Administrative Appeals Tribunal Act 1975 s.42B

Safety, Rehabilitation and Compensation Act 1988 s.62(1)

Attorney-General for Duchy of Lancaster v London and North Western Railway (No 2) (1892) 3 Chancery 274

Burton v Shire of Bairnsdale [1908] HCA 57; (1908) 7 CLR 76

Re Matusko and Australian Postal Corporation AAT 7252, 21 August 1991

McDonald v Director-General of Social Security [1984] FCA 57; (1984) 6 ALD 6

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

Commonwealth v Sciacca (1980) 17 FCR 476

Bogaards v McMahon [1988] FCA 161; (1988) 8 AAR 556

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

Re Cooper and Commonwealth of Australia (1988) 16 ALD 213

Re Hopper and Australian Meat and Livestock Research (1990) 11 AAR 329

Re Bertram and Repatriation Commission AAT 7188, 11 June 1991

Re Langley and Repatriation Commission [1992] AATA 73; (1992) 15 AAR 417

Re Plumb and Comcare AAT 7770, 14 February 1992

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

Re The Hospital Benefit Fund of Western Australia Inc. and Department of

Health, Housing and Community Services AAT 8076, 2 July 1992

Re Fuller and Comcare Australia AAT 8293, 7 October 1992

Re Cruise and Repatriation Commission [1992] AATA 362; (1992) 28 ALD 764

Re Cutajar and Comcare AAT 9074A, 14 November 1994

Re House and Department of Defence AAT 9885, 7 December 1994

Re Soden and Comcare AAT 9898, 12 December 1994

Re Quinn and Australian Postal Corporation (1988) 16 ALD 75

Thrasyvoulou v Secretary of State for the Environment (1990) 2 AC 273

Somodaj v Australian Iron and Steel Ltd [1963] HCA 50; (1963) 109 CLR 285

Plumb v Comcare Judgment 903 of 1992, 4 December 1992

Midland Metals Overseas Limited v Comptroller-General of Customs (1991) 30

Comcare Australia v Grimes & Anor [1994] FCA 1054; (1994) 121 ALR 485

Comcare v A'Hearn [1993] FCA 498; (1993) 119 ALR 85

1. The Tribunal refuses the application to dismiss this matter under s.42B of the Administrative Appeals Tribunal Act 1975.

2. The Tribunal directs that this matter be listed for callover in March 1995.

J.R. DWYER, W.G. McLEAN AND E.A. SHANAHAN This is an application for review of a reviewable decision under the Safety, Rehabilitation and Compensation Act 1988 ("the Act") made 3 May 1994 which affirmed a decision made 1 March 1994. Both the original determination and the reviewable decision found that Australian Postal Corporation ("Australia Post") was not liable to pay compensation to Mr Matusko for "stress condition" in respect of the period after 29 November 1987.

2. At the hearing Mr M Gray of Counsel appeared for the applicant and Mr M McInnis of Counsel appeared for the respondent. The Tribunal received in evidence the documents ("the T documents") lodged pursuant to s.37 of the Administrative Appeals Tribunal Act 1975 ("the AAT Act") and also two reports of Dr Stern dated 2 September 1994 and 29 September 1994.

3. At the commencement of the hearing Mr McInnis asked the Tribunal to dismiss the matter under s.42B of the AAT Act which provides as follows:

"42B. (1) Where an application is made to the Tribunal for the

review of a decision, the Tribunal may, at any stage of the

proceeding, if it is satisfied that the application is frivolous

or vexatious:

(a) dismiss the application; . . ."

4. As to the meaning of the words "frivolous and vexatious", Mr McInnis drew the Tribunal's attention to Attorney-General for Duchy of Lancaster v London and North Western Railway (No 2) (1892) 3 Ch 274 where the court said "frivolous" means "obviously unsustainable", and also Burton v Shire of Bairnsdale [1908] HCA 57; (1908) 7 CLR 76 where the High Court said that a matter should only be dismissed as frivolous and vexatious if it is so obviously untenable that it cannot possibly succeed.

5. Mr McInnis relied on two alternative grounds. First, he claimed that the Tribunal in Re Matusko and Australian Postal Corporation, AAT 7252, delivered 21 August 1991 ("Re Matusko 1991"), had already dealt with the issue of whether Mr Matusko was incapacitated for work after 28 November 1987 as a result of a work related stress condition, and that the Tribunal should not allow that issue to be relitigated. Secondly he submitted that even if the Tribunal were to allow the matter to be relitigated, on the evidence it was clear that the applicant could not succeed.

6. The applicant's Statement of Facts and Contentions in this (1994) matter provides:

"It is contended that the Applicant remained incapacitated for

employment as a result of the stress or anxiety state to which

his employment was a contributing factor subsequent to the

occurrence of his stroke on the 28th day of November 1987.

It is contended that the Applicant is not estopped from making

this claim for compensation on the basis of the decision of the

Tribunal made on the 21st day of August 1991. It is contended

that the Tribunal made a decision concerning entitlement to

continue weekly payments of compensation from the 28th day of

November 1987 in respect of the Applicant's stroke and the

relationship thereto to incapacity and not as a result of the

anxiety state or stress and its relation to continue incapacity.

It is contended that the Respondent remains liable to pay

compensation payments for medical expenses for periods of

incapacity from the 28th day of November 1987 and to continue

in accordance with law."

