Vasquez and Comcare (Compensation)

[2020] AATA 5691

Vasquez and Comcare (Compensation) [2020] AATA 5691 (17 November 2020)

Division:GENERAL DIVISION

File Number:         2019/4354

Re:Stephen Vasquez

APPLICANT

AndComcare

RESPONDENT

DECISION

Tribunal:Senior Member M Griffin QC

Date:17 November 2020

Date of written reasons:        8 February 2021

Place:Sydney

For the reasons given orally at the conclusion of the adjourned hearing in this matter, the Tribunal has jurisdiction to consider material subject of a previous separate application for review by the Tribunal (notwithstanding that such application was discontinued and dismissed).

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

Senior Member M Griffin QC

CATCHWORDS

ADMINISTRATIVE LAW – jurisdiction of the Tribunal – whether Tribunal can have regard to submissions or evidence concerning an injury subject of a previous claim for workers’ compensation that was previously reviewed by the Tribunal – where that previous review was discontinued by the applicant and subsequently dismissed – Tribunal has jurisdiction

LEGISLATION

Administrative Appeals Tribunal Act 1975(Cth) s 42A

WRITTEN REASONS FOR ORAL DECISION

Senior Member M Griffin QC

8 February 2021

1. A question has arisen in this matter as to the Tribunal's jurisdiction to consider its part in the material events which occurred in 2014, leading to what the Applicant says is a diagnosable mental injury due to work events that were not reasonable administrative actions.

2. There is evidence in the material before the Tribunal of diagnosable mental illness in October 2014. The question of whether that is accepted or not is quite another issue. The Tribunal is asked by the Respondent to exclude this evidence from the material considerations of the issue, although the evidence in question from 2014, which I will recall in that way is regarded by the Respondent as being admissible as background. That evidence is said by the Respondent to be of early events and diagnoses, which formed part of an earlier original claim, which was made by the Applicant on 7 November 2014 and was dismissed by a delegate of the Respondent.

3. The Respondent further argues that according to the Administrative Appeals Tribunal Act 1975 (Cth) (AAT Act), because the Applicant discontinued his application to the Tribunal for review of the original claim dismissed by the Respondent, that application must be regarded as dismissed. Now that of course is correct in terms of the application of the AAT Act where, pursuant to subsection 42A(1A), following a notification by the Applicant of his discontinuation or withdrawal of that application, the Tribunal is taken to have dismissed the application without proceeding to review the decision: subsection 42A(1B).

4. The question though is whether these provisions operate to stop or limit the right of the Applicant to raise this material in this application of 2019.

5. On a fair reading of this application, I consider that a fair reading of the claim encompasses a timeframe which includes the events from 2014. I do not regard the provisions of the AAT Act as limiting the right to litigate matters from 2014, which were previously the subject of a discontinued application to the Tribunal.

6. I will allow the material from 2014 to be litigated in this matter because I regard the material as part of the 2019 claim.

I certify that the preceding 6 (six) paragraphs are a true copy of the reasons for the decision herein of Senior Member M Griffin QC

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

Associate

Dated: 8 February 2021

Date of hearing:	17 November 2020
Counsel for the Applicant:	Mr A Anforth
Solicitors for the Applicant:	David Healey Solicitors
Counsel for the Respondent:	Mr B Dean