4.2.5 The conclusion that application no. 2015/877 was an abuse of process
104 It has long been held in the context of judicial proceedings that the categories of abuse of process are not closed: Batistatos v Roads and Traffic Authority of New South Wales [2006] HCA 27; (2006) 226 CLR 256 (Batistatos) at 265 [9] (Gleeson CJ, Gummow, Hayne and Crennan JJ). Rather, as Gaudron J explained in Ridgeway v The Queen (1995) 184 CLR 19 at 75 (in a passage quoted with approval in Batistatos at 266-267 [14] (Gleeson CJ, Gummow, Hayne and Crennan JJ)):
Abuse of process cannot be restricted to 'defined and closed categories' because notions of justice and injustice, as well as other considerations that bear on public confidence in the administration of justice, must reflect contemporary values and, as well, take account of the circumstances of the case.
105 Nonetheless certain categories are well-established. As Justice McHugh observed in Rogers v R [1994] HCA 42; (1994) 181 CLR 251 at 286:
…abuses of procedure usually fall into one of three categories: (1) the court's procedures are invoked for an illegitimate purpose; (2) the use of the court's procedures is unjustifiably oppressive to one of the parties; or (3) the use of the court's procedures would bring the administration of justice into disrepute. Many, perhaps the majority of, cases of abuse of procedure arise from the institution of proceedings. But any procedural step in the course of proceedings that have been properly instituted is capable of being an abuse of the court's process. In Walton v. Gardiner [(1992) 177 CLR 318 at 393], Mason CJ, Deane and Dawson JJ said that the jurisdiction to stay proceedings that are an abuse of process 'extends to all those cases in which the processes and procedures of the court, which exist to administer justice with fairness and impartiality, may be converted into instruments of injustice or unfairness'.
106 In line with these principles, even in cases where re-litigation of an issue may not be barred by res judicata or an issue estoppel, nonetheless the institution or continued pursuit of proceedings may constitute an abuse of process.
107 In expressly empowering the Tribunal summarily to dismiss proceedings under s 42B(1)(c) of the AAT Act on the ground that they constitute an abuse of process, it is apparent that the Parliament intended to empower the Tribunal to protect its own processes against analogous forms of abuse. Thus, the AAT found in Re Quinn v Australian Postal Corporation (1992) 15 AAR 519 at 526 (upon which the Tribunal here relied) that:
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.
108 The same approach was adopted by Hack DP in Re Grimsley v Telstra Corporation Ltd [2010] AATA 106; (2010) 51 AAR 401 at [11] in finding that it would be unfair to Telstra to permit the applicant in that case to re-litigate issues already determined in earlier proceedings by a consent decision. As the Deputy President held 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 regarded as unfair to Ms Grimsley to not permit her to agitate the very issue determined by consent on 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.
109 The applicant, however, relied upon the fact that a claimant may lodge further claims even after an adverse decision of the Tribunal in line with the object of the SRC Act to allow progressively for ongoing relief where circumstances change (see above at [14]). In other words, the Tribunal and original decision-makers did not have power to make a decision that extended beyond the date of the decision: Plumb v Comcare (1992) 39 FCR 236 (Plumb) at 240 (Lockhart J (with whose reason Black CJ and Gummow J agreed)). Thus, as Cooper J held in Australian Postal Corporation v Oudyn [2003] FCA 318 (Oudyn), a determination under a section of the SRC Act:
33. …operates in respect of the claim then in existence for the payment of compensation under that section. It does not operate as a bar to future claims in respect of that injury if the circumstances under the section can be made out again in the future, or if it can be brought under another applicable section of the Act.
34. [The determining authority] cannot bind itself in advance to reject any future application on the basis of a determination made to cease payment of compensation for an injury under a particular section of the Act: Plumb v Comcare (1992) 39 FCR 236 (FC) at 240.
(See also e.g. Australian Postal Corporation v Mowbray [2003] FCA 1258; (2003) 134 FCR 179 at [28] (Stone J)
110 The short answer to the applicant's submission, however, is that the fact that an applicant may be able to bring a further claim does not mean that if a further claim is made, it cannot constitute an abuse of process in the circumstances of the particular case: see by analogy Batistatos at [63]-[65]. Thus authorities such as Plumb and Oudyn do not assist where, as here, the Tribunal found that there was no new evidence warranting a further decision contrary to the applicant's submission.
111 The applicant also submitted that:
There was no evidence from Comcare that it had negotiated with respect to s 19 (which it had not), nor that it had acted on the basis that it considered it was settling a claim with respect to s 19 (which it did not) or that it was prejudiced in any way by the manner in which it had agreed to the consent orders (which it was not). The only "palpable prejudice" Comcare identified was that it might have to pay a legitimate claim…
112 Presumably the applicant's submission is that there could therefore be no unfairness or oppression in permitting him to re-litigate the s 19 liability issue in AAT 2015/877. That submission, however, overlooks the fact that the onus lies upon the applicant to establish a jurisdictional or other error of the kind that could attract the grant of relief sought, rather than upon Comcare to rebut the allegation. It also overlooks the fact that abuse of process is not merely concerned with prejudice to a respondent but also with matters of broader public policy. Thus, principles of res judicata, issue estoppel and the like in judicial proceedings, are underpinned by broader issues of public policy, namely, that it would be an abuse of process to allow parties to litigate repeatedly matters that have been finally determined by the Court not only because "a person ought not to be vexed twice for one and the same cause", but also because it is in the interests of the State that there be an end to litigation: see e.g. Wong v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 242; (2004) 146 FCR 10 (Wong) at [36]-[37]. The same policy considerations may equally inform the Tribunal's approach to issues of abuse of process as they would plainly promote the objective which the Tribunal is to pursue by virtue of s 2A of the AAT Act, namely, to provide a mechanism of review that is fair, just, economical, informal and quick. In any event, I accept the respondent's submission that the prejudice to Comcare is clear in circumstances where the applicant, inconsistently with prior agreements and his earlier conduct in withdrawing claims, has brought yet another application to the Tribunal in relation to the same claim. As Comcare submits, such conduct increases the time, expense and allocation of resources that Comcare needs to devote to repeatedly answering the same claim over many years. Moreover the fact that the applicant may not have raised the issue in the negotiations leading to the consent decision in AAT application no 2013/1438 is ultimately not to the point. It may be an abuse of process not only to re-litigate the same issue twice, but also to seek to litigate an issue that properly belonged to the earlier litigation: Wong at [37] (by analogy).
113 Finally, I do not consider that there is any merit in the suggestion by the applicant that in effect the Tribunal wrongly applied principles of issue estoppel and res judicata. It is plain from the Tribunal's acceptance at the critical point of its reasoning of the statement in Quinn that it "should not generally allow relitigation of issues already decided" that the Tribunal did not consider it was bound to dismiss the application because the applicant sought to relitigate issues already resolved by earlier Tribunal decisions.
114 That being so and having regard to the matters considered at [88]-[103] above, it cannot in my view be said that the Tribunal fell into reviewable error in determining that in the circumstances, the applicant's relitigation of the issue of Comcare's liability under s 19 of the SRC Act in relation to his left knee amounts to an abuse of process for the purposes of s 42B(1) of the AAT Act. It was open to the Tribunal in law to find that the second Oakeshott report did not provide a sufficient reason for the applicant to relitigate the s 19 liability for his left knee determined by consent in 2013/1438.