Comcare v Wuth [2018] FCAFC 13

FEDERAL COURT OF AUSTRALIA

Comcare v Wuth [2018] FCAFC 13 Appeal from: Comcare v Wuth [2017] FCA 433

File number: ACD 29 of 2017

Judges: SIOPIS, FLICK AND PERRY JJ

Date of judgment: 3 April 2018

Catchwords: WORKERS' COMPENSATION – calculation of normal weekly earnings under s 8(1) of the Safety, Rehabilitation and Compensation Act 1988 (Cth) (the Act) – consideration of "average number of hours worked" in s 8(1) of the Act – where Administrative Appeals Tribunal used the agreed hours of work rather than actual hours worked to calculate average number of hours worked – whether the primary Judge erred in concluding that average number of hours worked required a consideration of the actual hours worked ADMINISTRATIVE LAW – procedural fairness – where Tribunal relied on certain Tables within the American Medical Association's Guides to the Evaluation of Permanent Impairment which had not been referred to in evidence or submissions – whether Tribunal erred in basing decision on a basis not contemplated by the parties – whether Tribunal required to give notice of intention to decide case on a basis not contemplated by the parties – whether adequate notice given

Legislation: Administrative Appeals Tribunal Act 1975 (Cth) s 44 Legislation Act 2003 (Cth) s14 Safety, Rehabilitation and Compensation Act 1988 (Cth) ss 4, 8, 9, 14, 19, 24, 28

Cases cited: Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (Northern Territory) [2009] HCA 41; (2009) 239 CLR 27 Breese Pitt Dixon Pty Ltd v Wyndham City Council [2004] VSC 199, (2004) 21 VAR 154 Brennan v Comcare (1994) 50 FCR 555 Bull v Attorney-General (NSW) (1913) 17 CLR 370 Comcare v Nicolas [2014] FCAFC 122; (2014) 225 FCR 369 Comcare v Pires [2005] FCA 747; (2005) 143 FCR 104 Comcare v Wuth [2017] FCA 433, (2017) 156 ALD 561 F Hoffmann-La Roche & Co AG v Secretary of State for Trade and Industry [1975] AC 295 Farrell v Comcare [2015] FCA 1337 Kioa v West (1985) 159 CLR 550 Minister for Immigration and Border Protection v WZARH [2015] HCA 40; (2015) 256 CLR 326 Minister of State for Immigration and Ethnic Affairs v Teoh (1995) 183 CLR 273 NBNB v Minister for Immigration and Border Protection [2014] FCAFC 39, (2014) 220 FCR 44 Re Minister for Immigration and Multicultural and Indigenous Affairs; ex parte Lam [2003] HCA 6; (2003) 214 CLR 1 Riley v Comcare [2011] AATA 674 Rodriguez v Telstra Corporation Ltd [2002] FCA 30; (2002) 66 ALD 579 Roxas v Comcare [2012] AATA 747 Saeed v Minister for Immigration and Citizenship [2010] HCA 23; (2010) 241 CLR 252 Seltsam Pty Ltd v Ghaleb [2005] NSWCA 208, (2005) 3 DDCR 1 SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63, (2006) 228 CLR 152 SZSSJ v Minister for Immigration and Border Protection (No 2) [2015] FCAFC 125; (2015) 234 FCR 1 Taylor v The Owners - Strata Plan No 11564 [2014] HCA 9; (2014) 253 CLR 531 Wuth and Comcare [2015] AATA 947