Kulas v Prosegur Australia Pty Ltd

FEDERAL COURT OF AUSTRALIA

Kulas v Prosegur Australia Pty Ltd [2017] FCA 85

Appeal from:

Kulas and Prosegur Australia Pty Ltd (Compensation) [2016] AATA 538

File number:

VID 1015 of 2016

Judge:

PAGONE J

Date of judgment:

10 February 2017

Catchwords:

INDUSTRIAL LAW – Safety Rehabilitation and Compensation Act 1988 (Cth) – appeal from decision of Administrative Appeals Tribunal – rehabilitation program  –  refusal or failure to undertake rehabilitation program – whether reasonable excuse – whether Tribunal erroneously received certain evidence

Legislation:

Administrative Appeals Tribunal Act 1975 (Cth)

Safety Rehabilitation and Compensation Act 1988 (Cth)

Cases cited:

AON Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175

Brown v Repatriation Commission (1985) 7 FCR 302

Haritos v Commissioner of Taxation (2015) 233 FCR 315

Kowalski v Chief Executive Officer Medicare Australia (2010) 185 FCR 42

TNT Skypak International (Aust) Pty Ltd v Federal Commissioner of Taxation (1988) 82 ALR 175

Date of hearing:

13 December 2016

Registry:

Victoria

Division:

General Division

National Practice Area:

Employment & Industrial Relations

Category:

Catchwords

Number of paragraphs:

23

Counsel for the Applicant:

The applicant appeared in person

Counsel for the Respondent:

Mr C Jones

Solicitor for the Respondent:

Moray & Agnew

ORDERS

VID 1015 of 2016

BETWEEN:

KRASANDAR KULAS

Applicant

AND:

PROSEGUR AUSTRALIA PTY LTD

Respondent

JUDGE:	PAGONE J
DATE OF ORDER:	10 FEBRUARY 2017

THE COURT ORDERS THAT:

1.The appeal be dismissed.

Note:   Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

PAGONE J:

1. This is an appeal by Mr Kulas from a decision of the Administrative Appeals Tribunal affirming a decision to suspend his rights to compensation under the Safety Rehabilitation and Compensation Act 1988 (Cth) (“the Rehabilitation Act”) on the basis that he had failed to comply with his rehabilitation program.  Mr Kulas contended on appeal that the Tribunal had erroneously failed to allow him to rely upon psychiatric or psychological reports which he had sought to tender, and also that the Tribunal had erroneously received into evidence video recordings of CCTV footage which he had not seen before the hearing.

2. Mr Kulas suffered an injury on 22 June 2011 in his employment with Prosegur Australia Pty Limited (“Prosegur”).  At the time of the injury he had been employed as an armoured vehicle operator in Prosegur’s security business.  The injury he sustained was described by the Tribunal as being of a low back strain and L5/S1 disc protrusion with left S1 nerve root compression, together with a C6/7 stenosis secondary to pre-existing spondylitic changes.  Prosegur accepted liability for the injury and Mr Kulas did not return to normal vehicle operator duties after the injury. Mr Kulas performed mainly administrative and other roles in Prosegur’s control room from February 2014.

3. On 4 July 2014 a determination was made pursuant to s 37(1) of the Rehabilitation Act requiring Mr Kulas “to perform modified suitable duties on pre injury hours” while attending adjustment counselling and undertaking an exercise program as advised…