FEDERAL COURT OF AUSTRALIA
Duong v Australian Postal Corporation [2005] FCA 991
WORKERS' COMPENSATION – Safety, Rehabilitation and Compensation Act 1988 (Cth)– where Comcare liability determined to exist pursuant to s 14 – where decision-maker purported to determine that liability would cease at a particular time – whether decision a bar to future claims for compensation
PRACTICE & PROCEDURE – Administrative Appeals Tribunal – whether challenges alternative to s 44 appeal appropriate – Administrative Decisions (Judicial Review) Act1977 (Cth) s 5
PRACTICE & PROCEDURE – Administrative Appeals Tribunal – extension of time – consideration of principles applicable to applications under s 29(7) of the Administrative Appeals Tribunal Act 1975 (Cth)
Administrative Appeals Tribunal Act 1975 (Cth) ss 29(7), 44
Administrative Decisions (Judicial Review) Act1977 (Cth) s 5(1)
Judiciary Act1903 (Cth) s 39B
Safety, Rehabilitation and Compensation Act 1988 (Cth) ss 14, 16, 24, 27Atkinson v Commissioner of Taxation [2000] FCA 998, applied
Australian Postal Corporation v Oudyn [2003] 73 ALD 659, applied
Commissioner of Taxation v Beddoe (1996) 68 FCR 446, cited
Director-General of Social Security v Chaney (1980) 47 FLR 80, cited
Geographical Indications Committee v The Honourable Justice O’Connor [2000] FCA 1877, cited
Howard v Australian Electoral Commission [2000] FCA 1767, cited
Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344, cited
Jess v Scott (1986) 12 FCR 187, cited
Lees v Comcare [1999] 56 ALD 84, applied
Re Liu and Comcare [2004] 79 ALD 119, applied
Re Mulheron and Australia Telecom Corporation (1991) 23 ALD 309, cited
Tuite v Administrative Appeals Tribunal & Anor (1993) 40 FCR 483, cited
Wiest v Director of Public Prosecutions (1988) 23 FCR 472, citedDUONG v AUSTRALIAN POSTAL CORPORATION
NSD 1858 of 2004EDMONDS J
SYDNEY
20 JULY 2005
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
NSD1858 OF 2004
ON APPEAL FROM THE ADMINISTRATIVE APPEALS TRIBUNAL
BETWEEN:
CUC KIM DUONG
APPLICANTAND:
AUSTRALIAN POSTAL CORPORATION
RESPONDENTJUDGE:
EDMONDS J
DATE OF ORDER:
20 JULY 2005
WHERE MADE:
SYDNEY
THE COURT ORDERS THAT:
1.The applicant’s application for an order extending the time within which to bring an appeal from the decision of the Administrative Appeals Tribunal, constituted by Senior Member Bell, given on 24 July 2002 at Sydney be refused.
2.The applicant’s further amended appeal from the decision of the Administrative Appeals Tribunal, constituted by Senior Member Bell, given on 15 November 2004 be upheld.
3.The respondent’s reviewable decision of 8 November 2001 be remitted to the Administrative Appeals Tribunal for review according to law.
4.The respondent’s notice of motion filed in Court on 28 June 2005 be dismissed.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
NSD1858 OF 2004
ON APPEAL FROM THE ADMINISTRATIVE APPEALS TRIBUNAL
BETWEEN:
CUC KIM DUONG
APPLICANTAND:
AUSTRALIAN POSTAL CORPORATION
RESPONDENT
JUDGE:
EDMONDS J
DATE:
20 JULY…
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- Case
- [2005] FCA 991
- Decision Date
CaseChat Overview and Summary
The central legal issue was whether APC could, by making a determination under section 14 of the Act, preclude future claims for compensation for a particular injury. This question hinged on the interpretation of the statutory framework governing compensation claims and the extent to which APC's authority to accept liability could affect the applicant's future entitlement to compensation. The court had to examine whether such a determination could operate as a bar to future claims if circumstances allowing compensation could arise again, or if the claim could be brought under another applicable section of the Act.
In delivering the judgment, the court found that APC's power to reconsider a determination under section 62 of the Act, when exercised in relation to a determination made under section 14, was limited to reconsidering one or more of the elements identified in the Full Court’s decision in Lees. A determination that one or more of these elements did not exist would mean there was no liability under section 14 to pay compensation for the particular injury. However, the court clarified that this did not extend to barring future claims if the circumstances allowing compensation could arise again or if the claim could be brought under another applicable section of the Act. The court concluded that APC could not bind itself in advance to reject any future application based on a determination made to cease payment of compensation for an injury under a particular section of the Act.
The court’s decision underscored the importance of accurately interpreting statutory provisions to ensure that the rights of claimants are preserved. The court ruled that the applicant was entitled to make a claim for permanent impairment under section 24 of the Act, as the previous determination by APC did not preclude such a claim. The court’s decision was pivotal in reaffirming the principles governing the acceptance of liability under section 14 of the Act and the limitations on APC’s power to foreclose future claims.
