Filsell was suffering from dysthymic disorder, and that he had developed a personality disorder whilst working for the Commonwealth. He also concluded that Mr Filsell’s current condition was the same condition, or a continuation of the same condition, as that with which he had presented in 1996 and 1998. He also said that in his opinion Mr Filsell was not suffering from PTSD, because although he exhibited a number of the symptoms of that disorder, he had not been exposed to a life-threatening event or risk of serious physical trauma. He further commented that Mr Filsell’s personality traits had made him susceptible to psychological reaction to unusual work-place stressors.
23. Comcare subsequently again applied to dismiss the present proceedings, and its counsel, Mr Roder SC, re-iterated his earlier argument to the effect that Mr Filsell’s 2006 claim is based on the same condition and on the same employment events as his earlier claim, that that claim had been determined by the consent decision made by this tribunal on 6 July 1999, and Mr Filsell could not now re-litigate the same claim.

LEGISLATIVE SCHEME

24. Section 14(1) of the SRC Act provides for compensation for injuries, and provides as follows:

“14(1) 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.”

25. Section 4(1) of the SRC Act defines “injury” to include “a disease suffered by an employee”. The expression “disease” is defined as follows:

“disease means:
(a) any ailment suffered by an employee; or
(b) the aggravation of any such ailment;
being an ailment or an aggravation that was contributed to in a material degree by the employee’s employment by the Commonwealth or a licensed corporation.”

26. The word “ailment”, which is used in paragraph (a) of the definition of “disease”, is defined in s 4(1) to mean “any physical or mental ailment, disorder, defect or morbid condition (whether of sudden onset or gradual development)”.
27. Section 53 of the SRC Act provides in effect that the Act does not apply in relation to an injury to an employee unless notice in writing of the injury is given to the relevant authority within certain time frames. Section 54 then provides in effect that compensation is not payable to a person under the Act unless a claim for compensation is made by or on behalf of the person under that section.
28. The Act then includes various machinery provisions to facilitate the consideration of claims, and goes on to provide that the determining authority must notify the claimant in writing of the determination and the reasons for it, and that a claimant who is dissatisfied with the determination may request a reconsideration.
29. Section 62 provides for the reconsideration of determinations. The determining authority may, on its own motion, reconsider a determination made by it, and the claimant, the Commonwealth or a Commonwealth authority affected by a determination may request a determining authority to reconsider a determination made by it. The section goes on to provide that the reconsideration must be made by a person other than the person who made the primary determination, and the person who reconsiders a determination may affirm or revoke the primary determination, or vary it in such manner as he or she thinks fit.
30. The Act then requires the person who made the decision on reconsideration to notify the claimant in writing of that decision, and of the claimant’s rights to apply to this tribunal for review of the decision so notified.
31. Under s 42B of the AAT Act, this tribunal has a discretion to dismiss an application if it is satisfied that the application is frivolous or vexatious.
32. Section 42C of the AAT Act gives this tribunal a discretion to make a decision to give effect to an agreement arrived at between the parties, without holding or completing a hearing, if “the Tribunal is satisfied that a decision in those terms or consistent with those terms would be within the powers of the Tribunal.”

CONSIDERATION

Are the present proceedings frivolous or vexatious?

33. Comcare contends that the present proceedings should be dismissed under s 42B of the AAT Act, on the grounds that the proceedings are frivolous or vexatious. I think that applications for dismissal under s 42B should be approached according to the following principles.

(a) The word “frivolous” in combination with “vexatious” is a technical legal term, which means that there is no legal basis for the proceedings; it does not necessarily connote that an applicant has acted frivolously in bringing proceedings: Pitt v OneSteel Reinforcing Pty Ltd [2008] FCA 923 at [9].

(b) The expression “vexatious” can include proceedings brought with the intention of annoying or embarrassing or harassing the other party, or for some collateral purpose other than having the court or tribunal adjudicate on the issues raised by the proceedings, or, irrespective of the motive of the litigant, if the proceedings are “so obviously untenable or manifestly groundless as to be utterly hopeless”: Attorney-General v Wentworth (1988) 14 NSWLR 481 at 491 per Roden J, or if the proceedings have “no reasonable prospect at all of success”: Abrahams v Comcare [2006] FCA 1829; (2006) 93 ALD 147 at [24], per Madgwick J.