7. The documents before the Tribunal included the Tribunal's reasons for decision in the matter of "Re Matusko 1991". Two members of the Tribunal in that matter sat again at this hearing. The third member of the Tribunal in 1991, Mr Brewer, is no longer a Member of this Tribunal. Mr McLean was the third member of the Tribunal at this hearing. In order to decide whether this Tribunal should allow Mr Matusko to present a case claiming that he was incapacitated for work as a result of a stress condition after 27 November 1987, the Tribunal must first consider precisely what issues were litigated in Re Matusko 1991. It must then consider what approach it should adopt to the question of re-litigation.

8. In the reasons for decision delivered in Re Matusko 1991, the Tribunal set out the history of Mr Matusko's claim for compensation. As often happens, the original claim was not a carefully drawn document, but was a form completed by Mr Matusko which did not specify with any clarity the condition in respect of which he was claiming compensation. Paragraphs 19 to 21 of the reasons for decision in Re Matusko 1991 dealt with Mr Matusko's identification of the conditions which were claimed to be compensable as follows:

"On 16 October 1989 Mr Matusko completed a claim for compensation

in which he described his injury, or illness as 'chest', and

wrote 'at home preparing to come to work when felt chest pain' as

his description of the occurrence. When asked to give details

about events which led to the injury or condition he wrote:

'Work Conditions

Transport overseer

Footscray West Mail Centre

Work condition - stress'

It is not clear what injury or disease Mr Matusko relied on as

being compensable. The claim form states that a medical

certificate was attached but it is not clear from the T documents

which medical certificate that would have been. It may be

document T 9 p.26 which is dated 13 October 1989 and is on the

letterhead of Dr Murdoch and Dr Salvendra. It reads:

'Mr Matusko has had alcoholic liver disease which he relates to

stress at work.'

Mr Matusko was asked to provide further details of the claim and

on 15 January 1990 he wrote a letter in which he claimed to have

been subjected to heavy harassment from people he had to work

with and control. He named particular people with whom he had

problems and gave details of some of the difficult situations

which arose. In a second letter also dated 15 January 1990 Mr

Matusko, responding to a request for further details as to the

medical condition from which he suffered and the medical

treatment he had received, gave Dr Rothbart as his treating

doctor. He also wrote:

'16.11.87 Doctor certificate for 2 weeks off work, required due

to stress. Advised to stay away from work area.

28.11.87 Stroke. Two weeks in hospital, advised not to go back

to work because next time may be fatal. Dr. L. Santos

diagnosis T.I.A.'"

That passage shows that Mr Matusko's claim for compensation which was before the Tribunal in 1991 did cover stress related incapacity.

9. As Mr McInnis pointed out, the applicant's Statement of Facts and Contentions in the 1991 proceedings claimed that a work related stress condition had resulted in incapacity for work and the Tribunal made a finding on that issue.

10. When Re Matusko 1991 came on for hearing before the Tribunal in 1991, Mr Trigar, who appeared for Mr Matusko, said in opening that it was the applicant's case that stress at work caused him to suffer from an anxiety state and had contributed to his stroke. The Tribunal approached the hearing on the basis that both anxiety state and stroke were claimed to be compensable but in its reasons for decision it adopted the unusual course of expressing concern about the preparation and presentation of the matter on behalf of Mr Matusko. The Tribunal said, in paragraphs 25 and 26 of its reasons for decision:

"Although Mr Matusko's claim for compensation only mentioned

'chest' as his illness, it did refer to stress at work. The

respondent appears to have accepted it as a claim for

compensation in respect of both a 'stress condition' and the

cerebro vascular accident. However Mr Matusko's solicitors appear

to have concentrated only on the claim for the cerebro vascular

accident. They did not obtain either a full report from Dr

Rothbart as to the effect of stress on Mr Matusko or a psychiatric

report."

Similar comments were made in paragraph 39 of the reasons.

11. Unfortunately for Mr Matusko it turned out that the medical evidence at the hearing did not support the contention by Mr Trigar that an anxiety state had contributed to the stroke which Mr Matusko had suffered. Dr Stock's report, in advancing that connection, presupposed some aggravation of hypertension during the period of work stress. Although Dr Stock in his report had twice drawn the attention of Mr Matusko's then solicitors to the fact that blood pressure readings should be obtained, this step had not been taken prior to the hearing. When blood pressure readings were obtained at the hearing, it was apparent that there was no aggravation of hypertension in the period of increased work stress (see paragraphs 28 and 29, and also paragraph 50 of the Re Matusko 1991 reasons). In those circumstances the medical evidence satisfied the Tribunal, in 1991, that the stroke was not contributed to by work stress.

12. The only evidence relied on before the Tribunal in 1991 as to the cause of Mr Matusko's incapacity after the stroke, was that it resulted from the stroke. The Tribunal had before it a certificate from Dr L Santos in the Philippines saying that Mr Matusko was hospitalised from 28 November 1987 till 12 December 1987 because of a "transient ischaemic attack". There were in evidence certificates for subsequent periods of sick leave and reports recommending retirement on the ground of ill health, all of which referred to the stroke condition as the reason for incapacity.

(i) A report dated 1 June 1988 from Dr Rothbart. It stated in

part:

"This patient has been under considerable stress in his employment

before the onset of his cerebro vascular accident. He has made

a fairly good recovery, however he still has some residual effects

which are more than likely to remain permanent. He has some

changes in his right carotid arterial systems, which at present do

not require an operation but may progress in the future. He may

have another cerebrovascular accident or may require surgery in

the future. In view of the above, he should be retired on the

grounds of invalidity."

(ii) A report dated 8 August 1988 by Dr Cahill, a cardiologist.

He concluded:

"Mr. Matusko suffers from a moderately severe degree of

hypertension which is not at present under treatment. He suffered

a small cerebro vascular accident when in the Phillipines, (sic)

this would appear to have originated as a small platelet clot from

the atheromatous plaque demonstrated in his right carotid system

at digital subtraction angiography. He also, I believe, has

evidence of coronary disease and does suffer from angina. On

these grounds I would consider that he is permanently unfit for

work. . . ."

(iii) A report of a Commonwealth Medical Officer (T2, p26) which

recommended retirement on the ground of invalidity on the basis

that Mr Matusko was suffering from:

"Hypertension 35%

Coronary artery disease 35%

Cerebro-vascular accident 30%"

There was no evidence before the Tribunal in 1991 that incapacity after 28 November 1987 resulted from stress or anxiety state or was contributed to by stress in the workplace.

14. Mr McInnis pointed out during this hearing, on 17 November 1994, that, as the Tribunal stated in its reasons in Re Matusko 1991, Mr Trigar had submitted "as an alternative approach" that Mr Matusko suffered from a work related stress injury which could be characterised as an anxiety state. That is true, but the submission was limited by the lack of appropriate medical evidence and by the emphasis placed on the "main submission" that work stress had contributed to the stroke. There were only two records (on 19 October 1987 and 16 November 1987) of Mr Matusko mentioning work stress or that he was "feeling nervous" to Dr Rothbart, his general practitioner. Dr Rothbart was called by Mr Trigar. He said in evidence that Mr Matusko had mentioned problems due to his work conditions on visits other than those of 19 October 1987 and 16 November 1987, but he had not noted those matters. Mr Matusko had not seen a treating psychiatrist or a medico-legal psychiatrist arranged by his own solicitor. The only psychiatric evidence called by Mr Trigar was that of Dr Stern, a psychiatrist who had seen Mr Matusko for medico-legal purposes at the request of the respondent.

15. The Tribunal in its reasons in Re Matusko 1991 referred to the medical evidence as to stress as follows:

"However, on 16 November 1987 Dr Rothbart did apparently consider

that the stressful work conditions were causing symptoms and

incapacity, because he gave Mr Matusko two weeks off work, even

though he had put on weight and was feeling better physically.

The notes of that attendance are brief and do not detail the

complaints Mr Matusko made other than 'work v bad'. Dr Rothbart's

certificate that Mr Matusko would be unfit for work for two weeks

from 16 November 1987 gives no reason for the period off work but

in his report of 18 July 1990 Dr Rothbart wrote that when Mr

Matusko suffered the cerebral vascular accident he was "off work

due to stress at work". Similarly in his report of June 1988 he

wrote that Mr Matusko had been under considerable stress in his

employment before the onset of his cerebro vascular accident. In

evidence Dr Rothbart confirmed that the two weeks off work were

due to stress and worry about work."

"In this matter Dr Rothbart did not use the term 'anxiety state'.

He wrote and said that Mr Matusko suffered 'stress' due to his

worry about work, but on the evidence he considered that the

stress did incapacitate him for work for two weeks. Thus on his

evidence the effect of the stress on Mr Matusko was to disturb his

normal mental health or function for two weeks. It is relevant

that Mr Matusko, in his claim of 16 October 1989, claimed

compensation from the commencement of those two weeks, namely 16

November 1987, not from the date of his stroke. Dr Stern did not

see Mr Matusko until 18 February 1991. At that time after

obtaining a full history he concluded that Mr Matusko was

suffering from a moderate anxiety state and wrote:

'His current anxiety is no longer related to the work stress.

This would have ceased soon after stopping work.'

This report implies that on the history given to him, Dr Stern's

opinion was that at an earlier stage Mr Matusko had suffered from

anxiety which was contributed to by his work. In his evidence Dr

Stern confirmed this analysis. It is consistent with Dr

Rothbart's reports and evidence.

On this evidence we find that for two weeks from 16 November 1987

Mr Matusko suffered from the disease of anxiety state, to the

contraction of which his employment by Australia Post was a

contributing factor. We also find that incapacity for work

resulted from the contraction of that disease. Anxiety state is

therefore deemed to be a personal injury under s.29(2) of the 1971

Act and is therefore a compensable injury under s.27 of the 1971

Act.

. . . Mr Matusko sustained his stroke on Friday 28 November at the

conclusion of his two weeks off work. . . . We cannot find on

the evidence that Mr Matusko's employment contributed to the

stroke. There is no evidence on which we can find that incapacity

subsequent to the stroke was caused or contributed to by Mr

Matusko's employment." (emphasis added)

17. Mr McInnis submitted that the Tribunal had found that incapacity subsequent to the stroke was not caused or contributed to by Mr Matusko's employment. Mr Gray submitted that the Tribunal had not dealt with the issue as to whether incapacity subsequent to the stroke was caused or contributed to by Mr Matusko's work related stress condition, because there had been no evidence suggesting such a connection.

18. That somewhat enigmatic sentence of the Tribunal's 1991 reasons needs to be understood in context. The Tribunal, as it had made clear during the hearing and in its reasons, was concerned that the case had not been well prepared or presented on Mr Matusko's behalf. What it was intending to say was simply that no evidence had been presented on which it could find that incapacity subsequent to the stroke was caused or contributed to by Mr Matusko's employment. Thus Mr Matusko could not succeed in establishing a claim to compensation for incapacity resulting from his stress condition subsequent to the stroke.

