Rus and Comcare (Compensation)

This matter concerned a claim for compensation under the *Safety, Rehabilitation and Compensation Act 1988* (SRC Act) by the widow of Mr Rus, who had died from mesothelioma. The primary dispute was whether Mr Rus had been an "employee" of the Australian Wool Board (AWB), a Commonwealth authority, at a time when he was exposed to asbestos. The Federal Court was required to determine whether the Administrative Appeals Tribunal (AAT) had erred in law by failing to consider crucial evidence when determining Mr Rus's employment status.

The legal issues before the Federal Court were whether the AAT had correctly applied the law in determining whether Mr Rus was an employee of the AWB, and whether the AAT had erred by excluding relevant evidence from its consideration. Specifically, the court had to consider the definition of "employee" under the SRC Act, which includes persons employed by the Commonwealth or a Commonwealth authority under a law or a contract of service. The court also considered the probative value of Mr Rus's own statements regarding his work at the AWB in the context of other evidence.

The Federal Court found that the AAT had erred in law by failing to take into account Mr Rus's statements about his work at the AWB when determining his employment status. The court held that these statements were critical to establishing the fact of employment and that their exclusion affected the AAT's exercise of power. The court reasoned that the AAT's task was to determine, on the balance of probabilities, whether Mr Rus was an employee, and this required considering all relevant material.

The Federal Court set aside the AAT's decision and substituted its own finding that Mr Rus was an employee of the AWB for a period towards the end of 1965. This determination was based on the evidence, including Mr Rus's statements and corroborating material, which indicated he performed maintenance work at the AWB during that period.