Phuc Le and Comcare - [2014] AATA 291

[2014] AATA 291

Division GENERAL ADMINISTRATIVE DIVISION

File Number(s)

2013/5830

Re

Phuc Le

APPLICANT

And

Comcare

RESPONDENT

WRITTEN REASONS FOR INTERLOCUTORY DECISION

Tribunal
RM Creyke, Senior Member

Date of decision

Date of written reasons

4 April 2014

13 May 2014

Place

Canberra

The Tribunal has jurisdiction to review all the issues involved in the reviewable decision.
..................[sgd]................................
RM Creyke, Senior Member
Catchwords
JURISDICTION- Tribunal’s function as a merit review tribunal - power to review whole of reviewable decision including all issues involved in reviewable decision
Legislation
Administrative Appeals Tribunal Act 1975 (Cth) sections 25(4), 25(4A), 43(1) and 61.
Safety, Rehabilitation and Compensation Act 1988 (Cth) sections 5A and 5B.
Cases
Shi v Migration Agents Review Authority (2008) 248 ALR 390
Drake v Minister for Immigration and Ethnic Affairs (1979) 46 FLR 409
s
REASONS FOR INTERLOCUTORY DECISION
RM Creyke, Senior Member

Mr Phuc Le has an application before the Tribunal for review of a decision that Comcare has no liability under section 14 of the Safety, Rehabilitation and Compensation Act 1988 (Cth) (Act) to compensate him for a condition described as an ‘anxiety state’.
Mr Le, and his wife, Ms Le, attended a directions hearing in person at the Tribunal on Thursday 3 April 2014 to discuss his request to have all summons material relating to the matter returned to providers or to be destroyed; and for an extension of time to respond to a direction of 13 February 2014.
At that hearing Mr Le submitted that, in accordance with his indication on the form applying to the Tribunal for review, the Tribunal only had jurisdiction to consider those aspects of the decision which were unfavourable to him.
The Tribunal made a finding that Mr Le could not limit its jurisdiction by requiring it to ignore elements of the reviewable decision. Thereupon Mr Le indicated his intention to have that ruling tested by the Federal Court.
As a consequence, issues concerning the summons material, whether Mr Le should attend a medical appointment, and the extension of time request, were put in abeyance by the Tribunal until the jurisdictional issue was decided.
On 4 April 2014, the Tribunal issued a decision that it had jurisdiction to consider all aspects of the matter before it. On 1 May 2014, Mr Le submitted a request for the reasons of the Tribunal for that decision.
Background
On 13 November 2013 Mr Le lodged an application for review of a decision with the Tribunal. Mr Le is not legally represented, but in his application he nominated his wife, Ms Teresa Le, as his representative. A conference was held in the matter on 13 February 2014.
At that conference Mr Le was informed that the respondent would be summonsing his medical records. The conference registrar also indicated to Mr Le that as he was not legally represented, it was common practice, in order to assist unrepresented applicants, to ask the respondent to be the first party to produce a statement of facts, issues…

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 Phuc Le and Comcare

Details

AGLC: Phuc Le and Comcare [2014] AATA 291
Case: [2014] AATA 291
Decision Date: 4 April 2014

CaseChat Overview and Summary

In the matter of Phuc Le and Comcare, the applicant sought review of a decision by the Administrative Appeals Tribunal (AAT). The dispute centred on the scope of the Tribunal's jurisdiction and its handling of procedural issues during the review process. Mr Le, who was not legally represented, objected to the summons of all his medical records on privacy grounds, later retracting his objection. He also requested the Tribunal to summon witnesses and documents. The AAT subsequently issued a decision affirming its jurisdiction to review the entire matter, prompting Mr Le to request reasons for that decision.

The legal issues before the court involved the interpretation of the AAT's jurisdiction and its discretion in reviewing a decision under the Safety, Rehabilitation and Compensation Act 1988 (Cth). Specifically, the court had to determine whether the AAT's decision to review the entire matter, including all issues, was within its powers. Additionally, it had to examine whether the AAT's validation of the respondent's statement of issues and requests, including the summons of medical records and the direction for a medical assessment, complied with principles of natural justice.

The AAT held that its jurisdiction to review a decision was not limited to the issues raised by any party but included a discretion to determine the scope of the review. The court found that the AAT had correctly exercised its discretion to review all issues involved in the decision. The AAT's actions in validating the respondent's statement of issues and requests were deemed consistent with its powers and did not breach the principles of natural justice. The Tribunal's decision to provide reasons was focused on its jurisdictional findings, and the court concluded that the AAT had adequately exercised its discretion.

The Tribunal affirmed its jurisdiction to review all issues involved in the reviewable decision, and the court dismissed Mr Le's complaints regarding the procedural fairness of the Tribunal's actions.

Orders

Orders of the court

The Tribunal has jurisdiction to review all the issues involved in the reviewable decision.

Background

Background to the litigation

On 4 April 2014, the Tribunal issued a decision that it had jurisdiction to consider all aspects of the matter before it. On 1 May 2014, Mr Le submitted a request for the reasons of the Tribunal for that decision.Background On 13 November 2013 Mr Le lodged an application for review of a decision with the Tribunal. Mr Le is not legally represented, but in his application he nominated his wife, Ms Teresa Le, as his representative. A conference was held in the matter on 13 February 2014. At that conference Mr Le was informed that the respondent would be summonsing his medical records. The conference registrar also indicated to Mr Le that as he was not legally represented, it was common practice, in order to assist unrepresented applicants, to ask the respondent to be the first party to produce a statement of facts, issues and contentions and if necessary, a separate statement of issues. On 13 February 2014 Mr Le emailed the Tribunal at 8.55pm objecting to the summons of ‘all’ his medical records on privacy grounds. However, in that email he said ‘I am willing to provide ALL my medical records within a reasonable period before my date of injury and after. Specific dates of which can be established by way of further discussion and negotiation’ (original emphasis). He maintained his objection to the summonsing of ‘all’ his medical records. On 17 February 2014, the respondent advised Mr Le of its statement of issues and for Mr Le to indicate any aspect of the statement of issues to which he did not agree and his understanding of the extent of the Tribunal’s jurisdiction in the matter. The respondent’s statement of issues were:2.1What is the appropriate diagnosis of the claimed injury?2.2What is the appropriate deemed date of injury for the claimed injury?2.3Whether the Applicant’s employment contributed to the claimed injury to a significant degree?2.4Whether the Applicant suffered the claimed injury as a result of reasonable administrative action taken in a reasonable manner as set out in s 5A of the Act, meaning that liability for his claim is excluded, as his claimed injury does not meet the definition of ‘injury’ in the Act2.5Whether the Respondent is liable to pay compensation, pursuant to s 14 of the Act in respect of the claimed injury? On 21 February 2014, Mr Le emailed the Tribunal and said: ‘I wish to advise you that I would like to retract this objection to obtain my medical records. Therefore AAT can summon my medical records as per conference discussion on Thursday 13 February 2014’. On 21 February 2014, Mr Le requested the Tribunal to summon two officers in his employing agency to give evidence at any hearing in his matter. The Tribunal advised him that it was normally the responsibility of each party to summon any witnesses they wished to attend, and he was given information about how to do this. On 21 February 2014, Mr Le also requested the Tribunal to request the agency to produce ‘a witness statement… in regards to the Applicant’s ‘Second Submission ‘made to Comcare dated 27th May 2013’. Mr Le was advised on 24 February 2014 that the Tribunal’s powers under the Administrative Appeals Tribunal Act 1975 (Cth) (AAT ACT) sections 38 and 40 did not authorise it to require an agency to produce a document not already in existence.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

In his request for reasons, Mr Le’s complaints are that he has been denied natural justice due to the following actions by the Tribunal in that it:·Validated the Respondent’s Statement of Issues whilst failing to appropriate/validate my (Phuc Le) Statement of Issues submitted on 20 March 2014’.·Validated the Respondent’s request that all my (Phuc Le) medical files be summoned despite my ‘Letter of Objection’ submitted to the AAT on the 13th February 2014.·Validated the Respondent’s request that I (Phuc Le) attend to a Medical Assessment with a Psychiatrist, by having sent the respondent a Direction on the 13 February 2014, to arrange an appointment).Consideration The AAT provides in section 43:43(2) Subject to this section and to sections 35 and 36D, the Tribunal shall give reasons either orally or in writing for its decision.43(2A) Where the Tribunal does not give reasons in writing for its decision, a party to the proceeding may, within 28 days after the day on which a copy of the decision of the Tribunal is given to that party, request the Tribunal to give to that party a statement in writing of the reasons of the Tribunal for its decision, and the Tribunal shall, within 28 days after receiving the request, give to that party such a statement.43 (2B) Where the Tribunal gives in writing the reasons for its decision, those reasons shall including its findings on material questions of fact and reference to the evidence or other material on which those findings were based. The Tribunal notes that the requirement in section 43 to provide reasons only relates to ‘its decision’. The decision made by the Tribunal on 4 April 2014 was ‘The Tribunal has jurisdiction to hear the application on the whole of the reviewable decision’. It is that decision on the issue of its jurisdiction in this matter which is the subject of its reasons. The Tribunal is charged with conducting a final review on the merits of decisions over which it has jurisdiction. ‘Review of the merits’ is not specifically defined in the AAT Act. Specifically section 25 of the AAT Act provides: The Tribunal has power to review any decision in respect of which application is made to it under any enactment’,[2] and ‘may determine the scope of the review of a decision by limiting the questions of fact, the evidence and the issues that it considers.[3] In other words, in relation to decisions which the Tribunal is authorised to review, it has a discretion as to the matters it will consider. That means the Tribunal is not restricted to the issues raised by any party to a matter.[2] Administrative Appeals Tribunal Act 1975 (Cth) section 25(4).[3] Administrative Appeals Tribunal Act 1975 (Cth) section 25(4A). The Safety, Rehabilitation and Compensation Act 1988 (Cth) (SRC Act) provides in section 64 that the Tribunal may review ‘a reviewable decision’. A ‘decision’ in the SRC Act is defined as having the same meaning as ‘decision’ in the AAT Act. At the directions hearing Mr Le was shown the text of the definition of ‘decision’ in the AAT Act and it was pointed out that the meaning of the term was extensive.

Division	GENERAL ADMINISTRATIVE DIVISION
File Number(s)	2013/5830
Re	Phuc Le
APPLICANT
And	Comcare
RESPONDENT