Ryan v Comcare

[2005] FMCA 355

FEDERAL MAGISTRATES COURT OF AUSTRALIA

RYAN v COMCARE [2005] FMCA 355

ADMINISTRATIVE LAW – Appeal from Administrative Appeals Tribunal – finding by Tribunal on medical evidence – appeal against Tribunal's findings – findings all on questions of fact – no error of law in findings on questions of fact – whether applicant misled about procedures at hearing – whether breach of natural justice – whether conduct of applicant consistent with claim of being misled – error of law in affirming decision of authority that not liable in the future – error not affecting decision – whether orders should be made correcting error.

Administrative Appeals Tribunal Act 1975, s.44
Safety Rehabilitation and Compensation Act 1988 (Cth), ss.14, 16, 19

Clements v Independent Indigenous Advisory Committee (2003) 131 FCR 28
Re: Refugee Tribunal; Ex Parte Aala (2000) 204 CLR 82
Rossilo v Telstra Corporation Ltd [2003] FCA 1628], 77 ALD 396
Australian Postal Corporation v Oudyn (2003) 73 ALD 659
Liu and Comcare [2004] AATA 617, 79 ALD 119

Applicant: KERRYN RYAN

Respondent: COMCARE

File Number: MLG 564 of 2004

Judgment of: Phipps FM

Hearing date: 21 March 2005

Date of Last Submission: 21 March 2005

Delivered at: Melbourne

Delivered on: 7 April 2005

REPRESENTATION

Counsel for the Applicant:

Solicitors for the Applicant:

Nil

Nil

Counsel for the Respondent: Ms McMahon

Solicitors for the Respondent: Australian Government Solicitor

ORDERS

1. The applicant's appeal filed 1 March 2004 is dismissed.

2. That part of the decision of the Administrative Appeals Tribunal dated 6 February 2004 which affirmed the reviewable decision of the respondent dated 9 November 2001 affirming the determination dated 21 August 2001 is set aside.

3. The decision is varied so as to determine that in the period 22 August 2001 to 6 February 2004, the applicant had no entitlement to compensation in respect of the claim for aggravation of sinusitis sustained on 6 March 2000 under Section 19 or Section 16 of the Safety, Rehabilitation and Compensation Act 1988.

4. Otherwise, the reviewable decision dated 19 November 2001 in respect of the determination dated 20 September 2001 is affirmed.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
MELBOURNE

MLG564 of 2004

KERRYN RYAN

Applicant

And

COMCARE

Respondent

REASONS FOR JUDGMENT

1. This is an appeal pursuant to s.44 of the Administrative Appeals Tribunal Act 1975 ("AAT Act") from a decision of the Administrative Appeals Tribunal delivered on 6 February 2004.

2. The Tribunal affirmed two decisions of the respondent dated

   
   

   19 November 2001 which affirmed determinations made by the respondent on 21 August 2001 and 20 September 2001.  These determinations related to claims made by the applicant under the Safety Rehabilitation and Compensation Act 1988 (Cth) (“the SRC Act").

3. The applicant filed a notice of appeal on 1 March 2004 in the Federal Court of Australia.  By order made on 10 May 2004, Crennan J. transferred the appeal to the Federal Magistrates Court.

4. The applicant commenced work in the Family Court of Australia in 1995.  She lodged two claims for compensation.…