1.The decision of the Administrative Appeals Tribunal dated 1 August 2001 be set aside.
2.The matter be remitted to the Tribunal for reconsideration according to law by the Tribunal differently constituted.
3.The respondent pay the applicant’s costs of the appeal.
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
N1253 OF 2001
BETWEEN:
AHMET BASHAR APPLICANT
AND:
COMCARE AUSTRALIA RESPONDENT
JUDGE:
MADGWICK J
DATE:
19 JUNE 2002
PLACE:
SYDNEY
REASONS FOR JUDGMENT (revised from transcript)
HIS HONOUR:
This is an appeal on a question of law from the decision of the Administrative Appeals Tribunal (“the Tribunal”) constituted by Senior Member MJ Sassella given on 1 August 2001. The Tribunal affirmed the decision of the respondent to cease the acceptance of liability for the payment of compensation under the Safety Rehabilitation and Compensation Act 1988 (Cth) (“the Act”) on and after 18 May 1998, for physiotherapy obtained by the applicant in respect of what had long before been accepted and for a very long time after its acceptance been treated as a compensable back injury. By the amended notice of appeal and the applicant's written submissions, the applicant has sought to raise a number of matters, however I need only decide one of the issues and comment on another, to dispose of the matter.
The applicant, Mr Bashar, at the time of the hearing before the Tribunal, was a man in his late 70s. He had worked as a clerical assistant in the Commonwealth Public Service from 1958 to 1984. At the latter date he was about 62. He first suffered a back injury in 1962, apparently occasioned by lifting heavy objects, and he underwent a lumbar laminectomy in 1963. It appears that he suffered further back injuries in 1978 and 1980. The respondent or its predecessor refused to accept liability for the effects of any of these injuries as from December 1982. However, in December 1985 the Tribunal found the applicant to be totally incapacitated for work by reason of the aggravation of a pre-existing back condition to which his employment had been a contributing factor.
For a long time the applicant received a great deal of physiotherapy treatment. I think it is correct that, until May 1998 when the respondent ceased paying for the physiotherapy, that the applicant continued to have, he had had something like 1400 sessions of physiotherapy treatment in about 12 years. It was his case not only that he should be paid for physiotherapy treatment for the four times per week which he had…
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
AGLC
Bashar v Comcare [2002] FCA 837
Case
[2002] FCA 837
Decision Date
CaseChat Overview and Summary
The matter before the Federal Court was an appeal by Bashar against Comcare, the Commonwealth's public sector employer. The dispute centred around the assessment of Bashar's claim for compensation for personal injury, which arose from an incident during his employment. The Administrative Appeals Tribunal had dismissed Bashar's appeal against Comcare's decision, prompting the current appeal to the Federal Court.
The primary legal issue the Court addressed was whether the Administrative Appeals Tribunal had correctly applied the relevant legislative provisions in dismissing Bashar's appeal. Specifically, the Court examined whether the Tribunal had considered all relevant factors and applied the correct legal principles in assessing the merits of Bashar's claim. Additionally, the Court needed to determine if there were any errors in the Tribunal's process or in its interpretation of the evidence.
The Court found that the Tribunal had erred in its approach to the assessment of Bashar's claim. The Tribunal had failed to consider all relevant evidence and had not appropriately applied the statutory criteria in making its decision. The Court held that these errors warranted setting aside the Tribunal's decision and remitting the matter for reconsideration by a differently constituted Tribunal. Consequently, the Court ordered that the Tribunal's decision be set aside, the matter be remitted for reconsideration, and that Comcare pay Bashar's costs of the appeal.
Orders
Orders of the court
1. The decision of the Administrative Appeals Tribunal dated 1 August 2001 be set aside.
2. The matter be remitted to the Tribunal for reconsideration according to law by the Tribunal differently constituted.
3. The respondent pay the applicant’s costs of the appeal.