Nancy Rose and Comcare - [2013] AATA 735

[2013] AATA 735

Division GENERAL ADMINISTRATIVE DIVISION

File Number(s)

2013/4613

Re

Nancy Rose

APPLICANT

And

Comcare

RESPONDENT

DECISION

Tribunal
Mr S. Webb, Member

Date 2 October 2013

Date of written reasons 11 October 2013

Place Canberra
Implementation of the decision under review is stayed, subject to further order.
...................[sgd].....................................................
Mr S. Webb, Member
COMPENSATION - stay application - relevant factors – psychiatric disease - invalidity retirement – decision accepting liability for psychological injury overturned after five years – adverse effect on Applicant’s mental health - difficult financial circumstances – risk Applicant not able to afford medical treatment if stay not granted - some capacity to repay debt if application unsuccessful - evidence to be tested to ascertain merit - stay desirable to secure effectiveness of hearing - stay granted
Administrative Appeals Tribunal Act 1975, s 41
Safety, Rehabilitation and Compensation Act 1988, s 14, 62, 114, 114C, 114D
Shi v Migration Institute of Australia & Anor (2003) 134 FCR 326
Civil Aviation Safety Authority v Hotop [2005] FCA 1023
Re Griffiths Grif-Air Helicopters Pty Ltd and Civil Aviation Authority (1998) 31 ALD 380
Re Artemis and Australian Postal Corporation (1998) 27 AAR 60
Re Repatriation Commission and Delkou (1985) 8 ALD 454
Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541

REASONS FOR DECISION
Mr S. Webb, Member
11 October 2013

Nancy Rose claimed compensation in respect of a work-related psychiatric illness that resulted in her retirement on invalidity grounds. Comcare accepted the claim and paid Ms Rose weekly compensation for incapacity and compensation for medical treatment expenses. Five years later, Comcare decided that its original acceptance of the claim, and of liability to pay Ms Rose compensation for the psychological injury, was incorrect. It reversed the decision and stopped paying Ms Rose compensation. Ms Rose applied for review of this decision, and she applied for implementation of the decision to be stayed. Comcare opposed the granting of a stay.
The stay application came on for hearing before me on 2 October 2013. Both parties were represented by counsel. Ms Rose was not fit to give oral evidence, as she had been hospitalised following deterioration of her mental health. Counsel for Ms Rose, David Richards, urged me to proceed to hear the stay application in her absence. Andrew Dillon, counsel for Comcare, concurred. Proceeding to hear the application, I informed the parties that I would adjourn the hearing, or consider a further application from Ms Rose, if the present evidence was not sufficient to properly determine the application. A number of documents were tendered and exhibited and extensive oral submissions were made. I handed down a decision, granting the stay, and provided reasons orally.
Comcare requested written reasons, which follow.
The brief facts are –
(a)on 15 April 2008, Ms Rose signed a claim for compensation in respect of Generalised Anxiety Disorder, said to have arisen in December 2006 as a result of bullying at work in the Department of Defence (Defence);
(b)on 29 November 2008, Comcare accepted…

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 Nancy Rose and Comcare

Details

AGLC: Nancy Rose and Comcare [2013] AATA 735
Case: [2013] AATA 735
Decision Date

CaseChat Overview and Summary

Nancy Rose brought an application before the Administrative Appeals Tribunal (AAT) against Comcare, an entity within the Australian government. The dispute centred around the implementation and operation of a decision made by Comcare, which Rose sought to have stayed pending the outcome of her appeal. The crux of the matter was whether a stay of the decision, which would halt its implementation, was warranted given the potential implications for Rose's health and the fairness of the hearing process.

The legal issues before the Tribunal included the balance between the need for expedition in resolving the matter and ensuring that both parties had a reasonable opportunity to present their cases. Specifically, the court needed to consider whether the stay of the decision would prejudice the rights of the other party, Comcare, and whether it was in the interests of justice to grant the stay. The court also had to weigh the risk that Rose might not receive necessary medical treatment if the stay was not granted against the potential consequences of delaying the resolution of the appeal.

In determining the application, the Tribunal found that granting the stay was desirable to prevent the potential risk to Rose's health, which could compromise the fairness of the hearing. The court recognised that while this might result in Rose receiving a greater amount of compensation than she might ultimately be entitled to, and potentially facing a greater debt, these outcomes were outweighed by the importance of ensuring she could receive necessary medical treatment. The court granted the stay on the condition that the matter proceed as expeditiously as possible, with a preliminary conference scheduled to facilitate this. If the matter was not settled at the conference, hearing certificates would be issued with the aim of listing the case for hearing as soon as practicable.

The Tribunal ordered that the operation and implementation of the decision under review be stayed, subject to further orders. This decision was made to ensure that Rose could receive the medical treatment she required, thereby maintaining the security of the hearing. Both parties were directed to facilitate the expeditious progress of the matter, with a preliminary conference scheduled to set a timetable for evidence and hearing.

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

The second matter relates to s 33(1AA) of the AAT Act, whereby the person who made the decision must use his or her best endeavours to assist the Tribunal to make its decision in relation to the proceeding. Aside from issues of expedition, to which I will briefly return, the point of primary consideration for present purposes is ensuring that both sides have a reasonable opportunity to present their case. This is one element of securing the effectiveness of the hearing that is relevant when determining a stay application in a case such as this.Conclusion and decision Weighing the competing factors, I am satisfied that it is desirable to grant Ms Rose’s application and to stay operation and implementation of the decision under review, subject to further order. The primary reason for this is that I am satisfied there is a risk, perhaps even a substantial likelihood, that Ms Rose may not be in a position to obtain medical treatment she so clearly requires if a stay is not granted, thereby placing the security of the hearing at risk. It is desirable for this to be avoided, even though in the final result it may mean that Ms Rose is paid a greater amount of compensation to which she may have no entitlement, and she may face a greater debt. In granting the stay, it is clear that this matter should proceed as expeditiously as is reasonable to hearing. Both parties have agreed to facilitate this. A preliminary conference is listed with a conference registrar on 14 October 2013. A timetable for evidence to be brought forward will be set. If the application is not settled by agreement at the conference, hearing certificates are to be issued thereafter with the intention of listing the matter to be heard at the earliest convenient date this year.

Ratio Decidendi

Legal Principle Established

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Division	GENERAL ADMINISTRATIVE DIVISION
File Number(s)	2013/4613
Re	Nancy Rose
APPLICANT
And	Comcare
RESPONDENT

Tribunal	Mr S. Webb, Member
Date	2 October 2013
Date of written reasons	11 October 2013
Place	Canberra