JOSEPH WHITNEY and COMCARE
[2012] AATA 370
•19 June 2012
[2012] AATA 370
Division GENERAL ADMINISTRATIVE DIVISION File Number(s)
2012/0983
Re
JOSEPH WHITNEY
APPLICANT
And
COMCARE
RESPONDENT
DECISION
Tribunal MR R G Kenny, Senior Member Date 19 June 2012 Place Brisbane The Tribunal affirms the decision under review
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MR R G Kenny, Senior Member
CATCHWORDS
COMPENSATION – Weekly compensation paid to applicant under Compensation (Commonwealth Employees) Act 1971 (Cth) and Safety, Rehabilitation and Compensation Act 1988 (Cth) – Weekly compensation payments ceased on applicants 65th birthday – Decision under review affirmed.
LEGISLATION
Compensation (Commonwealth Employees) Act 1971 (Cth)
Safety, Rehabilitation and Compensation Act 1988 (Cth) s 134
CASES
Considine v Citicorp Australia Ltd [1981] 1 NSWLR 657
Daff and Comcare [2010] AATA 732
Peart v Victorian Railways Commissioners [1924] VLR 425 at 429-430.Sutherland Shire Council v James [1963] NSWR 1573
SECONDARY MATERIALS
Commonwealth Employees’ Rehabilitation and Compensation Bill 1988 (Cth), Second Reading Speech, House of Representatives, 27 April 1988
REASONS FOR DECISION
MR R G Kenny, Senior Member
May 2012
BACKGROUND
Joseph Whitney was in receipt of weekly compensation payments under the under the Compensation (Commonwealth Employees) Act 1971 (Cth) (“the 1971 Act”) and then the Safety, Rehabilitation and Compensation Act 1988 (Cth) (“the 1988 Act”). On 18 January 2012, the respondent advised him that his payments would cease on 18 April 2012 when he turned 65 years of age. That decision was affirmed by a senior review officer on 6 March 2012.
ISSUES AND LEGISLATION
It is not disputed that Mr Whitney was born on 18 Aril 1947 or that he celebrated his 65th birthday on 18 April 2012. The 1988 Act makes provision for weekly compensation payments to cease when a recipient thereof turns 65 years of age. The provision, in so far as relevant to Mr Whitney’s circumstances, reads:
134 Reduction of compensation on reaching 65
(1) When a former employee to whom section 131, 132 or 132A applies reaches 65, the amount of compensation payable per week to the former employee but for this section shall be reduced by an amount calculated under the formula:
5 x (65 – A)
__________ X C
100
where:
A is the age of the former employee, expressed in completed years, as at the commencing day; and
C is that amount of compensation payable per week to the former employee.
It is common ground that the commencement date for the 1988 Act was 1 December 1988. The issue for determination is whether that provision has the effect of bringing Mr Whitney’s weekly compensation to an end on his turning 65 years of age.
SUBMISSIONS
Mr Whitney submitted that his payments should be ongoing after his 65th birthday. He referred to a letter, dated 18 August 1986, which he received from the respondent[1]. The letter referred to the 1971 Act and advised:
Currently, [the 1971 Act] does not limit benefit with regard to the age of recipients or provide a maximum in aggregate payments.
[1] The letter was sent by Commonwealth Employees’ Compensation which preceded Comcare.
Mr Whitney submitted that he contacted the respondent in 2003 when he was about to purchase a house. His sole source of income at that time was his compensation payment and he wished to satisfy his lending institution’s concern about his income. He said that the Comcare officer to whom he spoke confirmed that his compensation payments would continue after he turned 65. He submitted that effect should be given to the 1986 written and 2003 oral advices as he had relied on the continuation of the payments in obtaining a loan for the purchase of his house. He said that the cessation of his payments would force him to sell the house where he lives and to seek rental accommodation.
For the respondent, Elenne Ford submitted that the letter sent to Mr Whitney in 1986 correctly reflected the compensation legislation at that time and that the use of the prefacing word “Currently” in the advice to Mr Whiney demonstrated that. She submitted that the situation changed when the 1988 Act was proclaimed and that Parliament’s intention to bring payments to an end at age 65 years was the result of applying the formula set out in s 134 of the 1988 Act.[2] Ms Ford submitted that there was no record of any contact between Comcare and Mr Whitney in 2003 but that, even if the advice attributed to the Comcare officer was given to Mr Whitney, no estoppel arises to counter the clear legislative intent in s 134 of the 1988 Act.
[2] Ms Ford referred to the Second Reading Speech of the Commonwealth Employees’ Rehabilitation and Compensation Bill 1988 (Cth): House of Representatives 27 April 1988.
CONSIDERATION
I accept as correct the submissions for the respondent in this matter. The application of the formula in s 134 of the 1988 Act reduced Mr Whitney’s compensation to nil after his 65th birthday. That is the clear effect of the application of the formula in s 134 of the 1988 Act and of the intention of the provision as shown in the words of the Minister for Social Security in the second reading speech for the Bill for the 1988 Act:
Weekly payments will cease at age 65. This Government does not consider it appropriate that employees should continue to receive workers’ compensation benefits after the normal retiring age.[3]
[3] See Note 2 (above) at para 8, per The Honourable Mr Brian Howe, Minister for Social Security.
Mr Whitney may well have believed that the payments would continue after he turned 65. However, that is not the effect of the letter he received in 1986 as it clearly described the operation of the legislation as it stood at that time. That situation changed with enactment of the 1988 Act.[4]
[4] See Daff and Comcare [2010] AATA 732 at para 42.
In relation to the 2003 oral advice referred to by Mr Whitney, I note that he made no reference to this in either of his written statements tendered in evidence. He relied solely on the 1986 letter. There is no evidence before me of a record of the contact with a Comcare officer. As I understand the reliance on the 2003 oral advice, Mr Whitney’s submission is that the respondent is estopped from denying its representation to him about the continuation of payments beyond his 65th birthday. I do not accept that contention. As submitted by Ms Ford, estoppel may not be relied upon to negative the operation of a statute[5], to extend the powers of a statutory corporation[6] or to bring about a result which would be contrary to the provision of an Act of Parliament[7].
[5] Considine v Citicorp Australia Ltd [1981] 1 NSWLR 657 at 662 per Wootten J.
[6] In this case, Comcare. See Sutherland Shire Council v James [1963] NSWR 1573 at 1577 per Sugerman and Manning JJ.
[7] Peart v Victorian Railways Commissioners [1924] VLR 425 at 429-430.
I have noted Mr Whitney’s reference to the financial detriment he faces because of the cessation of his compensation payment. While I accept that to be an unfortunate consequence to him, I am, however, satisfied that that is an inevitable consequence of the unambiguous terms of s 134 in the 1988 Act.
DECISION
The Tribunal affirms the decision under review.
I certify that the preceding 11 (eleven) paragraphs are a true copy of the reasons for the decision herein of MR R G Kenny, Senior Member.
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Associate
Dated May 2012
Date(s) of hearing 12 June 2012 Applicant In person Counsel for the Respondent Elenne Ford Solicitors for the Respondent Kerri Smith