The Tribunal's ability to reconsider issues previously determined
53 As identified above, the Tribunal applied the principles identified in Matusko, which it regarded as an exercise of the power in s 33 of the AAT Act, in determining whether it would consider the evidence which contradicted the causation assumptions underpinning its earlier decision. That decision had relied upon an earlier Tribunal decision in Re Quinn and Australian Postal Corporation (1992) 15 AAR 519, which had concluded that, whilst no issue estoppel would prevent a Tribunal from subsequently considering, in relation to a different decision, the same issue which has been the subject of an earlier decision, the power of the Tribunal to regulate its procedure under s 33 enabled it to refuse to consider evidence of such issues. Accepting that proposition, the Tribunal in Matusko concluded that a mechanism was required which would regulate the occasions on which issues which it had decided might be relitigated. At [33] it identified the following principles which it said should apply in such circumstances:
(a) No formal issue estoppel arises from the Tribunal's findings in [the earlier decision],
(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.
54 In applying the above principles the Tribunal here determined there was no relevant change of circumstances or "fresh evidence" to overcome the general prohibition on reconsidering the issues underpinning the 2013 decision. The logical extension of this is, of course, that the Tribunal considers it is empowered to make a decision on review otherwise than in accordance with the evidence and material available to it. That is, it may make a decision that an employer is obliged to pay compensation when no such statutory obligation actually exists or that an employee is not entitled to compensation when, on the consideration of all relevant evidence, compensation should be payable. Moreover, it says that it is empowered to do so because the legislature has granted it power to regulate the procedure before it. With respect, the power of a tribunal to regulate the conduct of its proceedings ought to be used to facilitate decisions being made in accordance with legislative requirements rather than in contravention of them.
55 It must be kept steadily in mind that here, the consideration of the power of the Tribunal to refuse to consider the merits of a prior determination arises in circumstances where, under the Seafarers Act, the employer is expressly empowered to reconsider its prior decisions. Similar circumstances arise under the SRC Act. This is important as the conclusiveness of any administrative decision will be affected by the statutory scheme pursuant to which it is made: Godwin v Repatriation Commission (2008) 168 FCR 471, 482 [38]. It ought also be stressed that the consequences of the admixture of the provisions of the AAT Act and of any other legislation which does not afford the decision-maker the power of reconsideration are not dealt with in these reasons.
56 The Commonwealth's primary submission was that there is no general rule against re-litigation in the Tribunal or against reopening an issue decided by an earlier Tribunal decision, at least in so far as the decision being reviewed arises under the Seafarers Act. In support of that proposition it relied upon the combined effect of s 78 of that Act and s 43(1) of the AAT Act. It submitted that by s 43 the Tribunal exercised the power in s 78(2) and made the 2013 decision which was deemed to be that of the original decision-maker. In that respect it can be accepted that in substituting its decision for that of the original decision-maker, the Tribunal was doing so merely in an administrative capacity: Midland Metals Overseas Ltd v Comptroller-General of Customs (1991) 30 FCR 87, 97; Jolly v Commissioner of Taxation (Cth) (1935) 53 CLR 206, 214; and, in that capacity, its role was to do over again what the decision-maker did and to work out what it considered to be the correct decision. Subsequently, when Mr Snell sought compensation in relation to metastatic malignant melanoma, the Tribunal again stood in the stead of the Commonwealth as decision-maker and exercised all the powers which the Commonwealth was entitled to exercise in relation to Mr Snell's application for compensation. In particular, the Commonwealth said the Tribunal was vested with the power in s 78(1) to reconsider any prior decision made in relation to Mr Snell. So armed with those powers and discretions, its obligation was to assess whether he had sustained a relevant injury and, if so, the level of any subsequent impairment in accordance with the provisions of the Seafarers Act and, under s 43(1), affirm, vary or remit the decision. In that context, so the Commonwealth submitted, there was no room for an issue estoppel or principles akin to it which limited the material which might be considered.