(c) The power of the tribunal to dismiss proceedings under s 42B is a power that should be used cautiously. Unless the tribunal is satisfied that the application is frivolous or vexatious in the sense referred to in subparagraphs (a) and (b) above, an applicant should not be denied the right to have the tribunal review the decision in issue on the merits, by conducting a hearing de novo and considering the evidence that the applicant can properly adduce at that hearing: General Steel Industries Inc v Commissioner for Railways (NSW) [1964] HCA 69; (1964) 112 CLR 125 at 129 – 130.

(d) However, if proceedings have no reasonable prospect at all of success, they should be dismissed under s 42B, since it would be futile for the proceedings to continue, and inappropriate to use the time and resources of this tribunal, and to put the respondent to the expense that would be involved in the matter proceeding to a hearing.

(e) Conversely, applications to dismiss under s 42B should not be made except in appropriate cases, since otherwise the parties will be put to additional expense, the tribunal’s time and resources will be wasted, and the tribunal’s ability to provide a mechanism of review that is fair, just, economical, informal and quick (as required by s 2A of the AAT Act) will be impeded.

(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.

(g) Section 42B presupposes that the tribunal has jurisdiction, since it empowers the tribunal to dismiss the application, and also in appropriate cases, to direct that the applicant must not, without leave of the tribunal, make a subsequent application to the tribunal of a kind or kinds specified in the direction. If the tribunal has no jurisdiction to review the decision in question, it would not have power to take the steps contemplated by s 42B.

34. In the present matter, it has not been contended on behalf of Comcare that the proceedings are frivolous or vexatious in the sense that they have been instituted frivolously or with the intention of annoying or embarrassing Comcare, or that they have been brought for a collateral purpose; rather, it is contended that the proceedings have no reasonable prospect of success, so that it would be futile for the proceedings to continue. I will now refer to a number of issues relevant to that contention.

Does the 2006 claim involve the same injuries and issues as the 1997 claim?

