Nipperess v Military Rehabilitation and Compensation Commission [2006] FCA 943

FEDERAL COURT OF AUSTRALIA

Nipperess v Military Rehabilitation and Compensation Commission [2006] FCA 943

ADMINISTRATIVE LAW – claim for compensation for alleged injury during military service – failure to consider issues raised by the evidence – whether finding of no evidence justified – whether Tribunal improperly confined itself because of questions asked of applicant – whether questions amounted to procedural unfairness – aggravation not claimed by applicant – whether evidence raised issue of aggravation which Tribunal was obliged to consider – duty owed to unrepresented litigant Held: (1) The Tribunal did not err in finding that the evidence did not support the claim of the applicant to have suffered subclinical compression fractures during his period of service. (2) The evidence before the Tribunal relating to aggravation in the absence of a compression fracture was too skimpy and uncertain to oblige the Tribunal to consider the issue in the absence of any claim by the applicant on that ground.

Administrative Appeals Tribunal Act 1975 (Cth) s 33 Safety, Rehabilitation and Compensation Act 1988 (Cth) s 4 Commissioner of Taxation (Cth) v Cainero (1988) 15 ALD 368 considered Coulton and Ors v Holcombe and Ors (1986) 162 CLR 1 referred to Mifsud v Campbell (1991) 21 NSWLR 725 referred to Minister for Health v Charvid Pty Ltd (1986) 10 ALD 124 applied Minogue v Human Rights and Equal Opportunity Commission (1999) 84 FCR 438 referred to NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) (2004) 219 ALR 27 referred to Neil v Nott (1994) 68 ALJR 509 applied Rajski and Anor v Scitec Corporation Pty Ltd (unreported, Court of Appeal of New South Wales, 16 June 1986) considered Re Martin and Commonwealth (1983) 5 ALD 277 referred to Riordan v Australian Sports Drug Agency (2002) 120 FCR 424 considered Sullivan v Department of Transport (1978) 20 ALR 323 considered