Rose and Comcare

Case [2017] AATA 790

Rose and Comcare [2017] AATA 790 (30 May 2017)

Division:GENERAL DIVISION

File Number(s):      2017/1609

Re:Nancy Rose

APPLICANT

AndComcare

RESPONDENT

DECISION

Tribunal:Mr S. Webb, Member

Date:30 May 2017

Place:Canberra

Operation and implementation of Comcare's 15 March 2017 reviewable decision in application 2017/1609 is stayed for the duration of these proceedings, subject to further order.

.............................[sgd]...........................................

Mr S. Webb, Member

PRACTICE AND PROCEDURE – compensation – reconsideration decision overturning original acceptance of liability for injury – request for stay – effect of decision – utility of staying implementation – relevant factors – prospects of success - interests of those affected - consequences for the parties – effect on the application for review – stay granted

Administrative Appeals Tribunal Act 1975, s 41, 43

Safety, Rehabilitation and Compensation Act 1988, s 4, 7, 14, 16, 19, 60, 62, 69, 72, 114

Australian Pesticides and Veterinary Medicines Authority v Administrative Appeals Tribunal [2008] FCA 1393
Australian Postal Corporation v Oudyn [2013] FCA 318
Canute v Comcare [2006] HCA 47 at [8]
Cheung v Administrative Appeals Tribunal [2009] FCA 241
Duong v Australian Postal Corporation [2005] FCA 991
Ertan v Hurford [1986] FCA 131
Hanna v Australian Postal Corporation [1990] FCA 153
Kennedy v Administrative Appeals Tribunal [2008] FCAFC 124 at [22]
Lees v Comcare [1999] FCA 753
Minister for Immigration v Ahmed [2005] FCAFC 58
Morales v Minister for Immigration and Multicultural Affairs (1998) 82 FCR 374
Re Rose and Comcare [2013] AATA 735
Re Liu and Comcare [2004] AATA 617 at [3]
Re Scott and Australian Securities and Investments Commission [2009] AATA 798 at [4]; Re Wirski & Comcare [2016] AATA 461
Re Scott & Australian Securities Investment Commission (2009) AATA 798
Telstra Corporation Ltd v Hannaford [2006] FCAFC 87

REASONS FOR DECISION

Mr S. Webb, Member

30 May 2017

  1. This case has a rather long and somewhat convoluted procedural history stemming from a compensation claim Nancy Rose made in 2008 in respect of a psychiatric illness. Initially, Comcare accepted that Ms Rose had a compensable injury and paid her amounts of compensation.

  2. Subsequently, Comcare reversed its acceptance and, in a reviewable decision, revoked the original determination to accept liability for an injury. Ms Rose applied for review. In the course of the resulting proceedings in 2013, the parties agreed upon terms that were given effect by consent decisions of the Tribunal.

  3. By these decisions, Comcare was liable to pay compensation to Ms Rose for two injuries in the form of –

    (a)“generalised anxiety disorder sustained on 8 December 2006”[1] (application 2013/4613); and

    (b)“aggravation of fibromyalgia sustained on 5 May 2007”[2] (application 2013/1371).

    [1] T3.

    [2] T4.

  4. Consequently, Comcare paid further amounts of compensation to Ms Rose in respect of these injuries.

  5. Presently, Ms Rose has applied for review of Comcare’s reviewable decision to limit payment of compensation for psychological treatment (application 2016/1182). The application was listed for hearing.

  6. Prior to the hearing, on 15 March 2017, Comcare issued a further reviewable decision revoking…

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AGLC
Rose and Comcare [2017] AATA 790
Case
[2017] AATA 790
Decision Date

CaseChat Overview and Summary

This matter concerned an appeal before Mr S. Webb, Member, of the Administrative Appeals Tribunal. The dispute involved Ms Rose and Comcare, with the core issue revolving around the nature and effect of decisions made by the Tribunal in relation to Ms Rose's claim for compensation under the *Safety, Rehabilitation and Compensation Act 1988* (SRC Act).

