Lilley v Comcare [2013] FCA 26

FEDERAL COURT OF AUSTRALIA

Lilley v Comcare [2013] FCA 26 Citation: Lilley v Comcare [2013] FCA 26

Appeal from: Wayne Lilley v Comcare [2011] AATA 474

Parties: WAYNE PETER LILLEY v COMCARE

File number: ACD 44 of 2011

Judge: RARES J

Date of judgment: 25 January 2013

Catchwords: ADMINISTRATIVE LAW – appeal from decision of Administrative Appeals Tribunal affirming decision of Comcare to reject applicant's claim for compensation for permanent impairment – where delegated legislation set out criteria by which the degree of permanent impairment, expressed as a percentage, is to determined – whether prescribed criteria of impairment set or provide objective standards that can be applied with certainty STATUTORY INTERPRETATION – construction of legislative instrument – whether the Tribunal erred by holding that only evidence based on clinical testing by a medical practitioner was relevant to the assessment of degree of permanent impairment Held: there was no basis in the Guide to the Assessment of the Degree of Permanent Impairment (2nd Ed) or s 28 of the Safety Rehabilitation and Compensation Act 1988 (Cth) to require medical opinions to be based only on clinical testing for the criteria of permanent impairment – the criteria for 5% and 10 % impairment in Table 9.7 of the Guide do not set or provide objective standards that can be applied with certainty and are invalid

Legislation: Acts Interpretation Act 1901 (Cth) Administrative Appeals Tribunal Act 1975 (Cth) s 44 Administrative Decisions (Judicial Review) Act 1977 (Cth) s 5 Judiciary Act 1903 (Cth) s 39B Legislative Instruments Act 2003 (Cth) ss 13(1) and (1)(a) Safety Rehabilitation and Compensation Act 1988 (Cth) ss 4(1), 14(1), 24(1), (5), (6) and (7), 28(1), 28(1)(a) and (c), 28(4)