Noronha and Comcare (Compensation) - [2022] AATA 478

Noronha and Comcare (Compensation) [2022] AATA 478 (11 March 2022)
Division:GENERAL DIVISION
File Number(s): 2019/7653
Re:Ovina NORONHA
APPLICANT

AndComcare
RESPONDENT

DECISION
Tribunal:The Hon. John Pascoe AC CVO, Deputy President
Date:11 March 2022
Place:Sydney

The correct or preferable decision is to dismiss the application pursuant to s 42A(5) of the AAT Act.
.................................[sgd].......................................
The Hon. John Pascoe AC CVO, Deputy President
CATCHWORDS
PRACTICE AND PROCEDURE – interlocutory application for dismissal under s 42A(5) – where the matter has failed to progress – workers compensation – consistent failure to comply with s 57 notice under the SRC Act – where Applicant contends matter should be stood over until particular document can be produced – application for dismissal is granted.
LEGISLATION
Administrative Appeals Tribunal Act 1975 s 2, 33, 42A
Safety, Rehabilitation and Compensation Act 1988 (Cth) s 57
CASES
Charara v Commissioner of Taxation [2016] FCA 451
SECONDARY MATERIALS
Administrative Appeals Tribunal ‘Guide to the Workers’ Compensation Jurisdiction’ (July 2015)
REASONS FOR DECISION
The Hon. John Pascoe AC CVO, Deputy President
11 March 2022

The Applicant was born in 1966. From July 2001 she was employed by the Department of Veterans’ Affair (‘DVA’).
On 14 January 2004, the Applicant lodged a Workers’ Compensation Claim Form for ‘Anxiety’. The Applicant described the cause of the injury as harassment in the workplace due to a number of specific issues. It was stated that the injury began in January 2001. This claim was allocated the reference number 880389/1.
Comcare declined liability to pay compensation under section 14 at first instance however accepted liability for ‘anxiety state’ in a reconsideration of decision dated 15 July 2004.
Following a lengthy period of incapacity, the Applicant returned to work in March 2009.
On 9 February 2011, the Applicant submitted a further claim for workers’ compensation in respect of ‘acute stress disorder and panick (sic) attacks’ suffered at work on 15 September 2009. This claim was allocated the reference number 880389/2.
In the determination dated 2 June 2011, Comcare accepted liability for ‘acute reactions to stress’ under section 14 of the Safety, Rehabilitation and Compensation Act 1988 (Cth) (‘SRC Act’).
DVA requested a reconsideration of the determination which accepted liability under section 14. In the reconsideration dated 3 August 2011, Comcare’s review officer affirmed the determination and accepted liability to pay compensation under section 14 of the SRC Act in respect of ‘acute stress reactions’.
In a determination dated 21 May 2019, Comcare declined present liability for medical expenses and incapacity payments under sections 16 and 19 of the SRC Act. The delegate relied on Dr Chow’s opinion that the Applicant’s employment no longer contributed to her condition, to a significant degree, and that her underlying personality disorder would have caused her condition in the absence of work.
The Applicant requested a reconsideration and, in the reviewable decision dated 11 September 2019, Comcare’s review officer affirmed the determination to decline present liability under sections 16 and 19 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 Noronha and Comcare (Compensation)

Details

AGLC: Noronha and Comcare (Compensation) [2022] AATA 478
Case: [2022] AATA 478
Decision Date: 11 March 2022

CaseChat Overview and Summary

The Administrative Appeals Tribunal (AAT) considered an interlocutory application for dismissal brought by Comcare against the applicant, Noronha. The dispute concerned a workers' compensation matter where Comcare alleged a consistent failure by the applicant to comply with a notice issued under section 57 of the *Safety, Rehabilitation and Compensation Act 1988* (Cth) (SRC Act). The applicant sought to have the matter stood over until a particular document could be produced.

The primary legal issue before the Tribunal was whether the proceedings should be dismissed under section 42A(5) of the *Administrative Appeals Tribunal Act 1975* (Cth) due to the matter's lack of progress and the applicant's failure to comply with the SRC Act notice. The Tribunal was required to determine if the applicant's request to stand over the proceedings was a sufficient reason to avoid dismissal.

In reaching its decision, the Tribunal considered the principles articulated by Wigney J regarding the progression of matters before the Tribunal. The Tribunal found that the consistent failure to comply with the section 57 notice, coupled with the overall lack of progress in the proceedings, warranted dismissal. The Tribunal concluded that the proper course of action was to dismiss the application pursuant to section 42A(5) of the AAT Act.

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

Accordingly, and bearing in mind the principles enunciated by Wigney J, it is my opinion that the proper course is to dismiss the proceedings under s 42A(5) of the AAT Act.DECISION The correct or preferable decision is to dismiss the application pursuant to s 42A(5) of the AAT Act.

Ratio Decidendi

Legal Principle Established

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