Simeoni and Comcare (Compensation) - [2022] AATA 2856

Simeoni and Comcare (Compensation) [2022] AATA 2856 (1 September 2022)
Division:GENERAL DIVISION
File Number(s): 2018/4320, 2018/4525 & 2020/6754
Re:John Simeoni
APPLICANT

AndComcare
RESPONDENT

Decision
Tribunal:Deputy President B W Rayment OAM QC
Date:1 September 2022
Place:Sydney

................................[SGD]........................................
Deputy President B W Rayment OAM QC
Catchwords
COMPENSATION – whether the Applicant is entitled to compensation under the Safety, Rehabilitation and Compensation Act 1988 (Cth) (the Act) – preliminary jurisdictional question concerning the operation of the Act and the Compensation (Commonwealth Government Employees) Act 1971 (Cth) – relevant law and material considered – decisions under review set aside and substituted.
Legislation
Compensation (Commonwealth Government Employees) Act 1971 (Cth)
Safety, Rehabilitation and Compensation Act 1988 (Cth)
Cases
Ascic v Comcare [2021] FCA 1498
Brennan v Comcare (1994) 50 FCR 555
Comcare v Pantic (2012) 203 FCR 83
Hoyle v Telstra Corporation Ltd (1997) 75 FCR 390
Re Morley and Comcare (1996) 40 ALD 725
REASONS FOR DECISION
Deputy President B W Rayment OAM QC
1 September 2022

The applicant seeks by this review to challenge several reviewable decisions of Comcare. The reviewable decisions were two of 27 July 2018 and one of 30 October 2020.
The reviewable decisions of 27 July 2018 affirmed two original decisions of 19 June 2018, which had decided that Comcare had no present liability for incapacity payments under s.19 of the Safety, Rehabilitation and Compensation Act 1988 (Cth) (the 1988 Act) as from 27 March 1992, and the other determination was that as from 19 June 2018 Comcare had no present liability for medical expenses under s.16 of the 1988 Act or for incapacity payments under s.19 of the 1988 Act also as from 19 June 208.
The reviewable decision of 30 October 2020 related to a claim made on 18 June 2020 for secondary right knee osteoarthritis. Comcare rejected that claim on 24 September 2020 and on 30 October 2020, Comcare made a reviewable decision affirming the decision of 24 September 2020.
The review of the earlier reviewable decisions first came before the Tribunal in late 2019 but was adjourned after Ms Wright, for the respondent, took a threshold point suggesting that the claims for incapacity payments and medical expenses were barred by provisions of the Compensation (Commonwealth Government Employees) Act 1971 (Cth) (the 1971 Act). That suggestion was not made in the earlier reviewable decisions, and was not made in the respondent’s statement of facts issues and contentions. Her oral submission was framed as a submission that the Tribunal had no jurisdiction to entertain the review.
On 10 March 2020, the respondent filed written submissions dated 6 March 2020 dealing with the allegations relying on the 1971 Act, and disputing the jurisdiction of the Tribunal to review the earlier reviewable decision. The submissions refer to ss. 39(14), 45(9), 46(5) and 50 of the 1971 Act and to the decision of the Full Court of the Federal Court in Hoyle v Telstra Corporation Ltd (1997) 75 FCR 390 (Hoyle).

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 Simeoni and Comcare (Compensation)

Details

AGLC: Simeoni and Comcare (Compensation) [2022] AATA 2856
Case: [2022] AATA 2856
Decision Date: 1 September 2022

CaseChat Overview and Summary

The Administrative Appeals Tribunal (AAT) considered the entitlement of the applicant, Mr. Simeoni, to compensation under the *Safety, Rehabilitation and Compensation Act 1988* (Cth) (the Act). The central dispute revolved around a preliminary jurisdictional question concerning the application of the Act in light of the *Compensation (Commonwealth Government Employees) Act 1971* (Cth).

The Tribunal was required to determine whether the applicant was entitled to compensation under the *Safety, Rehabilitation and Compensation Act 1988* (Cth), specifically addressing the jurisdictional implications arising from the operation of the *Compensation (Commonwealth Government Employees) Act 1971* (Cth).

The Tribunal considered the relevant law and material pertaining to these legislative provisions. Following its review, the Tribunal set aside the decisions under review and substituted its own decisions.

Orders