McGuire v Comcare

FEDERAL COURT OF AUSTRALIA

McGuire v Comcare [2004] FCA 848

COMPENSATION – claim for permanent impairment – cervical spine – tribunal not in error of law in concluding no claim for lump sum compensation available – tribunal not in error of law in conclusion of fact that permanent impairment arose well prior to 1 December 1988

Administrative Appeals Tribunal Act 1975 (Cth) s 44
Commonwealth Employees’ Compensation Act 1930 (Cth) ss 12, 19(1),
Compensation (Commonwealth Government Employees) Act 1971 (Cth) s 39
Judiciary Act 1903 (Cth) s 78(1)
Safety, Rehabilitation and Compensation Act 1988 (Cth) ss 24, 64, 124(3)

Australian Competition & Consumer Commission v CG Berbatis Holdings Pty Ltd (1999) 95 FCR 292 applied
Department of Defence v West (1998) 85 FCR 491 followed
McGuire v Comcare [2002] AATA 268 affirmed
Naraim v Parnell (1986) 9 FCR 479 referred to
Ruddock v Vadarlis (No 2) (2001) 115 FCR 229 cited
Waterford v Commonwealth (1987) 163 CLR 54 referred to

ALEXANDER KYLE McGUIRE v COMCARE (DEPARTMENT OF DEFENCE)
W141 of 2002

RD NICHOLSON J
2 JULY 2004
PERTH

IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY	W141 OF 2002

BETWEEN:	ALEXANDER KYLE McGUIRE APPLICANT
AND:	COMCARE (DEPARTMENT OF DEFENCE) RESPONDENT
JUDGE:	RD NICHOLSON J
DATE OF ORDER:	2 JULY 2004
WHERE MADE:	PERTH

THE COURT ORDERS THAT:

1.The application by way of appeal be dismissed.

2.The applicant 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
WESTERN AUSTRALIA DISTRICT REGISTRY	W141 OF 2002

BETWEEN:	ALEXANDER KYLE McGUIRE APPLICANT
AND:	COMCARE (DEPARTMENT OF DEFENCE) RESPONDENT

JUDGE:	RD NICHOLSON J
DATE:	2 JULY 2004
PLACE:	PERTH

REASONS FOR JUDGMENT

1. This is an ‘appeal’ from a decision of a senior member of the Administrative Appeals Tribunal (Mr BH Pascoe) (‘the Tribunal’) given on 18 April 2002 (McGuire v Comcare [2002] AATA 268). In that decision the Tribunal affirmed the decision under review. The decision was that of the respondent dated 15 May 2001 which affirmed a determination made on 31 March 2000 that the applicant was not entitled to a lump sum payment for permanent impairment to his neck and cervical spine. The ‘appeal’ is brought pursuant to the provisions of s 44 of the Administrative Appeals Tribunal Act 1975 (Cth) and s 64 of the Safety, Rehabilitation and Compensation Act 1988 (Cth).

2. The injury in relation to which the applicant’s claim for permanent impairment was brought occurred in 1951.  The Tribunal described the circumstances in which it occurred as follows (and this description is not in issue as to its content):

   ‘Mr McGuire enlisted in the Australian Army in London on 31 July 1951 and was discharged in West Australia on 30 July 1957.  He said that, in September 1951, he was involved in swimming training.  Three soldiers had remained behind in the hut.  On return from swimming, Mr McGuire said that he realised someone had opened…