Rus v Comcare (No 2)

[2017] FCA 356

FEDERAL COURT OF AUSTRALIA

Rus v Comcare (No 2) [2017] FCA 356

Appeal from:

Rus v Comcare (Compensation) [2016] AATA 18

File number:

VID 149 of 2016

Judge:

BROMBERG  J

Date of judgment:

5 April 2017

Catchwords:

ADMINISTRATIVE LAW – scope of remittal – where the Tribunal was found to have erred in law in relation to the only issue it was required to determine – whether redetermination by the Tribunal of that issue be made on evidence already adduced, without further evidence – where the Tribunal’s error of law did not impact on the material findings of fact it made, remittal made on the basis of no further evidence unless proper cause be shown

Legislation:

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

Cases cited:

Negri v Secretary, Department of Social Services (No 2) [2016] FCA 1125

Rus v Comcare [2017] FCA 239

Date of hearing:

Determined on the papers

Registry:

Victoria

Division:

General Division

National Practice Area:

Employment & Industrial Relations

Category:

Catchwords

Number of paragraphs:

11

Counsel for the Applicant:

Mr T Goodwin

Solicitor for the Applicant:

Slater and Gordon

Counsel for the Respondent:

Ms S Wright

Solicitor for the Respondent:

Comcare

ORDERS

VID 149 of 2016

BETWEEN:

CHRISTINE RUS

Applicant

AND:

COMCARE

Respondent

JUDGE:	BROMBERG  J
DATE OF ORDER:	5 APRIL 2017

THE COURT ORDERS THAT:

1.The case be remitted to the Administrative Appeals Tribunal limited to a reconsideration of the question of whether Mr Rus was an employee of the Australian Wool Board, for the purposes of s 5 of the Safety, Rehabilitation and Compensation Act 1988 (Cth).

2.The reconsideration referred to in Order 1 be determined without further evidence, unless proper cause be shown.

3.The respondent pay the applicant’s costs of the appeal as agreed or taxed.

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

REASONS FOR JUDGMENT

BROMBERG J:

1. On 10 March 2017 I made an order that the decision of the Administrative Appeals Tribunal (“Tribunal”) made on 20 January 2016 be set aside.  I also made orders requiring the parties to address the scope of the remittal of the case to the Tribunal for redetermination.  Further, I gave the parties an opportunity to confer as to the question of costs. 

2. The orders made were supported by reasons for judgment published as Rus v Comcare [2017] FCA 239 in which I observed that the sole issue which arose on the appeal was whether, in determining that it could not make a finding that Francis (Frank) Rus (“Mr Rus”) was an employee of the Australian Wool Board (“AWB”), the Tribunal erred in law.

3. The issue of costs has now been agreed. On that basis I shall make an order that the respondent (“Comcare”) pay the applicant’s (“Mrs Rus”) costs of the appeal.

4. As to the scope of the remittal, the parties are not agreed and have filed competing contentions which I have determined on…