Ford v Comcare

1. The appeal be allowed.
2. The Tribunal's decision be set aside and the matter be remitted to the Tribunal to be determined according to law.
3. The Respondent pay the Applicant's costs of the appeal, other than any costs attributable to the preparation of the proposed amended notice of appeal. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

THE COURT: 1 In this proceeding the applicant, Matthew Ford, appeals pursuant to s 44 of the Administrative Appeals Tribunal Act 1975 (Cth) from a decision of the Administrative Appeals Tribunal (Tribunal) affirming the refusal of the respondent, Comcare, to pay him workers' compensation under s 14 of the Safety Rehabilitation and Compensation Act 1988 (SRC Act) for an injury he claimed arose out of or in the course of his employment with the Civil Aviation and Safety Authority (CASA). 2 The parties now jointly propose orders allowing the appeal, remitting the decision to the Tribunal to be determined according to law, and requiring the respondent to pay the applicant's costs of the appeal other than any costs attributable to the preparation of the proposed amended notice of appeal. We are satisfied that such orders are appropriate and we provide the following short reasons. 3 It is uncontentious that the applicant suffered an injury affecting his right eye and surrounding facial bones on 22 March 2016 when he fell on the stairs in a building at 720 Bourke Street Melbourne. It is common ground between the parties that, before the Tribunal, the applicant contended that his injury arose "out of employment" and gave some prominence to the judgement in Telstra Corporation Limited v Bowden [2012] FCA 576; (2012) 206 FCR 207 per Murphy J. The applicant's case before the Tribunal was generally consistent with what are sometimes described as "entry and exit" workers' compensation cases; namely that the applicant had a duty to attend the place of his employment at 720 Bourke Street Melbourne, and in performing that duty he entered the building at that address. He was there for an employment-related purpose and not for a private purpose, and his chosen route up the stairs from the street was one of a range of routes available to him as an employee. It was also put to the Tribunal that the applicant's access to the building was pursuant to a contractual licence under CASA's lease of its premises in the building, which distinguished his access from that of a member of the public. 4 The Tribunal appeared to acknowledge the applicant's case was put in part on this basis, and set out the submissions to this effect over two pages of its reasons. However it then stated at paragraph 102 of its reasons that "[t]here was no suggestion at the hearing that Mr Ford's injury arose out of his employment". Although the Tribunal made some observations that might be construed as finding that there was no sufficient causal relationship to establish that the injury arose out of employment, the parties now both submit, and we accept, that the Tribunal did not give any serious consideration to the applicant's contention that his injury arose out of his employment, including by reference to the terms of CASA's lease. We are satisfied that the Tribunal failed to address the applicant's case in this regard and it is accordingly appropriate to make the orders sought. I certify that the preceding four (4) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justices Murphy, Mortimer and Lee.