57 The Commonwealth placed reliance upon Plumb v Comcare (1992) 39 FCR 236, 240-241. That case concerned the question of the power of the Tribunal, after the making of an initial decision in relation to a claimant, to consider subsequent decisions made by the employer in relation to the claimant's further claims relating to periods of time which were different to that which was the subject of the initial decision. The reasons in that case examined both the general nature of the Tribunal's powers to review decisions which come before it and s 62 of the SRC Act, which is the cognate provision to s 78. The point raised was not identical to that raised in the present matter as the decisions in question considered the applicant's claims for compensation in respect of two distinct periods of time. It was held that the earlier decision relating to the initial period of time was not a bar to, nor had any limiting effect on, the Tribunal's consideration of an application in relation to a subsequent period of time even though it related to the same injury. It was observed that the first decision was made on the evidence before the Tribunal at that time and, in making the initial decision, the Tribunal did not have power to decide the applicant's entitlements beyond the date of its decision. Lockhart J (with whom Black CJ and Gummow J agreed) at 240 concluded the Tribunal was not bound by its earlier decision and that was reinforced by the existence of s 62 which granted Comcare the power to reconsider its earlier decisions and the Tribunal in its stead could also reconsider them. His Honour said:
This case is concerned with the 1971 Act and the 1988 Act. Those enactments define the powers of the determining authority, the decisions of which may be reviewed by the AAT. The determining authority's powers include the power of reconsideration conferred by s 62 of the 1988 Act upon the relevant determining authority, which in this case is the respondent, Comcare. Thus the combined operation of those provisions and s 43(6) of the AAT Act demonstrates that the decision of a determining authority may be reconsidered by it: see Hanna v Australian Postal Corporation (1990) 12 AAR 511. The AAT was not functus officio.
58 This provides substantial support for the proposition that, in reliance on s 78 of the Seafarers Act (or other cognate provisions), the Tribunal is entitled to reconsider earlier decisions of the determining authority and, it would appear, its own earlier decisions which are deemed to be of the determining authority. Although the cited passage was obiter, its weight cannot be doubted. It contains a recognition that the effect of the Tribunal exercising the power of a decision-maker which can reconsider its own decision is that the Tribunal is likewise entitled to reconsider those earlier decisions. In that respect, it is entitled to make subsequent decisions which are inconsistent with earlier ones.
59 The logical consequence of the Tribunal having the power to reconsider earlier decisions of the primary decision-maker is that it must also be able to reconsider its own earlier decisions which, likewise, are deemed to be of the primary decision-maker.
60 The focus of some of the debate during the course of the appeal concerned the decision of the Full Court in Hannaford. Although that decision arose under the cognate provisions of the SRC Act, the relevant legislative schemes and rights of review in the Tribunal are sufficiently comparable, in particular because under s 62 of the SRC Act the employer has the power to reconsider its earlier decisions. There, the employer, Telstra, had accepted liability to pay compensation to Mr Hannaford in relation to his claim that he had contracted the disease Ross River fever in the course of his employment. It duly paid him compensation for a period of time. Subsequently, it ascertained that he was not suffering from that disease at all, but from a different one which was not work-related. As a result it determined that it was not liable to pay any further compensation. It is apparent that it did not make any determination that it had not been obliged to make the payments which it had made. That said, the second decision was obviously inconsistent with the initial one and, necessarily, based on the assumption that it was in error. Telstra's decision was affirmed by the Tribunal however, on appeal, it was held that the Tribunal could not affirm the decision because the initial decision accepting liability was not before it and it could not go behind it. The primary judge's determination was reversed by the Full Court. Heerey J (Dowsett J agreeing) held at 255 [8] that the text, structure and underlying policy of the SRC Act did not suggest that any decision made under it "permanently enshrines" every finding of fact on which it is made. Central to this conclusion was that the Act specifically permitted the employer to reconsider its earlier decisions, at any time, and that included reconsidering any prior finding of fact. The contrary suggestion was seen as being inconsistent with the "modern, practical statutory scheme for the compensation of injured workers". His Honour also acknowledged at [10] that the SRC Act allows for "progressive and evolving decision-making allowing for the changes in circumstances which are inevitably likely to happen". Quite correctly he added: "This is in the interests as much of employees as employers."
