Grimsley and Telstra Corporation Limited [2010] AATA 106 (12 February 2010)

Last Updated: 12 February 2010

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2010] AATA 106

ADMINISTRATIVE APPEALS TRIBUNAL )

) No 2009/4999

GENERAL ADMINISTRATIVE DIVISION		)
	Re		JUDITH GRIMSLEY

Applicant

And

TELSTRA CORPORATION LIMITED

Respondent

DECISION

Tribunal

Deputy President P E Hack SC

Date 12 February 2010

Place Brisbane

Decision

The application is dismissed.

.............Signed.................
Deputy President

CATCHWORDS

WORKERS’ COMPENSATION – entitlement to compensation – causal relation between injury and incapacity or death – application concerning causation constitutes mere relitigation of consent decision – consent decision to affirm was correct decision – application dismissed

PRACTICE & PROCEDURE – estoppel – former adjudication of matters of record – effect of an earlier consent decision

Administrative Appeals Tribunal Act 1975 (Cth) s 33

Safety, Rehabilitation and Compensation Act 1988 (Cth) s 14

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

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

Telstra Corporation Ltd v Hannaford [2006] FCAFC 87; (2006) 151 FCR 253

REASONS FOR DECISION

12 February 2010

Deputy President P E Hack SC

1. Ms Judith Grimsley was employed by Telstra. In February 2004 she injured her right knee during the course of her employment. She made a claim for compensation. On 25 March 2004, Telstra (by its insurers) accepted liability pursuant to s 14 of the Safety, Rehabilitation and Compensation Act 1988 (Cth) (the SRC Act) for a “right knee injury” but also determined that Telstra ceased to be liable to pay compensation on and from that date on the basis that no further treatment was required and that Ms Grimsley had made a good recovery from the injury.
2. That decision was the subject of an application to the Tribunal[1]. On 21 November 2005 the Tribunal made a decision, by consent, by which Telstra was liable to pay compensation under ss 16 and 19 of the SRC Act for the condition “right knee injury and an aggravation of left knee injury” sustained on 13 February 2004.
3. Next, on 8 June 2006, on the basis of medical evidence then available to it, Telstra determined that Ms Grimsley had “ceased to suffer from the effects of the

compensable injury” and that there was no liability to pay compensation for medical treatment or incapacity for work under ss 16 or 19 of the SRC Act. That decision was affirmed on reconsideration on 24 August 2006. Ms Grimsley sought a review of the decision in the Tribunal in proceedings Q2006/685. On 21 July 2009, in the course of a hearing of a great number of applications concerning various ailments and injuries, all proceedings between Ms Grimsley and Telstra were settled on terms reduced to writing and signed by, or on behalf of, the parties. On that day I made a decision pursuant to s 42C(2) of the Administrative Appeals Tribunal Act 1975 (Cth) (the AAT Act) affirming the decision under review in application Q2006/685.

4. On 30 August 2009 Ms Grimsley wrote to Telstra’s insurer making what was treated by the insurer as a claim for an acceptance of ongoing liability for her right knee condition and for compensation for permanent impairment of that knee. A determination was made on 16 September 2009 that Telstra had no liability under any of ss 16, 19, 24 or 27 of the SRC Act. That decision was affirmed on reconsideration on 6 October 2009. These proceedings were commenced thereafter.
5. I am not presently concerned to determine the merits of Ms Grimsley’s claims. I am concerned to decide only the preliminary question raised by Telstra which is whether the application ought to be dismissed pursuant to the Tribunal’s powers under either or both of ss 33 or 42B(1) of the AAT Act. The basis of Telstra’s application is that Ms Grimsley seeks to re-litigate matters determined against her by the consent decision of 21 July 2009.
6. There is no doubt of the legal principles involved. They were expressed in this way by the Full Court in Morales v Minister for Immigration and Multicultural Affairs[2]:

“...it is important to bear in mind that the function of the AAT is an administrative one. Within the framework of the relevant enactments and the general principles of administrative law, the Tribunal is concerned to determine whether the decision under review ‘was the correct or preferable one on the material before the Tribunal’: see Drake v Minister for Immigration and Ethnic Affairs [1979] AATA 179; (1979) 46 FLR 409 at 419; [1979] AATA 179; 24 ALR 577 at 589 per Bowen CJ and Deane J.

To enable the Tribunal to perform its functions, the Tribunal has a very wide discretion as to the procedure it should adopt and as to the manner in which it should inform itself about factual matters. In Re Quinn and Australian Postal Corporation (1992) 15 AAR 519, O'Connor J, the President of the Tribunal, and Mr Barbour observed (at 526):

‘s 33 of the Administrative Appeals Tribunal Act provides 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.’

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 (see Comcare Australia v Grimes at 67; 592 per Wilcox J and Re Quinn and Australian Postal Corporation at 525-526), 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. The point is made by McEvoy (at p 52) by reference to the decision of Senior Member Dwyer and Members McLean and Shanahan in Matusko and Australian Postal Corporation [1995] AATA 14; (1995) 21 AAR 9 esp. at 20-21 where the Tribunal concluded that although it should not generally allow relitigation of issues already decided, it could use its flexible procedures to allow a second claim in respect of an injury that already had been the subject of a claim.

