Hassan Bin Tahal v Comcare

[2004] FCA 680

FEDERAL COURT OF AUSTRALIA

Hassan Bin Tahal v Comcare [2004] FCA 680

Administrative Appeals Tribunal Act 1975 (Cth)
Safety, Rehabilitation and Compensation Act 1988 (Cth)

Glavonjic v Foster [1979] VLR 536
Comcare v Filla [2002] FCAFC 61

HASSAN BIN TAHAL v COMCARE
Q118 OF 2003

COOPER J
CAIRNS
17 MAY 2004

IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY	Q118 OF 2003

BETWEEN:	HASSAN BIN TAHAL APPLICANT
AND:	COMCARE RESPONDENT
JUDGE:	COOPER J
DATE OF ORDER:	17 MAY 2004
WHERE MADE:	CAIRNS

THE COURT ORDERS THAT:

1.The application is dismissed.

2.The appellant to pay the respondent’s cost of and incidental to the application, including reserved costs, if any, to be taxed if not agreed.

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

IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY	Q118 OF 2003

BETWEEN:	HASSAN BIN TAHAL APPLICANT
AND:	COMCARE RESPONDENT

JUDGE:	COOPER J
DATE:	17 MAY 2004
PLACE:	CAIRNS

REASONS FOR JUDGMENT

1. This is an application by way of appeal pursuant to s 44 of the Administrative Appeals Tribunal Act 1975 (Cth) (‘the AAT Act’) from a decision of Deputy President Muller given on 11 July 2003.  The learned Deputy President determined to affirm the decision to refuse the applicant’s claim for compensation for permanent impairment pursuant to the provisions of the Safety, Rehabilitation and Compensation Act 1988 (Cth) (‘the SRC Act’).  The applicant had brought a claim for permanent impairment as a result of a psychiatric injury sustained while an employee of the Aboriginal and Torres Strait Islander Commission.

2. There are two issues raised in this application.  The first is whether or not the learned Deputy President failed to properly take into account the applicant’s psychiatric condition when considering whether it was reasonable for him to take any medication.  The second issue is whether the learned Deputy President erred in failing to properly consider the evidence in coming to the conclusion that the applicant’s permanent impairment would be less than ten per cent. 

3. The argument which was put in the outline of submissions prepared by the applicant’s counsel in relation to the first issue was that the common law test laid down in Glavonjic v Foster [1979] VLR 536 at 539 (which has been adopted in a number of common law jurisdictions) ought to have been applied by the Deputy President.

4. It is clear from the decision of the Full Court of this Court in Comcare v Filla [2002] FCAFC 61 at par [8], that the relevant test in relation to the taking of rehabilitative treatment under s 24(2)(c) of the SRC Act is, first: 

   ‘... [W]hat, if any, reasonable rehabilitative treatment exists for the particular impairment whose permanence is under consideration;  and, secondly, assuming that some reasonable rehabilitative treatment does exist for the particular impairment whose permanence is under consideration, has the employee undertaken all of it?’

5. It is not in dispute in this case that there is medication available for the treatment of the…