Thomson and Comcare (Compensation)

Case [2017] AATA 34

Thomson and Comcare (Compensation) [2017] AATA 34 (18 January 2017)

Division:GENERAL DIVISION

File Number(s):      2015/0095

Re:Brendan Thomson

APPLICANT

AndComcare

RESPONDENT

DECISION

Tribunal:Ms N Isenberg, Senior Member

Date:18 January 2017

Place:Sydney

Following the Respondent’s own-motion reconsideration of 7 June 2016 under s 62 of the Safety, Rehabilitation and Compensation Act 1988 (Cth), the present proceedings are rendered abortive. The proceedings are dismissed pursuant to s 42B of the Administrative Appeals Tribunal Act 1975 (Cth).

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.........................[sgd]...............................................

Ms N Isenberg, Senior Member

CATCHWORDS

PRACTICE AND PROCEDURE – own motion reconsideration – compensation – normal weekly earnings – deployment payments and location-specific allowances - reconsideration issued during proceedings– whether reconsideration could be made to determine quantum of compensation– whether proceedings rendered abortive – whether the respondent can undertake a reconsideration in late stages of proceedings – model litigant principles – effect of the reconsideration – whether the tribunal can provide any further relief – method of calculating normal weekly earnings – application for review dismissed

LEGISLATION

Administrative Appeals Tribunal Act 1975 (Cth) s 42B

Safety, Rehabilitation and Compensation Act 1988 (Cth) ss 8, 14, 19(5), 60(1), 62

CASES

Bortolazzo v Comcare (1997) 75 FCR 385

Bray and Comcare [2012] AATA 522

Comcare v Simmons (2014) 220 FCR 102

John Holland Group Pty Ltd v Robertson [2010] FCAFC 88; 185 FCR 566

Melis and Australian Postal Corporation [2014] AATA 58

Ragg and Military Rehabilitation Compensation Commissioner (2012) AATA 18

Re ACT Department of Health and Nikolovski and Comcare (1996) 42 ALD 599

Re Coyne and Comcare  (1995) 37 ALD 553

Re Fitzpatrick and Comcare (1991) 23 ALD 702

Re Frazzetto and Australian and Overseas Telecommunications Corporation (1994) 19 AAR 174

Re Hewett and Australian Postal Corporation [1993] AATA 696

Re Moggach and Comcare [1995] AATA 379

Re Lavery and Registrar, Supreme Court of Queensland (No.2)(1996) 23 AAR 52

Re Ribeiro and Comcare (1996) 44 ALD 632

Sutton and Comcare [1006] AATA 168

Telstra Corporation Ltd v Hannaford [2006] FCAFC 97

REASONS FOR DECISION

Ms N Isenberg, Senior Member

18 January 2017

Background

  1. Since August 2007 the Applicant has been permanently employed by the Australian Federal Police (‘AFP’), starting in the Operational Response Group in the International Deployment Group (‘IDG’).  In May 2010 he became a Team Leader.  He has worked in a number of different roles.

  2. For the period 7 November 2011 to 6 November 2013 the Applicant was assigned to the Regional Assistance Mission to Solomon Islands (‘RAMSI’), which role had the benefit of various deployment allowances. However, on 27 January 2012 he was repatriated to Australia for medical reasons. He lodged a compensation claim for an adjustment disorder with mixed depressed and anxious mood, deemed to have been sustained on 26 January 2012, which was accepted pursuant to s 14 of the Safety, Rehabilitation and Compensation Act 1988 (Cth) (‘SRC Act’). Subsequently, the Applicant claimed compensation for an aggravation of that condition. That claim was accepted and the aggravation was deemed to have been sustained on…

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AGLC
Thomson and Comcare (Compensation) [2017] AATA 34
Case
[2017] AATA 34
Decision Date

CaseChat Overview and Summary

This matter concerned an application for review before the Administrative Appeals Tribunal, brought by the Applicant against Comcare (the Respondent). The dispute centred on the calculation of the Applicant's Normal Weekly Earnings (NWE) for the purposes of compensation under the Safety, Rehabilitation and Compensation Act 1988 (Cth) (SRC Act). The Applicant had lodged a claim for an adjustment disorder sustained while deployed on a mission, which was accepted, and subsequently claimed for an aggravation of that condition. The decision under review affirmed a determination of the Applicant's NWE for specific periods, which the Applicant sought to have reviewed.

