Administrative Appeals Tribunal Act 1975 ss 33, 42B, 42(1)(b)

Safety Rehabilitation and Compensation Act 1988 ss 4(1), 14(1), 53(1), 124(2)

Autodeck Inc and Another v Dyason and Others [No. 2] [1993] HCA 6; (1993) 176 CLR 300

Dey v Victorian Railways Commissioners [1949] HCA 1; (1949) 78 CLR 62

Rana v Military Rehabilitation and Compensation Commission [2005] FCA 6

Re Harrington and Military Rehabilitation and Compensation Commission [2005] AATA 384

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

Re Mr R. and: Commonwealth of Australia No.S86/207 AATA 4293

Re "SAN" and Comcare [2004] AATA 445

University of Wollongong v Metwally [No. 2] (1985) 59 ALJR 483

The applicant, Mr Rana, was born in Nepal and is aged 50. In 1984, he lodged a claim for a psychiatric condition resulting from his employment with the Australian Army. This was refused by the respondent and the decision affirmed by the Administrative Appeals Tribunal in 1988. In 2001, he lodged a further claim for the psychiatric conditions of paranoid psychotic reaction and post traumatic stress disorder which was rejected on 9 October 2001. That decision was affirmed by the Administrative Appeals Tribunal on 6 May 2004. An appeal to the Federal Court was dismissed on 12 January 2005, as was a further appeal to the Full Federal Court on 18 May 2005.

On 31 January 2005, Mr Rana lodged a further claim for compensation for psychological conditions including paranoid schizophrenia caused by serial physical assaults, racial vilification and sexual harassment during his service in the Australian Army. On 1 February 2005, the claim was rejected on the ground that it was essentially the same claim as had previously been rejected in 1988 and 2004. The decision was affirmed by the Director, Military Compensation and Rehabilitation Service, on 14 February 2005 and on 7 March 2005 the applicant lodged an application for a review of that decision by the tribunal.

Mr Rana was born in Nepal on 24 April 1955 and is aged 50. He came to Australia in 1978 after having married an Australian citizen from whom he was later divorced. He joined the Australian Army on 14 October 1980 and was discharged on 13 July 1982 on the ground that "retention of the soldier in the Army is not in the interests of Australia or the Army" (Regulation 176(1)(N)).

4.

On 4 September 1984, Mr Rana lodged with the Department of Defence a claim for compensation for a psychiatric condition arising out of his employment with the Australian Army in particular that he was subjected to racial discrimination. His claim was rejected and the decision affirmed by the Administrative Appeals Tribunal ("AAT") on 22 April 1988: Re Mr R. and: Commonwealth of Australia No. S86/207 AATA No. 4293.

On 28 August 2001, the applicant made a further claim for compensation with the Department of Veterans' Affairs (the responsibility for claims for compensation having been transferred from the Department of Defence to Veterans' Affairs on 7 December 1999) for psychiatric conditions caused by physical and emotional harassment during his service in the Australian Army. This claim was rejected on 9 October 2001 and on 6 May 2004, the decision was affirmed by the Administrative Appeals Tribunal in respect of two specific conditions, paranoid psychosis and post traumatic stress disorder: Re "SAN" and Comcare [2004] AATA 445. Mr Rana appealed that decision to the Federal Court of Australia on two grounds, the denial of natural justice and the improper use of discretion using the wrong principles of law based on erroneous facts: Rana v Military Rehabilitation and Compensation Commission [2005] FCA 6. On 12 January 2005, Finn J dismissed his appeal, stating, after considering Mr Rana's 49 page document entitled "Outline of Submissions" that "the complaints themselves to the extent that I can understand them do not, on the material before me translate readily or, for the most part, at all into questions of law for the purposes of s 44 of the AAT Act" (T p127). An appeal to the Full Federal Court was dismissed on 18 May 2005.

