Anderson, F.T. v Commissioner of Employees Compensation

[1986] FCA 231

Re: FRANCIS THOMAS ANDERSON
And: COMMISSIONER FOR EMPLOYEES' COMPENSATION
No. VG44 of 1986
Administrative law

COURT

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY
GENERAL DIVISION
Sweeney J.

CATCHWORDS

Administrative Law - application to review decision of Commissioner for Employees' Compensation - whether Court should review law where questions of fact and law could be subject to review by Administrative Appeals Tribunal - discretion under s.10(2)(b)(ii) of Administrative Decisions (Judicial Review) Act where adequate provision made other than under Act.

Administrative Decisions (Judicial Review) Act 1977 s.10.

HEARING

MELBOURNE

#DATE 23:5:1986

ORDER

1. The application be dismissed, with costs, including reserved costs, to be taxed.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

JUDGE1

This is an application to the Court to review a decision of the respondent, made on 20 February 1986.

1. That decision was made upon an application for redemption of the Commonwealth's liability to make payments to the applicant of compensation in respect of partial incapacity.

2. The respondent filed a notice of motion seeking orders -
   
   

1. that the application be struck out;

2. in the alternative, that these proceedings be removed to the Administrative Appeals Tribunal ("the Tribunal")

pursuant to s.10(2)(b)(ii) of the Administrative

Decisions (Judicial Review) Act 1977 ("the Act").

1. Section 10(2)(b)(ii) provides that, notwithstanding the rights to apply for review conferred by ss.5,6 and 7 of the Act, the Court may, in its discretion, refuse to grant an application under those sections for the reason-
   
   

"(ii) that adequate provison is made by any law other

than this Act under which the applicant is entitled to

seek a review by the Court, by another court, or by

another tribunal, authority or person, of that decision, conduct or failure".

1. For the purposes of dealing with this application I assume, without deciding, that the onus lies on the respondent to show that the Court, in the exercise of its discretion under s.10(2)(b)(ii), should refuse to grant the application, on the ground that adequate provision is made whereby the applicant is entitled to seek a review of the decision of the Commissioner for Employees' Compensation by the Tribunal.

2. The applicant is entitled to seek a review by the Tribunal in respect of all questions of fact and of law.

3. The applicant, quite naturally, does not wish to give up his right to seek from the Tribunal a review of the decision of the Commissioner in relation to questions of fact. However, he asks the Court to express its opinion of the law in relation to the facts as found by the Commissioner.

4. If the Court were to do so, and that opinion proved to be unfavourable to the applicant, he could then seek a review of the facts by the Tribunal, which might lead to a finding of facts which would render the Court's opinion academic.

5. I am satisfied that it is in the interests of the parties and of the public to refuse, in accordance with s.10(2)(b)(ii), to grant the application, and I do so.

6. This refusal is, of course, without prejudice to the rights of the applicant to seek a review by the Administrative Appeals Tribunal.

7. The application is dismissed, with costs, including reserved costs, to be taxed.