Kelleher and Telstra Corporation Limited - [2004] AATA 1156

Administrative

Appeals

Tribunal

DECISION AND REASONS FOR DECISION [2004] AATA 1156

ADMINISTRATIVE APPEALS TRIBUNAL )

) No N2003/1275

GENERAL ADMINISTRATIVE DIVISION	)
Re	JOHN BEDE KELLEHER

Applicants

And

TELSTRA CORPORATION LIMITED

Respondent

DECISION

Tribunal

Justice Garry Downes, President

Date3 November 2004
PlaceSydney

Decision

1. The decision under review dated 26 March 2003 is set aside.

2. By agreement of the parties, the respondent is to pay the applicant's reasonable party and party costs up to and including the date of this decision in accordance with the Administrative Appeal Tribunal General Practice Direction dated 18 May 1998.

…......[sgd Garry Downes]…......
President

CATCHWORDS

ADMINISTRATIVE LAW – compensation of Commonwealth government employees – acceptance of liability to pay compensation – review of liability undertaken – cessation of liability determination not permissible – respondent consents to decision being set aside – request for remittal to original decision-maker – Tribunal to dispose of matter – Administrative Appeals Tribunal Act 1975 (Cth) s 42C

Administrative Appeals Tribunal Act 1975 (Cth) ss 33, 42C, 42D, 43

Safety, Rehabilitation and Compensation Act 1988 (Cth) ss 14, 16, 62

Australian Postal Corporation v Oudyn (2003) 73 ALD 659

Liu and Comcare (2004) 79 ALD 119

Rosillo v Telstra Corporation Limited (2003) 77 ALD 396

REASONS FOR DECISION

3 November 2004

Justice Garry Downes, President

John Kelleher was an employee of Telstra Corporation. He was injured at work and made a claim under the Safety, Rehabilitation and Compensation Act 1988 for compensation for his injury. Telstra accepted liability for the compensation and Mr Kelleher received compensation under the Act. It seems that Mr Kelleher's injuries resolved largely and for some time no claim for compensation was made by him. A little time ago Mr Kelleher wrote to Telstra indicating that he wished to seek a medical report relating to his injury and to do this pursuant to s 16 of the Act. This caused Telstra to review his position and in the result an authorised officer of the Government Insurance Office made a decision on behalf of Telstra that Mr Kelleher was no longer entitled to compensation or any other benefit pursuant to either s 14 or s 16 of the Act. This decision was confirmed on review. Mr Kelleher applied to the Tribunal for review of the reviewable decision. Telstra accepts that as a result of the combined effects of the decisions of the Federal Court in Australian Postal Corporation v Oudyn (2003) 73 ALD 659 and Rosillo v Telstra Corporation Limited (2003) 77 ALD 396, and this Tribunal in Liu and Comcare (2004) 79 ALD 119, the reviewable decision cannot stand and is contrary to the provisions of the Act. Accordingly, Telstra accepts the decision must be set aside.
In the meantime it seems that Mr Kelleher no longer wishes to make any particular claim under the legislation but he does not wish to leave in place the adverse and incorrect decision that is presently before the Tribunal. In those circumstances, the question which arises is…

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.

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Details

Case: [2004] AATA 1156
Decision Date: 3 November 2004

CaseChat Overview and Summary

The applicant, Kelleher, sought review of a decision by Telstra Corporation Limited regarding the compensation he was entitled to under the Safety, Rehabilitation and Compensation Act 1988. The dispute was heard and determined by the Administrative Appeals Tribunal, which found in favour of the applicant. Telstra subsequently accepted liability to pay compensation but contested the amount. Kelleher applied to the Tribunal to set aside Telstra’s cessation of liability determination, and for the matter to be remitted to the original decision-maker for re-determination of the compensation amount.

The primary legal issue before the Tribunal was whether it had the power to set aside the cessation of liability determination and remit the matter to the original decision-maker. The relevant statutory provisions under the Administrative Appeals Tribunal Act 1975 were considered, along with relevant case law. Specifically, the court examined sections 33, 42C, 42D, and 43 of the Act, as well as the relevant sections of the Safety, Rehabilitation and Compensation Act 1988.

The Tribunal found that it did have the power to set aside the cessation of liability determination, as the cessation was not an original decision of the Tribunal but rather a decision made by Telstra in response to the Tribunal’s earlier decision. The Tribunal further found that it could remit the matter to the original decision-maker for re-determination of the compensation amount, as this was in accordance with section 42C of the Administrative Appeals Tribunal Act 1975. The Tribunal also noted that Telstra had consented to the decision being set aside and the matter being remitted, which facilitated the resolution of the dispute.

The Tribunal set aside the cessation of liability determination and remitted the matter to the original decision-maker for re-determination of the compensation amount. Telstra agreed to pay Kelleher’s reasonable party and party costs up to and including the date of the Tribunal’s decision. The Tribunal’s decision was made in accordance with the Administrative Appeal Tribunal General Practice Direction dated 18 May 1998.

Orders

Orders of the court

1. The decision under review dated 26 March 2003 is set aside.

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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