John Holland Group Pty Ltd v Robertson

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FEDERAL COURT OF AUSTRALIA

John Holland Group Pty Ltd v Robertson [2010] FCAFC 88

Citation: John Holland Group Pty Ltd v Robertson [2010] FCAFC 88
Appeal from: Robertson and John Holland Group Pty Ltd [2009] AATA 443
Parties: JOHN HOLLAND GROUP PTY LTD v DAVID ROBERTSON
File number: QUD 176 of 2009
Judges: SPENDER, DOWSETT AND LOGAN JJ
Date of judgment: 15 July 2010
Corrigendum: 27 July 2010
Catchwords:

WORKERS’ COMPENSATION – employee of a licensed corporation under the Safety, Rehabilitation andCompensation Act 1988 (Cth) (“the Act”) – incapacity payments – normal weekly earnings – application of s 8(10) of the Act where employee’s employment would have ceased during period of incapacity – scope of term “employment” in s 8(10)

PRACTICE AND PROCEDURE – whether notice of appeal raised questions of law

Legislation: Administrative Appeals Tribunal Act 1975 (Cth) s 44
Commonwealth Employees’ Rehabilitation and Compensation Amendment Act 1992 (Cth)
Federal Proceedings (Costs) Act 1981 (Cth) s 6
Income Tax Assessment Act 1936 (Cth)
Public Service Act 1922 (Cth)
Safety, Rehabilitation and Compensation Act 1988 (Cth) ss 4, 5, 8, 9, 10, 14, 19, 108A
Safety, Rehabilitation and Compensation and Other Legislation Amendment Act 2001 (Cth) s 100
Cases cited:

Bortolazzo v Comcare (1997) 75 FCR 385
Comcare v Burgess (2007) 164 FCR 66
Comcare Australia v Pires (2005) 143 FCR 104
Ergon Energy Corp Ltd v Commissioner of Taxation (2006) 153 FCR 551
Griffiths and Comcare (2003) 77 ALD 500
Knudsen and Australian Postal Corporation [2006] AATA 1038
Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355
Richards v Commission for the Safety, Rehabilitation and Compensation of Commonwealth Employees [1993] AATA 164
Re Spurr and Comcare (1999) 28 AAR 424
Thompson and Comcare (2002) 69 ALD 762
TNT Skypack Int (Aust) Pty Ltd v Commissioner of Taxation (1988) 19 ATR 1067
Warnock and Comcare [2008] AATA 567
Wentworth Securities Ltd v Jones [1980] AC 74

Macquarie Dictionary (4th ed)
New Shorter Oxford English Dictionary
Oxford English Dictionary (2nd ed)
Shorter Oxford Dictionary (6th ed)
Date of hearing: 25 February 2010
Date of last submissions filed on behalf of the Appellant: 17 February 2010
Date of last submissions filed on behalf of the Respondent: 22 February 2010
Date of submissions in reply filed on behalf of the Appellant: 24 February 2010
Place: Brisbane
Division: GENERAL DIVISION
Category: Catchwords
Number of paragraphs: 123
Counsel for the Appellant: Mr T Howe QC with Mr C Clark
Solicitor for the Appellant: Sparke Helmore Lawyers
Counsel for the Respondent: Mr P Hanks QC with Mr D Richards
Solicitor for the Respondent: Slater & Gordon Lawyers

FEDERAL COURT OF AUSTRALIA

John Holland Group Pty Ltd v Robertson [2010] FCAFC 88

CORRIGENDUM

1.At paragraph 85 of the Reasons for Judgment of Logan J the following sentence should read “I was relieved from exploring further the deficiencies...” instead of “We were relieved from exploring further the deficiencies, …”.

2.At paragraph 120 of the Reasons for Judgment of Logan J the…

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Details
Case
[2010] FCAFC 88
Decision Date

CaseChat Overview and Summary

The matter before the court was an appeal by John Holland Group Pty Ltd against a decision of the Administrative Appeals Tribunal (AAT) regarding the compensation owed to Mr Robertson, an employee who had been injured at work. The crux of the appeal was the interpretation and application of s 8(10) of the Safety, Rehabilitation and Compensation Act 1988 (Cth) ("the Act") in the context of Mr Robertson's normal weekly earnings (NWE) after his employment had ceased due to the completion of a project. The court was required to determine whether Mr Robertson's employment was considered to have ceased for the purposes of the Act and whether s 8(10) applied to his situation, specifically regarding the reduction of his NWE while he was incapacitated.

The court examined the arguments presented by both parties regarding the scope of the term "employment" in s 8(10) of the Act. John Holland contended that Mr Robertson's employment continued despite the cessation of the Gladstone Project, thereby applying s 8(10)(a) of the Act. Conversely, Mr Robertson argued that the Act did not contemplate employment termination due to project completion and that even if s 8(10) applied, s 8(10)(b) should be used, which would reflect the cessation of his employment upon project completion. The court found that the completion of the Gladstone Project effectively ended Mr Robertson's employment, and this conclusion was consistent with the decision in Comcare v Burgess. The court further reasoned that s 8(10) was not applicable as it did not consider the scenario where employment ends upon project completion, and it was not intended to apply when the continuity of employment and receipt of earnings were not possible. Therefore, the court held that the AAT's decision to reduce Mr Robertson's NWE was incorrect.

