Australian Postal Corporation v Pascoe - [2005] FCA 289

FEDERAL COURT OF AUSTRALIA
Australian Postal Corporation v Pascoe [2005] FCA 289
WORKERS’ COMPENSATION – appeal from Administrative Appeals Tribunal – failure to undertake rehabilitation program – no reasonable excuse – whether s 37(7) of the Safety, Rehabilitation and Compensation Act 1988 (Cth) applied.
Safety, Rehabilitation and Compensation Act 1988 (Cth) s 37(7), s 5(9)
AUSTRALIAN POSTAL CORPORATION V GEORGE PASCOE AND MD ALLEN (IN HIS CAPACITY AS A MEMBER OF THE ADMINISTRATIVE APPEALS TRIBUNAL)
N 1360 OF 2004
MADGWICK J
15 MARCH 2005
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

N 1360 OF 2004

BETWEEN:

AUSTRALIAN POSTAL CORPORATION
APPLICANT

AND:

GEORGE PASCOE
FIRST RESPONDENT

MD ALLEN (IN HIS CAPACITY AS A MEMBER OF THE ADMINISTRATIVE APPEALS TRIBUNAL)
SECOND RESPONDENT

JUDGE:

MADGWICK J

DATE OF ORDER:

15 MARCH 2005

WHERE MADE:

SYDNEY

THE COURT ORDERS THAT:
1.That part of the decision of the second respondent by which it was held that s 37(7) of the Safety, Rehabilitation and Compensation Act 1988 (Cth) did not apply, so as to suspend the first respondent’s rights to compensation under that Act and to institute or continue any proceedings under that Act in relation to compensation, be set aside.

2.The second respondent be restrained from hearing the matter further on the basis that s 37(7) of the Safety, Rehabilitation and Compensation Act 1988 (Cth) Act did not apply so as to suspend the first respondent’s rights to compensation under that Act and to institute or continue any proceedings under the Act in relation to compensation.

The Court declares that:
3.In the events that have happened, s 37(7) of the Safety, Rehabilitation and Compensation Act 1988 (Cth) Act applied at all times since the reviewable decision dated 12 January 2000, so as to suspend the first respondent’s rights to compensation under that Act and to institute or continue any proceedings under that Act in relation to compensation.

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

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

N 1360 OF 2004

BETWEEN:

AUSTRALIAN POSTAL CORPORATION
APPLICANT

AND:

GEORGE PASCOE
FIRST RESPONDENT

MD ALLEN (IN HIS CAPACITY AS A MEMBER OF THE ADMINISTRATIVE APPEALS TRIBUNAL)
SECOND RESPONDENT

JUDGE:

MADGWICK J

DATE:

15 MARCH 2005

PLACE:

SYDNEY

REASONS FOR JUDGMENT
Madgwick J:

This is an application for relief under s 39B of the Judiciary Act 1903 (Cth) and also for an order of review under s 6 of the Administrative Decisions (Judicial Review) Act 1977 (Cth) in respect of part of a decision of certain conduct of Senior Member MD Allen, sitting as a member of the Administrative Appeals Tribunal (‘the Tribunal’).
The Tribunal Member found that the first respondent, who had been an applicant for compensation under the Safety, Rehabilitation and Compensation Act 1988 (Cth) (‘the Act’), had no reasonable excuse for failing to undertake a rehabilitation program. The context is that s 37 of the Act provides that a rehabilitation authority…

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 Australian Postal Corporation v Pascoe

Details

AGLC: Australian Postal Corporation v Pascoe [2005] FCA 289
Case: [2005] FCA 289
Decision Date: 15 MARCH 2005

CaseChat Overview and Summary

Safety, Rehabilitation and Compensation Act 1988 (Cth) applies to suspend the first respondent’s rights to compensation under that Act and to institute or continue any proceedings under the Act in relation to compensation. This case involved Australian Postal Corporation, as the appellant, and Pascoe, as the respondent. The matter arose from a dispute regarding the application of section 37(7) of the Safety, Rehabilitation and Compensation Act 1988 (Cth), specifically whether it suspended the respondent's rights to compensation under the Act and to institute or continue proceedings in relation to compensation. The legal issues before the court were whether the section applied to the facts of this case and, if so, whether it effectively suspended the respondent's rights.

The court considered the statutory provisions and the circumstances of the case to determine the applicability of section 37(7). It held that the section was indeed applicable and that it did suspend the respondent's rights to compensation and to institute or continue proceedings. The court found that the respondent's actions, including his engagement in litigation against the appellant, triggered the suspension of his rights. Consequently, the court set aside the decision of the second respondent, which had found that the section did not apply, and restrained that respondent from further hearing the matter on this basis. The court also declared that section 37(7) applied in the given circumstances and that it effectively suspended the respondent's rights.

Orders

Orders of the court

1. That part of the decision of the second respondent by which it was held that s 37(7) of the Safety, Rehabilitation and Compensation Act 1988 (Cth) did not apply, so as to suspend the first respondent’s rights to compensation under that Act and to institute or continue any proceedings under that Act in relation to compensation, be set aside.

2. The second respondent be restrained from hearing the matter further on the basis that s 37(7) of the Safety, Rehabilitation and Compensation Act 1988 (Cth) Act did not apply so as to suspend the first respondent’s rights to compensation under that Act and to institute or continue any proceedings under the Act in relation to compensation.

The Court declares that:

3. In the events that have happened, s 37(7) of the

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

MADGWICK J

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Ratio Decidendi

Legal Principle Established

Established by: MADGWICK J

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IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 1360 OF 2004

BETWEEN:	AUSTRALIAN POSTAL CORPORATION APPLICANT
AND:	GEORGE PASCOE FIRST RESPONDENT MD ALLEN (IN HIS CAPACITY AS A MEMBER OF THE ADMINISTRATIVE APPEALS TRIBUNAL) SECOND RESPONDENT
JUDGE:	MADGWICK J
DATE OF ORDER:	15 MARCH 2005
WHERE MADE:	SYDNEY

JUDGE:	MADGWICK J
DATE:	15 MARCH 2005
PLACE:	SYDNEY