Australian Postal Corporation v Pascoe [2005] FCA 289 (15 March 2005)

Last Updated: 10 June 2005

FEDERAL COURT OF AUSTRALIA

Australian Postal Corporation v Pascoe [2005] FCA 289

WORKERS’ COMPENSATION – appeal from Administrative Appeals Tribunal – failure to undertake rehabilitation program – no reasonable excuse – whether s 37(7) of the Safety, Rehabilitation and Compensation Act 1988 (Cth) applied.




Safety, Rehabilitation and Compensation Act 1988 (Cth) s 37(7), s 5(9)













AUSTRALIAN POSTAL CORPORATION V GEORGE PASCOE AND MD ALLEN (IN HIS CAPACITY AS A MEMBER OF THE ADMINISTRATIVE APPEALS TRIBUNAL)

N 1360 OF 2004




MADGWICK J
15 MARCH 2005
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 1360 OF 2004

BETWEEN:	AUSTRALIAN POSTAL CORPORATION APPLICANT
AND:	GEORGE PASCOE FIRST RESPONDENT MD ALLEN (IN HIS CAPACITY AS A MEMBER OF THE ADMINISTRATIVE APPEALS TRIBUNAL) SECOND RESPONDENT
JUDGE:	MADGWICK J
DATE OF ORDER:	15 MARCH 2005
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1. That part of the decision of the second respondent by which it was held that s 37(7) of the Safety, Rehabilitation and Compensation Act 1988 (Cth) did not apply, so as to suspend the first respondent’s rights to compensation under that Act and to institute or continue any proceedings under that Act in relation to compensation, be set aside.

2. The second respondent be restrained from hearing the matter further on the basis that s 37(7) of the Safety, Rehabilitation and Compensation Act 1988 (Cth) Act did not apply so as to suspend the first respondent’s rights to compensation under that Act and to institute or continue any proceedings under the Act in relation to compensation.

THE COURT DECLARES THAT:

3. In the events that have happened, s 37(7) of the Safety, Rehabilitation and Compensation Act 1988 (Cth) Act applied at all times since the reviewable decision dated 12 January 2000, so as to suspend the first respondent’s rights to compensation under that Act and to institute or continue any proceedings under that Act in relation to compensation.

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 1360 OF 2004

BETWEEN:	AUSTRALIAN POSTAL CORPORATION APPLICANT
AND:	GEORGE PASCOE FIRST RESPONDENT MD ALLEN (IN HIS CAPACITY AS A MEMBER OF THE ADMINISTRATIVE APPEALS TRIBUNAL) SECOND RESPONDENT

JUDGE:	MADGWICK J
DATE:	15 MARCH 2005
PLACE:	SYDNEY

REASONS FOR JUDGMENT

MADGWICK J:

1 This is an application for relief under s 39B of the Judiciary Act 1903 (Cth) and also for an order of review under s 6 of the Administrative Decisions (Judicial Review) Act 1977 (Cth) in respect of part of a decision of certain conduct of Senior Member MD Allen, sitting as a member of the Administrative Appeals Tribunal (‘the Tribunal’).

2 The Tribunal Member found that the first respondent, who had been an applicant for compensation under the Safety, Rehabilitation and Compensation Act 1988 (Cth) (‘the Act’), had no reasonable excuse for failing to undertake a rehabilitation program. The context is that s 37 of the Act provides that a rehabilitation authority may make a determination that an employee who has suffered an injury resulting in incapacity or impairment should undertake a rehabilitation program and make arrangements for an approved program provider for provision of such a program. The costs of any such program are to be paid by the relevant authority. Subsection (7) of s 37 provides:

‘Where an employee refuses or fails, without reasonable excuse, to undertake a rehabilitation program provided for the employee ..., the employee’s rights to compensation under this Act, and to institute or continue any proceedings under this Act in relation to compensation, are suspended until the employee begins to undertake the program.’

3 Subsection (8) continues:

‘Where an employee’s right to compensation is suspended under subsection (7), compensation is not payable in respect of the period of the suspension.’

4 The second respondent held that subs (7) of s 37 did not apply so as to suspend the first respondent’s right to compensation and to institute and continue proceedings under the Act in relation to compensation. He therefore listed the matter for further proceedings on the question of the first respondent’s current entitlements under the Act.

5 The substance of the grounds of the application is that the Tribunal Member erred in holding that s 37(7) of the Act no longer had any application because the contract of employment had ceased to exist and in taking the view that the first respondent could not be required to attend for work with the applicant and therefore, presumably, that there was no room for the operation of subs (7) of s 37.

6 Even without an extended definition of the term ‘employee’, which I shall mention in a moment, the consequence of such a view of the rehabilitation provisions would be surprising and destructive of the manifest intent of the Act to provide means for the rehabilitation of injured Government employees, as well as for their compensation while they are in an incapacitated or impaired state. In any case, s 5(9) of the Act provides:

‘A reference to an employee in a provision of this Act that applies to an employee at a time after [a rehabilitation authority and other persons in a position who are responsible for the employer] has incurred a liability in relation to the employee under this Act includes, unless the contrary intention appears, a reference to a person who has ceased to be an employee.’

7 As counsel for the applicant point out, no contrary intention for the purposes of subs 5(9) appears.

8 In my view, the Tribunal did err in its approach to the matter, as the applicant suggests, and the applicant should have the relief sought. In the end, the first respondent has not opposed this matter, as a consequence of which the applicant very properly does not seek any order for costs.

9 The matter is more fully explained in the written submissions of counsel for the applicant which are appended to these reasons for decision. I will make orders in accordance with paragraphs 1, 2 and 4 of the initiating application in this matter. I am indebted to counsel.

I certify that the preceding nine (9) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Madgwick.

Associate:

Dated: 22 March 2005

Counsel for the Applicant:	Mr A Robertson SC Mr G Johnson
Solicitor for the Applicant:	Forners
Solicitor for the First Respondent:	Carroll & O’Dea
Date of Hearing:	15 March 2005
Date of Judgment:	15 March 2005

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