Kerney and Comcare (Compensation) - [2021] AATA 4140

Kerney and Comcare (Compensation) [2021] AATA 4140 (10 November 2021)
Division:GENERAL DIVISION
File Number(s): 2016/3618
Re:Cathy Kerney
APPLICANT

AndComcare
RESPONDENT

DECISION
Tribunal:The Hon. John Pascoe AC CVO, Deputy President
Date:10 November 2021
Place:Sydney

The application is dismissed pursuant to section 42A of the AAT Act and it is directed that a copy of the decision be forwarded to Mr Adams, the last known legal representative of the Applicant.
.................................[SGD].......................................
The Hon. John Pascoe AC CVO, Deputy President
CATCHWORDS
PRACTICE AND PROCEDURE – application for dismissal under section 42A of the Administrative Appeals Tribunal Act 1975 (Cth) – failure to proceed with the application – application dismissed.
LEGISLATION
Administrative Appeals Tribunal Act 1975 (Cth)
Safety, Rehabilitation and Compensation Act 1988 (Cth)
CASES
Charara v Commissioner of Taxation [2016] FCA 451
REASONS FOR DECISION
The Hon. John Pascoe AC CVO, Deputy President
10 November 2021
BACKGROUND

On 31 July 2014, Ms Cathy Kerney (the Applicant) applied for compensation under the Safety, Rehabilitation and Compensation Act 1988 (Cth) (the SRC Act) for ‘RSI on right upper limb and right C8 nr Irritation ? at 1^st Rib’. She stated that she first noticed symptoms on 21 July 2014 and first obtained medical treatment on 28 July 2014.
The Applicant sought to attribute her condition to an incident at work, when she reached forward with her right arm to touch her computer screen whilst employed with the Commonwealth Department of Defence.
On 27 February 2015, Comcare (the Respondent) accepted liability for the Applicant’s ‘injury to cervical nerve root’ (the accepted condition) with a date of injury of 28 July 2014, pursuant to section 14 of the SRC Act.
On 16 December 2015, the Respondent determined that neither the Applicant’s employment, nor the incident from July 2014 continued to contribute to her accepted condition. Therefore, the Respondent determined from 16 December 2015, the Applicant had no present entitlement to compensation for the accepted condition in respect of medical expenses under section 16 of the SRC Act, or incapacity payments under section 19 of the SRC Act.
On 8 April 2016, the Applicant requested a reconsideration of the Respondent’s determination of 16 December 2015.
On 4 May 2016, the Respondent issued a reviewable decision affirming its determination of 16 December 2015.
On 12 July 2016, the Applicant lodged an application for review of decision with the Administrative Appeals Tribunal (the Tribunal).
Following a number of preliminary listings, the matter was first listed for hearing before the Tribunal on 24 and 25 September 2018.
On 9 July 2018, the Applicant’s solicitor, Mr Bart Adams (Mr Adams) requested the hearing be rescheduled.
A directions hearing was held on 1 August 2018, during which it was determined that the hearing scheduled for September 2018 should be vacated due to the Applicant being unwell at the time and requiring regular medical treatment.
Between February 2019 and October 2019, the Tribunal and the Respondent…

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 Kerney and Comcare (Compensation)

Details

AGLC: Kerney and Comcare (Compensation) [2021] AATA 4140
Case: [2021] AATA 4140
Decision Date: 10 November 2021

CaseChat Overview and Summary

The Administrative Appeals Tribunal (AAT) considered an application for dismissal under section 42A of the *Administrative Appeals Tribunal Act 1975* (Cth). The applicant, Mr Kerney, had lodged an application concerning a compensation matter with Comcare. However, Mr Adams, the applicant's last known legal representative, had played no active role in the proceedings for at least 12 months, suggesting a potential lack of ongoing interest from the applicant.

The primary legal issue before the Tribunal was whether the application should be dismissed pursuant to section 42A of the *Administrative Appeals Tribunal Act 1975* due to a failure to proceed. This section allows the Tribunal to dismiss an application if the applicant fails to proceed with it.

The Tribunal, presided over by Deputy President John Pascoe AC CVO, determined that the application should be dismissed under section 42A. This decision was based on the observation that Mr Adams, representing the applicant, had not actively participated in the matter for a considerable period, indicating a likely cessation of the applicant's interest in pursuing the proceedings.

Consequently, the Tribunal made an order dismissing the application pursuant to section 42A of the *Administrative Appeals Tribunal Act 1975*. A direction was issued for a copy of this decision to be sent to Mr Adams, as the applicant's last known legal representative.

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 have made an order that a copy of the Tribunal’s decision be sent to Mr Adams but in doing so I note he has played no active role in this matter for at least 12 months and may have no ongoing interest in the proceedings. DECISION The application is dismissed pursuant to section 42A of the AAT Act and it is directed that a copy of the decision be forwarded to Mr Adams, the last known legal representative of the Applicant.

Ratio Decidendi

Legal Principle Established

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