Re: JOHANNA HENDERIKA KLINKERT
And: AUSTRALIAN POSTAL CORPORATION
No. V G347 of 1991
FED No. 482
Administrative Law
COURT
IN THE FEDERAL COURT OF AUSTRALIA
VICTORIAN DISTRICT REGISTRY
GENERAL DIVISION
Hill J.(1)
CATCHWORDS
Administrative Law - appeal from Administrative Appeals Tribunal - compensation claim by Commonwealth employee - accident on 12/2/1985 - law applicable to determine liability - law applicable to calculation of periodic compensation - whether wrong law applied - whether error of law immaterial to result
Compensation (Commonwealth Government Employees) Act 1971 (Cth), ss 26, 27, 46
Commonwealth Employees' Rehabilitation and Compensation Act 1988 (Cth), ss 19, 124(1A)
HEARING
MELBOURNE
#DATE 26:6:1992
Counsel for the Applicant: A. Moulds
Instructed by: McMullin Coate and Co
Counsel for the Respondent: M. McInnis
Instructed by: Hall and Wilcox
ORDER
THE COURT ORDERS THAT:
1. The appeal be allowed.
2. The order of the Tribunal be varied by rescinding orders (ii) and
(iii) and replacing them with the following:
(ii) that the applicant has on and from that date been incapacitated for work; and
(iii) that the respondent assess the amount of compensation to be paid to the applicant pursuant to section 19 of the Commonwealth Employees' Rehabilitation and Compensation Act 1988 in accordance with the findings of fact set out in the Tribunal's reasons.
3. The respondent pay the applicant's costs.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
JUDGE1
The applicant, Ms Johanna Henderika Klinkert, appeals against the decision of the Administrative Appeals Tribunal constituted by a deputy president, Mr Forrest, which set aside a decision of the respondent, the Australian Postal Commission, and remitted that decision for reconsideration in accordance with certain directions. Those directions were in the following terms:
1. That the respondent is and has on and from 8 November 1990 remained liable to pay compensation to the applicant.
2. That the applicant has on and from that date been partially incapacitated for work; and
3. That on and from that date the amount which the applicant is able to earn in some suitable employment is the amount which would be paid to a shop assistant whose duties did not involve any heavy lifting, prolonged walking, standing or bending and whose hours of work did not exceed 30 per week.
Ms Klinkert suffered, while an employee of the respondent, a lower back problem. She claimed that it was work-related. That claim was initially accepted, and on 30 August 1985 a determination of liability was made in her favour for "chronic back strain" sustained in the course of her employment with the respondent or its statutory predecessor on 12 February 1985. The determination was made pursuant to the provisions of the Compensation (Commonwealth Government Employees) Act 1971 ("the old Act").
Thereafter determinations were made from time to time under the old Act. On 1 December 1988 the Commonwealth Employees' Rehabilitation and Compensation Act 1988 (Cth) ("the 1988 Act") commenced. Determinations after that date were made…
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- Case
- [1992] FCA 482
- Decision Date
CaseChat Overview and Summary
The court identified that the AAT had applied the wrong law in two respects. First, it had applied the wrong law in determining the respondent's liability for the accident, and second, it had applied the wrong law in calculating the periodic compensation owed to the appellant. The court examined whether these errors of law were material to the outcome of the case, and if not, whether the appeal should still be allowed. The court held that the errors of law were not material to the outcome because the AAT's findings of fact and the ultimate result would not have been different had the correct law been applied.
The court allowed the appeal and varied the order of the AAT. The court rescinded orders (ii) and (iii) and replaced them with new orders that the appellant had been incapacitated for work from the date of the accident and that the respondent must reassess the compensation payable to the appellant in accordance with the findings of fact set out in the Tribunal's reasons. The court also ordered the respondent to pay the appellant's costs. The court's decision was based on the premise that while the AAT had erred in applying the wrong law, these errors did not affect the outcome of the case.
Orders
Orders of the court
THE COURT ORDERS THAT:
1. The appeal be allowed.
2. The order of the Tribunal be varied by rescinding orders (ii) and
(iii) and replacing them with the following:
(ii) that the applicant has on and from that date been incapacitated for work; and
(iii) that the respondent assess the amount of compensation to be paid to the applicant pursuant to section 19 of the Commonwealth Employees' Rehabilitation and Compensation Act 1988 in accordance with the findings of fact set out in the Tribunal's reasons.
3. The respondent pay the applicant's costs.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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