Mellor v Australian Postal Corporation [2009] FCA 504

FEDERAL COURT OF AUSTRALIA

Mellor v Australian Postal Corporation [2009] FCA 504

ADMINISTRATIVE LAW – appeal from and application for review of decision of Administrative Appeals Tribunal – pre-existing medical conditions – applicant suffered pain while at work – no change to underlying pathology – whether Tribunal failed to appreciate that pain can constitute an aggravation for the purposes of the Safety, Rehabilitation and Compensation Act 1988 (Cth) – whether Tribunal failed to appreciate that an aggravation of a pre-existing condition can be an injury for the purposes of the Act – whether Tribunal assumed that there must be a change to underlying pathology for employer to be liable – Tribunal found that work contributed to pain but that effect was not material – whether question of materiality is directed to the effect of an aggravation – whether matter should be remitted to Tribunal

Administrative Appeals Tribunal Act 1975 (Cth) Administrative Decisions (Judicial Review) Act 1977 (Cth) Safety, Rehabilitation and Compensation Act 1988 (Cth) ss 4, 14

Asioty v Canberra Abattoir Proprietary Limited (1989) 167 CLR 533 referred to Comcare v Canute (2005) 148 FCR 232 cited Comcare v Sahu-Khan (2007) 156 FCR 536 considered Commonwealth of Australia v Beattie (1981) 35 ALR 369 considered Federal Broom Company Pty Limited v Semlitch (1964) 110 CLR 626 considered Tippett v Australian Postal Corporation (1998) 27 AAR 40 considered THOMAS MELLOR v AUSTRALIAN POSTAL CORPORATION AND ADMINISTRATIVE APPEALS TRIBUNAL

NSD 1933 of 2008

BENNETT J

19 MAY 2009

SYDNEY IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY NSD 1933 of 2008

ON APPEAL FROM THE ADMINISTRATIVE APPEALS TRIBUNAL CONSTITUTED BY DR I ALEXANDER, MEMBER

BETWEEN: THOMAS MELLOR

Applicant

AND: AUSTRALIAN POSTAL CORPORATION