Elleissy, M. v Australian Telecommunications Commission

Re: MOHAMMED ELLEISSY
And: AUSTRALIAN TELECOMMUNICATIONS COMMISSION
No. G836 of 1988
FED No. 379
Administrative Law

COURT

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
Hill J.(1)

CATCHWORDS

Administrative Law - appeal from decision of Administrative Appeals Tribunal reviewing determination that applicant's entitlement to compensation under Compensation (Commonwealth Government Employees) Act 1971 had ceased - whether Tribunal correctly placed onus of proof - whether Tribunal failed to consider relevant medical evidence or evidence of applicant - separate issues raised by s.29(1)(b) of contraction and of aggravation or acceleration of disease - whether Tribunal erred in law by adopting evidence relating to contraction as evidence relating to aggravation or acceleration - whether employment can contribute to an illness which would otherwise have occurred.

Compensation (Commonwealth Government Employees) Act 1971: s.29.

HEARING

SYDNEY

#DATE 14:7:1989

Counsel and Solicitors J Anderson instructed by
for Applicant: Steve Masselos & Co.

Counsel and Solicitors R Greig instructed by
for Respondent: Australian Government Solicitor

ORDER

The appeal be allowed.

The decision of the Administrative Appeals Tribunal constituted by Mr B J McMahon, on 10 March 1988, be set aside.

The matter be remitted to the Administrative Appeals Tribunal to be heard and decided with the hearing of further evidence and in accordance with law.

The respondent pay the applicant's costs of the appeal.

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

JUDGE1

The applicant appeals to this Court from a decision of the Administrative Appeals Tribunal constituted by Mr B J McMahon, Senior Member given on 10 March 1988.

1. Before the Tribunal were applications to review two decisions. The first, was a determination of a delegate of the Commission for Employee's Compensation dated 15 July 1986 whereby the delegate determined that the Commission was not liable to pay compensation to Mr Elleissy on and subsequent to 15 July 1986. The second decision to be reviewed was a determination which is dealt with by Mr McMahon in his Reasons but which was not the subject of argument before me. It was accepted that in respect of that decision there was no error of law.

2. The applicant worked for the respondent ("Telecom") from 1971 until 1983 as an assistant technician. During the period of his employment he suffered what Mr McMahon referred to as "an extraordinary number of accidents". It is unnecessary for present purposes to detail them. Suffice it to say that Mr McMahon referred to seven separate occasions in which the applicant had been injured and had been, at least on some of the occasions, unable to work for periods from one week to one month.

3. On 1 July 1983 the applicant was involved in a motor vehicle accident in which he sustained injuries to his back and neck. He continued to work for approximately two weeks but following an assessment from a Commonwealth Medical Officer and further administrative action he received an instruction not to return. He ceased work on 13…