McDonald and Comcare (Compensation) - [2016] AATA 1049

McDonald and Comcare (Compensation) [2016] AATA 1049 (20 December 2016)

Division

GENERAL DIVISION

File Number

2016/3180

Re

John McDonald

APPLICANT

And

Comcare

RESPONDENT

DECISION

Tribunal
Deputy President K Bean

Date 20 December 2016

Place Adelaide
The Tribunal’s decision on the preliminary issue is that Mr McDonald is entitled to have any claim for household services (including gardening) relating to a period after 1 December 1988 determined under s 29 of the Safety, Rehabilitation and Compensation Act 1988 (the SRC Act), and nothing in s 124 of the SRC Act acts as an impediment to the success of such a claim.
..............[Sgd]..............................................
Deputy President K Bean
CATCHWORDS
COMPENSATION – Entitlement to compensation for household services – Preliminary issue raised – Effect of transitional provisions where compensable injury sustained prior to commencement of Safety, Rehabilitation and Compensation Act 1988 (SRC Act) – Whether applicant restricted to compensation of a type which would have been payable under 1971 Act – Entitlement to a particular type of compensation arising after 1 December 1988 in respect of a compensable injury is determined by direct reference to the applicable provision of the SRC Act.
LEGISLATION
Safety, Rehabilitation and Compensation Act 1988, ss 29, 124(1), (1A), (2) and (5)
CASES
Hoyle v Telstra Corporation Limited; Razmovski v Telstra Incorporation Ltd (1997) 145 ALR 148
Comcare v Levett (1995) 38 ALD 518
Brennan v Comcare (1994) 50 FCR 555
Comcare v Bozicevic (1997) 144 ALR 132
Behan v Australian Telecommunications Corporation (1990) 22 ALD 545
Re Lay and Australian Postal Corporation [1999] AATA 803
REASONS FOR DECISION
Deputy President K Bean
20 December 2016

The substantive application in this matter relates to a claim by the applicant, Mr McDonald, submitted on 21 January 2013, for household assistance in the form of a gardening contractor “to help with various gardening tasks around [his] garden”.[1] This claim was initially granted and the relevant expenses were paid for several years. However, on 17 March 2016, the respondent, Comcare, determined that Mr McDonald was not entitled to compensation in respect of gardening services under the relevant provision of the Safety, Rehabilitation and Compensation Act 1988 (the SRC Act), s 29.[2]
[1] T69.
[2] T89.
That determination was affirmed on reconsideration and on 17 June 2016, Mr McDonald applied to this Tribunal for review of the decision of the reconsideration delegate.[3]
[3] T1.
The application has not yet proceeded to a final hearing. However, on 2 August 2016, the solicitors for the respondent wrote to the Tribunal identifying a preliminary issue which the respondent sought to have determined by the Tribunal before the matter proceeded to a final hearing. The respondent indicated in that letter that it was likely that the Tribunal’s adjudication of that issue would be determinative of the substantive application.
The matter was accordingly listed for a preliminary hearing before me on 6 October 2016 to address the issue identified by the respondent.
THE PRELIMINARY ISSUE
The issue identified by the respondent concerns the application of the…

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 McDonald and Comcare (Compensation)

Details

AGLC: McDonald and Comcare (Compensation) [2016] AATA 1049
Case: [2016] AATA 1049
Decision Date: 20 December 2016

CaseChat Overview and Summary

This matter concerned an appeal by Mr McDonald against a decision by Comcare regarding his entitlement to compensation for household services. The dispute centred on the application of transitional provisions within the *Safety, Rehabilitation and Compensation Act 1988* (SRC Act) to a compensable injury sustained prior to the commencement of that Act. The decision was made by Deputy President K Bean.

The primary legal issue before the court was whether Mr McDonald, whose injury predated the SRC Act, was restricted to compensation of a type that would have been payable under the previous legislation, or if his entitlement to a particular type of compensation arising after 1 December 1988 was to be determined by direct reference to the SRC Act. Specifically, the court considered whether the transitional provisions, particularly section 124 of the SRC Act, created an impediment to a claim for gardening services made after 1 December 1988.

Deputy President Bean reasoned that as Mr McDonald's claim for gardening services was made in 2013 and related entirely to a period after 1 December 1988, the transitional provisions did not act as a barrier. The court determined that Mr McDonald's entitlements under section 29 of the SRC Act were to be assessed by reference to whether he satisfied the requirements of that provision for the period in question.

Accordingly, the court decided that Mr McDonald was entitled to have his claim for gardening services relating to a period after 1 December 1988 determined under section 29 of the SRC Act, and that section 124 of the SRC Act did not prevent the success of such a claim.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

Given that Mr McDonald’s claim was made on 21 January 2013 and relates entirely to a period after 1 December 1988, I have accordingly determined that nothing in the transitional provisions or elsewhere in the SRC Act acts as an impediment or barrier to that claim. Rather, Mr McDonald’s entitlements under s 29 are to be determined by reference to whether he satisfies the requirements of that provision with respect to the period in question.DECISION Accordingly, my decision on the preliminary issue is that Mr McDonald is entitled to have any claim for gardening services relating to a period after 1 December 1988 determined under s 29 of the SRC Act, and nothing in s 124 of the SRC Act creates an impediment to the success of such a claim.

Ratio Decidendi

Legal Principle Established

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Division	GENERAL DIVISION
File Number	2016/3180
Re	John McDonald
APPLICANT
And	Comcare
RESPONDENT

Tribunal	Deputy President K Bean
Date	20 December 2016
Place	Adelaide