Freeman v Fleetmaster Services Pty Ltd

Case [2013] FCA 1068

FEDERAL COURT OF AUSTRALIA

Freeman v Fleetmaster Services Pty Ltd [2013] FCA 1068

Citation: Freeman v Fleetmaster Services Pty Ltd [2013] FCA 1068
Appeal from: [2013] AATA 38
Parties: MICHAEL FREEMAN v FLEETMASTER SERVICES PTY LTD
File number: NSD 243 of 2013
Judge: EDMONDS J
Date of judgment: 23 October 2013
Catchwords:

ADMINISTRATIVE LAW – workers’ compensation – s 37(7) of the Safety Rehabilitation and Compensation Act 1988 (Cth) – whether reasonable excuse for failing or refusing to undertake rehabilitation program – no error of law by Tribunal

PRACTICE AND PROCEDURE – leave sought to file and rely on further amended notice of appeal raising validity of s 37(1) determination going to Tribunal’s jurisdiction – not raised in the Tribunal nor capable of being raised – not appropriate to be raised on appeal on a question of law pursuant to s 44(1) of AAT Act – leave refused
Legislation: Safety, Rehabilitation and Compensation Act 1988 (Cth) ss 37, 38, 62
Administrative Appeals Tribunal Act 1975 (Cth) s 44
Federal Court Rules 2011 rr 33.12, 33.15
Federal Court Rules 1979 O 53 r 3
Cases cited: Australian Postal Corporation v Forgie (2003) 130 FCR 279 cited
Australian Telecommunications Corporation v Lambroglou (1990) 12 AAR 515 followed
Birdseye v Australian Securities and Investments Commission (2003) 76 ALD 321 followed
Comcare v Singh [2012] FCA 136 (24 February 2012) cited
TNT Skypak International (Aust) Pty Ltd v Federal Commissioner of Taxation (1988) 82 ALR 175 cited
Date of hearing: 23 July 2013
Place: Sydney
Division: GENERAL DIVISION
Category: Catchwords
Number of paragraphs: 23
Counsel for the Applicant: Mr H Marshall SC with Mr L Robison
Solicitor for the Applicant: Schofield King Lawyers
Solicitor for the Respondent: Mr Dubé of Sparke Helmore Lawyers

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

GENERAL DIVISION

NSD 243 of 2013
ON APPEAL FROM THE ADMINISTRATIVE APPEALS TRIBUNAL
BETWEEN:

MICHAEL FREEMAN
Applicant
AND:

FLEETMASTER SERVICES PTY LTD
Respondent

JUDGE:

EDMONDS J

DATE OF ORDER:

23 OCTOBER 2013

WHERE MADE:

SYDNEY

THE COURT ORDERS THAT:

1.The appeal be dismissed.

2.The applicant pay the respondent’s costs.

Note:Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.


IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

GENERAL DIVISION

NSD 243 of 2013
ON APPEAL FROM THE ADMINISTRATIVE APPEALS TRIBUNAL
BETWEEN:

MICHAEL FREEMAN
Applicant
AND:

FLEETMASTER SERVICES PTY LTD
Respondent

JUDGE:

EDMONDS J

DATE:

23 OCTOBER 2013

PLACE:

SYDNEY

REASONS FOR JUDGMENT

INTRODUCTION

  1. This is an appeal from a decision of the Administrative Appeals Tribunal  (“Tribunal”) (Freeman and Fleetmaster Services Pty Ltd [2013] AATA 38) affirming a reviewable decision of the respondent that the applicant had failed, without reasonable excuse, to undertake a determined rehabilitation program provided for him under s 37 of the Safety, Rehabilitation and Compensation Act 1988 (Cth) (“Act”) and, in consequence, the suspension of his rights to compensation under the Act as provided for in s 37(7).

    BACKGROUND

  2. By way of background, s 37(1) of…

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AGLC
Freeman v Fleetmaster Services Pty Ltd [2013] FCA 1068
Case
[2013] FCA 1068
Decision Date

CaseChat Overview and Summary

Freeman appealed against a decision of the Administrative Appeals Tribunal (AAT) affirming a reviewable decision of the respondent that the applicant had failed, without reasonable excuse, to undertake a determined rehabilitation program provided for him under section 37 of the Safety, Rehabilitation and Compensation Act 1988 (Cth) and, in consequence, the suspension of his rights to compensation under the Act as provided for in section 37(7). The AAT held that the applicant had failed to establish a reasonable excuse for his failure to undertake the rehabilitation program. The applicant sought leave to file and rely on a further amended notice of appeal raising the validity of a section 37(1) determination going to the Tribunal’s jurisdiction. The applicant argued that the Tribunal had no jurisdiction to make a determination under section 37(1) because the rehabilitation program did not provide for the rehabilitation of the applicant.

