Leach v Comcare [2021] FCAFC 134

Federal Court of Australia

Leach v Comcare [2021] FCAFC 134 Appeal from: Leach v Comcare [2019] FCA 1698

File number(s): QUD 704 of 2019

Judgment of: COLLIER, CHARLESWORTH, SNADEN JJ

Date of judgment: 30 July 2021

Catchwords: WORKERS COMPENSATION – where primary Judge dismissed an appeal from the Administrative Appeals Tribunal (Tribunal) with respect to the operation of s 53(3)(c) of the Safety, Rehabilitation and Compensation Act 1988 (Cth) (SRC Act) – where appellant sought relief under SRC Act for mental injury claimed to have been suffered prior to 1997 – where workers' compensation claim in respect of injury not lodged until 2016 – whether appellant gave notice as soon as practicable after becoming aware of injury – whether Tribunal and primary Judge erred in findings concerning onus of proof – whether open to Tribunal to make factual findings concerning advice given to appellant in 1997 by appellant's psychologist – whether Tribunal ignored the operation of the rule in Jones v Dunkel (2016) 258 CLR 308; [2016] HCA 35 – whether primary Judge incorrectly applied principles of reasonableness – whether primary Judge conducted impermissible merits review

Legislation: Administrative Appeals Tribunal Act 1975 (Cth) ss 33, 35(3)(b), 44 Occupational Health and Safety (Machinery) Regulations 1985 (Vic) Occupational Health and Safety Act 1985 (Vic) ss 21(1). 21(2)(a) Safety, Rehabilitation and Compensation Act 1988 (Cth) ss 53, 53(1)(a), 53(3)

Cases cited: Abebe v The Commonwealth (1999) 197 CLR 510 Australian Postal Corporation v D'Rozario (2014) 222 FCR 303 Carr v Baker (1936) 36 SR (NSW) 301 Chugg v Pacific Dunlop Limited (1990) 170 CLR 249; [1990] HCA 41 Collins v Minister for Immigration and Ethnic Affairs (1981) 58 FLR 407 Cox v Smail [1912] VLR 274 Drake v Minister for Immigration and Ethnic Affairs (1979) 2 ALD 60 Ekinci v Civil Aviation Safety Authority (2014) 227 FCR 459; [2014] FCAFC 180 Green v Minister for Immigration and Citizenship [2008] FCA 125 Haritos v Commissioner of Taxation (2015) 233 FCR 315; [2015] FCAFC 92 Hart v Commissioner of Taxation (2018) 261 FCR 406 Howes v Comcare [2016] FCA 1521 Jones v Dunkel (2016) 258 CLR 308; [2016] HCA 35 Leach v Comcare [2018] AATA 1632 Leach v Comcare [2019] FCA 1698 McDonald v Director-General of Social Security (1984) 1 FCR 354 Minister for Immigration and Border Protection v Eden (2016) 240 FCR 158; [2016] FCAFC 28 Minister for Immigration and Citizenship v SZJSS (2010) 243 CLR 164 Rawson Finances Pty Ltd v Commissioner of Taxation [2013] FCAFC 26 Re Day (2017) 340 ALR 368; [2017] HCA 2 Shi v Migration Agents Registration Authority (2008) 235 CLR 286 Sun v Minister for Immigration and Border Protection (2016) 243 FCR 220 SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152 Tarrant v Australian Securities and Investments Commission (2015) 317 ALR 328; [2015] FCAFC 8 JD Heydon, Cross on Evidence (LexisNexis, 12th ed, 2020)