Comcare v Dunstan

Case [2014] FCAFC 21

FEDERAL COURT OF AUSTRALIA

Comcare v Dunstan [2014] FCAFC 21

Citation: Comcare v Dunstan [2014] FCAFC 21
Appeal from: Comcare v Dunstan [2013] AATA 402
Parties: COMCARE v COLIN GEORGE DUNSTAN
File number: ACD 73 of 2013
Judges: BENNETT, ROBERTSON AND KERR JJ
Date of judgment: 7 March 2014
Catchwords: WORKERS’ COMPENSATION – appeal on a question of law from the Administrative Appeals Tribunal – superannuation benefits deferred under s 137 of Superannuation Act 1976 (Cth) – respondent reached preservation age of 55 – whether Tribunal erred in law in finding respondent not a person who “receives a pension and a lump sum benefit under a superannuation scheme” within s 21A of the Safety, Rehabilitation and Compensation Act 1988 (Cth) where superannuation benefits not payable by virtue of s 138 of Superannuation Act 1976 (Cth) – whether respondent should be taken to have received superannuation benefits where he could have selected a date for the start of payment of deferred benefits but did not do so
Legislation: Safety, Rehabilitation and Compensation Act 1988 (Cth) ss 19, 21A, 114B
Superannuation Act 1976 (Cth) ss 137, 138
Superannuation Industry (Supervision) Act 1993 (Cth) s 31
Superannuation Industry (Supervision) Regulations 1994 (Cth) divs 6.2, 6.3, sch 1
Cases cited: ALH Group Property Holdings Pty Limited v Chief Commissioner of State Revenue (2012) 245 CLR 338; [2012] HCA 6
Archer v Comcare (2000) 101 FCR 30; [2000] FCA 1296
Boothe v Commonwealth of Australia [2002] FCA 1101
Certain Lloyd’s Underwriters v Cross (2012) 248 CLR 378; [2012] HCA 56
Commissioner for Railways (NSW) v Agalianos (1955) 92 CLR 390
Re D'Angelo and Secretary, Department of Family and Community Services (2003) 76 ALD 726
Date of hearing: 7 March 2014
Place: Canberra
Division: GENERAL DIVISION
Category: Catchwords
Number of paragraphs: 84
Solicitor for the Applicant: Mr Ben Dubé of Sparke Helmore Lawyers
Counsel for the Respondent: Mr T Crispin
Solicitor for the Respondent: Ronald Clapham, Solicitor & Notary Public

IN THE FEDERAL COURT OF AUSTRALIA

AUSTRALIAN CAPITAL TERRITORY DISTRICT REGISTRY

GENERAL DIVISION

ACD 73 of 2013
ON APPEAL FROM THE ADMINISTRATIVE APPEALS TRIBUNAL
BETWEEN:

COMCARE
Applicant
AND:

COLIN GEORGE DUNSTAN
Respondent

JUDGES:

BENNETT, ROBERTSON AND KERR JJ

DATE OF ORDER:

7 MARCH 2014

WHERE MADE:

CANBERRA

THE COURT ORDERS THAT:

1.The appeal be dismissed.

2.The applicant pay the respondent’s costs.

Note:Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.


IN THE FEDERAL COURT OF AUSTRALIA

AUSTRALIAN CAPITAL TERRITORY DISTRICT REGISTRY

GENERAL DIVISION

ACD 73 of 2013
ON APPEAL FROM THE ADMINISTRATIVE APPEALS TRIBUNAL
BETWEEN:

COMCARE
Applicant
AND:

COLIN GEORGE DUNSTAN
Respondent

JUDGES:

BENNETT, ROBERTSON AND KERR JJ

DATE:

7 MARCH 2014

PLACE:

CANBERRA

REASONS FOR JUDGMENT

THE COURT

Introduction

  1. This appeal, on a question of law, is from a decision of the Administrative Appeals Tribunal (the Tribunal) given on 17 June 2013. The appeal concerns the meaning of the expression “the employee receives a pension and a lump sum benefit under a superannuation scheme as…

Continue reading Comcare v Dunstan

Sign in free to access the full text

Details
AGLC
Comcare v Dunstan [2014] FCAFC 21
Case
[2014] FCAFC 21
Decision Date

CaseChat Overview and Summary

Comcare v Dunstan is a legal case concerning the calculation of workers' compensation benefits in light of superannuation entitlements. The dispute arose when the respondent, Mr Dunstan, challenged Comcare's decision to apply section 21A of the Safety, Rehabilitation and Compensation Act 1988 (SRC Act) to his incapacity entitlements. Mr Dunstan argued that the Administrative Appeals Tribunal (AAT) erred in its interpretation of the term "receives" in section 21A, which pertains to superannuation benefits under the Superannuation Act 1976 (Cth). The central issue before the court was whether the respondent had "received" superannuation benefits under section 21A of the SRC Act, given that he had deferred the payment of his superannuation benefits but had not taken steps to claim them. The court examined whether Mr Dunstan could be considered to have "received" superannuation benefits when he had not actively pursued their payment, despite the option being available to him.

The court found that the AAT did not err in its interpretation of "receives" in section 21A of the SRC Act. It held that for an employee to be considered to have received a benefit, there must be more than just the existence of an obligation to pay the benefit. The court referred to Archer v Comcare, where the Full Court held that the word "receives" must be interpreted in context and does not merely mean that a benefit is payable. The court also noted that the AAT had correctly applied the reasoning from Archer v Comcare and did not rely on the definition from the Income Tax Assessment Act 1997, as suggested by Comcare. The court concluded that Mr Dunstan had not "received" his superannuation benefits because he had not taken any steps to claim them, despite the option being available.

