Rose and Comcare - [2005] AATA 349

CATCHWORDS – COMPENSATION – jurisdiction – two reviewable decisions – Tribunal already found claim for compensation made in time - whether merits of claim for compensation reviewable – effect of reviewable decision revoking a determination affirmed by earlier reviewable decision – whether Comcare may review a reviewable decision – whether earlier reviewable decision has any ongoing application after revocation of determination – no further jurisdiction.

Administrative Appeals Tribunal Act 1975 ss. 37 and 43AA
Compensation (Commonwealth Government Employees) Act 1971 s. 54
Commonwealth Employees’ Compensation Act 1930 s. 16
Commonwealth Workmen’s Compensation Act 1912
Social Services Act 1947 s. 24A
Safety, Rehabilitation and Compensation Act 1988 ss. 4, 14, 15-22, 23, 25, 27, 29, 30, 31, 33, 53, 54, 60, 61, 62, 64 and 124

Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321

Lees v Comcare (1999) 29 AAR 350; 56 ALD 84

Minister for Immigration and Multicultural Affairs v Bhardwaj (2002) 209 CLR 597

Moggach v Comcare (AAT 10611, 19 December 1995)
Re Bloomfield and Sub-Collector of Customs (ACT) (1981) 4 ALD 204

Re Gee and Director General of Social Services (1981) 3 ALD 132

Re Lockwood and McMurray (party joined) and Commissioner of Superannuation (1990) 22 ALD 57
Re Rebeiro and Comcare (1996) 44 ALD 632

Re Sarina and Secretary, Department of Social Security (1988) 14 ALD 437
Swartz v The Commonwealth of Australia (1959) 102 CLR 340

DECISION AND REASONS FOR DECISION [2005] AATA 349

ADMINISTRATIVE APPEALS TRIBUNAL     )
  )          S2001/367
GENERAL ADMINISTRATIVE DIVISION     )          S2002/83

Re ALFRED ROSE

Applicant

AndCOMCARE

Respondent

DECISION

Tribunal: Deputy President S A Forgie

Date: 20 April 2005

Place: Adelaide

Decision:The Tribunal:

1.decides that the Tribunal does not have jurisdiction to consider further the respondent’s reviewable decisions dated 6 September 2001 and 4 March 2002 or the determinations dated 7 June 2001 and 4 March 2002; and
2.directs that a corrigendum be issued in respect of the decision and reasons for decision given in Rose v Comcare [2003] AATA 1286 deleting the words “7 June 2001” from the decision and from paragraph 62 and substituting for them the words “4 March 2002”.
S A FORGIE
Deputy President

REASONS FOR DECISION

Mr Rose grew up in Kalgoorlie but left in 1952 when he was 15 years of age to join the Commonwealth Railways[1]. He held various positions connected with the service of food and drink. In all, he spent twelve years as a Drinks Steward or Drinks Waiter before becoming, in 1969 or 1970, the Senior Waiter in charge of a Dining Car. In that position, he was responsible for the whole service including the alcohol service on a Dining Car. He was suspended from duty on 12 September 1986 for consuming alcohol on the previous day and was ultimately retired on the grounds of invalidity. Mr Rose lodge a claim for compensation dated 14 November 2000 in relation to alcoholism.

[1] Now known as the Australian National Railways

Comcare made a determination on 7 June…

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 Rose and Comcare

Details

AGLC: Rose and Comcare [2005] AATA 349
Case: [2005] AATA 349
Decision Date: 20 April 2005

CaseChat Overview and Summary

Alfred Rose applied to the Administrative Appeals Tribunal for a review of decisions made by Comcare, an agency of the Commonwealth, concerning his claim for compensation for alcoholism. Comcare had previously refused his claim for compensation, but later reconsidered and revoked that decision, substituting a new decision. The Tribunal had previously decided that Mr Rose's claim was not out of time, but did not consider the merits of his claim. The Tribunal was asked to decide whether it had jurisdiction to consider the merits of Mr Rose's claim or whether it must go back to Comcare to make a determination and so start the process afresh. The Tribunal decided that it had no further jurisdiction to consider Comcare's two reviewable decisions or the remaining operative determination substituted by the second. Mr Rose must go back to Comcare for a further determination on the merits of his claim. The Tribunal also directed that a corrigendum be issued in respect of the decision and reasons for decision given in Rose v Comcare [2003] AATA 1286 deleting the words “7 June 2001” from the decision and from paragraph 62 and substituting for them the words “4 March 2002”.

Orders