Flanagan and Comcare - [2011] AATA 446

Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2011] AATA 446
ADMINISTRATIVE APPEALS TRIBUNAL )
) No 2010/2081

GENERAL ADMINISTRATIVE DIVISION )

Re Patrick Flanagan

Applicant

And

Comcare

Respondent

DECISION

Tribunal Deputy President J W Constance
Date27 June 2011
PlaceMelbourne

Decision
1.     Within 14 days of the making of this direction the applicant apply to the appropriate government department or agency to obtain copies of the records relating to the social security benefits received by him and referred to in paragraphs 30, 31 and 32 of his statement made 22 October 2010 and filed in these proceedings;

2.     the applicant shall provide to the Tribunal a copy of all documents obtained by him in accordance with the preceding direction within 7 days of receiving the documents;

3.     unless the Tribunal directs otherwise the applicant shall provide to the respondent a copy of the documents within 21 days of receiving the documents.

....l..(sgd J W Constance)......
Deputy President

COMPENSATION – power of the Tribunal to direct the applicant to produce documents not in his possession in preparation for hearing - Administrative Appeals Tribunal Act 1975 (Cth) s 33(2A) – direction in personam - Social Security (Administration) Act 1999 (Cth) s 207 - Comcare v Maganga (2008) 101 ALD 68; [2008] FCA 285
Held: The Tribunal has the power to direct the applicant to provide documents not in his possession.
Administrative Appeals Tribunal Act 1975 (Cth) ss 33(1)(a), 33(1AA), 33(2A), 35 and 37
Social Security (Administration) Act 1999 (Cth) s 207
Comcare v Maganga (2008) 101 ALD 68; [2008] FCA 285
Merkuloff and Yalisheff [2003] NSWSC 1183
Rayson and Repatriation Commission (2008) 109 ALD 137; [2008] AATA 1063
Rayson and Repatriation Commission (2009) 109 ALD 168
Re Seghini and Telstra Corporation Limited (1997) 44 ALD 711
REASONS FOR DECISION
27 June 2011  Deputy President J W Constance
BACKGROUND
1.      Mr Flanagan injured his back in 1975. Comcare accepted liability to compensate him in respect of this injury and has paid various treatment expenses incurred from time to time.
2.      On 1 October 2009 Comcare decided that at that time it had no liability to continue to compensate Mr Flanagan for expenses incurred for treatment of his back condition. The basis for this decision was that the condition then being treated was not the 1975 injury but a condition which had arisen subsequently. Comcare affirmed this decision on 29 April 2010.
3.      Mr Flanagan has applied to the Tribunal for a review of the decision of 29 April 2010. This application is in the process of being prepared for hearing.
4.      As part of the preparation for hearing Mr Flanagan has provided to the Tribunal and to Comcare a statement made by him on 22 October 2010. In the statement he recounts the circumstances of his 1975 injury and his subsequent employment and treatment for the injury. The statement reads in part:
30. I was receiving a benefit from the Department of Social Security and in 1984 …I decided that…

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 Flanagan and Comcare

Details

AGLC: Flanagan and Comcare [2011] AATA 446
Case: [2011] AATA 446
Decision Date: 27 June 2011

CaseChat Overview and Summary

The matter before the Administrative Appeals Tribunal (AAT) was between Flanagan, the applicant, and Comcare, the respondent. The dispute arose in the context of a claim for compensation under the Safety, Rehabilitation and Compensation Act 1988 (Cth). Flanagan sought to have Comcare compensate him for certain social security benefits he received following an injury, which he claimed were a result of the injury and should be included in the compensation calculation. Comcare contested the claim, leading to the AAT having to determine the extent of the compensation.

The primary legal issue before the AAT was whether it had the power to direct the applicant to produce documents not in his possession, specifically those detailing the social security benefits he received. This issue stemmed from Flanagan's inability to provide certain documents related to the benefits he received, despite them being central to his claim. The AAT had to consider the scope of its authority under the Administrative Appeals Tribunal Act 1975 (Cth) s 33(2A) and the Social Security (Administration) Act 1999 (Cth) s 207, as well as relevant case law such as Comcare v Maganga.

In resolving the matter, the AAT determined that it indeed had the authority to issue such a direction, as supported by the cited legislative provisions and case law. The Tribunal emphasised that the power to direct the production of documents was not just a procedural tool but a necessary mechanism to ensure that the applicant's claim could be fully and fairly assessed. The AAT accordingly directed Flanagan to obtain the necessary documents from the relevant government department or agency and to provide copies to both the Tribunal and the respondent within specified timeframes.

The AAT ordered that Flanagan must apply to the appropriate government department or agency within 14 days of the direction to obtain copies of the records relating to the social security benefits. He was also required to provide a copy of these documents to the Tribunal within 7 days of receiving them. Unless otherwise directed by the Tribunal, Flanagan was to provide a copy of these documents to Comcare within 21 days of receiving them. This decision underscored the importance of ensuring all relevant documentation is available to properly assess compensation claims.

Orders

Orders of the court

1. Within 14 days of the making of this direction the applicant apply to the appropriate government department or agency to obtain copies of the records relating to the social security benefits received by him and referred to in paragraphs 30, 31 and 32 of his statement made 22 October 2010 and filed in these proceedings;

2. the applicant shall provide to the Tribunal a copy of all documents obtained by him in accordance with the preceding direction within 7 days of receiving the documents;

3. unless the Tribunal directs otherwise the applicant shall provide to the respondent a copy of the documents within 21 days of receiving the documents.

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

Full text does not contain this section.