van Oostveen v Commonwealth of Australia [1998] FCA 465

IN THE FEDERAL COURT OF AUSTRALIA

QUEENSLAND DISTRICT REGISTRY QG 180 of 1996

BETWEEN: WILLIAM VAN OOSTVEEN

Applicant

AND: commonwealth of Australia

Respondent

JUDGE: DRUMMOND J

DATE OF ORDER: 24 APRIL 1998

WHERE MADE: BRISBANE

THE COURT ORDERS THAT: 1. The application be struck out and dismissed. 2. The applicant pay the respondent's costs of and incidental to this action. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA

QUEENSLAND DISTRICT REGISTRY QG 180 of 1996

BETWEEN: WILLIAM VAN OOSTVEEN

Applicant

AND: commonwealth of australia

Respondent

JUDGE: DRUMMOND J

DATE: 24 APRIL 1998

PLACE: BRISBANE

REASONS FOR JUDGMENT

I have before me a notice of motion by the Commonwealth of Australia, the respondent in the action commenced against it by Mr Van Oostveen, seeking, among other things, an order striking out the action.

In October 1996 Mr Van Oostveen filed an amended application and an amended statement of claim in this action. In the statement of claim he alleges that by reason of certain events that occurred and certain conduct to which he was subjected, which amount to either a breach of his contract of employment and/or negligence on the part of the Commonwealth as his employer, he suffered an anxiety and stress condition. He claims damages in respect of past and future economic and non-economic loss in respect of that injury.

The Commonwealth responds by saying that this action is barred by s 44 the Safety Rehabilitation and Compensation Act 1998 (Cth). That provision does, in my opinion, operate to bar Mr Van Oostveen's action, unless he can bring himself within the qualification to that bar contained in s 45 of the Act. In order to show that his action is within the qualification provided for by s 45, Mr Van Oostveen has to show, firstly, that the subject matter of his claim in the action is one in respect of which compensation is payable, under ss 24, 25 or 27 of the Act, to him in respect of an injury suffered by him in his capacity as an employee of the Commonwealth; secondly, that the circumstances in which the injury was suffered is one in which the Commonwealth would be liable for damages for non-economic loss but for s 44 of the Act; and finally, that he has given a notice in writing of his election to institute the action that is presently before me.