Carpenter and Comcare - [2003] AATA 665

CATCHWORDS – PRACTICE AND PROCEDURE –

issuing of summons – whether Tribunal can issue a summons requiring an officer of the Public Service and Merit Protection Commission to give or produce evidence in light of r. 7.6 of the Public Service Regulations or s. 84(5) of the Merit Protection (Australian Government Employees) Act 1984 – whether evidence obtained under summons relevant to the hearing of the matter – whether the issue of law should be referred to the Federal Court - Tribunal refuses to issue the summons.

Public Service Regulations r. 7.6
Merit Protection (Australian Government Employees) Act 1984 ss. 4, 39, 40, 45, 47, 48, 55, 57, 63 and 84

Administrative Appeals Tribunal Act 1975 ss. 3, 40, 40(1A), 40(1C) and 45
Public Employment (Consequential and Transitional) Amendment Act 1999 ss. 4 and 5
Public Service Act 1999 ss. 7, 33, 49, 50 and 79
Acts Interpretation Act 1901 s. 8
Racial Discrimination Act 1975
Administrative Decisions (Judicial Review) Act 1977
Migration Act 1958 s. 474
Commonwealth of Australia Constitution Act s. 75(v)
Safety, Rehabilitation and Compensation Act 1988 ss. 4 and 14

Trade Practices Commission v Arnotts (1989) 88 ALR 90
Ozzy Tyre & Tube Pty Ltd v Chief Executive Officer of Customs [2000] FCA 891
W.A. Pines Pty Ltd v Bannerman (1980) 30 ALR 559
Cosco Holdings Pty Ltd v Commissioner for Taxation and Anor [1997] FCA 1504
Murray v Forward and Merit Protection and Review Agency [1993] HREOCA 21
Kelson and McKernan v Forward (in her capacity as Director of the Merit Protection and Review Agency) No. ACT AG86 of 1994 FED No. 799/95
Merit Protection Commissioner v Nonnemacher [1999] FCA 562

Nonnemacher v Merit Protection Commissioner [1999] FCA 942

The Queen v Anthony Ernest Parish (2001) SADC 68
S157 of 2002 v The Commonwealth of Australia [2003] HCA 2
Westgate v Australian Telecommunications Commission (1987) 17 FCR 235
Federal Broom Co Pty Ltd v Semlitch (1964) 110 CLR 626
Re Welsford and Commonwealth Banking Corporation (1984) 1 AAR 42
Rodriguez v Telstra Corporation Ltd [1999] FCA 1400
Lower and Comcare [2003] AATA 540

DECISION AND REASONS FOR DECISION [2003] AATA 665

ADMINISTRATIVE APPEALS TRIBUNAL     )
  )          S2001/195
GENERAL ADMINISTRATIVE DIVISION     )

Re GEOFFREY WALTER CARPENTER

Applicant

And COMCARE

Respondent

DECISION

Tribunal:  Miss S A Forgie (Deputy President)
Date:  6 June, 2003
Place:  Adelaide

Decision:The Tribunal refuses to issue a summons addressed to Ms Ingrid Chrichton, who is an Assistant Commissioner with the Public Service and Merit Protection Commission.

S A FORGIE
Deputy President

REASONS FOR DECISION

On 11 March, 1991, a delegate of the respondent, Comcare, had accepted liability for a temporary aggravation of an underlying chronic anxiety. The delegate found that the date on which the applicant, Mr Geoffrey Walter Carpenter, had suffered that condition was 29 November, 1990. In a determination dated 13 August, 1991, a delegate of Comcare decided that, with effect from 10 July, 1991, Mr Carpenter was no longer entitled to compensation in respect of that condition. That decision…

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.

Keep reading for free

Create a free CaseChat account to read Carpenter and Comcare and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2003] AATA 665
Decision Date: 6 June 2003

CaseChat Overview and Summary

The matter before the Tribunal was an application by Mr Geoffrey Walter Carpenter for a review of a decision of Comcare, the respondent. The decision was to cease his compensation. The Tribunal refused to issue a summons addressed to Ms Ingrid Crichton, who is an Assistant Commissioner with the Public Service and Merit Protection Commission. The Tribunal found that it did not have the power to issue a summons to Ms Crichton. It found that the provisions of s. 84(5) of the Merit Protection (Australian Government Employees) Act 1984 and r. 7.6 of the Public Service Regulations 1999 imposed an obligation upon the Tribunal not to require information to be given to it. It followed that the Tribunal did not have the power to require Ms Crichton to disclose the information that she held. It was also found that the information that she held was not relevant to the issues in the case. The Tribunal considered whether the issues in the case should be referred to the Federal Court under s. 45 of the Administrative Appeals Tribunal Act 1975. It found that it was not appropriate to do so. The issues in the case were not of a complexity that transcended the normal range of issues considered by the Tribunal. They were interim, rather than substantive, issues and it would seem more appropriate that they form part of the whole case that is considered by the Federal Court once the Tribunal has reviewed the reviewable decision and once any appeal or application for review has been lodged in the Federal Court.

Orders