Hughes v Western Australian Cricket Association (Inc)

[1986] FCA 382

Re: SECRETARY TO THE DEPARTMENT OF SOCIAL SECURITY
And: GIOVANNI SIVIERO
No. SA G64 of 1985
Administrative Law

COURT

IN THE FEDERAL COURT OF AUSTRALIA

SOUTH AUSTRALIA DISTRICT REGISTRY
GENERAL DIVISION
Keely J.
Fisher J.
Davies J.

CATCHWORDS

Administrative Law - appeal from Administrative Appeals Tribunal - social security - recovery of sickness benefits following receipt of lump sum workers' compensation payment - whether benefits and compensation payable in respect of same incapacity - whether 1979 and 1982 amendments significantly changed operation of recovery provisions

Words and Phrases - "in respect of"

"incapacity"

Social Security Act 1947 (Cth) Part VII, ss.24, 108, 115(2), 115B, 115C, 115D, 115E, 115F

Workers Compensation Act 1971 (SA) ss.9, 51, 53, 59, 69, 70, 72

Workers' Compensation Act 1926 (NSW) ss.9, 16

Compensation (Commonwealth Government Employees) Act 1971 (Cth) s.98

Re Castronuovo and Director-General of Social Security (1984) 5 ALN No.344

State Government Insurance Office (Qld) v Rees (1979) 144 CLR 549

Butler v Johnston, Guild & Somes (1984) 55 ALR 265

Australian Telecommunications Commission v Leech (1982) 44 ALR 441

Commonwealth of Australia v Keogh (1983) 50 ALR 693

Day v Standard Waygood Ltd (1941) 65 CLR 204

Commissioner for Railways v Bain (1965) 112 CLR 246

HEARING

ADELAIDE

#DATE 12:9:1986

ORDER

The appeal be dismissed with costs.

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

JUDGE1

I have had the advantage of reading the reasons for judgment prepared by Davies J and agree with them. Accordingly in my opinion the appeal should be dismissed with costs.

JUDGE2

I have had the advantage of reading the reasons for judgment prepared by Davies J. and agree with them. Accordingly in my opinion the appeal should be dismissed with costs.

JUDGE3

This is an appeal from a decision of the Administrative Appeals Tribunal, made 23 September 1985, which set aside a decision to recover, under s.115B of the Social Security Act 1947 (Cth), from the amount of a lump sum payment made to Mr Giovanni Siviero pursuant to s.70 of the Workers Compensation Act 1971 (SA), amounts of sickness benefit which had been paid to him under Part VII of the Social Security Act 1947 (Cth).

1. The Workers Compensation Act 1971 (SA) contains the following relevant provisions :
   
   

"9.(1) If in any employment personal injury arising out of or in the course of the employment is caused to a worker, his employer shall, except as provided in this Act, be liable to pay compensation in accordance with this Act."

"51.(1) Where total or partial incapacity for work results from the injury, the amount of compensation shall, subject to this section, be a weekly payment during the incapacity equal to the average weekly earnings of the worker during the period of twelve months immediately preceding the incapacity if the worker has been so long employed but, if not, then for any less period during which he has been in the employment of the same employer.

.....

(4) The total liability of the employer in respect of payments under this section shall not -

(a) exceed the sum of thirty-six thousand dollars, unless the injury results in total permanent incapacity for work;

and

(b) where the injury results in total permanent incapacity for work, exceed the sum of fifty thousand dollars."

"53.(1) Except as is provided in this section, payments by way of weekly payments of compensation provided for by this Part shall be made as soon as possible after the occurrence of the incapacity in respect of which they are payable and in any case not more than fourteen days after the worker has provided to his employer evidence of his incapacity, which evidence shall be in the form of a certificate from a legally qualified medical practitioner together with an assertion in the prescribed form that the worker believes himself entitled to compensation in respect of that incapacity, and thereafter shall be made on the days on which but for the incapacity the worker would have been paid his wages.

(2) An employer who disputes his liability to pay compensation under this Act may, within the period of fourteen days referred to in subsection

(1), take out an application to the Court for an order that that subsection shall not apply and such application shall be heard and determined as a proceeding in the summary list and the application of that subsection and of subsection

(3a) shall be suspended pending the results of that hearing and determination."

"69.(1) The compensation payable for the injuries mentioned in the first column of the table hereinafter set forth shall be assessed in the manner indicated in the second column of that table, unless the worker, by notice in writing given to the employer or his insurer before the amount of the compensation is settled, states that he does not desire to have the compensation assessed under this section and, if the worker duly gives such notice, the compensation shall be assessed as if this section had not been enacted.

