Comcare v Holt [2007] FCA 405

FEDERAL COURT OF AUSTRALIA

Comcare v Holt [2007] FCA 405

WORKERS' COMPENSATION – Commonwealth Government Employees' Compensation – appeal from Administrative Appeals Tribunal – whether costs of therapeutic treatment reasonable in circumstances Safety Rehabilitation and Compensation Act 1988 (Cth) s 16(1) Administrative Appeals Tribunal Act 1975 (Cth) Comcare v Rope (2004) 135 FCR 443 applied Bashar v Comcare (2002) 69 ALD 784 cited Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 cited McDonald v Director-General of Social Security (1984) 1 FCR 354 cited Comcare v Nichols [1999] FCA 209 cited COMCARE v ASHLEY CRAIG HOLT NTD 1 OF 2007

MANSFIELD J

22 MARCH 2007

DARWIN (BY VIDEO LINK) IN THE FEDERAL COURT OF AUSTRALIA

NORTHERN TERRITORY DISTRICT REGISTRY NTD 1 OF 2007

ON APPEAL FROM THE ADMINISTRATIVE APPEALS TRIBUNAL CONSTITUTED BY HACK DP

BETWEEN: COMCARE

Applicant

AND: ASHLEY CRAIG HOLT

Respondent

JUDGE: MANSFIELD J DATE OF ORDER: 22 MARCH 2007

WHERE MADE: DARWIN(BY VIDEO LINK)

THE COURT ORDERS THAT:

1. The appeal be dismissed. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. IN THE FEDERAL COURT OF AUSTRALIA

NORTHERN TERRITORY DISTRICT REGISTRY NTD 1 OF 2007

ON APPEAL FROM THE ADMINISTRATIVE APPEALS TRIBUNAL CONSTITUTED BY HACK DP

BETWEEN: COMCARE

Applicant

AND: ASHLEY CRAIG HOLT

Respondent

JUDGE: MANSFIELD J

DATE: 22 MARCH 2007

PLACE: DARWIN (BY VIDEO LINK)

REASONS FOR JUDGMENT

INTRODUCTION 1 Ashley Holt was previously employed in a Commonwealth agency. He lives in Alice Springs. He suffered a compensable injury in the course of his employment on 17 September 2002. Comcare on behalf of the Commonwealth has paid compensation to him under the Safety, Rehabilitation and Compensation Act 1988 (Cth) (the SRC Act) since that time. Mr Holt's injury was described as "generalised anxiety disorder and adjustment reaction with brief depressive reaction". Mr Holt has been treated for the condition by a general practitioner, Dr Zerk, for some time. 2 In August 2005, Dr Zerk requested the approval of Comcare for Mr Holt to attend a Buddhist meditation retreat at the Chenrezig Institute in Queensland (the retreat) as part of his treatment for his injury. That involved a cost of a little over $1000 for food and accommodation, and air fares of almost $600 to enable Mr Holt to travel between his home in Alice Springs and Brisbane, near where the retreat was to take place. 3 Comcare, by its delegate, decided on 22 August 2005 that Comcare would not pay for the attendance at the retreat or the expenses of the retreat, because the retreat did not constitute "therapeutic treatment" as defined in the SRC Act. That decision was confirmed on internal review. Mr Holt challenged that decision in the Administrative Appeals Tribunal (the AAT). 4 However, before the AAT it was accepted that the retreat did constitute "therapeutic treatment". The sole issue before the AAT was whether the retreat was treatment "that is reasonable for the employee to obtain in the circumstances". The AAT on 8 December 2006 set aside the decision of Comcare of 22 August 2005, and substituted a decision that Comcare is liable to pay compensation to Mr Holt under s 16 of the SRC Act for his reasonable costs of attendance for, and at, the retreat. 5 Comcare appeals under s 44 of the Administrative Appeals Tribunal Act 1975 (Cth) from that decision of the AAT. This appeal concerns the proper construction and application of the words in s 16(1) of the SRC Act describing when Comcare must pay medical treatment in respect of a compensable injury.