Fitzwarryne v Comcare

[1999] FCA 409

FEDERAL COURT OF AUSTRALIA

Fitzwarryne v Comcare [1999] FCA 409

ADMINISTRATIVE LAW – workers’ compensation – evidence - appeal from a decision of the Administrative Appeals Tribunal – circumstances in which fresh evidence will be admitted at the hearing of an appeal

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

Comcare v Mooi (1996) 137 ALR 690 applied
Sullivan v Department of Transport (1978) 20 ALR 323 referred to
Servos v Repatriation Commission (1995) 56 FCR 377 referred to
Percerep v Minister for Immigration and Multicultural Affairs [1998] FCA 1088 applied
Chowdhary v Bayne [1999] FCA 41 referred to

PAUL FITZWARRYNE v COMCARE
AG 45 of 1997

FINN J
MELBOURNE (HEARD IN CANBERRA)
14 APRIL 1999

IN THE FEDERAL COURT OF AUSTRALIA
AUSTRALIAN CAPITAL TERRITORY DISTRICT REGISTRY	AG 45 OF 1997

BETWEEN:	PAUL FITZWARRYNE Applicant
AND:	COMCARE Respondent
JUDGE:	FINN J
DATE OF ORDER:	14 APRIL 1999
WHERE MADE:	MELBOURNE (HEARD IN CANBERRA)

THE COURT ORDERS THAT:

1.        the application be dismissed.

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

IN THE FEDERAL COURT OF AUSTRALIA
AUSTRALIAN CAPITAL TERRITORY DISTRICT REGISTRY	AG 45 OF 1997

BETWEEN:	PAUL FITZWARRYNE Applicant
AND:	COMCARE Respondent

JUDGE:	FINN J
DATE:	14 APRIL 1999
PLACE:	MELBOURNE (HEARD IN CANBERRA)

REASONS FOR JUDGMENT

1. Mr Paul Fitzwarryne has appealed to this Court from a decision of the Administrative Appeals Tribunal (“the Tribunal”) that found, for the purposes of his claim for compensation under the Safety, Rehabilitation and Compensation Act 1988 (Cth) (“the SRC Act”), that he did not suffer an injury, nor was he incapacitated for work. Both an injury and resultant incapacity are preconditions of Comcare’s liability to pay compensation: SRC Act, s 14(1). In this appeal the Tribunal is alleged to have been in error in arriving at each of these conclusions. It is also claimed there was a lack of procedural fairness arising from the circumstances of the hearing itself. The procedural fairness claim will be considered in the final part of these reasons.

   The Statutory Setting

2. The definitions in s 4(1) of the SRC Act insofar as presently relevant are as follows:

   “ ‘ailment’ means any physical or mental ailment, disorder, defect or morbid condition (whether of sudden onset or gradual development);

   ‘disease’ means:
              (a)       any ailment suffered by an employee;  or
              (b)       the aggravation of any such ailment;
   being an ailment or an aggravation that was contributed to in a material degree by the employee’s employment by the Commonwealth or a licensed corporation;

   ‘injury’ means:
              (a)       a disease suffered by an employee;  or
              (b)       an injury (other than a disease) suffered by an employee, being a physical or mental injury arising out of, or in the course of, the employee’s employment … .”

   Section 14(1) in turn provides:

   “14.(1)           Subject to this Part, Comcare is liable to pay compensation in accordance with this Act in respect of an injury suffered…