Keys and Comcare

[2007] AATA 1667

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2007] AATA 1667

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No   2007/0926

GENERAL  ADMINISTRATIVE  DIVISION		)
Re		STEPHEN KEYS

Applicant

And COMCARE

Respondent

DECISION

Tribunal J.W. Constance, Senior Member

Date16 August 2007

PlaceCanberra

Decision The application to be joined as party to these proceedings by the Australian Capital Territory made on 22 May 2007 is refused.

....................................................

J.W. Constance, Senior Member

CATCHWORDS

PRACTICE AND PROCEDURE- Application to be joined as additional party - Application by employer – Whether ACT is a ‘person’ - Whether employer's interests affected by decision – Whether the Tribunal should exercise discretion to allow joinder

Acts Interpretation Act 1901 (Cth), s 22

Administrative Appeals Tribunal Act 1975 (Cth), s 30

Capital Duplicators v The Australian Capital Territory (1992) 177 CLR 248

Re Boyd and Comcare (1991) 23 ALD 392

Re Marine World Victoria Ltd and Minister for Arts, Heritage and the Environment (1986) 10 ALD 262

McKenzie v Comcare, N95507, 26 February 1996

REASONS FOR DECISION

16 August 2007
J.W. Constance, Senior Member

INTRODUCTION

1.      Mr Keys has applied to the Tribunal for a review of a decision refusing his claim for compensation under the Safety, Rehabilitation and Compensation Act 1988 (Cth) in respect of an injury which he says he suffered as an employee of the Australian Capital Territory. The Territory has applied to be made a party to these proceedings.

2.      Unless there is an intervention by the Attorney-General or a person is made a party by the Tribunal, the parties to an application for a review of a decision refusing compensation are the employee (in this case Mr Keys) and the decision maker (in this case Comcare).

STATUTORY BACKGROUND

3. The Territory has applied under section 30(1A) of the Administrative Appeals Tribunal Act 1975 (Cth) which provides:

“Where an application has been made by a person to the Tribunal for a review of a decision, any other person whose interests are affected by the decision may apply, in writing, to the Tribunal to be made a party to the proceeding, and the Tribunal may, in its discretion, by order, make that person a party to the proceeding."

FACTS

4.      No evidence was called at the hearing of this application but I am satisfied of the following matters on the basis of the documents before the Tribunal and the information provided by Counsel for the parties.  These findings are not in dispute.

5.      The Territory has made the necessary application in writing to the Tribunal.

6.      Mr Keys has stated that the issues he considers arise for determination on his application include:

·“whether the primary facts giving rise to the Applicant’s condition were properly established by the respondent”;

·“ whether [Comcare's] rejection and affirmation of the rejection of [Mr Key’s] claim for workers compensation were unfairly or improperly influenced or directed by the ACT Department of Disability Housing and Community Services and/or the ACT Government Solicitor.”  [1]

[1] Applicant’s statement of Issues dated 22 May 2007.

Mr Keys alleges that in 2005, whilst on duty, he found derogatory and untrue information about himself stored on his employer’s computer system and which was accessible on his employer’s intranet.  He says this was a relevant factor in the development of the injury for which he claims compensation.[2]  He also says that his employer’s response to his discovery, which he describes as “actions-inactions”[3], was part of the chain of events which led to his injury.

[2] T25, p.194.

[3] T15, p.73.

7.      One of the issues for determination stated by Comcare is whether the alleged injury “resulted from a failure to obtain benefit(s) in connection with [Mr Keys’] employment?”  [4]

[4] Respondent’s Statement of Issues dated 19 April 2007.

8.      The outcome of these proceedings may affect the workers compensation premiums payable by the Territory.

REASONING

Is the Territory “a person” and therefore entitled to apply under sub section 30(1A) of the Administrative Appeals Tribunal Act?

9. Mr Keys argued that the Territory is not a person and therefore subsection 30(1A) does not give it a right to apply to be joined. He contended that section 30A provides for intervention by the Attorney-General on behalf of the Commonwealth and that as the Territory has been declared a Commonwealth authority for the purposes of the Safety, Rehabilitation and Compensation Act 1988 [5] it is for the Attorney-General to intervene to protect the interests of the Territory.

[5] See section 4A.

10.     I do not accept this argument.  The Territory is a body politic [6] and section 22 of the Acts Interpretation Act 1901 (Cth) provides in part:

“……….expressions used to denote persons generally (such as “person”………..), include a body politic ……….as well as an individual”.

[6] Capital Duplicators v The Australian Capital Territory (1992) 177 CLR 248.

