FEDERAL COURT OF AUSTRALIA
Ascic v Comcare [2020] FCAFC 105
ORDERS
WAD 347 of 2019 BETWEEN: MARKO ASCIC
Appellant
AND: COMCARE
Respondent
JUDGES:
FLICK, BANKS-SMITH AND JACKSON JJ
DATE OF ORDER:
12 JUNE 2020
THE COURT ORDERS THAT:
1.The appeal is dismissed.
2.The Appellant is to pay the costs of the Respondent, either as agreed or taxed.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
THE COURT:
The Appellant in the present proceeding, Mr Marko Ascic, is a former member of the Australian Federal Police. The Respondent to the proceeding is Comcare.
Mr Ascic suffered an “injury” in…
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Details
- AGLC
- Ascic v Comcare [2020] FCAFC 105
- Case
- [2020] FCAFC 105
- Decision Date
CaseChat Overview and Summary
The case of Ascic v Comcare involved the appellant, Mr Ascic, appealing against a decision of the Administrative Appeals Tribunal (AAT) regarding the calculation of his compensation for incapacity under the Safety, Rehabilitation and Compensation Act 1988. Mr Ascic contended that his compensation had been incorrectly calculated due to an error in determining his normal weekly earnings at the commencement of the Act. Comcare, the respondent, maintained that the AAT had correctly assessed Mr Ascic's earnings and that any errors made were non-prejudicial.
The central legal issue before the court was whether the AAT erred in its findings regarding the appellant’s normal weekly earnings and whether these errors were prejudicial enough to warrant a reversal of the AAT's decision. Additionally, the court had to consider whether the appellant was entitled to withdraw his admission regarding his normal weekly earnings and whether the AAT had applied the correct legal principles in reaching its decision.
The Federal Court found that the AAT's assessment of Mr Ascic's normal weekly earnings was based on substantial evidence and that any errors made were non-prejudicial. The court held that the appellant's admission to a specific amount of normal weekly earnings was binding and should not be withdrawn. The reasoning was that the appellant had ample opportunity to present his case before the Tribunal and had agreed to the facts as part of the proceedings. The court concluded that there were no grounds for allowing the appeal, as the AAT's decision was supported by the evidence and correct in law. Consequently, the appeal was dismissed, and the appellant was ordered to pay the respondent's costs.
The central legal issue before the court was whether the AAT erred in its findings regarding the appellant’s normal weekly earnings and whether these errors were prejudicial enough to warrant a reversal of the AAT's decision. Additionally, the court had to consider whether the appellant was entitled to withdraw his admission regarding his normal weekly earnings and whether the AAT had applied the correct legal principles in reaching its decision.
The Federal Court found that the AAT's assessment of Mr Ascic's normal weekly earnings was based on substantial evidence and that any errors made were non-prejudicial. The court held that the appellant's admission to a specific amount of normal weekly earnings was binding and should not be withdrawn. The reasoning was that the appellant had ample opportunity to present his case before the Tribunal and had agreed to the facts as part of the proceedings. The court concluded that there were no grounds for allowing the appeal, as the AAT's decision was supported by the evidence and correct in law. Consequently, the appeal was dismissed, and the appellant was ordered to pay the respondent's costs.
Orders
Orders of the court
1. The appeal is dismissed.
2. The Appellant is to pay the costs of the Respondent, either as agreed or taxed.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
Background
Background to the litigation
As to the phrase “normal weekly earnings”, it was the Compensation Act1988 which introduced that notion for the first time. It is “[o]ne of the critical components in the calculation of the compensation payable … to a person incapacitated for work by a compensable injury…”: Comcare v Thompson [2000] FCA 790 at [3], (2000) 100 FCR 375 at 376-377 per Finn J. Section 8 sets forth the manner of calculating such earnings. What the transition from the Compensation Act 1971 to the Compensation Act 1988 required in order for there to be continuity of compensation was, amongst other things, the quantification of an amount so that it could be compared with the newly introduced concept of “normal weekly earnings”. For the purposes of that comparison, ss 25 and 45 of the now-repealed Compensation Act1971 informed the manner in which (for example) “allowances” and “overtime” were to be included in the quantification of the “earnings of an employee” and the manner in which the “compensation” was to be calculated. Notwithstanding submissions made by Mr Ascic that because the Compensation Act 1971 was repealed it was a “dead act” and has no operation, the relevant provisions of that Act are given operation by s 131(3) of the Compensation Act 1988 and the definition of “total benefit” in s 123.THE FACTS – NON-PREJUDICIAL ERRORS & NO QUESTIONS OF LAW When seeking Comcare undertake “an independent review of every determination ever made”, the facts then relied upon by Mr Ascic were summarised as follows in the letter from the Senior Review Officer in December 2015:On 29 September 2015 you wrote an email to Comcare submitting that your compensation for incapacity had been incorrectly calculated because, at the commencement date of the Safety, Rehabilitation and Compensation Act 1988 (‘SRC Act’) you were ‘receiving a superannuation pension of $18,655.73 per annum and Comcare benefits of $14,456.09 per annum’, being a combined total benefit of $33,982 per annum. You also submitted that your normal weekly earnings (‘NWE’) were $33,111.82 at that time and that 95% of your NWE was $32,282.90. You then submitted that your combined benefit was more than 95% of your NWE and that your entitlement to compensation for incapacity should have been calculated, and should still be calculated, under section 131(2) of the SRC Act.The Senior Review Officer then went on to state as follows the finding he had made for Mr Ascic’s “normal weekly earnings” and his reasons for his decision as follows:I agree that your combined superannuation and compensation benefit at the commencement date of the SRC Act was $33,111.82, but I do not agree that your NWE at that time was only $33,982.Our electronic records of your NWE figures commence from November 1990, and at that time your NWE were $838.96 per week, which is a yearly figure of $43,625.92. It is important to note that the NWE figure is calculated taking into account the earnings of the time of your injury and increasing in line with award increases and also takes into account allowances and overtime.I have used the November 1990 NWE figure as a starting point. Your figure of $33,982 from November 1988 would need to have increased by approximately 24% in two years to reach the November 1990 figure. I find this extremely unlikely.I am satisfied that your NWE was significantly higher than $33,982 at the commencement of the SRC Act, such that the combined benefit you were receiving at the time is very unlikely to have been more than 95% of the NWE.In other words, at the commencement date of the SRC Act, I am satisfied that you were receiving total benefits that were less than 95% of your NWE. The applicable subsection of the SRC Act for the calculation of incapacity at the commencement of the SRC Act was subsection 131(3), being the section relevant to those employees who were receiving between 70% and 95% of their NWE on the commencement date.Section 131(5) is also relevant. It has the effect of gradually reducing compensation for incapacity until the combined benefit equals 70% of NWE. From reviewing your file, it appears that your compensation for incapacity was reduced in line with that section until 28 June 1991. As at that date, your combined benefit equalled 70% of your NWE.This was the decision and the reasons for decision which were reviewed by the Tribunal.
Evidence
Evidence Before The Court
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Decision
Reasons for decision
Leave to withdraw the admission as to the normal weekly earnings would have been refused, even if sought. The time has well and truly come for Mr Ascic to be held to the facts which he agreed to before the Tribunal.CONCLUSIONS The appeal should be dismissed. There is no appellable error. Contrary to Mr Ascic’s written Outline of Submissions, the “whole of this Judicial Process” has not been “determined on the basis of unsupported inferences and incorrect interpretations” – the case has been founded largely upon an admission made by him for the purposes of the Tribunal hearing that his normal weekly earnings were $734.46. There is no reason why he should not be held to that admission, no application for leave to withdraw the admission being made to either the Tribunal or the primary Judge. There is no reason why the normal rule should not prevail as to costs following the event. The Appellant should thus pay the costs of the Respondent.THE COURT ORDERS THAT:1.The appeal is dismissed.2.The Appellant is to pay the costs of the Respondent, either as agreed or taxed.
Ratio Decidendi
Legal Principle Established
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