Agdari, S. v Snowy Mountains Hydro Electric Authority

[1986] FCA 286

IU THE FEDERAL COURT OF AUSTRALIA )

I

i	7 I C T O R I A	D I S T R I C T	E G I S T R Y	)	='. Na.	G	2	of	1936
)

GENERAL	D I V I S I O N
BETWEEN :

SELILVJ A G D X I Applicant

and

3JOkTY MOUNTAIIJS WIDRO

ELECTRIC AUTHORITY Rsspondent

m: NORTHROP J .

W: 13 JUNE 1936

PLACE : MELBOURNE

MINUTE OF OZDER

THE COlJRT 0RDEP.S THAT the appeal be dismissed.

I

r

P (Settlement and entrg of Orders is dsa It xit :h in 0 . 3 6 of t ,he

?

R u l e s of Court.)

:

L

(Not considered appropriate for further

IN THE FEDERAL COURT OF SJSTZALIA I

)

7ICTORIA DISTRICT REGISTRY ) )

Applicant

Respmdent

COURT: NOETHROF J.

D=: 13 JUNE 1356

FLBCE : MELBOURNE

EX TSMPORE P;EASONS FOR JUDGMENT

The matter beEsre the Court is an appfal brought by

the applicant, Selman Agdari, from a decision of the

Administrative Appeals Tribunal .zri;.cn on 1 No-,-smbzr 1385.

The appeal t~ this Court is an appeal on a question rjf lax

o n l y , and this Court is exercising its original juriadiction.

The background tG the appeal is conrused, and unfortunately

the matter xent far further before	the Admlnlstratlve Appeals
Tribunal than I t should have.

I

The bare outline of the facts l a that the applicant

was inlured in the course of his employment with the respondent, thz Snowy Mountains Hydro Electrlc Authority, in

I

1372. Since then. he has not engagcd in zny full-time

employment. There have been occasions xhen he has done some

!

part-time work. but the last of that Gork xas in the 1370s.

Unfortunately, there is a complete absence of any formal

determinations made pursuant Compensation the to

(Commonwealth Government Employees) Act 1971 ( 'I the

Compensation Act"), but it appears that at all relevant times

since the late 1970s at the latest. the applicant was

receiving weekly payments of compensation as for total

incapacity, the payments being made pursuant to s.45 of	the
Compensation Act.

1 The applicant desired to receive a lump sum payment

bjr way of redemption of his entitlement weekly o

compensation payments. The only basis on zhich this can be

i

done is pursuant to s.43 of the compensation Act. In

substance, under that section, =here payments of compensation

!

in respect of an injury have been made to an employee under

1- ,

s.46 for a continuous period of not less than six months, the

employee may request the Commissioner in writing that the I

liability of the Commonwealth to make further payments to the

employee under that section be redeemed by the payment o the

employee of a lump sum. The condition precedent to

jurisdictlon to make such a lump sum payment is the fact of

receipt of compensation as for partial incapacity for a !'

continuous period of not less than six months. Once such a

request has been made, the Commissioner is required to

consider the matter and to determine xhether the liability of

the Cornmonk-ealth is to be redeemed by the payment of a lump

- 3 -

sum, and if he so determines that the liahl lity 1s to be

redeemed, the amount of the lump sum. Under sub-section ( 4 )

of s.49, the method by which the lump sum is to be determined

! is set out, and it depends upon the amount of the partial

incapaclty payments being made at the time. Under

sub-section ( S ) , the Commissioner is not permitted to make a

determination unless he is satisfied of three things, namely,

that the injury is not likely to result in the employee

becoming totally incapacitated for work, that the employee

intends to use the lump sum in a manner that is particularly

,

I

advantageous to the employee, and that in all the

circumstances it is desirable in the interests of the

employee that the liability of the Commonwealth be redeemed.

Reference should also be made to s.61 and s.62 of the Act

which treat proceedings under s.49 as if they were

applications f o r determinations. From this summary, it is

obvious that before the Commissioner has any power to make an

order of the type described, there must be compliance with

sub-section 49(1) of the Act.

It is also important to remember that this section

forms but part of a number of proxisions in the Act dealing

with compensation payments to persons injured as a result of

their employment. The provxsions have been discussed in some

detail in a number of decisions of this Court, and I merely

I

refer to them as a guide to future consideration of problems

that might arise in matters of this kind. The first of those

decisions is Re Portelli (1981) 53 F.L.R. 78, and in

particular commencing at page 04.	The successful appeal from	l '
l

I

- 4 -

that d5cision does not affcct the vlews contained in the

reference just glven. A similar discussion of relevant

provisions, partlcularly ln regard to s.49 of the Act and its

relatlonship to other sections in the Act, is contained in

Heath (1381) 61 F.L.R. 13, and in particular the passages

I

i

commencing at page 30. The successful appeal to the High !

Court from that declsion	does not affect the views	as to the	I
l

provisions of the Act contained in that reference. Finally,

reference is made to Reitano v. Commonwealth of Australia, a

declsion of the Full Court of this Court given on 13 December

l

1385, unreported, and in particular to the joint judgment of	!
I.

Mr. Justice Evatt and myself. In the course of those !

reasons, reference is made to the case of McDonald v.

t

Director-General of Social Security (1384) 1 F.C.R. 354.