19. As has often been explained, although there is no legal onus of proof before the Tribunal, if a person relying on a fact does not call evidence to establish that fact, the Tribunal will usually find that the fact was not established. Woodward J in McDonald v Director-General of Social Security [1984] FCA 57; (1984) 6 ALD 6 at p10 pointed out:

"Obviously someone must set in motion the process which

establishes the entitlement, and that will normally be done by or

on behalf of the person concerned, . . . Certainly if no material

is available to the decision-maker, or if available material

leaves the decision-maker quite uncertain whether the person is

permanently incapacitated, the claim must fail."

20. Mr Matusko's claim for compensation in respect of the period after 28 November 1987 failed because no material was available to the Tribunal in 1991 on which it could find that his incapacity after that date resulted from a work related stress condition or anxiety state. The Tribunal in Re Matusko 1991 did not prejudge the question whether such evidence could be considered if it was later found to have been available but not called before the Tribunal in 1991.

Do Issue Estoppel and Res Judicata apply before the Administrative Appeals Tribunal?

21. The distinction between res judicata and issue estoppel was explained by Dixon J (as he then was) in Blair v Curran [1939] HCA 23; (1939) 62 CLR 464 at page 532. He said:

"The distinction between res judicata and issue-estoppel is that

in the first the very right or cause of action claimed or put in

suit has in the former proceedings passed into judgment, so that

it is merged and has no longer an independent existence, while in

the second, for the purpose of some other claim or cause of

action, a state of fact or law is alleged or denied the existence

of which is a matter necessarily decided by the prior judgment,

decree or order."

22. In Commonwealth v Sciacca (1980) 17 FCR 476 at page 480 the Full Court of the Federal Court raised doubts as to whether decisions of an administrative tribunal give rise to any issue estoppel:

"A finding by an administrative tribunal will not give rise to an

issue estoppel. In W J & F Barnes Pty Ltd v Federal Commissioner

of Taxation [1957] HCA 23; (1957) 96 CLR 294, Kitto J said (at 315) that a

taxation board of review's decision was not an adjudication;

it was administrative in character and could not create an issue

estoppel.

The question is not a straightforward one and it was not fully

argued before us. Because of our view that the judgment of

Gallop J did not give rise to any relevant issue estoppel, it

is unnecessary to decide the point and, accordingly, we express

no view upon it."

23. In Bogaards v McMahon [1988] FCA 161; (1988) 8 AAR 556 Pincus J cast some doubt on the proposition that a finding by an administrative tribunal will not give rise to an issue estoppel, but again the point was not decided as it was not necessary to the question immediately before the Court. Pincus J relied on Administration of Papua and New Guinea v Guba [1973] HCA 59; (1973) 130 CLR 353 where Gibbs J (as he then was) said at pages 453-454:

"The doctrine of estoppel extends to the decision of any tribunal

which has jurisdiction to decide finally a question arising

between parties, even if it is not called a court, and its

jurisdiction is derived from statute or from the submission of

parties, and it only has temporary authority to decide a matter

ad hoc.

In Carl Zeiss Stiftung v Rayner & Keeler Ltd (No. 2) (1967) 1 AC

909-910, Lord Reid said that it 'is clear that the earlier

judgment relied on must have been a final judgment, and that

there must be identity of parties and of subject matter in the

former and in the present litigation'." (emphasis added)

24. The question whether an earlier decision of this Tribunal gives rise to issue estoppel or res judicata has continued to trouble this Tribunal. Some decisions in which the matter has been considered are Re Cooper and Commonwealth of Australia (1988) 16 ALD 213, Re Hopper and Australian Meat and Livestock Research (1990) 11 AAR 329, Re Bertram and Repatriation Commission (AAT 7188, 11 June 1991), Re Langley and Repatriation Commission [1992] AATA 73; (1992) 15 AAR 417, Re Plumb and Comcare (AAT 7770, 14 February 1992), Re Quinn and Australian Postal Corporation (1992) 15 AAR 519 (Re Quinn), Re The Hospital Benefit Fund of Western Australia Inc. and Department of Health, Housing and Community Services (AAT 8076, 2 July 1992), Re Fuller and Comcare Australia (AAT 8293, 7 October 1992), Re Cruise and Repatriation Commission [1992] AATA 362; (1992) 28 ALD 764, Re Cutajar and Comcare (AAT 9074A, 14 November 1994), Re House and Department of Defence (AAT 9885, 7 December 1994), and Re Soden and Comcare (AAT 9898, 12 December 1994).

25. The issue was considered in detail by a Tribunal comprised of O'Connor J, President, Mr Barbour and Mr Katz, Members, in Re Quinn. The Tribunal had, on 24 October 1988, decided in an earlier matter, Re Quinn and Australian Postal Corporation (1988) 16 ALD 75, that Ms Quinn continued to be totally incapacitated for work as a result of a compensable injury. On 17 June 1991 the respondent, relying on medical opinion that the incapacity would have ceased shortly after 1984, made a determination ceasing liability from 17 June 1991. It was affirmed in a reviewable decision made on 26 August 1991. The matter before the Tribunal was a review of the reviewable decision of 26 August 1991. The issue was whether, in its review of the 1991 determination, the Tribunal was bound to accept the findings underlying the Tribunal decision of 24 October 1988.

