Griffiths and Comcare
[2003] AATA 825
•22 August 2003
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2003] AATA 825
ADMINISTRATIVE APPEALS TRIBUNAL )
) Nos W2001/447 and W2002/340
GENERAL ADMINISTRATIVE DIVISION ) Re DAVID ROY GRIFFITHS Applicant
And
COMCARE
Respondent
DECISION
Tribunal The Hon C R Wright QC., (Deputy President) Date22 August 2003
PlacePerth
Decision 1. The reviewable decisions of the respondent dated 29 November 2001 and 30 August 2002 be set aside, and in lieu thereof a decision is made that the applicant who continues to be employed by the Commonwealth if not incapacitated for work would receive or be eligible to receive earnings including an amount of 60% of the Submarine Service Disability Payment from and after 15 May 1996 to be calculated in accordance with paragraphs 50 and 51 of the Tribunal’s Reasons for Decision.
2. The matter is remitted to the respondent to recalculate the applicant’s entitlement in accordance with the order made in paragraph 1.
3. The applicant is entitled to payment of his costs pursuant to s67(8) of the Safety, Rehabilitation and Compensation Act 1988 and accordingly the respondent is ordered to pay the applicant’s costs to be agreed or taxed in accordance with the Tribunal’s General Practice Direction.
[Sgd Hon C R Wright QC]
Deputy President
CATCHWORDS
Compensation - Chief Petty Officer in Royal Australian Navy - psychiatric disorder - unfit for sea going duties - subsequent discharge - entitlement for seagoing ("disability") allowance in assessing normal weekly earnings - factors affecting reduction in compensation entitlement pursuant to Safety, Rehabilitation and Compensation Act 1988 - s8(10).
Re Perry and Department of Defence AAT No 11718/97 (21 March 1997) Re O’Mullane and Comcare [2002] AATA 1251, 6 December 2002,
Spurr and Comcare (1999) AATA 43
Carson and Telstra Corporation (2001) AATA 648
Plumb v Comcare (1992) 39 FCR 236REASONS FOR DECISION
22 August 2003 The Hon C R Wright QC., (Deputy President) The Applications to Review
(A) No W2001/447
1. This is an application to review a decision of the Director of Military Compensation and Rehabilitation Services on behalf of the respondent, made on 19 November 2001, whereby an earlier determination by a departmental officer on 23 May 2000 was upheld.
2. The determination of 28 May 2000 was to the effect that the applicant was eligible for a seagoing allowance for the period 24 July 1995 to 6 March 1996 and also for the period 7 March 1996 to 10 May 1996.
3. This determination was relevant to the assessment of compensation payable to the applicant for incapacity occasioned as a consequence of his suffering a psychiatric disorder during his service as a Chief Petty Officer in the submarine service of the Royal Australian Navy.
4. The quantum of such compensation requires consideration of the provisions of the Safety, Rehabilitation and Compensation Act 1988 (Cth) (“the Act”) and, in particular s8 which deals (inter alia) with the calculation of the “normal weekly earnings”, (“NWE”) of a compensation claimant and circumstances which may require the modification of the NWE for compensation assessment purposes.
5. There is no dispute that the applicant sustained a compensable “injury” within the meaning of the Act on or about 23 July 1995. This condition or injury has been variously described in different medical reports, but for present purposes it may be termed an “anxiety and panic disorder”.
6. The applicant was discharged from the Royal Australian Navy on 1 June 2000, but continues to be employed by the Commonwealth in the Australian Tax Office, a fact which may be relevant when considering the applicability of s8(10) of the Act to the applicant’s NWE.
(B) No W2002/340
7. On 7 August 2002 the applicant applied to the respondent for a determination (a) that he was eligible for continuing compensation on the basis that his NWE should be reckoned by including in factor “A” of the formula provided by s8(1) of the Act, as part of his normal weekly earnings, a seagoing allowance, and (b) that the applicant would have continued to be entitled to receive such allowance as part of his NWE if he had not suffered the injury which prevented his continuing his seagoing service.
