FEDERAL COURT OF AUSTRALIA
Comcare v Simmons [2014] FCAFC 4
Citation: Comcare v Simmons [2014] FCAFC 4 Appeal from: Simmons v Comcare [2013] FCA 484 Parties: COMCARE v MICHAEL SIMMONS File number: ACD 56 of 2013 Judges: FLICK, GRIFFITHS AND PERRY JJ Date of judgment: 13 February 2014 Catchwords: ADMINISTRATIVE LAW – statutory construction – proper construction of s 8(10) of the Safety, Rehabilitation and Compensation Act 1988 (Cth) – whether normal weekly earnings properly includes additional allowance – whether it is a relevant consideration to take into account employee’s decision to transfer employment in determining whether allowance should be included in calculation
WORKERS’ COMPENSATION – entitlement of compensation under Safety, Rehabilitation and Compensation Act 1988 (Cth) for injury – calculation of normal weekly earnings under the Act – whether entitlement should be reduced
Legislation: Administrative Appeals Tribunal Act 1975 (Cth), s 44
Australian Federal Police Act 1979 (Cth), s 27
Compensation (Commonwealth Government Employees) Act 1971 (Cth)
Safety, Rehabilitation and Compensation Act 1988 (Cth), ss 4, 5, 5A, 8(1)-(10), 9(1), 14(1), 16, 19(2)-(14)Cases cited: Bortolazzo v Comcare (1997) 75 FCR 385
Comcare v Thompson (2000) 100 FCR 375
John Holland Group Pty Ltd v Robertson (2010) 185 FCR 566
McDonald v Department of Defence [1999] FCA 882
Military Rehabilitation and Compensation Commission v Perry (2007) 164 FCR 307
Telstra Corporation v Hannaford (2006) 151 FCR 253
Woodbridge v Comcare (1994) 20 AAR 196
Date of hearing: 28 November 2013 Date of last submissions: 28 November 2013 Place: Sydney via videolink to Canberra Division: GENERAL DIVISION Category: Catchwords Number of paragraphs: 96 Counsel for the Appellant: Ms S Maharaj QC with Mr P Woulfe Solicitor for the Appellant: Australian Government Solicitor Counsel for the Respondent: Mr L Grey Solicitor for the Respondent: Pappas, J - Attorney
IN THE FEDERAL COURT OF AUSTRALIA
AUSTRALIAN CAPITAL TERRITORY DISTRICT REGISTRY
GENERAL DIVISION
ACD 56 of 2013
ON APPEAL FROM THE FEDERAL COURT OF AUSTRALIA
BETWEEN: COMCARE
Appellant / Cross-RespondentAND: MICHAEL SIMMONS
Respondent / Cross-Appellant
JUDGES:
FLICK, GRIFFITHS AND PERRY JJ
DATE OF ORDER:
13 FEBRUARY 2014
WHERE MADE:
SYDNEY (VIA VIDEOLINK TO CANBERRA) (HEARD IN CANBERRA)
THE COURT ORDERS THAT:
1.The appeal and cross-appeal are dismissed.
2.On or before 27 February 2014, the parties are to submit Short Minutes of Order which give effect to the reasons of the Court.
3.If the parties cannot reach an agreement as to the costs of the appeal and the cross-appeal or the calculations as to the entitlements of the Respondent on or before 27 February 2014, then each party is to file and serve written submission of no more than two pages in length addressing any issue not the subject of agreement.
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 56 of 2013
ON APPEAL FROM THE FEDERAL COURT OF AUSTRALIA
BETWEEN: COMCARE
Appellant / Cross-RespondentAND: MICHAEL SIMMONS
Respondent / Cross-Appellant
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- AGLC
- Comcare v Simmons [2014] FCAFC 4
- Case
- [2014] FCAFC 4
- Decision Date
CaseChat Overview and Summary
The legal issues before the court were whether the decision of Mr Simmons to transfer employment should be considered in calculating his NWE under s 8(10)(b)(i) of the Act and whether the ORG allowance should be included in his NWE calculation under s 8(10)(a) of the Act. The court had to determine if the Tribunal erred in excluding the ORG allowance from the NWE calculation and if Mr Simmons' decision to transfer employment due to personal reasons affected the calculation of his compensation.
