[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 541REASONS 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…
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- AGLC
- Nancy Rose and Comcare [2013] AATA 735
- Case
- [2013] AATA 735
- Decision Date
CaseChat Overview and Summary
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
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Background
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Evidence Before The Court
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Decision
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