Joachim Wiegand and Comcare - [2012] AATA 623

[2012] AATA 623

Division GENERAL ADMINISTRATIVE DIVISION

File Numbers

2011/2895 and 2011/2896

Re

Joachim Wiegand

APPLICANT

And

Comcare

RESPONDENT

DECISION

Tribunal
Deputy President D G Jarvis

Date 18 September 2012

Place Adelaide
The applicant's request to tender further medical evidence is refused.
...... [Sgnd] ......

Deputy President D G Jarvis
CATCHWORDS
PRACTICE AND PROCEDURE - Claim for compensation arising from employment - assessment of compensation - fresh evidence as to date of injury - held that fresh evidence not admissible.
LEGISLATION
Safety, Rehabilitation and Compensation Act 1988 (Cth), ss 7(4), 8, 9, 14(1) and 19
CASES
Comcare v Mooi (1996) 69 FCR 439

Kizbeau Pty Ltd v WG & B Pty Ltd (1995) 184 CLR 281
Re Filsell and Comcare (2009) 109 ALD 198
Re Matusko and Australian Postal Corporation (1995) 21 AAR 9
Re Quinn and Australian Postal Corporation (1992) 15 AAR 519
Re Rana and Military Rehabilitation and Compensation Commission (2008) 104 ALD 595
Re Wiegand and Comcare [2010] AATA 790

SECONDARY MATERIALS
Butterworths, Cross on Evidence (4th Australian edition)

REASONS FOR DECISION
Deputy President D G Jarvis
18 September 2012

The present proceedings arise from an application by Joachim Wiegand to review a determination made by the respondent Comcare, of the amount of its liability for compensation following a decision of this tribunal dated 15 October 2010, in which the tribunal (differently constituted) decided that Comcare was liable, under s 14(1) of the Safety, Rehabilitation and Compensation Act 1988 (Cth) (SRC Act) to pay compensation to Mr Wiegand in respect of dysthymic disorder (sustained on 20 July 1994) and major depressive disorder (sustained on 30 January 1998).[1]
[1] Re Wiegand and Comcare [2010] AATA 790. This decision was made in two proceedings before the tribunal, as explained in paragraph 10 of its reasons for decision. The history of these proceedings is referred to in paragraphs 2 to 13 of the tribunal’s decision.
Mr Wiegand has applied to tender fresh medical evidence in the proceedings. I have decided to refuse this application. Ordinarily I would not publish such detailed reasons for my decision as those that appear below. However, this case has had a most unfortunate history, in that Mr Wiegand first commenced proceedings in this tribunal in 1998, and he then made two successful appeals to the Federal Court of Australia. The tribunal’s above decision of 15 October 2010 followed the third substantive hearing of Mr Wiegand’s claim in this tribunal.
Mr Wiegand commenced employment with the Australian Taxation Office (ATO) on 28 May 1986. From and after 10 February 1994 he reduced his working hours to three days a week, and was paid at the rate of 60% of a full-time salary. He last attended work on 31 December 1997, and remained absent from duty for health reasons until an invalidity retirement on 23 April 2003.
In a determination made on 17 December 2010, Comcare calculated the compensation payable to Mr Wiegand in consequence of the tribunal’s decision of 15 October 2010. This entailed calculating…

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 Joachim Wiegand and Comcare

Details

AGLC: Joachim Wiegand and Comcare [2012] AATA 623
Case: [2012] AATA 623
Decision Date: 18 September 2012

CaseChat Overview and Summary

Joachim Wiegand brought a claim against Comcare, an Australian government agency, seeking compensation arising from an employment-related injury. The dispute centred on the assessment of compensation and the admissibility of fresh evidence regarding the date of the injury. The case was heard by the Federal Circuit and Family Court of Australia.

The primary legal issue was whether the fresh medical evidence provided by the applicant could be admitted and considered in the assessment of the compensation claim. The applicant argued that the fresh evidence was crucial to establishing the date of the injury, which was a material fact in determining the compensation amount. Comcare opposed the admission of the fresh evidence, arguing that it was not relevant to the date of the injury and had not been disclosed within the appropriate time frame.

The court considered the rules governing the admissibility of fresh evidence in compensation claims and concluded that the fresh medical evidence should not be admitted. The court held that the evidence was not relevant to the date of the injury, as it did not provide any new information that would assist in determining that material fact. Furthermore, the court found that the evidence had not been disclosed within the appropriate time frame, which was a breach of the court's directions. As a result, the applicant's request to tender the fresh medical evidence was refused.

The court arranged a further directions hearing to allow the parties to consider their positions in light of the reasons for the decision. The court did not make any final orders regarding the compensation claim in this decision but indicated that the matter would proceed based on the evidence already before the court.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

I shall arrange a further directions hearing shortly, to enable the parties to consider their position in the light of these reasons for decision.DECISION The applicant’s request to tender further medical evidence is refused.

Ratio Decidendi

Legal Principle Established

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Division	GENERAL ADMINISTRATIVE DIVISION
File Numbers	2011/2895 and 2011/2896
Re	Joachim Wiegand
APPLICANT
And	Comcare
RESPONDENT

Tribunal	Deputy President D G Jarvis
Date	18 September 2012
Place	Adelaide