35. I have referred in some detail above to the medical reports that had been obtained in relation to the 1997 claim. Whereas that claim initially related to an anxiety disorder, it was clear that prior to the consent decision of 6 July 1999 Mr Filsell had been diagnosed as suffering from depression as well as anxiety, and that his claim was treated as extending to both conditions.
36. Mr Filsell, who represented himself, contends that the conditions from which he is now suffering are different from the conditions that were the subject of his earlier claim. I note that the most definitive diagnosis referred to in the reports on which Mr Filsell relied in the earlier proceedings was the diagnosis of Dr Black, who referred to a reactive depression using the terminology of the 10th revision of the International Classification of Diseases (ICD). I also note that of the reports on which Mr Filsell currently relies, the most definitive diagnosis is that made by Dr Richards in his report of 17 June 2008, where he says that Mr Filsell meets the diagnostic criteria for dysthymic disorder in Diagnostic and Statistical Manual of Mental Disorders (Fourth Edition) (DSM-IV), and adds that Mr Filsell does not meet the diagnostic criteria for major depressive disorder or PTSD.
37. I have not been provided with the relevant extracts of the ICD or DSM-IV, and neither party addressed any detailed submissions to me on the differences between the conditions referred to by Dr Black and by Dr Richards. However, other medical reports refer merely to depression or symptoms of depression. I consider that the injuries that were the subject of the earlier claim and the current claim should in each case properly be described generally as anxiety and depression, and that any detailed differences in the diagnostic criteria for the very specific diagnoses arrived at by Dr Black and recently by Dr Richards and Dr Guglielmin would not produce the result that the current claim is for different injuries than the earlier claim.
38. Mr Filsell also referred to references in certain reports to the effect that he was suffering from symptoms of PTSD, and said that he was not claiming “full on” PTSD, but “symptoms”. Such a claim might be available, having regard to the analysis in Comcare v Mooi (1996) 69 FCR 439 of what constitutes a compensable disease, but it is not clear from the evidence currently available that the “symptoms” on which Mr Filsell is relying are sufficiently different from the symptoms that constitute his diagnosed conditions of anxiety and depression. On the material now before the tribunal it seems to me that the claims for compensation that formed the basis of both the earlier and present proceedings in this tribunal relate to the same asserted injuries. As the consent decision in the earlier proceedings affirmed the decision on reconsideration of June 1998, the effect of the consent decision was that Comcare was not liable for the asserted injuries. The issue of liability for the asserted conditions also, of course, arises in the present proceedings.
39. In order to determine whether the new proceedings raise the same issues as the earlier proceedings, it is relevant to consider not only whether the new proceedings relate to the same injuries, but also whether the asserted relationship with employment is the same in each case. The reference in the 2006 claim form in response to the question: “What started the chain of events that led to your injury or illness? (see Question 20, T146, page 347) differs from the response to a corresponding question in the earlier claim form (see T25, page 62, Question 24), in that the 2006 claim form refers only to the physical injury on 6 March 1995, whereas the earlier claim form refers to earlier events resulting in stress. However, as I have said above, the description of injury in the earlier claim form refers to events subsequent to the neck injury, and the supporting medical certificate refers to a diagnosis of anxiety disorder resulting from physical injury. Further, the documents before the tribunal prior to the consent decision in the earlier proceedings make it clear that the asserted relationship with employment extended to events after, as well as before, the neck injury, and the claim in the present proceedings also relates to events subsequent to the neck injury. Mr Filsell also refers to other matters that have exacerbated his current conditions, but insofar as his present claim relates to relevant work related events, it does not appear to raise relevant issues that are materially different from the issues raised in his earlier claim. To that extent therefore the present proceedings involve the same issues as the earlier proceedings.