On 31 January 2005, the applicant lodged with the Military Compensation and Rehabilitation Service, Department of Veterans' Affairs, a fresh claim for paranoid schizophrenia arising out of his service in the Australian Army, in particular caused by serious non sexual physical attacks, racial and sexual harassment and name calling. By letter dated 1 February 2005 (T p131), the director of Military Compensation and Rehabilitation Services, Department of Veterans' Affairs, informed the applicant:

Your Claim raises no new issues

I consider that your claim for paranoid schizophrenia is essentially the same claim as that previously considered in the AAT in S1986/207 and S2001/378. I further note that your claims for non-sexual assault and harassment were specifically dealt with in the AAT's decision published on 22 April 1988 (matter no. S1986/207), for which you have been properly compensated.

Accordingly, I do not intend to further consider your claim for paranoid schizophrenia.

Mr Rana requested a review of that decision and on 14 February 2005, the director of Military Compensation and Rehabilitation Services, further informed the applicant (T p136):

Email requests for determination as Fresh Claim or Reconsideration

I note that your emails request that we treat your claim for "paranoid schizophrenia based on non-sexual serial physical attacks and other abuses" as a fresh claim or request for reconsideration.

My letter to you dated 1 February 2005 explained why we cannot consider your claim as a fresh claim. The reason is that your claim for paranoid schizophrenia is the same claim as that previously considered in the AAT in Action numbers S1986/207 and S2001/378. Your claims for non-sexual assault and harassment were specifically dealt with by the AAT in Matter No. S1986/207, published on 22 April 1988.

Given that this matter was considered and decided by the AAT in 1988, it is not appropriate that I consider this claim again. In these circumstances, I refuse to review the matter.

On 7 March 2005, Mr Rana lodged an application for a review of that decision with the tribunal's Adelaide registry (T p3). On 14 April 2005, the respondent lodged with the tribunal the documents produced pursuant to section s 37 of the Administrative Appeals Tribunal Act 1975 (referred to as "the T Documents"). On 15 April 2005, the applicant lodged with the tribunal a document titled "Military Police Investigation". On 18 April 2005, he lodged with the tribunal an affidavit sworn by himself on 23 February 2005, an outline of submissions (with annexures), a further affidavit by himself sworn 18 April 2005 and a bundle of further material. On 3 June 2005, Mr Rana filed two large black folders with the tribunal containing his "submission about the jurisdiction issues raised by the Respondent". In his submissions he states, inter alia:

... my previous case was about not having effect of work related contribution beyond April 1985, as the aggravation of adjustment disorder or reactive depression or an element of personality disorder had ceased. However, the present case is about having a different psychiatric disorder called delusional disorder, which is a specific family of paranoid psychotic schizophrenia contributed by the same facts and circumstances based on the previously admitted liability of the respondent. It is going to last for the rest of my life.

Present case is about the diagnosis termed Paranoid Schizophrenia by Professor Doctor Bal Jha. This he tells me is different than that of Delusional Disorder/Paranoid Disorder (psychosis). In 2004, he told me that Paranoid Schizophrenia is all about command hallucinations and patient acting out bizarrely. Paranoid Disorder on the other hand is about non bizarre psychosis without command hallucinations. Further, he indicated that in the continuum of mental illness that I have developed reactive depression, anxiety disorder, post traumatic disorder, personality disorder, paranoid disorder (PTSD) and finally paranoid schizophrenia. It is only now that the full picture of the illness is blown out. Thus he indicated that the elements of paranoid schizophrenia were there from early 1981 and the condition was always there in that respect. ... it is Dr Bal Jha's opinion that I have been horribly suffering paranoid schizophrenia since early 1981. Even, Dr. Hoff had given probability that I had PTSD and that Dr. Pasquale had considered in 1986 that I may had psychosis. Furthermore, the trauma that I have suffered be it sexual and/or non sexual assaults as a series with other minor abuses regularly then the impact of that suffering in terms of consequences are artificial. The article 'The Psychological Impact of Non Sexual Criminal Offences on Victims' by Trevor Markestyn that is before the Tribunal's file in this matter for submission is the case in legal point for expanding the inquiry to cover all the developmental bases as commented by Dr. Jha correctly. The issue of estoppel is irrelevant in the interests of justice and public interest. The Tribunal should use the relevant consideration doctrine as a reasonable base to decide this matter. ... The new Tribunal must ask the question properly of visiting the old cases afresh not in terms of liability but to give me justice in the issue of psychiatrical development of the paranoid schizophrenia history/chronology.