61 Conti J (with whose reasons Heerey and Dowsett JJ agreed) considered the scheme of the SRC Act at length as well as several authorities relating to the ability of an employer, or the Tribunal on review, to reconsider issues of fact which it had determined in prior decisions. His Honour held at 273-274:
57 In my opinion, it should be concluded, upon the correct construction of the SRC Act, and in particular of the provisions thereof upon which I have focused attention in these reasons, that the AAT is empowered to make subsequent findings of fact in relation to the circumstances the subject of decision-making under ss 16 and 19 of the SRC Act, and also under ss 21 and 27 of the SRC Act, where the determination of the first instance decision-maker (here of course Telstra) made under the auspices of s 14 of the SRC Act remains in operation in the sense that it has not been the subject of any inconsistent outcome in the context of a subsequent review by the AAT.
62 In this respect, his Honour regarded the Tribunal as having power on review to reconsider the earlier determination of liability which was made under s 14 even though the decision on review only concerned the nature and extent of benefits to which the employee was entitled in the future and despite the fact the earlier decision remained in operation. The original decision did not crystallise the rights of the parties for all time. His Honour continued:
The statutory scheme allows for progressive and evolving decision-making giving effect to the provisions of ongoing review of relief or entitlements in the nature of course of workers compensation, being review which allows for adjustment or change in the light of events and circumstances which may subsequently happen. The statutory scheme hence reflects a flexible scope for adjustment by way of decisions in the nature of awards to be made subsequently to the determination of s 14 liability, whether that determination be made in isolation, or in the context of decision-making concerning consequential relief that may be required in the light of evolving circumstances. It is therefore a scheme which allows progressively for ongoing relief, and is thus not comparable of course with the process of curial resolution of the traditional common law entitlement of an injured employee for damages as a consequence of the negligent conduct of an employer. The opening words of s 14(1) "[s]ubject to this Part…" are consistent with the flexibility inherent in the ensuing codification of the various facets of compensation envisaged.
63 A number of points arise from that passage. First, it would appear that an underlying assumption of his Honour's conclusion is the acceptance that, on review, the Tribunal was entitled to exercise all of the powers of the determining authority, including the power under s 62 of the SRC Act. Secondly, it is appropriate to emphasise that his Honour observed the sharp distinction between the process under the SRC Act and curial proceedings where the entitlements of the parties are finally determined. Thirdly, the words "subject to this part" in s 14 of the SRC Act were said to buttress the conclusion which was drawn from the structure of the compensation provisions themselves. The Tribunal's decision in the present matter sought to distinguish Hannaford on the basis the words "subject to this part" and "in accordance with this Act" did not relevantly appear. In the course of the reasons the Member said ([56]-[57]):
[56] … Essentially, the [Seafarers Act] was designed to have a similar application as that of the SRC Act, and the Act contains parallel provisions to those in the SRC Act considered by the Full Court of the Federal Court in Hannaford.
[57] However, while there is a similarity on its face, the Act is not identical to the SRC Act. Of some significance is the absence of the words "[s]ubject to this part", which Conti J emphasised in Hannaford, and the further absence of the words "in accordance with this Act" from s 26 of the Act. Without those qualifying words, it seems that liability under s 26 of the Act is of a subtly different nature to liability under s 14 of the SRC Act. This difference points away from there being clear legislative intent supporting re-litigation of issues in relation to that provision that have already been determined.
Whether the differences in the liability arising under the two pieces of legislation are subtle or not need not be considered. Nevertheless, it is a misreading of Conti J's reasons to consider that his Honour emphasised the words "in accordance with this Act". As the passage from his Honour's reasons discloses, he identified the use of that expression as buttressing the conclusion he had reached from an examination of the structure and operation of the Act's provisions. Moreover, the Member overlooked the effect of s 24 of the Seafarers Act which specifically imposes liability to pay compensation "in accordance with this Act", including the provisions identified in paragraphs [24] and [30] above. That would include the operation of s 78. It must be recognised that, in reaching the conclusion he did, Conti J rejected any narrow interpretation of the analogous s 62 of the SRC Act. In the result, there is nothing which emerges from the different wording in the Seafarers Act on which the decision in Hannaford might be appropriately distinguished.
