Jackson, Mark Rex v Secretary, Department of Social Security

[1997] FCA 1111

FEDERAL COURT OF AUSTRALIA

SOCIAL SECURITY - appeal from decision of Administrative Appeals Tribunal (‘the AAT’) - operation of “lump sum preclusion period” - commencement of preclusion period - whether preclusion period should represent an aggregation of the periods - two separate workers’ compensation periods separated by extensive period of alternative employment - series of recurrent payments - appeal allowed.

Social Security Act 1991 (Cth) ss 17, 1163, 1165

Secretary, Department of Social Security v a’Beckett (1990) 26 FCR 349
Blunn v Cleaver (1993) 47 FCR 111

MARK REX JACKSON v SECRETARY, DEPARTMENT OF SOCIAL SECURITY
No QG 157 of 1996

SPENDER J
BRISBANE
17 OCTOBER 1997

IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY	QG 157  of   1996

On appeal from the decision of a Deputy President of the Administrative Appeals Tribunal

BETWEEN:	MARK REX JACKSON APPLICANT
AND:	SECRETARY, DEPARTMENT OF SOCIAL SECURITY RESPONDENT
JUDGE:		SPENDER J
DATE OF ORDER:		17 OCTOBER 1997
WHERE MADE:		BRISBANE

THE COURT ORDERS THAT:

1. The appeal be allowed and the matter be remitted to the Administrative Appeals Tribunal to be dealt with according to law.

2. The respondent pay the applicant’s costs of the proceedings to be taxed if not agreed.

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

IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY	QG 157 of 1996

On appeal from the decision of a Deputy President of the Administrative Appeals Tribunal

BETWEEN:	MARK REX JACKSON APPLICANT
AND:	SECRETARY, DEPARTMENT OF SOCIAL SECURITY RESPONDENT

JUDGE:	SPENDER J
DATE:	17 OCTOBER 1997
PLACE:	BRISBANE

REASONS FOR JUDGMENT

The application is an appeal from the Administrative Appeals Tribunal (‘the AAT’) pursuant to s 44 of the Administrative Appeals Tribunal Act 1975 (Cth) (‘the AAT Act’).

The question of law on the appeal concerns the interpretation or construction of various provisions of the Social Security Act 1991 (Cth) (‘the Act’) as they then were, and in particular ss 17 and 1165 of that Act. The interpretation or construction of words or phrases in legislation is a question of law: Collector of Customs v Bell Basic Industries Ltd (1988) 20 FCR 146.

At issue on the appeal is the ascertainment of the correct “lump sum preclusion period” which applies to Mr Jackson, that period being the period under the provisions of the Act which obliges a person who receives a lump sum for past and future economic loss to refund certain social security payments that the person has received during that lump sum preclusion period. The evident purpose of these somewhat arbitrary provisions is to prevent ‘double dipping’.

On 7 June 1995, a delegate of the Secretary, Department of Social Security (‘the DSS’) decided to preclude payment of social security benefits to the applicant for the period 21 June 1993 to 17 December 1995 and to recover $26,381.90 paid to him during the preclusion period.  On 21 December 1995, the Social Security Appeals Tribunal (‘the SSAT’) set aside this decision, and remitted the matter to be recalculated on the basis that the preclusion period of 130 weeks should commence on 23 April 1991 and represent an aggregation of the periods 23 April 1991 to 31 January 1993 and 21 June 1993 to 6 March 1994.  The SSAT also decided that the amount already recovered by the DSS should be repaid to Mr Jackson.

Mr Jackson was born on 2 September 1953.  On 11 September 1990 he was injured in a workplace accident which occurred during the course of his employment as a panel beater.  He suffered a serious injury to his shoulder which incapacitated him for work for an extended period and had a permanent effect on his earning capacity.

Mr Jackson after the accident received weekly workers’ compensation benefits from the Workers’ Compensation Board of Queensland, which benefits were paid from 11 September 1990 until 22 April 1991, during which period he was completely incapacitated for work.  When the workers’ compensation benefits ceased on 22 April 1991, Mr Jackson obtained employment as a shop assistant, but his income from that employment was lower than his pre-accident income as a panel beater.  Mr Jackson did not receive any social security benefits after workers’ compensation benefits ceased on 22 April 1991, until 21 June 1993.

He worked as a shop assistant until early 1993, when he required further surgery to his shoulder.  He received weekly compensation benefits from 1 February 1993, which benefits ceased on 20 June 1993.  Subsequent to that date, Mr Jackson was unable to secure employment and he received social security benefits in the form of unemployment benefits from that time until early 1995.

