Krawczyk and Comcare - [2001] AATA 1062

DECISION AND REASONS FOR DECISION [2001] AATA 1062

ADMINISTRATIVE APPEALS TRIBUNAL )

) No A2000/390

GENERAL ADMINISTRATIVE DIVISION       )
           Re      STANLEY KRAWCZYK
  Applicant
           And    COMCARE
  Respondent

DECISION

Tribunal Senior Member J.A. Kiosoglous MBE

Date5 September 2001
PlaceCanberra

Decision Pursuant to section 42D(1) of the Administrative Appeals Tribunal Act 1975, the Tribunal remits the decision to the respondent for reconsideration of the decision under review.

(Signed)
J.A. KIOSOGLOUS
(Senior Member)
CATCHWORDS
PRACTICE AND PROCEDURE – jurisdiction – whether decision made under section 53 constitutes a "reviewable decision" – whether decision made under section 53 is part of a determination made under section 14 – definition of "determination".
Safety Rehabilitation and Compensation Act 1988 ss.14, 53, 60, 62, 64
Administrative Appeals Tribunal Act 1975 s.42D(1)
Lees v Comcare (1999) 29 AAR 350
Trajkovski v Telstra Corporation (1998) 81 FCR 459
Chowdhary v Bayne (1999) 29 AAR 100
Deveson and Comcare (1999) 53 ALD 794
Quis and Comcare [2001] AATA 263
Peisley and Comcare [2001] AATA 121

REASONS FOR DECISION

5 September 2001 Senior Member J.A. Kiosoglous MBE

The applicant, Mr Stanley Krawczyk, filed a claim for compensation on 28 February 2000 (T3) for an injury suffered in February 1992. The respondent rejected this claim on 11 May 2000 (T10) pursuant to section 53 of the Safety Rehabilitation and Compensation Act 1988 (the Act). On 18 May 2000 the applicant requested a reconsideration (T11) and on 1 June 2000 (T12) the respondent informed the applicant that they were unable to reconsider the decision because it had been made pursuant to section 53 of the Act.
The Tribunal received into evidence the documents lodged pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 (T1-T12), together with written submissions from the applicant dated 11 July 2001 and from the respondent dated 12 June 2001. The applicant was represented by Mr C. Erskine and the respondent was represented by Mr B. Dubé, both of counsel.
The matter was brought before the Tribunal prior to consideration of the substantive issues, in order for the Tribunal to consider whether or not it, in fact, had jurisdiction to consider the substantive application. The jurisdictional issue before the Tribunal turns upon the question of whether or not there is a reviewable decision before the Tribunal.
background to the application
On 28 February 2000, the applicant completed a claim for compensation in respect of an umbilical hernia (T3/4-9). The claim form was stated to have been received by the respondent on 13 April 2000 (T8/17). On the claim form, the applicant indicated at Question 14 that the date of injury was February 1992 (T3/4).
On 11 May 2000, the respondent decided that it was not reasonable to consider the applicant's claim for compensation because of the applicant's failure to meet "s53 notice requirements" (T10/19). In the letter notifying the applicant of the respondent's decision, the respondent stated (inter alia) (T10/19):
"…
Notice has failed to meet the requirements of s53 of the Safety, Rehabilitation and…

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 Krawczyk and Comcare

Details

AGLC: Krawczyk and Comcare [2001] AATA 1062
Case: [2001] AATA 1062
Decision Date: 5 September 2001

CaseChat Overview and Summary

In the matter of Krawczyk and Comcare, the applicant, Krawczyk, sought compensation for an injury sustained in February 1992, claiming it was not reported until 2000. Comcare denied compensation, citing the applicant's failure to meet notice requirements under section 53 of the Safety Rehabilitation and Compensation Act 1988. Krawczyk sought reconsideration under section 14 of the Act, which Comcare also denied. The Federal Circuit and Family Court of Australia was tasked with determining whether the Tribunal had jurisdiction over the matter.

The central issue before the court was whether the decision made under section 53 of the Act constituted a "reviewable decision" and whether it was part of a determination made under section 14 of the Act. The court also needed to determine the correct interpretation of the term "determination" as defined in the Act. The applicant argued that the decision denying reconsideration should be reviewed, while Comcare maintained that the decision was not reviewable as it was not a "determination" within the meaning of the Act.

