Jacobson v Telstra Corporation Ltd

[2005] FMCA 994

FEDERAL MAGISTRATES COURT OF AUSTRALIA

JACOBSON v TELSTRA CORPORATION LTD [2005] FMCA 994

ADMINISTRATIVE LAW – Appeal from decision of the Administrative Appeals Tribunal – liability of employer for impairment – whether error of law – denial of natural justice – claim by appellant that issue decided by tribunal not the subject of claim or submissions at hearing – procedural fairness – obligation to ensure parties have opportunity of addressing key issue – whether incorrect findings as to date of applicant’s return to work an appealable error – whether a failure to give reasons on why evidence of one medical expert is preferred to another constitutes inadequate reasons.

Safety Rehabilitation and Compensation Act 1988, ss.4, 14, 64, 65, 66
Administrative Appeals Tribunal Act 1975, ss.25, 37, 43, 44

In Re: Hare (1996) 45 ALD 400 and In Re: Tradigrian (1979) 2 ALD 233
Re Donald and ASIC (2001) 64 ALD 717
Davies J in Jebb v Repatriation Commission (1988) 80 ALR 329
Re Refugee Review Tribunal and Another; Ex parte AALA (2000) 176 ALR 219 (AALA)
Lodkowski v Comcare (1998) 52 ALD 371 (Lodkowski)
Goldie v Minister for Immigration and Multicultural Affairs (1999) 56 ALD 321
Telstra Corporation Ltd v Warren (Unreported 26 February 1997)
FCT v Cainero (1988) 15 ALD 368
Waterford v Commonwealth of Australia (1987) 163 CLR 54

Applicant: MERREL ELIZABETH JACOBSON

Respondent: TELTRA CORPORATION LIMITED

File No: BRG 4 of 2005

Delivered on: 18 July 2005

Delivered at: Brisbane

Hearing Date: 6 May 2005

Date of last written submissions: 11 July 2005

Judgment of: Rimmer FM

REPRESENTATION

Counsel for the Applicant : Mr P Smith

Solicitors for the Applicant: Richardson McGhie

Counsel for the Respondent: Ms E Ford

Solicitors for the Respondent: Sparkes Helmore

ORDERS

1. That the application filed 12 October 2004 be dismissed.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
BRISBANE

BRG 4 of 2005

MERREL ELIZABETH JACOBSON

Applicant

and

TELSTRA CORPORATION LIMITED

Respondent

REASONS FOR JUDGMENT

Introduction

1. There is a notice of appeal against the decision of the Administrative Appeals Tribunal (“the Tribunal”) before the Court which was filed by the applicant on the 12 October 2004.  The appeal was originally filed in the Federal Court of Australia and transferred to this Court by Justice Dowsett on 4 January 2005.  The appeal is opposed by the respondent who seeks that the appeal be dismissed with costs.  The appeal is against the decision delivered by Senior Member Mr KL Beddoe in Brisbane on 14 September 2004.

2. The hearing before the tribunal related to the review of a decision made or deemed to have been made under the Safety, Rehabilitation and Compensation Act 1988 (“the Act”). The Tribunal had before it one volume of documents ("T documents") lodged pursuant to s.37 of the Administrative Appeals Tribunal Act 1975 ("the AAT Act").  Other documents and exhibits were tendered during the hearing.

3. The senior member upheld the Applicant’s appeal against the rejection of her Worker’s Compensation claim by finding that the applicant…