Cooper v Comcare

Case [2001] FCA 1085

FEDERAL COURT OF AUSTRALIA

Cooper v Comcare [2001] FCA 1085

WORKERS COMPENSATION – Commonwealth employees – weekly payments – incapacity and retirement preceding 1988 Act – entitlement derived from two separate injuries sustained prior to 1988 – discontinuance of entitlement in respect of one injury but continuance of weekly payments based on entitlement in respect of other injury – whether subject to age based reduction of payments upon turning 65 - whether worker a “former employee” to whom age based reductions applicable – whether worker in receipt of weekly payments in respect of injury at commencement of Safety, Rehabilitation and Compensation Act 1988 (Cth) - Safety, Rehabilitation and Compensation Act 1988 (Cth) ss 123 and 134

ADMINISTRATIVE LAW – Administrative Appeals Tribunal applications for review – frivolous and vexatious – summary dismissal of application – whether any advantage in summary disposition – facts undisputed – question of law – substantive determination productive of greater finality – jurisdiction of Court to entertain appeal against summary disposition

WORDS AND PHRASES  - “former employee”, “receiving weekly payments of compensation”

Safety, Rehabilitation and Compensation Act 1988 (Cth) ss 123, 132, 132A, 134
Administrative Appeals Tribunal Act 1975 (Cth) s 42B

Re Williams and Australian Electoral Commission (1995) 21 AAR 467 cited

Australian Postal Corporation v Matusko (unrep, Fed Court, Olney J 14 May 1996) cited
Board of Examiners under the Mines Safety and Inspection Act 1994 (WA) v Lawrence (2000) 100 FCR 255 cited

Comcare v Neil (1993) 41 FCR 517 distinguished

JAMES COOPER v COMCARE
W199 OF 2001

FRENCH J
9 AUGUST 2001
PERTH

IN THE FEDERAL COURT OF AUSTRALIA

WESTERN AUSTRALIA DISTRICT REGISTRY

W199 OF 2001

BETWEEN:

JAMES COOPER
APPLICANT

AND:

COMCARE
RESPONDENT

JUDGE:

FRENCH J

DATE OF ORDER:

9 AUGUST 2001

WHERE MADE:

PERTH

THE COURT ORDERS THAT:

1.        The application is dismissed.

2.        The applicant is to pay the respondent’s costs of the application.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA

WESTERN AUSTRALIA DISTRICT REGISTRY

W199 OF 2001

BETWEEN:

JAMES COOPER
APPLICANT

AND:

COMCARE
RESPONDENT

JUDGE:

FRENCH J

DATE:

9 AUGUST 2001

PLACE:

PERTH

REASONS FOR JUDGMENT

Introduction

  1. James Cooper has been paid workers compensation under the Compensation (Commonwealth Employees) Act 1971(Cth) and its successor, Safety, Rehabilitation and Compensation Act 1988 (Cth) since 1987. In that year, as a Commonwealth employee, he suffered injuries to his ankle and back in separate accidents. His weekly payment entitlement in respect of his ankle injury ceased in December 1991 but his entitlement to receive weekly payments continued because of his back injury. Under transitional provisions of the 1988 Act that entitlement is said to have been reduced from the date he turned 65 on 6 December 2000. The reduction was determined by Comcare pursuant to s 134 of the 1988 Act on the basis that he was a “former employee” who was in receipt of weekly payments at the commencement of the 1988 Act on 1…

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Cooper v Comcare [2001] FCA 1085
Case
[2001] FCA 1085
Decision Date

CaseChat Overview and Summary

This case, Cooper v Comcare, involves a dispute between James Cooper, a former Commonwealth employee, and Comcare regarding the reduction of his weekly workers' compensation payments upon reaching the age of 65. Cooper has been receiving workers' compensation since 1987, following two separate accidents at work that resulted in injuries to his ankle and back. While his entitlement for the ankle injury ceased in 1991, his entitlement for the back injury continued. The dispute arises from the interpretation of the transitional provisions in the Safety, Rehabilitation and Compensation Act 1988 (Cth) which provided for the reduction of weekly payments for former employees who were receiving payments at the commencement of the Act on 1 December 1988. Comcare determined that Cooper's entitlement was reduced upon his 65th birthday on 6 December 2000, based on his status as a "former employee" receiving payments at the commencement of the Act. The Administrative Appeals Tribunal dismissed Cooper's application to review Comcare's decision, deeming it frivolous and vexatious. Cooper appeals this decision to the Federal Court.

The primary legal issue before the court was the interpretation of the transitional provisions in the 1988 Act and whether Cooper qualified as a "former employee" under the relevant sections, specifically sections 123, 131, 132, and 134. The court needed to determine if the Tribunal's decision to dismiss Cooper's application was correct. Given the undisputed facts, the matter hinged on statutory interpretation. The court examined whether the Tribunal correctly applied the statutory provisions to determine that Cooper's entitlement was subject to reduction upon turning 65, and if Cooper's application for review was indeed frivolous and vexatious.

The court found that the Tribunal's decision was correct. It affirmed that Cooper was a "former employee" under section 123 of the 1988 Act, as he was receiving compensation for his left ankle injury at the commencement of the Act and had ceased to be an employee before 1 December 1988. Therefore, section 134 was applicable, and the reduction of his payments was correctly calculated. The court further agreed with the Tribunal's assessment that Cooper's application for review was frivolous and vexatious, given that he did not dispute the application of the formula in section 134(1) if deemed applicable. The court upheld the dismissal of Cooper's application and the direction preventing him from making further applications without the Tribunal's leave.

In conclusion, the Federal Court dismissed Cooper's appeal, affirming the Tribunal's decision that Comcare correctly reduced his weekly compensation payments upon his 65th birthday. The court found no merit in Cooper's application for review and upheld the direction prohibiting further applications without leave.

Orders

Orders of the court

1. The application is dismissed.

2. The applicant is to pay the respondent’s costs of the application.

Background

Background to the litigation

James Cooper has been paid workers compensation under the Compensation (Commonwealth Employees) Act 1971(Cth) and its successor, Safety, Rehabilitation and Compensation Act 1988 (Cth) since 1987. In that year, as a Commonwealth employee, he suffered injuries to his ankle and back in separate accidents. His weekly payment entitlement in respect of his ankle injury ceased in December 1991 but his entitlement to receive weekly payments continued because of his back injury. Under transitional provisions of the 1988 Act that entitlement is said to have been reduced from the date he turned 65 on 6 December 2000. The reduction was determined by Comcare pursuant to s 134 of the 1988 Act on the basis that he was a “former employee” who was in receipt of weekly payments at the commencement of the 1988 Act on 1 December 1988. The Administrative Appeals Tribunal dismissed as frivolous and vexatious his application to review that determination. He has appealed to this Court against the Tribunal decision. The question reduces to one of construction of the Act on undisputed facts.Factual Background James Cooper was born on 6 December 1935. On 29 January 1987 he commenced employment with the Department of Veterans Affairs as a Temporary Orderly, Grade 1 at the Repatriation General Hospital, Hollywood in Western Australia. On 19 February 1987, in the course of his employment, he slipped on a step and suffered a sprained left ankle. On 22 May 1987, again, in the course of his employment, he accidentally knocked over a panel which fell on to him causing him to fall to the floor on his back as a result of which he suffered pain in his lower back. Following the first accident on 19 February 1987, Mr Cooper completed a Report of Accident form. Initially he elected not to lodge a claim for compensation, but subsequently did so on or about 8 June 1987. A delegate of the Commissioner for Employees Compensation made a determination accepting liability to pay compensation to him in respect of his left ankle injury. On 8 July 1987, Mr Cooper lodged a claim for compensation for the injury to his back. On 2 October 1987, a delegate of the Commissioner for Employees Compensation made a determination accepting liability to pay compensation in respect of the back injury. On 10 April 1997, he lodged with Comcare a claim for compensation for “permanent injury” in relation to his back injury. This was an application for lump sum compensation. An officer of Comcare made a determination refusing that claim on 4 June 1998. However on 9 June 1998 Comcare made a determination accepting liability to pay weekly compensation for incapacity for the period from 1 July 1998 to 30 June 1999. A reconsideration of the determination of 4 June 1998 was requested on 29 June 1998, but on 31 August of that year a Review Officer of Comcare affirmed the determination. He also revoked the determination of 9 June 1998, instead deciding that Comcare’s liability to pay compensation to Mr Cooper in respect of his left ankle ceased on and from 20 May 1998 and its liability to pay compensation in respect of his back condition ceased on and from 17 September 1998.

Evidence

Evidence Before The Court

Reference should also be made to s 42B of the Administrative Appeals Tribunal Act 1975 (Cth) which provides: “42B(1) Where an application is made to the Tribunal for the review of a decision, the Tribunal may, at any stage of the proceeding, if it is satisfied that the application is frivolous or vexatious: (a)dismiss the application; and(b)if the Tribunal considers it appropriate, on the application of a party to the proceedings, direct that the person who made the application must not, without leave of the Tribunal, make a subsequent application to the Tribunal of a kind or kinds specified in the direction.(2) A direction given by the Tribunal under paragraph (1)(b) has effect despite any other provision of this Act or a provision of any other Act.(3) The Tribunal may discharge or vary such a direction.”The Evidence Before the Tribunal It was not in dispute before the Tribunal that Mr Cooper turned 65 on 6 December 2000. It was also established that he was in receipt of compensation under the 1971 Act as at 1 December 1988 which was the commencing day of Part X of the 1988 Act and that he had ceased to be an employee before that day. A record of payments was produced to the Tribunal. That record showed payments were made covering, inter alia, the periods 1 July 1988 to 30 November 1988 and 1 December 1988 to 30 June 1989.The Tribunal’s Reasons for Decision The Tribunal gave its reasons orally on the hearing of the application to dismiss the application for review. As those reasons were briefly stated it is convenient to reproduce them from the transcript of the proceedings before the Tribunal. They were as follows: “In matter number 44, Mr Cooper’s prospects of success in relation to this application depend on whether or not section 134 of the Safety Rehabilitation and Compensation Act is the applicable section in this matter. That in turn depends on whether either section or on two matters at least, that is to say, whether Mr Cooper is a former employee within the meaning of section 123 of the Act and also whether section 131, 132 or 132A applies to Mr Cooper. I find that Mr Cooper is a former employee within the meaning of section 123 of the Act in that immediately before the commencing day, being 1 December 1988, Mr Cooper was receiving weekly payments of compensation under the 1971 Act in respect of an injury, namely in relation to his left ankle, resulting in an incapacity and that he had ceased to be an employee within the meaning of the Act before that day, his employment having been terminated prior to 1 December 1988. Accordingly I find that the amount of compensation payable to Mr Cooper under the Act is to be calculated pursuant to the formula which is laid down in subsection (1) of section 134.”The Tribunal then clarified with Mr Cooper that he was not disputing that, assuming the formula to be applicable, it was correctly applied. He did not dispute that. The Tribunal continued: “So my finding in relation to that matter is that on the facts presented to me which are not in dispute in relation to this matter, that that section 134, subsection (1) is clearly applicable to Mr Cooper and accordingly the compensation payable to him is to be calculated or reduced, rather, by an amount calculated under that particular formula. So Mr Cooper’s application for review of the respondent’s decision, reached pursuant to section 134, subsection (1) by the adoption of the formula mentioned in that subsection, again is plainly unsustainable and has no prospects of success, and for that reason I find that Mr Cooper’s application for review of that reviewable decision is also frivolous.Similarly, I am prepared to make a direction in the form sought by the respondent in the letter dated 9 April 2001, or at least the application dated 9 April 2001 and that is a direction in terms that the applicant must not, without leave of the Tribunal, make a subsequent application to the Tribunal in respect of any issues forming part of or incidental to the present application.So they are my findings and rulings in relation to the matters that have been brought before me today.”Mr Cooper’s Contentions

Decision

Reasons for decision

FRENCH J (dissent)
It was not in dispute before the Tribunal that Mr Cooper turned 65 on 6 December 2000. It was also established that he was in receipt of compensation under the 1971 Act as at 1 December 1988 which was the commencing day of Part X of the 1988 Act and that he had ceased to be an employee before that day. A record of payments was produced to the Tribunal. That record showed payments were made covering, inter alia, the periods 1 July 1988 to 30 November 1988 and 1 December 1988 to 30 June 1989.The Tribunal’s Reasons for Decision The Tribunal gave its reasons orally on the hearing of the application to dismiss the application for review. As those reasons were briefly stated it is convenient to reproduce them from the transcript of the proceedings before the Tribunal. They were as follows: “In matter number 44, Mr Cooper’s prospects of success in relation to this application depend on whether or not section 134 of the Safety Rehabilitation and Compensation Act is the applicable section in this matter. That in turn depends on whether either section or on two matters at least, that is to say, whether Mr Cooper is a former employee within the meaning of section 123 of the Act and also whether section 131, 132 or 132A applies to Mr Cooper. I find that Mr Cooper is a former employee within the meaning of section 123 of the Act in that immediately before the commencing day, being 1 December 1988, Mr Cooper was receiving weekly payments of compensation under the 1971 Act in respect of an injury, namely in relation to his left ankle, resulting in an incapacity and that he had ceased to be an employee within the meaning of the Act before that day, his employment having been terminated prior to 1 December 1988. Accordingly I find that the amount of compensation payable to Mr Cooper under the Act is to be calculated pursuant to the formula which is laid down in subsection (1) of section 134.”The Tribunal then clarified with Mr Cooper that he was not disputing that, assuming the formula to be applicable, it was correctly applied. He did not dispute that. The Tribunal continued: “So my finding in relation to that matter is that on the facts presented to me which are not in dispute in relation to this matter, that that section 134, subsection (1) is clearly applicable to Mr Cooper and accordingly the compensation payable to him is to be calculated or reduced, rather, by an amount calculated under that particular formula. So Mr Cooper’s application for review of the respondent’s decision, reached pursuant to section 134, subsection (1) by the adoption of the formula mentioned in that subsection, again is plainly unsustainable and has no prospects of success, and for that reason I find that Mr Cooper’s application for review of that reviewable decision is also frivolous.Similarly, I am prepared to make a direction in the form sought by the respondent in the letter dated 9 April 2001, or at least the application dated 9 April 2001 and that is a direction in terms that the applicant must not, without leave of the Tribunal, make a subsequent application to the Tribunal in respect of any issues forming part of or incidental to the present application.So they are my findings and rulings in relation to the matters that have been brought before me today.”Mr Cooper’s Contentions

Ratio Decidendi

Legal Principle Established

Established by:

Full text does not contain this section.