Wiegand v Comcare Australia

[2006] FCA 1620

FEDERAL COURT OF AUSTRALIA

Wiegand v Comcare Australia [2006] FCA 1620 

ADMINISTRATIVE LAW – appeal pursuant to s 44 of the Administrative Appeals Tribunal Act 1975 (Cth) – claim for compensation under Safety, Rehabilitation and Compensation Act 1988 (Cth) – proper construction of s 4 of the SRC Act – Tribunal held that two of the relevant events that materially contributed to the applicant’s disease were excluded under the Act – applicant not entitled to compensation – whether no evidence to support Tribunal’s findings in respect of excluded events

Administrative Appeals Tribunal Act 1975 (Cth) s 44
Safety, Rehabilitation and Compensation Act 1988 (Cth) (“the SRC Act”) s 4(1)

Hart v Comcare [2005] FCAFC 16 applied
Treloar v The Australian Telecommunications Commission (1990) 26 FCR 316 applied
Schmid v Comcare [2003] FCA 1057 cited
Roads Corporation v Dacakis (1995) 2 VR 508 referred to

JOACHIM WIEGAND v COMCARE AUSTRALIA

No SAD 215 of 2005

FINN J
27 NOVEMBER 2006
ADELAIDE

IN THE FEDERAL COURT OF AUSTRALIA
SOUTH AUSTRALIA DISTRICT REGISTRY	SAD 215 OF 2005

BETWEEN:	JOACHIM WIEGAND Applicant
AND:	COMCARE AUSTRALIA Respondent

JUDGE:	FINN J
DATE OF ORDER:	27 NOVEMBER 2006
WHERE MADE:	ADELAIDE

THE COURT ORDERS THAT:

1.The appeal be dismissed.

2.The applicant pay the respondent’s costs of the application.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
SOUTH AUSTRALIA DISTRICT REGISTRY	SAD 215 OF 2005

BETWEEN:	JOACHIM WIEGAND Applicant
AND:	COMCARE AUSTRALIA Respondent

JUDGE:	FINN J
DATE:	27 NOVEMBER 2006
PLACE:	ADELAIDE

REASONS FOR JUDGMENT

1. This is the second occasion upon which this matter has been before the Court by way of an appeal under s 44 of the Administrative Appeals Tribunal Act 1975 (Cth) against a decision of the Administrative Appeals Tribunal dismissing a claim for compensation under the provisions of the Safety, Rehabilitation and Compensation Act 1988 (Cth) (“the SRC Act”). If the Tribunal in this matter had been able to deal with the applicant’s claim on the basis of what was understood to be the true construction of s 4 of the SRC Act at the time of Mr Wiegand’s first appeal to the Tribunal, he would have been awarded the compensation he claimed. As the law is now to be understood in light of the decision of the Full Court in Hart v Comcare [2005] FCAFC 16, the Tribunal acknowledged it had no option but to dismiss the application to it given its findings.

2. At the hearing of this application before me I permitted Mr Wiegand, with the concurrence of Comcare, to raise a new question of law.  That new question impugned two critical findings of the Tribunal on the basis that there was no evidence to support either of them.  To anticipate what I have to say, I am not satisfied that the Tribunal erred in the way suggested.  In these circumstances, as Mr Wiegand reluctantly conceded, I would be obliged to apply Hart and…