Anderson and Telstra Corporation Ltd

[2000] AATA 547

DECISION AND REASONS FOR DECISION [2000] AATA 547

ADMINISTRATIVE APPEALS TRIBUNAL      )

)     No  N1999/1866

GENERAL ADMINISTRATIVE DIVISION          )          

Re      SOLLY  ANDERSON       

Applicant

And    TELSTRA CORPORATION LIMITED    

Respondent

DECISION

Tribunal       Senior Member M D Allen

Date15 June 2000

PlaceSydney

ADMINISTRATIVE APPEALS TRIBUNAL  )         No   N1999/1866
  )  
GENERAL ADMINISTRATIVE DIVISION     )

Re             SOLLY ANDERSON
  Applicant

AndTELSTRA CORPORATION LIMITED

Respondent

DECISION

Tribunal           Senior Member M D Allen

Date                   15 June 2000

Place                 Sydney

DecisionFOR the reasons given orally at the conclusion of the hearing in this matter, pursuant to s42b of the Administrative Appeals Tribunal Act 1975 this matter is DISMISSED as being frivolous or vexatious.

(Sgd)  M.D. ALLEN

.............................

Senior Member
CATCHWORDS

WORKERS COMPENSATION – Claim for permanent impairment when no subsisting liability in the respondent for alleged injuries – claim dismissed as frivolous and vexatious.

Safety, Rehabilitation and Compensation Act 1988 - s24 and s27

Lees v Comcare and Another;  Comcare v Mathews and Others 29 AAR 350

REASONS FOR DECISION

Senior Member M D Allen

1. At the conclusion of the hearing of the above matter the terms of the decision intended to be made and the reasons therefor were stated orally. After service upon the Respondent of a copy of the decision that was in fact made, the Respondent pursuant to Sub-section 43(2A) of the Administrative Appeals Tribunal Act 1975 requested the Tribunal to furnish to the Respondent a statement in writing of the reasons of the Tribunal for its decision.

1. The oral reasons for decision have been transcribed by Auscript, the Commonwealth Reporting Service.  Whereas those oral reasons may reflect the inelegance of an extempore decision, they are in fact the reasons for the said decision.

1. The said transcript is annexed hereunto and furnished to the Respondent and to the Applicant as it is the reasons for the Tribunal's decision.

I certify that this and the preceding page are a true copy of the decision and reasons for decision herein of:

Senior Member M D Allen

Signed:         Ivanka Mamic
           ....................................................................................

Associate

Dates of Hearing  15 June 2000
Date of Decision  15 June 2000
Counsel for Applicant                   Mr D Marr

Solicitor for Applicant  Carroll O'Dea
Counsel for Respondent              Mr Hickey
Solicitor for Respondent               Sparke Helmore

DRAFT DECISION  

ADMINISTRATIVE APPEALS TRIBUNAL

Matter No N99/1866
By MR M.D. ALLEN, Senior Member
ANDERSON and TELSTRA
SYDNEY, THURSDAY, 15 JUNE 2000

MR ALLEN: Well, it seems to me that in this matter in effect it is straightforward. It would appear that on or about 19 July 1999 the applicant made an application claim for permanent impairment pursuant to sections 24 and 27 of the Safety Rehabilitation and Compensation Act 1988. That claim was initially denied. A reconsideration was sought and there is a reconsideration for what is termed a reviewable decision under section 66, of the Safety Rehabilitation and Compensation Act and that reviewable decision is found at document T144. The documents prepared for the Tribunal pursuant to section 37 of the Administrative Appeals Tribunal Act 1975.

What is clear is that the liability for permanent impairment was denied on the bases that there were earlier decisions namely on 12 October 1990 and 26 March 1990, the first of which ceased liability in respect of the applicant's hernia and groin condition and of the later, namely 26 March 1990, denied liability in respect of a back condition.  Neither of those decisions have been appealed to this Tribunal.  So the matter stands that the applicant is claiming permanent impairment in respect of particular injuries for which currently the respondent has no liability.

As was pointed out in Comcare v Matthews and others, 29 AAR 350 a permanent impairment claim is different from a liability claim. Now in one sense although it is more a doctrine of relating to subsidiary legislation to say that a stream cannot rise higher than its source, in this matter what the applicant is seeking to do is by the lodging a claim for permanent impairment seeking to reopen a claim for liability. As pointed out above, Comcare v Matthews states that they are two totally and separate claims.

The matter was brought before me on the matter of jurisdiction and it seems the better view might be that as there was a reviewable decision the Tribunal does have jurisdiction to entertain it.  But having regard to decisions such as Lees v Comcare and Comcare v Matthews, the better view would be to dismiss this matter as frivolous or vexatious in that the respondent has no current liability to the applicant and that is what I propose to do.

P-1