On 12 May 2005, at a preliminary conference held in the matter, the parties agreed that the matter be decided "on the papers", that is, without an oral hearing.

On 10 June 2005, the respondent filed its submissions on the preliminary hearing (Exhibit R102). In that document, the respondent summarised its position as follows:

1. The Respondent submits that the Administrative Appeals Tribunal (the Tribunal) should dismiss the Application by applying the principle of estoppel and pursuant to section 33 of the Administrative Appeals Tribunal Act 1975 (the AAT Act) refuse to accept any evidence in relation to the Applicant's claim for paranoid schizophrenia.

2. In the alternative, the Respondent submits that the Tribunal should dismiss the Application pursuant to section 42B of the AAT Act.

3. And finally the Respondent submits that if the Tribunal considers it appropriate, it should pursuant to subparagraph 42(1)(b) direct the Applicant not to make, without leave of the Tribunal, a subsequent application for compensation pursuant to the Safety Rehabilitation and Compensation Act (SRC Act) for a psychiatric condition said to arise out of his employment with the Army, or whatever form of direction the Tribunal considers appropriate.

The respondent also submitted that the condition of paranoid schizophrenia was explored and considered by the tribunal in 2004 and that it did not exclude evidence of whether the applicant was suffering from that condition when considering the applicant's claim for compensation for his mental illness arising out of his employment with the army. The respondent noted Mr Rana had questioned his expert, Dr De Pasquale, about schizophrenia on 1 September 2003 and the tribunal had questioned Dr Davis, expert for the Department of Veterans' Affairs, about this condition on 4 September 2003. "23. The condition of paranoid schizophrenia was clearly before the Tribunal as a possible condition the Applicant had. However, the medical evidence indicated it was unlikely he had this condition. 24. The Tribunal did not make a specific finding in its decision about whether the Applicant had paranoid schizophrenia as the evidence before it was that he had paranoid psychosis. The Tribunal accepted that he had paranoid psychosis but it was not caused by his employment with the Army." (Exhibit R102).

On 20 July 2005, a telephone directions hearing was held in the matter. On the same day, the tribunal directed that, bearing in mind the long and involved history of the matter, in the interests of justice, the applicant be given a full opportunity to make oral submissions as to why the matter should not be dismissed and the matter fixed for hearing.

In September, prior to the hearing, Mr Rana lodged with the tribunal a letter alleging that the South Australian Police were persecuting him and enclosing copies of police statements in respect of criminal proceedings taken against him.

At the hearing, which took place in Adelaide, the applicant appeared in person and the respondent was represented by Katherine Bean, counsel, instructed by Elizabeth Reed, solicitor, of the Australian Government Solicitor's office in Adelaide. The evidence before the tribunal comprised the documents produced pursuant to s 37 of the Administrative Appeals Tribunal Act 1975 ("the T Documents") together with the evidence submitted by the parties prior to the hearing. No oral evidence was called and the hearing consisted of submissions only.

The principal legislation in this matter is the Safety Rehabilitation and Compensation Act 1988 ("the 1988 Act"), the relevant provisions of which came into effect on 1 December 1988. Part X, Division 2 of the 1988 Act contains transitional provisions in respect of injuries or diseases that occurred or were contracted before that date. In particular, s 124(2) states relevantly:

124. Application of Act to pre-existing injuries

...

(2) A person is not entitled to compensation under this Act in respect of an injury, loss or damage suffered before the commencing day if compensation was not payable in respect of that injury, loss or damage:

(a) where the injury, loss or damage was suffered before the commencement of the 1930 Act--under the 1912 Act;

(b) where the injury, loss or damage was suffered after the commencement of the 1930 Act but before the commencement of the 1971 Act--under the 1930 Act as in force when the injury, loss or damage was suffered; or

(c) in any other case--under the 1971 Act as in force when the injury, loss or damage was suffered.