The legal issues before the Tribunal were whether a "determination" under the SRC Act included decisions made under sections 62 or 64, and how the Tribunal's decision on review, particularly consent decisions made in substitution of earlier reviewable decisions, should be treated for the purposes of the SRC Act. Specifically, the Tribunal had to consider the interplay between section 60 of the SRC Act and section 43(6) of the *Administrative Appeals Tribunal Act 1975* (AAT Act), especially in circumstances where a primary determination was revoked on reconsideration and subsequently substituted by a Tribunal decision.

The Member noted that while section 60(1) of the SRC Act defines "determination" in a way that might exclude decisions under sections 62 or 64, it also adopts the meaning of "decision" from the AAT Act. This meant the Tribunal's decision on review was to be considered a "decision" for the SRC Act. Section 43(6) of the AAT Act states that a decision varied or substituted by the Tribunal is, for all purposes other than further review or appeal, deemed to be the decision of the original decision-maker and takes effect from the original decision's commencement date. The Member observed that in Ms Rose's case, the Tribunal's consent decisions on 23 January 2014 replaced reviewable decisions made on 21 March 2013 and 12 September 2013. The first reviewable decision affirmed a denial of liability, while the second revoked the primary determination and found a psychological ailment contributed to by employment, but excluded by other provisions. The Member highlighted a point for further consideration: whether the Tribunal's consent decision, which expressly set aside a revocation decision and made a fresh decision, replaced the original determination or merely the revocation decision. This question, concerning the scope of section 60 of the SRC Act and the power of Comcare to reconsider under section 62, was reserved for further argument.

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

The word ‘determination’ is given meaning by s 60(1), and it does not include a decision made under s 62 or, on review by the Tribunal, under s 64. Nevertheless, s 60(1) gives the word ‘decision’ the same meaning as under the Administrative Appeals Tribunal Act 1975 (the AAT Act). From this it follows that the Tribunal’s decision on review is to be taken as a ‘decision’ for the purposes of the SRC Act. This is synchronous with the operation of s 43(6) of the AAT Act, which provides –(6) A decision of a person as varied by the Tribunal, or a decision made by the Tribunal in substitution for the decision of a person, shall, for all purposes (other than the purposes of applications to the Tribunal for a review or of appeals in accordance with section 44), be deemed to be a decision of that person and, upon the coming into operation of the decision of the Tribunal, unless the Tribunal otherwise orders, has effect, or shall be deemed to have had effect, on and from the day on which the decision under review has or had effect. [Emphasis added] Thus, in Ms Rose’s case, the consent decisions the Tribunal made on 23 January 2014, were made in substitution of the reviewable decisions that were set aside. In the first of these reviewable decisions, made on 21 March 2013, the decision maker said “I have decided to affirm the determination of 13 February 2013 [sic – that] denied liability for chronic pain syndrome under s 14 of the SRC Act”.[5] The second reviewable decision was made on 12 September 2013. The decision maker said –“I revoke the initial determination dated 29 November 2008.In view of the evidence, I am satisfied that you sustained a psychological ailment, which was significantly contributed to by you employment, However, I find that the circumstances of your claim fall within the exclusionary provisions of the Act.”[6][5] AT46 folio 268.[6] AT52 folio 298. Thus, as can be seen, the first reviewable decision left in place the primary determination, whereas the second reviewable decision revoked the primary determination. There is a question, which has not yet be argued, in respect of the second reviewable decision whether the Tribunal’s consent decision replaces the original determination that was revoked on reconsideration, or simply replaces the reviewable decision by which it was revoked – the consent decision expressly sets aside the revocation decision and makes a fresh decision in place of it, rather than restoring the original determination. The sharp point is whether the consent decision is within the scope of s 60 of the SRC Act and, if not, whether s 62 gives Comcare power to reconsider it. I will go no further with this than noting that the clear statement of binding principle Davies J set out in Hanna v Australian Postal Corporation[7] arose in circumstances in which the Tribunal had varied a primary determination, on review. The extent to which this principle applies and the way in which s 43(6) of the AAT Act operates with respect to s 60 of the SRC Act in circumstances where a primary determination has been revoked on reconsideration and the revocation decision is substituted by a decision of the Tribunal, is a matter for further consideration when construing s 62 of the SRC Act and s 43 of the AAT Act. [7] [1990] FCA 153 at [9] - [11].

Ratio Decidendi

Legal Principle Established

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