26. The majority in Re Quinn, O'Connor J (President) and Mr Barbour (Member), referred to Thrasyvoulou v Secretary of State for the Environment (1990) 2 AC 273, at p 289, where Lord Bridge of Harwich said:

"In relation to adjudications subject to a comprehensive

self-contained statutory code, the presumption, in my opinion,

must be that where the statute has created a specific jurisdiction

for the determination of any issue which establishes the existence

of a legal right, the principle of res judicata applies to give

finality to that determination unless an intention to exclude that

principle can properly be inferred as a matter of construction of

the relevant statutory provisions." (emphasis added by the

Tribunal in Re Quinn)

The majority referred to s.62(1) of the Act which provides that a determining authority under the Act may reconsider a determination on its own motion, whether or not a proceeding has been instituted or completed in respect of a reviewable decision made in relation to that determination. They suggested that the power to reconsider contained in s.62(1) established that a determination in a compensation matter is not a final judgment, although such a power should only be used where there is new evidence or a change of circumstances.

27. In Re Quinn O'Connor J and Mr Barbour concluded at pp525-526:

"The Tribunal does not need to decide in this case whether as a

matter of law the doctrine of estoppel applies to administrative

decisions. The Tribunal's process is administrative and in

understanding the task of review (it) is obliged to consider the

administrative consequences and fairness of the investigation it

makes in reaching the correct and preferable decision. The policy

basis (sic) upon which the doctrine of estoppel rests, that is,

'it is for the common good that there should be an end to

litigation' and 'no one should be harassed twice for the same

cause', are relevant to administrative law. The Tribunal should

be guided by the principles of 'equity, good conscience and the

substantial merits of the case, without regard to technicalities';

s 72 of the Commonwealth Employees' Rehabilitation and

Compensation Act. The re-examination of the extent of the

original injury nearly eight years ago would defy these

principles.

There is no single appropriate answer to the question of what

extent estoppel as a matter of policy rather than law should apply

in administrative decision-making as the balance of individual and

public interests can and will produce different answers in the

diverse areas of administrative practice. A doctrine with

sufficient flexibility to recognise this diversity is needed.

Having accepted that the concepts and policy considerations

motivating the doctrine are desirable, the Tribunal must have

a mechanism for protecting both parties and the process.

The Tribunal is of the view that estoppel does not apply where

there is a different decision, a clear legislative intent, the

reconsideration decision is not 'final' and there has been prima

facie a change in circumstances.

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. 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.

Where there are attempts to adduce or present evidence the subject

of previous decisions, the Tribunal should consider the evidence

and make appropriate directions as to its admissibility during the

course of the hearing, applying the principles we have enunciated

in these reasons." (emphasis added)

28. In his dissenting reasons for decision Mr Katz, Member, held that the earlier Tribunal decision had created a number of "issue estoppels". He relied on Administration of Territory of Papua New Guinea v Guba as High Court authority that decisions of administrative tribunals can give rise to cause of action estoppel and suggested that it should be extended to issue estoppel. Mr Katz, at pp536-638 referred to the decision of the High Court in Somodaj v Australian Iron and Steel Ltd [1963] HCA 50; (1963) 109 CLR 285 which he understood to establish that s.62(1) of the Act does not prevent a decision under the Act being a final decision capable of creating an estoppel.

29. That understanding of Somodaj's case seems not to have been the same as that of the Full Court of the Federal Court in Plumb v Comcare (Judgment 903 of 1992, 4 December 1992). The Court there commented that s.62 of the Act empowered reconsideration of decisions "whether or not those determinations had been subject to review by the AAT" and gave that as an additional reason for holding that the AAT was not "functus officio" in respect of later periods covered by further determinations, in a matter where it had in earlier proceedings found entitlement to compensation up to a date when the applicant undertook alternative employment.

30. The Australian Postal Corporation lodged an appeal to the Federal Court from the Tribunal's decision in Re Quinn, but it did not proceed. That is unfortunate from the point of clarifying the law, because there were well reasoned but inconsistent views set out by the majority and by the minority in that matter. Additionally, there have, as earlier set out, been somewhat inconsistent obiter comments made by Judges of the Federal Court as to whether decisions of the Administrative Appeals Tribunal create an issue estoppel. In Bogaards v McMahon Pincus J suggested that the matter should be considered by a Full Court, saying at p565:

"I have come to the conclusion, however, that it is inappropriate

to determine, in this case, the application of the doctrine of

issue estoppel to decisions of the AAT. As I remarked during the

course of argument, it might have been more convenient if this

important question had been raised in the first instance before

a Full Court. . . . "

In spite of the suggestion by Pincus J that the Full Court of the Federal Court should decide the point, in Plumb v Comcare the Full Court chose not to deal with the question of issue estoppel, saying:

"There is no necessity in this case to consider the interesting

questions of issue estoppel and cause of action estoppel which

were touched on, though briefly, in argument."

31. The majority view in Re Quinn is consistent with that of the Federal Court in Midland Metals Overseas Limited v Comptroller-General of Customs (1991) 30 FCR 87 where Hill J said at pp96-98:

"First, it is clear that the proceedings of the Tribunal, and

in particular its findings of fact, do not constitute an issue

estoppel on any issue, even if the parties to the Tribunal

proceedings are regarded as the same parties as are presently

before the court. The Administrative Appeals Tribunal is an

administrative body. When its jurisdiction is enlivened it

is empowered to review an administrative decision made under

some other enactment: s 25(4) of the Administrative Appeals

Tribunal Act 1975 (Cth) (the AAT Act). In matters before it,

its proceedings are to be conducted with a minimum of formality

and with due expedition. It is not bound by the rules of

evidence: s 33 of the AAT Act. In reviewing decisions referred

to it, the Tribunal is empowered to exercise itself all the

powers and discretions conferred upon the decision-maker:

s 43(1) of the AAT Act.

