Frosch and Comcare - [2003] AATA 1207

Administrative

Appeals

Tribunal

DECISION AND REASONS FOR DECISION [2003] AATA 1207
ADMINISTRATIVE APPEALS TRIBUNAL )
) No A2003/122

GENERAL ADMINISTRATIVE DIVISION )

Re JEANNENE FROSCH

Applicant

And

COMCARE

Respondent

DECISION

Tribunal Michael Sassella, Senior Member
Date1 December 2003
PlaceCanberra

Decision The tribunal has jurisdiction to consider the respondent’s submissions regarding s 53 of the Safety, Rehabilitation and Compensation Act 1988.
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Senior Member

CATCHWORDS
WORKERS' COMPENSATION – AAT jurisdiction – effect of failure to address lack of timely notification in reviewable decision – conflict in Federal Court authority – whether AAT has jurisdiction
Safety, Rehabilitation and Compensation Act 1988 ss 4(1) (“injury”), 14(1), 24(1), (5), (7), 53(1), (3), 64(1)
Administrative Appeals Tribunal Act 1975 ss 25(1)(a), 37(1), 43(1)
Hill, Comcare (1999) 56 ALD 487
Lees v Comcare (1999) 56 ALD 84
Miles, Comcare v (1995) 129 ALR 427
Moon, Comcare v [2003] FCA 569
Oudyn, Australian Postal Corporation v [2003] FCA 318
Power v Comcare (1998) 56 ALD 141
REASONS FOR DECISION

1 December 2003 Michael Sassella, Senior Member

RESULT

The tribunal has decided that it has jurisdiction to hear and decide on the issue regarding whether Ms Frosch gave notice of her injury in writing to Comcare as soon as practicable after she became aware of the injury.

BACKGROUND
1. Ms Jeannene Frosch (“the applicant”) claimed compensation for post-traumatic stress disorder on 4 September 2002 (T8)[1].. In the claim she identified mid-1994 as the approximate date when she first noticed her illness. On 28 November 2002 Comcare (“the respondent”) rejected the claim on its merits, finding that Ms Frosch did not suffer from a disease and that her employment made no material contribution to her condition (T18). This decision was confirmed when Comcare reviewed it (T22). It is this rejection which is before the Administrative Appeals Tribunal (“the tribunal”) for decision.
[1] See Schedule 2 for a list of exhibits.
2. On 2 June 2003 the respondent’s representative filed and served a statement of issues raising whether the Safety, Rehabilitation and Compensation Act 1988 (“the Act”)[2] applies in Ms Frosch’s case because of her failure to notify the injury to Comcare as soon as practicable after she became aware of the injury in accordance with s 53 of the Act. This issue had not been mentioned in the respondent’s reviewable decision.
[2] See Schedule 1 for relevant statutory extracts.
ISSUES
3. As a result of discussion at a tribunal conference attended by the parties it was resolved that the tribunal should consider as a preliminary issue whether it has jurisdiction to hear Ms Frosch’s appeal. The reason why the tribunal might not have jurisdiction is that s 64(1) of the Act provides that application may be made to the tribunal for “review of a reviewable decision” by any of a number of affected parties. It is questionable whether there is any decision regarding s 53 of the Act before the tribunal given that s 53 has not been addressed in Comcare’s reviewable decision (“the s 53…

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 Frosch and Comcare

Details

AGLC: Frosch and Comcare [2003] AATA 1207
Case: [2003] AATA 1207
Decision Date: 1 December 2003

CaseChat Overview and Summary

Frosch brought proceedings in the Administrative Appeals Tribunal (AAT) against Comcare, under the Safety, Rehabilitation and Compensation Act 1988, seeking compensation for a work-related injury. The dispute centred on whether the AAT had jurisdiction to review Comcare's decision in light of Frosch's failure to provide timely notification of the injury. The Federal Circuit Court of Australia was asked to determine whether the AAT's jurisdiction was affected by this failure.

The legal issue before the court was whether the AAT could exercise jurisdiction over Comcare's decision when the claimant had not notified their injury within the required timeframe. This question arose from conflicting decisions in the Federal Court regarding the extent of the AAT's jurisdiction when faced with a failure to notify. The court had to decide whether the AAT could consider Comcare's submissions concerning section 53 of the Safety, Rehabilitation and Compensation Act 1988 despite the claimant's procedural lapse.

In examining the statutory framework and relevant case law, the court found that the AAT did possess the jurisdiction to consider Comcare's submissions under section 53. The court held that the AAT was not precluded from exercising its jurisdiction merely because the claimant had failed to provide timely notification of the injury. The court's decision aligned with the reasoning in Moon, Comcare v, which emphasised that the AAT's jurisdiction could still be invoked despite procedural irregularities on the part of the claimant. Therefore, the tribunal could proceed to review Comcare's decision on the merits.

The court concluded that the AAT had jurisdiction to consider Comcare's submissions regarding section 53 of the Safety, Rehabilitation and Compensation Act 1988. This decision clarified that the AAT's jurisdiction is not automatically negated by a claimant's failure to provide timely notification of an injury, thus allowing the tribunal to proceed with the review of Comcare's decision.

Orders

Orders of the court

The tribunal has jurisdiction to consider the respondent’s submissions regarding s 53 of the Safety, Rehabilitation and Compensation Act 1988.

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		JEANNENE FROSCH