Comcare v Line [2002] FCAFC 321

FEDERAL COURT OF AUSTRALIA

Comcare v Line [2002] FCAFC 321 COMPENSATION – government employee – "suitable employment" – requirement that employee "did not subsequently terminate that employment" does not mean "whose employment was terminated" – "employment by the Commonwealth" does not mean "employment of the nature concerned with the Commonwealth" Safety, Rehabilitation and Compensation Act 1988 (Cth) s 4, 4(1), 4(9), 8, 14(1), 19, 19(2), 19(3), 19(3)(a), 19(3)(b), 19(3)(f), 19(4), 19(4)(b) – (g), 21A, 40(1) Safety, Rehabilitation and Compensation Amendment Act 2001 (Cth) Comcare v Chenhall (1996) 69 FCR 201 approved Wilson v Wilson's Tile Works Pty Ltd (1960) 104 CLR 328 referred to Telstra Corporation Ltd v Warner (1994) 20 AAR 249 referred to Pulitano v Telstra Corporation Ltd (1998) 50 ALD 1015 referred to COMCARE v TRACY LEAH LINE W154 of 2002 FRENCH, LEE and RD NICHOLSON JJ 24 OCTOBER 2002 PERTH

IN THE FEDERAL COURT OF AUSTRALIA

WESTERN AUSTRALIAN DISTRICT REGISTRY W154 of 2002

On Appeal from a Single Judge of the Federal Court of Australia

BETWEEN: COMCARE

APPELLANT

AND: TRACY LEAH LINE

RESPONDENT

JUDGE: FRENCH, LEE and RD NICHOLSON JJ

DATE OF ORDER: 24 OCTOBER 2002

WHERE MADE: PERTH

THE COURT ORDERS THAT: 1. The appellant be given leave to add a ground of appeal to the effect that the Court erred in failing to set aside par 1(b)(i) of the decision of the Tribunal and to remit the calculation of the normal weekly earnings of the respondent for the period referred to therein in accordance with the law. 2. Order 1 of Carr J made on 2 May 2002 be deleted and in lieu thereof the following order substituted: "Paragraph 1(b)(i) and (ii) of the decision of the Administrative Appeals Tribunal, made on 10 May 2001, be set aside". 3. The matter of the amount of compensation which the respondent is liable to pay, pursuant to s 19(2) of the Safety, Rehabilitation and Compensation Act 1988 (Cth), to the appellant for each of the first 45 weeks immediately after 17 September 1995 be remitted to the Tribunal for decision in accordance with the law. 4. The appeal otherwise be dismissed. 5. The appellant pay the respondent's cost of the appeal. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.