Australia: Do not forget about material evidence: Federal Court finds Tribunal must not disregard subjective statements

Last Updated: 25 August 2017
Article by James Makowiak and Nathan Hepple

Rus v Comcare [2017] FCA 239

Key Points

  • The Federal Court was asked to consider whether the Tribunal had erred in determining that statements as to a witness' belief in his own employment with a Commonwealth authority had no probative value.
  • This case reminds us that any evidence – even subjective evidence provided after the fact – should not be dismissed by the Tribunal as irrelevant, if that evidence is important to the determination of a critical fact in issue.


In 2013, at the age of 63, Mr Rus died of mesothelioma caused by exposure to asbestos. His wife brought a claim for compensation under the Safety, Rehabilitation and Compensation Act (SRC Act). The basis for the claim was that Mr Rus had contracted mesothelioma while employed by the Australian Wool Board (AWB) during 1965 and 1966.

Comcare denied liability for the claim, and Ms Rus sought further review at the Administrative Appeals Tribunal.

Tribunal decision

At first instance, the Tribunal heard that during the time Mr Rus had worked at AWB, he performed maintenance work. There was no evidence of any written contract in respect of work done.

The Tribunal looked at the definition of "employee" in s 5(1) of the SRC Act and determined that to meet the requirements of the definition, it needed to be satisfied that Mr Rus was employed by AWB either under a law of the Commonwealth, or a contract of service. Ultimately, the Tribunal considered that it was not able to determine whether Mr Rus was an employee of AWB, an employee of a contractor engaged by AWB, or an independent contractor engaged by AWB. The Tribunal therefore held it could not find Mr Rus had been employed by AWB, and found that there was no liability for the claim.

Mrs Rus appealed to the Federal Court, contending that the Tribunal erred by ignoring statements made by Mr Rus that he had been employed by AWB or that he had worked "for" AWB. These 'statements' were not the direct evidence of Mr Rus, but evidence of what he had told variously his son, daughter-in-law, solicitor and medical practitioners. There was also evidence contained in answers to interrogatories sworn by Mr Rus as to the dates he commenced and ceased "working" for AWB. The Tribunal accepted the evidence as fact.

However, Ms Rus contended that the Tribunal erroneously regarded those statements as being of no assistance on the question of whether or not Mr Rus was employed by AEB.

The law

To be regarded as an 'employee' under the SRC Act, a person must perform work for a Commonwealth corporation under a law or a contract, and ordinarily be entitled to compensation in respect of injury, loss or damage suffered by them in connection with that work pursuant to that law or contract.

The distinction between an 'employee' and a contractor is "rooted fundamentally in the difference between a person who serves his employer in his, the employer's, business, and a person who carries on a trade or business of his own": Hollis v Vabu Pty Ltd [2001] HCA 44.

Factors taken into consideration by previous Courts as to whether a person is an 'employee' include the intention of the parties forming the relationship, any contract (or lack thereof), the degree of control exercisable by the employer, and the 'label' the parties place on their relationship: ACE Insurance Ltd v Trifunovski [2011] FCA 1204.

Drawing on a line of authority commencing with Carmichael v National Power PLC [1999] 1 WLR 2042 and most recently Regreen Asset Holdings Pty Ltd v Castricum Brothers Australia Pty Ltd [2015] VSCA 286, the Court held it was well-established that subjective evidence arising after a contract is alleged to have existed is both admissible and ought to be regarded by the decider of fact.

In rejecting the approach taken by the Tribunal, the Court pointed to the judgment of Finn J in Re C & T Grinter Transport Services Pty Ltd (In Liquidation) & Grinter Transport Pty Ltd; Ex parte Fitzgerald [2004] FCA 1148 and later settled in Fair Work Ombudsman v Grouped Property Services Pty Ltd [2016] FCA 1034. Finn J held that, relevantly, conversations and conduct at the time of alleged engagement of an employee are of considerable significance, and the personal beliefs of an employee as to the identity of his employer are admissible and entitled to weight.

Comcare contended that the Tribunal was correct to have found Mr Rus' statements to be irrelevant. The Court, however, held that the Tribunal did not consider the statements irrelevant, it simply excluded the statements from its consideration of whether Mr Rus was employed by AWB during the relevant period. Relying on the decision of the High Court in Minister for Immigration v Yusuf (2001) 206 CLR 323 at [82], the Court held that "ignoring relevant material or relying on irrelevant material in a way that affects the exercise of power is to make an error of law".


The Court held that the Tribunal regarded – incorrectly – that Mr Rus' statements were no more than his own characterisation of his status and had no probative value in determining whether he had actually been employed by AWB.

Ultimately, the Court held the Tribunal's task was to determine whether or not it was satisfied that Mr Rus was an "employee" pursuant to s 5 of the SRC Act, and this could not have been properly performed if material important to this question was ignored. Mr Rus' statements were critical to the fact of employment. The Tribunal's failure to take that material into account affected the exercise of its power and resulted in an error of law.

The Court allowed Ms Rus' the appeal and remitted the matter for reconsideration by the Tribunal.

Lessons Learnt

This case is authority for the fact that subjective evidence provided after the fact must not be dismissed by the Tribunal as irrelevant if that evidence is important to the determination of a critical fact in issue.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

Some comments from our readers…
“The articles are extremely timely and highly applicable”
“I often find critical information not available elsewhere”
“As in-house counsel, Mondaq’s service is of great value”

Related Topics
Related Articles
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of

To Use you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions