DVFW and Comcare (Compensation) - [2021] AATA 2801

DVFW and Comcare (Compensation) [2021] AATA 2801 (11 August 2021)
Division:GENERAL DIVISION
File Number(s): 2021/3339
Re:DVFW
APPLICANT

AndComcare
RESPONDENT

DECISION
Tribunal:Senior Member A Poljak
Date:11 August 2021
Place:Sydney

The application for a stay order is refused.
.................................[sgd].......................................
Senior Member A Poljak
CATCHWORDS
PRACTICE AND PROCEDURE – application for a stay order – reviewable decision by Comcare in relation to psychotherapy treatment – whether a stay order is appropriate for the purpose of securing the effectiveness of the hearing and determination of the application for review – practical effect of granting a stay – application refused
LEGISLATION
Administrative Appeals Tribunal Act 1975 (Cth) s 41
Safety, Rehabilitation and Compensation Act 1988(Cth) s 16
CASES
Australian International College Pty Ltd v Australian Skills Quality Authority [2018] FCA 2097
Australian Postal Corporation v Mowbray [2003] FCA 1258; (2003) 77 ALD 440
Australian Postal Corporation v Oudyn [2003] FCA 318; (2003) 73 ALD 659
Blackwell and Comcare (Compensation) [2017] AATA 1118
Gould and Tax Practitioners Board [2019] AATA 1056
Plumb v Comcare [1992] FCA 903; (1992) 39 FCR 236
Re Scott and Australian Securities and Investments Commission (2009) 51 AAR 114; [2009] AATA 798
Secretary, Department of Employment and Workplace Relations v Anastasiadis [2007] AATA 1065
REASONS FOR DECISION
Senior Member A Poljak
11 August 2021

The applicant has an accepted claim for compensation under the Safety, Rehabilitation and Compensation Act 1988 (Cth) (the Act) for “Personality Disorder (aggravation)” sustained on 8 November 2012 (the accepted injury).
The applicant seeks review of a decision dated 19 March 2021 which affirmed a determination dated 2 February 2021 (reviewable decision). By that determination, Comcare accepted liability to pay the applicant compensation under section 16 of the Act in respect of psychotherapy treatment at the following frequency:
(i)Two sessions of psychotherapy per week from 31 January 2021 to 28 February 2021;
(ii)One session of psychotherapy per week from 1 March 2021 until 28 March 2021;
(iii)One psychotherapy session per fortnight from 29 March 2021 until 29 May 2021; and
(iv)One psychotherapy session per month from 29 May 2021 until 30 July 2021.
These interlocutory proceedings concern an application for an order under subsection 41(2) of the Administrative Appeals Tribunal Act 1975 (Cth) (the AATAct) staying the operation of the reviewable decision until final determination of the substantive proceedings before this Tribunal.
The respondent opposes the granting of a stay order.
POWER TO GRANT A STAY
Subsection 41(1) of the AAT Act provides that the making of an application to the Tribunal for a review of a decision does not affect the operation or implementation of the decision under review. In other words, the decision under review has full effect until and unless it is set aside or replaced.
The Tribunal may, after taking into account the interests of any persons who may be affected by the review, make such orders staying the operation or implementation of 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.

Continue reading DVFW and Comcare (Compensation)

Details

AGLC: DVFW and Comcare (Compensation) [2021] AATA 2801
Case: [2021] AATA 2801
Decision Date: 11 August 2021

CaseChat Overview and Summary

This matter concerned an application by DVFW for a stay order under subsection 41(2) of the *Administrative Appeals Tribunal Act 1975* (Cth). The applicant sought review of a Comcare decision that affirmed a determination regarding the frequency of psychotherapy treatment for which Comcare accepted liability to pay compensation. Comcare opposed the application for a stay.

The primary legal issue before the Tribunal was whether it should grant a stay of the Comcare decision pending the final determination of the substantive review application. This required the Tribunal to consider the purpose of subsection 41(2) of the *Administrative Appeals Tribunal Act 1975*, which allows for stays to secure the effectiveness of the hearing and determination of an application for review.

The Tribunal reasoned that the decision to grant a stay is discretionary and not an automatic right. Applying the principle that a decision under review is presumed correct until proven otherwise, and drawing an analogy to court proceedings where a successful party is generally entitled to the fruits of a judgment, the Tribunal considered that an applicant must demonstrate special circumstances justifying a stay. The Tribunal referred to established principles for exercising this discretion, including the applicant's prospects of success, the consequences of refusing the stay, the public interest, the consequences for the respondent, and whether the review would be rendered nugatory without a stay.

The Tribunal refused the application for a stay order.

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 seeks review of a decision dated 19 March 2021 which affirmed a determination dated 2 February 2021 (reviewable decision). By that determination, Comcare accepted liability to pay the applicant compensation under section 16 of the Act in respect of psychotherapy treatment at the following frequency:(i)Two sessions of psychotherapy per week from 31 January 2021 to 28 February 2021;(ii)One session of psychotherapy per week from 1 March 2021 until 28 March 2021;(iii)One psychotherapy session per fortnight from 29 March 2021 until 29 May 2021; and(iv)One psychotherapy session per month from 29 May 2021 until 30 July 2021. These interlocutory proceedings concern an application for an order under subsection 41(2) of the Administrative Appeals Tribunal Act 1975 (Cth) (the AATAct) staying the operation of the reviewable decision until final determination of the substantive proceedings before this Tribunal. The respondent opposes the granting of a stay order.POWER TO GRANT A STAY Subsection 41(1) of the AAT Act provides that the making of an application to the Tribunal for a review of a decision does not affect the operation or implementation of the decision under review. In other words, the decision under review has full effect until and unless it is set aside or replaced. The Tribunal may, after taking into account the interests of any persons who may be affected by the review, make such orders staying the operation or implementation of the decision pursuant to subsection 41(2) of the AAT Act, as it considers appropriate for the ‘purpose of securing the effectiveness of the hearing and determination of the application for review.’ In Secretary, Department of Employment and Workplace Relations v Anastasiadis [2007] AATA 1065 at [6], the Tribunal stated:The decision whether to grant a Stay is entirely discretionary. It follows that an applicant does not have an automatic right to a Stay. Given the effect of s 41(1) of the AAT Act, it must necessarily be inferred that the reviewable decision, the decision of the SSAT in this case, is correct until proven otherwise. Further, the general principle applied by the courts that, prima facie, the successful party has the right to the fruits of a judgement should also apply in the case of Tribunal decisions. In the courts, an applicant for a Stay is required to show that there are special circumstances which would justify the stay of execution of the judgement. [Emphasis added] The test for the Tribunal’s exercise of the discretion under subsection 41(2) of the Act is that the Tribunal considers that such an order is “appropriate for the purpose of securing the effectiveness of the hearing and determination of the application for review”, as observed by Justice Bromwich in Australian International College Pty Ltd v Australian Skills Quality Authority [2018] FCA 2097 at [13]. Factors that may be relevant in granting a stay were outlined in Re Scott and Australian Securities and Investments Commission (2009) 51 AAR 114; [2009] AATA 798 (and referred to in Gould and Tax Practitioners Board [2019] AATA 1056 at [7]) include:(i)the applicant’s prospects of success;(ii)the consequences for the applicant if the stay is refused;(iii)the public interest;(iv)the consequences to the respondent in carrying out its functions;(v)whether the review would be rendered of no value if the stay is not granted; and(vi)any other relevant matters.PURPOSE OF SECURING THE EFFECTIVENESS OF THE HEARING AND DETERMINATION OF THE APPLICATION FOR REVIEW

Ratio Decidendi

Legal Principle Established

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