FEDERAL COURT OF AUSTRALIA
Ascic v Comcare [2019] FCA 819
File number: WAD 487 of 2017 Judge: MCKERRACHER J Date of judgment: 4 June 2019 Catchwords: WORKERS’ COMPENSATION – former Commonwealth employee – recognised depression and acute paranoid reaction to perceived stress in employment – superannuation pension – invalidity retirement – independent review of determinations as to compensation – consideration of the transitional provisions in the Safety, Rehabilitation and Compensation Act 1988 (Cth) (the 1988 Act) in respect of a former employee’s incapacity payments – consideration of the application of ss 25 and 45 of the Compensation (Commonwealth Government Employees) Act 1971 (Cth)
ADMINISTRATIVE LAW – application for judicial review of the decision of the Administrative Appeals Tribunal – review by the Tribunal of a reviewable decision – whether the Tribunal erred in its determination of incapacity payments calculated having regard to ss 131(3), (4) and (5) of the 1988 Act – whether the Tribunal erred in failing to provide adequate reasons pursuant to the duty contained in s 43(2B) of the Administrative Appeals Tribunal Act 1975 (Cth)
Legislation: Administrative Appeals Tribunal Act 1975 (Cth) ss 43(2), 43(2B), 44, 44(7),
Compensation (Commonwealth Government Employees) Act 1971 (Cth) ss 25, 25(2), 25(4), 25(5), 25(10), 25(11), 25(12), 45, 45(2), 45(2)(a), 45(2)(b), 45(3), 45(4), 45(7), 45(7)(a), 45(7)(b), 45(7)(c), 45(7)(d), 45(7)(e)
Evidence Act 1995 (Cth) s 56(2)
Safety, Rehabilitation and Compensation Act 1988 (Cth) ss 123, 131, 131(1)(a), 131(1)(b), 131(2), 131(3), 131(4), 132(3), 132(4), Pt X
Cases cited: Ascic and Comcare (Compensation) [2017] AATA 1436
Ekinci v Civil Aviation Safety Authority (2014) 227 FCR 459
Re Knezevic; ex parte Carter [2005] WASCA 139
Total Marine Services Pty Ltd v Kiely (1998) 51 ALD 635
Date of hearing: 15 April 2019 Registry: Western Australia Division: General Division National Practice Area: Administrative and Constitutional Law and Human Rights Category: Catchwords Number of paragraphs: 83 Counsel for the Applicant: The Applicant appeared in person Counsel for the Respondent: Ms K Slack Solicitor for the Respondent: Sparke Helmore ORDERS
WAD 487 of 2017 BETWEEN: MARKO ASCIC
Applicant
AND: COMCARE
Respondent
JUDGE:
MCKERRACHER J
DATE OF ORDER:
4 JUNE 2019
THE COURT ORDERS THAT:
1.The application be dismissed.
2.The applicant pay the respondent’s cost of the application, to be assessed if not agreed.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
MCKERRACHER J:
INTRODUCTION
The applicant, Mr Ascic, is former member of the Australian Federal Police (AFP), which was known as the Commonwealth Police when he was first employed on 25 December 1973. He retired being totally incapable of engaging in work on 1 September 1988.
Since 1988, the respondent, Comcare, has recognised that Mr Ascic suffers from ‘depression and acute paranoid reaction to perceived stress in employment’ stemming from an injury of 11 December 1987 whilst employed with the Commonwealth Police. Initially, Mr Ascic was given extended sick leave from the deemed date of injury until the date of his retirement. He…
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- AGLC
- Ascic v Comcare [2019] FCA 819
- Case
- [2019] FCA 819
- Decision Date
CaseChat Overview and Summary
The Federal Court found that the AAT had correctly calculated Mr Ascic's incapacity payments and that the relevant provisions of the 1988 Act had been applied appropriately. The court emphasised that Mr Ascic's entitlement to incapacity payments was derived from Part X of the 1988 Act, which provides for former employees under the age of sixty-five who are receiving superannuation benefits and are unable to engage in any work. The court further noted that the AAT had correctly applied the relevant sections of the 1988 Act to determine Mr Ascic's total benefit immediately before the commencement day, and that the calculation of his incapacity payments had been made in accordance with the law. Additionally, the court held that the AAT had adequately provided reasons for its decision, as required by section 43(2B) of the Administrative Appeals Tribunal Act 1975 (Cth).
The Federal Court dismissed Mr Ascic's application for judicial review and ordered him to pay Comcare's costs of the application, to be assessed if not agreed. This decision was in line with Rule 39.32 of the Federal Court Rules 2011, which deals with the entry of orders.
Orders
Orders of the court
1. The application be dismissed.
2. The applicant pay the respondent’s cost of the application, to be assessed if not agreed.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
Ratio Decidendi
Legal Principle Established
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