Long and Australian Postal Corporation - [2002] AATA 1333

CATCHWORDS – COMPENSATION – suspension of compensation – unreasonably failed to undertake rehabilitation program – whether Administrative Appeals Tribunal has jurisdiction and if so, the basis of the jurisdiction – Tribunal has jurisdiction.

Administrative Appeals Tribunal Act 1975 s. 3, 44
Safety, Rehabilitation and Compensation Act 1988 ss. 4, 14, 15, 16, 17, 18, 19, 20, 21, 21A, 22, 23, 24, 25, 27, 29, 30, 31, 33, 34–34S, 35, 36, 37, 38, 45, 54, 55, 56, 57 60, 61, 62, 63, 64 and 100; Part II, Part III, Part V, Part VI, Part VIII and Part VIIIA
Safety, Rehabilitation and Compensation and Other Legislation Amendment Act 2001 s. 3, Schedule 2, items 49 and 50
Social Security Act 1991
Administrative Decisions (Judicial Review) Act 1977
Federal Court of Australia Act 1976

Collector of Customs (NSW) v. Brian Lawlor Automotive Pty Ltd (1979) 24 ALR 307
Buck v Comcare (1996) 137 ALR 335
Trajkovski v Telstra Corporation Ltd (1998) 153 ALR 248
Re Martiniello and Comcare Australia (1994) 33 ALD 774
Chowdhary v Bayne (1999) 29 AAR 100
Re Gee and Director-General of Social Services (1981) 3 ALD 132
Chittick v Ackland (1984) 1 FCR 254
Australian National University v Lewins (1996) 138 ALR 1
Sassella (2001) 34 AAR 142

DECISION AND REASONS FOR DECISION [2002] AATA 1333

ADMINISTRATIVE APPEALS TRIBUNAL     )
  )          V2002/844
GENERAL ADMINISTRATIVE DIVISION     )

ReBOTTAWAN LONG
Applicant

AndAUSTRALIAN POSTAL CORPORATION
Respondent

DECISION

Tribunal:                   Miss S A Forgie (Deputy President)
Date:  23 December, 2002
Place:  Melbourne

Decision:The Tribunal:

1. has jurisdiction to consider:
(1)whether the respondent provided a rehabilitation program to the applicant;
(2)if so, whether the applicant refused or failed to undertake it; and
(3)if so, whether his refusal or failure was without reasonable excuse; and

2.If the applicant did not refuse or fail to undertake a rehabilitation program provided to him by the respondent, the Tribunal has jurisdiction to consider the decision to refuse to pay compensation to him under the Safety, Rehabilitation and Compensation Act 1988.
S A FORGIE
Deputy President

REASONS FOR DECISION

On 7 August, 2002, the applicant, Mr Bottawan Long, applied for review of a decision dated 15 July, 2002 by a delegate of the respondent, the Australian Postal Corporation ("Australia Post"). That decision affirmed an earlier determination of another delegate of Australia Post described in the reasons for the decision as a "decision suspending benefits in respect of Mr Long's claim for compensation for not adhering to his Gradual Return to Work (GRTW) program". The letter advising him of the decision was also dated 15 July, 2002 and advised him that he might apply to the Tribunal if he chose to do so and advised him of the time limits for doing so.

A hearing was held to resolve a preliminary issue as to the Tribunal's jurisdiction to entertain Mr Long's application at all. At that hearing, Mr Long was represented by Mr Carey of counsel and Comcare by Mr Moulds of counsel. The documents required 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: [2002] AATA 1333
Decision Date: 23 December 2002

CaseChat Overview and Summary

The matter before the Tribunal was an application for review of a decision by Australia Post to suspend the compensation of Mr Bottawan Long. The issue for the Tribunal to decide was whether it had jurisdiction to review the decision. The Tribunal found that it did have jurisdiction to consider whether Mr Long had been provided with a rehabilitation program, whether he refused or failed to undertake it, and, if so, whether his refusal or failure was without reasonable excuse. If Mr Long had not refused or failed to undertake a rehabilitation program, the Tribunal had jurisdiction to consider the decision to refuse to pay compensation to him under the Safety, Rehabilitation and Compensation Act 1988.

The Tribunal considered the relevant provisions of the Safety, Rehabilitation and Compensation Act 1988 and the Administrative Appeals Tribunal Act 1975. It also examined relevant authorities, including Buck v Comcare, Trajkovski v Telstra Corporation Ltd, and Chowdhary v Bayne. The Tribunal concluded that it had jurisdiction to review the decision based on the principles established in these authorities.

The Tribunal found that the decision by Australia Post was reviewable as it was a decision to take an action, which amounted to "doing or refusing to do any other act or thing" within the meaning of the Administrative Appeals Tribunal Act 1975. The refusal was taken "under" s. 37(7) in the sense that it was taken under the authority of that provision. As a decision and so a determination within the meaning of the Safety, Rehabilitation and Compensation Act 1988, Australia Post's refusal was reviewable under s. 62(2).

The Tribunal certified that the fifty-three preceding paragraphs are a true copy of the reasons for the decision. The decision was made on 23 December, 2002, and signed by P. Paczkowski, Associate. The hearing took place on 20 November, 2002.

Orders