. . .

Where, as occurred in the present case, the decision is remitted

to the decision-maker for reconsideration, it is evident that

the ultimate decision will be one not made by the Tribunal, but

by the decision-maker himself. But even where the Tribunal

substitutes its own decision for that of the original

decision-maker, the Tribunal in so doing is merely acting in

an administrative capacity. Its decision is deemed for all

purposes to be the decision of the decision-maker: s 43(6) of

the AAT Act. To use the language of Rich and Dixon JJ in Jolly

v Commissioner of Taxation (Cth) [1935] HCA 21; (1935) 53 CLR 206 at 214,

referring to the Taxation Boards of Review, but equally applicable

to the Tribunal, the Tribunal is: 'only another executive body

in an administrative hierarchy.'

The Tribunal's function, like that of the Taxation Boards of

Review which it, inter alia, replaced, is, to adapt the language

of Kitto J in Mobil Oil Australia Pty Ltd v Commissioner of

Taxation (Cth) [1963] HCA 41; (1963) 113 CLR 475 at 502, merely to do over again

what the decision-maker himself did; not to give a decision

which affects the legal situation of the person dissatisfied with

the decision but to work out, as a step in administration,

what the Tribunal considers that position to be.

In relation to the Taxation Boards of Review, Kitto J in W J

and F Barnes Pty Ltd v Commissioner of Taxation (Cth) (1957)

[1957] HCA 23; 96 CLR 294 at 315 said:

'The Board's decision was not, of course, an adjudication; it

was administrative in character, and could not create an issue

estoppel.'

The Full Court of this Court in Commonwealth v Sciacca (1988) 17

FCR 476 at 480 had no hesitation in saying: 'A finding by an

administrative tribunal will not give rise to an issue estoppel.'"

(emphasis added)

32. More recently in Comcare Australia v Grimes & Anor [1994] FCA 1054; (1994) 121 ALR 485 Wilcox J again held that there is neither issue estoppel nor cause of action estoppel as a result of decisions of this Tribunal. He said at p489:

"Counsel conceded that an AAT decision cannot give rise to

an issue estoppel. This concession is plainly correct: see

Minister for Immigration and Ethnic Affairs v Daniele (1981) 39

ALR 649; [1981] FCA 212; 61 FLR 354 at 359; Commonwealth v Sciacca (1988) 17 FCR

476 at 480; 78 ALR 279; Midland Metals Overseas Ltd v

Comptroller-General of Customs (1991) 30 FCR 87 at 96-7. But he

said that the position in relation to cause of action estoppel

is different."

"Whether or not it is correct to go that far, there is clearly

a close correspondence between issue estoppel and cause of action

estoppel and there is high authority for the proposition that

issue estoppel does not apply to AAT decisions. It would be

curious if a different rule applied to cause of action estoppel.

It seems to me that the conclusion reached in Bogaards v

McMahon, which was clearly correct, can readily be accommodated

by the approach taken in Mulheron and Quinn; the AAT, which is

master of its own procedures, will not allow a finally determined

matter to be relitigated." (emphasis added)

That appears to be the most recent authoritative statement on the issue.

(a) No formal issue estoppel arises from the Tribunal's findings

in Re Matusko 1991,

(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.

34. In considering whether there is a change of circumstances or fresh evidence or whether justice requires that the previous Tribunal decision be reconsidered, we consider it significant that the Tribunal in Re Matusko 1991 expressed concern about the fact that the matter had not been well prepared on behalf of Mr Matusko. Tribunals, and we venture to suggest probably also Courts, do sometimes consider that a matter could have been better prepared and conducted, however, it is rare for a Tribunal or Court to feel such concern that it raises the matter in its reasons for decision. That in our view provides a reason to treat this matter differently from the general practice. Although in paragraph 41 of the reasons for decision in Re Matusko 1991 the Tribunal stated:

"as an alternative approach, Mr Trigar attempted to establish

that Mr Matusko suffered from a 'stress injury'"

the Tribunal's reasons for decision show that it was concerned that the attempt by Mr Trigar was made without previous proper preparation, such as the obtaining of a full report on the issue from the treating general practitioner or referral of Mr Matusko for a medical opinion as to the issue prior to the hearing.

35. In the light of that concern expressed by the Tribunal and in view of the flexible procedures open to the Tribunal (as pointed out in Re Quinn) and the administrative nature of its decision-making (as pointed out by Hill J in Midland Metals), it would in our opinion be wrong for the Tribunal to refuse Mr Matusko the opportunity to seek a reconsideration of the issue whether or not incapacity after 28 November 1987 resulted from work stress and to present further relevant evidence, if such evidence existed. The Tribunal in 1991 did not weigh such evidence against contrary evidence and decide that it preferred the contrary evidence. The issue did not arise because such evidence was not presented.

