Kortum and Comcare

[2005] AATA 278

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2005] AATA 278

ADMINISTRATIVE APPEALS TRIBUNAL        Nº V2004/645

GENERAL ADMINISTRATIVE  DIVISION

Re:         GARY KORTUM

Applicant

And:COMCARE

Respondent

DECISION

Tribunal:       G.D. Friedman, Member

Date:             11 March 2005

Place:            Melbourne

Decision:For the reasons given orally at the hearing, the Tribunal dismisses the application under s 42B of the Administrative Appeals Tribunal Act 1975 as frivolous or vexatious.  

(sgd) G.D. Friedman

Member

COMPENSATION - jurisdiction - claim for asbestos-related condition - compensation not payable when damages recovered - whether claim frivolous or vexatious  

Administrative Appeals Tribunal Act 1975 s 42B

Safety, Rehabilitation and Compensation Act 1988 ss 16, 19

REASONS FOR DECISION

11 March 2005  G.D. Friedman, Member

1.      This is an application by Gary Kortum (the applicant) for review of a decision of a delegate of Comcare (the respondent) dated 29 March 2004 revoking a determination of 5 March 2004.  The applicant has claimed compensation for the period 23 January 2002 to 19 August 2002 (the relevant period).    

2.      At the hearing on 11 March 2005 the applicant represented himself and Ms A. McMahon of counsel represented the respondent.

3. At the hearing Ms McMahon made an application under s 42B of the Administrative Appeals Tribunal Act 1975 (the AAT Act) that the application under review be dismissed as vexatious or frivolous. She said that the matters raised by the applicant had been dealt with by the Tribunal constituted by Ms M. Carstairs and decided in the Tribunal’s decision of 16 December 2003.

4.      Ms McMahon noted that in its decision the Tribunal had been aware of the nine months’ incapacity which is the subject of the application under review.  She said that extensive evidence was taken from the applicant and medical witnesses over five sitting days and that Ms Carstairs had made determinations on all relevant matters that the applicant is now seeking to re-litigate.  She referred to the medical reports and the transcript of the earlier proceedings, and stated that the Tribunal had given detailed consideration to all relevant issues, including the applicant’s work history, credibility and his version of events, regarding his ability able to return to work in the relevant period.

5. Ms McMahon said that the applicant was unhappy with the Tribunal’s decision because it found liability under s 16 and 19 of the Safety, Rehabilitation and Compensation Act 1988 only for a limited period of incapacity until 10 December 2001, resulting in payment of compensation by way of medical costs far less than had been sought by the applicant.

6.      The applicant stated that his period of nine months off work had cost him $21,000 in loss of salary.  He said that after the Tribunal’s decision of 16 December 2003 he submitted claims for his time off work during the relevant period, and that additional documents discovered since the hearing supported his claim.  He said that the Tribunal had heard specific matters concerning surgery to his fingers, and two instances of one day’s incapacity, and that the question of time off work was not part of the Tribunal’s deliberation or decision.  He said that he was prevented from returning to work during the relevant period, and said that he ought to be given the opportunity to put these matters before the Tribunal.  The applicant disputed the Tribunal’s earlier findings about his credibility and that he had been evasive when giving evidence.

7. Section 42B of the AAT Act provides that the Tribunal may dismiss an application at any stage of the proceeding, if satisfied that the application is frivolous or vexatious.

8.      The Tribunal has examined the earlier files and has perused the evidence given at the hearing and the decision dated 16 December 2003.  The Tribunal takes into account that during the hearing there was extensive evidence and cross-examination about the applicant’s ability to return to work and the reasons he did not work during the relevant period.  The Tribunal is satisfied that in her decision of 16 December 2003 Ms Carstairs considered all matters in detail and provided comprehensive reasons for her determinations on each of the applications before her.  The applicant had ample opportunity to give evidence and to cross-examine other witnesses.  The Tribunal is satisfied that issues of the applicant’s credit were considered in detail.

9.      The Tribunal is satisfied that the subject matter of the application under review is substantially the same as was heard by the Tribunal over five days of sittings.  The Tribunal accepts the submission by Ms McMahon that to hear the application would involve the same issues for which a decision was handed down on 16 December 2003.

10.     For these reasons the Tribunal decides that the application under review is frivolous and vexatious.      

DECISION

11. For the reasons given orally at the hearing, the Tribunal dismisses the application under s 42B of the Administrative Appeals Tribunal Act 1975 as frivolous or vexatious.

I certify that the eleven [11] preceding paragraphs are a true copy of the reasons for the decision of

G.D. Friedman, Member

(sgd)       Catherine Lake

Clerk

Date of hearing:  11 March 2005

Date of decision:  11 March 2005

Advocate for applicant:                Self-represented

Counsel for respondent:              Ms A. McMahon

Solicitor for respondent:              Australian Government Solicitor