The appeal was allowed by the court, and the decision of the AAT was set aside. The matter was remitted to the AAT for reconsideration in accordance with the court's reasons, particularly on the applicability of s 8(10)(b) to Mr Robertson's circumstances. The court also ordered that Mr Robertson pay John Holland's costs of the appeal, subject to taxation if not agreed. Additionally, the District Registrar was directed to issue a certificate under the Federal Proceedings (Costs) Act 1981 (Cth) to facilitate potential payment of Mr Robertson's costs by the Attorney-General.

Orders

Orders of the court

1. The appeal is allowed.

2. The decision of the Administrative Appeals Tribunal dated 19 June 2009 is set aside.

3. The matter is remitted to the Administrative Appeals Tribunal for hearing and determination according to law in accordance with the reasons of the Court and on the footing that s 8(10)(b) of the Safety Rehabilitation and Compensation Act 1988 (Cth) has application to the Respondent’s circumstances, as found by the Administrative Appeals Tribunal.

4. The Respondent pay the Appellant’s costs of and incidental to the appeal to be taxed if not agreed.

5. The District Registrar furnish to the Respondent a certificate under s 6 of the Federal Proceedings (Costs) Act 1981 (Cth), stating that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorize a payment under this Act to the Respondent in respect of:

(a) the costs incurred by the respondent in relation to the appeal; and

(b) any costs incurred by an appellant in relation to the appeal that have been, or are required to be, paid by the Respondent to the Appellant in pursuance of an order of the Court, not being costs to which a costs certificate granted under s 7 of that Act relates.

6. The District Registrar send a copy of that certificate to the proper officer within the Attorney-General’s Department.

Note:

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

The second decision is explained in a letter dated 7 August 2008. It seems that on 8 July 2008 the Mr Robertson’s NWE was again reduced to $1,182.50 with effect from 13 July 2008. The decision was apparently based on the fact that employees on the Rail Link project were no longer working overtime. At that time, it was also decided that from 8 August 2008, Mr Robertson would no longer be incapacitated for work as a result of his injury. Mr Robertson sought review of these decisions. The reviewer concluded that had Mr Robertson not been injured, he would probably not have been employed by John Holland after 1 April 2008. The determination was varied accordingly so that the reduction in NWE took effect from 1 April 2008 rather than 13 July 2008, an outcome less favourable to Mr Robertson than the original decision. The reviewer affirmed the determination that his incapacity would cease from 8 August 2008. Mr Robertson again sought review in the Tribunal. By way of completeness, I should add that by this time Mr Robertson had been receiving compensation for 45 weeks, and so his NWE was further reduced pursuant to s 19(3).THE TRIBUNAL’S DECISION At some stage, the parties were in dispute as to whether Mr Robertson’s employment had ceased. However I understand it now to be common ground that the Gladstone Project was completed on 15 September 2007, and that his employment ceased on that date. It is also accepted that that Mr Robertson ceased to be incapacitated for work from 8 August 2008. This appeal is concerned only with the basis upon which compensation should be calculated for the period from 16 September 2007 to 7 August 2008 inclusive. In the Tribunal, John Holland submitted that Mr Robertson had continued to be employed throughout the whole period so that s 8(10)(a) applied. Mr Robertson submitted that s 8(10) did not apply at all because termination at the end of a particular project was not contemplated by the Act. He also submitted that if s 8(10) applied at all, then s 8(10)(b) was to be applied as if his employment had ceased upon the completion of the Gladstone project. The Tribunal observed that no “overt act of the parties” had effected termination of his contract of employment. However it concluded that, having regard to the terms of the letter of employment, Mr Robertson’s employment ceased on 15 September 2007 when the Gladstone project was effectively completed. As I have observed, this matter is no longer in dispute. The Tribunal then accepted Mr Robertson’s submission that as s 8(10) did not expressly contemplate a situation in which the employment of a relevant employee was terminated upon completion of a project, s 8(10) was not engaged. This conclusion was said to be consistent with the decision of Greenwood J in Comcare v Burgess (2007) 164 FCR 66. At paras 33 to 35, the Tribunal concluded that:33It is, I think, preferable to construe s 8(10) of the Act as being confined to situations where it is possible to say that an injured employee could have continued to be employed by the Commonwealth or a licensed corporation. Viewed that way the subsection operates to reduce the entitlement to compensation in line with the reality of the fact of continued employment. Thus adjustments may be made where shift allowances are no longer being paid or a work restructure brings about a substantial alteration to entitlement. Those cases are ones where it is possible to undertake a calculation of the earnings that the employee would receive if not incapacitated, or would have received had the employment at the time of injury continued. But the subsection has no application to a situation where it was not contemplated that the employment at the time of injury would continue nor possible for that employment to continue. As Greenwood J observes in Burgess, the continuity of employment contemplated by s 8(10)(a) of the Act is “continuity of service and receipt of earnings, not simply a subsisting employer/employee relationship”. Similarly, in my opinion, s 8(10)(b) of the Act contemplates the possibility of the continuity of service and receipt of earnings in the employment in which the employee had been engaged at the time of the injury. 34I would add that no different result would flow had Mr Robertson continued to be employed by [JHE] during the period in issue here.35.In these circumstances I conclude that section 8(10) of the Act had no application to Mr Robertson’s circumstances and that [John Holland] was wrong to reduce his normal weekly earnings. It is unnecessary to consider Mr Robertson’s alternative arguments based upon the applicability of s 8(10) of the Act.

Ratio Decidendi

Legal Principle Established

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