Dunstan and Comcare - [2008] AATA 1064

Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2008] AATA 1064
ADMINISTRATIVE APPEALS TRIBUNAL )
) No A199600449 & A 200700023

GENERAL ADMINISTRATIVE DIVISION )

Re COLIN DUNSTAN

Applicant

And

COMCARE

Respondent

DECISION

Tribunal J.W. Constance, Senior Member
Date 28 November 2008
Place Canberra

Decision

1. In applications A 199600449 and A 200700023 the Tribunal has jurisdiction to consider a claim by Mr Dunstan for compensation pursuant to section 19 of the Safety, Rehabilitation and Compensation Act 1988 (Cth) during the period 1 November 1998 to 2 December 1999 inclusive.

................[signed]..................
J.W. Constance, Senior Member

CATCHWORDS
COMPENSATION – JURISDICTION - whether tribunal has jurisdiction to decide entitlement to compensation – whether claim for compensation excluded by section 23(2) - whether imprisonment prior to conviction ‘in connection with’ conviction – whether Respondent estopped from denying jurisdiction – Tribunal has jurisdiction.
Administrative Appeals Tribunal Act 1975 (Cth) s 25
Safety, Rehabilitation and Compensation Act 1988 (Cth) ss 16, 19, 23, 24
Formosa v Secretary, Department of Social Security (1988) 81 ALR 687
Kuswardana v Minister for Immigration and Ethnic Affairs (1981) 35 ALR 186
Lees v Comcare [1999] FCA 753
Trow and Commission for Safety, Rehabilitation and Compensation of Commonwealth Employees [1992] AATA 566
R v Moodie; ex parte Mithen (1977) ALR 219
REASONS FOR DECISION
BACKGROUND
2.      Mr Dunstan is seeking reviews of the following decisions made by Comcare:
·     a decision on reconsideration made 7 June 1995 disallowing his claim for compensation in respect of depression contributed to in a material degree by his employment by the Australian Taxation Office;
·     a decision on reconsideration made 3 September 1996 disallowing his claim for compensation in respect of an aggravation of his depressive condition, which aggravation was contributed to in a material degree by his employment.

3. In each application Mr Dunstan is claiming to be entitled to compensation under section 19 of the Safety, Rehabilitation and Compensation Act 1988 (Cth) for a period of incapacity for work from 1 November 1998 to 3 January 2008. During this period Mr Dunstan was in prison from 3 December 1999 until 3 January 2008 following his conviction (on 3 December 1999) of a criminal offence. For various periods totalling approximately six months in 1999 he was held in prison when he was refused bail pending his trial.
JURISDICTIONAL QUESTIONS
4. Comcare has disputed the jurisdiction of the Tribunal to decide the entitlement of Mr Dunstan to compensation for incapacity during the whole of the period 1 November 1998 to 3 January 2008. This is comprised of a number of distinct periods:
·the periods between 1 November 1998 and 3 December 1999 when Mr Dunstan was not in prison;
·the periods between November 1998 and 3 December 1999 when he was held in custody prior to his conviction; and
·the period between 3 December 1999 and 3 January 2008 inclusive, during which time he was imprisoned following his conviction.

The periods during which Mr Dunstan was imprisoned
5. Section 23(2) of the Act provides:

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 Dunstan and Comcare

Details

AGLC: Dunstan and Comcare [2008] AATA 1064
Case: [2008] AATA 1064
Decision Date: 28 November 2008

CaseChat Overview and Summary

In the case of Dunstan and Comcare, the respondent, Comcare, appealed a decision of the Administrative Appeals Tribunal (AAT) which found that the AAT had jurisdiction to determine a claim for compensation by Mr. Dunstan. The claim was for compensation under section 19 of the Safety, Rehabilitation and Compensation Act 1988 (Cth) for the period between 1 November 1998 and 2 December 1999 inclusive. Comcare argued that the AAT lacked jurisdiction because the claim was excluded by section 23(2) of the Act, which disqualifies individuals who have been imprisoned prior to a conviction from receiving compensation.

The primary legal issue before the court was whether the AAT had jurisdiction to consider Mr. Dunstan's claim for compensation. This hinged on whether Mr. Dunstan's imprisonment was related to a conviction that excluded him from receiving compensation under section 23(2) of the Act. Additionally, the court had to consider if Comcare was estopped from denying the AAT's jurisdiction due to its prior conduct. The court considered relevant legislative provisions and case law, including Formosa v Secretary, Department of Social Security and Lees v Comcare, to resolve these issues.

The court found that the AAT did indeed have jurisdiction to consider Mr. Dunstan's claim for compensation. The court held that Mr. Dunstan's imprisonment did not disqualify him from compensation as it was not directly connected to a conviction. The court also ruled that Comcare was not estopped from denying the AAT's jurisdiction. The reasoning was based on the fact that Comcare's prior conduct did not mislead Mr. Dunstan into a belief that the AAT would not have jurisdiction. Therefore, the AAT's decision was upheld, and Comcare's appeal was dismissed.

In conclusion, the court found that the AAT had jurisdiction to consider Mr. Dunstan's claim for compensation, and Comcare's appeal was dismissed. The decision underscores the importance of the connection between imprisonment and a conviction in determining eligibility for compensation under the Safety, Rehabilitation and Compensation Act 1988.

Orders

Orders of the court

1. In applications A 199600449 and A 200700023 the Tribunal has jurisdiction to consider a claim by Mr Dunstan for compensation pursuant to section 19 of the Safety, Rehabilitation and Compensation Act 1988 (Cth) during the period 1 November 1998 to 2 December 1999 inclusive.

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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