Simmons v Comcare [2013] FCA 484

FEDERAL COURT OF AUSTRALIA

Simmons v Comcare [2013] FCA 484 Citation: Simmons v Comcare [2013] FCA 484

Appeal from: Michael Simmons v Comcare [2012] AATA 687

Parties: MICHAEL SIMMONS v COMCARE

File number: ACD 78 of 2012

Judge: RARES J

Date of judgment: 13 May 2013

Date of orders: 23 May 2013

Catchwords: ADMINISTRATIVE LAW – statutory construction – calculation of normal weekly earnings in respect of entitlement to compensation under s 8 of the Safety, Rehabilitation and Compensation Act 1988 (Cth) – construction of ss 8(10)(a) and 8(10)(b) – where employee paid allowance pre-injury in respect of his employment – where employee after injury chooses to transfer employment to other duties with same employer for personal reasons unrelated to injury thus losing entitlement to allowance – whether relevant employment was as employee of Commonwealth or employee in particular type of employment by Commonwealth – where employee subsequently ceases to be employed by Commonwealth – whether allowance should have been excluded from calculations of normal weekly earnings receivable if employee had continued to be employed by Commonwealth in employment in which he was engaged at either the date of injury or the date of ceasing to be employed by Commonwealth

Legislation: Administrative Appeals Tribunal Act 1975 (Cth) s 44 Safety, Rehabilitation and Compensation Act 1988 (Cth) ss 8, 19

Cases cited: John Holland Group Pty Ltd v Robertson (2010) 185 FCR 566 applied Minister for Immigration v Wu Shan Liang (1995) 185 CLR 259 applied

Date of hearing: 13 May 2013