Aziz and Australian Postal Corporation - [2003] AATA 354

CATCHWORDS – COMPENSATION

– suspension of compensation under s. 37(7) Safety, Rehabilitation and Compensation Act 1988 on basis of failure to undertake rehabilitation program – whether Administrative Appeals Tribunal has jurisdiction to consider whether or not its jurisdiction has been ousted by s. 37(7) Safety, Rehabilitation and Compensation Act 1988 – Tribunal has jurisdiction.

Safety, Rehabilitation and Compensation Act 1988 ss. 4, 14, 16, 19, 20, 21, 21A, 22, 23, 29, 30, 31, 33, 34-34S, 36, 37, 38, 54, 55, 56, 57, 60, 61, 62, 63, 64, 98A and 100
Social Security Act 1991

Administrative Appeals Tribunal Act 1975 ss. 3 and 44
Safety, Rehabilitation and Compensation and Other Legislation Amendment Act 2001 s. 3
Administrative Decisions (Judicial Review) Act 1977

Federal Court of Australia Act 1976

Mutual Recognition Act 1992 s. 34
Medical Act 1939 (Qld)

Long and Australian Postal Commission [2002] AATA 1333
Kilty and Australian Postal Corporation [2003] AATA 164
Buck v Comcare (1996) 137 ALR 335
Trajkovski v Telstra Corporation Ltd (1998) 153 ALR 248

Chowdhary v Bayne (1999) 29 AAR 100

QX99A and Medical Board of Queensland [1999] AATA 591
Re Tasmanian Ferry Services and Secretary, Department of Transport and Communications (1992) 29 ALD 395
Comcare v Pamela Burton, in her capacity as a Senior Member of the Administrative Appeals Tribunal and Wendy Lees (1998) 157 ALR 522
Morton and Australian Securities Commission 45 ALD 447

DECISION AND REASONS FOR DECISION [2003] AATA 354

ADMINISTRATIVE APPEALS TRIBUNAL )

)V2002/1322 &

GENERAL ADMINISTRATIVE DIVISION ) V2002/1323

Re NASSER AZIZ

Applicant

AndAUSTRALIAN POSTAL CORPORATION
Respondent

DECISION

Tribunal:                   Miss S A Forgie (Deputy President)
Date:  17 April, 2003
Place:  Melbourne

Decision: The Tribunal has decided that:

1.the Tribunal has jurisdiction to consider whether or not its jurisdiction has been ousted by the self-executing provisions of s. 37(7) of the Safety, Rehabilitation and Compensation Act 1988; and
2.that requires a consideration of:
(a)whether or not a rehabilitation program was provided to the applicant;
(b)if so, whether the applicant refused or failed to undertake that rehabilitation program; and
(c)if so, whether the applicant’s refusal or failure was without reasonable excuse.
S A FORGIE
Deputy President

REASONS FOR DECISION

On 6 December, 2002, the applicant, Mr Nasser Aziz, lodged two applications with regard to what I will for the moment describe as “positions” adopted by the respondent, the Australian Postal Corporation (“Australia Post”) in letters dated 22 November, 2002. A hearing was held to consider whether the Tribunal has jurisdiction to consider the applications. At that hearing, Mr Aziz was represented by Mr Ferwerda of counsel and Australia Post by Mr Moulds of counsel. Reference was made to the documents lodged pursuant to s. 37 of the Administrative Appeals Tribunal Act 1975 (“T documents”) in proceedings numbered V2002/1323.

THE ISSUE

In essence, the issue that must be considered in this case is whether there is a reviewable decision that the Tribunal may review under the Safety, Rehabilitation and Compensation Act 1988 (“SRC Act”).

BACKGROUND

There was…

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.

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Details

Case: [2003] AATA 354
Decision Date: 17 April 2003

CaseChat Overview and Summary

The case of Aziz and Australian Postal Corporation was heard by the Administrative Appeals Tribunal (AAT), where the applicant, Mr Nasser Aziz, challenged the respondent's decision to suspend his compensation under s. 37(7) of the Safety, Rehabilitation and Compensation Act 1988. The key legal issues revolved around the AAT's jurisdiction to review the respondent's decisions and whether s. 37(7) had effectively ousted the AAT's jurisdiction. The AAT found that it had jurisdiction to consider whether its jurisdiction had been ousted by s. 37(7), which required examining whether a rehabilitation program was provided, whether Mr Aziz refused or failed to undertake it, and whether his refusal or failure was without reasonable excuse. The AAT concluded that the Tribunal must first determine if its jurisdiction has been ousted by s. 37(7) before addressing whether it has jurisdiction in relation to a particular decision. This ruling ensures that the AAT can properly assess its jurisdiction without being unduly influenced by the respondent's procedural decisions.

Orders