8. This application was unsuccessful. The applicant sought a review by the respondent. On 30 August 2002, the Director of Military Compensation and Rehabilitation Services on behalf of the respondent affirmed the primary determination and, on 6 September 2002, the applicant lodged the present notice to review with the AAT.
9. As explained by counsel for the applicant during the Tribunal hearing, the application to review was commenced “in order to ensure that the question of the applicant's ongoing eligibility for” (the seagoing) “allowance was before the Tribunal”, and “to ensure the Tribunal had jurisdiction to consider not only set periods but also a continuing payment of the allowance”.
The Hearing
10. The applications to review were heard together in Perth on Friday 7 February 2003. Mr Christie appeared for the applicant and Mr Allanson appeared with Ms McCormick for the respondent.
11. The applicant gave evidence by way of a written statement (Exhibit “A4”) which was supplemented by oral evidence and cross-examination.
12. Numerous items of documentary material were tendered by both parties and received into evidence. These documents will be referred to by exhibit number and description as necessary during the course of these reasons.
Background
13. The applicant is 47 years of age, having been born on 17 April 1956. He joined the Royal Navy in Britain in 1973 and volunteered for submarine service in 1975. On completion of his apprenticeship he joined the nuclear powered submarine HMS/m “Superb” in 1978. Except for 6 months during which he undertook technical training he stayed on “Superb” until 1987, a total period of 5 years, 4 months. He then took up a position as a nuclear standards inspector until 1989 when he joined the crew of HMS/m “Splendid”. He left the Royal Navy in 1991 and emigrated to Australia.
14. He enlisted with the Royal Australian Navy (RAN) immediately on his arrival in this country and served with the RAN from 11 November 1991 until his discharge on 1 June 2000.
15. The applicant suffered an injury in or about July 1995, namely panic disorder whilst serving on the submarine HMAS Onslow, which injury was caused by the accumulated stress of submarine service.
16. By reason of his injury, the applicant has been incapacitated for work from 24 July 1995 and as a consequence has been entitled to receive compensation in accordance with the provisions of s19 of the Act.
17. Prior to suffering the disability, the applicant had been employed as a Chief Petty Officer ETSM on HMAS Onslow continuously from 10 May 1993 to 23 July 1995.
18. Whilst serving on HMAS Onslow the applicant’s NWE included ordinary pay and service allowance, and 2 further allowances, namely a Submarine Service “Qualification and skill” payment and a Submarine Service “Disability having completed between 6 and 11 years sea time” payment.
19. As at 23 July 1995 and thereafter, including an attempted return to active submarine service on the submarine HMAS Orion for approximately 1 month from 15 July 1996 to 11 august 1996, the applicant had completed 10.54 years sea time on submarines and therefore had not achieved and, by reason of his injury, could not achieve the submarine Service “Disability having completed between 11 years or more sea time” payment, which would have entitled him to an increased level of “Disability” allowance.
20. The RAN has a policy of not requiring its naval personnel to ordinarily serve more than 3.5 years continuously at sea and allowing at least 1.5 years of shore time breaks between periods at sea. Such policy is subject to operational requirements and does not prevent individual naval personnel from volunteering to serve for longer periods at sea. (Reference Australian Book of Reference No 10 Chapter 4 “Career Management and Postings” – Exhibit A1, Item 3).
21. Current RAN management projections and plans, subject to naval personnel availability and operational requirements, are that naval personnel in the submarine service of the rank of the applicant are expected to serve 3 years at sea for each 2 years onshore. This management plan does not prevent naval personnel from volunteering for or requesting longer periods at sea (or onshore) and will, in any event, be overridden by operational requirements. (Reference ANNEX C-2 to LSP 25 February 2000 and ANNEX A-3 to LSP 6 July 2001 – Exhibit A1, Item 4). As of June 1997 the then current projections indicated an expectation of 3 years at sea for each 3 years ashore (Exhibit R5).
