Westrupp v BIS Industries Limited [2015] FCAFC 173

FEDERAL COURT OF AUSTRALIA

Westrupp v BIS Industries Limited [2015] FCAFC 173 Citation: Westrupp v BIS Industries Limited [2015] FCAFC 173

Appeal from: Westrupp and BIS Industries Ltd [2015] AATA 298

Parties: EDWARD BABINGTON WESTRUPP v BIS INDUSTRIES LIMITED and COMCARE

File number: WAD 257 of 2015

Judges: BUCHANAN, MCKERRACHER AND KATZMANN JJ

Date of judgment: 4 December 2015

Catchwords: WORKERS' COMPENSATION – applicant employee of first respondent – applicant employed as fly in/fly out worker – applicant attended tavern in the evening of shift change (after day shift, before night shift) – applicant was physically assaulted by employee of first respondent – applicant incapacitated – applicant could not attend work – applicant applied for workers' compensation – first respondent refused workers' compensation – first respondent found applicant not in the course of employment when injured – independent third party affirmed decision to refuse workers' compensation – Administrative Appeals Tribunal affirmed refusal of workers' compensation – AAT held Hatzimanolis v ANI Corporation Ltd (1992) 173 CLR 473 not applicable – AAT applied Comcare v PVYW (2013) 250 CLR 246 – findings of fact by AAT required Hatzimanolis be applied –AAT misapplied legal principles – applicant only in mining camp as an incident of employment – applicant would be expected to use facilities at mining camp – AAT decision set aside –declaration made that applicant's claim for compensation satisfied section 14 of the Safety, Rehabilitation and Compensation Act 1988 (Cth) PRACTICE AND PROCEDURE – notice of appeal deficient – Full Court able to see the AAT's construction error and misapplication of the statutory concept of injury, May v Military Rehabilitation and Compensation Commission (2015) 322 ALR 330, [174] PRACTICE AND PROCEDURE – Comcare applied to become a party to the proceedings a week before Full Court hearing through Safety, Rehabilitation and Compensation Act 1988 (Cth), s 108C(8)(b) – Comcare's submissions did not address whether the AAT made an error of law – Comcare's submissions did not address whether a question of law arose for consideration – Comcare sought an advisory opinion from the Full Court – Comcare's submissions not to be accepted or acted on Legislation: Administrative Appeals Tribunal Act 1975 (Cth), ss 43, 43(1), 44, 44(1), 44(3), 44(3)(c), 44(7), 44(8) Safety, Rehabilitation and Compensation Act 1988 (Cth), ss 4, 5A, 5A(1)(b), 6, 6(1)(a), 6(1)(b), 14, 14(3), 67, 67(1A)(b), 67(1), 67(8), 89A, 108B, 108C(8)(b)