(2) Nothing in this section or section 70 shall limit the amount of compensation payable for any injury referred to in either of those sections during any period of incapacity resulting from that injury occurring before an assessment of compensation is made in accordance with either of those sections."

"70.(1) If the worker suffers a permanent injury not mentioned in the table set forth in section 69 and that injury results in either total or partial incapacity for work, whether such incapacity is actual or potential or that injury is an injury referred to in subsection (3), compensation for that injury shall, subject to subsection (2), be assessed by the Court as if -

(a) the injury were set out in that table;

and

(b) a percentage fixed by the Court having regard to -

(i) the nature of the injury;

and

(ii) the employment or occupation for which the worker was suited before the occurrence of the injury and the employment or occupation for which the worker is suited after the occurrence of the injury,

were set out in that table opposite the description of the injury,

and section 69 shall apply and have effect in all respects as if the injury were set out in the table and the percentage fixed by the Court were set out in the table opposite the description of the injury."

"72.(1) The liability for weekly payments or other compensation under this Act may, on application by or on behalf of either the worker or the employer, be redeemed by the payment of a lump sum to be settled, in default of agreement, by proceedings under this Act, and such lump sum may be ordered by the Court to be invested or otherwise applied as abovementioned, and where permanent total or partial incapacity for work results from the injury, any weekly payments made prior to an application under this section shall, notwithstanding anything in this Act, be in addition to any such lump sum, but nothing in this section shall be construed as preventing agreements being made for the redemption of a weekly payment by a lump sum."

1. The reasons for decision of the Tribunal stated these facts :
   
   

"3. The applicant (Mr Giovanni Siviero) is a 62 year old man born on 30 August 1923. He allegedly sustained an injury to his back, with pain radiating to his left leg, on 11 April 1980 in the course of his employment. He suffered a recurrence of that injury in June 1981. He had time off from work for both of these injuries for which he was paid compensation. He worked until 23 December 1981 after which he went on holidays to Italy.

4. Whilst he was in Italy the applicant had a further recurrence of his back condition of such severity that he underwent operative treatment. He was not paid compensation, and liability was denied by his employer. He applied to the Department of Social Security for Sickness Benefit which was approved on 16 April 1982 and paid from 25 February 1982 until 6 October 1982. He received a total of $3,678.52 for that period. Thereafter he was granted an Invalid Pension from 7 October 1982 to date.

.....

6. On 28 August 1982 the applicant's employer lodged an application in the general form in the Industrial Court of South Australia seeking, if appropriate, an assessment of compensation pursuant to ss.69 or 70 of the South Australian Workers' Compensation Act 1971 as amended ("the Workers Compensation Act") or, alternatively, redemption pursuant to s.72 of the said Act. Sections 69 and 70 of the Workers' Compensation Act relate to lump sum payment for what are called 'schedule' or 'table' injuries. Section 72 of the Act is redemption of weekly or other payment of compensation.

7. A copy of the employer's application was not before this Tribunal but such applications follow a well-known formula which request determination by the court as to whether an employee has suffered a compensable injury and, if so, requests the court to assess the compensation payable in respect of a found injury and incapacity pursuant to either s.69 and/or s.70 or s.72 of the Workers' Compensation Act.

8. On 3 June 1983, the applicant lodged an application for compensation claiming weekly payments as from 18 January 1982, medical expenses and costs. The applicant alleged 'back injury with pain radiating into leg'. The applicant claimed injury in 'April 1980' and in 'June 1981' but did not specifically claim for recurrence in January or February 1982.

9. These two applications were finally settled by a consent order recorded by the Industrial Court on 25 January 1984. On the applicant's application, it was ordered by consent that his claim for weekly payments be dismissed, that the employer pay outstanding medical expenses to the date of the order, and also pay his legal costs and disbursements.

10. With regard to the employer's application, it was ordered by consent that the employer pay a sum of $20,000 pursuant to s.70 of the Act; $12,900 pursuant to s.69 of the Act; and $100 for redemption of future medical expenses pursuant to s.72 of the Workers Compensation Act. The applicant also gave an undertaking pursuant to s.82(4) of the Act, not to institute or proceed with any proceedings in relation to the injury independently of the Act (commonly called a 'common law discharge') and the parties also noted that the applicant's employment with the employer was terminated, if that had not already occurred. It was also noted that the above settlement was a settlement 'in respect of all injuries sustained by the worker, whether pleaded or not pleaded, arising out of or in the course of his employment with the employer'."

