Clement and Comcare - [2006] AATA 705

Administrative

Appeals

Tribunal

DECISION AND REASONS FOR DECISION [2006] AATA 705
ADMINISTRATIVE APPEALS TRIBUNAL )
) A2006/55 & 157

GENERAL ADMINISTRATIVE DIVISION )

Re KRISTINE CLEMENT

Applicant

And

COMCARE

Respondent

DECISION

Tribunal Mr S. Webb, Member
Date17 August 2006
PlaceCanberra

Decision The application for stay is not granted.
..............................................
Mr S. Webb, Member

CATCHWORDS
COMPENSATION - stay application - relevant factors - strained financial circumstances - no capacity to repay monies if application unsuccessful - evidence to be tested to ascertain merit - stay not necessary to secure effectiveness of hearing - stay not granted
Safety, Rehabilitation and Compensation Act 1988 ss 16, 19
Administrative Appeals Tribunal Act 1975 s 41
Shi v Migration Institute of Australia & Anor (2003) 134 FCR 326
Civil Aviation Safety Authority v Hotop [2005] FCA 1023
Madafferi v Minister for Immigration and Multicultural Affairs [2001] FCA 320
Re Seaton and Minister for the Capital Territory (1978) 1 ALD 141
Yolbir v Administrative Appeals Tribunal (1994) 48 FCR 246
Re Bailey and Comcare [1995] AATA 10215
Re Commonwealth Banking Corporation and Iannello (1988) 15 ALD 418
Re Repatriation Commission and Delkou (1985) 8 ALD 454
Re Griffiths Grif-Air Helicopters Pty Ltd and Civil Aviation Authority (1993) 31 ALD 380
Re Trewin and Secretary Department of Social Security (1993) 31 ALD 629
Re Artemis and Australian Postal Corporation (1998) 27 AAR 60
REASONS FOR DECISION

17 August 2006 Mr S. Webb, Member

1.      Kristine Clement has an accepted compensation claim for a psychological injury arising from her employment by the Australian Bureau of Statistics in 1992. She was paid compensation benefits until September 1994, when her employment ended, and then again from 15 June 2004. In March 2006 Comcare decided that she had not suffered any compensable incapacity for work following the cessation of her employment in 1994 (A2006/55). Subsequently, in June 2006, Comcare decided to revoke all compensation decisions that had been made in her favour since September 1994, including payments of compensation for incapacity and medical treatment from June 2004 (A2006/157).
2.      Ms Clement has applied to the Tribunal for review of these decisions and, presently, is seeking orders to stay the operation of the decisions until the review is concluded.
3. The Tribunal’s discretionary power to order a stay is set in subs 41(2) of the Administrative Appeals Tribunal Act 1975. The section is to be interpreted broadly and given a liberal interpretation for the purpose of securing the effectiveness of the hearing and the determination of the application for review (Shi v Migration Institute of Australia & Anor (2003) 134 FCR 326 at 332; Civil Aviation Safety Authority v Hotop [2005] FCA 1023). Securing the effectiveness of the hearing and the review is tied to securing the processes of the hearing and the review (Madafferi v Minister for Immigration and Multicultural Affairs [2001] FCA 320). Each application for a s41 stay must be considered in its context. Nevertheless, it may not be appropriate to order…

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 Clement and Comcare

Details

AGLC: Clement and Comcare [2006] AATA 705
Case: [2006] AATA 705
Decision Date: 17 August 2006

CaseChat Overview and Summary

Clement lodged a claim for compensation against Comcare under the Safety, Rehabilitation and Compensation Act 1988. Comcare paid the compensation before the hearing of Clement’s claim, and now seeks reimbursement. Clement opposes the application on the basis that Comcare has not demonstrated that it has the ability to repay the monies if the application is unsuccessful. Clement applied for a stay of the hearing to allow for Comcare to repay the monies. The court had to decide whether it was appropriate to grant a stay of the hearing. The court considered whether there were exceptional circumstances that warranted a stay, taking into account factors such as the financial position of the parties, the likelihood of success of the application, and the potential impact on the parties if the stay was not granted. The court found that the evidence presented did not establish that Comcare was unable to repay the monies if the application was unsuccessful. The court also found that the application for a stay was not necessary to secure the effectiveness of the hearing, as the evidence could be tested to ascertain the merits of the application. The application for a stay was not granted.

Orders

Orders of the court

The application for stay is not granted.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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GENERAL ADMINISTRATIVE DIVISION		)
Re		KRISTINE CLEMENT