11. There is nothing in the provisions of section 30A of the Administrative Appeals Tribunal Act which require the unambiguous provisions of subsection 30(1A) to be read down.

Are the interests of the Territory affected by the decision?

12.     On the basis that the outcome of the application by Mr Keys may have financial consequences for the Territory I am satisfied that it is a person whose interests are affected.

Should the Tribunal exercise its discretion to make the Territory a party to the proceedings?

13.     Counsel for the Territory has argued that the following factors require the Tribunal to exercise its discretion in favour of the Territory:

·Comcare “does not have the knowledge or expertise, including knowledge of the evidence or witnesses, required to controvert the applicant's contentions concerning the propriety or reasonableness of the actions of ACT agencies and their staff, or the conduct of the applicant" [7];

·the issues of propriety or reasonableness are substantial and significantly different from the issues that affect Comcare;

·the application to be joined as a party has been made at an early stage.

[7] Written submission 5 June 2007.

14.     I am not satisfied that the first of the above factors has been established.  Comcare has been set up by the legislation to administer the compensation scheme and has had almost 20 years experience in this role, including the conduct of a very large number of matters before this Tribunal.  These matters routinely require the presentation of evidence including the evidence of witnesses.  There has been nothing put to me which suggests that, with the appropriate assistance from the Territory, Comcare would not be able to fulfil this role in this matter.  As President O’Connor J observed in Re Boyd and Comcare (1991) 23 ALD 392 at 394:

“Indeed, Comcare, as an organisation specialising in compensation, could be regarded as being in a better position to present the case.”

15.     In support of the second of the above factors the Territory has referred me to the decisions of the Tribunal in Re Marine World Victoria Ltd and Minister for Arts, Heritage and the Environment[8]  and in McKenzie v Comcare.[9]  In the former of these decisions the Tribunal held that to exercise its discretion it should be shown that the interests of the party seeking to be joined are “substantial and significantly different” to those of the existing party.

[8] (1986) 10 ALD 262.

[9] N95507, 26 February 1996.

16.     I accept that both Mr Keys and Comcare are seeking to raise issues which will involve a consideration of the conduct of staff of the Territory.  The issues put forward by Mr Keys clearly state this and the question of whether the exclusionary provisions within the definition of “injury” in the Compensation Act raised by Comcare may involve such a consideration.  However the issues which will be considered by the Tribunal will be restricted to those issues relevant to the review of the decision under consideration.  Again there is nothing in the material before me to show that the interests of the Territory are significantly different to those of Comcare.  There is no basis for the Tribunal to embark on a wide-ranging examination of the conduct of the staff of the Territory in this matter and it will be in the interests of Comcare to limit any enquiry to the issues relevant to the determination of its liability under the Act.  It appears to me that in doing this its interest will coincide with those of the Territory in protecting the “propriety and reasonableness” of the Territory’s staff (to the extent that these matters are in issue).

17.     In making these observations I am not deciding that the issues as stated by Mr Keys will necessarily be accepted as issues the Tribunal will need to decide.  It may be that at the hearing the Tribunal will decide that some of the stated issues are too broad.  Again, it will be in the interests of Comcare to restrict the issues to those which are relevant.  This is also the obligation of the Tribunal in fulfilling its statutory objective of providing a review “that is fair, just, economical, informal and quick.” [10]

[10] Section 2A of the Tribunal Act.

18.     Whilst I agree that the Territory has made its application at an early stage this of itself is not a reason to exercise the Tribunal’s discretion in its favour.  Rather, as was the basis of the decision in McKenzie v Comcare, delay may be a factor in refusing to exercise the discretion.

19.     I have also taken into account that the addition of an extra party to these proceedings will almost certainly add to the costs of the proceedings to the parties and to the public revenue.  These are relevant factors: Re Marine World Victoria Ltd and Minister for Arts, Heritage and the Environment.

20.     In all circumstances I am not satisfied that the discretion to make the Territory a party tot these proceedings should be exercised.

DECISION

21.     The application to be joined as party to these proceedings by the Australian Capital Territory made on 22 May 2007 is refused.

I certify that the 21 preceding paragraphs are a true copy of the reasons for the decision herein of J.W. Constance, Senior Member.

Signed:          .....................................................................................

Geoff Foley, Associate

Date of Hearing  27 July 2007
Date of Decision  16 August 2007
Solicitor for the Applicant                 Self-represented
Solicitor for the Respondent          Dibbs Abbott Stillman
Solicitor for the ACT (third party)    ACT Government Solicitor