Brown v Comcare

[2003] FCA 261

FEDERAL COURT OF AUSTRALIA

Brown v Comcare [2003] FCA 261

WORKERS COMPENSATION – claim for compensation under Safety, Rehabilitation And Compensation Act 1988 (Cth) – applicant completed claim form as well as election form – common law action not sought by applicant – both forms submitted by mistake – assertion by respondent of election by applicant – nature of election – need for specificity and lack of ambiguity – inconsistent rights – applicant not aware of effect of election form – whether applicant made an election within the meaning of s 45(1) of the Act

Safety, Rehabilitation And Compensation Act 1988 (Cth) ss 24, 25, 27, 44, 45

Austral Pacific Group Ltd (in liq) v Airservices Australia (2000) 173 ALR 619 referred to

Commonwealth v Flaviano (1996) 40 NSWLR 199 referred to
WBK Pty Limited v Grogan (1997) 140 FLR 303 cited
Burnett v The Union SS Co of New Zealand Ltd (1936) 36 SR(NSW) 119 cited
Sargent v ASL Developments Ltd (1974) 131 CLR 634 applied
Robertson v Comcare [2002] AATA 96 discussed
Crowe v Comcare Australia (No 2) [2002] FMCA 147 discussed

LEONARD BROWN v COMCARE
N1415 OF 2002

TAMBERLIN J
SYDNEY
28 MARCH 2003

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N1415 OF 2002

BETWEEN:	LEONARD BROWN APPLICANT
AND:	COMCARE RESPONDENT
JUDGE:	TAMBERLIN J
DATE OF ORDER:	21 MARCH 2003
WHERE MADE:	SYDNEY

THE COURT DECLARES THAT:

The applicant has not made an election in writing to institute an action against the Commonwealth pursuant to s 45(1) of the Safety, Rehabilitation and Compensation Act 1988.

THE COURT ORDERS THAT:

The respondent pay the applicant’s costs on a solicitor-client basis.

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	N1415 OF 2002

BETWEEN:	LEONARD BROWN APPLICANT
AND:	COMCARE RESPONDENT

JUDGE:	TAMBERLIN J
DATE:	28 MARCH 2003
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. On Friday 21 March 2003, I made orders in this matter and I now publish my reasons.

2. The applicant seeks a declaration that he has not made an election to institute an action against the Commonwealth pursuant to s 45(1) of the Safety, Rehabilitation And Compensation Act 1988 (Cth) (“the Act”).

3. That section provides:

   “45 Actions for damages – election by employees

   (1) Where:

   (a)compensation is payable under section 24, 25 or 27 in respect of an injury to an employee; and

   (b)the Commonwealth, … would, but for subsection 44(1), be liable for damages for any non-economic loss suffered by the employee as a result of the injury;

   the employee may, at any time before an amount of compensation is paid to the employee under section 24, 25 or 27 in respect of that injury, elect in writing to institute an action or proceeding against the Commonwealth … for damages for that non-economic loss.

   …
   (3) An election is irrevocable.

   (4) In any action … instituted as a result of an…