1. I need only add that, before the two applications came on for hearing in the South Australian Industrial Court on 25 January 1984, there was filed in that Court the following schedule :
   
   

"The following orders are sought by consent on the Application for Compensation filed herein on 3rd June, 1983 :

1. That the claim set forth in paragraph 14(1) be dismissed.

2. That the respondent pay the applicant's Section 59 expenses to date with liberty to apply as to quantum.

3. That the respondent pay the applicant's legal costs and disbursements to be agreed or taxed.

The following orders are sought by consent on the employer's Application in the General Form filed on 24th August, 1982 :

4. That the respondent's entitlement to compensation be assessed by reference to Section 70 of the Act in the sum of $20,000.00.

5. That the respondent's entitlement to compensation be assessed by reference to Section 69 of the Act in the sum of $12,900.00.

6. That the applicant's liability to pay the respondent's future expenses pursuant to Section 59 be redeemed pursuant to Section 72 in the sum of $100.00.

7. The respondent expressly undertakes not to bring or continue with any proceedings against the applicant independently of the Workers Compensation Act in respect of injuries arising out of or in the course of his employment with the applicant.

The parties ask the Court to note the following matters :

8. In the event that the worker's employment with the employer has not already been terminated, such employment is terminated by mutual consent effective as of the date of making the orders herein.

9. That the settlement recorded herein is in respect of all injuries sustained by the worker, whether pleaded or not pleaded, arising out of or in the course of his employment with the employer."

1. The South Australian Industrial Court, by consent, made the orders sought. Accordingly, Mr Siviero's application for weekly payments was dismissed. On the employer's application, a lump sum of $20,000 was awarded under s.70 of the Workers Compensation Act 1971 (SA) and a lump sum of $12,900 was awarded under s.69 thereof. The employer's liability under s.59 to pay future medical and like expenses was redeemed, pursuant to s.72, in the sum of $100.

2. I cannot perceive a factual situation which would support the terms of that award. However, the parties to the compensation proceedings did not agree upon a factual substratum for the award. They agreed upon the terms of an award and the South Australian Industrial Court made that award by consent. Neither the Administrative Appeals Tribunal nor this Court was asked to go behind the terms of the award. Nor is there any basis for doing so.

3. The award under s.69 must be attributed to loss of function in Mr Siviero's leg, a leg being one of the table injuries and Mr Siviero having radiated pain in that leg. The award under s.70 must be attributed to Mr Siviero's back injury. As s.70 specifies, the compensation thereunder is lump sum compensation fixed by the Court having regard to the nature of the injury, the employment or occupation for which the worker was suited before the occurrence of the injury and the employment or occupation for which the worker is suited after the occurrence of the injury. Section 70 requires an injury to be specified as if it were set out in the table in s.69, and that a percentage be fixed by the Court, having regard to the matters I have mentioned. That precise course was not, in fact, followed but nevertheless, as the compensation was awarded under s.70, it is necessary to proceed upon the footing that it was calculated in accordance with the provisions in that section. The award under s.72 redeemed liability for future medical payments.

4. The applicant did not seek to rely upon all of the three sums required by the award to be paid. The applicant did not rely upon the $100 awarded under s.72. Nor was reliance placed upon the $12,900 awarded for the table injury under s.69, perhaps because it was awarded in respect of Mr Siviero's leg or perhaps because of acceptance of the view stated by the Administrative Appeals Tribunal in Re Castronuovo and Director-General of Social Security (1984) 5 ALN No.344, in which the Tribunal ruled that that provision did not permit recovery of a sum awarded by way of compensation under s.16 of the Workers' Compensation Act 1926 (NSW), which provided for the making of a lump sum award with respect to a table injury.

5. However, Mr J.J. Doyle, QC, senior counsel for the appellant, submitted that part of the sum of $20,000, awarded under s.70 of the Workers Compensation Act 1971 (SA) in respect of Mr Siviero's back injury, was recoverable pursuant to s.115B of the Social Security Act 1947 (Cth). Recovery was sought originally of only $1,865.92 and subsequently of only $877.66, but Mr Doyle conceded that, if his submissions were accepted, a sum equal to the whole of the sickness benefits paid, $3,678.52, could have been recovered.