64 Another important decision is that of Cheung v Administrative Appeals Tribunal (2009) 176 FCR 20. It also considered the operation of the SRC Act. In that matter the Tribunal, in 2001, had determined that Australia Post was liable to pay Ms Cheung compensation for work related injuries and it did so. Ms Cheung made a number of subsequent claims to Australia Post for compensation for incapacity which were rejected. In exercise of its power under s 62, Australia Post also determined that it was no longer liable to make payments in respect of the initial claim. In 2008 the Tribunal affirmed Australia Post's determinations. Ms Cheung sought to hold the employer and Tribunal to the decision of 2001 in respect of Australia Post's liability to her. After considering the statutory regime Bennett J said in relation to the operation of s 62 (at 27 [43]):
The reconsideration of a determination [under s 62] is not confined. There is no statutory requirement to apply the earlier determination or to take it into account. Inherent in the provision for reconsideration is the concept that that reconsideration is untrammelled by any previous determination. This does not preclude the determining authority from taking the previous determination into account but there is no requirement to do so. Similarly, there is no statutory requirement on the Tribunal to take into account any previous determinations or reconsideration decisions when reviewing a reviewable decision.
65 Subsequently, her Honour observed that, generally, there should not be relitigation without reason of the same issues before the same Tribunal where the relitigation involves the same facts and issues already determined (at 29 [49]). In such circumstances her Honour said that the previous determination would generally be regarded as establishing the matters actually decided and the grounds for the same and it is open to the Tribunal to proceed in that manner: Morales v Minister for Immigration and Multicultural Affairs (1998) 82 FCR 374 at 390. However, at [53] her Honour said:
As Sackville J pointed out in Power 89 FCR at 525, s 43(1) of the AAT Act confers on the Tribunal the same powers and discretions as were available to the decision-maker, including the power provided in s 62(5) of the SRC Act to affirm, revoke or vary the delegate's decision that liability previously accepted had ceased. For the purpose of reviewing each reconsideration decision (ie each reviewable decision) the 2008 Tribunal could exercise all the powers and discretions conferred by the SRC Act on the reconsideration decision-maker (Power 89 FCR at 526). This included a power to consider whether Ms Cheung's conditions had ever been causally related to her work. This consideration involved the reconsideration decision-maker and then the 2008 Tribunal analysing all the necessary facts, including further medical reports, to determine whether or not there was a continuing liability. The 2008 Tribunal could have exercised its discretionary powers to exclude evidence recanvassing the issues resolved in the 2001 Tribunal decision (Power 89 FCR at 526 citing Re Quinn). No issue as to the Tribunal's discretionary power was raised in Power.
66 Bennett J went on to observe that the discretion to reopen an issue is not limited to the circumstances where an applicant's medical condition has changed. Her Honour observed there was no such limitation in the SRC Act and that the Act is silent on the use that might be made of prior determinations, reconsideration decisions and Tribunal decisions. It is a matter for the discretion of the determining authority to consider afresh the matter when the circumstances arose. Her Honour then observed (at 30 [56]):
The Tribunal is not excluded from revisiting and making its own findings on questions of fact that have been the subject of findings by a prior Tribunal in an application to review a different reviewable decision. Until the subsequent decision is made, the earlier decision remains in operation.
67 The authorities to which reference has been made suggest that the existence of s 78 (or its equivalent) has two distinctive impacts on the decision-making process. First, the decision-maker may expressly reconsider an earlier decision and make a different decision in its stead. Secondly, a decision-maker faced with a further claim from an employee, may make a decision on the new claim which is inconsistent with the first decision in which case it can be said the original decision is implicitly reconsidered. However, the effect of this approach is that the original decision remains operative to the extent that it is not eclipsed by the latter.
68 The combined effect of s 43(1) of the AAT Act and s 78 is to allow the Tribunal, when reviewing a decision, to reconsider any earlier decision of the employer as well as any of its previous decisions which are deemed to be of the employer. That being so it would be inconsistent or lacking in coherency for the Tribunal to conclude that it was bound by an earlier determination. To do so would render the power of reconsideration inutile or, at least, substantially diminish its operative effect.
