Keen v Telstra Corporation Ltd

[2005] FCA 407

FEDERAL COURT OF AUSTRALIA

Keen v Telstra Corporation Ltd [2005] FCA 407

LA-RAINE LESLEY KEEN v TELSTRA CORPORATION LTD
NSD 1331 OF 2004

MOORE J
7 APRIL 2005
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 1331 OF 2004

BETWEEN:	LA-RAINE LESLEY KEEN APPLICANT
AND:	TELSTRA CORPORATION LTD RESPONDENT
JUDGE:	MOORE J
DATE OF ORDER:	7 APRIL 2005
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.The application be allowed.

2.The decision of the Administrative Appeals Tribunal be set aside insofar as it determined that s 33 of the Safety Rehabilitation and Compensation Act 1988 (Cth) applied to the calculation of the applicant's entitlement to weekly payments of compensation.

3.The proceedings be remitted to the Administrative Appeals Tribunal for reconsideration according to law with the direction that s 33 of the Safety Rehabilitation and Compensation Act 1988 (Cth) does not apply to the calculation of the applicant's entitlements to weekly payments of compensation.

4.The respondent pay the applicant's costs.

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

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 1331 OF 2004

BETWEEN:	LA-RAINE LESLEY KEEN APPLICANT
AND:	TELSTRA CORPORATION LTD RESPONDENT

JUDGE:	MOORE J
DATE:	7 APRIL 2005
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. I propose to make orders in accordance with the short minutes provided by the applicant.  Insofar as there is an issue about whether the matter should be remitted to the Administrative Appeals Tribunal ("the Tribunal") or to the respondent, I am not in a position to judge whether the calculations are as simple as suggested by Mr Vincent, counsel for the applicant, or there is some measure of complexity attending them or some physical constraints on the Tribunal making the calculations.

2. However, it is appropriate that the matter be remitted to the Tribunal.  It would be a matter for the Tribunal to determine whether it is necessary for the matter to be remitted to the primary decision-maker.  For example, the Tribunal may be satisfied it was no able, in a practical sense, to make the relevant calculations.

3. As to the question of costs, while it is true the respondent was partially successful in the proceedings in the sense that it successfully supported the decision of the Tribunal in one respect, it nonetheless remains the fact that the applicant was successful in her application to have the Tribunal's decision set aside in part and, as Mr Vincent has pointed out, the proceedings themselves were comparatively short.  Whilst there were separate issues raised in the application, they were not separately addressed in any material sense in that there was one set of submissions and a comparatively short hearing.

4. In those circumstances, I order the respondent pay the applicant's costs. 

I certify that the preceding four (4) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Moore.

Associate:

Dated:             12 April 2005

Counsel for the Applicant:	M Vincent
Solicitor for the Applicant:	Stacks
Counsel for the Respondent:	N Polin
Solicitor for the Respondent:	Henry Davis York
Date of Hearing:	7 April 2005
Date of Judgment:	7 April 2005