FEDERAL COURT OF AUSTRALIA
Telstra Corporation Ltd v Aboushadi [2004] FCA 811
WORKERS COMPENSATION – Commonwealth employees – Appeal from decision of Administrative Appeals Tribunal (‘the Tribunal’) – Assessment of weekly compensation for incapacity for work in respect of an agreed period immediately following retirement of employee – Employee received superannuation pension on retirement – Effect of earlier consent orders made by the Tribunal – Whether later panel of the Tribunal erred in determining a second application for review on the basis that it had the power to substitute itself for decision-maker in relation to the earlier consent orders – Proper construction of terms of earlier consent orders – Whether the period of incapacity referred to in the consent orders should be regarded as an agreed definitive statement as to the total period of incapacity.
Administrative Appeals Tribunal Act 1975 (Cth) ss 43, 44
Safety, Rehabilitation and Compensation Act 1988 (Cth) ss 4, 14, 19, 20Fletcher v Commissioner of Taxation (1988) 19 FCR 442 discussed
Re Control Investment Pty Ltd and Australian Broadcasting Tribunal (No 2) (1981) 3 ALD 88 referred to
Repatriation Commission v O’Brien (1985) 155 CLR 422 appliedTELSTRA CORPORATION LIMITED v YOUSSEF ABOUSHADI
N 167 of 2004WILCOX J
25 JUNE 2004
SYDNEY
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
N 167 of 2004
ON APPEAL FROM THE ADMINISTRATIVE APPEALS TRIBUNAL
BETWEEN:
TELSTRA CORPORATION LIMITED
APPLICANTAND:
YOUSSEF ABOUSHADI
RESPONDENTJUDGE:
WILCOX J
DATE OF ORDER:
25 JUNE 2004
WHERE MADE:
SYDNEY
THE COURT ORDERS THAT:
1.The order made by the Administrative Appeals Tribunal on 19 January 2004 be varied by deleting the words ‘and the time of his retirement coincided in time at 4.51 pm on 13 September 1999’ and substituting the words ‘was immediately after midnight on the evening of 13-14 September 1999, being after his retirement at 4.51 pm on 13 September 1999’.
2.The appeal be otherwise dismissed.
3.The applicant, Telstra Corporation Limited, pay the costs of the respondent, Youssef Aboushadi.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
N 167 of 2004
ON APPEAL FROM THE ADMINISTRATIVE APPEALS TRIBUNAL
BETWEEN:
TELSTRA CORPORATION LIMITED
APPLICANTAND:
YOUSSEF ABOUSHADI
RESPONDENT
JUDGE:
WILCOX J
DATE:
25 JUNE 2004
PLACE:
SYDNEY
REASONS FOR JUDGMENT
WILCOX J:
This is an appeal under s 44 of the Administrative Appeals Tribunal Act 1975 (Cth) (‘the AAT Act’) in relation to an assessment of compensation under the Safety, Rehabilitation and Compensation Act 1988 (Cth) (‘the Act’).
The facts
The respondent to this appeal, Youssef Aboushadi, was employed as a property manager by the applicant, Telstra Corporation Limited (‘Telstra’), from 1977 until 13 September 1999. According to a claim for compensation made by Mr Aboushadi under the Act, an incident occurred on 8 March 1996 as a result of which he sought medical advice and took leave from work. He claimed to suffer from ‘work related…
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- Case
- [2004] FCA 811
- Decision Date
CaseChat Overview and Summary
The legal issues before the court were whether the Tribunal had the power to vary the agreed orders and whether the Tribunal had erred in finding that Mr Aboushadi’s incapacity for work occurred immediately after his retirement. Telstra argued that the Tribunal did not have the authority to vary the agreed orders and that the incapacity for work did not occur immediately after retirement as it was found to have ceased on 14 September 2000, as per the agreed orders. Mr Aboushadi contended that the Tribunal had the power to vary the agreed orders and that the incapacity for work did indeed occur immediately after his retirement, as the agreed orders themselves provided for the cessation of incapacity on 14 September 2000.
The court held that the Tribunal did have the power to vary the agreed orders where necessary to give effect to the compromise between the parties. The court found that the agreed orders did not specify the exact moment of cessation of incapacity for work, and the Tribunal’s finding that incapacity occurred immediately after retirement was supported by the evidence. The court further held that the Tribunal was correct in finding that the incapacity for work occurred immediately after Mr Aboushadi’s retirement, as this was consistent with the cessation date of 14 September 2000 as agreed by the parties.
The appeal was dismissed with costs in favour of the respondent. The court ordered the Tribunal’s decision to be varied to reflect that Mr Aboushadi’s incapacity for work was immediately after his retirement, rather than coinciding with the time of his retirement.
Orders
Orders of the court
1. The order made by the Administrative Appeals Tribunal on 19 January 2004 be varied by deleting the words ‘and the time of his retirement coincided in time at 4.51 pm on 13 September 1999’ and substituting the words ‘was immediately after midnight on the evening of 13-14 September 1999, being after his retirement at 4.51 pm on 13 September 1999’.
2. The appeal be otherwise dismissed.
3. The applicant, Telstra Corporation Limited, pay the costs of the respondent, Youssef Aboushadi.
Background
Background to the litigation
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
Established by: WILCOX J
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