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
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
Grounds of appeal
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
Continue reading Rus v Comcare
Sign in free to access the full text
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.