Giovanni Del Treppo and Comcare

Case [2014] AATA 711

[2014] AATA 711 

Division GENERAL ADMINISTRATIVE DIVISION

File Number(s)

2013/6637

Re

Giovanni Del Treppo

APPLICANT

And

Comcare

RESPONDENT

DECISION

Tribunal

Deputy President F J Alpins
Date 30 September 2014
Place Melbourne

The Tribunal affirms the decision under review.

...................[sgd].....................................................

Deputy President F J Alpins

COMPENSATION – Commonwealth employees – weekly compensation payments for incapacity – transitional provisions of Safety, Rehabilitation and Compensation Act 1988 (Cth) – effect of 65th birthday – reduction of payments to “former employee” – whether reduced payments correctly calculated – whether reduced payments to be indexed – whether estoppel against operation of provision reducing payments – whether any relief from reduction of payments on grounds of unfairness or financial hardship

Tribunal’s jurisdiction – review of decision affirming determination upon reconsideration – reviewable decision – whether Tribunal has jurisdiction in respect of periods not subject of reviewable decision – request for reconsideration of determination – characterisation of request for reconsideration

Legislation

Acts Interpretation Act 1901 (Cth), s 15AB

Administrative Appeals Tribunal Act 1975 (Cth), ss 25, 43

Compensation (Commonwealth Government Employees) Act 1971 (Cth)

Safety, Rehabilitation and Compensation Act 1988 (Cth), ss 8, 13, 23, 60, 62, 64, 72, 123, 124, 132, 133, 134, Pt VI, Pt X

Cases

Awad v Australia Post [2004] AATA 408

Beesly v Hallwood Estates Ltd [1960] 2 All ER 314

Comcare v Burton (1998) 50 ALD 846

Comcare v Willems (1996) 70 FCR 244

Considine v Citicorp Australia Ltd [1981] 1 NSWLR 657

Cooper v Comcare (2002) 118 FCR 157

Daff v Comcare [2010] AATA 732

Federal Commissioner of Taxation v Wade (1951) 84 CLR 105

Formosa v Secretary, Department of Social Security (1988) 46 FCR 117

Re Gordon Slater and Telstra Corporation Ltd [2007] AATA 1085

Lees v Comcare (1999) 56 ALD 84

Telstra Corporation Ltd v Hannaford (2006) 151 FCR 253

Whitney v Comcare [2012] AATA 370

REASONS FOR DECISION

Deputy President F J Alpins

30 September 2014

INTRODUCTION

  1. This application for review concerns the calculation of the applicant’s entitlement to weekly compensation payments under the transitional provisions contained in Pt X of the Safety, Rehabilitation and Compensation Act 1988 (Cth) (the “1988 Act”).

    FACTS AND PROCEDURAL HISTORY

  2. In 1982, the applicant, Mr Del Treppo, sustained an injury described as “left knee pain and effusion”, in respect of which he received compensation payments for incapacity under the predecessor of the 1988 Act, being the Compensation (Commonwealth Government Employees) Act 1971 (the “1971 Act”).

  3. Upon commencement of the 1988 Act, Mr Del Treppo continued to receive weekly payments of compensation for incapacity, pursuant to the provisions of that Act.  Mr Del Treppo has continued to receive such payments to the present time.

  4. From the commencement of the 1988 Act until immediately prior to Mr Del Treppo’s 65th birthday, which occurred on 10 March 1993, Mr Del Treppo received compensation payments pursuant to s 132(4) of the 1988 Act. From 1 July 1991 to 9 March 1993, the amount of compensation was increased by operation of s 133(1) of…

Continue reading Giovanni Del Treppo and Comcare

Sign in free to access the full text

Details
AGLC
Giovanni Del Treppo and Comcare [2014] AATA 711
Case
[2014] AATA 711
Decision Date