22. The applicant claims that, had he not suffered the relevant injury, he intended to continue employment on the HMAS Onslow, or such other RAN submarines as were available, indefinitely. Further, he intended to volunteer to continue in a seagoing position, even if offered a shore-based alternative.
23. There are considerable financial incentives paid by the RAN for servicemen of the applicant’s rank and experience to continue in a seagoing position, such incentives are currently in excess of $20,000 per annum. These were referred to during the hearing as “retention allowances”.
24. The applicant continues to be employed by the Commonwealth with the Australian Tax Office and is employed at 100% of his normal weekly hours. The amount he is able to earn in that employment is substantially less than his NWE. The applicant is in receipt of a partial superannuation pension and his compensation falls to be determined by reference to s20 and s19(3) of the Act. It is claimed that the applicant is entitled to receive compensation, which, when added to his earnings, amounts to 95% of his NWE.
Issues and Legislation.
25. The critical issue in this case is whether or not s8(10)(a) of the Act applies so as to place a limitation upon the compensation which would otherwise be payable to a claimant by directly applying the NWE formula provided for in s8(1) in accordance with s19 and s20. Section 8(6) may also be relevant.
26. Section 8(1), (6) and (10) provide as follows:
(1) For the purposes of this Act, the normal weekly earnings of an employee (other than an employee referred to in subsection (2)) before an injury shall be calculated in relation to the relevant period under the formula:
(NH X RP) + A
where:
NH is the average number of hours worked in each week by the employee in his or her employment during the relevant period;
RP is the employee's average hourly ordinary time rate of pay during that period; and
A is the average amount of any allowance payable to the employee in each week in respect of his or her employment during the relevant period, other than an allowance payable in respect of special expenses incurred, or likely to be incurred, by the employee in respect of that employment.
…
(6) Subject to this section, if the minimum amount per week payable to an employee in respect of his or her employment by the Commonwealth or a licensed corporation at the date of the injury is increased, or would have been increased if the employee had continued in that employment, because of:
(a) the attainment by the employee of a particular age;
(b) the completion by the employee of a particular period of service; or
(c)the receipt by the employee of an increase in salary, wages or pay by way of an increment in a range of salary, wages or pay applicable to the employee or to his or her office, position or appointment;
the normal weekly earnings of the employee before the injury, as calculated under the preceding subsections, shall be increased by the same percentage as the percentage by which that minimum amount per week is increased, or would have been increased, as the case may be.
…
(10) If the amount of the normal weekly earnings of an employee before an injury, as calculated under the preceding subsections, would exceed:
(a)where the employee continues to be employed by the Commonwealth or a licensed corporation—the amount per week of the earnings that the employee would receive if he or she were not incapacitated for work; or
(b)where the employee has ceased to be employed by the Commonwealth or a licensed corporation—whichever is the greater of the following amounts:
(i)the amount per week of the earnings that the employee would receive if he or she had continued to be employed by the Commonwealth or the licensed corporation in the employment in which he or she was engaged at the date of the injury;
(ii)the amount per week of the earnings that the employee would receive if he or she had continued to be employed by the Commonwealth or the licensed corporation in the employment in which he or she was engaged at the date on which the employment by the Commonwealth or the licensed corporation ceased;
the amount so calculated shall be reduced by the amount of the excess.”
Discussion
27. Before passing to a discussion of how the applicant’s service and allowances should be taken into account in affecting his past and current entitlements, it is appropriate to deal with the significance of the retention allowances which were provided to Navy personnel some time after the applicant became unfit for sea service.
