Military Rehabilitation & Compensation Commission v Perry [2007] FCA 1862

INTRODUCTION 1 This matter was argued in the Administrative Appeals Tribunal ('the Tribunal') on the question of the retrospective operation of s 8(9B) of the Safety, Rehabilitation and Compensation Act 1988 (Cth) ('the SRC Act'). Section 8(9B) was introduced into the Act by the Safety, Rehabilitation and Compensation and Other Legislation Amendment Act 2001 (Cth) ('the Amending Act') which commenced after the respondent ('Mr Perry') was injured. The Tribunal decision in favour of Mr Perry was that s 8(9B) did not have retrospective operation and was therefore not applicable to an employee injured prior to the commencement of the Amending Act ('the retrospectivity issue'). The Tribunal decided the application before it on the basis of the issues presented by the parties. 2 The appeal to this Court was initially limited to the retrospectivity issue and the notice of appeal and written and oral submissions centred on it. It was during the initial hearing of the appeal that the effect of the reference in s 8(9B) to s 8(6) of the SRC Act and the construction of s 8 ('the construction issue') became a subject of submissions and consideration by the parties. 3 The matter was adjourned to enable the parties to address the construction issue. Further written submissions were filed and, when the hearing of the appeal resumed, the parties addressed on both the construction issue and the retrospectivity issue. 4 The reasons for judgment addressed both issues (Military Rehabilitation & Compensation Commission v Perry [2007] FCA 1586). Theapplicant ('the Commission') was successful on the retrospectivity issue but unsuccessful on the construction issue (at [59]-[60]). It was therefore unsuccessful in its challenge to the decision under review in the Tribunal. Accordingly, the application was dismissed (at [61]).