The present appeal can be decided on the very short

point of whether there has been compliance with the

jurisdictional fact contained in sub-section 43(1) of the

Compensation Act. It is sufficient to say that there is just

no evidence at all to show that the applicant comes within

the provisions of that sub-section. It was uggested,

faintly, that for some period in 1973/74 or 75, the applicant

was partially incapacitated only in that he did some other

part-time work and received payment for that xork, but

unfortunately apart from the determination which is the

subject of the appeal, there is no ather determlnation under

i

the Comaensation Act showing lust =hat entitlement the

applicant had.

1.

- 5 -

It was conceded by the parties, and in fact found by the Tribunal, that since at least from 1375 the applicant

has been receiving payment as fur total incapacity, the

I

amount of those payments being determined in accordance with

I-,

s.45. In cases of this kind, it is most important that all t

relevant determinations made under the Compensation Act

should be placed before the Tribunal, since, in the absence

of the determinations, it is not clear what is the

entitlement of the person recelving payment. Further, nice

questions arise as to whether, in the absence of

determinations, the Commonwealth or any Commonwealth

statutory authority bound by the Compensation Act can validly

make payments of compensation under the Compensation Act. I

merely draw attention to that fact and hope that in the

future steps will be taken to ensure that all appropriate and

relevant determinations are before the Tribunal when it is

asked to review a declslon of the Commissioner under the

!

Compensation Act.

I reject completely the submission that because at

some time in the past here have been payments of

Compensation under 5-46. even though they are not being paid

now, a person receiving compensation may make application

under s.43 of the Act. A consideration of the whole of 6.43

makes it very clear that the payments of compensation under s.46 must be being made at the tune of the application and

must have been paid for at least six months prior to that

date. The lump sum payment is to be calculated havinq regard

to the amount of those compensation payments and a number of

- 6 -

factors, Including the likelihood of them continuing into the

future and matters of that kind. This is made clear by

sub-section 4 3 ( 4 ) , and I read that sub-section:-

"The amount of the lump sum is the amount

determined to be the value, as at the date of the

determination by the Commissioner that the

liabllity is to be redeemed, of the right of the employee rec ive to further payments of

compensation u der section 46 and, in the

determination of the value of that right, regard

shall be had to the nature of the injury to the employee, the age and occupation of the employee and any other elevant matters. "

Of necessity, that must relate to the position as at the time

of the determination, and it is completely irrelevant as to

what happened some ten or more years earlier.

Accordingly, on that point only the appeal must

fail since there is no evidence to show that at the time of

the application for the lump sum payment under 5.43 the

applicant complied with the requirements of sub-section 43(1)

of the Act. That should have been the only matter which was

before the Tribunal and should have been the only matter

considered by the Tribunal.

In the event the Tribunal affirmed the decision of

the Commlssloner. or rather, the delegate of the

Commissioner, the relevant part of which was that since there

xas no entitlement to payment of compensation under s.46 of

the Compensation Act, it follows there is no llabllitjr on the

part of the Authority that can be redeemed by the payment of

- 7 -

a lump sum under 5.43 of the Act. Therefore. the decision i

was to refuse the request fur a lump sum payment. That was a currect determination on the facts before the delegate to the

Commissioner. That was the correct decision on the matters

put before the Tribunal. The Tribunal affirmed that

determinatlon and in all the circumstances of the case it !

would be unwise of me to consider the other matters discussed

by the Tribunal. At the very most they are dicta; at the

very worst they can lead to false expectations and it is

unwise for the Tribunal to go to matters of that kind where

the jurisdictional fact has not been satisfied.

The decision made was a correct decision and

I

accordlngly, no error sf law has been demonstrated. Therefore, the appeal to this Court must fail and the formal

order is that the appeal be dismissed.

I make no order as to costs of the appeal. The

I

basis for this 1s that in my opinion the Commonwealth or the Snowy Mountains Hydro Electric Authority should have put to the Tribunal the relevant determinations in relation to the

total incapacity and the payments under 5.45 of the

!

, '	Compensation Act on the basis of total incapacity in	regard
L

t to the applicant. This was not done. In my opinion it is

unfair to say, well, the applicant should have done this a s he

l

had sufficient warning of the fact that before he could apply

i

under 5.49, he had to be partially incapacitated. One is

I

aware of the problems of the indlvidual keeping all necessary I

records. The Commonwealth and the Authority should have

.l , I

t .

- a -

those records somewhers.

I

I will assume for present purposes, and I think it

is the only assumption open, that there are In existence

i I

determinations authorising the payment by the Commonwealth or

i '

the Authority of total incapaclty payments under s.45. If

the Commonwealth or the Authority had produced those

determinations, and I should say I assume that because I am

not prepared to assume or infer that the Commonwealth or the

Authority is making payments githout the authority of any

such determination, and if those determinations had been produced

before the Tribunal, that would have brought the whole

proceeding to an end in a much more effective and simple way

and would have, in all probability, avoided the appeal to

this Court. !

Accordingly, in the exercise of my discretion, I

refuse to make the order for costs sought by the Commonwealth

and the Authority. So the formal order	is that the appeal	be
dismissed.

I

I certlfy that this and the seven (7) !

preceding pages are a true copy of the

Reasons for Judgment herein o f the

Honourable Mr. Justice Northrop.

r-.

,_ $Cy -L%- C.L.C-\ .-AG

Associate

19 June 1986

I