Brackenreg v Comcare Australia [1995] FCA 118

CATCHWORDS ADMINISTRATIVE LAW - appeal from Administrative Appeals Tribunal - appeal on question of law only - Tribunal obliged to give reasons for its decision and to refer to the evidence upon which its material findings of fact were based - failure by Tribunal to comply with either obligation - whether failure constituted an error of law. Administrative Appeals Tribunal Act 1975, s.43 Safety Rehabilitation and Compensation Act 1988, ss.60, 61, 62, 63, 64, 131 DEBORAH BRACKENREG v COMCARE AUSTRALIA No. DG13 of 1993 CORAM: SHEPPARD J PLACE: SYDNEY DATE: 15 MARCH 1995

IN THE FEDERAL COURT OF AUSTRALIA) DARWIN DISTRICT REGISTRY ) No. DG13 of 1993 GENERAL DIVISION ) ON APPEAL FROM THE GENERAL ADMINISTRATIVE DIVISION OF THE ADMINISTRATIVE APPEALS TRIBUNAL BETWEEN: DEBORAH BRACKENREG Applicant AND: COMCARE AUSTRALIA Respondent MINUTES OF ORDER CORAM: SHEPPARD J PLACE: SYDNEY DATE: 15 MARCH 1995 THE COURT ORDERS THAT: 1. The appeal be allowed. 2. The respondent pay to the applicant her costs of the appeal. 3. The decision of the Administrative Appeals Tribunal dated 23 November 1993 be set aside. 4. The matter be remitted to the Administrative Appeals Tribunal to be heard and determined again.

NOTE: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA) DARWIN DISTRICT REGISTRY ) No. DG13 of 1993 GENERAL DIVISION ) ON APPEAL FROM THE GENERAL ADMINISTRATIVE DIVISION OF THE ADMINISTRATIVE APPEALS TRIBUNAL BETWEEN: DEBORAH BRACKENREG Applicant AND: COMCARE AUSTRALIA Respondent CORAM: SHEPPARD J PLACE: SYDNEY DATE: 15 MARCH 1995

REASONS FOR JUDGMENT

HIS HONOUR: This is an appeal on questions of law brought pursuant to the provisions of s.44 of the Administrative Appeals Tribunal Act 1975 ("the Act"). The decision appealed from is dated 23 November 1993. The decision was given in a matter in which the applicant had unsuccessfully challenged the correctness of a decision of Mr T. Fay, the Manager, Legal Services, Comcare, dated 17 February 1993 which had affirmed the decision of a delegate dated 5 November 1992. The effect of that decision was that the applicant was not entitled to weekly compensation in accordance with s.131 of the Commonwealth Employees Rehabilitation and Compensation Act 1988 (now the Safety Rehabilitation and Compensation Act 1988 ("the Compensation Act")). The delegate found that, on the evidence before him, the applicant was not incapacitated for work as the result of an injury sustained on 7 March 1984, that any symptoms "now" suffered by the applicant were not the result of any incident which occurred on 7 March 1984, and that the applicant was capable of undertaking employment which was reasonably available to her and was able to earn not less than her normal weekly earnings at the date of injury. The decision to affirm the determination was contained in a letter written to the applicant's solicitor on 17 February 1993. In part the letter said: "I am unable to accept that your client is precluded from working in an office. Your client has undertaken a number of physical activities, some of which would be quite demanding for a person in your client's contended situation, for example scuba diving and horseriding. In addition to these physical activities your client has also undertaken tertiary studies, graduated with a Bachelor of Arts degree and continued with legal studies in 1992. I find that your client is not incapacitated for her former employment as a computer operator. While it is not necessary for me to consider the point, I am of the view that an offer of reasonable employment was made to your client. In a letter dated 19 October 1992, Mr Marshall of TIO [the Territory Insurance Office] advised your client that the NT Treasury would be in a position to offer employment to your client in the next few days and that if she wanted to commence employment she should contact Ms Denise Paech. I am satisfied that this was sufficient to constitute an offer of employment and I so find. Your client chose to relocate to Groote Eylandt to live with her husband and not for reasons arising out of her 1984 accident. I am unable to accept that your client's personal situation is sufficient to render the offer of employment unreasonable. I find that the employment offered by the NT Treasury in Darwin was reasonable. Accordingly, it is my decision to affirm the determination dated 5 November 1992."