The primary legal issues before the Tribunal were whether the proceedings had been rendered abortive due to an "own motion" reconsideration undertaken by the Respondent, and if not, what the correct NWE payable to the Applicant was from 13 August 2013. The Respondent had, during the course of the review proceedings, conducted a reconsideration under s 62(1) of the SRC Act, which resulted in a determination that the Applicant's NWE from 6 November 2013 onwards was to be the statutory maximum weekly amount. The Applicant contended that this reconsideration was ultra vires, arguing that the delegate only had the authority to reconsider a determination of NWE under s 8 of the SRC Act and that the reconsideration was limited to affirming, revoking, or varying that determination, not issuing a new determination for "arbitrary compensation payments" under s 19.

The Tribunal considered the scope of s 62 of the SRC Act, which permits a determining authority to reconsider a determination on its own motion, even if proceedings have been instituted or completed. The Tribunal found that the section was "extraordinarily broad" and allowed for progressive and evolving decision-making, consistent with the statutory scheme of ongoing review and adjustment of entitlements. The Tribunal noted that the Applicant's submissions, and those of the Respondent, did not address the operation of s 19(5) of the SRC Act, which was relevant to the calculation of the statutory maximum. The Tribunal's reasoning indicated that the reconsideration was within the Respondent's power, and the subsequent submissions focused on the quantum of entitlement rather than the validity of the reconsideration itself.

The Tribunal dismissed the Applicant's application for review. The reconsideration undertaken by the Respondent was found to be within the powers conferred by s 62 of the SRC Act, and the proceedings were not rendered abortive. The Tribunal's decision implies that the Applicant's entitlement was capped at the statutory maximum, and the focus shifted to the calculation of that maximum, which was not fully addressed by the parties in their submissions to the Tribunal.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

For the period 7 November 2011 to 6 November 2013 the Applicant was assigned to the Regional Assistance Mission to Solomon Islands (‘RAMSI’), which role had the benefit of various deployment allowances. However, on 27 January 2012 he was repatriated to Australia for medical reasons. He lodged a compensation claim for an adjustment disorder with mixed depressed and anxious mood, deemed to have been sustained on 26 January 2012, which was accepted pursuant to s 14 of the Safety, Rehabilitation and Compensation Act 1988 (Cth) (‘SRC Act’). Subsequently, the Applicant claimed compensation for an aggravation of that condition. That claim was accepted and the aggravation was deemed to have been sustained on 23 April 2013. Decision under review The decision before the Tribunal was a reviewable decision dated 18 November 2014 pursuant to the SRC Act which affirmed a determination dated 20 August 2014. That decision determined the Applicant’s Normal Weekly Earnings (‘NWE’) as follows:·13 August 2013 to 5 November 2013 - $2,963.10; ·6 November 2013 to 7 March 2014 - $1,795.82; and·8 March 2014 onwards - $1,858.68ISSUE The issue to be decided is: (a)Whether the present proceedings have been rendered abortive because of the reconsideration of 7 June 2016? (b)If not, what is the NWE payable to the Applicant from 13 August 2013?Progress of the matter The matter was initially heard over 2 days in January 2016, in which the Applicant gave extensive evidence, as did Mr S Irving, who had been the Applicant’s immediate supervisor in 2010 and who was also deployed to RAMSI at about the same time as the Applicant, Mr F Prendergast, who was the Assistant Commissioner of the AFP at the relevant time, and Mr D Turner, from the AFP’s HR area. The matter was listed for a resumed hearing on 2 June 2016. At the outset, counsel for the Respondent, who had previously appeared at the earlier hearing, informed me that the Respondent had, on 1 June 2016, undertaken an ‘own motion’ review under s 62(1) of the SRC Act. That review was subsequently amended – although strictly, a further own motion review – on 7 June 2016. The latter reconsideration decided that from 6 November 2013 onwards, the amount payable to the Applicant was to be the maximum weekly amount payable under s 19(5) of the SRC Act – an amount less than $3,681.43 which amount the Respondent wrote, the Applicant would have been earning while on deployment. As to the period from 13 August 2013 to 5 November 2013, the review officer wrote:Your NWE prior to 6 November 2013 had been determined to be $3,681.41 by reference to the amount you would have been earning while on the deployment. The result of the reconsideration, the Respondent submitted at the resumed hearing, was that the application for review had been rendered an abuse of the Tribunal’s process in that there remained nothing more that the Applicant could achieve before the Tribunal because the delegate had determined that the amount payable to the Applicant was the maximum weekly amount available under the SRC Act. The Respondent succinctly described the effect of the reconsideration as, in effect:No matter what the Tribunal might find about the Applicant’s NWE, the Applicant can never receive more than the statutory maximum, and this is the amount the Respondent says is payable to him.

