Ashton and Linfox Armaguard Pty Limited [2011] AATA 579 (22 August 2011)

Last Updated: 23 August 2011

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2011] AATA 579

ADMINISTRATIVE APPEALS TRIBUNAL )

) No 2011/0446

GENERAL ADMINISTRATIVE DIVISION		)
	Re		Robyn Ashton

Applicant

And

Linfox Armaguard Pty Limited

Respondent

DECISION

Tribunal

Senior Member A K Britton

Date 22 August 2011

Place Sydney

Decision

The application made by the respondent to dismiss the “Application for Review” lodged by the applicant on 10 February 2011 is refused.

.........................[sgd].....................
Senior Member A K Britton

CATCHWORDS

PRACTICE AND PROCEDURE – application for dismissal – issue estoppel – whether applicant sought to re-litigate issues determined in prior consent decision – dismissal application refused

Safety, Rehabilitation and Compensation Act 1988 (Cth) – ss 14, 16

Administrative Appeals Tribunal Act 1975 (Cth) – ss 33, 42C

Re Grimsley and Telstra Corporation Ltd [2010] AATA 106

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

Re Liu and Comcare (2004) 79 ALD 119; [2004] AATA 617

Miller v University of New South Wales (2003) 132 FCR 147; [2003] FCAFC 180

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

Brewer v Brewer (1953) 88 CLR 1; [1953] HCA 19

REASONS FOR DECISION

22 August 2011

Senior Member A K Britton

1. In April 2007, Ms Robyn Ashton, the applicant in these proceedings, injured her left shoulder while lifting an ATM case in the course of her duties with her former employer, Linfox Armaguard Pty Limited.
2. In a determination made in May 2007, Linfox accepted liability for that injury pursuant to s 14 of the Safety, Rehabilitation and Compensation Act 1988 (Cth) (the Act).
3. Between that time and 24 March 2010, Linfox made a number of reviewable decisions. Ms Ashton applied to the Administrative Appeals Tribunal (AAT) for review of those decisions. On 24 March 2010, the Tribunal made a consent determination pursuant to s 42C of the Administrative Appeals Tribunal Act 1975 (Cth) (the AAT Act).
4. Among other things, the Tribunal’s determination provided that:

a. The respondent is liable to pay compensation under s 16 of the Safety, Rehabilitation and Compensation Act 1988 (SRC Act) to the applicant for medical treatment in the sum of $21,641.15 comprised as follows:
(i) Physiotherapy and other medical and related travel expenses: $12,441,07
(ii) Surgery by Dr Perko [shoulder arthroscopy]: $9,200.08
b. As of 24 March 2010, the Applicant does not presently have an entitlement to compensation for medical treatment pursuant to s 16 of the SRC Act.
...

5. In November 2010, Ms Ashton underwent surgery by way of transaxillary first rib resection for treatment of her thoracic outlet symptoms and made a claim for the costs of that surgery. Linfox denied liability for that treatment and its determination was affirmed in December 2010. Ms Ashton now seeks review by the AAT of that decision.
6. Linfox, however, has raised a preliminary question. It asserts that Ms Ashton effectively seeks to re-litigate questions previously determined in final form by this Tribunal in the consent determination made on 24 March 2010. It seeks an order summarily dismissing the application pursuant to s 33 of the AAT Act.

DOES THE APPLICANT SEEK TO RE-LITIGATE AN ISSUE PREVIOUSLY DETERMINED?

7. Linfox submits that it would be unfair to allow Ms Ashton’s current application to proceed because to do so would be to permit her to re-litigate questions settled by the consent determination. It asserts that this case is on all fours with the decision of the Tribunal in Re Grimsley and Telstra Corporation Ltd [2010] AATA 106 (Grimsley). It further relies on the Tribunal’s decision in Re Quinn and Australian Postal Corporation (1992) 15 AAR 519 (Quinn).
8. In Grimsley, Deputy President Hack SC said (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 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.

9. In that case, the Deputy President cited with approval and followed the decision in Quinn in which the majority (at [32]) said:

It would seem inappropriate and unreasonable to us for there to be re-litigation 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 re-litigated tomorrow on the very same facts. The Tribunal should not generally allow re-litigation 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.

