Terrill, D.J. v. Comcare [1994] FCA 951

JUDGMENT NO sumed Sy IE

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N E_ FEDERAL T_ OF AUST IA

I. APITAL TERRITORY DISTRICT REGISTRY GENERAL DIVISION

No. ACT G 101 of 1993

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ON APPEAL FROM THE GENERAL ADMINISTRATIVE IviI N_OF THE ADMINISTRATIVE PEALS TRIBUNAL

BETWEEN: DESMOND HN TERRILL

Applicant

Respondent

MINUT F ORDER

IN RDER 3: Neaves J. DATE OF ORDER 2 8 December 1994 WHERE MADE : Canberra THE T DER HAT : i. The application be dismissed. 2. The applicant pay the respondent's costs of and

incidental to the application.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

THE E RT OF TRALIA AUST IAN CAPITAL TERRITORY No. ACT G 101 of 1993 TR RE Y

NE Divi

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IN_APP. FROM THE GENERAL ADMINISTRAT Vv IN HE AD. Ist VE_APPE TRIBUNAL

BETWEEN: DESMOND HN _ TERRILL

Applicant

Respondent

CORAM: Neaves J.

DATE: 8 December 1994

REASONS FOR DGMENT

Desmond John Terrill ("the applicant") has applied to this Court by way of appeal pursuant to subs.44(1) of the Administrative Appeals Tribunal Act 1975 (Cth) from the decision of the Administrative Appeals Tribunal ("the Tribunal") given on 8 October 1993 affirming the decision made on 26 May 1992 denying the applicant's claim for compensation

in respect of cardiovascular disease and stress.

It is common ground that, although the claim for compensation was made pursuant to the Safety, Rehabilitation and Compensation Act 1988 (Cth), any entitlement of the applicant is to be ascertained by reference to the provisions of the Compensation (Commonwealth Government Employees) Act 1971 (Cth) ("the 1971 Act").

The 1971 Act relevantly provided, by subs.29(1), that where an employee contracted a disease or suffered an aggravation, acceleration or recurrence of a disease and any employment by the Commonwealth was a contributing factor to the contraction of the disease or the aggravation, acceleration or recurrence, as the case might be, whether or not the disease was contracted or the aggravation, acceleration or recurrence was suffered in the course of that employment, the succeeding provisions of s.29 had effect. Under subs.29(2), if the total or partial incapacity for work of the employee resulted from the disease, or the aggravation, acceleration or recurrence of the disease, then, for the purposes of the 1971 Act and unless the contrary intention appeared, the contraction of the disease, or the aggravation,