His common law proceedings seeking damages for negligence were settled on 25 May 1995.  He received a lump sum at settlement of approximately $142,500.00, after $29,443.95 had been refunded to the Workers’ Compensation Board of Queensland in respect of workers’ compensation payments he had received.

The settlement included allowances for both future and past economic loss.  The allowance for past economic loss included allowances for the shortfall in his income between the amount he would have earned as a panel beater and the amount he earned for the period he worked as a shop assistant from 23 April 1991 to 31 January 1993, and for his total loss of income from the period 20 June 1993 to early 1995 when he resumed employment.  From 21 June 1993 to 6 March 1994 (and later) he received unemployment benefits.

The present application concerned the commencement of “the” preclusion period, which in turn under the Act is conditioned upon, in the circumstances of this case, a person receiving compensation in the form of a lump sum. In Mr Jackson’s case, the date of receipt of the lump sum is 25 May 1995. In my opinion, the law that is applicable is the law that is in force as at that date. This has some important consequences in the present proceedings.

The Social Security Act 1991 was in substitution for the earlier Social Security Act 1947. Extensive amendments to the 1991 Act were introduced by the Social Security (Budget & Other Measures) Legislation Amendment Act 1993, being Act No 121 of 1993. The relevant amendments in that Act commenced on 1 January 1994, although the amendment to s 17(3A) commenced on 1 July 1994. It is therefore necessary to set out at some length the relevant provisions that apply in the present case.

Section 17(1) relevantly provided:

In this Act, unless the contrary intention appears;
‘compensation affected payment’ means:
...
(c)       a social security benefit;
...

‘Compensation part’ in relation to a lump sum compensation payment has the meaning given by subs (3) and subs (4).  A “payment for a period” has the meaning given by subs (7).

“Periodic payments period” means:

(a)      in relation to a series of periodic payments - the period in respect of which the payments are, or are to be, made; and
(b)      in relation to a payment of arrears of a series of periodic payments - the period in respect of which those periodic payments would have been made if they had not been made by way of an arrears payment;

Note:Arrears of periodic compensation payments are normally treated as reducing, on a dollar for dollar basis, a payment under this Act that is covered by Part 3.14 because these compensation payments are not lump sum compensation payments: see subsection 17(4A) and sections 1168 and 1170.

Section 17(2) relevantly provided:

For the purposes of this Act, compensation means:
(a)      a payment of damages; or
(b)      a payment under a scheme of insurance or compensation under a Commonwealth, State or Territory law, including a payment under a contract entered into under such a scheme; or
(c)       a payment (with or without admission of liability) in settlement of a claim for damages or a claim under such an insurance scheme; or
(d)      any other compensation or damages payment;
(whether the payment is in the form of the whole or part of a lump sum or in the form of a series of periodic payments) that is:
(e)       made wholly or partly in respect of lost earnings or lost capacity to earn; and
(f)       made either within or outside Australia.
[emphasis added]

It is to be noted that what appears in paragraph 17(2)(e) and (f) are not further species of payments which constitute compensation, but qualify each of the payments referred to in paragraphs 17(2) (a) to (d) inclusive.

It is accepted in the present case that the compensation part of the lump sum compensation payments is 50% of the payment received by Mr Jackson after his workers’ compensation payments had been repaid. Section 17(3)(a) provided:

For the purposes of this Act, the compensation part of a lump sum compensation payment is:
(a)      50% of the payment if the following circumstances apply:

(i)the payment is made (either with or without admission of liability) in settlement of a claim that is, in whole or in part, related to a disease, injury or condition; and

(ii)the claim was settled, either by consent judgment being entered in respect of the settlement or otherwise, on or after 9 February 1988;

...

The 50% rule in s 17 is arbitrary. The rationale of that approach was explained by von Doussa J in Secretary, Department of Social Security v Banks (1990) 20 ALD 19 where his Honour, speaking in relation to a provision in the Social Security Act 1947, said at 25:

The prescribed percentage (50%) of the lump sum payment made in settlement of a claim which by s 152(2)(c)(i) is deemed to be the compensation part of a lump sum payment by way of compensation should be viewed as a broad attempt to balance the interests of the recipient of the payment with the competing interests of others in the community whose needs must be met as far as possible from a finite budget allocation for social security measures.  The paragraph seeks to eliminate double dipping in a practical way which operates effectively in a straightforward manner...