6. It will be noted that an order under s.70 of the Workers Compensation Act 1971 (SA) is an award made in respect of a permanent injury that has resulted in either total or partial incapacity for work, whether such capacity is actual or potential. An award under s.70 does not displace or supplant any liability on the part of an employer to make weekly payments under s.53 prior to the award, if the employer is liable to make such payments. Nor is the award made in respect of an incapacity for work as such. It is an award made for permanent injury that has resulted in incapacity for work and the amount payable is calculated having regard to the nature of the injury and any diminution in employment or occupational suitability resulting therefrom. Necessarily, as the award is made in respect of a permanent injury and does not affect the obligation to make weekly payments prior to the award, no part of it can be apportioned or dissected as being related specifically to incapacity for work as distinct from injury itself and certainly not as to incapacity for work prior to the award.

7. I turn now to relevant provisions of the Social Security Act 1947 (Cth). Section 115B provides, inter alia,
   
   

"115B.(1) Where a person who is qualified to receive a sickness benefit in respect of an incapacity has received or is qualified or entitled to receive a payment (whether a payment forming part of a series of periodical payments or a payment by way of a lump sum) that is, in the opinion of the Secretary, in whole or in part a payment by way of compensation in respect of that incapacity, the Secretary, having regard to the amount of that payment or, in the case of a series of periodical payments, the amounts of those payments (including future payments), or such part of that payment or of those payments as, in the opinion of the Secretary, relates to that incapacity, may -

(a) where a claim by the person for sickness benefit in respect of that incapacity has been lodged but not determined - refuse to grant that claim or grant that claim but direct that the amount per week of sickness benefit that would, apart from this sub-section, be payable in respect of that incapacity be reduced by an amount specified in the direction; or

(b) in any other case -

(i) cancel the sickness benefit payable to the person in respect of that incapacity; or

(ii) direct that the amount per week of sickness benefit that would, apart from this sub-section, be payable in respect of that incapacity be reduced by an amount specified in the direction.

.....

(3) Where the Secretary is of the opinion that a payment by way of a lump sum, or a series of periodical payments, received by a person who is, or has been, in receipt of sickness benefit in respect of an incapacity (whether the payment was, or all or any of the payments were, received before, during or after the close of the period of receipt of sickness benefit) is a payment that is, or are payments one or more of which is or are, in whole or in part, a payment or payments by way of compensation in respect of that incapacity, the Secretary may, by notice in writing served by post or personally on the person, direct the person to pay to the Commonwealth an amount specified in the notice, being an amount equal to -

(a) the amount of sickness benefit received by the person in respect of that incapacity; or

(b) the amount of the lump sum payment or periodical payment or payments or such part of that amount or of those amounts as, in the opinion of the Secretary, relates to that incapacity,

whichever is the lesser amount."

Sections 115C and 115D, which deal with the recovery of sickness benefit from a person liable to make a payment by way of compensation and for the giving of notice to insurers, use like expressions and I need not set them out.

1. Section 115E provides :
   
   

"115E. For the purposes of this Division, the Secretary may treat the whole or a part of a payment by way of compensation that has been, or that will be, made in respect of an incapacity as not having been made or as not being, or as not likely to become, liable to be made, if the Secretary considers that, in the special circumstances of the case, it is appropriate to do so."

Section 115F provides :

"115F. The Commonwealth may recover in a court of competent jurisdiction an amount -

(a) that a person is required to pay to it in accordance with a direction under sub-section 115B(3);

(b) that a person is liable to pay to it under sub-section 115C(5);

(c) that a person is liable to pay to it under sub-section 115C(6);

(d) that an insurer is liable to pay to it under sub-section 115D(6),

but the Commonwealth is not entitled to recover amounts payable to it under this Division in respect of the same incapacity that, in the aggregate, exceed the amount of the sickness benefit paid by the Commonwealth in respect of the incapacity."

1. These provisions were introduced by Act No.121 of 1979 which, after amendment by Act No.37 of 1982, came into operation on 1 August 1982. They were substituted for s.115(2) which, in the previous legislation, had provided :
   
   

"115.(2) Where a person is or has been qualified to receive a sickness benefit in respect of an incapacity and the Director-General is of opinion that the whole or a part of a payment by way of a lump sum that that person has received, or is qualified or entitled to receive, can reasonably be regarded for the purposes of this section as being a payment that -

(a) is by way of compensation in respect of the incapacity; and

(b) is in respect of a period during which that person is or was qualified to receive that sickness benefit,

the payment, or that part of the payment, as the case may be, shall, for the purposes of this section, be deemed to be such a payment."

1. The substantive issue in this appeal is whether the amendments which were made by the 1979 Act as amended in 1982 had the effect of significantly changing the operation of the recovery provisions.

