Rus v Comcare

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.