Re Peisley and Comcare - [2001] AATA 121

ORAL DECISION AND WRITTEN REASONS FOR ORAL DECISION [2001] AATA 121

ADMINISTRATIVE APPEALS TRIBUNAL )

) No A2000/97

GENERAL ADMINISTRATIVE DIVISION       )
           Re      JOHN PHILLIP PEISLEY
  Applicant
           And    COMCARE
  Respondent

ORAL DECISION

Tribunal Senior Member J.A. Kiosoglous MBE

Date8 February 2001
PlaceCanberra

Decision      The Tribunal has no jurisdiction to review the matter of the substantive application.
  (Signed)
  J.A. KIOSOGLOUS
  (Senior Member)
CATCHWORDS
PRACTICE AND PROCEDURE – Tribunal's jurisdiction to review sub-section 37(9) – whether reconsideration decision in substantive rehabilitation program dispute – documents considered – request for reconsideration found – no reconsideration decision as at time of suspension – no jurisdiction – whether failure to make a decision can constitute a reviewable decision – note as to costs
COMPENSATION – rehabilitation program - suspension of entitlements pursuant to sub-section 37(7) of Safety Rehabilitation and Compensation Act 1988
Safety Rehabilitation and Compensation Act 1988 ss.37, 38, 60, 62
Trajkovski v Telstra Corporation Ltd (1998) 81 FCR 459
Chowdhary v Bayne [1999] FCA 41
Alaa Saraya v Civil Aviation Safety Authority, Federal Court, 1 May 1997, 364/1997
Re Taxation Appeals No QT95/4 (1995) 95 ATC 152
Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321
Re Associated Products Pty Ltd and Australian Trade Commission (22 August 1997, AAT 12139)

WRITTEN REASONS FOR ORAL DECISION

8 February 2001 Senior Member J.A. Kiosoglous MBE

The Tribunal gave an oral decision at the conclusion of the hearing of this matter, and subsequently received a written request from the respondent for written reasons for that decision. Accordingly, the Tribunal provides the following written reasons for decision.

This matter was brought before the Tribunal prior to consideration of the substantive issues, in order for the Tribunal to consider whether or not it, in fact, has jurisdiction to consider the substantive application.

The substantial application before the Tribunal concerns a rehabilitation program that was put in place in respect of Mr John Phillip Peisley (the applicant) and, more particularly, whether or not the applicant had a reasonable excuse in failing to comply with the rehabilitation program for the purposes of sub-section 37(7) of the Safety, Rehabilitation and Compensation Act 1988 (the Act). The jurisdictional issue before the Tribunal turns upon the question of whether or not there is a reviewable decision before the Tribunal.

The Tribunal had before it the documents lodged pursuant to s.37 of the Administrative Appeals Tribunal Act 1975 (T1-T135), together with two exhibits, one lodged by the applicant (Exhibit A1) and one lodged by the respondent (Exhibit R1). The applicant was represented by Ms L. Gabriel and the respondent was represented by Mr B. Dubé, both of counsel.

The jurisdictional issues surrounding sub-section 37(7) of the Act have been argued before the Federal Court in two recent decisions, Trajkovski v Telstra Corporation Ltd (1998) 81 FCR 459 and Chowdhary v Bayne [1999] FCA 41. The parties in the present application were in agreement as to the interpretation of the law in this regard. Finn J sets out the circumstances…

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 Re Peisley and Comcare

Details

AGLC: Re Peisley and Comcare [2001] AATA 121
Case: [2001] AATA 121
Decision Date: 8 February 2001

CaseChat Overview and Summary

This case involved the applicant, John Phillip Peisley, and the respondent, Comcare. Peisley sought to challenge the suspension of his compensation entitlements under the Safety, Rehabilitation and Compensation Act 1988. The dispute centred on whether the Administrative Appeals Tribunal (AAT) had jurisdiction to review the decision regarding the suspension of Peisley's entitlements due to his failure to comply with a rehabilitation program.

The primary legal issue the AAT had to decide was whether there was a reviewable decision in existence that would allow the Tribunal to review the suspension of Peisley's compensation entitlements under section 37(7) of the Act. This hinged on whether the correspondence from Comcare could be characterised as a reconsideration decision as required by section 38 of the Administrative Appeals Tribunal Act 1975. The AAT also had to determine if the failure to make a reconsideration decision could be considered a reviewable decision under the Act.

The AAT found that there was no reviewable decision before it at the time Peisley's entitlements were suspended. Although Peisley had requested reconsideration of his rehabilitation program, Comcare did not address this request in its correspondence dated 4 January 2000. Instead, the letter focused on the suspension of entitlements due to Peisley's failure to provide a reasonable excuse for not participating in the rehabilitation program. The AAT concluded that this letter did not constitute a reconsideration decision as required by section 38 of the Act. The Tribunal also found that the failure to make a reconsideration decision did not constitute a reviewable decision under the Act. Consequently, the AAT dismissed the application for lack of jurisdiction.

In conclusion, the AAT dismissed Peisley's application for review of the suspension of his compensation entitlements due to the absence of a reviewable decision. The Tribunal noted that while Peisley had valid grounds for his application, the lack of clarity in the documents and the failure to provide proper reconsideration left the Tribunal without the necessary jurisdiction to proceed with the substantive application.

Orders