Section 14(1) of the 1988 Act provides that Comcare is liable to pay compensation in accordance with the Act in respect of an injury suffered by an employee if the injury results in death, incapacity for work, or impairment.

Section 4(1) of the 1988 Act provides the following definitions:

aggravation includes acceleration or recurrence.

ailment means any physical or mental ailment, disorder, defect or morbid condition (whether of sudden onset or gradual development).

disease means:

(a) any ailment suffered by an employee; or

(b) the aggravation of any such ailment;

being an ailment or an aggravation that was contributed to in a material degree by the employee's employment by the Commonwealth or a licensed corporation.

impairment means the loss, the loss of the use, or the damage or malfunction, of any part of the body or of any bodily system or function or part of such system or function.

injury means:

(a) a disease suffered by an employee; or

(b) an injury (other than a disease) suffered by an employee, being a physical or mental injury arising out of, or in the course of, the employee's employment; or

(c) an aggravation of a physical or mental injury (other than a disease) suffered by an employee (whether or not that injury arose out of, or in the course of, the employee's employment), being an aggravation that arose out of, or in the course of, that employment;

but does not include any such disease, injury or aggravation suffered by an employee as a result of reasonable disciplinary action taken against the employee or failure by the employee to obtain a promotion, transfer or benefit in connection with his or her employment.

Notice of injury or loss of, or damage to, property

(1) This Act does not apply in relation to an injury to an employee unless notice in writing of the injury is given to the relevant authority:

(a) as soon as practicable after the employee becomes aware of the injury; or

(b) if the employee dies without having become so aware or before it is practicable to serve such a notice--as soon as practicable after the employee's death.

In its decision of 6 May 2004 (Re "SAN" and Comcare [2004] AATA 445), the tribunal determined that the applicant had complied with the notification requirements in the 1988 Act and therefore it was the relevant legislation.

The issue for the tribunal to determine in this case is whether the application filed by the applicant on 31 January 2005 relates to a fresh claim relating to his war service or is essentially the same claim determined by the AAT in 2004 and as such, should be dismissed by the tribunal.

As was mentioned above, no oral evidence was adduced at the hearing. The respondent relied on its detailed written submissions dated 10 June 2005 (Exhibit R102) which are outlined above. In oral argument Ms Bean stressed that the paranoid schizophrenia which was the basis of the applicant's new claim was closely related to the paranoid delusional disorder (at times referred to in the earlier proceedings as "paranoid psychosis"). Dr Davis in the earlier proceedings had specifically considered and rejected a diagnosis of paranoid psychosis and Dr de Pasquale had also given consideration to it. The Diagnostic and Statistical Manual of Mental Disorders (DSM-IV) also demonstrates the close relationship of those two conditions (Exhibit R101 pp284-287). Dr Jha in the Federal Court had expressed the view that Mr Rana was suffering from paranoid schizophrenia originating in 1981, but was essentially giving a different diagnosis to the same symptoms as had existed all along. In Re Quinn and Australian Postal Corporation (1992) 15 AAR 519, the tribunal had stressed that it was inappropriate and unreasonable 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 considers that there are strong reasons, both in case law and expressed in public policy, to limit the relitigation or continual review of substantively similar matters.(p526).

Even if the two conditions were different, Ms Bean contended, the causation issue would be the same, with the result that the tribunal's earlier findings that the applicant's illness did not result from his army service would still apply. The medical evidence suggested that the one condition was a progression, or more severe manifestation, of the other. Further inquiry was inappropriate for that reason alone, especially as the earlier claim had been thoroughly canvassed over 11 hearing days.

The allegation that the applicant had been sexually assaulted was crucial to the existence of a causal link between his army service and his condition. The tribunal had found that the allegation was without substance and its decision has been upheld by the Federal Court and by the Full Court of the Federal Court.

