Ascic v Comcare

[2019] FCA 819

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

1. 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. 

2. 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…