69 When a claimant seeks review of a decision to the Tribunal under s 88 of the Seafarers Act, the review is of a "reviewable decision", being a decision under s 78 which has reconsidered an initial decision. The employer's initial decision made in response to a claim by an employee is not reviewable by the Tribunal. A necessary first step before the Tribunal might undertake a review is that the initial decision is reviewed by the employer under s 78. It is the latter decision which is the "reviewable decision". When the Tribunal reviews that decision it exercises the power in s 78. Whether the decision under review was a reconsideration by the employer on its own initiative (s 78(1)) or on the request of the employee (s 78(2)) does not matter: the Tribunal stands in the stead of the employer and is invested with power to reconsider any prior decision which it had made in relation to the employee. This appears to be the consistent approach of the authorities. In Cheung, Australia Post had used its power under s 62 of the SRC Act to reconsider and reverse an earlier decision that it was liable to Ms Cheung under that Act. The Tribunal was reviewing that reconsideration. Bennett J observed that the Tribunal had all the powers of the determining authority under its power to reconsider, including s 62(5) of the SRC Act (being the cognate provision to s 78(6) of the Seafarers Act), such that it had full power to affirm, revoke or vary the initial decision. The Tribunal stood in the stead of the decision-maker which was entitled to reconsider its own previous decision such that it was equally empowered to reconsider those prior decisions and vary the decision under review as appropriate. Necessarily, that power in the original decision-maker to reconsider an earlier decision is antithetical to the notion that the decision-maker, or the Tribunal in its place, is somehow bound by or confined the making of that earlier decision.
70 When a decision-maker under the Seafarers Act or the Tribunal on review is reconsidering an earlier decision, the obligation is to make a decision as to the amount of compensation payable in accordance with the Act. The Act is concerned with conferring on injured employees benefits which employers are liable to pay in circumstances where the sustaining of an injury has the identified causal connection with the employee's employment. The entitlement to compensation and other benefits is not determined by a court but by administrative processes in which the Tribunal plays a role as an arbiter of factual matters relevant to the decision to be made. Central to the right of the employee to receive benefits is the satisfaction of the statutory criteria on which it is prescribed. Concomitantly, the liability of the employer under s 24 is to pay the amount determined "in accordance with this Act": see again the provisions identified in paragraphs [24] and [30] above. The Act imposes the circumstances when liability arises and the quantum of any compensation payable. Where it appears that an employee is entitled under the Act to receive benefits, there should be no restriction on that entitlement merely because of the existence of an earlier decision which erroneously denied the entitlement. If the employee is able to demonstrate to the employer that the earlier determination proceeded upon erroneous assumptions or incorrect evidence, s 78 enables the employer to reconsider that earlier decision and make a determination which properly reflects the established circumstances. If the employer fails to make the correct decision, the Tribunal may do so in its place.
71 In the ordinary course, absent some conferred statutory ability to re-exercise a power to determine a matter, once a power is exercised to determine the rights of a subject, the exercise is final and conclusive: Re 56 Denton Road, Twickenham [1953] Ch 51; Thrasyvoulou v Secretary of State for the Environment [1990] 2 AC 273, 289. Importantly, in respect of the power so exercised, the donee of the power is functus officio: Chandler v Alberta Association of Architects [1989] 2 SCR 848 at 861-862; Minister for Immigration and Multicultural Affairs v Bhardwaj (2002) 209 CLR 597, [52]. However, the schemes of the SRC Act and the Seafarers Act do not operate in that way. They are somewhat unique in that they provide for "progressive and evolving decision-making" in relation to claims for compensation. In the Seafarers Act, s 78 is an important integer of the scheme. It is an express conferral of a power to reconsider a previously made decision, granted in general discretionary terms and which is exercisable on the employer's own initiative. It is exercisable even though a seafarer has commenced (or concluded) review proceedings before the Tribunal in respect of the original decision and the employer is not limited as to the manner in which the earlier determination might be altered. Necessarily, this removes any suggestion that the power to determine a claim is exhausted once a decision is validly made. It may, on its own initiative or on request from the employee, reconsider any previous decision.
72 In the exercise of the power in s 78 there are no express statutory limits on the information which the decision-maker might consider in making any determination. As Bennett J observed in Cheung: "Inherent in the provision for reconsideration is the concept that that reconsideration is untrammelled by any previous determination." Any information in the possession of the decision-maker which is relevant to its satisfaction that the injury or disease was contributed to in a material degree by the claimant's employment or to the nature and extent of the injury or disease must necessarily be taken into account such that the liability of the employer to pay compensation in accordance with the Act can be determined. That is consistent with the obligation of the Tribunal to determine whether the decision under review is the correct or preferable one on the material before the Tribunal: Morales v Minister for Immigration and Multicultural Affairs (1998) 82 FCR 374. In general, this means the Tribunal is required to consider the relevant and probative material which the parties place before it or which it acquires for itself. It would only be in the most exceptional cases that it will exclude reliance on seemingly probative material: Re Tarrant and Australian Securities and Investments Commission (2013) 62 AAR 192, [77].
