Comcare v Laidlaw [1999] FCA 40

FEDERAL COURT OF AUSTRALIA

Comcare v Laidlaw [1999] FCA 40

WORKERS' COMPENSATION – construction and application of s 7(6) Safety, Rehabilitation and Compensation Act 1988 (Cth) – whether s 7(6) precludes the making of a claim based on "injury (other than disease)" when its terms are otherwise satisfied Safety, Rehabilitation and Compensation Act 1988 (Cth) s 4, s 7, s 14(1), s 19(1) Compensation (Commonwealth Government Employees) Act 1971 (Cth), s 29, s 31(4) Australian Postal Corporation v Burch (1998) 156 ALR 483 followed Petkoska v Kennedy Cleaning Services Pty Ltd [1998] FCA 1289 cited Health Insurance Commission v Van Reesch (1996) 45 ALD 302 applied Comcare Australia v Porter (1996) 138 ALR 469 cited Zickar v MGH Plastic Industries Pty Ltd (1996) 187 CLR 310 cited COMCARE V GREGORY KEITH LAIDLAW AG28 OF 1998

FINN J 2 FEBRUARY 1999 CANBERRA

IN THE FEDERAL COURT OF AUSTRALIA

AUSTRALIAN CAPITAL TERRITORY DISTRICT REGISTRY AG28 OF 1998

BETWEEN: COMCARE

Applicant

AND: GREGORY KEITH LAIDLAW

Respondent

JUDGE: FINN J

DATE OF ORDER: 2 FEBRUARY 1999

WHERE MADE: CANBERRA

THE COURT ORDERS THAT: 1. The application be dismissed. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA

AUSTRALIAN CAPITAL TERRITORY DISTRICT REGISTRY AG28 OF 1998

BETWEEN: COMCARE

Applicant

AND: GREGORY KEITH LAIDLAW

Respondent

JUDGE: FINN J

DATE: 2 FEBRUARY 1999

PLACE: CANBERRA

REASONS FOR JUDGMENT 1 Such is the history of this matter that one of the two basic issues that Comcare, the applicant in this appeal from the Administrative Appeals Tribunal ("the Tribunal"), sought to have resolved, has since been determined by the decision of the Full Court of this Court in Australian Postal Corporation v Burch (1998) 156 ALR 483. Comcare had wished to contend that, for the purposes of the Safety, Rehabilitation and Compensation Act 1988 (Cth) ("the SRC Act"), "disease" and "injury" provide mutually exclusive bases for the recovery of compensation for incapacity for work. By "mutually exclusive" I understood Comcare to mean that there could be no possible overlap between the two so that a condition that satisfied the definition of a "disease" for example was not capable as well of founding an "injury (other than disease)" claim. The decision in Burch's case is inconsistent with that contention, as are decisions of this and other courts on relevantly similar workers' compensation legislation: see eg Petkoska v Kennedy Cleaning Services Pty Ltd [1998] FCA 1289 and the cases referred to therein. I merely note that in the present matter Comcare has again sought formally to rely upon this contention while accepting that it must be unavailing. 2 The principal issue remaining to be resolved is of more narrow compass. It relates to the construction to be given s 7(6) of the SRC Act. In order to appreciate how this question arises it is necessary both to outline the statutory setting of s 7(6) and to refer briefly to the circumstances giving rise to this appeal.