2. Mr Doyle submitted in substance that the removal from the legislative provisions of the reference, previously appearing in s.115(2), to the "period during which that person is or was qualified to receive that sickness benefit" was of crucial significance.

3. In support of his submission, Mr Doyle relied upon the Committee Notes for the 1979 Bill which included the following information -
   
   

"Practices have come to notice which limit the Commonwealth's ability to refuse, reduce, terminate and, where appropriate, recover sickness benefit in these cases.

The proposed Division 3A will strengthen the Director-General's powers in this respect. The principal change is that it is proposed to remove the specific requirement that compensation must be paid for the same period as that for which benefit has been paid."

With respect to s.115B, the Committee Notes stated :

"Sub-section (1) empowers the Director-General to refuse, cancel or reduce sickness benefit where he is of the opinion that part or the whole of any periodical or lump sum covers the same incapacity as that for which sickness benefit is claimed or paid. He is empowered to fix by direction a reduced rate of benefit. The reduced rate cannot exceed the rate payable under the income test.

.....

Sub-section (3) empowers the Director-General in the case of lump sum compensation which he considers to be wholly or partly in respect of the same incapacity as that for which sickness benefit has been paid to direct a current or former beneficiary to pay to the Commonwealth an amount equal to the whole or part of the benefit paid or the amount of compensation or part thereof, whichever is the lesser amount. The direction must be in writing and served by post."

1. Mr Doyle also relied upon the comments of The Honourable V. Garland, Minister for Special Trade Representations, in his Second Reading Speech of 11 October 1979, wherein he stated :
   
   

"Other matters dealt with in the Bill, to which I will return later, include maintenance payments made on behalf of pensioners in benevolent homes, entitlement to double orphan's pension, entitlement to unemployment benefit in cases of industrial action, postponement of unemployment benefit, and the effects of compensation awarded for the same incapacity as that for which sickness benefit has been granted.

.....

When a person receives compensation in respect of the same incapacity and in respect of the same period for which he is qualified to receive sickness benefit the benefit otherwise payable is reduced by the extent of the compensation payment. There is no dual payment of benefit and compensation unless the rate of compensation is less than the rate of sickness benefit. In these cases the amount of benefit paid brings the person's total income to the maximum rate of sickness benefit otherwise payable. In the usual case it is intended that sickness benefit should be paid only until such time as the person receives compensation. In the event of a lump sum award covering the same period for which benefit has been paid and being in respect of the same incapacity, the amount of benefit paid is recovered from the client or the person responsible for paying compensation or the insurer. Over recent years, however, practices have come to notice which limit the Commonwealth's ability to reduce or recover sickness benefit in these cases.

Amendments proposed in the Bill will ensure that the Department of Social Security has power to effect recovery of sickness benefit payments once compensation has been received for the same incapacity in respect of which sickness benefits have been paid. In addition, greater responsibility will be placed upon the client, the person responsible to pay compensation and the insurer to notify the Department of events which impinge upon recovery of amounts paid out by the Department."

1. However, these guides make plain the point that I think is crucial in this case, namely, that the sickness benefits and the compensation must be paid in respect of the same incapacity. It is true that the Committee Notes and the Minister's Second Reading Speech both refer to practices which had come to notice which limit the Commonwealth's ability to reduce or recover sickness benefits and that the guides do not indicate how this is to be achieved other than by the removal of the specific requirement that the compensation must be paid for the same period as that for which the benefits have been paid. However, I cannot glean more from these guides than that the course was taken of removing that requirement from the legislation. It is difficult to imply any clear legislative intent from the removal of the words "is in respect of a period during which that person is or was qualified to receive that sickness benefit". Indeed, in the new s.115B(3), the following words appear in brackets :
   
   

"(whether the payment was, or all or any of the payments were, received before, during or after the close of the period of receipt of sickness benefit)".

Perhaps these words express all that was intended to be achieved.

1. In any event, the removal of the reference to a period in s.115(2) of Division 3A of the Social Security Act 1947 (Cth) had only a limited effect for a sickness benefit is payable only in respect of an incapacity of a temporary nature which persists during a particular period. Sickness benefit is payable pursuant to s.108, which provides, inter alia,
   
   

"108.(1) Subject to this Part, a person (not being a person in receipt of a pension under Part III or IV, a benefit under Part IVAAA, an allowance under Part VIIA, or a service pension under the Repatriation Act 1920) is qualified to receive a sickness benefit in respect of a period (in this sub-section referred to as the 'relevant period') if -

.....