28. The evidence of the applicant was that prior to 1999, the submarine service of the RAN was experiencing a severe manpower shortage and, to combat the difficulty, the Navy, in 1999 introduced a retention bonus scheme whereby eligible personnel were offered $35,000 at the completion of a two year period if they remained serving with submarines during that time. However the applicant was ineligible for this payment because of his medical unfitness for sea service. The applicant said “if it hadn’t been for being medically unfit I would have qualified for the retention bonus”. (Transcript p.23)
29. It is plain from the applicant’s evidence that this retention bonus was in the nature of a one-off lump sum payment. It was not an “allowance” of the kind contemplated by s8(1) factor “A” and, furthermore, it was, at best, prospective only, at the time the applicant sustained his relevant incapacitating injury.
(cf Perry and Department of Defence AAT No 11718/97 (21 March 1997) Senior Member Allen; and
O’Mullane and Comcare [2002] AATA 1251, 6 December 2002, Mr R G Kenny (Member).
30. The only significance that I can see for a bonus of this kind in relation to the current issues is the effect its existence may have upon the intention of a serving submariner to extend his submarine service in the future. This, in turn, may have some effect upon the amount that such an individual “would receive” each week as contemplated by s8(10)(a).
31. In Spurr and Comcare (1999) AATA 43 at paragraph 9, Deputy President Blow QC., referring to s8(10)(b)(i) and (ii) said:
“Each of those sub-paragraphs requires the employee's hypothetical earnings to be calculated by reference to an assumption that he or she would have continued to be employed in the employment in which he or she was engaged, either at the date of the injury or at the date on which the employment ceased.”
These comments could apply equally to s8(10(a).
32. Accordingly, the existence of an incentive to continue in employment, such as a generous retention bonus, could well have a bearing upon the likelihood of an individual deciding to remain in that employment rather than seeking some other career path.
33. The difficulty with attaching any significance to the retention bonus scheme in the present case stems from the fact that the applicant became unfit for seagoing duties in 1995 and the bonus scheme did not commence until 1999. There is accordingly a high degree of speculation involved in assessing the effect which the scheme may have had upon the applicant 4 years on from his incapacitating injury. Nonetheless it is a factor to be considered in this context along with the other evidence in the case.
34. Deputy President Blow also said this in Spurr’s case (paragraph 13):
“13. What s.8(10) does is to require a comparison between "the amount of the normal weekly earnings of an employee before an injury" and a hypothetical later figure. It refers to the pre-injury figure only for the purpose of requiring a comparison, and not to the intent that the pre-injury figure is to prevail. If that had been Parliament's intention, the enactment of s.8(10) would have been unnecessary. If Hadjitofi were correctly decided it is difficult to see whether s.8(10) could ever have had any practical application.
14. In accordance with s.15AA of the Acts Interpretation Act 1901, in the interpretation of s.8(10) of the Act, a construction that would promote the purpose or object underlying the Act must be preferred to a construction that would not promote that purpose or object. Heerey J said the following as to the purpose of the Act in Bortolazzo v Comcare (1997) 75 FCR 385 at 388:-
"The underlying policy is that an injured employee should not be worse off during the period of incapacity as a result of work-related injury. However, it follows conversely that the injured employee should not be better off."
15. The clear purpose of s.8(10) is to prevent an injured employee from being better off as a result of being incapacitated.. As Parliament sought to achieve that purpose by enacting a provision requiring only a comparison with hypothetical earnings as an employee of the Commonwealth, and not requiring the actual or estimated earnings that an employee who would have moved to the private sector would have received, Parliament adopted a regime that was less than perfect, but perhaps had the advantage of administrative simplicity. Given the underlying purpose of the relevant provisions as explained by Heerey J, I believe that s.8(10)(b) requires a decision-maker, in assuming that an employee would have continued to be employed by the Commonwealth in the employment in which that employee was engaged, first to assume that the employee would have continued in the same occupation and at the same level, and then consider what circumstances resulting in the payment of allowances, overtime or the like would have existed from time to time.”
35. The applicant contends that his current NWE, if calculated correctly is as follows:
(a) Ordinary pay, including service allowance $55,968 p.a.
