Archer v Comcare

[2000] FCA 1296

FEDERAL COURT OF AUSTRALIA

Archer v Comcare [2000] FCA 1296

WORKERS’ COMPENSATION – entitlement to compensation under Safety, Rehabilitation and Compensation Act 1988 (Cth) – entitlement reduced where employee ‘receives a lump sum benefit under a superannuation scheme’ – in what circumstances does employee ‘receive a benefit’

WORDS AND PHRASES – “receives”

Safety, Rehabilitation and Compensation Act 1988 (Cth) ss 19, 20, 21

Re Mirkovic v Telstra Corporation Ltd (1993) 18 AAR 492 not followed
Page v Meek (1862) 32 LJQB(NS) 4  applied

LAWRENCE ARCHER v COMCARE

V 770 of 1999

JUDGES:      BURCHETT, GOLDBERG & FINKELSTEIN JJ
DATE:           14 SEPTEMBER 2000
PLACE:         MELBOURNE

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	V 770 of 1999

On Appeal from the Administrative Appeals Tribunal

BETWEEN:	LAWRENCE ARCHER Applicant
AND:	COMCARE Respondent
JUDGES:	BURCHETT, GOLDBERG & FINKELSTEIN JJ
DATE OF ORDER:	14 SEPTEMBER 2000
WHERE MADE:	MELBOURNE

THE COURT ORDERS THAT:

1.   The appeal be dismissed.

2.   The applicant pay the respondent’s costs of the appeal.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	V 770 of 1999

On Appeal from the Administrative Appeals Tribunal

BETWEEN:	LAWRENCE ARCHER Applicant
AND:	COMCARE Respondent

JUDGES:	BURCHETT, GOLDBERG & FINKELSTEIN JJ
DATE:	14 SEPTEMBER 2000
PLACE:	MELBOURNE

REASONS FOR JUDGMENT

THE COURT:

1. Mr Archer was employed by Qantas Airways Limited.  In 1995 he suffered an injury in the course of his employment as a result of which he became incapacitated for work.  This entitled Mr Archer to receive weekly compensation under the Safety, Rehabilitation andCompensation Act 1988 (Cth) (the Compensation Act).

2. In July 1997 Qantas terminated the services of Mr Archer because of his medical condition.  At the time Mr Archer was a member of the Qantas Airways Limited Staff Superannuation Plan, a superannuation scheme established for the benefit of employees of Qantas.  Members of the scheme are entitled to receive benefits in a variety of circumstances, one being on the termination of the member’s employment. 

3. Having regard to the reason for his termination, Mr Archer became entitled to a “withdrawal benefit” under the scheme. The amount of the benefit was $42,440.27. The benefit included a component of $16,681.64 which was not payable to Mr Archer but was required to be preserved by roll-over until the attainment of a particular age or the occurrence of a specified event: see s 31(2)(g) of the Superannuation Industry (Supervision) Act 1993 (Cth), subdiv 6.1.2 of the Superannuation Industry (Supervision) Regulations 1994 (Cth). This component is referred to as the “preservable amount”.

4. The manner in which the trustee of the superannuation scheme is obliged to deal with a withdrawal benefit to which a member is entitled is as follows.  Save for three circumstances, the trustee must pay the benefit to the member “as soon as practical after all necessary procedures and documentation have been completed”.  The first circumstance in which the benefit is not to be paid to the…