The court dismissed Comcare's appeal and ordered that the appeal be dismissed with costs. This decision clarifies the interpretation of the term "receives" in the context of superannuation benefits and workers' compensation under the SRC Act.

Orders

Orders of the court

1. The appeal be dismissed.

2. The applicant pay the respondent’s costs.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

Background

Background to the litigation

The Tribunal set aside the decision under review. The Tribunal decided that the respondent’s weekly compensation from 28 February 2013, and presently, was not to be calculated under s 21A but was to be calculated under the terms of s 19 of the SRC Act.The facts The Tribunal said that the following facts were not controversial. The respondent was born on 27 September 1955. He commenced employment with the Department of Defence on 25 October 1975. As a result, he became a member of the superannuation scheme established by the Superannuation Act 1922 (Cth). On 1 July 1976 the Superannuation Act 1976 (Cth) replaced the Superannuation Act 1922 and all members of the earlier scheme were transferred to the superannuation scheme established by the Superannuation Act 1976. That scheme is the Commonwealth Superannuation Scheme and the respondent remained a contributing member until his employment with the Australian Taxation Office ceased on 20 May 2001. The respondent’s employment with the Australian Taxation Office was terminated pursuant to s 29 of the Public Service Act 1999 (Cth). Following the termination of his employment, the respondent made an election pursuant to s 137 of the Superannuation Act 1976 to defer his superannuation entitlements. The respondent remained a “deferred benefit member” of the Commonwealth Superannuation Scheme. The respondent received annual “Deferred Benefit Member Statements” from the Commonwealth Superannuation Scheme setting out details of his superannuation account for each financial year. The respondent had not requested the release or payment of his Commonwealth Superannuation Scheme deferred benefit. On 5 November 2012 the respondent signed an “Authority and release of superannuation information” notice for Comcare to provide to ComSuper. ComSuper provided a “Section 114B(2) Notice Request For Superannuation Information” (s 114B Notice) on 6 December 2012. In that notice under s 114B (of the SRC Act) ComSuper reported that Mr Dunstan made an election to preserve his employer financed contribution (EFC) benefit but, at the date of the notice, this had not been claimed as a pension or a lump sum. The date on which he reached his compulsory minimum preservation age was 27 September 2010, when he turned 55 years of age. That notice indicated that the EFC component of the respondent’s superannuation entitlements at age 55 was $42,597.41 lump sum and $2,128.24 gross pension per fortnight. On 7 January 2013 Comcare notified the respondent of its intention to apply s 21A to the calculation of his incapacity entitlements. As we have said, on 21 January 2013 Comcare made a determination under s 21A that the respondent’s entitlement to weekly incapacity payments was $456.18 per week. Comcare affirmed that decision upon reconsideration on 27 March 2013. The Tribunal said that the respondent, Mr Dunstan, was a “defined benefits member” of the Commonwealth Superannuation Scheme, which is an “unfunded defined benefits superannuation scheme” declared under reg 2A of the Superannuation Contributions Tax (Assessment and Collection) Regulations 1997 (Cth).The reasons of the Tribunal

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

We reject ground 2. We do not find it necessary to rely on s 114B of the SRC Act for this purpose – see [25] above and the reasons of the Tribunal at [35]–[38].Conclusion For these reasons the appeal should be dismissed with costs.

Ratio Decidendi

Legal Principle Established

As to the meaning of “receives” the respondent referred to Archer v Comcare at [11] and [13] and referred to decisions which had cited or applied Archer, being Boothe v Commonwealth of Australia [2002] FCA 1101 and a number of Tribunal decisions including Re D'Angelo and Secretary, Department of Family and Community Services (2003) 76 ALD 726; [2003] AATA 712. The respondent submitted that the meaning of the word “receives” in Archer v Comcare was the correct approach. It had been applied consistently by the Federal Court and by the Tribunal. The word was not a term of craft or jargon. The limits of the concept were well understood and conformed to the plain English meaning of the word. The respondent also submitted that the meaning the applicant sought to impose was entirely unnatural and extraordinarily vague. If a person could be found to have received a benefit in circumstances where they would be required to take positive steps in order to access it, there was no natural point at which to draw the line. For example, it could not be the case that a tradesman “receives” payment for a task by reason only that it was open to him or her to undertake the task and issue an invoice. An interpretation that allowed for such an outcome would be perverse.Consideration We have set out the reasons of the Tribunal at greater length than usual so that the submissions of the parties may be better understood. It is to be noted that the applicant Comcare accepted the correctness of Archer v Comcare. This must include what the Full Court said at [11], as follows:The meaning to be given to the word “receives” must take account of the context in which it is used. That context is a group of statutory provisions which distinguishes between, on the one hand, a benefit under a superannuation scheme that is “payable” to an incapacitated employee and, on the other, a benefit that an incapacitated employee “receives”. This context, as well as the meaning of the words themselves, indicates that a benefit has not been received merely because the benefit is payable to the incapacitated employee. In order for an employee to receive a benefit, there must be something more than simply the existence of an obligation at law or in equity to pay the incapacitated employee a pension or lump sum benefit. How much more may be a matter of controversy. As to the first ground of appeal, that the Tribunal misdirected itself in interpreting the meaning of “receives” by applying a definition contained in s 307.15(2) of the Income Tax Assessment Act 1997 rather than interpreting the meaning of the word in accordance with the SRC Act, we see no substance in it. The Tribunal did no more than consider s 307.15(2) of the Income Tax Assessment Act 1997 as an analogy in the context of Comcare’s submission that constructive receipt was sufficient. The Tribunal was well aware, and said, that the purposes of the Income Tax Assessment Act 1997 were different to those of the SRC Act. The Tribunal then went on to apply what the Full Court had said in Archer v Comcare at [11]. The Tribunal’s reasoning was that without a present obligation to pay there could be no constructive receipt.