Mellor v Australian Postal Corporation

FEDERAL COURT OF AUSTRALIA

Mellor v Australian Postal Corporation [2009] FCA 504

ADMINISTRATIVE LAW – appeal from and application for review of decision of Administrative Appeals Tribunal – pre-existing medical conditions – applicant suffered pain while at work – no change to underlying pathology – whether Tribunal failed to appreciate that pain can constitute an aggravation for the purposes of the Safety, Rehabilitation and Compensation Act 1988 (Cth) – whether Tribunal failed to appreciate that an aggravation of a pre-existing condition can be an injury for the purposes of the Act – whether Tribunal assumed that there must be a change to underlying pathology for employer to be liable – Tribunal found that work contributed to pain but that effect was not material – whether question of materiality is directed to the effect of an aggravation – whether matter should be remitted to Tribunal

Administrative Appeals Tribunal Act 1975 (Cth)
Administrative Decisions (Judicial Review) Act 1977 (Cth)
Safety, Rehabilitation and Compensation Act 1988 (Cth) ss 4, 14

Asioty v Canberra Abattoir Proprietary Limited (1989) 167 CLR 533 referred to
Comcare v Canute (2005) 148 FCR 232 cited
Comcare v Sahu-Khan (2007) 156 FCR 536 considered
Commonwealth of Australia v Beattie (1981) 35 ALR 369 considered
Federal Broom Company Pty Limited v Semlitch (1964) 110 CLR 626 considered
Tippett v Australian Postal Corporation (1998) 27 AAR 40 considered

THOMAS MELLOR v AUSTRALIAN POSTAL CORPORATION AND ADMINISTRATIVE APPEALS TRIBUNAL

NSD 1933 of 2008

BENNETT J
19 MAY 2009
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 1933 of 2008

ON APPEAL FROM THE ADMINISTRATIVE APPEALS TRIBUNAL CONSTITUTED BY DR I ALEXANDER, MEMBER

BETWEEN: THOMAS MELLOR
Applicant

AND:

AUSTRALIAN POSTAL CORPORATION
First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent

JUDGE:	BENNETT J
DATE OF ORDER:	19 MAY 2009
WHERE MADE:	SYDNEY

THE COURT DIRECTS THAT:

1.The parties are to confer and submit proposed orders to give effect to these reasons within 7 days, including proposed orders as to costs.

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

The text of entered orders can be located using eSearch on the Court’s website.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 1933 of 2008

ON APPEAL FROM THE ADMINISTRATIVE APPEALS TRIBUNAL CONSTITUTED BY DR I ALEXANDER, MEMBER

BETWEEN: THOMAS MELLOR
Applicant

AND:

AUSTRALIAN POSTAL CORPORATION
First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent

JUDGE:	BENNETT J
DATE:	19 MAY 2009
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. From July 1998 to September 2007 the applicant, Mr Mellor, performed the duties of either a mail sorter or a postal delivery officer as an employee of the first respondent (‘Australia Post’).  He claimed compensation from Australia Post under the Safety, Rehabilitation and Compensation Act 1988 (Cth) (‘the SRC Act’) for various conditions and impairment, including:

   ·Lower back pain;

   ·Injury to lower back and thoracic spine;

   ·Skin cancer;

   ·Permanent impairment because of a back condition of the thoracic and lumbar spine;

   ·Permanent impairment due…