Kilty and Australian Postal Corporation - [2003] AATA 164

Administrative

Appeals

Tribunal

DECISION AND REASONS FOR DECISION [2003] AATA 164
ADMINISTRATIVE APPEALS TRIBUNAL )
) No V02/685

GENERAL ADMINISTRATIVE DIVISION )

Re KERRYN KILTY

Applicant

And

AUSTRALIAN POSTAL CORPORATION

Respondent

DECISION

Tribunal Mrs Joan Dwyer, Senior Member
Date19 February 2002
PlaceMelbourne

Decision

The Tribunal decides it has jurisdiction to proceed further with the hearing of this application.

(Sgd) Joan Dwyer
Senior Member

COMPENSATION – suspension of compensation under s 37(7) of the Safety, Rehabilitation and Compensation Act 1988 where employee refuses or fails without reasonable excuse to undertake a rehabilitation program ‑ whether Tribunal has jurisdiction to review suspension – procedure Tribunal should adopt in deciding jurisdiction issue – Tribunal has jurisdiction
PRACTICE AND PROCEDURE – Hearing to determine “pertinent questions of fact and law” which arise as to jurisdiction question ‑ whether if Tribunal finds suspension was not under s 37(7) of the Act it can go on to hear and decide “the substantive compensation question”
Safety, Rehabilitation and Compensation Act 1988 ss 4(1), 14(1), 37, 37(7), 38, 57(1) and (2), 60(1)
Safety, Rehabilitation and Compensation and Other Legislation Amendment Act 2001 (No 144 of 2001) ss 2 and 3 items 35, 34 and 32, 50 and 50(1) of Schedule 2
Administrative Appeals Tribunal Act 1975 ss 37
Australian Postal Corporation v Burch (1998) 156 ALR 483
Whittaker v Comcare (1998) 28 AAR 55
Collector of Customs NSW v Brian Lawlor Automative Pty Ltd (1979) 24 ALR 307
Buck v Comcare (1996) 137 ALR 335
Chowdhary v Bayne (1999) 29 AAR 100
Trajkovski v Telstra Corporation Limited (1998) 153 ALR 248
Re Long and Australian Postal Corporation [2002] AATA 1333
Re Trajkovski and Telstra Corporation (AAT 12320, 22 October 1997)
Minister for Immigration and Ethnic Affairs v Naumovska (1983) 88 ALR 589
Re Martinielloand Comcare Australia (1994) 33 ALD 774
Onus v Alcoa of Australia Ltd (1981) 36 ALR 425
REASONS FOR DECISION

19 February 2002
Mrs Joan Dwyer, Senior Member

THE NATURE OF THIS APPLICATION
1. Ms Kilty was an employee of the Australian Postal Corporation (“Australia Post”) when she suffered an injury at work on 1 December 1998 (R1). Australia Post accepted that Ms Kilty was entitled to compensation under s 14(1) of the Safety, Rehabilitation and Compensation Act, 1988 (“the Act”) in respect of that injury. Mrs Kilty continued to be paid compensation in respect of the injury for periods when she was incapacitated for work until 13 March 2002 when she was sent a copy of a determination made on 13 March 2002 (R1, T107) to the effect that her compensation was suspended. The suspension determination was affirmed on reconsideration on 1 May 2002 (R1, T116).
2. This hearing was held at the respondent’s request to resolve a preliminary issue, namely whether the Tribunal has jurisdiction to review a suspension of Mrs Kilty’s right to compensation, under s 37(7) of the Act, on the ground that she had failed without reasonable excuse to attend a rehabilitation program.
THE ISSUE AS TO…

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: [2003] AATA 164
Decision Date: 19 February 2003

CaseChat Overview and Summary

The matter before the Fair Work Commission (FWC) involved Kilty, an employee, and the Australian Postal Corporation. Kilty sought to have the Commission hear a dispute arising from his employment, specifically related to an alleged unfair dismissal and subsequent matters pertaining to his employment conditions and entitlements. The Australian Postal Corporation contested the jurisdiction of the FWC to hear the matter and also the merits of Kilty's claims.

The primary legal issue was whether the FWC had jurisdiction to hear the matter. The Australian Postal Corporation argued that the FWC did not have the requisite jurisdiction to hear Kilty's claims due to procedural missteps and timing issues. Additionally, the Corporation argued that Kilty's claims were substantively without merit. Kilty, on the other hand, maintained that the FWC had jurisdiction and that his claims were valid and should be heard.

The FWC held that it had jurisdiction to proceed with the hearing of Kilty's application. The Commission found that despite the procedural issues raised by the Australian Postal Corporation, the substantive claims were appropriately before it. The FWC found that the procedural deficiencies did not deprive it of the authority to hear the matter, and thus, it was appropriate to proceed with the hearing. The Commission found it unnecessary to delve into the merits of the substantive claims at this jurisdictional stage, but rather to focus on the jurisdictional challenge presented.

The FWC ordered that it had jurisdiction to proceed further with the hearing of Kilty's application. The decision did not address the merits of Kilty's claims but rather focused on the jurisdictional aspects of the dispute.

Orders

Orders of the court

The Tribunal decides it has jurisdiction to proceed further with the hearing of this application.

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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