Willcott and K & S Freighters Pty Ltd

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2011] AATA 237

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No 2010/1813

GENERAL ADMINISTRATIVE   DIVISION		)         No 2010/2388           No 2010/2389
Re		RODNEY WILLCOTT

Applicant

And K & S FREIGHTERS PTY LIMITED

Respondent

DECISION

Tribunal Deputy President R D Nicholson
Dr J Chaney, Member   

Date5 April 2011

PlacePerth

Decision

1.    In relation to Application No 2010/1813:

 The reviewable decision dated 15 March 2010 is set aside and in lieu thereof it is determined:

1. The applicant did not fail or refuse, without reasonable excuse, to undertake the rehabilitation programme dated 13 August 2009; and
2. The applicant’s rights to compensation under the Safety Rehabilitation and Compensation Act 1988 and to institute or continue any proceedings under that Act in relation to compensation was not suspended on 24 November 2009.
3. The respondent pay the applicant’s costs of the proceedings to be taxed on a party party basis as agreed or taxed, being costs non common with applications 2010/2388 and 2010/2389.

2.    In relation to Application No 2010/2388:

1. The reviewable decision dated 31 March 2010 not to undertake a reconsideration of the determination dated 30 December 2009 is set aside.
2. The primary determination dated 30 December 2009 is set aside, and in lieu thereof it be determined that the applicant does not have the capacity to earn $1 027.87 per week in his pre-accident condition
3. The respondent pay the applicant’s costs of the proceedings on a party party basis as agreed or taxed, being costs non-common to the other two applications dealt with in these orders.

3.    In relation to Application No 2010/2389:

A.   The reviewable decision dated 6 April 2010 is set aside.

B. The primary determination dated 16 September 2009 also is set aside and the decision substituted that the applicant’s mental injury arose out of or in the course of his employment and is a compensable injury.

C.    The respondent pay the applicant’s costs to be taxed.  

....(sgd) R D Nicholson.......

Deputy President

39.     The applicant argues that the cases relied upon by the respondent should be distinguished and that a determining authority’s refusal to exercise a discretion could not have been intended to exclude the Tribunal’s powers of review: Brian Young v Telstra Corporation [1993] AATA 376. In relation to Hannaford’s case, the applicant says that on appeal to the Full Federal Court it was said that it mattered not that there never had been any reconsideration of the determination of Telstra on acceptance of liability under s 14 of the SRC Act as to whether Mr Hannaford had suffered Ross River fever: Hannaford at par 59.  Of Bushell’s case the applicant accepts that the majority of the High Court remitted the matter back to the Tribunal but in circumstances where relevant facts had not been found.   It is submitted that here the Tribunal has all the relevant evidence before it. 

40.     The applicant says that Bhardwaj does not support the respondent’s submissions because the High Court there found the Tribunal had…