Lushington and Comcare - [2001] AATA 310

DECISION AND REASONS FOR DECISION [2001] AATA 310

ADMINISTRATIVE APPEALS TRIBUNAL )

) No S1999/471

GENERAL ADMINISTRATIVE DIVISION       )
           Re      WERNER LUSHINGTON
  Applicant
           And    COMCARE
  Respondent

DECISION

Tribunal Deputy President B.H. Burns

Date18 April 2001
PlaceAdelaide

Decision 1. The decision of the Tribunal is that the decision under review in so far as it determines the superannuation amount (SA) for the purposes of s21 of the Safety, Rehabilitation and Compensation Act 1988 Act is set aside and in substitution therefor it is decided that the superannuation amount for that purpose is $258,000.
2. In the absence of any submissions within 21 days on the question of costs, the Tribunal orders the respondent pay the applicant's reasonable costs associated with this application for review as agreed or in the absence of agreement to be taxed. Liberty to apply.

…...……......(Signed)..................….
DEPUTY PRESIDENT B.H. BURNS
CATCHWORDS
COMPENSATION – receipt of lump sum benefit under a superannuation scheme – determination of the superannuation amount for the purposes of s21 of the Safety, Rehabilitation and Compensation Act 1988 – decision set aside.

Safety, Rehabilitation and Compensation Act 1988 – ss 4, 21
Koorang Cement Pty Ltd v Bates (1994) 35 NSWLR 452
Commonwealth of Australia v Human Rights and Equal Opportunity Commission and Another (1998) 152 ALR 182
Law v Repatriation Commission (1979-80) 29 ALR 64
Definitions / Words and Phrases – "as attributable to"; "assessment"; "as the case requires" - s4

REASONS FOR DECISION

18 April 2001 Deputy President B.H. Burns

This is an application by Mr Werner Lushington ("the applicant") for review of that part of a decision of an independent review officer of the respondent dated 29 September 1999 (T26) which affirmed four decisions of delegates of the respondent as contained in two letters to the applicant dated 3 December 1997 (T18) and 29 July 1997 (T21), concerning the calculation, constitution and amount of the "superannuation amount" ("SA") for the purposes of section 21 of the Safety, Rehabilitation and Compensation Act 1988 ("the Act").
The Tribunal received into evidence the documents lodged pursuant to s.37 of the Administrative Appeals Tribunal Act 1975 (T1-T26), and supplementary documents (ST1-ST7) together with 4 exhibits, 2 lodged by the applicant (Exhibit A1-A2) and 2 lodged by the respondent (Exhibits R1-R2). The applicant was represented by Mr Bourne and the respondent was represented by Mr Howe, both of counsel, and the matter proceeded by way of submissions, both oral and written.
history of the application
The applicant was born on 28 July 1960 and commenced work with Australian National Airlines Commission (called "Australian Airlines Limited" as from 1988) in 1978, completing an apprenticeship in or about 1982 as an aircraft maintenance engineer.
On 19 November 1985 the applicant was severely injured in a motor vehicle accident whilst journeying to work at Australian Airline's Adelaide Airport premises. On 18 February 1986 a delegate of the respondent's predecessor, the Commissioner for Employees Compensation accepted liability to pay compensation to the applicant for the injuries sustained in the…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2001] AATA 310
Decision Date: 18 April 2001

CaseChat Overview and Summary

In the case of Lushington and Comcare, the parties were involved in a dispute regarding the determination of a superannuation amount for the purposes of section 21 of the Safety, Rehabilitation and Compensation Act 1988. The matter was heard by a tribunal, which was required to decide whether the lump sum benefit received by the applicant was attributable to his retirement and what the superannuation amount was for calculating the compensation. The applicant argued that the entire lump sum should be considered, while the respondent contended that only a portion should be taken into account.

The tribunal found that the lump sum benefit was indeed received as a result of the applicant's retirement, in line with the requirements of section 21 of the Act. The primary issue that remained was the interpretation of the definition of "superannuation amount" in section 4 of the Act. The tribunal considered the context and purpose of the Act, which is to prevent double dipping by employees using superannuation entitlements while on compensation. The tribunal found that the applicant had received a lump sum benefit of $354,995 under a superannuation scheme, which comprised various sums of money brought together into one benefit.

The tribunal concluded that the entirety of the lump sum should be considered as the superannuation amount for the purposes of calculating the compensation, minus the employee's contribution of $9,660.75. The tribunal held that the role of the tribunal in such circumstances is to apply the rules as decreed by Parliament, despite the potential for individual unfairness. The tribunal set aside the decision of the respondent, finding that the entire lump sum should be taken into account for the calculation of the compensation under the Act.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

Mr Howe submitted that whilst it may be somewhat unfair to include the entire lump sum in the situation where there is some uncertainty as to attributability, the legislature has decreed that the possibility of avoiding double dipping is to be preferred to any possible unfairness to the individual that may eventuate. He referred to the Second Reading Speech for the Commonwealth Employees' Rehabilitation and Compensation Bill 1988 (Hansard 27/4/88 at p2194) in support of the alleged intention to avoid any facility for double dipping. He submitted that the role of the Tribunal in such circumstances is to apply the rules as decreed by Parliament despite the individual unfairness that might result (citing Commonwealth of Australia v Human Rights and Equal Opportunity Commission and Another (1998) 152 ALR 182 at page 189). Due to the uncertainty in this case, he submitted that the entirety of the lump sum must be considered pursuant to the second limb of paragraph (b) of the section 4 SA definition minus the employee contribution of $9,660.75.the tribunal's findings, reasons and decision The Tribunal would indicate that it has had regard to the whole of the material placed before it and to the submissions of counsel, both oral and written. The first issue in dispute between the parties and which in the opinion of the Tribunal can be briefly dealt with relates to whether or not the subject lump sum benefit was received by the applicant as a result of his retirement, which is a requirement of s.21 of the Act. The Tribunal's considered view is that it clearly was and the Tribunal so finds. The Tribunal's views in this regard accord with those of the respondent. The Tribunal found the respondent's reasons to be most persuasive. The remaining matter in dispute is the question as to what is the "superannuation amount" (SA) for the purposes of calculating the amount of compensation under the formula in s.21(3) of the Act. The subject words are defined in s.4 of the Act and the Tribunal now turns to its consideration as to what meaning is to be given to that definition. There is no dispute for the purposes of the definition and, even if it can be said that there is, the Tribunal is of the view that the applicant did receive the amount of $354,995 being a lump sum benefit under a superannuation scheme. The documentary evidence clearly supports that view and also that the above sum comprises the bringing together of different sums of money into the one, ie, a lump sum which in turn falls to be described as a benefit. Paragraph (a) of the definition of superannuation amount comes into play if the subject superannuation scheme "identifies" a part of the lump sum "as attributable to" the contributions made under the scheme by the employer. The above words need to be defined and the Tribunal now turns to defining the words in question. In doing so, the Tribunal is mindful that consideration must be given to the words in their context and having regard to the purpose of s.21 in its context against the background of the purpose of the Act itself. Whilst the Act itself is beneficial legislation, it is apparent that s.21 is remedial in nature and aimed at preventing double dipping by employees using superannuation entitlements whilst on compensation where both have their origin in the one injury (Second Reading Speech, Hansard, 27 April 1988).

Ratio Decidendi

Legal Principle Established

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