Comcare v Burgess

[2007] FCA 1663

FEDERAL COURT OF AUSTRALIA

Comcare v Burgess [2007] FCA 1663

ADMINISTRATIVE LAW – consideration of an appeal from the Administrative Appeals Tribunal concerning the construction of s 8(10)(a) of the Safety Rehabilitation and Compensation Act 1988 (Cth) (‘SRC Act’) – consideration of whether s 8(10)(a) operates so as to effect a reduction in an employee’s ‘normal weekly earnings’ for the purposes of a compensation formula contained in s 19(3) of the SRC Act, in circumstances where an employee has been suspended from employment

Safety Rehabilitation and Compensation Act 1988 (Cth), s 4(1), s 5(1), s 8(1), s 8(10), s 9(1), s 14(1), s 19(1), s 19(3)
Administrative Appeals Tribunal Act 1975

Bortolazzo & Anor v Comcare (1997) 75 FCR 385
Commissioner of Taxation v Ryan (2000) 201 CLR 109
Ryan v Federal Commissioner of Taxation (1997) 148 ALR 88

COMCARE v KATIE BURGESS
QUD282 OF 2007

GREENWOOD J
1 NOVEMBER 2007
BRISBANE

IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY	QUD282 OF 2007

ON APPEAL FROM THE ADMINISTRATIVE APPEALS TRIBUNAL CONSTITUTED BY DEPUTY PRESIDENT P E HACK SC

BETWEEN:	COMCARE Applicant
AND:	KATIE BURGESS Respondent

JUDGE:	GREENWOOD J
DATE OF ORDER:	1 NOVEMBER 2007
WHERE MADE:	BRISBANE

THE COURT ORDERS THAT:

1.The application is dismissed.

2.The applicant shall pay the respondent’s costs of the application.

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

IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY	QUD282 OF 2007

ON APPEAL FROM THE ADMINISTRATIVE APPEALS TRIBUNAL CONSTITUTED BY DEPUTY PRESIDENT P E HACK SC

BETWEEN:	COMCARE Applicant
AND:	KATIE BURGESS Respondent

JUDGE:	GREENWOOD J
DATE:	1 NOVEMBER 2007
PLACE:	BRISBANE

REASONS FOR JUDGMENT

1. The question of law raised by this application by Comcare by way of an appeal under s 44 of the Administrative Appeals Tribunal Act 1975 (Cth) (‘AAT Act’) from a decision of the Administrative Appeal Tribunal (‘the Tribunal’) given on 7 August 2007 is a relatively confined question of construction of the proper operation of s 8(10) of the Safety Rehabilitation and Compensation Act 1988 (Cth) (‘the SRC Act’) in the circumstances of a claim for compensation in respect of an injury (s 4(1)) SRC Act) suffered by Ms Katie Burgess resulting in incapacity for work. 

2. The facts are these. 

3. On 21 December 2004, Ms Burgess made a claim for compensation in respect of severe depression which she said she had first noticed on 29 September 2004 which she said arose out of her employment with the Department of Defence.  On 19 February 2005, Comcare accepted liability in respect of Ms Burgess’s depressive disorder and made payments of compensation to her from 29 October 2004 until 18 October 2006.  On 28 February 2007, Comcare determined that for the period 19 October 2006 to 18 January 2007, Ms Burgess was entitled to compensation payments of $842.05 per week being 75% of her normal weekly earnings.  The phrase ‘normal weekly earnings’ has a particular meaning under s 8 of the SRC Act.  Ms…