The court found that the Tribunal did not err in excluding the ORG allowance from the NWE calculation under s 8(10)(a) of the Act. The court held that s 8(10)(a) is concerned with a notional inquiry that compares the employee's actual current employment to what their earnings would have been had they not been injured, considering whether they would have continued to perform the same duties. The court held that the Tribunal had correctly taken into account Mr Simmons' decision to leave the ORG for personal reasons, as this was a factual matter and not subject to judicial review. The court concluded that the Tribunal's decision was not erroneous and that the cross-appeal should be dismissed.
The court dismissed both the appeal and the cross-appeal, affirming the Tribunal's decision. The parties were required to submit Short Minutes of Order reflecting the court's reasons by a specified date. If the parties could not agree on the costs or the calculations of the respondent's entitlements by that date, they were to file written submissions addressing any unresolved issues. The orders concluded with a note directing the entry of orders in accordance with Rule 39.32 of the Federal Court Rules 2011.
Orders
Orders of the court
1. The appeal and cross-appeal are dismissed.
2. On or before 27 February 2014, the parties are to submit Short Minutes of Order which give effect to the reasons of the Court.
3. If the parties cannot reach an agreement as to the costs of the appeal and the cross-appeal or the calculations as to the entitlements of the Respondent on or before 27 February 2014, then each party is to file and serve written submission of no more than two pages in length addressing any issue not the subject of agreement.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
Background
Background to the litigation
Full text does not contain this section.
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
Ratio Decidendi
Legal Principle Established
By contrast, his Honour found that the Tribunal had not erred in excluding the ORG allowance from the calculation of Mr Simmons’ NWE under s 8(10)(a) which governed the calculation of NWE for the period commencing on 8 February 2010 until he left the employment of the Commonwealth in August 2011. His Honour found that s 8(10)(a) differs from s 8(10)(b) in that the calculation under the former is not tied to a fixed point in time. Rather, citing Dowsett J in John Holland at 586 [74]-[76], his Honour held at [27] that “… s 8(10)(a) is concerned with a notional inquiry that commences with the employee’s actual current employment and compares that to what his or her earnings would have been in that employment had he or she not been injured… ‘including consideration of whether he or she would have continued to perform the same duties as were being performed at the time of the accident.’” On this basis, his Honour held that:“37The question as to what was a relevant consideration for a decision-maker under s 8(10)(a) is a question of law. While it is true that the Tribunal did not precisely phrase the question it addressed in the way in which Mr Simmons contended it should have, it is quite clear from its reasoning that it formed the view that Mr Simmons did not leave the Operational Response Group because of his injury. The Tribunal found that the personal reasons were Mr Simmons’ Newport home and the closer proximity to his daughter. It rejected his claim that his injury was a cause of his decision to transfer to Sydney.38.The Tribunal had to address the hypothetical question in s 8(10)(a) by a consideration of the facts, including what Mr Simmons would have done had he not been incapacitated for work. He remained employed by the Commonwealth up until about August 2011. I see no error in the Tribunal having taken into account his decision, for personal reasons, to leave the Operational Response Group in arriving at the assessment of the earnings that he would receive if he were not incapacitated for work. This was a question of fact for the Tribunal and it would require the Court to engage in merits review to come to some other conclusion. The latter course is not open.”3. CONSIDERATION3.1 The statutory scheme As is apparent, the central issue on the appeal and cross-appeal concerns the construction of s 8(10) of the Act, the terms of which are set out below at [71], and more particularly s 8(10)(a) and (b)(i). No issue directly arose in relation to s 8(10)(b)(ii). Section 8(10) constitutes one aspect of a complex scheme by which compensation is calculated for an employee who is incapacitated for work as a result of an injury to which the Act applies. As such, it is necessary to start with an analysis of that statutory scheme before the question of the proper construction of s 8(10) can be addressed.3.1.1Liability to pay compensation Section 14(1) of Part II of the Act imposes liability on Comcare to pay compensation to injured employees (as defined) in the following terms:“Subject to this Part, Comcare is liable to pay compensation in accordance with this Act in respect of an injury suffered by an employee if the injury results in death, incapacity for work, or impairment.”