Daff and Comcare (Compensation)
[2023] AATA 1025
•20 April 2023
Daff and Comcare (Compensation) [2023] AATA 1025 (20 April 2023)
Division:GENERAL DIVISION
File Number(s): 2022/10414
Re:Wayne Colin Daff
APPLICANT
AndComcare
RESPONDENT
DECISION
Tribunal:Member W Frost
Date of decision: 20 April 2023
Date of written reasons: 28 April 2023
Place:Canberra
Pursuant to section 40A of the Administrative Appeals Tribunal Act 1975, the Tribunal refuses the Applicant’s request to summon officers of the Respondent to appear before the Tribunal to give evidence at the Hearing.
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Member W Frost
Catchwords
PRACTICE AND PROCEDURE – where there was a request by the Applicant to issue summons to a decision maker – original decision makers to give evidence – Comcare – whether or not there is relevance of the evidence – whether or not there is legitimate forensic purpose – Tribunal not bound by previous decisions made by the Respondent – Tribunal to consider the material before it – request refused
Legislation
Administrative Appeals Tribunal Act 1975 (Cth), ss 40A
Safety, Rehabilitation and Compensation Act1988 (Cth), ss 16, 39Cases
Mika Engineering Holdings Pty Ltd and Anor and Commissioner of Taxation [2006] AATA 634
Tregale and National Disability Insurance Agency [2019] AATA 2513REASONS FOR DECISION
Member W Frost
28 April 2023
INTRODUCTION
In December 2022, the Applicant, Mr Wayne Daff, applied to the Administrative Appeals Tribunal (Tribunal) for review of a decision made on 15 December 2022 by a delegate of the Respondent, Comcare, which affirmed an earlier determination that Comcare was not liable to pay for a hedge trimmer under sections 16 or 39 of the Safety, Rehabilitation and Compensation Act 1988 (SRC Act).
The application is listed for a substantive Hearing before the Tribunal in July 2023.
In advance of that Hearing, Mr Daff requested that three officers of Comcare be made available for cross-examination or questioning by him at the Hearing. The three officers have made decisions regarding Comcare’s liability to pay Mr Daff compensation under the SRC Act. Mr Daff sought to question these officers regarding the basis for, and validity of, their decisions. Comcare did not propose to call these officers to give evidence at the Hearing and submitted that their evidence would not be relevant to the issues before the Tribunal. As a result, the Tribunal held a Directions Hearing in relation to this matter on 20 April 2023.
Following the parties providing verbal submissions to the Tribunal at the Directions Hearing, the Tribunal made a decision and provided its reasons for refusing Mr Daff’s request. At the conclusion of the Directions Hearing, Mr Daff requested a written copy of the Tribunal’s decision and reasons. An edited version of that decision and reasons is set out below.
Reasons delivered at the Directions Hearing
The Tribunal has considered the parties’ submissions and thanks them for those statements. In circumstances where Comcare does not intend to call the three individuals to give evidence at the Hearing, the Tribunal treats Mr Daff’s request for those witnesses to be made available for cross-examination or questioning by him at the Hearing as effectively a request for the Tribunal to summon those officers of Comcare to attend and give evidence at the Hearing. This is the normal course in such circumstances, while noting the decision to issue such a summons rests with the Tribunal.
Having considered the issues in dispute in this proceeding, being the subject of the reviewable decision dated 15 December 2022, which declined liability to pay for the purchase of a hedge trimmer for Mr Daff under the SRC Act, the Tribunal is not minded to summons the three individuals who are officers of Comcare, or otherwise require or request that they be made available for cross-examination by Mr Daff at the Hearing.
This is informed by a number of matters, including the nature of the application for review made by Mr Daff and that the Tribunal does not consider that the three individuals can give evidence that would assist the Tribunal to discharge its function on review, being to make the correct or preferable decision based on all relevant material before it.
In this regard, the Tribunal undertakes its review afresh and not bound by any decision under review. The Tribunal will undertake a review of Mr Daff’s application on the merits and informed by all of the available evidence. This does not require the evidence of the individuals employed by Comcare to give evidence, or to be cross examined at the Hearing. To this end, any previous decision relevant to this review made by Comcare is not binding on the Tribunal, and there is, in the Tribunal’s view, no legitimate forensic purpose to be served by issuing summonses on those individuals, or otherwise requiring them to give evidence at the Hearing.
The Tribunal’s task is to review the relevant decision, not the process or reasons that led to the decision under review. The Tribunal in a number of previous decisions has followed this approach of not compelling a decision maker from the respondent (here, Comcare), to give evidence at a Hearing.
For the benefit of the parties, the Tribunal refers to two cases that have been brought to my attention. The first is Tregale and National Disability Insurance Agency [2019] AATA 2513 at [18], in which the Tribunal refused to issue a summons to require a decision maker of the National Disability Insurance Agency to appear at a hearing, and the Tribunal stated that:
It cannot be consistent with the objective of the Tribunal, including its objective of fairness, to require a person to appear as a witness where, in the Tribunal’s view, there is no real possibility that their evidence would assist in determining the issues before the Tribunal. Nor can it be consistent with the Tribunal’s obligation to ensure procedural fairness in the proceedings. In fact, to allow such a request would be unfair and inconsistent with the Tribunal’s objectives under section 2A [of the Administrative Appeals Tribunal Act 1975].
The other decision is Mika Engineering Holdings Pty Ltd and Anor and Commissioner of Taxation [2006] AATA 634, in which the Tribunal considered a request to issue a summons to require a decision maker of the Australian Taxation Office to appear at a hearing. The Tribunal rejected a submission that a question arising as to whether decision making powers were exercised in good faith was a sufficient basis to issue a summons, and stated at [32] that:
in my view it would not matter, for the purposes of these proceedings, if the Commissioner’s processes of assessment and determination were not carried out in good faith. The Tribunal would be bound to consider the decision on the material before it, uncluttered by any attitude taken by the Commissioner or his officers.
Accordingly, in this proceeding, the Tribunal is not satisfied that it would be assisted in its review function by the evidence of the three officers of Comcare, or that there is any apparent relevance of their evidence, given the Tribunal’s task in this proceeding.
DECISION
Pursuant to section 40A of the Administrative Appeals Tribunal Act 1975, the Tribunal refuses the Applicant’s request to summon officers of the Respondent to appear before the Tribunal to give evidence at the Hearing.
I certify that the preceding 13 (thirteen) paragraphs are a true copy of the reasons for the decision herein of Member W Frost
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Associate
Dated: 28 April 2023
Date(s) of hearing: 20 April 2023 Date final submissions received: 20 April 2023 Applicant: By Telephone Solicitor for the Respondent: Ms Laura Hinwood, Sparke Helmore Lawyers
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