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 assessing his compensation payment.[2]

[2] Emery and Comcare [2001] AATA 510

6.      I consider that there is jurisdiction for the Tribunal to hear and determine Mr Emery’s application.  Firstly, I agree that there is a determination made under s21 dealing with Mr Emery’s rate of compensation. This comes within the meaning of the definition of determination in s60 of the Act, even if it is not identified within any document before me in the papers supplied thus far.

7.      By his letter dated 15 June 2006 Mr Emery asked to have that determination reviewed.  The calculation of a person’s rates of payment on an ongoing basis is quite properly a matter that a person could seek to have reviewed from time to time.  It does not seem to me that the previous decision of the Tribunal in 2001 brought Mr Emery’s right to request further review to an end.  Whilst it might be the case that in certain circumstances attempting to re-litigate the same matter would lead the Tribunal to refuse a further application by the same person, on the grounds that to do so would be vexatious and futile, that is not the case here.

8.      There is nothing in the reasons of the Tribunal in 2001 that suggests that the Tribunal addressed the questions which Mr Emery now raises, relating to aspects of the formula in s21, rather than addressing as it clearly did, the broader question of whether s21 should apply to his case.

9.      Thus in my view there is no bar to the Tribunal entertaining Mr Emery’s application.  It seems to me that there was an original decision (setting Mr Emery’s rates of payment under s21 by applying gross rather than net amounts).  Mr Emery asked for review of this in his letter on 15 June 2006, and received a response by letter dated 20 July 2006 affirming the correctness of the application of the gross figures in setting the rate. That response affirmed the decision under review – using the language;

…I am satisfied that your entitlements have been and are continuing to be determined in accordance with the provisions of the SRC Act.

10. Should I be wrong in that characterisation, the letter of 20 July 2006 is otherwise a refusal to review a decision – itself reviewable by this Tribunal by force of s3(3) of the Administrative Appeals Tribunal Act 1975.  The letter continued,

Therefore all determinations in respect of your weekly incapacity payments benefits stand. Comcare does not propose to reconsider these.

This readily fits the description of a refusal: Tilley and Comcare [2002] AATA 560.

DECISION

11.Thus it is determined that the Tribunal has jurisdiction to hear the matter. 

I certify that the preceding 11 paragraphs are a true copy of the reasons for the decision herein of Senior Member M J Carstairs.

Signed:         …………………………………………………..
  Associate

Date of Hearing  22 January 2007
Date of Decision  22 January 2007

Written reasons for decision     5 February 2007
Counsel for the Applicant         Ms S Scott-Mackenzie
Solicitor for the Respondent     Ms C Fitzpatrick, Sparke Helmore