Phillips v Commonwealth [1964] HCA 22

High Court of Australia Kitto, Taylor and Owen JJ. Phillips v Commonwealth [1964] HCA 22

ORDER Appeal dismissed with costs.

Cur. adv. vult.

The Court delivered the following written judgment:—

March 25 Kitto, Taylor and Owen JJ.

On 28th November 1956 the appellant was an "employee" to whom the provisions of the Commonwealth Employees' Compensation Act 1930-1956 Cth applied and on that date personal injury by accident arising out of or in the course of her employment was caused to her. During successive periods thereafter she received payments of compensation assessed pursuant to par. 1 (b) of the First Schedule to the Act, that is to say, on the basis that she was totally incapacitated for work. Her entitlement to compensation on this basis was established by a series of successive determinations of the delegate of the Commissioner for Commonwealth Employees' Compensation, the last of which was made on 22nd August 1961. In terms, this determination declared that as from 2nd February 1961 the appellant had been totally incapacitated for work as the result of personal injury by accident arising out of or in the course of her employment by the Commonwealth on 28th November 1956, namely aggravation of a pre-existing condition of brachial plexus lesion and that, in accordance with the provisions of par. 1 (b) of the First Schedule to the Act the appellant "is thereby entitled to the payment of compensation of £10 per week from 2nd February 1961, until a date to be determined by the Commissioner". But on 8th December 1961 the delegate made a further determination by which it was declared that as from 16th November 1961 the appellant "has been able to earn, in some suitable employment or business, a weekly amount which is not less than her pay at the date of injury as since varied, and thereupon she ceased to be entitled to weekly payments of compensation under the said Act". From this determination a so-called appeal was taken to the County Court at Melbourne and upon the appeal being dismissed an appeal was brought to this Court. For the reasons appearing in the report of the case [1] the order of the County Court was discharged and the appeal from the determination of the delegate was remitted to the County Court for rehearing. The rehearing, which has now taken place, again resulted in the dismissal of the appeal from the delegate and a further appeal is now brought to this Court. In substance the principal ground of appeal is that the learned County Court Judge misdirected himself as to the onus of proof in relation to the issue whether the appellant, in the language of par. 1 (c) of the First Schedule to the Act, was, after 16th November 1961, able to earn in some suitable employment or business, a weekly sum not less than her weekly pay at the date of the injury, as since varied.