Webeck and Comcare (Compensation)
[2023] AATA 117
•9 February 2023
Webeck and Comcare (Compensation) [2023] AATA 117 (9 February 2023)
Division:GENERAL DIVISION
File Number(s): 2022/10344
Re:Kenneth Webeck
APPLICANT
ComcareAnd
RESPONDENT
Decision
Tribunal:Senior Member O’Donovan
Date:9 February 2023
Place:Canberra
The application for a stay is refused.
……………………….[sgd]………………….
Senior Member O’Donovan
Catchwords
PRACTICE AND PROCEDURE – application for stay of decision– stay application refused
Legislation
Administrative Appeals Tribunal Act 1975, ss 41
Compensation (Commonwealth Government Employees) Act 1971, ss 27
Safety, Rehabilitation and Compensation Act 1998, ss 19, 37
Cases
Shi v Migration Institute of Australia [2003] FCA 1304
Scott and Australian Securities and Investments Commission [2009] AATA 798
Webeck and Comcare (Compensation) [2022] AATA 3784
REASONS FOR DECISION
Senior Member O’Donovan
9 February 2023
Kenneth Webeck claimed compensation in respect of physical injuries which occurred during his employment with the Australian Federal Police (AFP) in September of 1983. Comcare accepted the claim in June of 1984, and at various times paid Mr Webeck compensation in accordance with section 27 of the Compensation (Commonwealth Government Employees) Act 1971 (1971 Act) and weekly compensation for incapacity payments under section 19 of the Safety, Rehabilitation and Compensation Act 1998 (SRC Act).
On 15 March 2022, Mr Webeck’s incapacity payments were ceased due the fact he had reached pension age (being 66 years and 6 months for a person born or after 1 July 1955). On 28 October 2022, following a request from Mr Webeck that he be assessed for suitability to undertake a rehabilitation program, the AFP determined that Mr Webeck should not undertake a rehabilitation program under section 37(1) of the SRC Act. On 14 December 2022, Comcare affirmed the decision in respect of the rehabilitation program.
Mr Webeck applied for review of Comcare’s decision by this Tribunal, and subsequently made an application for Comcare’s decision to be stayed pursuant to section 41(2) of the Administrative Appeals Tribunal Act 1975 (AAT Act). Comcare opposed the granting of the stay. It is the application for a stay, which is the subject of this interlocutory decision.
Both parties provided the Tribunal with written submissions which I have had regard to in making my decision.
For the following reasons, I am not satisfied a stay should be granted pursuant to section 41(2) of the AAT Act.
Legislation
Section 41(2) of the AAT provides the discretionary framework for the operation of a stay. Section 41(2) provides:
(2) The Tribunal may… if the Tribunal is of the opinion that it is desirable to do so… make such order or orders staying or otherwise affecting the operation or implementation of the decision to which the relevant proceeding relates… for the purpose of securing the effectiveness of the hearing and determination of the application for review.
The Tribunal’s power to grant a stay must be given a broad and liberal interpretation[1] But, a stay can only be given for the purpose of securing the effectiveness of the hearing and determination of the underlying application for review. The application for review before the Tribunal relates to whether the applicant should undertake a rehabilitation program.
[1] Shi v Migration Institute of Australia [2003] FCA 1304 at [25] and [30].
The basis for the request for the stay
The applicant’s request for the stay is made in a letter dated 22 December 2022. The applicant is frank in stating that his purpose in requesting the stay order is to require the respondent ‘to re-commence incapacity payments from 16 March 2022’. He advances an argument that his entitlement to incapacity payments is not governed by Part II of the SRC Act, but Part X of the SRC Act and is in fact payable in accordance with the relevant provisions of the 1971 Act. As a consequence, so the applicant says, section 23 of the SRC Act, which has been relied upon by Comcare to stop his incapacity payments based on his age, has no application.
While it is not self-evident that the applicant is correct in his legal analysis, even if he were, it does not provide any reason to grant a stay.
The question raised by the applicant in his application to the Tribunal is whether he should undertake a rehabilitation program. The decision has been made that he should not. A stay on the operation of that decision would not have any practical effect. It would not require the respondent to commence any kind of payment to the applicant. It would not require the applicant to undertake a rehabilitation program, and it is certainly not required to secure the effectiveness of the hearing. The question of whether the applicant should undertake a rehabilitation program can be effectively heard and determined without any interference with the status quo. The applicant does not suggest otherwise.
If the applicant is ultimately successful in satisfying the Tribunal that he should undertake a rehabilitation program then that decision may have some consequences for the incapacity payments which the applicant receives. I don’t need to form a view about that. At present he is not required to undertake a rehabilitation program and the applicant has provided no reason at all why it is necessary to interfere with the decisions which support that state of affairs in order for the hearing to be effective. In those circumstances the application for a stay is refused.
Decision
Application for a stay is refused.
13. I certify that the preceding 12 (twelve) paragraphs are a true copy of the reasons for the decision herein of Senior Member O’Donovan
................................[sgd]........................................
Associate
Dated: 9 February 2023
On the Papers
Date final submissions received:
11 January 2023
Representative for the Applicant:
Self-Represented
Representative for the Respondent:
Ben Mason, Moray and Agnew
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