Quis and Comcare - [2001] AATA 263

DECISION AND REASONS FOR DECISION [2001] AATA 263

ADMINISTRATIVE APPEALS TRIBUNAL )

) No A2000/414

GENERAL ADMINISTRATIVE DIVISION       )
           Re      ADALBERT QUIS
  Applicant
           And    COMCARE
  Respondent

DECISION

Tribunal M J Sassella, Senior Member

Date2 April 2001
PlaceCanberra

Decision      The Tribunal has no jurisdiction in respect of this application.
  ................. (Sgd)................
  M J Sassella
  Senior Member
CATCHWORDS
PRACTICE AND PROCEDURE – Tribunal's jurisdiction to review suspension of payments under sub-section 37(7) of Safety Rehabilitation and Compensation Act 1988 – whether a refusal to grant extension of time and advice of appeal rights a reviewable decision – suspension not associated with a reviewable decision ceasing liability for incapacity or refusing compensation for medical or other expenses
COMPENSATION – rehabilitation program – suspension of entitlements pursuant to sub-section 37(7) of Safety Rehabilitation and Compensation Act 1988
Administrative Appeals Tribunal Act 1975 s 44
Safety Rehabilitation and Compensation Act 1988 ss 37, 38, 62
Trajkovski v Telstra Corporation Ltd (1988) 81 FCR 459
Buck v Comcare (1996) 137 ALR 335
Chowdhary v Bayne [1999] FCA 41
Re Lawson and Director-General of Social Services (1980) 3 ALD 58
Re Anita Chowdhary and Comcare [1998] AATA 448
Re Firkin and Broken Hill Proprietary Company Ltd [1999] AATA 287
Re Peisley and Comcare [2001] AATA 121

REASONS FOR DECISION

2 April 2001 M J Sassella, Senior Member

History of application

On 7 September 1998 Mr Adalbert Quis (the "Applicant") lodged a claim for compensation in respect of achilles tendonitis right ankle (T4). The claim form also referred to pain in shoulder, neck, right leg and lower back. The Applicant was injured restraining an inmate at a detention centre on 26 March 1998.
On 14 September 1998 Comcare (the "Respondent") decided to admit liability in respect of the injury described as ankle sprain (T5). Liability was accepted to 6 May 1998. This was revised and ongoing incapacity payments were made to top up the Applicant's reduced earnings attributable to continuing effects of the injury. Comcare also covered the Applicant for various medical and physiotherapy expenses.
On 30 June 1999 the Applicant commenced a graduated return to work program (T37).
On 24 September 1999 the Applicant claimed compensation for a period of reduced earnings indicating a period of incapacity running from 6 August 1999 to 30 September 1999 (T54).
On 28 September 1999 the Applicant told his employer that he wanted to resign with effect from 24 September 1999 (T56). He was told that this would remove him from his rehabilitation program and that would be likely to lead to cessation of his compensation payments. He had moved to Western Australia. He had been absent from work from 3 to 24 September 1999 because of "achilles tendon".
On 20 October 1999 the Respondent wrote to the Applicant telling him that his payments had been suspended because of his non-compliance with a rehabilitation program agreed on 7 July 1999 (at T41). The Applicant had provided no reasonable excuse for refusing or failing to undertake the rehabilitation program. He…

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 Quis and Comcare

Details

AGLC: Quis and Comcare [2001] AATA 263
Case: [2001] AATA 263
Decision Date: 2 April 2001

CaseChat Overview and Summary

In the case of Quis and Comcare, the applicant sought review of a decision to suspend payments under sub-section 37(7) of the Safety Rehabilitation and Compensation Act 1988 (SRC Act). The applicant argued that the decision to suspend payments was not a reviewable decision as it was not associated with a decision to cease liability for incapacity or to refuse compensation for medical or other expenses. The Administrative Appeals Tribunal (AAT) was asked to determine whether it had jurisdiction to review the decision to suspend payments.

The AAT found that there was no reviewable decision in this case, as the operation of sub-section 37(7) did not involve a determination that could be reconsidered under the SRC Act. The Tribunal held that the purported reconsideration of the suspension outcome by a Comcare review officer was a nullity, as it was not authorised by the SRC Act. The Tribunal also rejected the applicant's arguments that the SRC Act should be interpreted beneficially, that the applicant had a reasonable excuse for abandoning the rehabilitation program, and that the Tribunal should be able to inquire into whether certain facts had to exist before sub-section 37(7) could operate.

The AAT held that it had no jurisdiction to review the purported reviewable decision under review, as there was no determination available for reconsideration under section 62 or section 38(4) of the SRC Act. The Tribunal found that the applicant must approach the Federal Court to challenge the decision to suspend payments, as advised by the respondent in T64 on 20 October 1999.

The AAT dismissed the application for review and the applicant's appeal to the Federal Court was also dismissed.

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

In Peisley (supra) and the instant case there was (and is) no reviewable decision. Even if the Tribunal finds that the requirements for the operation of s 37(7) have not been met there is no determination involved in the operation of s 37(7) because of its manner of drafting. There is then no determination available for reconsideration under s 62 or s 38(4) of the SRC Act. The instant case is even clearer than was Peisley (supra). In the instant case the Applicant does not appear from the Section 37 Statement and documents to have sought under s 38(3)(b) a reconsideration of the terms of the determination that he undertake the rehabilitation program. It is not to the point that a Comcare review officer purported to reconsider the suspension outcome but affirmed it on the basis that the Applicant was out of time in seeking the reconsideration. That purported reconsideration was a nullity because it was not authorised by the SRC Act. Although it bears the signs of being a reviewable decision it is not any such thing in law.Conclusion The Tribunal finds that there is no reviewable decision in this matter and that it has no jurisdiction to review the purported reviewable decision under review. This result means that the Tribunal has rejected the arguments put by the Applicant's representative. The Tribunal's views on the Applicant's submissions are set out next. The first point put was that the SRC Act should be interpreted beneficially and the Respondent should act fairly and in good faith, without regard to technicalities. This is superficially attractive and can often be accommodated in decision-making under the Act. However, as the SRC Act is clear as interpreted by the Federal Court, the Tribunal must act according to law. In the Tribunal's view, in the present context there is no room for it to assert jurisdiction where the law says it can not. The second point was that the Applicant had a reasonable excuse for abandoning the rehabilitation program. This may be so. However, the SRC Act does not permit that question to be considered in a reconsideration context. The Applicant must approach the Federal Court, as advised by the Respondent in T64 on 20 October 1999. The third point was that certain facts have, under the SRC Act, to exist before s 37(7) can operate. The Tribunal should be able to inquire into whether these are established. This argument fails for the same reason as did the second argument. The fourth argument was that the courts do not want to be troubled by judicial review applications when merits review exists. The Tribunal understands this. However, in the instant case there is no option of merits review. The fifth point was that the argument by the Respondent that the only decision before the Tribunal was that of 31 October 2000 is incorrect. There is the decision of 5 October 1999 (T62). This was a communication by a Comcare delegate to the Applicant asking him to resume his rehabilitation program or provide reasons for failing to do so. He was given 14 days in which to comply. In the Tribunal's view this was not a decision. It was a notice of intention to invoke s 37(7) at some stage in the future. It stated that this could be prevented if the Applicant provided certain information, which he did not do. The issue is very like that in front of the Tribunal in a different context in Re Lawson and Director-General of Social Services (1980) 3 ALD 58.

Ratio Decidendi

Legal Principle Established

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