(b)Submarine Service “Qualification and Skill” payment $ 7,464 p.a.
(c)Submarine Service “Disability having completed between
6 and 11 years sea time” payment $20,751 p.a.
$84,173 p.a.
(I have updated these figures from those in paragraph 17 of the applicant’s Statement of Facts and Contentions, relying upon the material contained in Exhibit A1, Item 5 and Exhibit R4).
36. The applicant contends that all three of the salary components (a), (b) and (c) mentioned in paragraph 36 above were being paid to him for a continuous period well in excess of the “relevant” period (see section 9) prior to his injury; and accordingly, those items comprise his NWE pursuant to s8(1) of the Act. (Although each component was a lesser amount than now at the time of his injury).
37. The applicant contends:
(i)The RAN continues to employ naval personnel in the same position and performing the same duties as those performed by the applicant on the HMAS Onslow and those personnel, if they have completed 6 to 11 years sea time, currently receive the “Disability” payment of $20,751 p.a. (If those naval personnel have completed in excess of 11 years sea time, they currently receive a “Disability” payment of $22,870 p.a.)
(ii)Section 8(10) of the Act is not applicable to reduce the applicant’s NWE. The applicant could, but for his injury, have continued in a seagoing position indefinitely as he wished, or if required to do so by the RAN. The position held on the HMAS Onslow was not for a fixed or limited period, regular seagoing service on submarines remains available and there has not been any subsequent change of policy by the RAN, whereby servicemen in the position of the applicant no longer receive the “Disability” payment for service on a submarine.
38. The applicant sought to support these contentions by reference, first, to the very high proportion of his naval career, both in Britain and Australia, which had been spent in seagoing duties on submarines. He also pointed to the experience of Chief Petty Officer Maybury (whose service record was contained in Exhibit A1, Item 2) as demonstrating that in the RAN officers sometimes served for long periods in seagoing submarine billets notwithstanding the content of policy documents such as the Australian Book of Reference 10, paragraph 4.37 (Exhibit A1, Item 3) and tabulated Sea/Shore ratios contained in 3 tables in Exhibit A1, Item 5 pp 1 and 2 and in the comparable table in Exhibit R5. The applicant’s contention was that at all relevant times before his injury he intended to volunteer as and when necessary for continuing sea service in the submarine section of the RAN.
39. The respondent sought to counter these arguments by pointing out that prior to the applicant being assessed as unfit for sea service, he had in fact indicated that he wished to spend less time at sea and more time on shore. Particular reference was made to a letter which the applicant wrote to his commanding officer, the Captain of HMAS Onslow on 5 July 1995, (Exhibit R1, page 57) in which he requested a posting off HMAS Onslow to a shore billet.
40. The letter was long and detailed. It contained complaints about several matters which, taken alone, could be interpreted as showing that his request for a shore posting was nothing more than a lifestyle decision based upon his dissatisfaction with conditions generally and his long absences from his family ashore. This indeed was the original opinion of Dr Peter McCarthy, a consultant psychiatrist who first saw him in 1997. However Dr McCarthy’s most recent report of 31 January 2003 (Exhibit A3) makes it clear that subsequent interviews with the applicant convinced him that “his coming ashore was not a lifestyle decision, but represented his response to his anxiety panic disorder which he had developed in the Navy.”
41. In my opinion paragraph (g) on page 4 of the applicant’s letter of 5 July 1995 also supports this conclusion. It reads:
“My health has deteriorated markedly in the past 6 months. I now have continual problems with my knees from having them bent whilst watch-keeping at the CEP and SFCS Consoles. I now regularly twist my knee when going down the AMS hatch or through the 4 Man Chamber. Mentally I am feeling very run down and depressed with the coup de grace being the cancellation of my posting in August. I am unaware of any reliefs being available in the foreseeable future.”
42. A psychological assessment by an RAN psychologist on 14 July 1995 assessed the applicant’s condition as consistent with Cumulative Stress Reaction (Exhibit R1, p62), and in a Minute dated 31 July 1995 the Captain of HMAS Onslow, supporting the applicant’s request for a shore posting, assessed him as “tired, mentally run down and no longer confident in his own ability.”
43. This, and other evidence, supports the applicant’s contention that his decision to seek a shore posting before completing his tour of duty on HMAS Onslow was a product of his developing mental incapacity. I see no reason to doubt his claim that he wished to continue serving on submarines. Such a wish is consistent both with his past history and the efforts he made after leaving HMAS Onslow to qualify for a posting to the RAN’s new Collins class submarines.
44. In my opinion, but for the incapacitating injury which he sustained by reason of his mental condition rendering him unfit for further seagoing service, it is probable that he would have continued to seek seagoing submarine billets in the years ahead before his retirement.
45. The applicant freely conceded that this pattern of conduct would not have continued for the entirety of his remaining service life and there was much debate between counsel as to the appropriate proportion of his remaining service to be taken into account in this way.
46. I should say at once that I do not accept the very limited basis upon which the decision-maker whose decision is under review approached this issue. I think the correct approach is that spelt out by Deputy President Blow in Spurr’s case. I find that, had the applicant not been injured he would have continued on in his career with the Royal Australian Navy, and that he would have continued, at least until the present time, offering himself for seagoing service as a submariner for about 60% of this time as a serving member of the Navy.
47. I find that it is highly likely that his volunteering for such service would have been accepted by the Navy. I accept that the Navy was, and has been, significantly undermanned with officers having comparability with the applicant’s expertise in maintenance duties and practices, both on nuclear and conventional powered submarines. I accept that the applicant was well regarded as a conscientious and efficient officer at all times until his injury. I accept that the phasing out of the Oberon class of submarines or the approaching end of the applicant’s billet on HMAS Onslow at the time he was injured are not factors materially affecting the likelihood that the applicant would continue in submarine sea service.’
48. Counsel for the applicant submitted that if I were to adopt the approach which I have just outlined, I should also accept that the appropriate calculation of the applicant’s “disability payment” for the purpose of calculating the reduction required by s8(10) should be increased from the “6 to 11 year” band ($20,751 p.a.) to the “in excess of 11 year” band ($22,870 p.a.) because the applicant had completed 10.54 years of sea-time at the time of his injury.
49. In principle I think this is correct. We are of course looking at the position in which the applicant would have been now but for his injury. On this basis it may be safely inferred that he would have moved into the higher band within about 1 year or even less after the date of his injury.
50. I therefore conclude that the applicant’s NWE to be assessed in accordance with s8(1), as from the date of his injury should include the following components:
(a) Ordinary pay, including service allowance.
(b) Submarine service “qualification and skills” payment.
(c)Submarine service “disability having completed between 6 and 11 years sea-time” payment.
51. I find that the NWE of the applicant before his injury would exceed the amount per week of the earnings that the applicant would receive if he were not incapacitated for work and, consequently, as the applicant continues to be employed by the Commonwealth, the amount calculated as his NWE should be reduced by (a) a sum equivalent to 40% of the submarine service “disability having completed between 6 and 11 years sea time” payment between 13 July 1995 and 12 July 1996 (inclusive); and (b) a sum equivalent to 40% of the submarine service “disability having completed in excess of 11 years sea time” payment on and after 13 July 1996.
52. To enable counsel to make further submissions in respect of issues relating to the possibility of specifying a date for the cessation of the seagoing allowance as a component of the applicant’s NWE, I arranged a further hearing by telephone on 29 July 2003. At that hearing counsel for the applicant submitted that the AAT does not have power to make an order for the future cessation of payments or a declaration as to future ineligibility for payments. Carson and Telstra Corporation (2001) AATA 648 (at para. 58-68) and Plumb v Comcare (1992) 39 FCR 236 at 240 were cited as authority for this proposition.
