) A 199600449 GENERAL ADMINISTRATIVE DIVISION ) A 200700023
Re:COLIN DUNSTAN
Applicant
And:COMCARE
Respondent
CORRIGENDUM TO DECISION [2012] AATA 567
The Tribunal amends its decision and its reasons for decision of 28 August 2012 as follows:
1.In footnote 304 of its decision it deletes […] and inserts [273]; and
2.In the heading above:
(a)[90] it deletes A. and inserts B.;
(b)[97] it deletes B. and inserts C.;
(c)[98] it deletes C. and inserts D.;
(d)[99] it deletes D. and inserts E.;
(e)[100] it deletes E. and inserts F.;
(f)[101] it deletes F. and inserts G.;
(g)[102] it deletes G. and inserts H.;
(h)[104] it deletes H. and inserts I.;
(i)[105] it deletes I. and inserts J.; and
(j)[111] it deletes J. and inserts K..
S A Forgie Deputy President
ADMINISTRATIVE APPEALS TRIBUNAL )
) A 199600449 GENERAL ADMINISTRATIVE DIVISION ) A 200700023
Re:COLIN DUNSTAN
Applicant
And:COMCARE
Respondent
CORRIGENDUM TO DECISION [2012] AATA 567
The Tribunal amends its decision and its reasons for decision of 28 August 2012 as follows:
3.In paragraph (1)(a) of its decision deletes 2005 and inserts 1995; and
4.In the last sentence of [68] of its reasons deletes 2007 and inserts 1997.
S A Forgie Deputy President
CATCHWORDS – COMPENSATION – whether suffered a disease – nature of disease – whether change in severity and repetition of symptoms consistent with the course of the disease or an aggravation, acceleration or recurrence of the disease – whether disease contributed to in a material degree by employment.
COMPENSATION – exclusionary clause in definition of “injury”– distinction between suffering symptoms as a result of an event specified in exclusionary clause and suffering a disease or its aggravation or acceleration as a result of that event – symptoms suffered but did not aggravate or accelerate underlying disease – exclusionary clause inapplicable.
COMPENSATION – exclusionary provision in s 23(2) - meaning of “imprisoned in connection with his or her conviction of an offence” – distinction between imprisonment and being held in custody – distinction between judicial and administrative acts – date of conviction may be later than date of plea of guilty –period of imprisonment determined by reference to sentence imposed by a court - compensation not payable for period during which imprisoned.
PRACTICE AND PROCEDURE – role of Tribunal on remittal – discrepancy between reasons for judgment and order made on remittal - Tribunal to follow order.
PRACTICE AND PROCEDURE – findings of fact made by earlier Tribunal whose decision subject of earlier appeal – consideration of relevant principles.
[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.
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AGLC
Re Dunstan and Comcare [2012] AATA 567
Case
[2012] AATA 567
Decision Date
CaseChat Overview and Summary
In the matter of Re Dunstan and Comcare, the primary issue was whether the respondent, Dunstan, was entitled to compensation under the Safety, Rehabilitation and Compensation Act 1988 (Cth) for a disease he claimed to have suffered due to his employment. The case was heard by the Administrative Appeals Tribunal (AAT) and subsequently remitted to the Federal Court of Australia. The central legal issues involved the interpretation of the exclusionary clause in the definition of "injury," the distinction between imprisonment and being held in custody, and the correct application of the Tribunal’s findings of fact.
The court examined whether the exclusionary clause in section 23(2) of the Act applied to the respondent’s case. The clause excluded compensation for injuries that were "imprisoned in connection with his or her conviction of an offence." The court had to determine the precise meaning of "imprisoned" and whether it referred only to judicial acts of imprisonment or also included administrative detention. The court held that the clause did not apply as the respondent had not suffered an aggravation or acceleration of his underlying disease due to his employment. It was further determined that the distinction between imprisonment and being held in custody was significant, with imprisonment being a judicial act and custody potentially administrative.
The court ruled that the Tribunal should follow the order made upon remittal, despite a discrepancy between the reasons for the judgment and the order itself. The court also considered the role of the Tribunal on remittal and the importance of adhering to the Tribunal’s findings of fact when these findings were the subject of an earlier appeal. Ultimately, the court concluded that the Tribunal's findings of fact should be respected unless there was a clear error in the process of making those findings.
The final orders of the court were that the Tribunal’s decision on remittal should be followed, and that the respondent was not entitled to compensation for the period during which he was imprisoned, as this period was governed by the exclusionary clause in section 23(2) of the Act.