Evans and Australian Capital Territory (Compensation)

Evans and Australian Capital Territory (Compensation) [2019] AATA 799 (17 April 2019)

Administrative Appeals Tribunal

ADMINISTRATIVE APPEALS TRIBUNAL              )
  )

General Division  )

File Numbers: 2016/2524, 2018/6499, 2018/6587, 2018/6588, 2018/6589, 2018/6590, 2018/6591

Re: Timothy Evans
Applicant

And: Australian Capital Territory
Respondent

DIRECTION

TRIBUNAL:  Mr S Webb, Member

DATE OF CORRIGENDUM:            3 May 2019

PLACE:  Canberra

The Tribunal directs the Registrar, pursuant to subsection 43AA(1) of the Administrative Appeals Tribunal Act 1975, to alter the text of the decision in this application:

1.    On the cover page of the decision made by Mr S Webb, Member dated 17 April 2019 be amended to show the ‘Australian Capital Territory’ as the Respondent in place of ‘Comcare’.

2.    Where the Respondent is referred to as ‘Comcare’ in paragraphs 106 and 107, it be amended to show the ‘Australian Capital Territory’.

...................................................................

Mr S Webb, Member

Division:GENERAL DIVISION

File Number(s):2016/2524      

2018/6499

2018/6587

2018/6588

2018/6589

2018/6590

2018/6591

Re:Timothy Evans  

APPLICANT

AndComcare

RESPONDENT

Decision

Tribunal:Mr S. Webb, Member

Date:17 April 2019

Place:Canberra

Applications dismissed.

........................................................................

Mr S. Webb, Member

PRACTICE AND PROCEDURE – applications for review of decisions rejecting compensation claims – delay – failure to comply with directions – failure to proceed – application for dismissal – meaning of ‘within a reasonable time’ - discretion enlivened – factors relevant to exercise of discretion - explanation for applicant’s failure to proceed and comply – fairness – prejudice - flexibility and latitude in the context of properly determined procedure - serial non-compliance and failure to proceed by applicant - Tribunal objectives – consideration of appropriate procedure – application dismissed

Administrative Appeals Tribunal Act 1975, s 2A, 33, 39, 42A, 42B

Safety, Rehabilitation and Compensation Act 1988, s 5A, 5B, 14

AMF15 v Minister for Immigration and Border Protection [2016] FCAFC 68

Andelman v Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2011] FCA 299

Beard v Telstra Corporation Ltd [1999] FCA 999

Goldie v Minister for Immigration and Multicultural Affairs [2002] FCAFC 367

Guse v Comcare [1997] FCA 961

Khan and National Australia Bank Limited [2018] AATA 4094

Spencer v Commonwealth of Australia [2010] HCA 28

Topalides and Tax Practitioners Board [2014] AATA 470

REASONS FOR DECISION

Mr S. Webb, Member

17 April 2019

1. Timothy Evans was physically injured in his employment as a physical education teacher by the ACT Department of Education. He claimed and was paid compensation. The physical injury prevented him from engaging in physical activities he had previously enjoyed. Some time later, he experienced psychological symptoms, including depression. Initially, Comcare denied liability for this ailment, but this determination was later revoked and he was paid compensation for resulting incapacity and medical treatment expenses.

2. Mr Evans returned to work and was transferred to a different school. This transfer did not go well – he complained of difficulties involving the school principal and other staff. His mental health was affected. He lodged a further claim for compensation. Comcare decided to reject the claim by primary determination…