Filsell and Comcare - [2010] AATA 891

Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2010] AATA 891
ADMINISTRATIVE APPEALS TRIBUNAL )
) No 2007/4777

GENERAL ADMINISTRATIVE DIVISION )

Re JEFFREY WARREN FILSELL

Applicant

And

COMCARE

Respondent

DECISION

Tribunal Senior Member R W Dunne
Date12 November 2010
PlaceAdelaide

Decision
The Tribunal affirms the consent decision under review.

..............................................
R W DUNNE
(Senior Member)

CATCHWORDS
COMPENSATION – Commonwealth employee – claim for psychological injury arising from employment – claim rejected – application for review of decision – application resolved by consent order in which Tribunal affirmed decision – further claim for compensation for depression and anxiety rejected and affirmed – affirmed decision revoked by respondent in a reconsideration on own motion – application for review of revocation decision – whether consent decision was induced by duress – consent decision under review affirmed.
Administrative Appeals Tribunal Act 1975 (Cth) ss 37, 42B, 42C, 43
Re Filsell and Comcare [2009] AATA 90
Re Kowalski and Repatriation Commission [2008] AATA 903
Bushell v Repatriation Commission (1992) 175 CLR 408
McDonald v Director-General of Social Security (1984) 1 FCR 354
Re Eckersley and Minister for Capital Territory (1979) 2 ALD 303
Harvey v Phillips and Anor (1956) 95 CLR 235
Crescendo Management Pty Ltd v Westpac Banking Corporation (1988) 19 NSWLR 40
Cockerill and Ors v Westpac Banking Corporation [1996] FCA 1143
Universe Tank Ships Inc of Monrovia v International Workers Federation and Ors [1983] 1 AC 366
REASONS FOR DECISION

12 November 2010 Senior Member R W Dunne

introduction
1. The applicant involved in this case is Mr Jeffrey Filsell, who was an employee of the former Department of Finance and Administration. In October 1997, following an earlier claim, Mr Filsell made a claim for a psychological injury arising from his employment. When the respondent (“Comcare”) rejected the claim, Mr Filsell applied to this Tribunal for review of the decision. That application was resolved by a consent decision dated 6 July 1999, in which a Senior Member of this Tribunal affirmed the decision, and noted that Comcare had agreed to pay certain costs and disbursements of the applicant.
2. In June 2006, Mr Filsell made a further claim for compensation for depression and anxiety. This further claim was rejected by Comcare and affirmed on reconsideration in October 2006. A review officer subsequently revoked that affirming decision in September 2007 in a reconsideration on own motion. Mr Filsell applied to this Tribunal for review of the decision of September 2007. Comcare subsequently applied, pursuant to s 42B of the Administrative Appeals Tribunal Act 1975 (Cth) (“Act”), to dismiss Mr Filsell’s application on the grounds that it was frivolous or vexatious. At the hearing of Comcare’s application (which is reported as Re Filsell and Comcare [2009] AATA 90), Deputy President D G Jarvis held that the proceedings should not be dismissed under s 42B of the Act. During the course of the hearing, Mr Filsell made reference to having acted under duress when he signed the agreement that gave rise…

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 Filsell and Comcare

Details

AGLC: Filsell and Comcare [2010] AATA 891
Case: [2010] AATA 891
Decision Date: 12 November 2010

CaseChat Overview and Summary

The applicant, Filsell, sought review of a decision by Comcare rejecting his claim for compensation for psychological injury arising from his employment. The case was heard by the Administrative Appeals Tribunal (AAT). The initial claim was rejected, and a consent order was entered where the Tribunal affirmed this decision. Filsell subsequently sought review of the decision to reject his claim for compensation for depression and anxiety, which was also rejected and affirmed by the Tribunal. Comcare later revoked the affirmed decision on its own motion, prompting Filsell to seek review of this revocation. The central legal issue was whether the consent decision was induced by duress.

The Tribunal considered whether the consent decision was made under duress, which would render it invalid. The Tribunal found that there was no evidence to suggest that the consent decision was induced by duress. The Tribunal noted that the decision was made voluntarily and with full understanding of the consequences. The Tribunal also considered the authorities which suggested that a consent decision may be set aside if it was obtained through duress, but found that there was no evidence of duress in this case. The Tribunal concluded that the consent decision was valid and should be affirmed.

The Tribunal affirmed the consent decision, finding that it was not induced by duress. The Tribunal found that the consent decision was made voluntarily and with full understanding of the consequences. The Tribunal noted that there was no evidence to suggest that the consent decision was obtained through duress. The Tribunal found that the consent decision was valid and should be affirmed.

The Tribunal affirmed the consent decision, finding that it was not induced by duress. The Tribunal found that the consent decision was made voluntarily and with full understanding of the consequences. The Tribunal noted that there was no evidence to suggest that the consent decision was obtained through duress. The Tribunal found that the consent decision was valid and should be affirmed.

Orders

Orders of the court

The Tribunal affirms the consent decision under review.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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GENERAL ADMINISTRATIVE DIVISION		)
Re		JEFFREY WARREN FILSELL