Fitzwarryne v Comcare [1999] FCA 409

FEDERAL COURT OF AUSTRALIA

Fitzwarryne v Comcare [1999] FCA 409 ADMINISTRATIVE LAW – workers' compensation – evidence - appeal from a decision of the Administrative Appeals Tribunal – circumstances in which fresh evidence will be admitted at the hearing of an appeal Safety, Rehabilitation and Compensation Act 1988 (Cth) s 4(1), s 14(1) Administrative Appeals Tribunal Act 1975 (Cth) s 44 Comcare v Mooi (1996) 137 ALR 690 applied Sullivan v Department of Transport (1978) 20 ALR 323 referred to Servos v Repatriation Commission (1995) 56 FCR 377 referred to Percerep v Minister for Immigration and Multicultural Affairs [1998] FCA 1088 applied Chowdhary v Bayne [1999] FCA 41 referred to PAUL FITZWARRYNE v COMCARE AG 45 of 1997 FINN J MELBOURNE (HEARD IN CANBERRA) 14 APRIL 1999

IN THE FEDERAL COURT OF AUSTRALIA

AUSTRALIAN CAPITAL TERRITORY DISTRICT REGISTRY AG 45 OF 1997

BETWEEN: PAUL FITZWARRYNE

Applicant

AND: COMCARE

Respondent

JUDGE: FINN J

DATE OF ORDER: 14 APRIL 1999

WHERE MADE: MELBOURNE (HEARD IN 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 AG 45 OF 1997

BETWEEN: PAUL FITZWARRYNE

Applicant

AND: COMCARE

Respondent

JUDGE: FINN J

DATE: 14 APRIL 1999

PLACE: MELBOURNE (HEARD IN CANBERRA)

REASONS FOR JUDGMENT 1 Mr Paul Fitzwarryne has appealed to this Court from a decision of the Administrative Appeals Tribunal ("the Tribunal") that found, for the purposes of his claim for compensation under the Safety, Rehabilitation and Compensation Act 1988 (Cth) ("the SRC Act"), that he did not suffer an injury, nor was he incapacitated for work. Both an injury and resultant incapacity are preconditions of Comcare's liability to pay compensation: SRC Act, s 14(1). In this appeal the Tribunal is alleged to have been in error in arriving at each of these conclusions. It is also claimed there was a lack of procedural fairness arising from the circumstances of the hearing itself. The procedural fairness claim will be considered in the final part of these reasons.