Portors v Comcare [2018] FCA 914

FEDERAL COURT OF AUSTRALIA

Portors v Comcare [2018] FCA 914 File number: ACD 92 of 2017

Judge: ROBERTSON J

Date of judgment: 19 June 2018

Catchwords: WORKERS' COMPENSATION – judicial review of decision of the Administrative Appeals Tribunal affirming reviewable decision that the applicant had no present entitlement to compensation under the Safety, Rehabilitation and Compensation Act 1988 (Cth) (the Act) for his accepted condition of inguinal hernia and umbilical hernia related to the applicant's alleged injury at his workplace in July 2002 – where Tribunal, following Telstra Corporation Ltd v Hannaford [2006] FCAFC 87; 151 FCR 253, while not disturbing Comcare's liability under s 14 of the Act, was satisfied applicant did not suffer a workplace injury in July 2002 – Tribunal also concluded that it followed that any condition arising out of hernia repair surgery could not be an injury for the purposes of the Act – Tribunal stated that one qualification to its conclusion was that a claim for the hernia repair condition may have been successful, pursuant to s 4(3) of the Act, had the applicant made a separate claim under s 14 for that condition – whether Tribunal misconstrued s 4(3) of the Act – whether Tribunal erred in its conclusion that there was no claim before it in respect of the applicant's hernia repair condition – on Comcare's notice of contention, whether the Tribunal erred in concluding that the Tribunal's reassessment of the findings of fact on which the s 14 decision was made nevertheless preserved Comcare's liability to the applicant under s 14 – Held: application dismissed, with costs

Legislation: Administrative Appeals Tribunal Act 1975 (Cth) ss 43, 44 Safety, Rehabilitation and Compensation Act 1988 (Cth) ss 4(3), 14, 16, 19, 54, 61, 62