53. It seems to me that the essence of Plumb’s case was to determine that the AAT was not “functus officio” in the circumstances there under consideration and thus had power to revisit an earlier decision by virtue of the enabling provisions of s62 of the Act.
54. Carson’s case dealt with a different point, viz the power of a determining authority to revoke a determination pursuant to s61 rather than s62.
55. The issue of the respondent’s continuing liability to pay compensation to the applicant was squarely raised in the present proceedings by the second application for review (W21002/340), the substance of which was described in paragraphs 7, 8 and 9 above. The question of whether or not the applicant would have continued making himself available for seagoing duties was the subject of evidence and was dealt with in counsel’s submissions. As I listened to the applicant’s evidence and indeed on my first reading of the transcript of evidence, I formed the impression that the applicant conceded that he would have ceased seagoing service altogether before reaching the compulsory retirement age of 55 years. I reproduced this impression of the evidence in my first draft of these reasons which I provided to counsel for the purpose of discussing the cessation of seagoing allowance issue mentioned in paragraph 52 above.
56. During the course of his submissions Mr Christie suggested that my finding as to this issue was based upon a misconception of what his client had said in evidence. Accordingly I have carefully reconsidered the passage of evidence in question and find, as a result, that Mr Christie’s suggestion is in fact correct.
57. To explain the initial error it is appropriate to reproduce the material in question. It is to be found at pp 41-42 of the transcript and is as follows:
“MR ALLANSON: One of the other matters I want to deal with very briefly, Mr Griffiths, is you have made a comparison between yourself and Mr Maybury? --- Yeah, that comparison was not to say that I am exactly the same as Chief Maybury. But it was trying to indicate, that the sea-shore ratio that the SCM tried to follow, using their guidelines, is not – is purely that. A guideline. They are people that exceed that. Chief Maybury might be an exception. But there are people I am aware of that might – have exceeded 3 years and would be somewhere between, say, the 3 years and what Chief Maybury has got there, the 6. It was not so much saying I am the same as Chief Maybury. It was just showing you that the SCM used guidelines. It is not set in concrete. It is the same as when you join a submarine or you move anywhere in the Navy. There is no fixed contract. You don‘t get a bit of paper that says you will join a submarine on this date and you will leave on that date some time in the future. All you get told is you are expected to be on the submarine on this time and date and you turn up because the Defence Discipline Act ensures that you do turn up there. And then you pick up your job. You qualify or you get your familiarisation and you start doing your job, until at some time you need to come off – you are required to come off the submarine because they need to send someone else on there to train up and you wish to come off because a consultation with the career managers you are saying, well, I am coming to the end of my sea time. And I would like to move on to a specific job ashore.
Or because you are coming to the end of your sea time and they recognise that there is a desirable ratio between shore postings and sea postings? --- Yes.
So, even if you had the expectation that you would have continued longer at sea, I think you have accepted that you would not have expected to continue at sea during the whole of your time in the Navy? ---, No, No. I accept that.
And isn’t it the case that you would have had shore postings consistent with the Navy ratio? --- No. Because, as I said before, my view was I preferred the challenge of being at sea because of the work that I do when I am at sea. So, my bias would be far more sea time than shore time. And preferably the shore time would only be such as the Collins conversion courses. I mean, I can’t speculate what would happen 5 years down the track. My views could change. But at the time I was on Onslow, and even up until the time I was discharged from the Navy in 2000, I wanted to be cured, it is probably the right word, so I could get back to sea on a submarine.”
58. Properly understood the applicant was conceding that his future expectation was that the ratio of his sea time and shore time would tend to be in accordance with Navy guidelines rather than being in accordance with his own natural preference to have more time at sea.. I misinterpreted his assent to the proposition that “you have accepted that you would not have expected to continue at sea during the whole of your time in the Navy”, as meaning that he agreed that he would have expected to cease all seagoing service at some later time during his career prior to retirement. As to this, I am satisfied that I was wrong.