36. We consider that the function of s.62(1) of the Act is to allow reconsiderations in such circumstances. If, since the 1991 hearing, it had become known that Mr Matusko had in fact been seeing a psychiatrist who had not been called at the 1991 hearing, then we have no doubt that the appropriate course for Australia Post and this Tribunal to adopt would be to reconsider the matter under s.62 of the Act with the benefit of a report from that psychiatrist.

37. As the Tribunal said to Mr McInnis during argument in the current matter, it "left the door ajar" in 1991, not because it formed a clear view that Mr Matusko could relitigate the issue, but because in the circumstances of its concern about the presentation of Mr Matusko's case, it was uncomfortable in making any further findings. Bearing in mind what was said by O'Connor J and Mr Barbour in Re Quinn, that the Tribunal should be master of its own proceedings, it appears to us that in the unusual circumstances of this matter justice is best done by allowing Mr Matusko, if he so decides, to proceed with his endeavour to establish that his incapacity after 27 November 1987 was in part due to a continuing effect of his stress condition.

38. However a further complication is that Mr Gray expressly disclaimed any new evidence of the nature of a treating psychiatrist who had not been called in 1991. He said he wished to recall Dr Rothbart and Dr Stern to ask them additional questions and also to call Dr Piperoglou who has only seen Mr Matusko since the 1991 hearing. Mr McInnis submitted that the prospect of witnesses who had been called last time being called again to give different evidence was a clear example of the reason why doctrines such as issue estoppel and res judicata were applied by Courts and Tribunals. We accept that statement but add that there are also reasons why applicants should be satisfied that they have had the opportunity to put their case fully before a Court or Tribunal. Where, as here, the Tribunal pointed to inadequacies in the preparation and presentation of the matter for the first hearing, it is not surprising that Mr Matusko should try to put his case again in a better way.

39. Mr McInnis acknowledged that he and his client felt sorry for Mr Matusko because his case has not been well handled and because it may be impossible for him to make up for the inadequate preparation prior to the original hearing. He suggested that Mr Matusko's remedy for that lies not in a further hearing before this Tribunal, but in proceedings against his former solicitors. While there may be such a remedy, the Tribunal is conscious of the cost of such proceedings and of the difficulty in succeeding in such an action. The Full Court of the Federal Court in Comcare v A'Hearn [1993] FCA 498; (1994) 119 ALR 85, an appeal from the refusal of an application for extension of time, rejected the idea that delays by a solicitor were to be visited on a client. In general, we consider that if the Tribunal can offer the opportunity to overcome the effects of fault on the part of solicitors, it should do so.

40. It is however only fair to say that is not solely or even mainly due to poor preparation by his former solicitors, that Mr Matusko may well have difficulty succeeding on the present application. In part it is due to the way events happened with the stroke occurring after only two weeks of sick leave for the stress related anxiety state, so that the severity of the anxiety state had not yet been investigated. Other reasons are that no psychiatrist saw Mr Matusko during the period between 1987 and 1991 and that, because of the very serious effects of the stroke, there was no question of Mr Matusko returning to work in the period shortly after the stroke, and therefore it may not be possible for anybody to say when he would have recovered from the anxiety condition sufficiently to return to work, had he not suffered the stroke.

41. In considering whether witnesses who were called in the 1991 hearing may be recalled, it is relevant to reiterate that we are not revisiting the reviewable decision which the Tribunal reviewed in the 1991 proceeding. A further claim has been lodged. It was made in a letter dated 30 July 1992 written by Mr Matusko's solicitors to Australia Post. The claim was accepted and a determination was made in respect of it. A further reviewable decision was made. The Full Court of the Federal Court said in similar circumstances in Plumb v Comcare:

"They were different determinations and the applicant was entitled

to seek a review by the AAT of each of them."

There can be no doubt about the correctness of that proposition. The more difficult question is how the Tribunal should proceed in its review of the second reviewable decision. It is our view that if there is fresh relevant evidence Dr Rothbart and Dr Stern can give, they should be allowed to do so.

42. Another point which must not be overlooked is that the claim lodged 30 July 1992 was not limited to the period between 28 November 1987 and 21 August 1991; it also covered the period from 21 August 1991. On no analysis of the decision in Re Matusko 1991 could it have finally decided any issue about incapacity after 21 August 1991. The issue of incapacity after 21 August 1991 has not been before the Tribunal. In Plumb v Comcare the Full Court of the Federal Court explained that a finding of the Administrative Appeals Tribunal that a condition ceased to incapacitate an employee as from a certain date:

"was not a finding which could bind anybody with respect to a

future application because a future application would be with

respect to a later period of incapacity and the AAT (also the

respondent) cannot bind itself in advance of any such subsequent

application."

43. We will refuse to dismiss this application under s.42B of the AAT Act on the first ground relied on by Mr McInnis, namely that the Tribunal will not allow the issue of incapacity for work after 28 November 1987 to be relitigated. Our reasons in summary are:

(i) Re Matusko 1991 did not create any issue estoppel as a matter

of law,

(ii) The fact that the Tribunal expressed concern about the

preparation and presentation of Re Matusko 1991 provides a reason

why the Tribunal should now not apply any estoppel as a matter of

policy but should use its flexible procedures to do justice

between the parties and, where it appears that there may be

further relevant evidence, should allow that evidence to be

called.

(iii) This application seeks review of a fresh reviewable decision

(Plumb v Comcare),

(iv) This application covers a period not covered by the decision

in Re Matusko 1991,

(v) Because s.62 of the Act provides a power to reconsider a

determination, in appropriate circumstances, whether or not the

matter has been before this Tribunal, Re Matusko 1991 is not

necessarily a final determination.

