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Guse v Comcare

Guse v Comcare

Case [1997] FCA 140 5 March 1997

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Administrative Law

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CATCHWORDS

Administrative Law - appeal from Administrative Appeals Tribunal - appeal on a question of law - Tribunal ordered extension of time to request a reconsideration of a decision to terminate compensation - request made 21 months out of time - whether Tribunal applied a correct test in considering the merits of the substantial claim for compensation - whether the Tribunal erred in failing to consider potential prejudice to the other party - whether failure constituted error of law - whether Court has power to re-exercise the discretion to extend time.

Matter No. DG6 of 1996

COMCARE v RUSSELL EDWARD SMITH

von Doussa J
Darwin
5 March 1997

IN THE FEDERAL COURT OF AUSTRALIA
NORTHERN TERRITORY DISTRICT REGISTRY No. DG6 of 1996
GENERAL DIVISION

On appeal from the Administrative Appeals Tribunal constituted by Senior Member K L Beddoe

BETWEEN:
COMCARE

Applicant

AND:
RUSSELL EDWARD SMITH

Respondent

MINUTES OF ORDER

JUDGE MAKING ORDER : VON DOUSSA J

WHERE MADE : DARWIN

DATE ORDER MADE : 5 MARCH 1997

THE COURT ORDERS THAT:

The appeal be allowed.
The decision of the Administrative Appeals Tribunal dated 2 May 1996 be set aside.
The matters be returned to the Administrative Appeals Tribunal to be heard and determined again.
Question of costs reserved. Liberty to parties to apply on question of costs.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA

NORTHERN TERRITORY DISTRICT REGISTRY DG6 of 1996
GENERAL DIVISION

On Appeal from the Administrative Appeals Tribunal constituted by Senior Member K L Beddoe
BETWEEN:
COMCARE
Applicant

AND:
RUSSELL EDWARD SMITH
Respondent

REASONS FOR JUDGMENT

Coram:           von Doussa J
Place:              Darwin
Date:              5 March 1997

This is an appeal on questions of law brought pursuant to the provisions of s.44 of the Administrative Appeals Tribunal Act 1975 (“the AAT Act”).

By a determination dated 16 June 1992 the applicant (“Comcare”) determined, with effect from 18 June 1992, that liability no longer existed to pay compensation to the respondent (“Mr Smith”) in respect of an injury which occurred on 10 October 1989. By letter dated 20 April 1994 solicitors acting for Mr Smith applied to Comcare for a reconsideration of the determination dated 16 June 1992. The application for reconsideration included an application for an extension of time to make the request for reconsideration. On 19 December 1994 Comcare notified its refusal to extend time. Mr Smith applied to the Administrative Appeals Tribunal (“the Tribunal”) for review of the decision refusing to extend time. The Tribunal on 2 May 1996 set aside the decision and ordered that the request for reconsideration by Mr Smith contained in his solicitor’s letter of 20 April 1994 be treated as being within time. It is against that decision which the present appeal is brought.

Section 62 of the Safety, Rehabilitation and Compensation Act 1988 provides for reconsideration of determinations made by a determining authority. A request for reconsideration shall set out the reasons for the…

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 Guse v Comcare

Details

AGLC: Guse v Comcare [1997] FCA 140
Case: [1997] FCA 140
Decision Date: 5 March 1997

CaseChat Overview and Summary

In the case of Comcare v Smith, the applicant, Comcare, sought to appeal a decision of the Administrative Appeals Tribunal (AAT) which had allowed a request for reconsideration of a decision to terminate compensation payments, despite the request being made 21 months out of time. The appeal was brought on questions of law under s.44 of the Administrative Appeals Tribunal Act 1975. The primary issue before the court was whether the AAT had applied a correct test in considering the merits of the substantial claim for compensation and whether it had failed to consider potential prejudice to the other party, and if either of these constituted an error of law. The court found that the AAT had indeed erred in failing to consider the potential for prejudice arising from the delay, which constituted an error of law. The court did not have the power to re-exercise the discretion to extend time and thus, the appropriate remedy was to allow the appeal, set aside the AAT's decision, and return the matter to the AAT to be heard and determined again. The appeal was allowed, the decision of the AAT was set aside, and the matter was returned to the AAT for further consideration. The question of costs was reserved for later determination.

Orders