Abrahams and Comcare - [2008] AATA 572

Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2008] AATA 572
ADMINISTRATIVE APPEALS TRIBUNAL )
) No A2007/0046

GENERAL ADMINISTRATIVE DIVISION )

Re GAVIN ABRAHAMS

Applicant

And

COMCARE

Respondent

DECISION

Tribunal Senior Member, Mrs Josephine Kelly
Date3 July 2008
PlaceSydney

Decision
The proceedings are dismissed pursuant to s 42B of the Administrative Appeals Tribunal Act 1975.

....................[sgd]....................
Senior Member
Mrs Josephine Kelly

CATCHWORDS
COMPENSATION – Federal Court Remittal – Claim for injury to right hand and wrist - Reconsideration by Comcare of earlier decision after remittal – Costs – Assertion that proceedings rendered abortive – Whether power to make a decision – Whether power to order costs – Proceedings frivolous or vexatious or no jurisdiction – Application dismissed
Administrative Appeals Tribunal Act 1975, ss 25, 34D, 42B, 42C, 43
Safety, Rehabilitation and Compensation Act 1988, ss 14, 16, 24, 62, 64, 67
Abrahams v Comcare (2006) 93 ALD 147
Attorney-General v Wentworth (1988) 14 NSWLR 481
Re Abrahams and Comcare (2006) 44 AAR 14; [2006] AATA 793
Re Coyne and Comcare Australia (1995) 37 ALD 553
Re Knight and Comcare (1994) 20 AAR 455
ReWilliams and Australian Electoral Commission (1995) 21 AAR 467
REASONS FOR DECISION

3 July 2008 Senior Member, Mrs Josephine Kelly

SUMMARY
1.      These proceedings, A2007/46, have been remitted "for further consideration according to law" by Justice Madgwick of the Federal Court (see Abrahams v Comcare (2006) 93 ALD 147). His Honour's opening sentence in that decision was: "This is an unfortunate case". If that were the situation on 6 December 2006 when His Honour published his decision, it is difficult to find the words to describe its state before me.
2.      The issue driving these proceedings, probably since April 2006, is the question of costs.
3.      The claim the subject of these proceedings was made in July 2003 (the 2003 claim) for injury to the right hand and wrist, specified as carpal tunnel syndrome, which first happened on 1 June 2002 at 8:30 am.
4.      Mr Abrahams had made an earlier claim in 2001 for "overuse injury affecting the right arm" (the 2001 claim).   Comcare accepted liability for a "sprain of shoulder and the upper arm (right)", "sprain of unspecified site of elbow and forearm (right)" and "neck sprain" on 24 July 2001. In February 2003 a "cease liability" decision was made in respect of that claim.
5.      The current dispute between the parties arose after Justice Madgwick published his decision, and before the matter came on for hearing on remittal before me on 21 June 2007.
6. On 25 May 2007, Comcare made a reconsideration decision pursuant to s 62 of the Safety, Rehabilitation and Compensation Act 1988 (the Act) in relation to the February 2003 "cease liability" decision. The reconsideration decision was that Mr Abrahams suffered "chronic pain syndrome affecting the whole of the arm including the wrist/hand from 16 May 2001" which was relevantly caused by his employment.   The significant finding was acceptance of liability for the right wrist/hand,…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Abrahams and Comcare

Details

AGLC: Abrahams and Comcare [2008] AATA 572
Case: [2008] AATA 572
Decision Date: 3 July 2008

CaseChat Overview and Summary

In the case of Abrahams and Comcare, the applicant, Abrahams, sought compensation from Comcare for an injury sustained to his right hand and wrist. The dispute was brought to the Federal Court for a decision on whether Comcare's reconsideration of the earlier decision after remittal was justified, and whether the court had the power to order costs. The applicant argued that the proceedings were rendered abortive and that the tribunal had no power to make a decision or order costs. The applicant also claimed that the proceedings were frivolous or vexatious or that there was no jurisdiction. The court was tasked with determining the validity of the tribunal's decision, its power to order costs, and whether the proceedings were frivolous or vexatious.

The court examined the legal framework provided by the Administrative Appeals Tribunal Act 1975 and the Safety, Rehabilitation and Compensation Act 1988 to assess the tribunal's power and jurisdiction. The court considered previous cases such as Attorney-General v Wentworth, Re Coyne and Comcare Australia, Re Knight and Comcare, and Re Williams and Australian Electoral Commission for guidance. The court needed to determine if the tribunal's reconsideration of the decision after remittal was within its power and whether it could order costs. Additionally, the court had to assess whether the proceedings were frivolous or vexatious or if there was a lack of jurisdiction.

The court concluded that the tribunal had the power to make a decision and order costs, and the proceedings were neither frivolous nor vexatious. The court found that the tribunal's reconsideration of the decision after remittal was within its power, and there was no lack of jurisdiction. The court dismissed the application, stating that the tribunal's decision was valid and that it had the authority to order costs. The proceedings were not considered frivolous or vexatious, and the court found no basis for the applicant's claims.

The court ordered that the proceedings be dismissed pursuant to s 42B of the Administrative Appeals Tribunal Act 1975. This decision confirmed the tribunal's authority to reconsider its earlier decision after remittal and to order costs. The court's ruling upheld the tribunal's power and jurisdiction, and the applicant's claims were dismissed.

Orders

Orders of the court

The proceedings are dismissed pursuant to s 42B of the Administrative Appeals Tribunal Act 1975.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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GENERAL ADMINISTRATIVE DIVISION		)
Re		GAVIN ABRAHAMS