Comcare Australia v Rowe

[2002] FCA 1034

FEDERAL COURT OF AUSTRALIA

Comcare Australia v Rowe [2002] FCA 1034

WORKERS COMPENSATION – whether Administrative Appeals Tribunal erred in law by failing to address whether the applicant suffered from an incapacity for work in the manner required by law – whether the Tribunal erred in law by failing to address a submission put to it on a point of substance which was capable of affecting the outcome of the case

Safety, Rehabilitation and Compensation Act 1988 (Cth) s 4(9), 14(1) and 19(1)
Administrative Appeals Tribunal Act 1975 (Cth) s 44

Dennis Willcox v Federal Commissioner of Taxation (1988) 79 ALR 267 – cited
Repatriation Commission v Rogers (1999) FCA 489 – cited
Repatriation Commission v Tiernan [2001] FCA 519 – cited

COMCARE AUSTRALIA v JOHN FREDERICK ROWE
S 125 OF 2002

JUDGE:        MERKEL J
DATE:          19 AUGUST 2002
PLACE:        ADELAIDE

IN THE FEDERAL COURT OF AUSTRALIA
SOUTH AUSTRALIA DISTRICT REGISTRY	S125 OF 2002

BETWEEN:	COMCARE AUSTRALIA APPLICANT
AND:	JOHN FREDERICK ROWE RESPONDENT
JUDGE:	MERKEL J
DATE OF ORDER:	19 AUGUST 2002
WHERE MADE:	ADELAIDE

THE COURT ORDERS THAT:

1.   The following decision of the Administrative Appeals Tribunal dated 18 April 2002 be set aside:

“The Tribunal sets aside the first decision, of 9 March 2000, and substitutes a decision that since 1 November 1997 the applicant has continued to be partially incapacitated for work and is entitled to ongoing payments of compensation in respect of that partial incapacity; and remits the matter to Comcare for assessment of the appropriate level of compensation payable to the applicant.”

2.   The matter the subject of the said decision be remitted to the Administrative Appeals Tribunal to be determined in accordance with law.

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	S125 OF 2002

BETWEEN:	COMCARE AUSTRALIA APPLICANT
AND:	JOHN FREDERICK ROWE RESPONDENT
JUDGE:	MERKEL J
DATE:	19 AUGUST 2002
PLACE:	ADELAIDE

REASONS FOR JUDGMENT

1. The respondent worked with the Australian National Railways until 31 October 1997 when his employment was terminated by compulsory redundancy.  In 1987 the appellant (“Comcare”) accepted that the respondent, in the course of his employment, had suffered an ear injury and hearing loss for which Comcare was liable to pay compensation.  After his redundancy the respondent claimed compensation under the Safety, Rehabilitation and Compensation Act 1988 (Cth) (“the Act”) in respect of a partial incapacity for work as a result of his ear injury and hearing loss. The compensation claimed was for the period since 31 October 1997.

2. The respondent’s claim was rejected by Comcare, but on the respondent’s application for review of that decision the Administrative Appeals Tribunal (“the AAT”) set aside Comcare’s decision and substituted its decision, which was that:

   “…since 1 November 1997 the applicant has continued to be partially incapacitated for work and is entitled to ongoing payments of compensation in respect of that partial incapacity; and remits the matter to Comcare for assessment of…