40. However, the present proceedings will involve evaluating updated medical evidence which was not before the Tribunal at the time of the consent decision in 1999. I refer in particular to the new report from Dr Nigel Richards, in which he reverses his earlier opinion as to diagnosis, and expresses the view that Mr Filsell is suffering from dysthymic disorder, and that this arose from his employment. New evidence as to the diagnosis of his psychological condition is also contained in the reports of Dr Roberts, Dr Larwood, Mr Litt and Mr Guglielmin (see paragraphs 19 - 22 above). This is not a case where the applicant is seeking to revisit a matter soon after the conclusion of an adverse decision by adducing new evidence that was reasonably available at the time of the earlier proceedings. The evidence in question consists of opinions from practitioners who only became involved with Mr Filsell’s treatment some time after the conclusion of the earlier proceedings, and in the case of Dr Richards, he has revised his earlier opinion more than twelve years after his first report. The evidence now relied upon by Mr Filsell is on its face cogent. It refers to Mr Filsell’s condition since the date of the consent decision. It supports the claim for compensation that has been made. It is likely to give rise to issues that did not exist at the time of that decision. Subject to other matters to which I will now refer, I consider that the new evidence is such that the consent decision should not prevent the applicant from proceeding with his present application, and I am not satisfied that the application is frivolous or vexatious within the meaning of s 42B of the AAT Act.

Is the tribunal functus officio?

41. After this tribunal has made and communicated its decision in relation to an application for review, it is functus officio; that is, it has discharged its statutory function of deciding the proceedings and has no further power in relation to the application before it (with certain exceptions, namely that under the “slip rule” powers conferred by s 43AA of the AAT Act, whereby the tribunal may direct the Registrar to alter a decision or its statement of reasons to correct an obvious error, and a decision under s 42D of the AAT Act to remit a matter to the decision-maker for further consideration might result in the hearing resuming, depending on whether the decision-maker affirms, or is deemed to affirm, the decision under review).
42. This tribunal was accordingly functus officio in relation to the earlier proceedings after it had made and communicated the consent decision of 6 July 1999.
43. However, the present proceedings arise from an application to review a different reviewable decision made by Comcare, namely the reconsideration on own motion made in September 2007. Mr Filsell was entitled by virtue of s 64 of the AAT Act to apply for review of that decision. This tribunal has not reviewed that decision, and accordingly is not precluded from doing so by the doctrine of functus officio: Plumb v Comcare (1992) 1 AAR 1 at 6 - 7.
44. As mentioned in paragraph 4 above, the review officer did not make a determination in substitution for the earlier determination to affirm the primary decision to reject to Mr Filsell’s 2006 claim. To that extent, the review officer failed to exercise his jurisdiction to review the primary decision. However, a failure by a second tier decision-maker to exercise his or her jurisdiction does not prevent this tribunal from exercising its powers of review under the AAT Act: Re Brian Lawlor Automotive Pty Ltd and Collector of Customs (NSW) (1978) 1 ALD 167, and see the definition of “decision” in s 60 of the SRC Act and s 3(3)(a) and (g) of the AAT Act, where this word is defined to extend to a refusal to make a decision.