44. This conclusion may be seen to be inconsistent with the decisions of the Tribunal in Re Cutajar and Comcare, Re House and Department of Defence, and Re Soden and Comcare. For the reasons set out we cannot agree with the analysis in Re Cutajar and Re House that the Tribunal's function in all circumstances is exhausted, even if there is a further reviewable decision, once findings have been made as to a certain period of claimed incapacity. We consider that the Federal Court, since Bogaards v McMahon , has cast some doubt on that analysis. As was pointed out by the Full court of the Federal Court in Plumb v Comcare where there have been two different determinations:

"the applicant was entitled to seek a review by the AAT of each

of them."

Similarly, although we agree with the Tribunal in Re Soden that generally the Tribunal will not allow a finally determined matter to be relitigated, we accept the view of the Tribunal in Re Quinn that there is some flexibility about that matter. Further we doubt if an application for an extension of time is a final determination, in view of the comments of Wilcox J in Grimes.

45. Mr McInnis' second point was that, even if there were no cause of action estoppel, res judicata or issue estoppel, Mr Matusko's claim was frivolous and should not be allowed to proceed. In making that submission, he relied on Mr Gray's statement that he did not have any fresh evidence in the sense of a treating psychiatrist who had not been called in 1991, but intended to recall Dr Rothbart and Dr Stern, both of whom gave evidence last time, to ask them different questions, and to call Dr Piperoglou.

46. Mr McInnis pointed out that the Tribunal had had the benefit of evidence from Dr Rothbart and his notes at the first hearing. Mr McInnis referred to the two reports prepared by Dr Rothbart subsequent to the first hearing, and included in the T documents as T11 and T17. Document T11 provides simply:

"Mr. Niko Matusko was given a certificate to be off work for 2

weeks on 16 Nov 87. He had been under stress at work for a

considerable time and the certificate was in relation to the

stress.

The stress situation did not necessarily cease at the end of the

two weeks and would more than likely have recurred if he had

returned to work. However he did not return to work due to the

development of a CVA." (emphasis added)

Mr McInnis submitted that that report does not advance Mr Matusko's case. Document T17 reads as follows:

"Mr. Niko Matusko was totally incapacitated from work due to his

stress condition as well as his cerebro vascular accident from 30

Nov 87 to 2 March 1989.

Since that time ie 2 March 89 he has been partially incapacitated

in that he has been unfit to resume work in his previous

supervisory role due to stress."

47. Although T17 does appear to advance Mr Matusko's case, Mr McInnis suggested that Dr Rothbart would, at a further substantive hearing, be cross-examined as to why, in writing that report, he had felt able to put matters more strongly in favour of Mr Matusko, than he had done in his evidence at the last hearing, or in writing the report at T11. Of course such cross-examination will probably take place at a full hearing of this matter, but that is not a reason to reject the evidence in chief. We will have to wait to hear the evidence and the cross-examination before we decide what weight to give to Dr Rothbart's evidence.

48. As to Dr Stern's reports and evidence, Mr McInnis pointed out that Dr Stern's report (A8) had stated that Mr Matusko did suffer a work related anxiety state, but that its effect "would have ceased soon after stopping work". Mr McInnis suggested that opinion also did not assist Mr Matusko. That may well be so but if the opinion were further explained, it could possibly provide support of Mr Matusko's case, even if only for a limited period.

49. As to Dr Piperoglou's report, Mr McInnis relied on the fact that he did not see Mr Matusko until approximately five years after the relevant date and therefore it is difficult to see how his evidence could help Mr Matusko. He pointed out that Dr Piperoglou had said that, when he saw Mr Matusko, he saw no evidence of morbid depression, anxiety or irritability. However Dr Piperoglou did also say, in his report dated 10 July 1992:

"He himself believed that he could work and when asked told me

he felt he could do some office or book work for Australia Post

so long as he did not have to deal with the union. . . .

From the psychiatric point of view, I do not think Mr.

Matusko currently has an anxiety disorder. I do not doubt that

he did have an anxiety disorder around the time of his work stress

and up until February 1991 when he was seen by Dr. Stern but I

do not think this is a current problem.

In my opinion, I think this man is fit for light clerical

duties but he would not be able to work in his pre-injury

employment in a supervisory role nor could he deal with union

matters as either of these work situations would I believe lead

to a re-appearance of his anxiety symptoms which are currently

in remission."

That opinion may provide a basis for a finding of incapacity for some work due to the anxiety condition.

50. There may also be some support for Mr Matusko in the reports of some of the medical witnesses who were asked to advise in regard to the stroke. (See Dr Freilich (T4, p32), Mr Nye (T7, p40), Dr Goble (T9, p48).) It may be that they would say that Mr Matusko would have recovered from the stroke sufficiently to return to work at some stage. The significance of those opinions was not explored at the hearing in 1991.

51. The Tribunal does not consider that the proceeding is vexatious in the sense that "it is so obviously untenable it cannot possibly succeed". Accordingly it will not be dismissed under s.42B of the AAT Act. However the Tribunal must say that although it is not satisfied that the proceeding "cannot possibly succeed", it is very concerned at the prospect of Mr Matusko incurring yet further legal costs where there is considerable doubt about his chance of succeeding in establishing an entitlement to further compensation.

52. The application for the matter to be dismissed under s.42B of the AAT Act is dismissed. We direct that the application be listed for callover in March 1995.