(c) the person -

(i) satisfies the Secretary that, throughout the relevant period, he was incapacitated for work by reason of sickness or accident (being an incapacity of a temporary nature) and that he has thereby suffered a loss of salary, wages or other income; or

(ii) not being a person who is qualified to receive sickness benefit by virtue of the operation of sub-section

(1AA), satisfies the Secretary that, throughout the relevant period, he was incapacitated for work by reason of sickness or accident (being an incapacity of a temporary nature) and that he would, but for the incapacity, be qualified to receive an unemployment benefit in respect of the relevant period." (the underlining is mine)

1. Mr Siviero received sickness benefits for an incapacity considered to be of a temporary nature during a particular period, namely, 25 February 1982 to 6 October 1982. Had he received weekly payments of compensation in respect of incapacity for work during this period or had his entitlement to weekly payments for incapacity during this period been redeemed, an amount could have been ascertained by reference to the compensation paid or to the lump sum redemption awarded which was referable to the same incapacity in respect of which the sickness benefits were paid. See Re Castronuovo and Director-General of Social Security, cited above. But those were not the facts of the present case.

2. Mr Doyle accepted that, before there could be recovery, it is necessary to find that the sickness benefits and the compensation have been paid "in respect of the same incapacity", the term used in s.115F. However, he submitted that the expressions "in respect of an incapacity", "in respect of that incapacity", "relates to that incapacity" and like expressions appearing in the new sections in Division 3A, have a wide effect and bring into their ambit any payment which relates to, in the sense of touching upon, the incapacity in respect of which the sickness benefit was paid.

3. Mr Doyle submitted that the words "in respect of" were words of wide import. I accept that this is so. But they must be read in the context in which they appear. Thus, Mason J said, in State Government Insurance Office (Qld) v Rees (1979) 144 CLR 549 at 560-1:
   
   

"The crucial question, then, is the meaning to be given to the words 'in respect of workers' compensation'. The expression 'in respect of' denotes a relationship or connection between two things. In State Government Insurance Office

(Queensland) v Crittenden (1966) 117 CLR 412 at 416, Taylor J quoted, with evident approval, the remarks of Mann CJ in Trustees Executors & Agency Co Ltd v Reilly (1941) VLR 110 at 111, 'The words "in respect of" are difficult of definition, but they have the widest possible meaning of any expression intended to convey some connection or relation between the two subject-matters to which the words refer.' The same view was taken later in Club Motor Insurance Agency Pty Ltd v Sargent

(1969) 118 CLR 658. But, as with other words and expressions, the meaning to be ascribed to 'in respect of' depends very much on the context in which it is found."

See also Butler v Johnston, Guild & Somes (1984) 55 ALR 265, in which Blackburn, Gallop and Neaves JJ said, at p.268, after examining a number of authorities,

"It is clear that the words 'in respect of' can convey a meaning of wide import, but their exact width will depend upon the context in which they appear. Reference to individual cases on different statutes is of little assistance in determining their particular meaning. The court has to construe the meaning of the words with reference to the purpose or object underlying the legislation in which they appear (s 15AA of the Acts Interpretation Act 1901)."

1. In my opinion, it is clear from the whole of Division 3A, that Parliament has provided for the recovery of sickness benefits paid in respect of an incapacity when compensation has been paid or is payable for the same incapacity, in other words, where the recipient of the sickness benefits has received or is entitled to receive double payments for the same incapacity, the double payments being payments of sickness benefits under the Social Security Act 1947 (Cth) and payments under an entitlement to compensation. The word "same" is used only in s.115F but, nevertheless, the provisions make the point clear by the use of the terms "an incapacity" and "that incapacity".

2. The term "compensation" is defined in s.115(2) widely, but that is not a matter that affects the present issue save that, when identifying and determining whether sickness benefits and compensation have both been paid for the same incapacity, it is necessary to take into account in a sensible manner the differences which may exist between the actual entitlements to payment. Thus, compensation for loss of wages would presumably be treated as payment in respect of the incapacity for work that led to the loss of wages.

3. In my opinion, the issue in the present case does not turn upon the width of the words "in respect of" but upon the issue whether the sickness benefits and the compensation paid to Mr Siviero were both paid in respect of the same incapacity. A like issue was considered in Australian Telecommunications Commission v Leech (1982) 44 ALR 441 and in Commonwealth of Australia v Keogh (1983) 50 ALR 693. Both cases considered the application of s.98(1) of the Compensation (Commonwealth Government Employees) Act 1971 (Cth) which provided that
   
   

"98.(1) Compensation is not payable under this Act to an employee in respect of an injury if the employee has received, or is entitled to receive, in respect of an incapacity resulting from that injury, a pension (other than a service pension) in pursuance of a determination or assessment made under the Repatriation Act 1920-1973 (other than Division 10 of Part III), the Repatriation (Far East Strategic Reserve) Act 1956-1966, the Repatriation (Special Overseas Service) Act 1962-1968, the Interim Forces Benefits Act 1947-1966 or the Native Members of the Forces Benefits Act 1957-1968."