There was no prospect of the tribunal reaching a different conclusion from that which it reached in 2004 because there was no additional exposure to circumstances that might have caused the condition, no further factors in relation to service, and no other change in the facts. The recent diagnosis of paranoid schizophrenia would not lead to a different result because of the lack of causation. The applicant had begun seeing Dr Jha in December 1993 and had seen him on several other occasions in the course of the original hearing. The applicant must have been aware of Dr Jha's opinion about paranoid schizophrenia during the course of the hearing and knew as an experienced litigator that he could call him as a witness.

Mr Rana in his oral submissions, supplementing the written material mentioned above, stated that he had recently been diagnosed with diabetes, which his treating doctor said was related to stress. He had lodged a claim on that basis with the respondent but apparently no formal decision was yet forthcoming. His paranoid schizophrenia, he said, was contributing to the pancreatic disorder that was causing diabetes, and consequently constituted a new claim. Mr Rana did not, however, adduce any medical evidence showing that he was suffering from diabetes or that it was linked with stress that in turn resulted from his paranoid schizophrenia.

Mr Rana submitted that the Tribunal had made it clear in Re Harrington and Military Rehabilitation and Compensation Commission [2005] AATA 384, that there was nothing to prevent the Tribunal from reconsidering all the issues when considering a fresh claim for a different condition which it was claimed had arisen by reason of an earlier condition.

On the question of causation, Mr Rana conceded that he had been unable to prove at the earlier hearing that he had been sexually assaulted, and said it was because he was unable to articulate his claim properly and had lost credibility as a result. In his submission, however, it did not make much difference whether sexual assaults had occurred or not. Even on the facts as found, the earlier tribunal had failed to understand the kinetic way in which the disease develops and had not considered the cumulative effects of the non-sexual assaults. That, he said, was because in the earlier proceedings the tribunal's mind had been made up in advance. It had been biased again him and he had recently commenced proceedings in the original jurisdiction of the High Court for certiorari (File No. A48/2005). Consequently, if the new application were allowed to proceed the tribunal's findings on causation could be different because the earlier conclusion was affected by what he termed the bias of the Adelaide-based members.

In reply on behalf of the respondent, Ms Bean pointed out that the applicant had raised the issue of procedural fairness in the Federal Court, but Justice Finn had found that no error had been made by the AAT and his view was upheld by the Full Federal Court. The possibility of procedural defects had thus been considered and agitated in the Federal Court.

The respondent did not dispute Mr Rana's proposition based on Re Harrington (supra) that the presentation of a fresh claim for a different condition would make it permissible to reopen factual issues decided in an earlier application, but in this case the overlap and close relationship between the two psychiatric conditions, and their common causative factors, meant that the fresh claim rule did not apply. The High Court in Autodesk Inc and Another v Dyason and Others [No. 2] [1993] HCA 6; (1993) 176 CLR 300 at 303, 309, 310 had made it clear that prior decisions were not to be reopened for the purpose of re-agitating arguments already considered or because a party has failed to present the argument in all its aspects or as well as it might have been put. An earlier judgment should not be vacated "merely because it is submitted by the unsuccessful party that, on further argument, the Court would be satisfied that it had reached the wrong conclusion in law" (p 309). Quoting University of Wollongong v Metwally [No. 2] (1985) 59 ALJR at 483, the court said

Except in the most exceptional circumstances, it would be contrary to all principle to allow a party, after a case had been decided against him, to raise a new argument which, whether deliberately or by inadvertence, he failed to put during the hearing when he had an opportunity to do so. (p310)

This was quite independent of any considerations of issue estoppel or Anshun estoppel.

The applicant's proceedings in the High Court were not relevant to the application now before the tribunal. If those proceedings were successful, the matter would be remitted to the tribunal for rehearing, but those proceedings had first to take their course.

As stated above, the issue for the tribunal to determine is whether the claim lodged by Mr Rana on 31 January 2005 relates to a new claim for compensation in accordance with the provisions of the 1988 Act or is essentially the same claim as has been previously dealt with by the Administrative Appeals Tribunal.