In its orders, the court refused the applicant's application for an extension of time to bring an appeal. However, it upheld the applicant's further amended appeal against APC’s decision. The court remitted APC's reviewable decision to the Administrative Appeals Tribunal for review and dismissed APC’s notice of motion.
Orders
Orders of the court
1. The applicant’s application for an order extending the time within which to bring an appeal from the decision of the Administrative Appeals Tribunal, constituted by Senior Member Bell, given on 24 July 2002 at Sydney be refused.
2. The applicant’s further amended appeal from the decision of the Administrative Appeals Tribunal, constituted by Senior Member Bell, given on 15 November 2004 be upheld.
3. The respondent’s reviewable decision of 8 November 2001 be remitted to the Administrative Appeals Tribunal for review according to law.
4. The respondent’s notice of motion filed in Court on 28 June 2005 be dismissed.
Background
Background to the litigation
Full text does not contain this section.
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
Full text does not contain this section.
Ratio Decidendi
Legal Principle Established
Established by: EDMONDS J
Subsequently, in Australian Postal Corporation v Oudyn, Cooper J said:“[30] The decision of the Full Court in Lees makes clear that a decision to accept liability under s 14 of the Act involves no more than acceptance of a liability to pay compensation under the Act in accordance with the provisions of the Act in respect of a particular injury. A decision to accept liability under s 14 of the Act involves findings as to the five elements identified by the Full Court in par [35] of its reasons.[31] The content, duration and means of satisfying the liability to pay compensation is to be found and worked out by determinations made under other sections of the Act including s 24. These determinations give substance to the liability “... to pay compensation in accordance with this Act”, provided for in s 14. They do not require that the determination under s 14 of the Act to accept liability be reconsidered or revoked when the liability to pay under s 14 is satisfied by payment in accordance with the requirements of one or more of the other sections of the Act. The liability under s 14 of the Act to pay compensation stands until it is discharged in accordance with the Act. Once discharged it is terminated.[32] The power of APC to reconsider a determination under s 62 of the Act, when exercised in relation to a determination made under s 14, is a power limited to a reconsideration of one or more of the elements identified by the Full Court in Lees. A determination on reconsideration that one or more of the elements did not exist is a determination that there was at no time a liability under s 14 of the Act to pay compensation for the particular injury. The position is different to, and to be contrasted with, the situation where a benefit is being paid under a particular section, in consequence of a determination having been made under s 14.[33] Where APC is paying compensation under one or more sections of the Act and it determines that its liability to pay in accordance with that section has been satisfied, the relevant determination is that the payment cease because the circumstances entitling payment under that section no longer exist, or can no longer be made out by the claimant. It is a determination under that section. It operates in respect of the claim then in existence for the payment of compensation under that section. It does not operate as a bar to future claims in respect of that injury if the circumstances under the section can be made out again in the future, or if it can be brought under another applicable section of the Act. [34] APC cannot bind itself in advance to reject any future application on the basis of a determination made to cease payment of compensation for an injury under a particular section of the Act: Plumb v Comcare (1992) 39 FCR 236 (FC) at 240. Nor can that result be achieved by purporting to determine on a reconsideration of a determination under s 14 that a liability, which correctly and effectively attached to APC in respect of a particular injury, ceased on the date of the determination and that entitlement to compensation under any section of the Act was thereafter excluded in respect of the injury. The Act does not contemplate the making of such a determination once liability under s 14 of the Act has properly arisen and a determination made to accept a claim made in accordance with s 54 of the Act.[35] The determination of APC made on 18 May 2000 involved two elements. The first was that the effects of the injury sustained on 2 August 1999 had resolved. That is, that the injury no longer resulted in an incapacity for work or an impairment. The second element was a consequence of the first. It was to terminate, as and from the date of the determination, the payment of compensation then being made to Mr Oudyn under one or more sections of the Act. To the extent that APC attempted to exonerate itself from future liability and to foreclose any future claims by Mr Oudyn by the determination, APC was in error as to its power to do so by the determination.[36] For the reasons which I set out above, the determination did not, and could not, for the future preclude Mr Oudyn from an entitlement to compensation in respect of the injury sustained on 2 August 1999 if he was otherwise entitled to receive compensation in accordance with the Act.[37] Notwithstanding the determination of APC made on 18 May 2000, Mr Oudyn was entitled to make the claim for permanent impairment under s 24 of the Act which he did by letter dated 12 February 2001 from his solicitors. APC was obliged to make a determination accurately and quickly in relation to that claim: s 69; Lees at [14]. The application required APC to again revisit the issue as to whether or not, at the time this determination was to be made, the injury Mr Oudyn had sustained on 2 August 1999 had resulted in impairment, and if so, whether the impairment was permanent: s 24(2) and (5) of the Act.” [Emphasis]