In our view, the essentially administrative nature of the Tribunal's function and the nature of its task in looking to the correct or preferable decision, in circumstances where it is to have regard amongst other things to the dictates of fairness, point to the conclusion that the Tribunal may, in appropriate circumstances, conclude that a previous decision should be applied again as the correct and preferable decision when it is sought to revisit the earlier decision at some later time. Of course, the circumstance that a Court has set aside an entire decision may mean that it is either impermissible, or quite inappropriate, to adopt such a course but that would not necessarily be the case where, as here, a particular determination had not itself been the subject of challenge.”

Here Telstra submits that, aside from the date of incapacity, all aspects would fall to be determined if the merits of the application are identical to the issues decided by the Tribunal in July 2009, when the decision refusing a claim for continuing liability to pay compensation for the right knee condition was affirmed. Telstra submits that, in the application of what was decided in Re Quinn, the critical issue to be considered is what has changed since the operative date of the July 2009 decision.”

7. Reference should also be made to these observations of O’Connor J and Mr Barbour in Re Quinn[3]:

“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. In compensation cases like the present, the issues of causation and level of incapacity for the period the subject of the earlier decision would thus not be areas contested in a subsequent hearing.”

8. Ms Grimsley points to four features as warranting the conclusion that she is not seeking merely to relitigate issues already decided. First, she points to evidence she would call[4] from her general practitioner, Dr Chiang Teo, that her right knee pain is increasing and the evidence of Dr Teo that her level of whole person permanent impairment arising from that condition is now 20% compared to the level of 10% that he estimated in August 2005. Next, she points to her own evidence that the pain is increasing. Then she makes the point that her claim relates to a different period of time to that the subject of the earlier proceedings. Finally, she says that she had not previously sought compensation for permanent impairment.
9. I do not accept Ms Grimsley’s argument.
10. The starting point, in my view, is the decision of the Full Court in Telstra Corporation Ltd v Hannaford[5] where Conti J (with whom Heerey and Dowsett JJ agreed) referred to “progressive and evolving decision-making” involved in claims under the SRC which his Honour noted “allows for adjustment or change in the light of events and circumstances which may subsequently happen.”[6]
11. In the proceedings that concluded in July 2009 Telstra did not seek to resile from its original acceptance of liability for Ms Grimsley’s right knee injury; rather it contended, and continues to contend, that the effects of that injury have ceased and that whatever presently ails Ms Grimsley’s right knee is not causally related to the accepted condition. The reviewable decision of 24 August 2006 reviewed the available medical evidence and concluded the matter in this way:

“23 Accordingly, having regard to the bulk of the available specialist evidence, I am not satisfied on the balance of probabilities, that from 13 March 2006 to the present date, the claimant continues to suffer from a right knee injury attributable to the incident on 13 February 2004 which gives rise to a need for incapacity payments or medical treatment pursuant to sections 16 and 19 of the SRC Act.”

12. The factual controversy between the parties in that matter appears from the Statements of Facts and Contentions of the parties lodged in application Q2006/685. In paragraph 3.6 of its Statement of Facts and Contentions dated 15 February 2008, Telstra contended, by reference to various medical reports, that Ms Grimsley had made a good recovery from the February 2004 injury and that what she was suffering from was not related to the accepted condition.
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 regard it as unfair to Ms Grimsley to not permit her to agitate the very issue determined by consent in 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. The “fresh” evidence that she proposes to give and to call does not touch upon the cause of the pain or incapacity, only the extent of it. The position might be different if there were medical evidence proposed to be called that pointed to the pain and incapacity being caused by the original accepted condition but that is not the case here.
14. The material before the Tribunal in July 2009 pointed overwhelmingly to the conclusion that the consent decision to affirm Telstra’s determination was the correct decision. The highest that the evidence could be put for Ms Grimsley was a report of Dr Greg Gillett, from July 2007, that she then continued to suffer from the effects related to her right knee from her work related injury. Dr Gillett’s opinion does not lead me to question the correctness of the consent decision given that there were numerous reports, more proximate in time and unequivocally to a contrary effect.
15. It may be accepted that the present claim can be distinguished from the earlier decision on the basis that it relates to a different period of incapacity. But that is not a relevant distinction. Nor does it matter that Ms Grimsley now contends that she has a permanent impairment. There is no evidence that any permanent impairment is related to the accepted condition, it having been determined by the consent decision that Ms Grimsley’s condition was not materially contributed to by the work incident of 13 February 2004.
16. I would then rely upon the Tribunal’s power under s 33 of the AAT Act to dismiss the application for review without proceeding to a hearing on the merits. I need not decide that part of Telstra’s application relies upon the power in s 42B(1) of the AAT Act.
    

I certify that the 16 preceding paragraphs are a true copy of the reasons for the decision herein of Deputy President P E Hack SC

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

Associate

Date of Hearing 1 February 2010

Date of Decision 12 February 2010

Applicant Self-represented

Counsel for the Respondent Mr C J Clark

Solicitor for the Respondent Sparke Helmore

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[1] Q2004/727.

[2] [1998] FCA 334; (1998) 82 FCR 374, 389-90

[3] (1992) 15 AAR 519, 526

[4] Dr Teo gave that evidence however I am not called upon for the purposes of this application to make findings about it. It is sufficient to consider, at its highest, the evidence available to Ms Grimsley.

[5] [2006] FCAFC 87; (2006) 151 FCR 253.

[6] Ibid at [57].