59. As a consequence any proper foundation for finding that the applicant “would have sought and obtained a full-time shore posting on or about 17 April 2005” (as I wrote in paragraph 52 of the draft provided to Counsel) ceases to exist.
60. There was some general evidence that the applicant’s experience may have rendered him fit for an instructor’s role but, as mentioned before there was also evidence that there were constant shortages of manpower in the submarine service, particularly in skilled occupational areas such as the applicant’s.
61. As a result I am unable to make a finding that the applicant would ceased seagoing service altogether at any time before compulsory retirement age.
62. Mr Christie, rather optimistically suggested that the retirement age may be extended before the applicant reaches 55 years and that this may provide a basis for extending the seagoing allowance component of his NWE beyond his 55th birthday. I am quite unable to make any finding as to this. It would be pure speculation. If the retirement age were to be extended, the applicant could make an application under s62.
63. As it turns out the issues which were concerning me when I arranged the further hearing on 29 July 2003 have become largely irrelevant. I can see no reason to find that the applicant will no longer be entitled to a sea going allowance component in his NWE on and after 17 April 2005. Nor can I see any reason to interfere with my finding as to the 60:40 apportionment between shore time and sea time already made in respect of his service up to the present time, for the period between now and his prospective retirement at age 55.
64. In summary therefore, although I am satisfied I have the power to make orders or declarations as to the appropriate time for cessation of seagoing allowance as a component in the NWE calculation, my reconsideration of the evidence leads me to conclude that no such order or declaration would be warranted in this case.
65. Accordingly I propose to make an order in the following terms:
“The reviewable decisions of the respondent dated 29 November 2001 and 30 August 2002 be set aside, and in lieu thereof a decision is made that the applicant who continues to be employed by the Commonwealth, if not incapacitated for work would receive or be eligible to receive earnings including an amount of 60% of the Submarine Service Disability Payment from and after 15 May 1996 to be calculated in accordance with paragraphs 50 and 51 of the Tribunal’s Reasons for Decision.”
66. it was submitted by Mr Allanson that the order made should be made in terms which reflect the notional payment of the whole of the relevant disability payment for specific periods and non-payment of that amount for other specified periods to reflect the 60:40 ratio of the applicant’s assessed eligibility.
67. Whilst Mr Chrisie did not really oppose this idea, I think it an inappropriate course to take in this case, principally because there is no reliable evidence available to substantiate the accuracy of the dates suggested. I think the broader approach I have suggested obviates the possibility of any argument that a seagoing billet may not have been available to the applicant during any period of time so specified and, is overall, more conducive to fairness to both parties as it spreads the calculation over the whole of the applicant’s remaining service period.
68. The remaining issue is as to costs. An order in favour of the applicant in the terms suggested by Mr Christie in his written submissions dated 29 July 2003 was not opposed by Mr Allanson. In my opinion the applicant is entitled to his costs and an appropriate order should be and is made in these terms.
“The applicant is entitled to payment of his costs pursuant to s67(8) of the Safety, Rehabilitation and Compensation Act 1988 and accordingly the respondent is ordered to pay the applicant’s costs to be agreed or taxed in accordance with the Tribunal’s General Practice Direction.”
69. The matter will now be remitted to the respondent for re-calculation and payment of the applicant’s entitlements in accordance with the terms of the order proposed in paragraph 65.
I certify that the 53 preceding paragraphs are a true copy of the reasons for the decision herein of The Hon C R Wright QC.,
Signed: K L Miller (Administrative Assistant)
Date/s of Hearing 7 February 2003
Date of Decision 22 August 2003
Counsel for the Applicant Mr Henry Christie
Solicitor for the Applicant Christie and Strbac
Counsel for the Respondent Mr Allanson, Ms McCormick
Solicitor for the Respondent Sparke Helmore
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