Case: Re Quinn and Australian Postal Corporation (1992) 15 AAR 519
Outcome: referred to
33 of the AAT Act provides for the Tribunal the flexibility needed to control its processes in the ordinary course, as pointed out in Re Quinn and Australian Postal Corporation (1992) 15 AAR 519. Ms Cheung draws attention to the comments by President O'Connor and Mr Barbour in Re Quinn at [32] where they pointed out that a Tribunal should not generally allow relitigation of issues already decided and that previous Tribunal decisions should be regarded as establishing the matters actually decided and the grounds for the determination. They gave as examples compensation cases, where issues of causation and level of incapacity for the period the subject of the earlier decision would not be areas contested in a subsequent hearing. Confirming that estoppel does not apply where there is a ' different decision [to be reviewed] , a clear legislative intent, the reconsideration decision is not "final" and there has been prima facie a change in circumstances ', Re Quinn emphasised the flexibility provided for in s 33 of the AAT Act to enable the Tribunal to control its processes. The thrust of Ms Cheung's submissions is that, while the 2008 Tribunal was not estopped from reconsidering the issues the subject of the 2001 Tribunal decision, it was at least required to have regard to that decision. It was open to the 2008 Tribunal to apply the previous decision to some or all of its findings and, Ms Cheung submits, the 2008 Tribunal was obliged to consider whether or not to do so. She submits that the failure even to consider the exercise of such a discretion, or to consider whether or not the previous decision should be applied or given weight, is an error of law. Further, the failure to provide reasons for taking the course that it did is, Ms Cheung submits, a further error of law. There is no dispute in the present case that there were determinations under the SRC Act followed by reconsideration of those determinations which gave rise to the 2008 Tribunal decision. As Sackville J pointed out in Power 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 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 at 526 citing Re Quinn ). No issue as to the Tribunal's discretionary power was raised in Power .