Davis and Australian Postal Corporation (Compensation) - [2022] AATA 4348

Davis and Australian Postal Corporation (Compensation) [2022] AATA 4348 (15 December 2022)
Division:GENERAL DIVISION
File Number(s): 2021/10171 and 2022/0370
Re:Alan Davis
APPLICANT

AndAustralian Postal Corporation
RESPONDENT

Decision
Tribunal:Mr A. Maryniak KC, Member
Date:15 December 2022
Place:Melbourne

The Tribunal sets aside the reviewable decisions of 26 November 2021 and 22 December 2021 and, in substitution, decides that:
1.The Applicant has not received a lump sum benefit under a superannuation scheme as a result of retirement and, accordingly, is entitled to compensation for incapacity for work under section 19 of the Safety, Rehabilitation and Compensation Act 1988 (Cth) (‘the Act’) rather than section 21, until 28 March 2022;
2.The Respondent must pay the Applicant’s legal costs and disbursements in respect of these proceedings under section 67 of the Act.

......................[sgd]..................................................
Mr A. Maryniak KC, Member
Catchwords
COMPENSATION – whether Applicant received a superannuation lump sum – whether superannuation lump sum received as a result of retirement – three instances of receipt of lump sum raised – where Applicant received notices that superannuation had been transferred to different plans or funds – no opportunity to object – no tacit or implied consent – superannuation withdrawn upon reaching preservation age – held insufficient temporal or causal link between receipt of lump sum and retirement – decision set aside and substituted
Legislation
Safety, Rehabilitation and Compensation Act 1988 (Cth)
Cases
Archer v Comcare [2000] FCA 1296
Comcare v Dunstan [2014] FCAFC 21
Davis and Australian Postal Corporation [2021] AATA 30
REASONS FOR DECISION
Mr A. Maryniak KC, Member
15 December 2022

The Applicant seeks review of two decisions of the Respondent dated 26 November 2021 and 22 December 2021.
The agreed discrete issues to be determined by the Tribunal are:
(a)Whether the Applicant has ‘received’ a superannuation lump sum so that his entitlement to compensation for incapacity is to be calculated under s 21 rather than s 19 of the Safety, Rehabilitation and Compensation Act 1988 (Cth) (‘the Act’); and
(b)If so, whether the superannuation lump sum benefit has been received as a result of his retirement.
The Applicant submits he is entitled to compensation under s 19 of the Act and relies upon Comcare v Dunstan [2014] FCAFC 21 (‘Dunstan’). Further, he submits that he received the superannuation lump sum of $1,984.70 pursuant to his withdrawal request on 22 April 2022, after he reached the pension age in March 2022. Hence, such sum was not received ‘as a result of’ his retirement from the Respondent.
The Respondent submits that s 21 of the Act is satisfied and to be applied, relying upon Archer v Comcare [2000] FCA 1296 (‘Archer’), and distinguishing Dunstan. It submits that there is a sufficient temporal connection between the Applicant’s retirement and his receipt of the lump sum because, inter alia, such monies originated from the Respondent, from which the Applicant retired in early 2019. The Respondent submits, as alternatives, that the Applicant ‘received’ the lump sum within…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2022] AATA 4348
Decision Date: 15 December 2022

CaseChat Overview and Summary

The Administrative Appeals Tribunal considered the matter of Davis and the Australian Postal Corporation (Comcare) concerning a claim for compensation. The applicant, Mr Davis, sought compensation, and the dispute centred on whether he had received a superannuation lump sum as a result of his retirement. Three separate instances of lump sum receipt were identified, with the applicant receiving notifications of transfers to different superannuation plans or funds without any opportunity to object or provide consent, either express or implied.

The Tribunal was required to determine whether the superannuation lump sums received by the applicant were received as a result of his retirement. This involved assessing the temporal and causal connection between the withdrawal of superannuation upon reaching preservation age and the applicant's retirement from employment.

The Tribunal found that there was an insufficient temporal or causal link between the applicant's receipt of the superannuation lump sums and his retirement. The fact that the superannuation was withdrawn upon reaching preservation age, without any clear indication that this withdrawal was directly precipitated by or intrinsically linked to the act of retirement, meant the statutory requirements for compensation were not met. Consequently, the Tribunal set aside the original decision and substituted its own.

Orders