Bray and Comcare

Case [2012] AATA 522

[2012] AATA  522

Division GENERAL ADMINISTRATIVE DIVISION

File Number(s)

2010/4284, 2010/5071, 2010/5072, 2010/5493, 2010/5499,  2010/5500, 2012/2408

Re

MAREE BRAY

APPLICANT

And

COMCARE

RESPONDENT

INTERLOCUTORY DECISION

Tribunal

Professor RM Creyke, Senior Member

Date 8   August 2012
Place Canberra

The proceedings in related compensation or entitlement matters are not rendered abortive under s 67(2) of the Safety, Rehabilitation and Compensation Act 1988 (Cth) (Act) when a later reviewable decision is made relating to the original injury under ss 4, 5A, 14 of the Act.

..........................[sgd]..............................................

Professor RM Creyke, Senior Member

CATCHWORDS

NATURAL JUSTICE – bias - whether consideration of irrelevant issues imputes bias - whether reasonable apprehension of, or actual, bias – whether bias of a vicarious or imputed nature

PRACTICE AND PROCEDURE - jurisdiction - own motion reconsideration under Safety, Rehabilitation and Compensation Act 1988 (Cth) s 14 for initial acceptance of liability for injury to right arm before the Tribunal - other entitlements relating to conditions claimed to be linked to same initial injury also before Tribunal – other applications not withdrawn - whether reconsideration of s 14 liability in relation to initial injury renders other applications abortive – Safety, Rehabilitation and Compensation Act 1988 (Cth) ss 60, 62, 64, 67(2)

LEGISLATION

Administrative Appeals Tribunal Act 1975 (Cth) s 3

Safety, Rehabilitation and Compensation Act 1988 (Cth) ss 14, 16, 19, 24, 27, 29, 62, 64, 67

CASES

Ebner v Official Trustee in Bankruptcy; Clenae Pty Ltd v Australian and New Zealand Banking Group Ltd (2000) 205 CLR 337

Hannaford v Telstra Corporation Ltd (2005) 88 ALD 702
Hot Holdings Pty Ltd v Creasy (2002) 210 CLR 438
Lees v Comcare (1999) 54 ALD  84
Minister for Immigration and Multicultural Affairs v Jia (2001) 205 CLR 507
Power v Comcare (1998)  89 FCR 514 at 526-527
Re Frazzetto and Australian and Overseas Telecommunications Corporation (1994) 19 AAR 174
Re Hewett  and Australian Postal Corporation (unreported, No 9099, 29 October 1993)
Re Moggach and Comcare (1995) (unreported AATA 10611, 19 December 1995)
Re Warren De Courcy Brown and Comcare (1997) 49 ALD 766

Telstra Corporation Ltd v Hannaford (2006) 90 ALD 263

SECONDARY MATERIALS

Federal Court Rules 2011

Macquarie Concise Dictionary (5th edn, 2009)

REASONS FOR INTERLOCUTORY DECISION

Professor RM Creyke, Senior Member  
Dr B Hughson, Member

BACKGROUND

  1. Ms Maree Bray, the applicant, was a dental assistant employed by ACT Health.  On 2 February 1994 she reported a ‘scrunch’ in her right elbow and said she felt a ‘deep sharp pain’ while removing instruments from an autoclave.  Evidence before the Tribunal indicates that the tray may have weighed less than 1 kg or at most up to 2kgs.  She continued to work until 15 February 1994 when she was certified unfit for employment.  She has not worked since. Ms Bray was subsequently invalidity-retired from employment as from 8 November 2000. Her claim for an employment-related injury described as ‘right lateral epicondylitis’ (tennis elbow in the right arm) was accepted on 17 May 1994.

  2. Ms Bray had previously suffered…

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Details
AGLC
Bray and Comcare [2012] AATA 522
Case
[2012] AATA 522
Decision Date

CaseChat Overview and Summary

This appeal concerns a case where the Federal Court was asked to review decisions made by the Administrative Appeals Tribunal (AAT) in relation to compensation claims brought by Ms. Bray against Comcare. The primary dispute involves whether the AAT erred in its handling of various applications for reconsideration of compensation claims, and whether certain claims were rendered abortive due to the reconsideration of a prior decision on liability. The specific issues before the Federal Court included whether the AAT had jurisdiction to hear certain claims after reconsidering an earlier decision on liability, and whether the AAT member displayed actual or perceived bias.

The legal issues the court had to address were whether the AAT had the authority to reconsider a decision under section 14 of the Safety, Rehabilitation and Compensation Act 1988 (Cth) and whether this reconsideration rendered other claims moot. Additionally, the court examined whether there was any actual or perceived bias by the AAT member in handling the cases, and if so, whether this bias affected the fairness of the proceedings.

The Federal Court found that the AAT had the jurisdiction to reconsider the decision on liability under section 14 of the Act, and that this reconsideration did not necessarily render other claims moot. The court held that the AAT member did not display any actual or perceived bias in the handling of the cases, as the claimed bias did not meet the legal tests for either apprehended or actual bias. The court also noted that taking irrelevant considerations into account did not equate to bias. Consequently, the court determined that the AAT did not err in its handling of the cases, and dismissed the appeal.

In conclusion, the Federal Court upheld the AAT’s decisions, affirming its jurisdiction to reconsider the liability decision and finding no basis for the claimed bias. The court’s ruling ensures that the AAT retains its authority to manage and reconsider compensation claims in a manner consistent with the legislative framework.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

On 8 July 2005, the Tribunal also issued a consent decision capping the maximum rate for household services and attendant care services at 4 hours per week. Reasonable medical treatment was to include treatment by a local GP, rather than Dr Welberry in Canberra; treatment by an appropriate specialist in Bendigo; treatment at the Geelong Pain Clinic rather than elsewhere; her treatment by Dr Champion at St Vincent’s, Sydney was limited to a maximum of two visits per year; the travelling expenses for Ms Bray’s husband were restricted to the occasions when Ms Bray travels to obtain reasonable medical treatment; and caps were placed on accommodation, meal and travel expenses.DECISIONS UNDER REVIEW The seven applications currently before the Tribunal for review of ‘reviewable decisions’ by Comcare relate respectively to decisions denying liability to pay compensation to Ms Bray:·Under sections 4, 5A, 14 of the Safety, Rehabilitation and Compensation Act 1988 (Cth) (Act), for an ‘injury’ to her right elbow (2012/2408).·Under section 16 of the Act for ‘right sacroiliac arthrodesis with iliac osteotomy’ procedure, for a post-surgical ‘rehabilitation program’ at Hepburn Springs, Victoria, or post-surgical radiological investigations (2010/4284);·Under section 29 of the Act for household services from 5 January to 28 July 2010 (2010/5071);·Under section 16 of the Act for specific claims for medical treatment in August 2010, namely: oOpsite flexgrid (x 3) ($204 each); Kleenex travel pack (x 1) ($29.86); Opsite Post op (x 2) ($285 each); Cellufresh eye drops (x 2) ($29.86 each); Alpha Kerri Lotion (x 2) ($19.95 each); Gastro stop loperamide (x 1) ($19.95); Urax cream 20gm (x 1) ($74.86); Vagisal powder 100gm ($18.76); Rectinol Ointment 50gm (x 1) ($38.97) (2010/5072); ·Under section 16 of the Act for travel to Hepburn Springs on 4 occasions in 2005, 2006 and 2007 (2010/5493);·Under section 16 of the Act for a consultation with Dr Paul Curnow (dermatologist) concerning a basal cell carcinoma on her nose (2010/5499);·Under sections 16, 19, 24, 27, or 29 of the Act as at 20 October 2010 to decide whether Ms Bray presently suffers the effects of the accepted conditions of:oright lateral epicondylitis;oadhesive capsulitis of shoulder (right);oleft lateral epicondylitis;ooccipital neuralgia and headache;ounspecified injury to hip, thigh (left); andoadhesive capsulitis of shoulder (left). (2010/5500).PRELIMINARY MATTERS AT TRIBUNAL Initially the last six of the listed reviewable decisions were set down for hearing at the Tribunal between 18 and 27 June 2012. The hearing was to involve 13 medical witnesses. A series of telephone directions hearings commenced in November 2011 in order to arrange for concurrent evidence for two to three groups of medical witnesses. Management of the process involved protracted negotiations with the solicitors for both parties. As part of these processes, an attempt was made to obtain an agreed statement of facts to put to the medical witnesses. That attempt was abandoned when the first draft exceeded 260 pages in length. Issue of section 14 liability

Ratio Decidendi

Legal Principle Established

On 5 July 2012 the representative for Ms Bray lodged an application for review with the Federal Court of Australia in the matter. The Notice of Appeal claims there was error of law by the Tribunal:·in setting down for hearing matters 2010/4284, 5071, 5072, 5493, 5499 and 5500, notwithstanding that Comcare had made a decision that the Applicant had not suffered a work injury·The reasons by which Senior Member Robin Creyke determined on 28 June 2012 that she was not required to disqualify herself on the basis of perceived or actual bias in relation to matters 2010/4284, 5071, 5072, 5493, 5499 and 5500, and matter 2012/2408·The reasons by which the Tribunal determined that the Applicant was not allowed to appear before the other member of the Tribunal, Dr Bernard Hughson,, in order to put before him the issue of actual or perceived bias.CONSIDERATION The Tribunal notes that there is ambiguity about any obligation to provide reasons for an interlocutory decision, or for a directions hearing of the Tribunal. However, as a matter of courtesy and in order to assist the hearing before the Federal Court, the Tribunal is providing a statement of reasons for both the interlocutory hearing and the directions hearings which took place after the hearing.Bias The issue of bias was not raised at the interlocutory hearing, the reasons for which were requested. The Tribunal notes that no direction or ruling was made by the Presiding Member as to the bias issue. Had the matter been pursued by the representative for Ms Bray, the Presiding member would have done so, following an opportunity to seek further submissions to clarify the substance of the claim. As drafted the assertion of bias does not appear to meet the tests for apprehended[4] or actual[5] bias. Moreover the bias claimed appears to give rise to a claim for bias that is vicarious in nature and the claim also did not refer to the tests for bias of that nature.[6] Taking an irrelevant consideration into account cannot be equated with bias. In those circumstances, the Tribunal, had it been asked to do so following further submissions on this issue, would have denied that a reasonable bystander would have perceived that the representative acting for Comcare was biased or that any such bias could have affected a member of the panel of the Tribunal. [4] Ebner v Official Trustee in Bankruptcy; Clenae Pty Ltd v Australian and New Zealand Banking Group Ltd (2000) 205 CLR 337 at 344-345.[5] Minister for Immigration and Multicultural Affairs v Jia (2001) 205 CLR 507 per Gleeson CJ & Gummow J at 531.[6] Hot Holdings Pty Ltd v Creasy (2002) 201 CLR 438 at 447 per Gleeson CJ; at 461-462 per McHugh J.[6] Id at 462 per McHugh J.Whether proceedings in the six matters were rendered abortive Section 62(1) of the Act provides that:“A determining authority may, on its own motion:(a) reconsider a determination made by it; or(b) cause such a determination to be reconsidered by a person to whom its power under this section is delegated, being a person other than the person who made, or was involved in the making of, the determination;whether or not a proceeding has been instituted or completed under this Part in respect of a reviewable decision made in relation to that determination.