Wisniewski and Comcare (Compensation)

The Administrative Appeals Tribunal considered a claim for workers' compensation brought by the Applicant against Comcare. The Applicant alleged he sustained injuries in an attack on 27 January 1980, which arose out of or in the course of his employment as a cook/kitchen-hand with Commonwealth Accommodation and Catering Services Limited (CACSL). Comcare refused the claim, and the Applicant sought review of this decision.

The central legal issue before the Tribunal was whether the Applicant was entitled to compensation under the Compensation (Commonwealth Employees) Act 1971 (the 1971 Act), as the alleged injuries predated the commencement of the Safety, Rehabilitation and Compensation Act 1988. To succeed, the Applicant was required to demonstrate that at the time of the injury, he was employed by the Commonwealth or a prescribed authority of the Commonwealth. The Tribunal therefore had to determine if CACSL was either the Commonwealth itself or a prescribed authority of the Commonwealth.

The Tribunal reasoned that to establish entitlement under the 1971 Act, the Applicant needed to prove he was employed by the Commonwealth or a prescribed authority. The evidence showed CACSL was a company incorporated under Victorian law, formerly known as Commonwealth Hostels Limited. Relying on the High Court's decision in *The Commonwealth v Bogle*, the Tribunal concluded that CACSL was not the Commonwealth. Furthermore, the Tribunal investigated the possibility that the Applicant might have been employed by the Department of Immigration, but no records were produced to support such an employment relationship.

Consequently, the Tribunal found that the Applicant could not establish that he was employed by the Commonwealth or a prescribed authority of the Commonwealth at the time of his claimed injuries. As this was a necessary prerequisite for his claim to succeed under the 1971 Act, the Tribunal concluded the application had no prospect of success and dismissed it under s 42B(1)(b) of the Administrative Appeals Tribunal Act 1975.