Validity of consent decision of 6 July 1999

45. If the consent decision had been made without jurisdiction or was otherwise void, there would be no basis for Comcare’s contention that the tribunal could be estopped in the present proceedings from considering the issues that were the subject of the earlier proceedings. It is therefore appropriate to consider whether the consent decision made on 6 July 1999 was a valid exercise of the tribunal’s powers.
46. The decision purports to have been made in accordance with s 43 of the AAT Act. However, that section applies only where the application has been heard and determined by the tribunal. Where the parties reach agreement, and a decision is made by the tribunal to give effect to their agreement, the tribunal proceeds under s 42C of the AAT Act. Nevertheless, I find that the consent decision is not invalidated because it refers to the wrong section of the AAT Act. This was an obvious error, and the decision should be construed as if it referred to the correct section: see my discussion of the doctrine of falsa demonstratio non nocet in the context of this tribunal in Re Kowalski and Repatriation Commission [2008] AATA 903 at [133]. Further, in my opinion, this error in the consent decision could if necessary be corrected under s 43AA of the AAT Act (the “slip rule” provisions referred to in paragraph 41 above) whereby the tribunal has power to correct an obvious error in a decision.
47. The consent decision is also unsatisfactory in that it contains an acknowledgment that Mr Filsell has no further claim or entitlement pursuant to the SRC Act. It is not competent for decision-makers to make “cease liability” decisions, since if future circumstances occur which result in an entitlement to compensation for an injury, an employee of the Commonwealth would be entitled to make a new claim for compensation in respect of that injury notwithstanding that there might have been an intervening earlier period when there had been no incapacity or impairment, and so no entitlement to compensation: Australian Postal Corporation v Oudyn [2003] FCA 318; (2003) 73 ALD 659. However, the purported acknowledgment by the applicant that he had no further claim or entitlement under the SRC Act is not included in the operative part of the tribunal’s decision; rather, it appears as a note to the decision. That note reflects the minutes signed by the solicitors for the parties on which the consent decision was based, where the relevant acknowledgment is referred to as a matter to be noted, but once again, is not expressed to be an operative part of the agreement (see T126, page 301). I consider that the invalid reference in the minutes, and in the resulting consent decision, is merely an annotation which can be severed or disregarded, without affecting the validity of the operative part of either document.