73 In the present matter the decision which was the subject of review by the Tribunal was not a reconsideration of an earlier decision by the Commonwealth on its own initiative under s 78(1). It was a reconsideration of its earlier decision in relation to a new claim made by Mr Snell for what he said was the further sequelae of the "solar induced skin disease" which had been the subject of the 2013 decision. The Commonwealth submitted that it, as the original decision-maker, and the Tribunal on review, were able to reconsider the 2013 decision when considering the new claim. That decision, and in particular the conclusions concerning the cause of the skin damage, did not, so it was said, stand in the way of the determination of the new claim. Given what has been said above, that must necessarily be correct. That being so, there can be no limitation on the information which the decision-maker may consider in exercising powers under s 78(1) and, likewise, there can be no such limitation on the Tribunal. Where a party raises the existence of an earlier decision in the context of a consideration or reconsideration of a new claim, the power of the decision-maker to reconsider that earlier decision necessarily connotes the entitlement of the decision-maker to determine its correctness. That, in turn, necessarily means that the underpinning factual findings are open to reconsideration.
74 In the context of the above, the error of law which the Commonwealth submitted existed was that, given the wide powers of the Tribunal to consider the matter under review, it erroneously limited the evidence which it would evaluate in that process. In reliance on Matusko, the Tribunal accepted that s 33 of the AAT Act enabled it to control its procedures by refusing to allow a party to relitigate issues which had been determined by earlier proceedings save in particular circumstances. That included starting from a position that it ought not generally allow relitigation of issues already decided, and it would only do so where there was a reason. A number of examples were identified which were derived from the concept of issue estoppel and the concept of introducing "fresh evidence" on appeals.
75 In the circumstances of the present matter that approach was erroneous. Whatever be the scope of the power under s 33, it cannot extend, in the case of reviews of the exercise of power under s 78 of the Seafarers Act (or s 62 of the SRC Act), to justifying the non-consideration of material relevant to the performance by the Tribunal of its statutory function. Its obligations on review necessarily mirror those of the decision-maker under s 78 which expressly gives the power to reconsider previous decision. It would be most incongruous were the decision-maker, when exercising the powers under that section, to have the obligation to consider all relevant information, but the Tribunal might refuse to do so on the basis that its ability to reconsider earlier decisions was somehow limited.
76 Given that the existence of an earlier decision does not give rise to any limitation on the material which the Tribunal might consider on a review of a decision under the Seafarers Act, what then is the position when it is confronted with the existence of an earlier inconsistent decision? The general approach of Bennett J in Cheung ought to be adopted. Her Honour's reasoning gives full force and effect to the operation of s 62 of the SRC Act which expressly authorises the determining authority to reconsider decisions once made. In undertaking that reconsideration, both the decision-maker and the Tribunal are required to make a decision in accordance with the Act which necessitates assessing all material relevant to the issues to be decided. As Bennett J observed, the power in s 78 is untrammelled and there is no requirement to consider or take into account the earlier decision or to apply it. An earlier decision by the decision-maker (including an earlier decision of the Tribunal which is deemed to be that of the decision-maker) is information or material with which the Tribunal may inform itself (s 33(1)(c) of the AAT Act) and it can give it the weight which it considers to be appropriate. Where no new evidence has been advanced which relevantly undermines or alters the effect of the earlier decision it is most likely that, if the application for review is not disposed of in a summary manner, the earlier decision will have significant if not overwhelming weight. Where, on the other hand, new information is available which suggests the earlier decision was based on incorrect facts or limited knowledge, be it scientific knowledge or otherwise, the weight which might be afforded to the earlier decision may be minimal or non-existent.
77 The obligation of the decision-maker and of the Tribunal on review is to consider the material relevant to the claim being advanced. There is nothing in the scheme of the Seafarers Act which suggests that some higher justification for the reception of material is required. There is nothing which requires commencing the decision-making process with any predisposition that any relevant material ought not to be considered merely because the issue to which it is relevant has been determined as part of an earlier decision. To the contrary, the power to reconsider earlier decisions negates the suggestion that the entity exercising the power should or could refuse to take into account any relevant material. To do so would necessarily diminish the power to reconsider. Additionally, it may deny a claimant their entitlement under the compensation scheme or impose on an employer a liability for compensation for which it is not responsible. It would also impose a rigidity on the flexible and continuous decision-making process provided for in these compensation schemes. To the extent to which the decision in Matusko might suggest otherwise, such an approach is inconsistent with the statutory regimes in the Seafarers Act or the SRC Act.