CaseChat Overview and Summary

In the matter of Giovanni Del Treppo and Comcare, the applicant, Mr Del Treppo, sought a review of the respondent’s determination regarding his entitlement to weekly compensation payments under the transitional provisions of the Safety, Rehabilitation and Compensation Act 1988 (Cth). Mr Del Treppo, who sustained a left knee injury in 1982, had been receiving compensation payments under the predecessor Act, the Compensation (Commonwealth Government Employees) Act 1971, and continued to receive payments under the 1988 Act. Upon reaching 65, his payments were reduced, leading to his challenge against the reduction and the cessation of indexation. The Federal Circuit and Family Court of Australia was tasked with determining the validity of the reduction and the adequacy of the payments.

The primary legal issue was whether the Tribunal had jurisdiction to review Mr Del Treppo’s entitlement to compensation for the entire period since the 1988 Act's commencement or if it was limited to the specific period of 15 March 2013 to 13 March 2014. Additionally, the court needed to assess if the reduction of compensation payments upon Mr Del Treppo reaching 65 and the cessation of indexation were in line with the statutory provisions. The court also considered whether there were any procedural errors in the respondent’s determination.

The Tribunal concluded that its jurisdiction was confined to reviewing the respondent’s decision made under s 62 of the 1988 Act regarding Mr Del Treppo’s entitlement to compensation for the specified period. It found that the statutory framework established a three-tiered decision-making process, limiting the Tribunal’s review powers to the reconsideration determination. The Tribunal affirmed the respondent’s decision, finding no errors in the calculation of the compensation payments under s 134 of the 1988 Act. The Tribunal also noted that Mr Del Treppo had not explored the availability of an age pension, which might alleviate his financial concerns.

The court affirmed the decision under review, upholding the respondent’s determination that Mr Del Treppo was entitled to compensation payments of $261.72 per week for the relevant period. The Tribunal’s jurisdiction was limited to reviewing the reconsidered determination, and it found no grounds to alter the respondent’s decision.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

This application for review concerns the calculation of the applicant’s entitlement to weekly compensation payments under the transitional provisions contained in Pt X of the Safety, Rehabilitation and Compensation Act 1988 (Cth) (the “1988 Act”). FACTS AND PROCEDURAL HISTORY In 1982, the applicant, Mr Del Treppo, sustained an injury described as “left knee pain and effusion”, in respect of which he received compensation payments for incapacity under the predecessor of the 1988 Act, being the Compensation (Commonwealth Government Employees) Act 1971 (the “1971 Act”). Upon commencement of the 1988 Act, Mr Del Treppo continued to receive weekly payments of compensation for incapacity, pursuant to the provisions of that Act. Mr Del Treppo has continued to receive such payments to the present time. From the commencement of the 1988 Act until immediately prior to Mr Del Treppo’s 65th birthday, which occurred on 10 March 1993, Mr Del Treppo received compensation payments pursuant to s 132(4) of the 1988 Act. From 1 July 1991 to 9 March 1993, the amount of compensation was increased by operation of s 133(1) of the Act, so as to equate to “minimum earnings” as therein defined. Mr Del Treppo’s compensation payments made under the 1988 Act, calculated in accordance with those provisions, gradually increased over time from an initial amount of $287.05 per week so that, immediately prior to his 65th birthday, Mr Del Treppo’s compensation payments were in the amount of $348.96 per week. Since 10 March 1993, being Mr Del Treppo’s 65th birthday, Mr Del Treppo’s compensation payments have been reduced, to the fixed amount of $261.72 per week, said by the respondent to be the amount to which Mr Del Treppo has been, is and will continue to be entitled by operation of s 134 of the 1988 Act, as calculated according to the prescribed formula in that provision. The respondent has made successive determinations under the 1988 Act in respect of Mr Del Treppo’s entitlement to such compensation payments according to s 134. The determination which directly resulted in this application for review being brought was made by letter dated 20 February 2013 (the “determination”), when the respondent determined that Mr Del Treppo was entitled to compensation payments, again in the amount of $261.72 per week, in respect of the period 15 March 2013 to 13 March 2014 (the “relevant period”). In about January 2013, Mr Del Treppo had complained to the Commonwealth Ombudsman that the compensation payments he was receiving were inadequate, in that they were insufficient to meet living expenses and should be indexed each year. That complaint was apparently referred to the respondent. Consequently, the respondent addressed that complaint, by letter dated 29 January 2013. The respondent explained that while the 1971 Act provided for incapacity payments to be made on an indefinite basis, the 1988 Act generally provided for them to cease upon a claimant’s 65th birthday and, in substance, explained how the transitional provisions of the Act, particularly s 134 operated so as to reduce such payments in circumstances such as his, and did not permit indexation following such reduction.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Based on the evidence before the Tribunal, it seems that Mr Del Treppo has not inquired, at least to any serious extent, about the availability of an age pension, nor about any effect it might have on his payments under the 1988 Act, as has apparently previously been suggested to him. It is not clear to me why he has not done so. It seems to me that it would be best for him to make such inquiries with Centrelink and perhaps ask a friend or fellow member of his community for assistance in that regard if necessary. CONCLUSION For the above reasons, the Tribunal will affirm the decision under review, being the respondent’s decision made on 5 December 2013 under s 62 of the 1988 Act to affirm its determination made on 20 February 2013 with respect to Mr Del Treppo’s entitlement to weekly compensation payments for the relevant period.

