Rus v Comcare

1. The case be remitted to the Administrative Appeals Tribunal limited to a reconsideration of the question of whether Mr Rus was an employee of the Australian Wool Board, for the purposes of s 5 of the Safety, Rehabilitation and Compensation Act 1988 (Cth).
2. The reconsideration referred to in Order 1 be determined without further evidence, unless proper cause be shown.
3. The respondent pay the applicant's costs of the appeal as agreed or taxed. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

BROMBERG J: 1 On 10 March 2017 I made an order that the decision of the Administrative Appeals Tribunal ("Tribunal") made on 20 January 2016 be set aside. I also made orders requiring the parties to address the scope of the remittal of the case to the Tribunal for redetermination. Further, I gave the parties an opportunity to confer as to the question of costs. 2 The orders made were supported by reasons for judgment published as Rus v Comcare [2017] FCA 239 in which I observed that the sole issue which arose on the appeal was whether, in determining that it could not make a finding that Francis (Frank) Rus ("Mr Rus") was an employee of the Australian Wool Board ("AWB"), the Tribunal erred in law. 3 The issue of costs has now been agreed. On that basis I shall make an order that the respondent ("Comcare") pay the applicant's ("Mrs Rus") costs of the appeal. 4 As to the scope of the remittal, the parties are not agreed and have filed competing contentions which I have determined on the papers. 5 On the question of the scope of the remittal, both parties agree that the remittal should be limited to a reconsideration of whether Mr Rus was an employee of AWB. However, the parties are in dispute as to whether that reconsideration should be confined to the evidence that was before the Tribunal at the initial hearing (for which Mrs Rus contends) or alternatively, the reconsideration be not so confined (Comcare's position). 6 Comcare's submission makes it apparent that Comcare may want to put before the Tribunal additional evidence, not relied upon at the initial hearing, going to the question of whether or not Mr Rus was an employee of AWB. Comcare seeks the opportunity to put a more comprehensive evidentiary case on the remittal than the case it chose to put before the Tribunal at the first hearing. 7 Comcare's submission does not identify why, given the nature of the error of law identified by the Court, it would be necessary for further evidence to be adduced. As Mrs Rus correctly contends, this is not a case where the Tribunal committed any error of law which may have impacted on the material findings of fact it made. In this case, the error of law made by the Tribunal was that if failed to have regard to material before it that it should have taken into account. That failure does not call for additional evidence to be adduced in order for the Tribunal to perform its task free of the error identified by the Court. 8 As I said in Negri v Secretary, Department of Social Services (No 2) [2016] FCA 1125 at [7] in dealing with a question as to the scope of a remittal: The AAT Act in ss 2A and 33 promotes the idea that reviews carried out by the Tribunal be dealt with economically. Whilst the need for economy does not trump the need for a fair review conducted according to law, there is nothing before me to suggest that such a result could not be achieved on the evidence already before the Tribunal. 9 I am not persuaded that a fair reconsideration of this case on remittal requires that any new evidence be adduced. To the contrary, it seems to me, on the basis of the submissions made by Comcare, that there will be unfairness involved if Comcare were permitted to adduce evidence which could have been adduced at the initial hearing. 10 However, as I also said at [7] of Negri, I should take into account that the unexpected sometimes happens and that inflexibility may hinder a fair result. 11 What I therefore propose to do, as I did in Negri, is order that the case be remitted for redetermination without further evidence unless proper cause be shown. That course will reserve to the Tribunal a capacity to admit fresh evidence if proper cause is shown. I certify that the preceding eleven (11) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Bromberg.