Section 17(4) provided:

Where a person:
(a)      has received periodic compensation payments in respect of lost earnings or lost capacity to earn; and
(b)      after receiving those payments receives a lump sum compensation payment in respect of the lost earnings or lost capacity to earn (in this subsection called the ‘LSP’); and
(c)       because of receiving the LSP, becomes liable to repay an amount (in this subsection called the Repaid Periodic Compensation Payment - ‘RPCP’) equal to the periodic compensation payments received;
then, for the purposes of subsection (3), the amount of the lump sum compensation payment is:

LSP - RPCP

It is this subsection which gives the effective lump sum of approximately $142,500 in this case for the calculation of the lump sum preclusion period.

Section 17(4A) provided:

17(4A)  For the purposes of this Act, a payment of arrears of periodic compensation payments is not a lump sum compensation payment.

Section 17(7) provided:

17(7)  A reference to Part 3.14 to a person receiving a payment for a period is a reference to:

(a)where the payment is a pension payment - a person receiving a payment during the period; or

(b)where the payment is a benefit payment (other than a payment of parenting allowance) - a person receiving the payment in respect of the period; or

(c)where the payment is a payment of parenting allowance - a person receiving a payment during the period; or

(d)where the payment is a rehabilitation allowance - a person receiving the payment during the period.

Part 3.14 of the Act is headed ‘COMPENSATION RECOVERY’. Section 1163, contained in that Part, relevantly provided:

1163(1)  If a person is or may be entitled to or receives compensation, the following social security payments of the person or the person’s partner might be affected under this Part:
...
(c)       social security benefit;
...

Section 1163(3) provided:

If the compensation is in the form of a lump sum, the pension, benefit or allowance might cease to be payable for a period (based on the amount of the lump sum) and some or all of the pension, benefit or allowance might be repayable.
  [emphasis added]

Section 1163(4) provided:

If the compensation is in the form of a series of periodic payments, the rate of the pension, benefit or allowance might be reduced for the period for which the payments are received.

The effect of s 1165(1) and 1165(2) is that if a person is qualified for a compensation affected payment and the person receives compensation in the form of a lump sum, (whether before or after the person became qualified for the pension, benefit or allowance), then the benefit or allowance is not payable to the person for the lump sum preclusion period.

Section 1165(3) is the provision of the Act central to the present appeal. It provided:

If periodic compensation payments are made in respect of the lost earnings or lost earning capacity, the lump sum preclusion period is the period that:

(a)begins on the day after the last day of the periodic payments period; and

(b)ends after the number of weeks specified in subsection (4).

Section 1165(3A) provided:

If a person chooses to receive part of an entitlement to periodic compensation payments in the form of a lump sum, the lump sum preclusion period is the period that:
(a)      begins on the first day on which the person’s periodic compensation payment is a reduced payment because of that choice; and
(b)      ends after the number of weeks specified in subsection (4).

Section 1165(3B) provided:

If a person:
(a)      receives compensation in relation to an injury, disease or condition in the form of a lump sum (in this subsection called the ‘first lump sum’); and
(b)      the person receives compensation in the form of a further lump sum (in this subsection called the ‘second lump sum’); and
(c)       the second lump sum is compensation in relation to the same injury, disease or condition;

the lump sum preclusion period for the second lump sum is the period that:

(d)      begins on the day after the last day of the lump sum preclusion period for the first lump sum; and
(e)       ends after the number of weeks specified in subsection (4).

Section 1165(3C) provided:

If none of subsections (3), (3A) and (3B) applies, the lump sum preclusion period is the period that:
(a)      begins on the day on which the loss of earnings or loss of earning capacity began; and
(b)      ends after the number of weeks specified in subsection (4).

Section 1165(4) provided:

The number of weeks in the lump sum preclusion period is the number worked out under the following formula:

compensation part of lump sum
average weekly earnings

Note 1: for ‘compensation part’ of lump sum see section 17.
Note 2: for ‘average weekly earnings’ see section 17.

And 1165(5) provided:

If the number worked out under subsection (4) is not a whole number the number is to be rounded down to the nearest whole number.

Section 1166(1) provided:

If:
(a)      a person receives compensation in the form of a lump sum; and
(b)      the person receives payments of a compensation affected payment for the lump sum preclusion period;
the Secretary may, by written notice to the person, determine that the person is liable to pay to the Commonwealth the amount specified in the notice.

