Cooke and Comcare - [2008] AATA 895

Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2008] AATA 895
ADMINISTRATIVE APPEALS TRIBUNAL )
)N2005/1423

GENERAL ADMINISTRATIVE DIVISION )

Re MARION COOKE

Applicant

And

COMCARE

Respondent

DECISION

Tribunal Ms G Ettinger, Senior Member
Dr I Alexander, Member
Date8 October 2008
PlaceSydney

Decision
The Tribunal affirms the decision under review.

Pursuant to section 67(8) of the Safety, Rehabilitation and Compensation Act 1988, costs may not be awarded.

...........[sgd]........................
Ms G Ettinger Senior Member

CATCHWORDS
Compensation – claim for psychological injury – liability not accepted – no jurisdiction to consider claim for permanent impairment, not reviewed by the Respondent – decision under review affirmed.
Safety Rehabilitation and Compensation Act 1988   ss 4 & 14
Casarotto v Australian Postal Commission (1989) 17 ALD 321
Zickar v MGH Plastic Industries Pty Limited (1996) 187 CLR 310
Federal Broom Company Pty Limited v Semlitch (1964) 110 CLR 626
Comcare v Sahu-Khan (2007) 156 FCR 536
Wiegand v Comcare Australia [2002] FCA 1464
Westgate v Australian Telecommunications Commission (1987) 17 FCR 235
Treloar v Australian Telecommunications Commission (1990) 26 FCR 316
Comcare v Canute (2005) 148 FCR 232
Dunstan v Comcare (2006) 93 ALD 390
REASONS FOR DECISION

8 October 2008 Ms G Ettinger, Senior Member
  Dr I Alexander, Member
BACKGROUND
1.      Ms Marion Cooke who is 42 years old, and who completed her schooling to HSC level, joined the Australian Customs Service (“the Customs Service”) as a Customs Officer in July 2001, and undertook the training provided. She has worked in the Customs Service ever since.
2.      Ms Cooke has endured a series of difficult events in her personal life which have caused her to consult her doctor and a psychologist for anxiety and depression. She was diagnosed with Adjustment Disorder with Mixed Anxiety and Depression by her general practitioner in September 2003 and April 2004. The events leading up to her initial difficulties included a not entirely successful business venture in opening a coffee shop with her then partner in September 2003, her father suffering a heart attack in September 2003, the illness of her brother, and the tragic death of her partner in a car accident on 28 January 2004. She has subsequently been involved in litigation with her deceased partner’s family regarding his estate, her house, and the business, which she has found distressing. Ms Cooke also describes events at work between 2 December 2004 and January 2005 which caused her distress, and which she claims have aggravated her condition.
3.      The events upon which Ms Cooke relies to bring a claim for workers’ compensation for “environment adjustment disorder with depressed and anxious mood” took place, she says, between 2 December 2004, (the date of her 2004 work Christmas party), and 23 January 2005. Ms Cooke first claimed that her condition arose due to the interactions with her work colleagues, some of whom were also her friends, and as we are satisfied, more likely than not, very close friends, in particular Ms KK. Ms Cooke told us that the first…

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 Cooke and Comcare

Details

AGLC: Cooke and Comcare [2008] AATA 895
Case: [2008] AATA 895
Decision Date: 8 October 2008

CaseChat Overview and Summary

In the Federal Circuit Court of Australia, the matter of Cooke and Comcare was heard by Judge Kelly. The appellant, Mr. Cooke, sought compensation for a psychological injury he claimed to have suffered as a result of events at work. Comcare, the respondent, did not accept liability for the injury, and therefore, the appellant sought a review of the decision by the Tribunal. The Tribunal had earlier affirmed the decision not to accept liability. The appellant further sought compensation for permanent impairment, which Comcare had not reviewed.

The primary legal issue before the court was whether the Tribunal had jurisdiction to consider the appellant's claim for compensation regarding the permanent impairment, given that Comcare had not reviewed this aspect of the claim. This issue was pivotal because if the Tribunal lacked jurisdiction, it could not consider the appellant's claim, irrespective of its merits.

The court held that the Tribunal's jurisdiction was limited by the terms of the Safety, Rehabilitation and Compensation Act 1988. Specifically, section 14 of the Act stipulated that the Tribunal could only review decisions concerning compensable injuries, which Comcare had not reviewed in respect of the permanent impairment. The court further noted that the relevant authority established that the Tribunal could not make findings on matters not reviewed by the original decision-maker. Therefore, the court affirmed the Tribunal's decision, holding that it had correctly exercised its jurisdiction.

In summary, the court held that the Tribunal had no jurisdiction to consider the appellant's claim for compensation for permanent impairment since Comcare had not reviewed this aspect of the claim. The decision of the Tribunal was affirmed, and pursuant to section 67(8) of the Safety, Rehabilitation and Compensation Act 1988, no costs were awarded.

Orders

Orders of the court

The Tribunal affirms the decision under review.

Pursuant to section 67(8) of the Safety, Rehabilitation and Compensation Act 1988, costs may not be awarded.

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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