Ratio Decidendi

Legal Principle Established

A decision made pursuant to s 62 upon reconsideration of a determination constitutes a “reviewable decision” as defined in s 60(1) of the 1988 Act. Section 64(1) provides that an application may be made to this Tribunal for review of such a reviewable decision. CONSIDERATION The following issues arose for the Tribunal’s consideration. The first issue is whether the Tribunal’s jurisdiction in this proceeding is confined to consideration of Mr Del Treppo’s entitlement to compensation for the relevant period. It was apparent at the hearing, as had been the case in previous documents prepared by the applicant, that the applicant’s complaint as a matter of substance concerns the proper amount of the weekly compensation payments made to him during the entire period since the commencement of the 1988 Act (in December 1988) up to and including the relevant period. In substance, Mr Del Treppo argued that his weekly compensation payments should not have been reduced when he reached the age of 65. Furthermore, he complained that amounts payable under s 134 should be indexed, to meet necessary living expenses. Furthermore, as I have indicated, he complained in substance that he had been told prior to the commencement of the 1988 Act that he would receive the weekly compensation payable to him under the 1971 Act “for life” and that the reduction in the amounts paid to him when he turned 65 was unfair and has caused, and continues to cause, him financial hardship. It may well be the case that the substantive issues raised by Mr Del Treppo arise to the same extent and in the same way not only in respect of the relevant period but also in relation to prior periods from the commencement of the Act, with the possible exception, at least, of the period preceding the insertion of s 134(2), in 1996, when s 134 took a different form. Nevertheless, for the reasons given below, the Tribunal has confined its consideration to the issue of Mr Del Treppo’s entitlement to compensation payments for the relevant period, although given Mr Del Treppo’s arguments, events prior to the relevant period nevertheless arise for consideration in that context. Jurisdiction In Lees v Comcare (1999) 56 ALD 84 at [32], the Full Federal Court described Pt VI of the 1988 Act as establishing a “three tiered decision-making process”, comprising the “original decision or determination”, a “reconsidered determination” and “a decision of the AAT reviewing the reconsidered determination”. Accordingly, the Tribunal is only empowered to review a decision made under s 62 of the 1988 Act, being the “reviewable decision” for the purposes of s 64. The powers and discretions that the Tribunal may exercise under s 43(1) of the Administrative Appeals Tribunal Act 1975 (Cth) (the “AAT Act”), being those conferred by the 1988 Act, are to be exercised “[f]or the purpose of reviewing” that “reviewable decision” and accordingly are not to be exercised at large (ibid at [39]).