Australian Telecom Commission v George Arthur Leech

Re: AUSTRALIAN TELECOMMUNICATIONS COMMISSION AND THE COMMONWEALTH OF AUSTRALIA
And: GEORGE ARTHUR LEECH (1982) 69 FLR 409
VG No. 31 of 1982
Compensation

COURT

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY
GENERAL DIVISION
Fox(1), Franki(2) and Lockhart(1) JJ.

CATCHWORDS

Compensation - Appellant in receipt of a pension under Repatriation Act - Whether s.98 of the Compensation (Commonwealth Government Employees) Act precludes the receipt of compensation under that Act - Nature and meaning of "injury" discussed - Factors relevant to the entitlement of compensation considered - s.98 deals with the situation when an incapacity is both compensable and pensionable.

Compensation (Commonwealth Government Employees) Act 1971 ss.5, 27, 29, 98.

Repatriation Act 1920 s.24, 101.

Workers Compensation - Commonwealth employee - Employee in receipt of pension under Repatriation Act 1920 (Cth) - Whether precluded from obtaining compensation under Compensation (Commonwealth Government Employees) Act 1971 (Cth) - Injury - Whether employee entitled to receive a pension in respect of an incapacity resulting from that injury - Repatriation Act 1920 (Cth), ss 24, 101; Compensation (Commonwealth Government Employees) Act 1971 (Cth), ss 5, 27, 29, 98.

HEADNOTE

The respondent, a serviceman in the Second World War, had been paid a pension under the Repatriation Act 1920 (Cth) for conditions which included hypertension. He had been employed by the Postmaster General's Department before being invalided out. He was also held by the delegate of the Commissioner for Employees' Compensation to have an entitlement to compensation for "aggravation of hypertension" but to be precluded by s. 98(1) of the Compensation (Commonwealth Government Employees) Act 1971 (Cth) to payment of compensation. The Administrative Appeals Tribunal reviewed the delegate's determination. On appeal,

Held: Per Fox and Lockhart JJ. - (1) Section 98 dealt with the situation where an incapacity can be regarded as both compensable under the Compensation (Commonwealth Government Employees) Act 1971 (Cth) and pensionable under the Repatriation Act 1920 (Cth).

(2) No ground had been shown to disturb the finding of the Administrative Appeals Tribunal that the basis of the pension under the Repatriation Act 1920 was markedly different from the claim for compensation under the Compensation (Commonwealth Government Employees) Act 1971.

(3) It was not correct to say that the respondent had received or was entitled to receive a pension under the Repatriation Act 1920 in respect of an incapacity resulting from the injury for which compensation was payable within the meaning of s. 98 of the Compensation (Commonwealth Government Employees) Act 1971.

(4) Per Franki J. - The onus lay upon the appellants to establish that, pursuant to a determination or assessment, the respondent was entitled to a pension in respect of an incapacity resulting from the second injury under the Repatriation Act 1920.

(5) Appeal dismissed.

HEARING

Melbourne, 1982, June 28; November 23. #DATE 23:11:1982

APPEAL.

The appellants appealed on questions of law from a decision of the Administrative Appeals Tribunal.

H. T. Nathan Q.C. and G. Moore, for the appellants.

E. F. Hill and D. J. Ashley, for the respondent.