As there is no evidence before the tribunal concerning Mr Rana's claim that he his now suffering from diabetes, or that, if he does, it is the result of his pre-existing psychiatric condition, I can give no weight to that allegation.

As regards the claim of paranoid schizophrenia, I am satisfied that it was considered in the proceedings before the tribunal in 2003-2004. Both psychiatrists who gave evidence referred to that possibility. There was no specific finding on the issue of paranoid schizophrenia because the tribunal reached the conclusion that the applicant was suffering from paranoid delusional disorder. The situation would be more clear-cut if there had been a specific finding, but as the High Court pointed out in Dey v Victorian Railways Commissioners [1949] HCA 1; (1949) 78 CLR 62 at 84, the summary procedure of dismissing an action as vexatious is not confined to cases involving a question of no difficulty. The question was whether there was an opportunity for full argument and full consideration of the question raised. In this case there was a hearing extending over 11 days, in the course of which the applicant was almost certainly aware of Dr Jha's opinion that he was suffering from paranoid schizophrenia.

In any event, as the respondent pointed out, the psychiatric evidence shows that the two conditions are closely related and that one can emerge by a process of progression from the other. Further, the applicant has established no grounds for considering that the tribunal would reach a different conclusion on the question of causation from that which it reached in 2004. His argument is essentially that the tribunal's reasoning process was inadequate, but that resembles the argument rejected by the High Court in Autodesk (supra). His proposition that the whole issue of causation is now sub judice by reason of his certiorari proceedings in the High Court against the Federal Court's upholding of the 2004 tribunal decision misunderstands the nature of those proceedings. If the applicant is successful in obtaining certiorari, the 2003 application will be remitted to the tribunal for a rehearing, but that it is not a ground for permitting a new application that would reagitate issues that have already been considered.

In my view the respondent's submissions are well founded and the current application seeks essentially to relitigate issues that have been the subject of an earlier tribunal decision. In Dey v Victoria Railways Commissioners (supra), Latham CJ said that

If a Court is of opinion that the plaintiff cannot succeed there is every reason for protecting a defendant from vexation by the continuance of proceedings which must be useless and futile." (p84)

Section 42B of the AAT Act gives the Tribunal the power to dismiss an application if it is satisfied that the application is frivolous or vexatious. The term "frivolous" does not apply here; it is apparent that Mr Rana genuinely thinks he has a claim and there is no evidence that he has brought the proceedings in an attempt to make a symbolic gesture or for any other extraneous purpose.

He has, however, had an opportunity over an 11 day hearing to pursue his claim for paranoid schizophrenia on the same factual basis as the current application. If the new application were allowed to proceed, witnesses who gave evidence in the 2004 tribunal hearing would have to be recalled, some of whom were alleged to have committed very serious assaults on the applicant and have already been subjected to cross-examination by the applicant on those issues. That exercise would put the respondent to great expense and would be embarrassing to the respondent, who has already had to arrange for witnesses to give evidence on those issues before. No new facts or other grounds have been shown that would give a basis for thinking that the tribunal might reach a different decision from that delivered in 2004.

For all the above reasons I think the application is vexatious and it should be dismissed under s 42B. Having reached that conclusion, it is not necessary for me to consider the law relating to issue estoppel or Anshun estoppel or the manner in which a discretion under s 33 should be exercised.

I also think it appropriate that an order be made under s 42B(1)(b) directing that the applicant must not, without leave of the tribunal, make a subsequent application to the tribunal of the kind dealt with in its 2004 decision between the present parties.

I certify that the 40 preceding paragraphs are a true copy of the reasons for the decision herein of Professor GD Walker, Deputy President

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

Associate

Date/s of Hearing 5 October 2005

Date of Decision 24 October 2005

Representative for the Applicant Self-represented

Counsel for the Respondent Ms K Bean

Solicitor for the Respondent Ms E Reed, Australian Government Solicitor's office