Blackwell and Comcare (Compensation) [2017] AATA 1118 (29 June 2017)
Division:GENERAL DIVISION
File Number: 2016/6411
Re:Kym Blackwell
APPLICANT
AndComcare
RESPONDENT
DECISION
Tribunal:Senior Member T. Tavoularis
Date:29 June 2017
Place:Brisbane
The Tribunal refuses to stay the operation or implementation of the decision under review.
....................[sgd].....................
Senior Member T. Tavoularis
CATCHWORDS
INTERLOCUTORY PROCEEDING – Application for Stay of Decision under review – whether desirable or appropriate to stay decision under review – refusal to stay the operation or implementation of the decision under review
LEGISLATION
Administrative Appeals Tribunal Act 1975, s 41(2)
Safety, Rehabilitation and Compensation Act 1988, ss 16, 19, 29, 114
CASES
Alexander and Migration Agents Registration Board (1995) 40 ALD 99
Australian Postal Corporation v Mowbray (2003) 77 ALD 440
Australian Postal Corporation v Oudyn (2003) 73 ALD 659
Avtex Air Services Pty Ltd and Civil Aviation Safety Authority [2010] AATA 716
Clement and Comcare [2006] AATA 705
Dart and Director-General of Social Services [1982] AATA 78
Plumb v Comcare (1992) 39 FCR 236
Re Repatriation Commission and Delkou (1985) 8 ALD 454
Secretary, Department of Employment and Workplace Relations and Anastasiadis [2007] AATA 1065
Secretary, Department of Social Services and McNamara [2016] AATA 189
Seymour and Migration Agents Registration Authority [2006] AATA 369
Warnock and Comcare [2009] AATA 20
Wildlife Protection Association of Australia Inc. and Minister for the Environment and Heritage and Ors [2006] AATA 29
WorldAudio Limited and AusCoast Broadcasting Pty Limited and Australian Communications and Media Authority [2006] AATA 177
REASONS FOR DECISION
Senior Member T. Tavoularis
20 July 2017
INTRODUCTION
Mrs Kym Blackwell (“the Applicant”) has applied for a stay of Comcare’s (“the Respondent”) decision to deny compensation for medical benefits, incapacity payments and household services pursuant to sections 16, 19 and 29 of the Safety, Rehabilitation and Compensation Act 1988 (“SRC Act”). The basis of Comcare’s decision is that, in its view, the Applicant does not continue to suffer the effects of the accepted condition: unspecified disc disorder, cervical known as C5/6 disc prolapse (“the reviewable decision”).
The reviewable decision comprises the subject matter of application 2016/6411 presently live before this Tribunal.
The Applicant seeks to stay the operation or implementation of the reviewable decision by way of an order pursuant to section 41(2) of the Administrative AppealsTribunal Act 1975 (“the AAT Act”).
RELEVANT LEGISLATION AND LEGAL REQUIREMENTS
Section 41(2) of the AAT Act provides that:
The Tribunal may, on request being made by a party to a proceeding before the Tribunal (in this section referred to as the relevant proceeding), if the Tribunal is of the opinion that it is desirable to do so after taking into account the interests of any persons who may be affected by the review, make such order or orders staying or otherwise affecting the operation or implementation of the decision to which the relevant proceeding relates or a part of that decision as the Tribunal considers appropriate for the purpose of securing the effectiveness of the hearing and determination…
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- AGLC
- Blackwell and Comcare (Compensation) [2017] AATA 1118
- Case
- [2017] AATA 1118
- Decision Date
CaseChat Overview and Summary
The Tribunal was required to determine whether it was desirable or appropriate to grant a stay of the decision under review. In reaching this determination, the Tribunal considered several factors, including the prospects of success of the substantive application, any prejudice to the parties if a stay were granted or refused, the interests of affected persons, the public interest, whether the substantive application would be rendered nugatory without a stay, and any difficulties in recovering monies paid if a stay were granted or refused. The Applicant contended that a refusal of the stay would adversely affect her health, leading to deterioration of her physical and mental conditions, and would disadvantage her in preparing her case. The Respondent argued against the stay.
The Tribunal's reasoning involved assessing the Applicant's contentions against the established legal principles for granting a stay. The Applicant argued that denial of treatments would worsen her conditions and impair her cognitive capacity to instruct legal representatives. She also contended that the Respondent would suffer no prejudice as overpayments could be recovered or waived, and that her prospects of success were good due to alleged flaws in the Respondent's decision-making. However, the Tribunal was not convinced that refusing the stay would render the substantive proceedings abortive or nugatory, nor that it would cause financial hardship to the Applicant. Furthermore, the Tribunal considered the merits or prospects of success to be a neutral factor in this determination.
Consequently, the Tribunal refused the application to stay the implementation of the decision under review dated 19 September 2016.
Orders
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