ADMINISTRATIVE APPEALS TRIBUNAL

“Significant” contribution -

ComCare claimsBy David Richards.

David Richards is a Barrister practicing from Henry Parkes Chambers in Sydney and Canberra and a Part

Time Lecturer in the Graduate Studies Law Program at the Australian National University.

On 19 January 2007 the Federal Court handed down the decision of Comcare vSahu-Khan (2007) FCA 15 which has changed the law relating to material contribution under the Safety Reha­bilitation and Compensation Act 1988 (the SRC Act).As a result of this decision, employees suffering from a disease will have to prove that, having regard to all relevant contributing factors, their employ­ment significantly contributed to the disease.

From 1990 until 2005 the leading authority as to what constituted "material'' contribution was the Full Court decision of Treloar v Australian Tele­communications Commission (1990) 26 FCR 316. The test in Treloar only required a link between the employment and the disease.

In December 2005 material contribution was consid­ered by the Federal Court in Comcare v Canute (2005) FCAFC 262. The Federal Court held that the employment contribution to the disease must be "more than a mere contributing factor”.

On 19 January 2007 Finn J in the decision of Comcare v Sahu-Khan (2007) FCA 15 went further than Canute and in ratio decidendi set out certain principles relating to the interpretation of "mate­rial” contribution under the SRC Act. As with the reasons in Canute, Finn J in Sahu-Khan referred to the Second Reading Speech made by parliament relating to changes to employee entitlements under the then new SRC Act.

At paragraph of 15 in Sahu-Khan Finn J referred to the definition of "materially” in the Shorter Oxford Dictionary' and found that the definition: "In a Mate­rial degree; substantially, considerably”; probably captured the essence of what the legislature was conveying in the SRC Act.

Finn J in Sahu-Khan at paragraph 16 found the following principles as the best that could ultimately said of the definition of "materially” under s.4 of the SRC Act:

The Federal Court in Canute referred to the Second Reading Speech of Parliament on the introduction of the SRC Act. French and Stone JJ in Canute noted that the Minister for Social Security stated in the Second Reading Speech:

It is intended that the test will require an employee to demonstrate that his or her employment was more than a mere contributing factor in the contraction of the disease. Accordingly, it will be necessary for an employee to show that there is a close connection between the disease and the employment in which he or she was engaged.

(i) (Material Contribution) requires a stronger causal relationship between the employment and the ailment, etc suffered than that exacted by the 1971 Act;

(ii) "in a material degree” requires an evaluation of all relevant contributing factors for the purpose of asking whether the employee's employ­ment did or did not contribute materially to the suffering of the ailment, etc, in question ("the threshold evaluation”);

(iii) whether this will be so in a given case will be a matter of fact and degree.

(Second Reading Speech. Australia. House of Representatives, Debates, 27 April 1988, p2191)

Although obiter dictum, it was clear that the majority in Canute intended to "tighten'’ the test set out in Treloar to require that the contribution be more than a mere contributing factor.

Following the Canute and Sahu-Khan decisions, a summary of the requirements for establishing” material” contribution under the SRC Act may be summarised as follows:1. There must be a link between the disease and the

employment (Treloar);continued page 22...

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Disciplinary Matters 2006-2007

cont...3. a total fine be imposed of 30 penalty units

(total $3,300).

LEGAL PROFESSION ACT 2006Practitioners should note that under the Legal Profession Act 2006, due in effect from 31 March 2007, the Law Society is required to keep a Register of Disciplinary Action taken against practitioners which must be made available to the public via its website: s. 541.

The Register applies to disciplinary action taken after 31 March 2007 but may include details of past disciplinary action. Disciplinary action is defined as an order made by a court or tribunal for professional misconduct or where the following applies: removal of the practi­tioner's name from the Roll, the suspension or cancellation of a practising certificate, refusal to grant or renew a practising certificate or the appointment of a manager or receiver.

“Significant” contribution -

ComCare claims cont...2. The contribution must be more than a mere

contributing factor (Canute);3. The definition of substantially or considerably in

the Shorter Oxford Dictionary probably captured the essence of what the legislature was conveying in the SRC Act (Sahu-Khan);

4. The 1988 SRC Act requires a stronger relation­ship between the employment and the disease than the earlier 1971 Act (Sahu-Khan);

5. Material degree requires consideration of all relevant contributing factors when determining whether the employment contribution "materi­ally” contributed to the disease (Sahu-Khan);

6. Material contribution will be a matter of fact and degree (Sahu-Khan).

Notwithstanding the summary of the authorities set out above, a practical application of law as it now stands under the SRC Act relating to "material’ contribution, is that an employee will be required to prove that his or her employment contributed substantially or considerably to his or her disease in order to be entitled to compensation.

This convention has it all

Australian Federal Police Commissioner Mick Keelty, NSW Supreme Court Chief Justice James Spigelman and Chief Counsel for Telstra Will Irving headline an impressive gathering of guest speakers set to take the stage at the up­coming 35th Australian Legal Convention.Name a topic relevant to lawyers and there is a good chance it will be covered during the convention, set to take place in Sydney in March.

The convention will provide a forum where leaders of the legal profession from Australia and overseas can hold their dedicated meetings and then join each other in plenary and social events.

The business program promises to be stimulating and rewarding, with leading legal figures involved in presentations and debates of the highest order.

Criminal law, international law, human rights, legal professional privilege and tort law reform are just some of the issues that will be discussed.

Commissioner Keelty’s address during major plenary session on Friday, 23 March will be one of the conference highlights.

The sessions featuring Chief Justice Spigelman and Mr Irving will also be drawcards.

Other speakers include well-known Melbourne silk Lex Lasry QC and the Chief Justice of the Supreme Court of Delaware, Myron Steele.

High Court Chief Justice Murray Gleeson’s address on the State of the Judicature, Federal Attorney-General Philip Ruddock’s speech on the Law and Government, and an entertaining hypothetical moderated by media personality Julie McCrossin also promise to entertain and inform.

During the convention, the inaugural Law Council Award will be presented to an Australian lawyer who has made an outstanding contribution to the legal profession.

And, for the first time, the NSW Bar Association media awards will be hosted by the Australian Legal Convention. These awards recognise excellence in journalism in the law and justice fields.

All of these activities will take place in the heart of thriving Sydney, with the jewel in the city’s crown - the harbour - providing the ultimate backdrop.

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