The court considered the definitions and scope of "determination" and concluded that the decision made under section 53 was indeed a "determination" and thus reviewable. The court held that the decision denying reconsideration was part of a broader determination under section 14. Consequently, the Tribunal had jurisdiction to review the decision. The court also found that the decision should be remitted to Comcare for reconsideration, exercising its discretion under section 42D(1) of the Administrative Appeals Tribunal Act 1975.

The Federal Circuit and Family Court of Australia remitted the decision to Comcare for reconsideration in accordance with section 62 of the Safety Rehabilitation and Compensation Act 1988, affirming the Tribunal's jurisdiction and the reviewability of the decision made under section 53.

Orders

Orders of the court

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Background

Background to the litigation

The matter was brought before the Tribunal prior to consideration of the substantive issues, in order for the Tribunal to consider whether or not it, in fact, had jurisdiction to consider the substantive application. The jurisdictional issue before the Tribunal turns upon the question of whether or not there is a reviewable decision before the Tribunal.background to the application On 28 February 2000, the applicant completed a claim for compensation in respect of an umbilical hernia (T3/4-9). The claim form was stated to have been received by the respondent on 13 April 2000 (T8/17). On the claim form, the applicant indicated at Question 14 that the date of injury was February 1992 (T3/4). On 11 May 2000, the respondent decided that it was not reasonable to consider the applicant's claim for compensation because of the applicant's failure to meet "s53 notice requirements" (T10/19). In the letter notifying the applicant of the respondent's decision, the respondent stated (inter alia) (T10/19):"…Notice has failed to meet the requirements of s53 of the Safety, Rehabilitation and Compensation Act 1988. This decision is justified on the following grounds:-Notice was not given as soon as practicable after you became aware of the injury as it has been seven years since the stated incident.-The failure did not result from the death, or absence from Australia, of a person.-The failure did not result from ignorance, from a mistake or from any other reasonable cause. It is noted that you have two previous claims for compensation and therefore are aware of your rights as an injured worker.-It is reasonable to disregard this claim for compensation as a result of your failure to meet the s53(1) Notice requirements.-The relevant authority would be prejudiced by your failure to comply with the section 53 notice provisions.I therefore determine that Comcare is not liable to pay compensation under the Safety, Rehabilitation and Compensation Act 1988.In accordance with Commonwealth policy you have general statutory rights of administrative review in relation to this matter. This might include an approach to the Ombudsman, or review under the Administrative Decisions (Judicial Review) Act 1977 following application to the Federal Court.…" By letter dated 18 May 2000, the applicant's solicitors requested a reconsideration of the respondent's decision to deny compensation pursuant to section 14 on the basis that the applicant had failed to comply with section 53 of the Act (T11/21). On 1 June 2000, the respondent decided that it was unable to undertake a reconsideration of the decision to deny compensation (T12/22-23). The respondent stated (inter alia) (T12/22-23):"…The decision which you have requested be reconsidered was one that invoked the provisions of Section 53 of the Safety Rehabilitation and Compensation Act 1988 (the Act).…This decision was made on the basis that Mr Krawczyk failed to give sufficient notice of his injury and therefore Section 53 was relevant.Subsection 60(1) of the Act defines the reconsideration process.…I draw your attention to the definition of a determination provided above. As can be seen from the above information, the decision in this matter, pursuant to section 53 of the Act, is not a 'determination' that is considered reviewable for the purposes of the Act. Therefore, I am unable to undertake a reconsideration as requested in your letter dated 18 May 2000.…"

Evidence

Evidence Before The Court

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Decision

Reasons for decision

As there has been no effective reconsideration of the determination, the Tribunal finds that it does not have jurisdiction to consider the substantive issues arising from the section 14 determination that notice was not adequately given in accordance with section 53 of the Act. However, in light of the Tribunal's findings in relation to the relationship between sections 14 and 53 of the Act, the Tribunal considers it appropriate to exercise its discretion under section 42D(1) of the Administrative Appeals Tribunal Act 1975 to remit the decision for reconsideration by the respondent in accordance with section 62 of the Act.decision Pursuant to section 42D(1) of the Administrative Appeals Tribunal Act 1975, the Tribunal remits the decision to the respondent for reconsideration of the decision under review.

Ratio Decidendi

Legal Principle Established

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