Rus v Comcare

Case [2017] FCA 239


FEDERAL COURT OF AUSTRALIA

Rus v Comcare [2017] FCA 239

Appeal from: Rus v Comcare (Compensation) [2016] AATA 18
File number: VID 149 of 2016
Judge: BROMBERG  J
Date of judgment: 10 March 2017
Catchwords: ADMINISTRATIVE LAW – appeal from a decision of the Administrative Appeals Tribunal (“Tribunal”) under s 44 of the Administrative Appeals Tribunal Act 1975 (Cth) (“AAT Act”) in respect of a determination under the Safety, Rehabilitation and Compensation Act 1988 (Cth) – where the applicant’s husband had died of mesothelioma caused by exposure to asbestos in connection with work done at the premises of the Australian Wool Board (“AWB”) – where the sole issue for the Tribunal was whether applicant’s husband was an employee of AWB – whether the applicant’s husband’s statements as to his employment status were relevant to the Tribunal’s determination of whether he had been an employee of AWB – whether the Tribunal had considered the applicant’s husband’s statements or ignored them – whether ignoring of the applicant’s husband’s statements amounted to an error of law under s 44 of the AAT Act – the Tribunal erred in law by ignoring the applicant’s husband’s statements – appeal allowed
Legislation:

Administrative Appeals Tribunal Act 1975 (Cth) s 44

Safety, Rehabilitation and Compensation Act 1988 (Cth) s 5

Wool Industry Act 1962 (Cth) ss 24, 27

Federal Court Rules 2011 (Cth) r 33.21

Cases cited:

AMP Society v Chaplin (1978) 18 ALR 385

Autoclenz Limited v Belcher [2011] UKSC 41

Brambles Holdings Limited v Bathurst City Council (2001) 53 NSWLR 153

Buchwald v Minister for Immigration and Border Protection (2016) 242 FCR 65

Carmichael v National Power PLC [1999] 1 WLR 2042

Chartbrook Ltd v Persimmon Holmes Ltd [2009] UKHL 38

County Securities Pty Ltd v Challenger Group Holdings Pty Ltd [2008] NSWCA 193

Director General of Education v Suttling (1986) 162 CLR 427

Fair Work Ombudsman v Grouped Property Services Pty Ltd [2016] FCA 1034

Fair Work Ombudsman v Quest South Perth Holdings Pty Ltd (2015) 228 FCR 346

Filadelfia Projects Pty Ltd v Entirity Business Services Pty Ltd (No 2) [2011] NSWSC 116

Film Bars Pty Ltd v Pacific Film Laboratories Pty Ltd (1979) 1 BPR [97023]

Gothard, Re AFG Pty Ltd (Receivers and Managers appointed) (in liq) v Davey [2010] FCA 1163

Haritos v Commissioner of Taxation (2015) 233 FCR 315

Hollis v Vabu Pty Ltd (2001) 207 CLR 21

Ioannou v Fowell [1982] FCA 179; 63 FLR 170

Minister for Immigration and Border Protection v MZYTZ (2013) 230 FCR 431

Minister for Immigration v Yusuf (2001) 206 CLR 323

O’Loughlin v Linfox Australia Pty Ltd [2015] 235 FCR 164

On Call Interpreters and Translators Agency Pty Ltd v Commissioner of Taxation (No 3) (2011) 214 FCR 82

Pitcher v Langford (1991) 23 NSWLR 142

Re Australian Industrial Relations Commission; Ex parte Commonwealth (2005) 145 FCR 277

Re C & T Grinter Transport Services Pty Ltd (In Liquidation) & Grinter Transport Pty Ltd; Ex parte Fitzgerald [2004] FCA 1148

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Details
AGLC
Rus v Comcare [2017] FCA 239
Case
[2017] FCA 239
Decision Date

CaseChat Overview and Summary

Rus v Comcare is an appeal against a decision of the Administrative Appeals Tribunal, which had affirmed a decision under the Safety, Rehabilitation and Compensation Act 1988. The appeal arises from the death of the applicant’s husband from mesothelioma, caused by exposure to asbestos while he was working at the Australian Wool Board premises. The sole issue before the Tribunal was whether the applicant’s husband was an employee of the Australian Wool Board at the relevant time. The applicant argued that her husband’s statements regarding his employment status were relevant to the Tribunal’s determination and that the Tribunal had erred by ignoring them. The applicant contended that this amounted to an error of law under section 44 of the Administrative Appeals Tribunal Act 1975.

The court considered whether the Tribunal erred in law by not taking into account the statements made by the applicant’s husband about his employment status. It was determined that the Tribunal’s failure to consider these statements constituted an error of law. The Tribunal had a duty to consider all relevant evidence, including the statements made by the deceased about his employment status, which bore directly on the central issue before it. By disregarding these statements, the Tribunal failed to properly exercise its jurisdiction under the Act. Consequently, the appeal was allowed on the basis that the Tribunal had committed an error of law by not considering the relevant statements made by the deceased.

The court set aside the decision of the Administrative Appeals Tribunal and directed the parties to confer with a view to agreeing on the scope of the remittal of the case to the Tribunal and the allocation of costs. If the parties reached an agreement, they were to file minutes of the orders to be made on or before 17 March 2017. If no agreement was reached, each party was to file and serve their proposed orders and submissions on the question of remittal and costs by 24 March 2017. The court emphasised that the entry of orders would be governed by Rule 39.32 of the Federal Court Rules 2011.

Orders

Orders of the court

1. The decision of the Administrative Appeals Tribunal made on 20 January 2016 in proceeding 2014/4611 to affirm the decision under review is set aside.

2. The parties are directed to confer with a view to agreeing on the scope of the remittal of the case to the Administrative Appeals Tribunal and as to costs.

3. If there is agreement, the parties shall, on or before 17 March 2017, file minutes of the orders which they consider should be made.

4. In the absence of agreement or complete agreement, each party shall, on or before 24 March 2017, file and serve minutes of orders the parties contend should be made on the question of remittal and costs, together with short submissions on those matters which remain not agreed.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

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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