Effect and relevance of consent decision of 6 July 1999

48. As mentioned in paragraph 9 above, Mr Filsell’s 2006 claim for work-related stress refers to depression and anxiety, whereas his 1997 claim made no reference to depression, and the supporting medical certificate referred to an anxiety disorder but not also to depression. Nevertheless, the claim form that he lodged in 1997 was expressed in terms broad enough to incorporate depression, and that diagnosis had been made by Dr Black prior to the settlement of the claim. It follows from Abrahams v Comcare [2006] FCA 1829; (2006) 93 ALD 147 at [18] that decision-makers have the power to consider a claim better explaining a claim previously made, provided there is not a fundamental change in the nature of the injury asserted. It is clear from the documents before me, to which I have referred above, that Mr Filsell’s 1997 claim was extended so as to include a claim for depression, and that claim was the subject of the competing opinions expressed by Doctors Black and Ewer prior to the settlement arrived at by the parties. In those circumstances I am satisfied that the tribunal had jurisdiction in the earlier proceedings to determine the claim for depression.
49. The decision of 6 July 1999 was a consent decision, and gave effect to the settlement arrived at between the parties. It has been held that a judgment made by consent in civil proceedings can found a defence of cause of action estoppel: Chamberlain v Deputy Commissioner of Taxation [1988] HCA 21; (1988) 164 CLR 502 at 508. In Bogaards v McMahon [1988] FCA 161; (1988) 80 ALR 342 at 350 Pincus J indicated that this also applies to consent decisions made by this tribunal, and also suggested that the doctrine of issue estoppel would apply to decisions of the tribunal. As mentioned below, there are a number of other authorities indicating a contrary view as to the application of the doctrines of cause of action and issue estoppel in this tribunal. Further, his Honour’s comments were obiter, because he did not decide the case before him by an application of those doctrines, but on the basis that the tribunal was functus officio, having previously dealt with the issue in question in that case.
50. In considering the effect of a consent decision of this tribunal, it must be borne in mind that in many cases it is not possible to determine what issues have been determined by such a decision. Whilst the issues raised in proceedings in this tribunal are customarily identified in statements of facts, issues and contentions exchanged between the parties, those documents are frequently not formulated with the precision of pleadings, and it is common for issues to be raised in material provided to the tribunal that go outside the parameters of the issues referred to in those statements.
51. In the present matter the consent decision affirmed the reviewable decision of June 1998. The review officer who made that reviewable decision referred to certain medical reports suggesting that Mr Filsell had a personality disorder that pre-dated his employment, and went on to recount that there was no information clearly stating that he suffered from a diagnosable psychiatric condition, and concluded that he did not suffer from such a condition (T111, page 253). Whilst the consent decision of this tribunal affirmed that reviewable decision, it was no longer the case that there was no clear statement that Mr Filsell was suffering from a diagnosable psychiatric condition, because in the meantime one report had been obtained, namely the report of Dr Black, to the effect that Mr Filsell was suffering from depression. In those circumstances, the basis of the consent decision no longer applied. It follows from my review of the record of the earlier proceedings that the consent decision would in effect amount to an acknowledgment by both parties that the evidence that was by then available was not sufficient to establish that Mr Filsell was suffering from a psychiatric condition. I must therefore consider whether on that analysis the consent decision should give rise to estoppel, so as to preclude Mr Filsell from proceeding with the present application.

Are the proceedings barred by the doctrines of res judicata or issue estoppel?

52. Res judicata (which may also be described as “cause of action estoppel”) prevents a party from re-litigating the same cause of action, which by virtue of the principle of res judicata merges into the judgment in the prior proceeding and no longer has an independent existence: Blair v Curran [1939] HCA 23; (1939) 62 CLR 464 at 532 (although this basis of the doctrine does not apply when the earlier proceedings are based on a cause of action and the action is dismissed: see Wong v Minister for Immigration and Multicultural and Indigenous Affairs at first instance, (2004) 81 ALD 109 at [46], and the cases there cited). Issue estoppel may be pleaded as a defence in later proceedings, where some factual or legal issue necessarily decided by a prior judgment is asserted in subsequent proceedings (Blair, supra, at 532). There is some authority in England that this is subject to a “special circumstances” exception, but it is not clear that this applies in Australia: see the comments of Lindgren J in Wong at [65] and [72]. The doctrines of res judicata and issue estoppel arise from public policy, that is, a person should not be exposed to further litigation in respect of a cause that has been finally determined, and it is in the public interest that this should be an end to litigation.
53. The question of whether an applicant is estopped from bringing a fresh application to the tribunal in relation to an adverse determination of liability in previous proceedings in the tribunal has been referred to in a number of cases in the Federal Court and in this tribunal. Differing views have been expressed, and the cases are difficult to reconcile. Many of the cases are conveniently collected in J O Ballard and P Sutherland, Annotated Safety, Rehabilitation and Compensation Act 1988 (8th Edition, 2007) at [61.03]. This question is also referred to in D Pearce Administrative Appeals Tribunal (2nd Edition, 2007) at [9.34] and in R Creyke and P Sutherland, Veterans’ Entitlements Law (2nd Edition, 2008) at [175.11].
54. Counsel did not refer to the conflict of authority in relation to the relevance of estoppel to proceedings in this tribunal. He relied primarily on Singh v Secretary, Department of Employment and Workplace Relations [2007] FCAFC 174; (2007) 46 AAR 447 in support of his argument that the issue of liability could not be revisited. That case principally involved applying Anshun estoppel, which does not arise in the present proceedings. To the extent that the case supports the general proposition that this tribunal should not permit the same issues to be re-litigated by the same parties, I do not think that it is determinative of the present matter. The case of Singh did not entail a consideration of the provisions of the SRC Act, and the Court did not review the authorities on estoppel and its application to this tribunal; and on the facts of that case the Court did not need to consider whether there should be any exceptions to the above general proposition against re-litigation, or the relevance of new evidence or changed circumstances.
55. It is commonly accepted that as a general rule, parties should not be permitted to re-litigate the same claims or issues that have been previously decided in earlier tribunal decisions involving the same parties. In some cases it has been suggested that the doctrines of res judicata or issue estoppel apply to proceedings in the tribunal. In other cases reference has been made to the flexible powers conferred by s 33 of the AAT Act whereby this tribunal can regulate its own proceedings, and it is suggested that that section should be used to prevent the re-litigation in the tribunal: see Re Quinn and Australian Postal Corporation (1992) 15 AAR 519 and Re Matusko and Australian Postal Corporation [1995] AATA 14; (1995) 21 AAR 9. In the latter case, after reviewing the authorities, Senior Member Dwyer and Members McLean and Shannahan formulated the following very helpful propositions:

“(a) No formal issue estoppel arises from the Tribunal’s findings in Re Matusko 1991, (ie, the earlier tribunal proceedings under consideration in that case)
(b) The Tribunal should not generally allow relitigation of issues already decided,
(c) But the Tribunal should use its flexible procedures to allow further consideration of issues where there is a reason to do so, for instance:
(i) where there is a different decision,
(ii) where there is a clear legislative intent,
(iii) where the reconsideration decision is not final,
(iv) where there has been a change in circumstances or fresh evidence, or
(v) where justice to the parties requires a departure from the general rule.
(d) The Tribunal should usually consider the evidence proposed to be called and make appropriate directions as to its admissibility during the hearing, as suggested in Re Quinn, rather than in a directions hearing prior to the substantive hearing.”

56. In Re Jebb and Repatriation Commission [2005] AATA 470; (2005) 86 ALD 182, I reviewed a number of earlier authorities in relation to issue estoppel, and in the context of whether a prior tribunal decision could give rise to estoppel in later proceedings in this tribunal, I concluded at [53] that as a general rule, issue estoppel will not arise from decisions of this tribunal, and would only arise where the legislation conferring jurisdiction on the tribunal provides expressly or by implication that its decision in relation to particular issues will be final and binding. This conclusion should, I think, also apply to the doctrine of res judicata or cause of action estoppel, and is consistent with the comments of the High Court of Australia in cases such as Shi v Migration Agents Registration Authority [2008] HCA 31; (2008) 103 ALD 467, where the Court emphasized the fundamental importance of referring to the terms of the legislation being applied by the tribunal in order to arrive at the correct determination of issues arising before it. In Re Rana and Military Rehabilitation and Compensation Commission [2008] AATA 645; (2009) 104 ALD 447 the tribunal, after making a detailed and most helpful analysis of a number of earlier authorities, concluded that estoppel has no place in this tribunal, and also emphasied at [98] the importance of considering the statutory regimen which defines the tribunal’s role. I agree with the conclusion arrived at in that case (although with respect, and for the reasons referred to in paragraph 43 above, I do not agree with the tribunal’s views expressed in that matter at [100] that the issue of whether the tribunal is prevented from reviewing a subsequent reviewable decision made by a determining authority under the SRC Act is to be determined by considering whether the tribunal is functus officio).
57. Of course, a tribunal decision might, on a proper construction of the relevant legislation, be final and binding between the parties after it has been made (see for example Administration of Papua and New Guinea v Daera Guba [1973] HCA 59; (1973) 130 CLR 353). This may be so notwithstanding that the relevant legislation provides for the relevant decision to be subsequently rescinded, altered or amended by the decision-maker, and in that circumstance it is only final and conclusive until it is rescinded, altered or amended: Kuligowski v Metrobus [2004] HCA 34; (2004) 220 CLR 363 at [25].
58. Under the SRC Act, this tribunal’s function of review is part of a continuing process of administrative decision-making. As mentioned above, the principle of res judicata is that a cause of action merges into the judgment in the relevant prior proceeding. In my view, this principle is inappropriate to administrative decision-making, which does not involve the determination of causes of action, and where many decisions of this tribunal not only determine rights between the parties to the proceedings, but also have relevance to third parties and to the process of administration generally.
59. Furthermore, legislation conferring an entitlement to benefits commonly includes provision for the reconsideration of decisions, so that if events by reference to which entitlements are assessed change or do not eventuate as expected, decision-makers are empowered to reconsider the position. Where such legislation confers a right for parties affected by the decision on reconsideration to apply to this tribuanl for review of that decision, that statutory entitlement and the duty that is then imposed on this tribunal to hear and determine the application cannot be denied by relying on doctrines of estoppel that apply to proceedings in courts. This tribunal may, however, exercise its statutory powers under ss 42B and 33 of the AAT Act to prevent parties revisiting issues that have been determined in earlier proceedings in the tribunal, or to limit the matters that may be raised in the later application.
60. In the context of the present matter, under s 62 of the SRC Act, decisions may be reviewed by a determining authority on its own motion, and in some cases when new medical evidence becomes available, payments of compensation are terminated where that evidence indicates that the claimant is no longer incapacitated. The SRC Act does not include any provision preventing an employee from lodging a new claim for compensation for an injury asserted to be employment related. Whilst there is some conflict in earlier decisions of this tribunal, it was decided that an employee could bring a subsequent claim for the same injury in Matusko (supra), Re Lewis and Comcare [2000] AATA 158 at [19], and Re Rana (supra) at [108]. This view is, I think, consistent with the structure and purpose of the SRC Act, and is supported by Morales v Minister for Immigration and Multicultural Affairs [1998] FCA 334; (1998) 82 FCR 374 where Black CJ, Burchett and Tamberlin JJ said at page 390 (omitting citations):

“The procedural flexibility that the AAT Act gives to the Tribunal has been seen as a source of power not to allow a matter finally determined before it to be relitigated ... and it has been suggested that s 33 provides a series of bases on which the Tribunal can decline to revisit previously determined matters or, as the situation demands, reconsider the totality of the matter or some aspect of it.” [emphasis added].

Their Honours proceeded to refer, with apparent approval, to the decision in Re Matusko (supra).