The drafting of the Act with which the court is presently concerned has been the subject of valid criticism: see the trenchant criticism of the style of drafting of the Act (which has not been substantially changed) delivered by the Full Court of the Federal Court (Shepherd, Neaves & Burchett JJ) in Blunn v Cleaver (1993) 47 FCR 111, where the court said at 127:

...we feel constrained to make a general reference to the Act in which the legislation in question is contained, the Social Security Act 1991. The Act in its current form contains more than 1,364 sections. We have not counted the precise number. To do so would involve taking account of a number of sections which are identified by letters as well as numbers. These have been added to the Act in the short period of two years in which it has been in force. The Act, including the notes to it, occupies 1,471 pages of the Commonwealth Statutes.

The professed aim of the drafting of the Act is to make it more accessible to persons without legal training. It is necessary to say ‘more accessible’ - perhaps it is really necessary to say ‘less inaccessible’ - because no-one seriously believes the layman can master the Act unaided. This case shows its own authors did not - for if they had, they would not have left it so ambiguous. But their aim was to assist the inexpert.
...
In February 1993, the Senate Standing Committee on Legal and Constitutional Affairs made its first Report on ‘The Cost of Justice’.  Paragraph 119 of the Report said that the law which people must obey should be readily understood by them.  It was also said that law, whether made by legislators or developed by judges, should be as comprehensible to members of the public as possible.  It should not be set down at prolix length or expressed in tortured phrases or with complex words.  It should be based on concepts that are as readily understood as practicable.  Earlier the Committee had said (par 52) that Parliaments can and do produce legislation that is complex, ill-expressed and difficult to distill from a myriad of amendments.  The Committee acknowledged (par 53) that, to some extent, complexity arises from attempts to deal with an increasingly complex society.  But it added that complexity might also arise from philosophies of law-making and drafting, some of which are flawed.  Makers of legislation were said to be ever ready to meet issues with which they were confronted by creating new laws.  Whatever laws were made should be drafted in plain English, easy to understand and regularly consolidated.  The Committee expressed its regret that these standards were not met often enough.
The comments we have made are not intended to undervalue simplicity.  But the pursuit of simplicity without due regard to the subject matter may be foolishness.  And an Act that is two or three times as long is not necessarily easier to read because some technical expressions (which once understood were succinct) have been replaced by wordier ones...

In my opinion, the decision of the AAT in this case proceeded on a wrong basis in that the Tribunal assumed that, even if there was a number of periodic payments for compensation, albeit separated by a discrete period of twenty-one weeks, the total period spanning the two periodic payments periods and the interregnum might appropriately be described as the periodic payments period.

The reasons for judgment of the AAT misquotes s 1165(3) in the following crucial way. It said that that provision provided:

If periodic compensation payments are made in respect of the lost earnings or lost earning capacity, the lump sum preclusion period is the period that:
(a)      beings (sic) on the day after the last day of the periodic payments periods; and
(b)      ends after the number of weeks specified in subsection (4).

The error is in the plurality of the word “periods” in paragraph (a). Under the Act, the requirement is directed to the periodic payment period (singular).

The Act is admittedly complex.  In Blunn v Cleaver (supra), the Full Court made it plain, particularly at 127-129, that the drafting of the Act produced a disconformity with the genuine objects of legislation in this area and the legitimate expectations of persons affected by such legislation.

The Court, however, has to do the best it can in the discharge of its statutory obligation.  The situation in the present case is complicated by the fact that it is likely that the factual circumstances thrown up by the present proceeding was not in contemplation of the legislature at the time when the provisions which are meant to govern its determination were enacted.

Consistent with the statutory provisions earlier set out, there can be no argument that, if a worker was injured at work in circumstances where the worker was entitled to workers’ compensation payments and he received those workers’ compensation payments from the time of the injury to some time after the injury, and then much later, was successful in a common law claim for negligence in respect of the same injuries, first, the worker would be required to repay the workers’ compensation payments received and, secondly, the lump sum exclusion period contemplated by the Act would commence at the date of the last payment of the workers’ compensation payments.

The difficulty that the present proceeding exposes is that in this period during which periodic payments were received, in fact there is not a single workers’ compensation period but two separate periods separated by an extensive and discrete period of alternative employment.

In my opinion, that situation is not one which permits a simple and direct application of the legislation.  The facts of the case call for an approach similar to that adopted by von Doussa J in Secretary, Department of Social Security v a’Beckett (1990) 26 FCR 349. That decision, (which concerned the provisions of the Social Security Act 1947), nonetheless concerned the commencement date of the “lump sum payment period” under that legislation.  Von Doussa J recognised at 361 that the general tenor of the changes introduced concerning, inter alia, settlement for personal injuries, was a response to a perception that parties’ formulation of settlement arrangements were ‘incapable of rational explanation’ and (were) the product of “manipulation by the parties to obscure the true position”.