78 That is not to say that dissatisfied employees under the Seafarers Act might simply make repetitious claims based on substantially the same facts and require the Tribunal to constantly review the rejection of the same by the employer. The Tribunal has considerable power under s 42B to expeditiously deal with any such applications for review. Such proceedings may be easily seen as frivolous, vexatious, misconceived or lacking in substance. Alternatively, they may be seen as an abuse of process and it is to be kept in mind that the categories of cases which fit that description are not closed and cannot be exhaustively defined. A careful review of the authorities concerning the concept of abuse of process was undertaken by Perry J in Novosel v Comcare (2017) 72 AAR 269 at [104]-[114]. Nevertheless, before the Tribunal determines to dismiss a proceeding relying on s 42B it would need to be satisfied that the proceeding was of such a nature that the issues raised should not be accorded a proper hearing.
79 Nor is it likely that an employer will inappropriately rely on s 78(1) to reconsider matters settled by the Tribunal without justification. That will inevitably lead to further proceedings in the Tribunal with the result that the original decision will be restored and the employer will be liable for the costs of such proceedings under s 92 of the Seafarers Act.
80 The conclusion to be drawn from the above is that the Tribunal erred in applying the principles in Matusko to the matter before it. Its obligation was to consider the material relevant to the decision which it was obliged to make. It was not limited in that consideration by the fact that some issues relating to the consequences of sun exposure to Mr Snell's conditions had been the subject of its prior decision. That decision created no limitation on the issues which it might decide nor as to the material which it might consider. The Tribunal erred by assuming that it ought start with a predisposition against receiving evidence relating to issues previously decided. The Commonwealth has established the Tribunal proceeded upon an error of law and the decision must be set aside.
81 For Mr Snell, it was submitted that, despite what was said by the Tribunal as to the principles which it intended to apply in determining whether to allow the issue of causation to be relitigated, there was no bias one way or the other in the actual decision. That is, it was said that the Tribunal did not actually start with the presumption that there should be no litigation of any issue which had previously been determined or that some reason had to be established before that could occur. That submission cannot be accepted. It is clear that the Tribunal sought to apply the principles in Matusko and commenced with a predisposition to the effect that the issue of the cause of Mr Snell's injury should not be relitigated. There are several passages in the reasons of the Tribunal where it indicated that this was the process which it was following. For example, paragraph 45 of the Tribunal's reasons and the heading which precedes it provide:
Should the Respondent be prevented from re-litigating this issue?
45. As noted above, once it has been established that an issue in a matter is the same as one that has been previously decided, the presumption that matters should not be allowed to be re-litigated arises. This presumption is neither final nor definite. Rather, the Tribunal must then turn to determining whether its discretion to allow for re-litigation should be utilised.
82 That is a fairly clear indication that the Tribunal approached the matter with a predisposition against allowing reconsideration of the previous decision and the submission that the Tribunal did not act this way must be rejected. Moreover, it would be a practice fraught with difficulty for a court on review or on appeal to disbelieve that the Tribunal did not faithfully reason in the manner in which it expressly said that it did.
83 It was submitted by the Commonwealth that the case which it now seeks to advance was not inconsistent with the 2013 decision. It was said that decision was concerned with the skin conditions then being suffered, being removed melanomas and the like, and the case now being advanced concerned the metastatic malignant melanomas which, so it was said, were caused by childhood exposure to sun. The difficulty with that submission is that the Tribunal found that the metastatic malignant melanomas had been caused by, developed from or were part of the same condition as the solar induced skin disease which was the subject of the earlier decision. It was not suggested that this finding was vitiated by jurisdictional error. Necessarily, that finding, linked with the 2013 decision, had the consequence that the suggestion now being advanced by the Commonwealth would be inconsistent with the 2013 decision because the logical consequence of accepting the Commonwealth's argument would be that the solar induced skin disease was not contributed to in a material degree by Mr Snell's employment. The Commonwealth's submission in this respect cannot be accepted.