Buhr v Comcare

[2007] FCA 575

FEDERAL COURT OF AUSTRALIA

Buhr v Comcare [2007] FCA 575

ADMINISTRATIVE LAW – appeal from Administrative Appeals Tribunal – whether questions of law or questions of mixed fact and law – jurisdiction of Administrative Appeals Tribunal – whether determination of first decision-maker and reviewable decision determined Comcare’s liability for current injury as well as non-existence of old accepted employment related injury

WORKER'S COMPENSATION – Commonwealth employee – injury excluded from liability - whether injury work related – failure to obtain promotion – whether employee made claim pursuant to s 54 of Safety, Rehabilitation and Compensation Act 1988 (Cth) – substantial compliance with s 54 of Safety, Rehabilitation and Compensation Act 1988 (Cth)

Administrative Appeals Tribunal Act 1975 (Cth) ss 25, 44
Safety, Rehabilitation and Compensation Act 1988 (Cth) ss 4, 14, 16, 20, 53, 54, 60 – 64
Compensation Commonwealth Government Employees Act 1971 (Cth)

Australian Postal Corporation v Mowbray & Anor (2003) 77 ALD 440 cited
Australian Postal Corporation v Oudyn (2003) 73 ALD 659 cited
Collector of Customs v Pozzolanic Enterprises Pty Ltd (1993) 43 FCR 280 at 287 approved
Comcare Australia (Department of Defence) v Madia (2002) 36 AAR 69 cited
Comcare v Hart (2004) 139 AAR 396 Comcare v Etheridge (2006) 149 FCR 522 cited
Condell v Commissioner of Taxation [2007] FCAFC 44 cited
Duong v Australian Postal Corporation (2005) 41 AAR 288 cited
Hart v Comcare (2005) 145 FCR 29 cited
Lees v Comcare (1999) 56 ALD 84 distinguished
Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 approved
Telstra Corporation Ltd v Hannaford (2006) 151 FCR 253 cited

PETER BRADLEY BUHR v COMCARE AND ADMINISTRATIVE APPEALS TRIBUNAL
NSD 426 OF 2006

EDMONDS J
24 APRIL 2007
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 426 OF 2006

ON APPEAL FROM THE ADMINISTRATIVE APPEALS TRIBUNAL CONSTITUTED BY SENIOR MEMBER ROBIN HUNT

BETWEEN:

PETER BRADLEY BUHR
Applicant

AND:

COMCARE
First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent

JUDGE:	EDMONDS J
DATE OF ORDER:	24 APRIL 2007
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.The appeal be dismissed.

2.The applicant pay the first respondent’s costs.

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	NSD 426 OF 2006

ON APPEAL FROM THE ADMINISTRATIVE APPEALS TRIBUNAL CONSTITUTED BY SENIOR MEMBER ROBIN HUNT

BETWEEN:

PETER BRADLEY BUHR
Applicant

AND:

COMCARE
First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent

JUDGE:	EDMONDS J
DATE:	24 APRIL 2007
PLACE:	SYDNEY

REASONS FOR JUDGMENT

Introduction

1. This is an appeal from a decision of the Administrative Appeals Tribunal (‘the Tribunal’) given on 6 February 2006 affirming the decision under review. The appeal is instituted pursuant to s 44 of the Administrative Appeals Tribunal Act 1975 (Cth) (‘the AAT Act’) and is confined to a question of law – see [11] and [12] below.

2. The reviewable decision before the Tribunal (see ss 63 and 64 of the Safety,…