Comcare Australia v Bond [2004] FCA 1152

FEDERAL COURT OF AUSTRALIA

Comcare Australia v Bond [2004] FCA 1152 COMCARE AUSTRALIA v VICTOR BOND Q16 OF 2004 COOPER J 6 SEPTEMBER 2004 BRISBANE

IN THE FEDERAL COURT OF AUSTRALIA

QUEENSLAND DISTRICT REGISTRY Q16 OF 2004

ON APPEAL FROM THE ADMINISTRATIVE APPEALS TRIBUNAL

BETWEEN: COMCARE AUSTRALIA

APPLICANT

AND: VICTOR BOND

RESPONDENT

JUDGE: COOPER J

DATE OF ORDER: 6 SEPTEMBER 2004

WHERE MADE: BRISBANE

THE COURT ORDERS BY CONSENT THAT:

1. The appeal be allowed.

2. The decision of the Administrative Appeals Tribunal be set aside.

3. Calculation of the respondent's normal weekly earnings be remitted to the Administrative Appeals Tribunal for determination according to law.

4. The applicant pay the respondent's costs of these proceedings.

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 Q16 OF 2004

ON APPEAL FROM THE ADMINISTRATIVE APPEALS TRIBUNAL

BETWEEN: COMCARE AUSTRALIA

APPLICANT

AND: VICTOR BOND

RESPONDENT

JUDGE: COOPER J

DATE: 6 SEPTEMBER 2004

PLACE: BRISBANE

REASONS FOR JUDGMENT

1 I have considered the draft consent orders and the errors of law relied upon by the parties to support the making of such orders. 2 The Administrative Appeals Tribunal ('the AAT') had before it a decision of Comcare whereby it determined that the applicant was entitled to compensation under the Safety, Rehabilitation and Compensation Act 1988 (Cth) ('the Act') for incapacity for work on and from 22 July 1997 at 75 per cent of the normal weekly earnings in accordance with par 19(3)(a) of the Act. The AAT determined to set aside the decision and to remit the matter to Comcare with a direction that the determined amounts for incapacity payments be indexed to the consumer price index on an annual basis for the period prior to 1 October 2001. 3 The Safety, Rehabilitation and Compensation and Other Legislation Amendment Act 2001 (Cth), Act No 144 of 2001, so far as it amended the Act, came into operation six months after it received Royal Assent on 1 October 2001: see s 2(4). In consequence, the existing s 8(9) of the Act was repealed and in lieu thereof was inserted a new Pt 2 dealing with indexation of normal weekly earnings, as defined, of an employee. As and from 1 April 2002, the employee's entitlement to have his or her normal weekly earnings adjusted was to be determined by the provisions of ss 8(9), 8(9A), 8(9B), 8(9C) and 8(9D) of the Act as amended. 4 Relevantly, that required that as and from 1 July 2002, the respondent to this appeal was entitled to have his normal weekly earnings indexed in accordance with s 8(9B) and s 8(9D) and Pt 2 reg 5 of the Safety, Rehabilitation and Compensation Regulations 2002. That is in accordance with the prescribed index, the Wage Cost Index Australia (Total hourly rates of pay – excluding bonuses/all Australia/all industrials/all occupations), published by the Australian Bureau of Statistics. 5 The calculation of the employee's normal weekly earnings for the period prior to 1 July 2002 was to be in accordance with s 8(9) and s 8(9A) of the Act as amended, which does not make any statutory provision for the indexation of such earnings to the consumer price index on an annual basis. 6 Accordingly, I am satisfied that the AAT erred in its discretion as to indexation in accordance with the consumer price index and that its decision ought to be set aside and the matter remitted for determination according to law and these reasons.