Von Doussa J was confronted with a factual situation where more than one lump sum payment was made in respect of an incapacity for work.  His Honour said at 364:

The wording of s 152(2)(e) and (3) does not in terms provide expressly for such a situation.  In my view where more than one lump sum payment by way of compensation is received by a pensioner in respect of the same incapacity for work s 152(2)(e) has to be expanded as accommodating two or more lump sum payments as well as a single lump sum payment.  The paragraph has to be read in the following way:

A reference to the lump sum payment period, in relation to one or more lump sum payments by way of compensation made in respect of the same incapacity for work, is a reference to the number of weeks, beginning on the first day of the period in respect of which the payment or payments was or is to be made, ascertained by dividing the compensation part of the lump sum payment or where two or more lump sum payments are made in respect of the same incapacity for work the sum of the compensation parts of the lump sum payments by the estimate last published by the Australian Statistician before the lump sum or where two or more lump sum payments are made in respect of the same incapacity for work the last of those payments became payable of the average total weekly earnings of all male employees in Australia for a particular month.

To apply the relevant provisions of the Act meaningfully in a case where more than one lump sum payment by way of compensation is made in respect of the same incapacity for work, it will be necessary to apply those provisions when the first lump sum payment is made, and to re-apply them by aggregating the compensation parts of the lump sum payments as and when further lump sum payments are made...

Having regard to what I perceive to be deficiencies in the statutory provisions in the sense that they do not expressly apply to the multitude of possible factual circumstances, and to the evident statutory purpose of preventing double dipping, I approach the construction of the Act seeking an interpretation consonant with its objectives, and in a way which does not violate any evident statutory intention to either entitle or preclude a person from a pension.

I have already directed attention at the misquotation of s 1165(3) by the AAT in relation to the present matter. In my opinion, the decision of the AAT also fails to recognise the possibility of more than one single “compensation” under s 17(2) of the Act.

The reference to ‘periods’ rather than ‘period’ is crucial in the present hearing, because there are in truth three amounts of ‘compensation’ within the meaning of s 17 of the Act. The first ‘compensation’ is the series of periodic payments, being workers’ compensation payments for the period 11 September 1990 until 22 April 1991. In my opinion, payments over this period are payments ‘in the form of a series of periodic payments’ that is made wholly or partly in respect of lost earnings or lost earning capacity to earn within s 17(2) of the Act. The second ‘compensation’ in my opinion is the series of periodic payments being workers’ compensation payments in the period from 1 February 1993 until 20 June 1993, which payments fall again within s 17(2) of the Act. The third ‘compensation’ within s 17(2) of the Act is the lump sum payment made pursuant to the settlement of 25 May 1995, being a lump sum payment which encompasses compensation for the periods when he was unemployed and for the diminution in income between his income as a shop assistant and his putative income as a panel beater.

It is the case that the compensation payments in the first two periods are deducted from the total settlement sum to produce, in accordance with s 17(4), the lump sum figure for the purpose of the calculation of the lump sum preclusion period.

The error in the AAT’s determination consists in the acceptance that, if there were a period of recurrent regular payments made, (or which ought to have been made), in respect of compensation payments, and that there was an interregnum of the order, as here, of twenty-one weeks, then the resumption of payments of a regular and recurrent kind for workers’ compensation in respect of the same injury, there is not only ‘a series of recurrent payments’ but also a single “periodic payment period” within the meaning of s 17 of the Act.

I disagree with both of these conclusions.

The Full Court of the Federal Court in Blunn v Cleaver (supra) in my opinion held that, where there is not a continuous period but a number of separate periods, there was not a ‘series of periodic compensation payments’ but that, more precisely, there was a ‘number of series of periodic compensation payments’.

The difficulty in the present case arises because the applicant engaged in paid employment, albeit at a lower rate, between the two periods of workers’ compensation.  If an employee had been injured and received workers’ compensation payments for a period, and subsequently those workers’ compensation periods ceased, (either because the employee had commenced paid employment or had been in receipt of unemployment benefits), there could be no argument, it seems to me, that if that employee later received a lump sum settlement of his claim for common law damages, the lump sum preclusion period would commence from the date of the last payment for his workers’ compensation payments.  The difficulty here is that there was the period from 11 September 1990 to 22 April 1991 during which Mr Jackson received workers’ compensation payments and there was a second period from 1 February 1993 to 20 June 1993 during which he also received workers’ compensation payments.

The AAT attempted to solve the question of adopting the erroneous view that where there was a number of series of periodic payments, that amounted to nothing more than ‘a series of periodic payments’.

The DSS contends that this circumstance of the two periods of workers’ compensation payments has the effect of changing the commencement date of the lump sum preclusion period from 23 April 1991 (which would have been the case had there been no later payment for workers’ compensation) to 21 June 1993.

Each of the periods of workers’ compensation payments in my opinion constitutes a “periodic payment period” within the meaning of s 17 of the Act; that is to say, the payments in the first period constitute a series of periodic payments for compensation, and the payments in the second period similarly constitute a series of periodic payments and that, pursuant to the Act, each of those series defines a “periodic payments period”.

The fallacy in the submissions on behalf of the DSS, in my opinion, involves reading ‘the last day of the periodic payments period’ as if it were ‘the last day of the last periodic payments period’.

In my opinion there is nothing on the face of s 1165(3) to compel the conclusion that the lump sum preclusion period commences on the day after the last day of the first periodic payments period rather than the period that begins on the day after the last day of the second periodic payments period, or vice versa.

On one view, on the literal meaning of s 1165(3), the lump sum preclusion period in this case dates from 23 April 1991, that period commencing 130 weeks from the day after the last day of the periodic payments period that is constituted by the series of workers’ compensation payments from 12 September 1990 to 22 April 1991.

The SSAT was attracted to this view but attempted to ameliorate it by saying that in accordance with the definition of ‘periodic payment period’ in s 17(1):

The correct commencement date for the preclusion period was 23 April 1991...and that the entire preclusion period should be aggregated from the period 23 April 1991 to 30 January 1993 and 21 June 1993 to 6 March 1994.

The AAT frankly acknowledged the problem in the present case.  It said, in paragraph 7.5 of its reasons:

No express provision is made regarding the commencement of preclusion periods in circumstances such as Mr Jackson’s, which involve multiple periodic payment periods.

Another view, again on the literal meaning of s 1165(3) is that the lump sum preclusion period dates from 21 June 1993, being the period commencing 130 weeks from the day after the last day of the periodic payments period that is constituted in accordance with the definition of periodic payments period in s 17(1) of the Act by the series of workers’ compensation payments from 1 February 1993 to 20 June 1993.

The fact that each of these possible interpretations is open would lead to the possibility of a longer preclusion period than the Act contemplated. Clearly the Act sought to determine a period whose length bears a relationship to the quantum of the net lump sum after repayment of workers’ compensation payments.

I do not think that the existence of a second workers’ compensation periodic payment period can alter the operation of the Act in respect of an earlier period so as to ignore its existence. The question is whether the 130 week period runs uninterrupted from 23 April 1991, or whether one should properly say, as did the SSAT, that the lump sum preclusion period, in the circumstances of this present case, operated from the period 23 April 1991 to 30 January 1993, was then suspended and was reactivated on 21 June 1993 and continued to 6 March 1994. The period of suspension of the lump sum preclusion period is the period during which Mr Jackson received workers’ compensation payments. These payments he was obliged to refund to the Workers’ Compensation Board so that there can be no possibility of double dipping during this period, and therefore no sensible reason why the lump sum preclusion period should operate during this period.

The conclusion of the SSAT was directed at achieving a sensible resolution in the factual circumstances of the case, giving effect to the statutory intention that a person should not be entitled to retain compensation affected payments during periods for which a common law damages claim had recompensed him.

In my opinion, the requirement in s 1165(3) that a lump sum preclusion period commence after the periodic payments period implies that there be no overlap between the lump sum preclusion period and any periodic payments period.  This conclusion justifies the conclusion of the SSAT.

For the reasons expressed above, the appeal should be allowed.  The matter is remitted to the AAT to be dealt with according to law.  The applicant should have its costs of these proceedings, to be taxed if not otherwise agreed.

I certify that this and the preceding thirteen (13) pages are a true copy of the Reasons for Judgment herein of the Honourable Justice Spender.

Associate:
Dated:             17 October 1997

Counsel for the Applicant:	Mr P L Feely
Solicitor for the Applicant:	W H Tutt & Quinlan
Counsel for the Respondent:	Mr P D T Applegarth
Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing:	4 April 1997
Date of Judgment:	17 October 1997