Brown v Comcare [2003] FCA 261

FEDERAL COURT OF AUSTRALIA

Brown v Comcare [2003] FCA 261 WORKERS COMPENSATION – claim for compensation under Safety, Rehabilitation And Compensation Act 1988 (Cth) – applicant completed claim form as well as election form – common law action not sought by applicant – both forms submitted by mistake – assertion by respondent of election by applicant – nature of election – need for specificity and lack of ambiguity – inconsistent rights – applicant not aware of effect of election form – whether applicant made an election within the meaning of s 45(1) of the Act Safety, Rehabilitation And Compensation Act 1988 (Cth) ss 24, 25, 27, 44, 45 Austral Pacific Group Ltd (in liq) v Airservices Australia (2000) 173 ALR 619 referred to Commonwealth v Flaviano (1996) 40 NSWLR 199 referred to WBK Pty Limited v Grogan (1997) 140 FLR 303 cited Burnett v The Union SS Co of New Zealand Ltd (1936) 36 SR(NSW) 119 cited Sargent v ASL Developments Ltd (1974) 131 CLR 634 applied Robertson v Comcare [2002] AATA 96 discussed Crowe v Comcare Australia (No 2) [2002] FMCA 147 discussed LEONARD BROWN v COMCARE N1415 OF 2002 TAMBERLIN J SYDNEY 28 MARCH 2003

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY N1415 OF 2002

BETWEEN: LEONARD BROWN

APPLICANT

AND: COMCARE

RESPONDENT

JUDGE: TAMBERLIN J

DATE OF ORDER: 21 MARCH 2003

WHERE MADE: SYDNEY

THE COURT DECLARES THAT: The applicant has not made an election in writing to institute an action against the Commonwealth pursuant to s 45(1) of the Safety, Rehabilitation and Compensation Act 1988. THE COURT ORDERS THAT: The respondent pay the applicant's costs on a solicitor-client basis. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA