Risson and Comcare - [2004] AATA 233

Administrative

Appeals

Tribunal

DECISION AND REASONS FOR DECISION [2004] AATA 233
ADMINISTRATIVE APPEALS TRIBUNAL Nº V2002/1217
GENERAL ADMINISTRATIVE DIVISION

Re: RONALD GILBERT RISSON
Applicant

And:COMCARE
Respondent

DECISION
Tribunal:       G.D. Friedman, Member
Date:             4 March 2004
Place:            Melbourne
Decision:The Tribunal refuses the respondent’s application under s 42B of the Administrative Appeals Tribunal Act 1975 that the claim be dismissed as frivolous or vexatious.

(sgd) G.D. Friedman
Member

COMPENSATION - jurisdiction - claim for asbestos-related condition - compensation not payable when damages recovered - whether claim frivolous or vexatious
Administrative Appeals Tribunal Act 1975
Safety, Rehabilitation and Compensation Act 1988 ss24, 25, 27, 28, 44, 45, 48
Safety Rehabilitation and Compensation and Other Legislation Amendment Act 2001
Cooper v Comcare (2002) 118 FCR 157
Fisher v Hebburn Limited (1960) 105 CLR 188
Georgiadis v Australian and Overseas Telecommunications Corporation (1994) 119 ALR 629
Lee v Secretary, Department of Social Security (1996) 68 FCR 491
Slattery v Comcare (1996) 70 FCR 131
REASONS FOR DECISION
4 March 2004  G.D. Friedman, Member
1.      This is an application by Ronald Gilbert Risson (the applicant) for review of a decision of a delegate of Comcare (the respondent) dated 17 October 2002. The delegate revoked a determination dated 15 May 2002, as well as determinations dated 30 November 2000, 8 May 2001, 23 October 2001 and 15 February 2002, all dealing with the applicant’s claim for incapacity payments for pleural and pulmonary asbestosis.
2.      At the hearing on 29 September 2003 and 22 January 2004, Mr S. McCredie of counsel represented the applicant and Mr J. Lenczner of counsel represented the respondent.
3. The Tribunal received into evidence the documents lodged under s 37 of the Administrative Appeals Tribunal Act 1975 (the AAT Act) (T1-T40), together with five exhibits (Exhibits R1 to R5) tendered by the respondent.
BACKGROUND
4.      The applicant was born on 29 September 1950. In 1994 he commenced action against the Commonwealth, in the Supreme Court of Victoria, for recovery of damages for injuries sustained as a result of exposure to asbestos, while serving in the Royal Australian Navy (the navy) on HMAS Parramatta and HMAS Melbourne between 1968 and 1972.
5.      In October 1997 the Supreme Court proceedings were settled. Under the terms of the Release the applicant accepted the sum of $100,000 for “…general damages…inclusive of any amounts to be repaid to the Health Insurance Commission”. On 1 June 2000 the applicant lodged a claim for compensation under the Safety, Rehabilitation and Compensation Act 1988 (the Compensation Act), for injury or disease arising from exposure to asbestos during his navy service. On 30 November 2000 the respondent determined that the applicant had contracted benign fibrous pleural plaques - both lungs, a disease to which his military service had contributed. On 8 May 2001 the respondent determined that the applicant was not entitled to incapacity payments for the condition because incapacity was caused by post traumatic stress disorder, which was not compensable.
6.      On 23 October 2001 the determination dated 30…

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 Risson and Comcare

Details

AGLC: Risson and Comcare [2004] AATA 233
Case: [2004] AATA 233
Decision Date: 4 March 2004

CaseChat Overview and Summary

Ronald Gilbert Risson, a former navy serviceman, applied for review of a decision by Comcare to deny him compensation for injuries sustained during his service. The dispute centred on whether the applicant's claim was frivolous or vexatious under the Administrative Appeals Tribunal Act 1975, given that he had previously settled a claim for damages in the Supreme Court of Victoria. Comcare argued that the applicant was not entitled to compensation under the Safety, Rehabilitation and Compensation Act 1988 because he had already recovered damages.

The Tribunal had to determine whether the application should be dismissed as frivolous or vexatious, considering the interplay between the Compensation Act and the Supreme Court settlement. Key issues included the retrospective application of amended provisions in the Compensation Act and the interpretation of terms such as "action for non-economic loss." The Tribunal found that the applicant's claim, though complicated by legislative amendments and previous settlements, warranted a full hearing rather than dismissal on the basis of frivolity or vexatiousness.

The Tribunal concluded that the application should not be dismissed as frivolous or vexatious. It refused Comcare's application to dismiss the claim under section 42B of the AAT Act. The Tribunal emphasized that, in cases not clearly unmeritorious, it was preferable to determine the application on its merits.

Orders