1. In my reasons in Keogh's case, cited above, I considered the reasons for decision delivered in Leech's case, cited above, and said, at pp.708-710,
   
   

"This provision was considered by the Federal Court of Australia, constituted by Fox, Franki and Lockhart JJ, in Australian Telecommunications Commission v Leech (1982) 44 ALR 441. The court considered a case in which the applicant for Commonwealth employees' compensation was receiving a pension under the Repatriation Act 1920 (Cth) in respect of incapacity arising from hypertension and other causes which were attributable to war service, that is to say, to which war service had contributed in a material way. The appellant sought compensation under the Compensation Act for an aggravation to his hypertension to which aggravation his civilian employment had contributed in a material way.

Fox and Lockhart JJ left open the question whether s.98(1) of the Compensation Act applies to a disease or the aggravation thereof. Franki J expressed the view that it did apply. I agree with the reasoning of Franki J in this respect. I adopt what his Honour had to say in this regard and need not repeat it.

.....

All the judges referred to the necessity for the incapacity resulting from the work-related injury to be compensable under both the Compensation Act and the Repatriation Act. The judges referred to the finding of the Tribunal, which was under appeal, that the incapacities which were the subject of the compensation claim and of the repatriation claim in that case were 'markedly different'. Fox and Lockhart JJ said (at 445) :-

'... The point has not been reached, if it will ever be reached during the respondent's lifetime, when the consequences of war service and of the aggravation merge.

'For these reasons, it is not correct to say that the respondent has received or is entitled to receive a pension under the Repatriation Act in respect of an incapacity resulting from the injury for which compensation is payable.'

Franki J said (at 446 and 447) :-

'In my opinion if an employee is entitled to receive a pension under the Repatriation Act pursuant to a determination or assessment for an incapacity resulting from a particular injury he is not entitled to compensation under the Act.

.....

'In my opinion the onus lay upon the appellants to establish that, pursuant to a determination or assessment, the respondent was entitled to a pension in respect of incapacity resulting from the second injury under the Repatriation Act.

'I consider that they did not discharge that obligation.'

I respectfully agree with the views expressed by their Honours. Indeed, I do not see that any other view of s.98(1) is possible. Because the Compensation Act gives compensation in respect of an injury, when incapacity or death has resulted therefrom, and the Repatriation Act gives a pension for incapacity resulting from injury, s.98(1) refers to 'an injury' when speaking of a claim for compensation and to 'an incapacity resulting from that injury' when speaking of the pension entitlement. The terminology is not significant. Section 98(1) is designed to preclude a person from obtaining double compensation in respect of incapacity arising from an injury. Section 98(1) refers to 'an incapacity' but, in the context, it undoubtedly means 'the incapacity'. It would be absurd to think that a person's claim for compensation for a work-related injury could be defeated by proof that part of the incapacity arising from that injury was pensionable under the Repatriation Act. That view was rejected by all the judges in Leech's case.

Thus, s.98(1) applies in the circumstance that a work-related injury has resulted in incapacity and the incapacity resulting from that injury is pensionable under the Repatriation Act. As Franki J pointed out, in a review by the Administrative Appeals Tribunal, the onus lies upon the Commonwealth to establish that the circumstances prescribed by s.98(1) are fulfilled."

1. The above comments are of relevance, not only because of the similarity in the terminology used and in the context in which the legislation operates, but also for the guidance given as to the proper approach to the issue whether benefits have been paid or are payable in respect of the same matter.

2. In the present case, Mr Doyle submitted that the sickness benefits were paid in respect of an incapacity which arose from Mr Siviero's back injury and that the compensation was also paid for his back injury. He therefore submitted that the benefits were paid in respect of the same incapacity.

3. A major difficulty with Mr Doyle's submission is that the term "incapacity" does not mean "injury". Incapacity is a consequence of disability, injury or disease, but is not itself disability, injury or disease. Disability is one thing, incapacity resulting therefrom is another. The Social Security Act 1947 (Cth), which in ss.24 and 108 refers to "incapacity for work", must be read as understanding this distinction.

