Ross Kennedy and Comcare - [2015] AATA 117

[2015] AATA 117

Division GENERAL ADMINISTRATIVE DIVISION

File Numbers

2012/5878 & 2013/0026

Re

Ross Kennedy

APPLICANT

And

Comcare

RESPONDENT

DECISION

Tribunal
Deputy President PE Hack SC

Date 25 February 2015

Date of written reasons 3 March 2015

Place Canberra
The application to adjourn the preliminary hearing set down for 3 March 2015 is refused.

..............................[sgd]..........................................
Deputy President PE Hack SC
PRACTICE & PROCEDURE – proceedings – application for adjournment of preliminary hearing – Applicant given sufficient opportunity to prepare case – Tribunal must use resources efficiently – proceedings to be dealt with in a way that is fair, just, economical, informal and quick – application refused
REASONS FOR DECISION
Deputy President PE Hack SC
3 March 2015

On 25 February 2015 I heard, and refused, an application by Mr Ross Kennedy to adjourn a hearing listed to commence today and said that I would provide my reasons for refusing the request at a later date. What follows are those reasons.
Mr Kennedy was, at material times, employed by the Commonwealth, apparently within the Department of Industry, Innovation, Science, Research and Tertiary Education. In March 2012 he made claims for compensation pursuant to the Safety, Rehabilitation and Compensation Act 1988 (the Act) for a condition he described as adjustment disorder with depression and anxiety, first experienced in March/April 2011 and experienced again in November 2011.
His claims were refused by Comcare by determinations made in July 2012. The decisions to refuse were affirmed on reconsideration by reviewable decisions made on 21 November 2012. Mr Kennedy has sought a review by the Tribunal of those reviewable decisions.
It is material to note that Comcare’s case, as articulated in its Amended Statement of Facts, Issues and Contentions of 10 February 2015, is that Mr Kennedy’s condition does not satisfy the definition of injury in s 5A of the SRC Act however I need not examine that aspect of the case. Comcare also resists the claims on the basis that, by operation of s 7(7) of the SRC Act, Mr Kennedy’s condition is deemed not to be an injury. That is so, on Comcare’s case, because it alleged that Mr Kennedy made wilful and false representations that he did not suffer, or had not previously suffered from that condition.
On 3 February 2015 the Tribunal, constituted by Senior Member McCabe and on the application of Comcare, directed that a preliminary hearing be listed to deal separately with the question of the application of s 7(7) of the SRC Act. Senior Member McCabe provided reasons for making that direction on 5 February 2015.
Subsequently the matter was listed for hearing before me on 3 March 2015. By letter dated 17 February 2015 Mr Kennedy applied to adjourn the hearing scheduled for today. As I have said, on 25 February 2015, after hearing from Mr Kennedy and from Comcare, I refused that application.
Mr Kennedy’s application for an adjournment was set out in his letter to the Tribunal of 17 February 2015. He set out 11…

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.

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Details

Case: [2015] AATA 117
Decision Date: 25 February 2015

CaseChat Overview and Summary

In the Administrative Appeals Tribunal, Ross Kennedy, the applicant, sought an adjournment of a preliminary hearing against Comcare, the respondent. The hearing was scheduled for 3 March 2015, and the application for adjournment was heard by Deputy President PE Hack SC on 25 February 2015. The Tribunal ultimately refused the application, and Deputy President Hack provided written reasons for this decision on 3 March 2015. Mr Kennedy, who was employed by the Commonwealth within the Department of Industry, Innovation, Science, Research and Tertiary Education, made claims for compensation pursuant to the Safety, Rehabilitation and Compensation Act 1988 (the Act). His claims were refused by Comcare, and he sought a review of this decision by the Tribunal. Comcare resisted the claims on the basis that Mr Kennedy's condition did not satisfy the definition of injury in the Act and that he made wilful and false representations.

The legal issues that the court needed to decide included whether Mr Kennedy's criticisms of Senior Member McCabe's reasons for directing that the s 7(7) issue be dealt with as a preliminary issue were relevant to the question of an adjournment. The court also had to consider whether Mr Kennedy's other proceedings in the Federal Court, his need to prepare submissions requesting reconsideration by Comcare of its decision to refuse a further claim, his state of health, and his work and travel commitments warranted consideration. The court reasoned that Mr Kennedy's criticisms of Senior Member McCabe's reasons were irrelevant to the question of an adjournment. Furthermore, the court found that the change in the Federal Court proceedings' directions did not impact Mr Kennedy's capacity to prepare for these proceedings. The court also determined that Mr Kennedy's medical condition and work and travel commitments did not prevent him from comprehending the matters in issue in the s 7(7) hearing. The court concluded that holding the preliminary hearing in early March 2015 was the best way of achieving the Tribunal's statutory obligation to deal with proceedings in a way that is "fair, just, economical, informal and quick." Therefore, the application for adjournment was refused.

In conclusion, the court found that the application for adjournment was not justified, and the preliminary hearing proceeded as scheduled on 3 March 2015. The court's decision was based on the lack of relevance of Mr Kennedy's criticisms of Senior Member McCabe's reasons, the impact of the Federal Court proceedings' directions on Mr Kennedy's capacity to prepare for the hearing, and the lack of evidence that Mr Kennedy's medical condition and work and travel commitments prevented him from comprehending the matters in issue in the s 7(7) hearing. The court emphasized the importance of ensuring that the Tribunal's resources are used efficiently and that matters are dealt with promptly to avoid the fading of recollections.

Orders