Mindin, Richard v Comcare [1998] FCA 1235

FEDERAL COURT OF AUSTRALIA COMMONWEALTH EMPLOYEES' COMPENSATION – Central serous retinopathy – Disease or injury – Whether link between stress suffered in course of employment and condition – Tribunal not satisfied on balance of probabilities of existence of link – Whether thus wrongly imposed onus of proof on applicant. Compensation (Commonwealth Government Employees) Act 1971 ss 27, 29 Accident Compensation Tribunal v McIntosh [1992] 2 VR 253 cited New South Wales Associated Blue‑Metal Quarries Ltd v Commissioner of Taxation (Cth) (1956) 94 CLR 509 applied Mills v Australian Postal Corporation (1994) 19 AAR 330 applied Collector of Customs v Pozzolanic Enterprises Pty Ltd (1993) 115 ALR 1 applied McDonald v Director General of Social Security (1984) 6 ALD 6 mentioned

RICHARD MINDIN v COMCARE VG 605 of 1997 SUNDBERG J 30 SEPTEMBER 1998 MELBOURNE

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY VG 605 of 1997

BETWEEN: richard mindin

Applicant

AND: comcare

Respondent

JUDGE: SUNDBERG J

DATE OF ORDER: 30 SEPTEMBER 1998

WHERE MADE: MELBOURNE

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

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY VG 605 of 1997

BETWEEN: richard mindin

Applicant

AND: comcare

Respondent

JUDGE: SUNDBERG J

DATE: 30 SEPTEMBER 1998

PLACE: MELBOURNE

REASONS FOR JUDGMENT

BACKGROUND On 18 August 1995 the Administrative Appeals Tribunal affirmed a decision that the Department of Defence was not liable to pay the applicant compensation under the Compensation (Commonwealth Government Employees) Act 1971 ("the Act") in respect of central serous retinopathy ("CSR") suffered by him. The applicant successfully appealed to this Court against the Tribunal's decision. O'Loughlin J set aside the decision on the ground that the Tribunal had not determined whether the CSR constituted a "disease" under s 29 or an "injury" under s 27 of the Act, or whether, if the applicant suffered stress in the course of his employment, there was a causative link between the stress and the CSR for the purposes of s 29 or s 27. His Honour remitted the matter to the Tribunal for rehearing. On the rehearing, after receiving additional evidence and submissions, the Tribunal affirmed the decision under review. The present application is an appeal from that decision.