The court held that the grounds of appeal did not raise a question of law. The court held that the Tribunal had considered the reasonableness of the applicant’s excuse for failing to undertake the rehabilitation program. The court held that the Tribunal was not required to consider the appropriateness of the rehabilitation program. The court held that the Tribunal had not erred in law in affirming the reviewable decision. The court held that leave to file and rely on the further amended notice of appeal was not appropriate. The court held that the appeal should be dismissed with costs.

The court dismissed the appeal and ordered that the applicant pay the respondent’s costs.

Orders

Orders of the court

1. The appeal be dismissed.

2. The applicant pay the respondent’s costs.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

Background

Background to the litigation

This is an appeal from a decision of the Administrative Appeals Tribunal (“Tribunal”) (Freeman and Fleetmaster Services Pty Ltd [2013] AATA 38) affirming a reviewable decision of the respondent that the applicant had failed, without reasonable excuse, to undertake a determined rehabilitation program provided for him under s 37 of the Safety, Rehabilitation and Compensation Act 1988 (Cth) (“Act”) and, in consequence, the suspension of his rights to compensation under the Act as provided for in s 37(7).BACKGROUND By way of background, s 37(1) of the Act permits a rehabilitation authority (the respondent is a rehabilitation authority) to make a determination that an employee who has suffered an injury resulting in an incapacity for work or an impairment should undertake a rehabilitation program. A rehabilitation authority that makes a determination under s 37 is obliged by s 38(1) of the Act to serve a notice on the employee concerned setting out the terms of the determination and the reasons for it as well as a statement to the effect that an employee dissatisfied with the determination may request Comcare to review the determination. Additionally, and by operation of s 62(2) of the Act, the employee concerned, described as “the claimant” in the sub-section, may, if dissatisfied with the determination, request reconsideration of it. A decision on reconsideration is a “reviewable decision” (s 60 of the Act), that is, one capable of being reviewed in the Tribunal (s 64 of the Act). The applicant did not exercise either of these options; instead he declined to participate in the program. In such circumstances, s 37(7) of the Act becomes relevant. It provides:Where an employee refuses or fails, without reasonable excuse, to undertake a rehabilitation program provided for the employee under this section, the employee's rights to compensation under this Act, and to institute or continue any proceedings under this Act in relation to compensation, are suspended until the employee begins to undertake the program. In Australian Postal Corporation v Forgie (2003) 130 FCR 279, a Full Court of this Court concluded (at [86]) that s 37(7) of the Act was a provision which requires a “determination”, within the meaning of s 60(1), to be made and that an employee can also request a reconsideration of such a “determination” under s 62 of the Act. That is what the applicant did in this case. In the Tribunal, the relevant issue/question was identified by the Tribunal at Reasons (“R”) [24] in the following way:The nature of the task that I am obliged to undertake in the present proceedings has been authoritatively determined by the decision of the Full Court in Pascoe v Australian Postal Corporation [[2004] FCAFC 4, (2004) 77 ALD 464 (Hill, Marshall & Finklestein JJ)]. In that case the Tribunal was held not to have considered whether the applicant had a reasonable excuse for his failure to undertake the rehabilitation program but had instead considered whether the program was an appropriate one for him. It is not now open to Mr Freeman to challenge the appropriateness of the rehabilitation program provided by Fleetmaster (and he does not seek to do so). Pascoe decided that [at [14]],…when considering whether an employee has a reasonable excuse for failing to undertake a rehabilitation program, the program in question is to be taken to be appropriate for the employee. Their Honours subsequently said [at [21]] in relation to the Tribunal’s decision,In our view, the AAT, standing in the shoes of Australia Post, did not evaluate the reasonableness of any excuse presented to explain Mr Pascoe’s failure to undertake the program devised for him, rather it focused on the reasonableness of the program itself. It was not its role to do so. The AAT should have taken the program as having been provided to the employee without challenge following a determination, and assessed the reasonableness of Mr Pascoe’s excuse, if he had one, for failing to undertake that particular program.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

These grounds are not competent. They do not raise a question of law. In any event, the Tribunal clearly took into account its view of the depot at Grafton during the course of the hearing (R [4]); the medical evidence both before (R [9] – [17]) and after (R [36] and [37]) the applicant’s abortive return to work on 15 November 2010; and the submissions made on his behalf.CONCLUSION The appeal must be dismissed with costs.

Ratio Decidendi

Legal Principle Established

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