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Brackenreg and Comcare

Brackenreg and Comcare

Case [2002] AATA 1325 18 December 2002

Unconscionable Conduct

Issue Estoppel

Administrative Law

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CATCHWORDS – COMPENSATION

– home help assistance – what is reasonably required as a result of her injury – identification of injury – decision affirmed.

Administrative Appeals Tribunal Act 1975 ss. 25, 37, 42A(1A) and (1B), 42C and 43

Safety, Rehabilitation and Compensation Act 1988 ss. 4, 8, 14 to 31, 34 to 39, 54, 55, 56, 60, 62, 64, 114B and 137; Part V and Part X
Trade Practices Act 1974 s. 50

Lower v Comcare [2002] FCA 1394

Queensland Nickel Management Pty Ltd and Great Barrier Reef Marine Park Authority and Others (No. 3) (1992) 28 ALD 368
Bogaards v The Commonwealth of Australia (1988) 15 ALD 313

Re Quinn and Australian Postal Commission (1992) 15 AAR 519

Minister for Immigration, Local Government and Ethnic Affairs v Kurtovic (1990) 92 ALR 93
Comcare Australia v Hill (1999) 56 ALD 487
Drake v Minister for Immigration and Ethnic Affairs (1979) 24 ALR 577
Comcare v Pamela Burton, in her capacity as a Senior Member of the Administrative Appeals Tribunal and Wendy Lees [1998] FCA 1144

Trade Practices Commission v Australian Iron & Steel Pty Ltd (1990) 92 ALR 395

DECISION AND REASONS FOR DECISION [2002] AATA 1325

ADMINISTRATIVE APPEALS TRIBUNAL     )
  )          D2000/4
GENERAL ADMINISTRATIVE DIVISION     )

Re DEBORAH BRACKENREG

Applicant

And COMCARE

Respondent

DECISION

Tribunal:                   Miss S A Forgie (Deputy President)
Date:  18 December, 2002
Place:  Melbourne

Decision:The Tribunal affirms the reviewable decision of the respondent dated 30 November, 1999 in relation to home help assistance.

S A FORGIE
Deputy President

ADMINISTRATIVE APPEALS TRIBUNAL )

) D2000/4

GENERAL ADMINISTRATIVE DIVISION )

Re:DEBORAH BRACKENREG

Applicant

And:COMCARE

Respondent

Tribunal: Miss S A Forgie (Deputy President)

Place: Melbourne

Date: 23 May, 2003

DIRECTION REGARDING DECISION NO. 1325/2002

Pursuant to section 43AA of the Administrative Appeals Tribunal Act 1975 and upon being satisfied that there is an obvious error in the text of the decision and reasons for decision published on 18 December, 2002, the Registrar is directed to alter the text of the decision and reasons as follows:

Decision
delete the decision; and
insert: “The Tribunal sets aside the reviewable decision of the respondent dated 30 November, 1999 and substitutes a decision that the respondent is not liable to pay compensation to the applicant for household services.”
Reasons for decision

page 26, paragraph 54
delete paragraph 54; and
insert: “For reasons I have given, I set aside the decision of the respondent dated 30 November, 1999 and substitute a decision that the respondent is not liable to pay compensation to the applicant for household services.”
S A FORGIE
Deputy President

REASONS FOR DECISION

On 28 January, 2000, the applicant, Ms Deborah Odile Brackenreg, applied for review of two reviewable decisions of a delegate of the respondent, Comcare, dated 30 November, 1999. One of the reviewable decisions affirmed an earlier determination of another delegate dated 20 September, 1999 that Ms Brackenreg was entitled to two hours of home help assistance each fortnight rather than four hours of home help…

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 Brackenreg and Comcare

Details

AGLC: Brackenreg and Comcare [2002] AATA 1325
Case: [2002] AATA 1325
Decision Date: 18 December 2002

CaseChat Overview and Summary

In the case of Brackenreg and Comcare, the applicant, Ms Deborah Brackenreg, sought review of two decisions made by Comcare dated 30 November 1999. The first decision affirmed an earlier determination that she was entitled to two hours of home help assistance every fortnight instead of four hours each week. The second decision affirmed an earlier determination that Ms Brackenreg was not entitled to a metal hip flask. Ms Brackenreg withdrew her application concerning the hip flask before the hearing, which led to the dismissal of that aspect of her application. The primary issue before the tribunal was whether Ms Brackenreg was entitled to compensation for household services and, if so, the amount of household services to which she was entitled under the Safety Rehabilitation and Compensation Act 1988.

The tribunal found that the only injury for which Comcare had accepted liability was the musculo ligamentous neck injury sustained in a motor vehicle accident on 7 March 1984. There was no determination or decision by Comcare accepting liability for Ms Brackenreg's syrinx or syringomyelia. The tribunal concluded that Ms Brackenreg reasonably required household services as a result of her musculo ligamentous neck injury. However, Ms Brackenreg attributed all her need for household services to her syringomyelia and, to a lesser extent, to her hay fever. Neither condition was an injury for which she was entitled to be paid compensation. Therefore, the tribunal affirmed the reviewable decision of the respondent dated 30 November 1999 in relation to home help assistance.

Orders