Ian Emery v Comcare - [2007] AATA 48

Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2007] AATA 48
ADMINISTRATIVE APPEALS TRIBUNAL )
) No Q2006/563

GENERAL ADMINISTRATIVE DIVISION )

Re IAN EMERY

Applicant

And

COMCARE

Respondent

DECISION

Tribunal Senior Member Carstairs
Date22 January 2007
PlaceBrisbane

Decision
The Tribunal has jurisdiction to review the decision of Comcare dated
20 July 2006.

....................[Sgd]..........................
Senior Member

CATCHWORDS
PRACTICE AND PROCEDURE - Jurisdiction – question of whether Tribunal could review rate of payment decision – applicant entitled to review of application of formula in s21 of Safety Rehabilitation and Compensation Act 1988, despite previous broad consideration of application of s21 – refusal to review a decision is reviewable by Tribunal – Tribunal does have jurisdiction to review.
Safety Rehabilitation and Compensation Act 1988 s21
Administrative Appeals Tribunal Act 1975 s3
Tilley and Comcare [2002] AATA 560
Emery and Comcare [2001] AATA 510
WRITTEN REASONS FOR ORAL DECISION

5 February 2007  M J Carstairs, Senior Member

1.      Mr Emery has sought review of a decision of Comcare which raises questions of jurisdiction. It now falls for me to decide on the question – is this a decision reviewable by the Tribunal?
2.      It is perhaps best to commence with the history as I see it. Mr Emery wrote to the respondent on 15 June 2006 seeking Comcare’s final determinations in respect of five decisions. The five determinations are identified in this document as:
(a)Comcare’s decision to use the gross amount of Mr Emery’s voluntary redundancy package to calculate the fortnightly amount to be deducted under the formula in s21 of the Safety Rehabilitation and Compensation Act 1988 (the Act)
(b)Comcare’s decision not to support an act of grace payment that Mr Emery requested on 6 June 2004
(c)Seeking support for an act of grace payment to counter the failure to adjust the deeming rate since 1988 – it seems that Mr Emery sought the difference (with interest compounded) between the amounts applying deeming rate of 10% to the gross amount of his payment ($141,000) rather than to his net payment ($119,000).
(d)Requesting support for an act of grace payment for refund of monies deducted under the formula in s21.
(e)Requesting a determination of whether Comcare is interpreting s21 in the spirit of the legislation.

3.      Mr Emery’s legal representatives later stated that he wished to have the letter to Comcare included in his matter currently before the Tribunal.[1]The only matter that Mr Emery had currently before the Tribunal was an FOI application, to which Comcare is not the respondent. That question of hearing the two applications together is no longer pressed.
[1] Letter Sciacca’s Lawyers 21 July 2006
4.      The matters concerning act of grace payments, are also, quite properly, no longer pressed.
5.      Thus the only question remaining is whether the Tribunal has jurisdiction to now review the calculation of Mr Emery’s rate of payments under s21, in spite of his having had a matter heard by the Administrative Appeals Tribunal previously in 1991, which concerned aspects 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 Ian Emery v Comcare

Details

AGLC: Ian Emery v Comcare [2007] AATA 48
Case: [2007] AATA 48
Decision Date: 22 January 2007

CaseChat Overview and Summary

Ian Emery, the applicant, sought judicial review of a decision by Comcare, the respondent, regarding the rate of payment under the Safety, Rehabilitation and Compensation Act 1988 (Cth). The matter was heard by the Federal Circuit Court, which was required to determine whether it had the jurisdiction to review Comcare's decision, specifically the application of the formula in section 21 of the Act. The applicant argued that the Tribunal had the authority to review the decision, even though a broad consideration of the application of section 21 had been previously addressed.

The court considered whether the Tribunal had the jurisdiction to review Comcare's decision, which involved the application of the formula in section 21 of the Act. The central issue was whether the Tribunal could review the decision despite the previous broad consideration of section 21. The court found that the Tribunal does indeed have jurisdiction to review the decision, as the refusal to review a decision is itself reviewable by the Tribunal. This interpretation ensures that the Tribunal can address the application of the formula in question, thereby providing the applicant with the necessary review.

The Federal Circuit Court held that the Tribunal had jurisdiction to review the decision of Comcare dated 20 July 2006. The court clarified that the Tribunal can review the application of the formula in section 21 of the Act, despite a previous broad consideration of the application of section 21. This decision reinforces the Tribunal's authority to ensure the proper application of the Act's provisions and to provide the applicant with the appropriate review mechanism.

Orders

Orders of the court

The Tribunal has jurisdiction to review the decision of Comcare dated

20 July 2006.

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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