Duval and Australian Postal Corporation - [2002] AATA 306

DECISION AND REASONS FOR DECISION [2002] AATA 306

ADMINISTRATIVE APPEALS TRIBUNAL )

) No N2001/1748

GENERAL ADMINISTRATIVE DIVISION          )
           Re      MARIE CELINE DUVAL
  Applicant
           And    AUSTRALIAN POSTAL CORPORATION
  Respondent

DECISION

Tribunal Mr M J Sassella Senior Member

Date3 May 2002
PlaceSydney

Decision      The tribunal refuses the applicant's application for an extension of the time for lodging the application for review in this matter.
   [SGD] M J SASSELLA
  Senior Member
CATCHWORDS
WORKERS' COMPENSATION – application for review by Tribunal not lodged within statutory time limit – application for extension of time for lodging of application for review – application for extension of time refused because Tribunal lacked jurisdiction to review matter.
WORKERS' COMPENSATION – rehabilitation program – employee refused to undertake rehabilitation program – employee's compensation entitlements suspended until employee begins to undertake program – proceedings in relation to employee's compensation entitlements suspended until employee begins to undertake program – compensation authority cannot determine claims or reconsider decisions while suspension operates – Tribunal cannot hear application for review of suspension while suspension operates.

Safety, Rehabilitation and Compensation Act 1988 ss 37(1), (7), 38, 65(1), (4).
Administrative Appeals Tribunal Act 1975 ss 29(1), (2)(a), (7).

Hunter Valley Developments Pty Ltd v Cohen (1984) 7 ALD 315.
Comcare v A'Hearn (1993) 45 FCR 441.
Re Mulheron and Australian Telecommunications Corporation (1991) 14 AAR 42.
Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 54.
Re Petrou and Australian Postal Corporation (1992) 25 ALD 407.
Re Quis and Comcare (2001) 64 ALD 485.
Trajkovski v Telstra Corporation (1998) 81 FCR 459
Buck v Comcare (1996) 137 ALR 335; (1996) 66 FCR 359.
Re Peisley and Comcare [2001] AATA 121.
Chowdhary v Bayne (1999) 29 AAR 100.
Re Davis and Comcare (1997) 49 ALD 154.

REASONS FOR DECISION

3 May 2002 Mr M J Sassella Senior Member

HISTORY OF APPLICATION

This chronology is taken largely from the chronology attached to ex A4, the affidavit of the solicitor to the applicant, Ms Marie Celine Duval. This affidavit was dated 15 February 2002.
Ms Duval commenced work at the GPO in Sydney in 1990. In 1991 she injured her shoulder in a lifting incident. In 1994 she was in a motor vehicle accident on the way to work. She injured her shoulder, amongst other injuries, in this accident.
On 3 March 1994 Ms Duval lodged a claim for compensation with the Australian Postal Corporation ("the respondent"). This apparently led to payment of compensation.
There were various developments after this that are not centrally relevant. They include return to work attempts that proved unsuccessful and threats of suspension for failure to engage in a rehabilitation program.
On 26 October 1995 Ms Duval's solicitors lodged a claim for compensation in respect of depressive illness.
The respondent on 9 May 1996 accepted compensation liability for Ms Duval's injuries to her left arm and left leg.
The applicant attempted an unsuccessful return to work on 4 June 1996.
On 22 July 1996 the…

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.

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Details

Case: [2002] AATA 306
Decision Date: 3 May 2002

CaseChat Overview and Summary

In this matter, Duval, the applicant, sought an extension of time to lodge an application for review with the Administrative Appeals Tribunal (AAT) regarding her workers' compensation entitlements. Australian Postal Corporation, the respondent, opposed the application on the grounds that the AAT lacked jurisdiction to review the matter due to Duval's failure to comply with statutory time limits and because her compensation entitlements were suspended pending her participation in a rehabilitation program.

The primary legal issues the court needed to address were whether the tribunal had the jurisdiction to extend the time for lodging the application for review, and if it could do so, whether the extension should be granted. Additionally, the court had to consider the impact of Duval's refusal to participate in the mandated rehabilitation program on her ability to pursue her compensation claims.

The court examined the statutory framework and relevant case law, including Hunter Valley Developments Pty Ltd v Cohen, Comcare v A'Hearn, and Re Mulheron and Australian Telecommunications Corporation, among others. The court determined that the tribunal did not have jurisdiction to extend the time for lodging the application for review, as the statutory time limit was mandatory and could not be extended. Furthermore, the court held that the tribunal lacked jurisdiction to review Duval's compensation suspension while it remained in effect. Consequently, the tribunal's jurisdiction was constrained by the existing statutory framework and the ongoing suspension of Duval's compensation.

The tribunal refused Duval's application for an extension of time to lodge the application for review. The decision was based on the tribunal's lack of jurisdiction to extend the time limit and to review the matter while the compensation suspension was in place. The tribunal's refusal effectively barred Duval from seeking further compensation and review of her claims during the suspension period.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

The applicant is in an extremely difficult position if she is to obtain any further compensation. If she still had employment at Australia Post she could submit to the rehabilitation program and, once engaged in the program, seek to have it altered by seeking a review of the decision under s 37(1) of the Act. She could at the same time claim for permanent impairment and any compensable expenses. If any of these claims were refused she could proceed to reconsideration and then to the tribunal. However, her employment with Australia Post was effectively terminated in October 1996. She may wish to seek advice on whether that decision can be challenged.DECISION The tribunal refuses the applicant's application for an extension of the time for lodging the application for review in this matter.I certify that the 52 preceding paragraphs are a true copy of the reasons for the decision herein of Mr M J SassellaSenior MemberSigned: ..................................................................................... AssociateDate/s of Hearing 20 February 2002 Date of Decision 3 May 2002Counsel for the Applicant Ms S Norton Solicitor for the Applicant Castagnet Lawyers Counsel for the Respondent Miss R Henderson Solicitor for the Respondent N/a

Ratio Decidendi

Legal Principle Established

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