French and Comcare - [2004] AATA 302

Administrative

Appeals

Tribunal

DECISION AND REASONS FOR DECISION [2004] AATA 302
ADMINISTRATIVE APPEALS TRIBUNAL Nº V2003/1223
GENERAL ADMINISTRATIVE DIVISION

Re: MICHAEL GERRARD FRENCH
Applicant

And:COMCARE
Respondent

DECISION
Tribunal:       G.D. Friedman, Member
Date:             24 March 2004
Place:            Melbourne
Decision:The Tribunal has jurisdiction to determine the application lodged by the applicant.

(sgd) G.D. Friedman
Member

COMPENSATION - jurisdiction – implementation of Tribunal’s decision – whether letter seeking information constitutes determination
Safety, Rehabilitation and Compensation Act 1988 ss19, 61, 62, 63, 64, 72
Comcare v Willems (1996) 70 FCR 244
Re Berg and Commission for the Safety Rehabilitation and Compensation of
Commonwealth Employees (AAT 5433, 13 October 1989)
Re French and Department of Defence [2003] AATA 187
Re Knight and Comcare (1994) 36 ALD 417
Re Pigram and Comcare Australia (1995) 40 ALD 365
Secretary, Department of Social Security v Alvaro (1994) 50 FCR 213
Woodbridge v Comcare (1994) 20 AAR 196
REASONS FOR DECISION
24 March 2004  G.D. Friedman, Member
1.      This is an application by Michael Gerrard French (the applicant) for review of a decision of a delegate of Comcare (the respondent) dated 18 September 2003, concerning ongoing entitlement to incapacity payments.
2.      At the hearing on a question of jurisdiction on 16 March 2004 Mr I. Fehring of counsel represented the applicant and Mr C. Lolis, a solicitor with Phillips Fox, represented the respondent.
BACKGROUND
3.      On 26 February 2003 in Re French and Department of Defence [2003] AATA 187 the Tribunal made a decision in the following terms:
The Tribunal sets aside the decision under review and substitutes a decision that under the Compensation (Commonwealth Government Employees) Act 1971 the respondent is liable to pay compensation to the applicant in respect of an injury to his lower back on 23 July 1983 and that liability continues. The respondent is to pay the applicant's costs.

4.      On 6 August 2003 the applicant’s solicitor wrote to the Military Compensation and Rehabilitation Service of the Department of Veterans’ Affairs (the Department) and made a claim for weekly payments of compensation in accordance with the Tribunal’s decision of 26 February 2003. On 13 August 2003 the Department replied that it had forwarded the request to its Melbourne office.
5.      On 18 August 2003 the Department responded to the applicant’s letter and sought from him medical evidence regarding incapacity and employment details from the date of his discharge from the Army. On 26 August 2003 the applicant’s solicitor wrote to the Department stating that incapacity since discharge had been established, and that the only outstanding issue was the calculation of weekly payments of compensation.
6.      On 4 September 2003 the Department wrote to the applicant’s solicitor (the 4 September letter) as follows:
Your solicitor asserts that as the AAT have found that you have a high degree of incapacity for work, you as a consequence are entitled to incapacity payments. The AAT ruling of 26 February 2003 was in respect to ongoing liability for your condition. The AAT did not consider the Issue of…

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 French and Comcare

Details

AGLC: French and Comcare [2004] AATA 302
Case: [2004] AATA 302
Decision Date: 24 March 2004

CaseChat Overview and Summary

This case involves Michael Gerrard French (the applicant) who sought a review of a decision made by a delegate of Comcare (the respondent) concerning his ongoing entitlement to incapacity payments. The dispute was heard in the Administrative Appeals Tribunal (AAT) by Member G.D. Friedman. The primary issue before the tribunal was whether it had jurisdiction to determine the application for review of the decision made by Comcare. The applicant argued that a letter from Comcare, dated 4 September 2003, constituted a determination under the Safety, Rehabilitation and Compensation Act 1988 (the SRC Act) and that the subsequent letter, dated 18 September 2003, was a reconsideration of that determination. Conversely, Comcare contended that the 4 September letter did not constitute a determination as it merely sought information from the applicant and did not refer to or enclose a notice of rights of review. The tribunal considered the submissions from both parties and noted the statutory provision in s 72 of the SRC Act, which mandates that Comcare be guided by equity, good conscience, and the substantial merits of the case. The tribunal agreed with the applicant's submission that a broad interpretation should be given to the term "determination" under s 61 of the SRC Act. When viewed in the context of the correspondence, the tribunal found that the 4 September letter constituted a refusal to determine benefits under s 19 of the SRC Act, making it a determination for the purposes of s 61. The tribunal also determined that the 18 September letter constituted a reconsideration of the determination under s 62 of the SRC Act, and thus the application before the tribunal was properly made under s 62 of the Compensation Act.

The tribunal concluded that it had jurisdiction to determine the application lodged by the applicant. This finding allowed the tribunal to proceed with the review of Comcare's decision concerning the applicant's entitlement to incapacity payments.

Orders