10. Ms Ashton agrees that these decisions were correctly decided but submits that they do not lead to the result sought by Linfox in the circumstances of this case.
11. Ms Ashton concedes that, prior to the consent determination, she had requested Linfox to pay for the costs of rib resection surgery but asserts that she did not press that claim on the basis of medical advice received from shortly before the consent determination was made that it would be unlikely that she would require surgery (see letter from orthopaedic surgeon Dr Mark Perko to Ms Ashton’s solicitors, 7 March 2010).
12. Linfox accepts that the consent determination does not operate to prevent Ms Ashton making a claim for reasonable medical expenses in respect of the subject injury after 24 March 2010. Linfox contends, however, that the determination should be construed as meaning that unless there has been a material change in her condition as it stood at that date, Ms Ashton has no entitlement to medical expenses in respect of treatment received after 24 March 2010. Linfox asserts that there was no material change in Ms Ashton’s condition between the date the consent determination was made and when the surgery was carried out (29 November 2010). It points out that Dr Michael Neal who performed the rib resection surgery, provided his opinion that surgery was warranted only three months after the determination was made. Linfox also points to the letter from hand surgeon Dr Claudia Gschwind to Dr Perko dated 24 June 2010 in which she wrote “the nerve conduction studies have not really changed”. Dr Gschwind was apparently referring to studies conducted on 28 July 2008 and 23 June 2010.
13. Ms Ashton, on the other hand, contends that the determination should be read more narrowly, namely that, as at 24 March 2010, Linfox had no outstanding liability in respect of medical expenses incurred prior to the date of the determination.
14. In support of her argument, Ms Ashton refers to the Tribunal’s decision in Re Liu and Comcare [2004] AATA 617 (Liu). In that case the Tribunal observed (at [2]) that:

A positive determination under s 14 is a determination of the existence of a compensable injury. The nature and amount of the compensation is to be determined under other provisions of the Act. Compensable injuries may not always result in the payment of compensation. They may give rise to intermittent entitlements to compensation. There may be periods when there is no present entitlement to compensation under any of the sections of the Act relating to the nature and amount of compensation. But during such periods an injury which has been determined to be a compensable injury under s 14 will not cease to be a compensable injury. It will simply be correct to say during some periods that at the present the compensable injury does not give rise to an entitlement to compensation. Such periods may be long. The compensable injury may never give rise to any future entitlement to compensation. But this can not be known or determined in advance. No determination, whether by consent of the parties or not, can preclude the making of a future application for compensation with respect to a compensable injury determined to exist under s 14. This was made clear in Plumb v Comcare [1992] FCA 595; (1992) 39 FCR 236 at 240.

15. The Tribunal also noted (at [12]) that determinations “(a) should not suggest that liability has ceased; (b) should not suggest that no future liability can exist; and (c) should speak only as to present liability”.
16. Ms Ashton’s current claim is to compensation “with respect to a compensable injury determined to exist under s 14”, ie. the injury suffered on 20 April 2007.
17. It is submitted for Ms Ashton that her case can be distinguished from Grimsley by the critical fact that the applicant in that case sought later to raise again a question of causation which had been settled in the consent determination whereas that is not so here. In this case, while there are some similarities with the facts in Grimsley, it was never conceded in the consent determination that Ms Ashton had recovered from the injury.

CONSIDERATION

18. There is conflicting authority on whether the doctrine of issue estoppel applies to decisions made by the AAT. As the Full Court commented in Miller v University of New South Wales [2003] FCAFC 180; (2003) 132 FCR 147 (at 169) “it is difficult if not impossible, to reconcile all that has been said in this array of authority”. It is unnecessary to attempt to reconcile these conflicting authorities in this matter because, as agreed by the parties, it is settled that the power conferred by s 33 of the AAT Act is sufficiently broad to allow the Tribunal to refuse to allow a matter previously determined to be re-litigated (see for example Morales v Minister for Immigration and Multicultural Affairs [1998] FCA 334; (1998) 82 FCR 374 (at 389, 390)).
19. Before an issue estoppel can arise, the identical issue must be raised in further proceedings between the same parties: Brewer v Brewer [1953] HCA 19; (1953) 88 CLR 1 at 14. In my view, in exercising the power under s 33 of the AAT Act the same approach ought be taken. In this matter, what was agreed and determined was that, “as at 24 March 2010”, (having received a sum in compensation for medical expenses), Ms Ashton “does not presently have an entitlement to medical treatment pursuant to s 16 of the SRC Act”. The use of the adverb “presently” (in this context meaning “currently” or “at present”) indicates that the agreement and determination was temporally limited. The issues determined were liability under s 14 and the compensation payable as at 24 March 2010 in respect of medical treatment and incapacity. That is not the issue Ms Ashton now seeks to argue.
20. I do not agree, as submitted for Linfox, that the consent determination should be read to mean that Ms Ashton will not have any future entitlement to medical expenses unless there has been a material deterioration in her condition as it stood at 24 March 2010.
21. As the decision in Liu makes abundantly plain, an entitlement to compensation may arise in the future. This was noted in Grimsley (at [13]) where the Deputy President observed that a different outcome may have ensued if the complained of pain and incapacity flowed from the original accepted condition.
22. For this reason, I have decided not to dismiss Ms Ashton’s application for review.

I certify that the 22 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member A K Britton

Signed: .........................................[sgd]....................................

Associate to Senior Member A K Britton

Date/s of Hearing 21 June 2011

Date of Decision 22 August 2011

Counsel for the Applicant Mr L Grey

Solicitor for the Applicant K Nicholls, Kells the Lawyers

Counsel for the Respondent Mr D Richards

Solicitor for the Respondent Mr N Heppel, Dibbs Barker