Carson v Comcare

[2004] FCAFC 204

FEDERAL COURT OF AUSTRALIA

Carson v Comcare [2004] FCAFC 204

WORKERS’ COMPENSATION – degree of permanent impairment – depression – isolation of compensable effects under the Approved Guide provided for by Safety, Rehabilitation and Compensation Act1988 (Cth) – total impairment of the appellant found to be 10 per cent – existence of a pre-existing permanent impairment, calculated to be 5 per cent, resulting from paranoid personality traits – Administrative Appeals Tribunal decision that only 5 per cent of total impairment a result of the work place – impairment not compensable – whether trial judge erred in finding that the Administrative Appeals Tribunal could have regard to reports written after the date of the decision to be reviewed – whether failure of the Administrative Appeals Tribunal to have regard to documents not tendered by the appellant could constitute an error

Safety, Rehabilitation and Compensation Act 1988 (Cth) ss 4, 24, 27, 62
Administrative Appeals Tribunal Act (1975) (Cth) s 44

Comcare v Amorebieta (1996) 66 FCR 83 referred to
Martin v Australian Postal Corporation (1999) 29 AAR 420 considered
Drake v Minister for Immigration and Ethnic Affairs (1979) 24 ALR 577 referred to
Salisbury v Australian Iron & Steel Ltd (1943) 44 SR (NSW) 157 at 161 cited
Darling Island Stevedoring & Lighterage Co Ltd v Hankinson (1967) 117 CLR 19 cited

PETER JOHN CARSON v COMCARE

No S 13 of 2004

SPENDER, STONE AND BENNETT JJ
BRISBANE (heard in Adelaide)
17 AUGUST 2004

IN THE FEDERAL COURT OF AUSTRALIA
SOUTH AUSTRALIA DISTRICT REGISTRY	S 13 OF 2004

ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN:	PETER JOHN CARSON APPELLANT
AND:	COMCARE RESPONDENT
JUDGES:	SPENDER, STONE, BENNETT JJ
DATE OF ORDER:	17 AUGUST 2004
WHERE MADE:	BRISBANE (heard in Adelaide)

THE COURT ORDERS THAT:

1.The appeal be dismissed.

2.The appellant pay the respondent’s costs, to be taxed if not agreed.

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

IN THE FEDERAL COURT OF AUSTRALIA
SOUTH AUSTRALIA DISTRICT REGISTRY	S 13 OF 2004

ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN:	PETER JOHN CARSON APPELLANT
AND:	COMCARE RESPONDENT

JUDGES:	SPENDER, STONE, BENNETT JJ
DATE:	17 AUGUST 2004
PLACE:	BRISBANE (heard in Adelaide)

REASONS FOR JUDGMENT

THE COURT:

1. This is an appeal from a single judge of the Court (Lander J) given on 22 December 2003 dismissing an appeal by Dr Peter John Carson (“the appellant”) from a decision of the Administrative Appeals Tribunal (“the AAT”) given on 6 February 2003.  The AAT affirmed a decision by an Independent Review Officer to disallow a claim made by the appellant under the Safety, Rehabilitation and Compensation Act 1988 (Cth) (“the Act”). Dr Carson appeared on his own behalf, both before the primary judge and on this appeal.

2. The appeal has had a lengthy litigious history.  The factual recitation that follows is taken largely from the reasons of the primary judge.

3. Dr Carson was formerly…