Fogarty and Comcare - [2007] AATA 1299

Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2007] AATA 1299
ADMINISTRATIVE APPEALS TRIBUNAL )
) No A2006/1

GENERAL ADMINISTRATIVE DIVISION )

Re LORRAINE FOGARTY

Applicant

And

COMCARE

Respondent

DECISION

Tribunal J.W. Constance, Senior Member
Date3 May 2007
PlaceCanberra

Decision The application by Comcare to dismiss the application pursuant to section 42B of the Administrative Appeals Tribunal Act 1975 is dismissed.
.....................................................
J.W. Constance, Senior Member
CATCHWORDS
PRACTICE AND PROCEDURE- whether application is vexatious and/or frivolous- whether any possible remedy would be futile- psychological effect of return to work plan a real issue
Administrative Appeals Tribunal Act 1975 (Cth) s 42B
Safety, Rehabilitation and Compensation Act 1988 (Cth) ss 37, 41, 62, 64
Re Fearnley and Australian Fisheries Management Authority (2006) 87 ALD 159
Drake v Minister for Immigration and Ethnic Affairs (1979) 24 ALR 577
REASONS FOR DECISION
3 May 2007
J.W Constance, Senior Member
INTRODUCTION
1.      This is an application by Comcare to dismiss the application of Ms Fogarty on the ground that it is frivolous and/or vexatious. For the reasons which follow Comcare’s application will be refused.
FACTS
2.      Since 2003 Ms Fogarty has received compensation payments in respect of an injury she received in the course of her employment as a Finance Officer within the Cultural Facilities Corporation in the Australian Capital Territory. In June 2004 Ms Fogarty commenced a Return to Work Plan. This Plan was amended in March 2005.[1] Under the amended plan Ms Fogarty worked restricted hours and also attended a course at the Canberra Institute of Technology.
[1] T45.
3.      On 25 August 2005 the Corporation made a further amendment to the Return to Work Plan by providing a more detailed work schedule for Ms Fogarty.[2] In part the amendment provided:
“Unless certified medically unfit attend & undertake tasks & duties associated with study & work trial ie. 6 hr pw Diploma of Gov. Fin. Mngmt. 10 hr pw with Host Employer.”
[2] T66.

The amendment provided for a target start date of 1 August 2005 and a target end date of 23 September 2005.
4. The amended arrangements were put in place for the period proposed. During the period Ms Fogarty either attended work or the CIT course as required, or was absent with the appropriate medical certificate. The material before me suggests that Ms Fogarty complied fully with the amendment to the plan. Comcare conceded this at the hearing.
5. Upon a request by Ms Fogarty that this decision to amend the plan be reconsidered, Comcare affirmed the decision. Ms Fogarty has applied to the Tribunal to review Comcare’s decision.
6. Ms Fogarty’s application is yet to be heard. Comcare has applied for a direction pursuant to section 42B of the Administrative Appeals Tribunal Act 1975 (Cth) that the application be dismissed on the basis that it is frivolous and/or vexatious. Subsection 42B(1) provides:
‘Where an application is made to the Tribunal for the review of a decision, the Tribunal may, at any stage of the proceeding, if…

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 Fogarty and Comcare

Details

AGLC: Fogarty and Comcare [2007] AATA 1299
Case: [2007] AATA 1299
Decision Date: 3 May 2007

CaseChat Overview and Summary

In the case of Fogarty and Comcare, the matter was before the Administrative Appeals Tribunal, which had to decide on an application by Comcare to dismiss the proceedings. The applicant, Fogarty, was contesting decisions made by Comcare in relation to his employment and compensation matters. The legal issues before the tribunal were whether the application by Comcare to dismiss the proceedings was vexatious or frivolous, and if any possible remedy would be futile. Additionally, the tribunal had to consider whether the psychological effect of a return to work plan was a real issue for Fogarty.

The tribunal considered the relevant legislation, including sections 42B of the Administrative Appeals Tribunal Act 1975, and 37, 41, 62 and 64 of the Safety, Rehabilitation and Compensation Act 1988. The tribunal also examined relevant case law, such as Re Fearnley and Australian Fisheries Management Authority and Drake v Minister for Immigration and Ethnic Affairs. The tribunal found that the application by Comcare did not meet the criteria for being vexatious or frivolous, and that there was a possibility of remedy. Furthermore, the tribunal determined that the psychological effect of the return to work plan was indeed a real issue for Fogarty.

Consequently, the application by Comcare to dismiss the proceedings was dismissed. The tribunal ruled that the case should proceed, allowing Fogarty to present his case and address the issues raised in his application. The tribunal's decision was based on a thorough examination of the relevant legal principles and the specific circumstances of the case.

Orders

Orders of the court

The application by Comcare to dismiss the application pursuant to section 42B of the Administrative Appeals Tribunal Act 1975 is dismissed.

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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