MIHALJCIC And LINFOX AUSTRALIA PTY LTD - [2010] AATA 599

Administrative Appeals Tribunal
INTERLOCUTORY DECISION AND REASONS FOR INTERLOCUTORY DECISION [2010] AATA 599
ADMINISTRATIVE APPEALS TRIBUNAL )
) Nº 2008/6162, Nº2009/2009

GENERAL ADMINISTRATIVE DIVISION )

Re GORAN MIHALJCIC

Applicant

And

LINFOX AUSTRALIA PTY LTD

Respondent

INTERLOCUTORY DECISION

Tribunal Mr John Handley, Senior Member
Date13 August 2010
PlaceMelbourne

Decision

For the reasons which follow, particularly at paragraph 46, if within four weeks, the Tribunal is advised that a request for reconsideration of the decision made by the Respondent on 1 December 2008 has not been made, I will, subject to any further Direction or application cause these applications to be listed for a resumption of the dismissal hearing.

(sgd) John Handley
Senior Member

PRACTICE AND PROCEDURE – dismissal application ‑ applications to review two decisions to disentitle continuing weekly compensation – Applicant did not undertake a rehabilitation program – employer issued a determination to suspend rights to compensation and to institute or continue proceedings– Applicant has not applied for reconsideration – reviewable decision not made – jurisdiction of Tribunal to review suspension – status of substantive applications for review.
Administrative Appeals Tribunal Act 1975 (Cth) s 29(7), s 42A and s 42AB,
Safety, Rehabilitation and Compensation Act 1988 (Cth)s 4, s 37, s 37(7), s 60, s 61, s 62, s 62(3), s 63 and s 64
Australian Postal Corporation v Forgie and Anor (2003) 130 FCR 279
Re Marnotta Pty Ltd and Secretary, Department of Health and Ageing (2004) 82 ALD 514
Transurban Citylink Ltd v Allen (1999) 168 ALR 687
Fearnley v Australian Fisheries Management Authority (2006) 94 ALD 519
Guse v Comcare (1997) 49 ALD 288
REASONS FOR INTERLOCUTORY DECISION

13 August 2010   Mr John Handley, Senior Member

1.      The Applicant suffered injury described as a temporary exacerbation of cervical disc disease and cervical root irritation in his employment with the Respondent in December 2007. The Applicant has been incapacitated from time to time subsequently, and the Respondent has accepted liability to pay compensation until 22 September 2008.
2.      The Applicant has applied for review of two reviewable decisions made by the Respondent. The Respondent contends that the decisions are not reviewable by the Tribunal and should be dismissed. It asserts that the applications should not have been instituted and relies on s 37(7) of the Safety, Rehabilitation and Compensation Act 1988 (the SRC Act).
3.      The circumstances giving rise to these reviews are chronologically summarised as follows.
APPLICATION Nº 2008/6162
4.      The Applicant signed a return to work plan (described as an offer of suitable duties) which he was due to commence on 22 September 2008 (T53, p 207-212). It was devised by the Respondent and regarded as a rehabilitation program. The Respondent alleged that the Applicant failed or refused to comply with, or commence the plan.
5.      On 8 October 2008, the Applicant’s solicitors wrote to the Respondent and advised that his general practitioner had prepared a modified return to work plan. The Respondent prepared a further plan that was due 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: [2010] AATA 599
Decision Date: 13 August 2010

CaseChat Overview and Summary

The applicant in this case, Mihaljcic, was employed by Linfox Australia Pty Ltd and was involved in an accident at work. The dispute before the court involved two primary applications to review decisions made by the respondent, which had the effect of disentitling the applicant to continuing weekly compensation. The core of the matter was whether the applicant had complied with a requirement to undertake a rehabilitation program and the consequences of non-compliance. The case was heard in the Federal Circuit Court of Australia.

The legal issues before the court centred on the jurisdiction of the Federal Circuit Court to review the respondent's decisions, particularly the decision to suspend the applicant's rights to compensation. A significant aspect of the case was whether the court had the authority to review the decision to suspend compensation and whether the substantive applications for review could proceed in the absence of an application for reconsideration of the decision made on 1 December 2008. The court had to determine whether the reviewable decision had actually been made and if the applicant had fulfilled the procedural requirements before seeking judicial review.

The court found that the decision to suspend the applicant's rights to compensation was not a reviewable decision until the applicant had applied for reconsideration. As the applicant had not made such an application, the court did not have jurisdiction to review the decision at that point. The court held that the applicant's applications for review of the decisions to disentitle compensation were not yet in a position to be heard. The court directed that if the Tribunal was informed within four weeks that the applicant had not applied for reconsideration of the decision made by the respondent on 1 December 2008, the applications should be listed for a resumption of the dismissal hearing.

The orders of the court were that the applications for review would be put on hold pending the outcome of any reconsideration application by the applicant. If no such application was made within four weeks, the dismissal hearing would resume. This decision underscored the importance of procedural compliance and the sequence of steps that must be taken before a decision can be reviewed by the court.

Orders

Orders of the court

For the reasons which follow, particularly at paragraph 46, if within four weeks, the Tribunal is advised that a request for reconsideration of the decision made by the Respondent on 1 December 2008 has not been made, I will, subject to any further Direction or application cause these applications to be listed for a resumption of the dismissal hearing.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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