Ratio Decidendi

Legal Principle Established

The Respondent provided very detailed written submissions, addressing not the issue of whether the proceedings had been rendered abortive, but in support of its new position, offering the basis for its calculations as to the Applicant’s entitlement. The Applicant, similarly, made detailed submissions, to which the Respondent replied. None of the submissions addressed the operation of s 19(5) of the SRC Act.CONSIDERATIONCan the Respondent undertake a reconsideration at a late stage of the matter? Section 62 of the SRC Act provides in relation to reconsideration of determinations that: (1) A determining authority may, on its own motion: (a) reconsider a determination made by it; or…whether or not a proceeding has been instituted or completed under this Part in respect of a reviewable decision made in relation to that determination.…(5) Where a person reconsiders a determination, the person may make a decision affirming or revoking the determination or varying the determination in such manner as the person thinks fit. (Tribunal’s emphasis) The Applicant submitted that, in respect of the reconsideration decision made by the delegate pursuant to s 62(1) of the SRC Act dated 7 June 2016 is ultra vires. The Applicant referred to the decision of Deputy President Hotop in Melis and Australian Postal Corporation [2014] AATA 58 at [31]–[32]: 31The power conferred by s 62 of the SRC Act on a “determining authority” is the power to reconsider a “determination” made by it or to cause such a “determination” to be reconsidered by an appropriate delegate. Plainly, the power conferred by s 62 of the SRC Act relates only to the reconsideration of a “determination”.32The term “determination” is defined exhaustively in s 60(1) of the SRC Act to mean:“a determination, decision or requirement made under section 8, .., 19, …, under paragraph 114B(5)(a) or under Division 3 of Part X.” The Applicant contended that the determination that falls within s 60(1) SRC Act is the determination made under s 8 of the SRC Act, that is, the determination of NWE. Therefore, he contended, the delegate only had authority to reconsider the determination relative to s 8. It would reasonably follow, he submitted, that the reconsideration must be limited to authority pursuant to s 62(5), namely, affirming, revoking or varying the determination. He submitted that s 62 does not confer upon the delegate the power to issue a determination granting ‘arbitrary compensation payments’ under s 19 of the SRC Act. There is nothing in Melis, nor any of the other cases I reviewed (see: Re Coyne and Comcare (1995) 37 ALD 553; Bray and Comcare [2012] AATA 522) that would detract from the plain reading of s 62 of the SRC Act. The section is extraordinarily broad, specifically permitting a reconsideration of a determination even if review proceedings have been commenced or, for that matter, completed. As the Federal Court (per Conti J, with whom Heerey and Dowsett JJ agreed) explained in Telstra Corporation Ltd v Hannaford [2006] FCAFC 87 at [57]:The statutory scheme [of the SRC Act] allows for progressive and evolving decision-making giving effect to the provisions of ongoing review of relief or entitlements in the nature of course of workers compensation, being review which allows for adjustment or change in the light of events and circumstances which may subsequently happen.