Comcare v Administrative Appeals Tribunal

FEDERAL COURT OF AUSTRALIA

Comcare v Administrative Appeals Tribunal [2007] FCA 1132

ADMINISTRATIVE LAW – judicial review – grounds of review – whether Administrative Appeals Tribunal had jurisdiction to consider reformulated claim as to employment injury – whether claim for psychosomatic injury could be investigated following initial claim for organic injury – no practical advantage to applicant from relief sought  

Held: Declined to exercise discretion to grant relief even if otherwise justified.

Abrahams v Comcare (2007) 93 ALD 147 applied

COMCARE v ADMINISTRATIVE APPEALS TRIBUNAL AND BERRIN KOSE
ACD 11 OF 2007

MADGWICK J
24 JULY 2007
CANBERRA

IN THE FEDERAL COURT OF AUSTRALIA
AUSTRALIAN CAPITAL TERRITORY DISTRICT REGISTRY	ACD 11 OF 2007

BETWEEN:

COMCARE
Applicant

AND:

ADMINISTRATIVE APPEALS TRIBUNAL
First Respondent

BERRIN KOSE
Second Respondent

JUDGE:	MADGWICK J
DATE OF ORDER:	24 JULY 2007
WHERE MADE:	CANBERRA

THE COURT ORDERS THAT:

1.The application be dismissed.

2.The applicant pay the respondents’ costs.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
AUSTRALIAN CAPITAL TERRITORY DISTRICT REGISTRY	ACD 11 OF 2007

BETWEEN:

COMCARE
Applicant

AND:

ADMINISTRATIVE APPEALS TRIBUNAL
First Respondent

BERRIN KOSE
Second Respondent

JUDGE:	MADGWICK J
DATE:	24 JULY 2007
PLACE:	CANBERRA

REASONS FOR JUDGMENT

HIS HONOUR

1. This is an application for relief under the Judiciary Act1903 (Cth) directed against the Administrative Appeals Tribunal (“the Tribunal”), seeking an order in the nature of certiorari setting aside a decision of the Tribunal of 13 March 2007 that it had jurisdiction to consider a claim by an ACT public servant in respect of a claimed injury being “pain in the right wrist region, the right arm, generally, the right shoulder and the right neck, caused by [a] somatic pain syndrome … secondary to [an] accepted mental illness [of anxiety disorder]”.

2. The injured worker, Dr Kose was an epidemiologist employed by the employer authority known as ACT Health, where she was employed for about ten months from mid 2002.  This case arises out of a claim for compensation that she made on 18 October 2004, using, as the Tribunal said, a form required by Comcare, the applicant before me.  The form, among other things, posed the following questions to which Dr Kose gave the following answers:

   What injury or illness are you claiming compensation for? 
   Ganglion (right wrist).

   What part(s) of your body has been most affected by your injury or illness? 
   Right wrist.

3. It seems that before October 2004, Dr Kose had made a claim for anxiety disorder, which Comcare had accepted and, at all relevant times, it was paying her weekly payments for incapacity for work. 

4. At the time she made the claim referring to “ganglion”, Dr Kose’s medical advice was that she had a ganglion on the right wrist, that it should be excised, surgically, and that it was related to her work, which included a deal of typing on a computer.  Comcare initially accepted her claim, but suffered itself to be asked to…