MXYY and Comcare (Compensation) [2019] AATA 40 (22 January 2019)
Division:GENERAL DIVISION
File Number(s): 2018/4975
Re:MXYY
APPLICANT
AndComcare
RESPONDENT
DECISION
Tribunal:Member Mark Hyman
Date:22 January 2019
Place:Canberra
The application for review of Comcare’s decision is dismissed.
........................................................................
Member Mark Hyman
Catchwords
PRACTICE AND PROCEDURE – application for dismissal – rehabilitation under the Safety, Rehabilitation and Compensation Act 1988 – closure of rehabilitation program and replacement with a new program - whether a determination under subsection 37(1) relates to a general or specific rehabilitation requirement – rehabilitation determination is for a specific program tailored to the individual - closure of program leaves no decision to be reviewed – application for review dismissed
Legislation
Acts Interpretation Act 1901, s 33
Administrative Appeals Tribunal Act 1975, s 42B
Legislation Act 2003, s 13
Safety, Rehabilitation and Compensation Act 1988, ss 36, 37, 41Cases
CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384
K & S Lake City Freighters Pty Ltd v Gordon & Gotch Ltd (1985) 157 CLR 309
Kitty and Australian Postal Corporation [2003] AATA 164
McGuinness v Comcare [2007] FMCA 1486
Pascoe v Australian Postal Corporation [2004] FCAFC 4
Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355
Wood and Comcare [2013] AATA 469Secondary Materials
Guidelines for Rehabilitation Authorities 2012, Comcare
REASONS FOR DECISION
Member Mark Hyman
22 January 2019
This decision concerns whether the applicant, who is known by the pseudonym MXYY can maintain an objection to her proposed rehabilitation, or whether her matter before the tribunal should be dismissed. The applicant has a claim for a psychological condition (major depressive disorder, single episode (unspecified)), with a deemed injury date of 17 December 2011, for which Comcare, the respondent, has accepted liability under section 14 of the Safety, Rehabilitation and Compensation Act 1988 (the SRC Act). On 13 June 2018 the applicant’s rehabilitation authority (also her employing agency) determined that she should undertake a rehabilitation program, based in part on a report by an independent consultant psychiatrist. The applicant requested reconsideration of the determination and on 25 July 2018 Comcare affirmed the determination. On 30 August 2018 the applicant sought review by this tribunal, also seeking a confidentiality order and a stay of the decision.
On 14 September 2018 the applicant’s rehabilitation case manager, Mr Alan Burrows, advised that the rehabilitation provider engaged for MXYY was unable to continue providing the rehabilitation program because of the resignation of relevant staff. Mr Burrows advised that the rehabilitation program would be closed, and a new provider engaged to develop a new program. Mr Burrows also advised that the stay and confidentiality order were opposed, apparently on the basis that the rehabilitation program would not continue, and that therefore neither the stay nor the confidentiality order would have any utility. On 18 September 2018, Comcare’s legal representatives, Australian Government Solicitor (AGS), contacted the applicant and the tribunal suggesting that with the closure of the rehabilitation…
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- AGLC
- MXYY and Comcare (Compensation) [2019] AATA 40
- Case
- [2019] AATA 40
- Decision Date
CaseChat Overview and Summary
The central legal issue before the court was whether a determination made under subsection 37(1) of the *Safety, Rehabilitation and Compensation Act 1988* (SRC Act) related to a general requirement for rehabilitation or a specific, tailored program. This question was crucial to determining whether the closure of the existing program left any operative decision open for review.
The court adopted a purposive approach to statutory interpretation, emphasising the need to consider statutory provisions within their broader context and in light of the statute's overall purpose. Citing established High Court authority, the court reasoned that the SRC Act, particularly sections 36, 37, and 41, indicated that a rehabilitation program determined under subsection 37(1) was intended to be specific to the individual employee. This was supported by the language used in subsection 37(3), which referred to "the program," and by the Guidelines for Rehabilitation Authorities 2012, which treated rehabilitation programs under section 37 as specific. Consequently, the court concluded that the closure of a specific program meant there was no longer a determination under subsection 37(1) in existence for MXYY to seek a review of.
Accordingly, the court dismissed MXYY's application for review.
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
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Ratio Decidendi
Legal Principle Established
AGS, on behalf of Comcare, has made submissions contending that:a)the construction of subsection 37(1) is to be undertaken in the context of the entire rehabilitation part of the SRC Act, and specifically with regard to sections 36, 37, and 41 of that Act;b)the report made under subsection 36(8) of the SRC Act will specify a particular rehabilitation program “where appropriate” and it will be appropriate where the employee is capable of rehabilitation;c)the suspension of an employee’s compensation entitlements under subsection 37(7) occurs where the employee fails to undertake a rehabilitation program “under this section”, which can only be a reference to a specific rehabilitation program determined under subsection 37(1); d)the listing of matters in subsection 37(3) to which regard is to be had in determining a rehabilitation program under subsection 37(1) relies heavily on references to “the program”, implying it is a specific program rather than a general determination that rehabilitation is to be undertaken; ande)the Guidelines for Rehabilitation Authorities 2012 (the Guidelines), a legislative instrument made under section 41 of the SRC Act, clearly treat a rehabilitation program made under section 37 as a specific rather than general program. CONSIDERATION There is a long line of authority that any task of statutory construction examines the text of the statute not as a set of isolated provisions or phrases but in context, taking account of the purpose of the statute. In K & S Lake City Freighters Pty Ltd v Gordon & Gotch Ltd (1985) 157 CLR 309 Mason J noted (at 315): Problems of legal interpretation are not solved satisfactorily by ritual incantations which emphasize the clarity of meaning which words have when viewed in isolation, divorced from their context. The modern approach to interpretation insists that the context be considered in the first instance, especially in the case of general words… Similarly, in CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384 Brennan CJ, Dawson, Toohey and Gummow JJ stated (at 408):[T]he modern approach to statutory interpretation (a) insists that the context be considered in the first instance, not merely at some later stage when ambiguity might be thought to arise, and (b) uses 'context' in its widest sense to include such things as the existing state of the law and the mischief which, by legitimate means such as those just mentioned, one may discern the statute was intended to remedy. In Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 the plurality (McHugh, Gummow, Kirby and Hayne JJ) stated (at 381):The primary object of statutory construction is to construe the relevant provision so that it is consistent with the language and purpose of all the provisions of the statute. The meaning of the provision must be determined "by reference to the language of the instrument viewed as a whole". In Commissioner for Railways (NSW) v Agalianos [(1955) 92 CLR 390], Dixon CJ pointed out that "the context, the general purpose and policy of a provision and its consistency and fairness are surer guides to its meaning than the logic with which it is constructed". Thus, the process of construction must always begin by examining the context of the provision that is being construed. [footnotes omitted]