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:

Compensation is not payable under section 19, 20, 21 or 21A in respect of any period during which the employee is imprisoned in connection with his or her conviction of an offence.

6.      Mr Dunstan has argued that the Tribunal does have jurisdiction to decide that compensation is payable to him for incapacity during these periods as he was incapacitated by his injury immediately prior to, and during, his imprisonment.  He argued that the intention of Parliament was that the exclusion would only apply in the case of an injured employee who was fit for work and was prevented from working only because of his or her imprisonment.  He argued also that after May 2004 he was held in prison rather than being released on parole only because of the depressive illness to which these claims relate.

7.      I do not accept this argument. In this case the words of the section are unambiguous and there is no reason to look to determine the intention of Parliament other than by interpreting the words used in accordance with their ordinary meaning.  Had Parliament intended to provide for the situation put forward by Mr Dunstan it would have been a simple matter for it to say so.

8.      I note that the Tribunal has previously decided that it does not have jurisdiction to deal with a claim for incapacity payments for the period during which the claimant is imprisoned:  Trow and Commission for Safety, Rehabilitation and Compensation of Commonwealth Employees.[1]

[1] [1992] AATA 566.

9. Comcare has argued that section 23(2) also denies the Tribunal jurisdiction to decide incapacity entitlement during the periods for which Mr Dunstan was in prison prior to his conviction. I do not agree. The subsection specifically refers to a period of imprisonment ‘in connection with his or her conviction of an offence.”   Again the words are unambiguous.  A person cannot be imprisoned in connection with a conviction of an offence prior to the conviction taking place.  Even if there was ambiguity (which in my view there is not) this is beneficial legislation and in case of ambiguity should be interpreted in favour of the injured worker.

Periods prior to Mr Dunstan’s imprisonment in connection with his conviction

10.     Although my decision in relation to the application of subsection 23(2) means that only the period prior to Mr Dunstan’s conviction remains in issue, Comcare has put an argument that the Tribunal does not have jurisdiction to make determinations as to any part of the claimed period.  I will deal with that argument on the basis on which it has been put.

11.     This argument is based on the proposition that the period for which incapacity is claimed was after the reviewable decisions were made and therefore Comcare’s liability to compensate Mr Dunstan in respect of this period has not been considered by Comcare.  It was argued that it follows that the Tribunal does not have jurisdiction to consider the claim.

12.     Counsel for Comcare referred me to the decision of the Full Federal Court in Lees v Comcare [2] and argued that this decision is authority for “the proposition that the AAT’s jurisdiction flows from the jurisdiction of the Review Officer and the power that the Review Officer had as and when the Review Officer made the decision, then it must follow that anything after that can not be within the jurisdiction of the Tribunal.” [3]

[2] [1999] FCA 753.

[3] Transcript 10.10.08 p-14.

13.     In my experience this is a novel argument.  As it goes to the Tribunal’s jurisdiction, its acceptance would mean that an injured worker who was incapacitated for work and made a claim which was rejected by a Review Officer could not seek to have this Tribunal determine incapacity between the date of the reviewable decision and the date of the Tribunal’s decision unless the worker had continued to lodge claims for incapacity payments and these had been considered by Comcare on review.  In many cases Comcare has accepted the Tribunal’s jurisdiction to determine incapacity in the intervening period without objection, even though the worker did not continue to lodge claims after the initial claim had been rejected.  I do not accept Counsel’s argument that at “most times the parties act and the Tribunal acts as though that jurisdiction does exist and … that’s a practical solution.”[4]  It is beyond question that the Tribunal cannot be given jurisdiction by the consent of the parties:  R v Moodie; ex parte Mithen;[5] Kuswardana v Minister for Immigration and Ethnic Affairs.[6]

[4] Transcript 10.10.08 p-14.

[5] (1977) ALR 219.

[6] (1981) 35 ALR 186.

14.     I am of the view that Comcare’s argument is based on a misunderstanding of the decision of the Full Federal Court in Lees v Comcare.  In that matter the Court held that the Tribunal did not have jurisdiction to deal with a claim for permanent impairment under section 24 of the Act when the claim lodged with, and considered by, Comcare was limited to a claim for treatment expenses under section 16. The Full Court emphasised the importance of compliance with the three-tier review process established by the Act.

15.     In support of Comcare’s argument, Counsel referred me to the following passage from the Full Court’s judgement:

The structure of the Act requires that before a particular type of compensation is paid or denied, Comcare will have made a decision in relation to that entitlement to that type of compensation.  Only once a decision has been made by Comcare can the reconsideration and review process begin.  That process is an integral part of the Act’s pathway to the Tribunal.”[7]

[7] At p-8.

This passage exposes the flaw in the argument advanced.  In considering the argument the crucial words used by the Court are “that type of compensation”.   In my view it is clear that the Court is not excluding the jurisdiction of the Tribunal to deal with a period for which compensation is claimed after the reviewable decision, provided that compensation of that type had been claimed and considered.  Rather it is making clear that the Tribunal does not have jurisdiction to deal with a type of compensation which had not been considered by Comcare in accordance with the processes set out in the Act.

16.     Counsel also sought to support his argument by pointing out the difficulties that Comcare may face if it was not fully aware of the circumstances which had occurred after the reviewable decisions and before the hearing.  By reason of the time Mr Dunstan spent in prison and the consequent delay in these applications being heard there may well be further matters of which Comcare should be informed.  However this is an issue going to evidence not to jurisdiction.  Any difficulty Comcare may experience by reason of not being fully apprised of the facts can be dealt with by directions as to the filing of further witness statements and other documents. 

17. It should be noted that each of the claims made by Mr Dunstan included a claim for compensation for incapacity under section 19 of the Act. Further these claims were before the respective Review Officers.

Mr Dunstan’s argument based on estoppel

18.     Mr Dunstan argued that prior to Comcare raising the issue of jurisdiction, in these proceedings it had accepted the jurisdiction of the Tribunal to deal with his claim for incapacity.  He argued that Comcare was estopped from now disputing the Tribunal’s jurisdiction.

19. I do not accept Mr Dunstan’s proposition. It follows from the decisions that the parties cannot give the Tribunal jurisdiction by consent that it cannot be given jurisdiction by one party being estopped from applying to have a jurisdictional question determined. The Tribunal’s jurisdiction arises from the provisions of section 25 of the Administrative Appeals Tribunal Act 1975 (Cth) and the provisions of the various enactments including, in this case, the Safety, Rehabilitation and Compensation Act 1988 (Cth). It is always for the Tribunal to be satisfied that the relevant legislation confers the jurisdiction it is being asked to exercise. I find support for this conclusion in the decision of the Federal Court in Formosa v Secretary, Department of Social Security.[8]

[8] (1988) 81 ALR 687 at 695.

DECISION

20. 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.

I certify that the 20 preceding paragraphs are a true copy of the reasons for the decision herein of Mr J.W.Constance, Senior Member.

Signed: ..............................................................................................
  Peter Horobin  
  Associate

Date of Hearing  10 October 2008
Date of Decision  28 November 2008
Representative for the Applicant  Unrepresented
Counsel for the Respondent        Lazarus Dobelsky
  DLA Phillips Fox