4. Therefore, the question in this case is not whether the sickness benefits and compensation were both paid in respect of an incapacity arising from the same injury but whether they were both paid in respect of the same incapacity.

5. As the sickness benefits were paid in respect of an incapacity for work, thought to be of a temporary nature, between 25 February 1982 and 6 October 1982, the question is whether the compensation payable under s.70 was payable in respect of that incapacity.

6. The lump sum compensation award under s.70 of the Workers Compensation Act 1971 (SA) was payable in respect of an injury of a permanent nature which resulted in incapacity for work. It was not compensation for incapacity for work as such and certainly not for incapacity for work during the period 25 February 1982 to 6 October 1982. The incapacity for work during that period was compensable, if at all, by weekly payments under s.51 or by redemption under s.72 of the Workers Compensation Act 1971 (SA). No such payment was made in the present case and the award under s.70 would not have affected any entitlement to compensation under those sections with respect to the period prior to the date of the making of the award. Section 69(2) provides that nothing in that section or in s.70 limits the amount of compensation payable for any injury during any period of incapacity resulting from injury occurring before an assessment of compensation is made under either section.

7. Not only does an award under ss.69 or 70 not displace any entitlement to compensation with respect to incapacity for work during a period prior to the making of the award, but the compensation payable under ss.69 and 70 is payable for a subject matter different from "total or partial incapacity for work", which brings into operation ss.51 and 72. Compensation under ss.69 and 70 is awarded for injury rather than for incapacity for work. The distinction between compensation for a table injury and compensation by way of weekly payments was made clear by McTiernan J in Day v Standard Waygood Ltd (1941) 65 CLR 204 at 215-216, when discussing s.9 (weekly payment) and s.16 (table injury) of the Workers Compensation Act 1926 (NSW). His Honour said :
   
   

"It is a condition of the worker's right to recover compensation under either section that the injury is 'a personal injury arising out of and in the course of the employment' and that it results in incapacity. The distinction between the rights conferred by each section is conveniently explained by Ferguson J in Horlock v North Coast Steamship Navigation Co (1927) 27 S.R.(N.S.W.) 236, at pp.240, 241; 44 W.N. 68, at p.69. Sec.16 provides an alternative form of compensation at the option of the worker in the case of the injuries specified in the table. The amount payable is not a commutation of the weekly payment, but a substitution for it. If the worker elects under the section, he is entitled to be paid the whole amount, whatever the amount of the weekly payments to which he would otherwise have been entitled. Ferguson J said :- 'It is clearly intended as compensation for the physical injury, as distinguished from the mere loss of wages resulting from the injury. The amount bears no relation, as the weekly compensation does, to his average earnings before the accident, or to the diminution of his earnings or earning power, and it is not affected, as the weekly compensation is, by any consideration of payments made to him by the employer. It is a new statutory right to receive specific compensation for a specific injury' (1927) 27 S.R.(N.S.W.) at p.241; 44 W.N. at p.69."

See also Commissioner for Railways v Bain (1965) 112 CLR 246 at 257, per Barwick CJ.

1. The first criterion of s.115B of the Social Security Act 1947 (Cth) is that a person (Mr Siviero) be qualified to receive a sickness benefit in respect of an incapacity. Mr Siviero was qualified to receive sickness benefits in respect of an incapacity for work considered to be temporary during the period 25 February 1982 to 6 October 1982. The next criterion is that a payment received by a person (Mr Siviero) is a payment that is, in whole or in part, a payment by way of compensation in respect of that incapacity.

2. In my opinion, the Tribunal correctly concluded that the award under s.70 of the Workers Compensation Act 1971 (SA) was not a payment in respect of the incapacity for which the sickness benefits were paid. The sickness benefits were paid in respect of incapacity for work during a particular period. The award under s.70 was made in respect of an injury resulting in incapacity but did not affect any entitlement to compensation for incapacity for work prior to the making of the award, that is to say, during the period in respect of which the sickness benefits were paid.

3. I agree with the Tribunal's view that the sickness benefit was paid in this case for an incapacity for work considered to be of a temporary nature from 25 February 1982 to 6 October 1982 whereas the $20,000 lump sum compensation paid under s.70 of the Workers Compensation Act 1971 (SA) was paid with respect to a permanent injury, that the award of that sum did not affect any entitlement which Mr Siviero may have had for compensation in respect of his incapacity for work during those dates and that the award of compensation under s.70 was not an award made in respect of the incapacity in respect of which the sickness benefits were paid.

4. For these reasons, I am of the view that the appeal should be dismissed with costs.