Frosch v Comcare [2004] FCA 1642

FEDERAL COURT OF AUSTRALIA

Frosch v Comcare [2004] FCA 1642

WORKERS COMPENSATION – injury to Commonwealth employee – notice of injury to be given to relevant authority – question of law – whether information in document constitutes notice required by s 53 of Safety, Rehabilitation and Compensation Act 1988

Safety, Rehabilitation and Compensation Act 1988 (Cth), s 53(1) JEANNENE HEATHER FROSCH v COMCARE ACD 10 of 2004 WHITLAM J SYDNEY (HEARD AT CANBERRA) 15 DECEMBER 2004

IN THE FEDERAL COURT OF AUSTRALIA

AUSTRALIAN CAPITAL TERRITORY

DISTRICT REGISTRY ACD 10 of 2004

ON APPEAL FROM THE ADMINISTRATIVE APPEALS TRIBUNAL CONSTITUTED BY MR G A MOWBRAY

BETWEEN: JEANNENE HEATHER FROSCH

APPLICANT

AND: COMCARE

RESPONDENT

JUDGE: WHITLAM J

DATE OF ORDER: 15 DECEMBER 2004

WHERE MADE: SYDNEY

THE COURT ORDERS THAT: 1. The appeal is allowed with costs. 2. The decision of the Administrative Appeals Tribunal ('the Tribunal') given on 16 April 2004 is set aside. 3. The application for review of the decision made by the respondent's delegate on 20 March 2003 is remitted to the Tribunal to be heard and decided again. 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 ACD 10 of 2004

ON APPEAL FROM THE ADMINISTRATIVE APPEALS TRIBUNAL CONSTITUTED BY MR G A MOWBRAY

BETWEEN: JEANNENE HEATHER FROSCH

APPLICANT

AND: COMCARE

RESPONDENT

JUDGE: WHITLAM J

DATE: 15 DECEMBER 2004

PLACE: SYDNEY

REASONS FOR JUDGMENT 1 This is an appeal from a decision of the Administrative Appeals Tribunal ('the Tribunal') given on 16 April 2004 in a proceeding under Pt VI of the Safety, Rehabilitation and Compensation Act 1988 ('the Act'). 2 The applicant, Jeannene Heather Frosch ('Mrs Frosch'), was formerly employed in the Commonwealth Superannuation Administration ('ComSuper'). On 5 September 2002 she made a claim for compensation under the Act. That claim was rejected by a delegate of the respondent ('Comcare'). The delegate found that Mrs Frosch had suffered a disease for which she had first sought medical treatment on 23 December 1997 (when her GP, Dr Glenn Rosendahl, had diagnosed her as 'significantly depressed'), but the delegate considered that that disease did not fall within the definition of 'disease' in s 4(1) of the Act because her ailment was not 'contributed to in a material degree' by her employment. That determination was reconsidered at Mrs Frosch's request, but another delegate of Comcare affirmed the original determination because she was also not satisfied that Mrs Frosch's employment materially contributed to her condition. Mrs Frosch then applied to the Tribunal for a review of that decision. 3 Although Mrs Frosch's claim was determined on its substantial merits by Comcare's delegates, the Tribunal disposed of the proceeding before it by reference to 'the preliminary question of whether Mrs Frosch had satisfied the notice requirement in section 53'. In order to answer that question, the Tribunal identified two issues. This appeal concerns the first of those issues, which the Tribunal formulated in the form of a question as 'did Dr Rosendahl's certificate of 8 January 1998 constitute notice for the purposes of section 53'. 4 Section 53(1) of the Act provides: 'This Act does not apply in relation to an injury to an employee unless notice in writing of the injury is given to the relevant authority: