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 accident (T5).
The applicant retired from his employment in April 1990 on the basis of total and permanent disablement. On 30 April 1990 the applicant received a benefit from the Australian Airlines Superannuation Plan in the amount of $354,995 which is said by the documentary evidence to be comprised of (see T23/111-114):
(a)AMP Insurance amount  $182,118.00
(b)Applicant contribution  9,660.75
(c)Australian Airlines contribution                  25,697.08
(d)Australian Airlines "Self Insurance"          50,000.00
(e)Australian Airlines "Pool of Funds"           87,519.17
Of this amount, the applicant paid $11,603.30 in tax (T23/111), resulting in the applicant netting a total payment of $343,391.70.
On 11 February 1993 the Supreme Court of South Australia awarded the applicant $779,932.14 damages in common law proceedings in respect of injuries sustained in the motor vehicle accident. This amount was later reduced by consent to $714,932.14 on the undertaking of the defendant in those proceedings to withdraw an appeal to the Full Court of the South Australian Supreme Court (see T8 to T11).
Between 1997 and 1999, various correspondence passed between the applicant and respondent, and determinations were issued as to the applicant's entitlements to compensation under the Act on 3 December 1997 (T18) and 29 July 1998 (T21). In the reconsideration decision of 29 September 1999 (T26/118) the independent review officer said:
"…
The superannuation amount (SA) for the purposes of calculations under Section 21, as previously calculated by Comcare, was $163,216.25. This SA amount was divided by 520 equalling a weekly amount of $313.88.
From our previous discussions, in respect of the AAT matter S98/305, I was under the impression that this SA figure was not in dispute. However following receipt of the draft reconsideration your client raised concerns as to the accuracy of the $163,216.25 amount. This amount was the added total of three of five components that made up your client's superannuation benefit that he received in respect of a total and permanent disablement.
The three components were self insurance by Australian Airlines of $50,000.00, contributions from Australian Airlines of $25,697.08, and an amount paid from Australian Airlines pool of funds of $87,519.17. The other two components were $182,118.00 that AMP (insurance) paid and $9660.75 that related to Mr Lushington's contributions.
Initially the $182,118.00 was omitted from superannuation calculations however recent counsel opinion is of the view that this amount should be included as part of superannuation received.
I therefore determine that the self insurance by Australian Airlines of $50,000.00, contributions from Australian Airlines of $25,697.08, the amount paid from Australian Airlines pool of funds of $87,519.17 and the $182,118.00 insurance amount makes up the superannuation amount (refer Section 4) for the purposes of calculations under Section 21. The sum of these components is $345,334.25. This figure is the SA amount. This SA amount when divided by 520 equals $664.10.
…"
It is the composition of the SA that the applicant seeks to challenge in these proceedings if s21 of the Act is applicable. The Tribunal notes that the parties were initially in agreement that subparagraph (a) of the definition below of SA in s4 of the Act is not applicable, leaving the Tribunal, if that be so, to determine in respect of paragraph (b) of the definition as to which components (if any) of the lump sum received by the applicant on 30 April 1990 were contributions made by the Commonwealth.
Subsequent to the hearing, a further letter from AMP Australia to Australian Airlines dated 20 October 1989 was placed before the Tribunal by the applicant, and the parties were invited to provide further written submissions in relation to this letter, which has become Exhibit A2.
legislation
Section 4 of the Act provides the definition of "superannuation amount":
' …
"superannuation amount", in relation to a pension received by an employee in respect of a week, or a lump sum benefit received by an employee, being a pension or benefit under a superannuation scheme, means an amount equal to:
(a)if the scheme identifies a part of the pension or lump sum as attributable to the contributions made under the scheme by the Commonwealth, Commonwealth authority or licensed corporation – the amount of that part; or
(b)in any other case – the amount assessed by the relevant authority to be the part of the pension or lump sum that is so attributable or, if such an assessment cannot be made, the amount of the pension received by the employee in respect of that week or the amount of the lump sum, as the case requires;'
"Superannuation scheme" is further defined:
'…
"superannuation scheme" means any superannuation scheme under which the Commonwealth, a Commonwealth authority or a licensed corporation makes contributions on behalf of employees and includes a superannuation or provident scheme established or maintained by the Commonwealth, a Commonwealth authority or a licensed corporation;'
Section 21 of the Act provides as follows:
"Compensation for injuries resulting in incapacity where employee is in receipt of a lump sum benefit
21.      (1)       This section applies to an employee who, being incapacitated for work as a result of an injury retires voluntarily, or is compulsorily retired, from his or her employment at any time after the commencement of this section and, as a result of the retirement, receives a lump sum benefit under a superannuation scheme.
(2)       Comcare is liable to pay compensation to the employee, in respect of the injury, in accordance with this section for each week after the date of the retirement during which the employee is incapacitated.
(3)       The amount of compensation is an amount calculated under the formula:
where:
AC is the amount of compensation that would have been payable to the employee for a week if:
(a)section 19, other than subsection 19(6), had applied to the employee; and
(b)in the case of an employee who was not a member of the Defence Force immediately before retirement – the week were a week referred to in subsection 19(3);
SA is the superannuation amount; and
SC is the amount of superannuation contributions that would have been required to be paid by the employee in that week if he or she were still contributing to the superannuation scheme."

the australian airlines general superannuation plan trust deed and rules

The Tribunal notes that the Australian Airlines General Superannuation Plan Trust Deed and Rules ("the plan"), ("the deed") and ("the rules") is a supplemental deed to the original (which has not been located by the parties). The Tribunal notes Mr Howe's assurance that pursuant to clause C of the airlines deed, the supplemental deed in fact replaces the original deed (ST4/29). There is also a supplementary deed dated 29 June 1992 (ST7/82) which is not relevant to the current proceedings, as it postdates the applicant's invalidity. The Tribunal notes the following provisions from the deed and rules:
'TRUST DEED
…
CONTRIBUTIONS
2.        (1)The Commission covenants to pay in each review period to the Trustees or as directed by them –
(a)the contributions (if any) which each Member has or is deemed to have requested the Commission to deduct from his salary and which the Commission has so deducted; and
(b)out of the Commission's own money (subject as hereinafter provided) the Commission's contributions in accordance with the Rules
PROVIDED THAT the Commission may pay to the Trustees such additional sums (if any) as the Commission may from time to time determine and those sums shall be applied by the Trustees as the Commission shall in writing direct PROVIDED FURTHER THAT the Commission may on giving one month's notice to the Trustees of its intention so to do terminate reduce or suspend the payment by the Commission of all or any of its contributions.
…
APPLICATION OF CONTRIBUTIONS
3.        (1)All amounts forming part of the Plan shall be held in trust by the Trustees and the contributions by and in respect of the Members shall be applied to provide the benefits referred to in this Deed and the Rules for or in respect of the Members.
(2)       The Trustees shall arrange for benefits to be funded in whole or in part by means of the investment authorised by this Deed and in whole or in part by means of a Policy of such form as is from time to time agreed upon by the Trustees and the AMP and the Trustees shall from the moneys in their hands available for this purpose pay to the AMP the premiums under the Policy.
(3)       Payments made with the concurrence of the Trustees by the Commission to the AMP in connection with the Plan shall be deemed to have been paid by the Commission to the Trustees and by the Trustees to the AMP.
(4)       When for any reason a benefit becomes payable (whether in a lump sum or otherwise) to or in respect of a Member in accordance with this Deed and the Rules the Trustees shall subject to the terms and conditions of the Policy receive from the AMP the amount so payable.
(5)       If in respect of the funding of any benefits under the Plan amounts are invested other than in payment of premiums under the Policy the investments and the proceeds thereof shall be held upon the same trusts as those relating to the benefits funded by means on the Policy and the provisions of this Deed and the Rules shall mutatis mutandis apply to those investments and proceeds.
…
INVESTMENTS
14.      (1)The Trustees may, in their name or under their control, invest the whole or any part of the moneys or assets of the Plan not required for the immediate purposes of the Plan in any one or more of the following forms of investment with power from time to time to sell, vary, transpose, convert or for the purposes of obtaining temporary finance borrow against any of the investments of the Plan PROVIDED THAT loans to Members are hereby expressly excluded:
(a)any investment authorised by law for the investment of trust funds;
(b)the purchase of or subscription for shares, stock, debentures or securities of any kind in any company incorporated in any part of the world whether or not carrying on business in Australia and whether those shares, stock, debentures or securities are fully or partly paid up;
(c)deposits at call or otherwise with any bank, Insurer or financial institution;
(d)a Superannuation policy or any other type of policy effected with an Insurer and in the payment of premiums thereon;
(e)any other form of investment without being limited by any of the foregoing which could be made by the Trustees if acting personally and not as Trustees.
…
SCHEDULE OF RULES FOR THE MANAGEMENT OF THE CONTRIBUTORY SECTION OF THE AUSTRALIAN AIRLINES GENERAL SUPERANNUATION PLAN
…
CONTRIBUTIONS
3.        (1)Subject to Rule 4 each Member shall (except while entitled to the payment of a benefit in terms of Rule 11 hereof) in respect of each review period contribute to the Plan at the rate of five per cent of his annual salary.
(2)       The contributions by the Member shall commence on the date on which he becomes a Member and shall cease on his normal retirement date or on his ceasing prior to that date to be in the service of the Commission or to be a Member whichever is the earlier PROVIDED THAT in any case the contributions by the Member shall cease at the date deemed by the Trustees to be the date on which shall end that part of the Member's years of membership that would have been required to provide the Member a benefit at his normal retirement date equal to the maximum benefit that would generally be approved from time to time for the purposes of those provisions of section 23F of the Act.
(3)       In respect of each review period the AMP will advise the Commission of the amount which has been calculated as being required in respect of the funding of the benefits and unless otherwise agreed between the Commission and the AMP the Commission will subject to Clause 2 of this Deed contribute to the Plan in that review period the remainder of that amount after allowance has been made for the contributions payable by the Members.
…
BENEFITS ON DEATH
8.If the Member dies prior to his normal retirement date the benefit payable on his death shall subject to Rule 4 be the amount determined under Rule 5 as if the Member had continued in the service of the Commission until and had retired on the normal retirement date. For this purpose the Member's salary at the date of his death shall be deemed to have continued to be his annual salary up to his normal retirement date.
…
BENEFITS ON TOTAL AND PERMANENT DISABLEMENT
10.      (1)If the Member becomes totally and permanently disabled (within the meaning of the definition appearing in the Policy) prior to attaining the age of sixty-five years the benefit payable shall subject to Rule 4 be calculated in the manner set out in Rule 8 as if the Member had died on his date of disablement.
(2)       If the Member becomes totally and permanently disabled as aforesaid the Trustees shall pay or apply the benefit payable in accordance with this Deed and the Rules to or for the benefit of the Member or any one or more of his dependants in such shares and proportions and in such manner as the Trustees shall in their absolute discretion determine PROVIDED HOWEVER THAT while the Member is still in the service of the Commission payment shall not be made in terms of this Rule except for the maintenance or support of the Member or his dependants and for the purpose of relieving hardship PROVIDED FURTHER THAT if the Member dies before the whole of the benefit payable in respect of the Member has been paid or applied in accordance with this Rule the benefit payable or the balance thereof (as the case may be) shall be paid to the persons and in the manner referred to in Rule 9.
…"
"Total and permanent disablement" is defined in the "Australian Airlines General Superannuation Plan" booklet ("the Superannuation booklet")(ST2/15):
"What is Meant By Total and Permanent Disablement?
You will be regarded as totally and permanently disabled if an illness, accident or injury has caused you to be away from work for more than six months and the Trustees and AMP believe that you will never again be able to work in employment for which you are fitted by education, training or experience.
Alternatively you will be regarded as disabled if you lose two limbs, or lose all sight in both eyes, or lose one limb and one eye."

applicant's submissions

The Tribunal has identified three primary submissions made by Mr Bourne on behalf of the applicant. The first relates to the question of whether s21 of the Act is applicable, the second concerns the first limb of paragraph (b) of the s4 SA definition and the question of "attributable to", and the third concerns the second limb of paragraph (b) and the question of apportionment.
applicability of section 21 of the act
Mr Bourne submitted that the lump sum benefit paid to the applicant on 30 April 1990 was not paid as a result of the retirement of the applicant, but was paid in respect of total and permanent disablement, meaning that subsection 21(1) of the Act is not satisfied. He submitted that it is dangerous to attempt to draw analogies or comparisons between the statutory Superannuation Scheme governing Commonwealth employees and the private sector Australian Airlines superannuation scheme. He submitted that the disablement payment under the Australian Airlines scheme does not comprise identifiable components, and that in respect of disablement benefits, the scheme effectively works as an insurance scheme, distinct from the scheme associated with retirement.
Mr Bourne referred in this respect to the provisions of rule 4 of the Rules of the deed (ST4/54) which provide for adjusted benefits upon death or disablement of members. Sub-rule 10(1) of the Rules provides that payment upon disablement is to be calculated in the manner set out in rule 8, and in Mr Bourne's interpretation, the benefit in respect of disablement is paid irrespective of whether the member is retired then, before or later, meaning that within the scheme, the notions of retirement benefit and disablement benefit are quite distinct. He submitted that the only apparent relationship between the disablement benefit payment and retirement in this case was that the applicant retired on 27 April 1990 and was paid the benefit on 30 April 1990. He also referred to the Superannuation booklet and submitted that there is a clear distinction made therein between retirement benefits and disablement benefits, as the two appear as alternatives to each other.
first limb of paragaph (b) of the section 4 (sa) definition

In respect of the s4 definition of SA, Mr Bourne initially submitted that part (a) of the definition is not applicable, as the scheme itself does not identify those portions of the total sum which are attributable to contributions from whichever source. He referred to rule 5 of the deed rules and submitted that there is only a calculation of a total single lump sum payment, without identifying the components of the payment. In that event, he submitted that the Tribunal should approach the matter under the first limb of paragraph (b) of the s4 definition of SA and make an assessment of which parts of the lump sum payment are attributable to the Commonwealth.
The applicant's initial contention was that the only component of the lump sum which should be considered for the purposes of the SA is the employer contribution of $25,697.08. Mr Bourne's primary submission was that in relation to the insurance amount, pool of funds amount and self insurance amount of the lump sum, the Tribunal must consider whether on the evidence available, that some, and if so, what portion of each is attributable to the employer's contribution. In that regard, he submitted that it is open to the Tribunal to find that in the absence of positive evidence of attributability, the Tribunal is still capable of making an assessment under the first limb of paragraph (b) of the s4 SA definition. That assessment would then be that the Tribunal is not satisfied, with respect to those components, that there is any amount attributable to the employer contribution.
Mr Bourne further submitted that the words "lump sum" in the context of the s4 definition of SA refer to the lump sum of the employer's contribution only. He submitted that the employer contribution is the only amount which can be said to be "attributable to contributions made by the Commonwealth, Commonwealth authority or licensed corporation". In his submission, neither the employee nor the employer is involved in taking out the insurance policy aspect of the payment. It is the superannuation fund, through the trustees, that has taken out insurance with AMP, resulting in that part of the payment ($182,118) being from the insurer (AMP Insurance) and being paid into AMP Administration of Superannuation (T25/114). It is not therefore a payment having any relationship to the Commonwealth. He submitted that the whole purpose of the insurance provision in the policy is to meet the shortfall between employer and employee contributions, and any entitlement flowing under the policy. The word "attributable" in his submission, requires a close and direct link between the component that is paid, and a particular contribution that results in that component of the benefit payment. In this case, only the employer component of the payment, being $25,697.08 is capable of being attributed in the relevant and meaningful sense to employer contributions, the remainder being either employee or AMP provided components. In response to questions from the Tribunal he submitted that the fact that contributions were made by the employer and the employee to generate the policy does not, in itself, provide a direct link between the lump sum amounts and contribution sufficient to be considered to be "attributable to". He referred in particular to the insurance component provided by AMP, and submitted that that component is attributable to the fact that the employee and employer contributions were inadequate to meet the benefit liability. He considered that "attributable to" could only be satisfied in respect of the components of the lump sum (excluding the employer contribution component) if the Tribunal were satisfied that part of all of those components are funds generated by the employer contribution.
second limb of paragraph (b) of the section 4 (sa) definition
Mr Bourne submitted in the alternative that if the Tribunal did not consider that such an assessment could be made, it could apply the words "as the case requires" appearing at the end of the definition of SA in s4 and make an appropriate calculation. In that event, he made submissions as to proportionality, taking into account the ratio of employer and employee contributions. He submitted that the Tribunal should then consider the application of a ratio of employer/employee contributions to the pool of funds amount. Of the contributions that were made by the employer and the employee, Mr Bourne submitted that 72.68 percent of the total employer/employee contributions were made by the employer, and 27.32 percent made by the employee. He considered that no more that 72.68 percent of the identifiable components could be attributed to employer contributions. These percentages were calculated by adding the applicant's contributions of $9,660.75 to the employer contribution of 25,697.08 and calculating what percentage of that whole amount each individual amount is. The figures were taken from the letter to the respondent from AMP Financial Services dated 15 June 1999 (T25). He considered that one can assume that both employer and employee contributions are pooled by the trustees on behalf of the superannuation plan on the basis of clause 3 of the deed.
Mr Bourne submitted that even were the Tribunal to consider that the superannuation pool of funds, concomitant interest or either of the insurance amounts were attributable to the employer's contributions, it could only be to the extent that the employer's contributions exceed the applicant's contributions, requiring a proportionate analysis of those components, taking into account the 72.68/27.32 breakdown in contributions. If those amounts were to be included as part of the lump sum, the Tribunal would need to exclude that part of each payment that relates to the employee contribution. In relation to the employer contribution of $25,697.08, he submitted that there is nothing to indicate that that figure is not all inclusive, meaning that it includes both the minimum requirements and the additional components as required by the deed.
In response to the Tribunal's postulation that of the AMP Group life portion, being the $182,118 part of the lump sum, one could assume that some of it came from employer contributions and some from employee contributions, Mr Bourne said "that is certainly an analysis that is open to the Tribunal on the evidence" (Transcript p57). In further written submissions he submitted that there is no evidence that AMP Group life cover was funded by the airline superannuation scheme. He further submitted that the letter of 20 October 1989 (Exhibit A2) is to the effect that the AMP Group life fund is clearly not funded by the superannuation scheme.
The pooled funds figure of $87,519.17 is not identified as to source, and in that event, Mr Bourne submitted that that amount cannot be attributed in a relevant sense to the contributions paid into the fund by the employer. He submitted that there is no evidence to suggest that the pooled funds were anything but the interest and investment return on the combined pooled contributions of the employee and employer. In further written submissions he submitted that this pooled fund should be apportioned according to the ratio of contributions by applicant and employer, resulting in the figures of $63,608.93 being the percentage funded by the employer, and $23,910.24 being that funded by the employee. The total amount attributable to employer contributions in the applicant's submission is therefore $139,306.01, inclusive of that employer portion of the $87,519.17, the $50,000 amount and the $25,697.08 amount.
double dipping
Mr Bourne submitted, to the extent that s21 of the Act is intended to exclude double dipping, by reference to the definition of SA in s4 of the Act, double dipping is only with regard to the employer contribution funded aspect of the superannuation. In his submission the fact that a worker might be better off because of other benefits received from the Commonwealth such as insurance benefits or Centrelink payments is immaterial, as s21 is only concerned with double dipping by reference to the SA as defined. In response to questions from the Tribunal he considered that in the circumstance where a person took out a private insurance policy and later became permanently incapacitated and eligible for worker's compensation, a reasonable person would not consider it to be double dipping to access both funds.
respondent's submissions
applicability of section 21 of the act
Mr Howe submitted on behalf of the respondent that it is a matter of common sense that the applicant's employment came to an end as a result of him being totally and permanently disabled from employment, and that this resulted in the receipt of the lump sum benefit. He submitted that in this scenario, the phrase "as a result of" as it applies in subsection 21(1) of the Act was satisfied, as there is a causational link between the payment and retirement (citing Koorang Cement Pty Ltd v Bates (1994) 35 NSWLR 452). In his submission, it does not matter whether the cause of retirement is reaching 65 years of age or disablement, the fact of retirement and proximate payment of benefit attracts the attention of s21 of the Act. The very concept of total and permanent disablement contemplates the inability to perform duties of employment and involves the necessity for the employment to come to an end.
Mr Howe referred the Tribunal to the benefits advice form (ST3/25) to indicate that the plan contemplates the existence of a normal retirement age and an annual salary for superannuation purposes and that sub-clause 23(4) of the deed (ST4/43) illustrates that the very notion of entitlement to benefits is predicated upon the cessation of service with the employer. He also noted clause 30 of the deed (ST4/45) which provides that benefits cannot be more than those payable under the Superannuation Act 1976, meaning that if benefits were payable under the scheme whilst the employee remained in employment, that scheme would be more beneficial than that under the Act. He further referred the Tribunal to sub-rule 4(2) of the deed rules and sub-rule 10(2) which contains the qualification that payment of a lump sum benefit in respect of total and permanent disablement is not payable while the member is still in the service of the Commission. He submitted that by this provision, rule 10 establishes a necessary nexus between disablement and cessation of employment. He further referred to the Supreme Court judgment resulting from the common law proceedings arising from the motor vehicle accident (T8), noting the passages wherein the learned Judge states (T8/46 and 52-53):
"…
The plaintiff, as a result of his injuries, was … totally and permanently disabled in respect of his employment as a maintenance engineer…
…
There is no doubt that, as a result of the injury sustained by the plaintiff in the accident, he has been forced from a highly paid position to his present employment which carries a substantially lesser salary. His superannuation entitlement has also been markedly affected…
…"
In the above circumstances, Mr Howe submitted that there can be no doubt that the applicant received a lump sum benefit as a result of his retirement.
first limb of paragaph (b) of the section 4 (sa) definition
Mr Howe submitted that paragraph (a) of the definition of SA in s4 of the Act requires that one must be able to discern from the terms of the trust deed whether the scheme identifies that part of the lump sum benefit which is referable to employer contributions, and agreed that the scheme does not identify the contributions for the purposes of paragraph (a).