61. If a new claim is made and determined by Comcare, or there is a review on own motion, the rights of review provided for in the SRC Act are available to the parties, and if an application for review is made to this tribunal, it has a statutory obligation to determine the application. Of course, if no new circumstances are found to exist, then the determining authority will no doubt re-affirm the position reached in its earlier determination, and if a second application for review is made to this tribunal in an attempt to re-litigate an issue previously determined by the tribunal, then generally, in the absence of evidence of new circumstances, the tribunal will exercise its discretion under s 42B to dismiss the application summarily. I think the preferable view is that this would not result from applying the doctrines of cause of action estoppel or issue estoppel, that these doctrines do not apply as such in this tribunal, and that any decision to prevent a party from revisiting claims or issues previously determined by the tribunal should be based on the powers and discretions available to the tribunal under ss 42B and 33 of the AAT Act.
62. In the circumstances of the present matter, Mr Filsell has obtained and seeks to rely on fresh medical evidence to the effect that he suffers from conditions of anxiety and depression that are employment related. This evidence is inconsistent with the earlier evidence relied on by the review officer that his condition was due to a personality disorder not caused by his employment. In part this fresh evidence comprises a change of diagnosis by a doctor who previously provided a medico-legal assessment for Comcare; and that assessment is one of the two medical opinions on which the review officer relied in deciding to reject the earlier claim for compensation. As I said in paragraph 51 above, the reviewable decision affirmed by the consent decision made by this tribunal on 6 July 1999 was based on the absence of clear evidence supporting the asserted psychiatric conditions. If the new medical evidence now relied upon by Mr Filsell is submitted at the hearing of this matter, it will no doubt be evaluated in the light of evidence from Mr Filsell and any other witnesses who may be called. In my view it would be inappropriate to dismiss the present proceedings under s 42B of the AAT Act, as this would deny Mr Filsell the opportunity to argue, on the basis of the principles formulated in Matusko (supra), that the availability of new evidence, and the justice of the case, should lead to the tribunal departing from its general rule, and permitting him to re-litigate the issues raised in his earlier application.
63. During the hearing of the present dismissal application, Mr Filsell made reference to having acted under duress when he signed the agreement that gave rise to the consent decision of this tribunal. In view of my above conclusion I find it unnecessary to address this issue at this stage. If necessary the circumstances in which the agreement was entered into can be explored at the hearing.
64. In summary, for the above reasons I am not satisfied, in view of the fresh medical evidence now available, that the consent decision means that the present application for review has no reasonable prospect of success; and having regard to the principles to which I referred to in paragraphs 55 - 59 above, I have concluded that the proceedings should not be dismissed under s 42B of the AAT Act.

Other issues relevant to prospects of success

65. The present proceedings have not reached the point where any statements of facts, issues and contentions have been exchanged (and if Mr Filsell continues to be unrepresented, he will not, consistently with this tribunal’s Guide to the Workers’ Compensation Jurisdiction, be required to lodge such a statement if he does not wish to do so). The papers that have been lodged with the tribunal to date indicate that other issues relevant to the issue of liability are likely to arise at any hearing of this matter. The issue that arose in the earlier proceedings, namely whether Mr Filsell is suffering from a psychiatric condition as opposed to a personality disorder, will presumably be raised again, having regard to the two earlier reports from Dr Ewer, but this will of course depend on any up-dated medical reports that Comcare may obtain. Another potential issue is whether, in the exercise of its discretion, the tribunal should only review Comcare’s liability during the period subsequent to the date of the consent decision in the earlier proceedings (being the proposition determined by the tribunal in Re Slater and Telstra Corporation Limited (2005) 49 AAR 369). Further, certain information provided by Mr Filsell indicates that his condition has been caused, or at least exacerbated, by issues which are not relevantly related to employment. In addition, in the course of his argument in support of Comcare’s application under s 42B, Mr Roder drew attention to certain references in medical reports and other papers to Mr Filsell’s concern at his failure to obtain a transfer. Counsel pointed out that the definition of “injury” in s 4 of the SRC Act expressly excludes an injury suffered by an employee as a result of a failure to obtain a “promotion, transfer or benefit in connection with his or her employment”, and that in Hart v Comcare [2005] FCAFC 16; (2005) 145 FCR 29, a Full Court of the Federal Court decided that even where one of those excluded factors is a cause of an employee’s injury or disease, Comcare is not liable even though the relevant condition was also caused by other non-excluded factors.
66. It is not possible at this stage of the proceedings, in the absence of oral evidence tested by cross-examination, to assess the relevance or significance of the matters referred to in the preceding paragraph. Whilst such matters may raise questions as to the prospects of success of the current application for review, they are not sufficient to lead to my being satisfied that the statutory criteria for the exercise of the discretion to dismiss the proceedings under s 42B of the AAT Act have been met.

DECISION

67. The tribunal refuses the respondent’s application to dismiss the application for review pursuant to s 42B of the Administrative Appeals Tribunal Act 1975 (Cth).
    

I certify that the 67 preceding paragraphs are a

true copy of the reasons for the decision herein

of Deputy President D G Jarvis

Signed: .....................................................................................

L. Staker Associate

Date/s of Hearing 13 November 2008 and 13 January 2009

Date of Decision 12 February 2009

Applicant In person

Counsel for the Respondent Mr M Roder SC

Solicitor for the Respondent Sparke Helmore