Mr Howe's primary submission was that assessment under the first limb of paragraph (b) of the definition was not possible due to the lack of definition of the lump sum, such that the second limb of paragraph (b) should be applied.
Mr Howe rejected the applicant's characterisation of the insurance arrangement between the employer and AMP and submitted that it is the employer who purchases the policy and contributes the premiums, such that any end payment is as a result of the contribution of premiums to the scheme. The AMP merely pays on the policy pursuant to the terms of that policy which is purchased by the superannuation fund through the trustees, through employer contributed funds. He submitted that the terms of the trust deed make clear that the policy itself was an investment that the trustees of the fund could make of funds in the superannuation plan. This means that the payment by AMP is in fact the return on the investment made by the trustees of the superannuation plan.
Mr Howe submitted that the word "attributable" embraces those amounts which flow from the employer contributions and agreed with the Tribunal that the word has a causative connotation (Transcript p63). He submitted that the amounts attributable to the employer funds comprise both the direct contributions made and any funds derived therefrom.
Mr Howe referred to page 5 of the superannuation booklet (ST1/2) in support of his submission that the superannuation plan recognises that the airline ultimately pays the benefits, by way of the trust deed. He referred to those sections concerning disablement benefits, and submitted that save and except for the employee contribution, it is clear from the explanatory material that there is an expectation that the employer will fund the disablement lump sum benefit (noting in particular page 9 of the second booklet (ST2/11) where it is indicated that employee contributions are limited to 5% of salary and that "Australian Airlines will pay the balance of the cost of providing the benefits").
Mr Howe referred to clauses 2.1, 3.1, 3.2 and 3.4 of the deed, noting that provision is made for the Commission to pay additional sums, that the trustees can arrange for the benefits to be funded wholly or partly from either the AMP policy or from investments and that whenever a benefit is payable the trustees shall receive from AMP the amount payable under any policy that is purchased as an investment, to support his submission that the trustees of the plan had control over the employer contributed funds, and that such funds were not remotely supplied by AMP acting independently. He further referred to rule 3.3 of the rules accompanying the deed, noting that the employer must, in addition to direct contributions and additional sums, contribute the balance of the amount required to fund the benefit after the payment of the member contributions. He submitted that it is very difficult, having regard to the provisions of the deed, to make any sensible assessment of the ultimate source of the funds payable to a member on his or her total and permanent disablement. Due to this inability to determine what components of the various amounts comprising the lump sum result from either employee, employer or third party sources, Mr Howe submitted that the first limb of paragraph (b) is clearly not applicable, as the Tribunal would only be hypothesising as to whether or not the components were attributable to the employer.
Mr Howe submitted that the only part of the lump sum which can be clearly identified for the purposes of the first limb of paragraph (b) is the employee contribution, and that if the Tribunal makes an assessment under the first limb, then that employee figure would be the only amount which can be excluded from the lump sum for the purposes of calculating the SA. In further written submissions he submitted that if the first limb of paragraph (b) of the definition is held to apply by the Tribunal contrary to the respondent's submissions, then the employer attributable contributions comprise $25,697.08, $63,608.93 (being 72.68% of $87,519.17), $50,000 and $132,363.36, (being 72.68% of $182,118), totalling $271,669.37.
second limb of paragraph (b) of the section 4 (sa) definition
Mr Howe submitted that in this case it is not possible to assess what proportion of the overall lump sum was attributable to employer contributions. In that eventuality the legislature intends by the second limb of paragraph (b) of the section 4 SA definition that the whole of the lump sum comprises the SA. This arises as a result of the lump sum being indivisible, meaning that no separate allowance can be made for the employee and employer contributions with the result that the employer attributable contributions are $354,995. In his written submission however, he concluded that that figure should be "less, perhaps, the applicant's contributions of $9,660.75" (at page 3).
Mr Howe submitted that it is not possible to say in relation to the $50,000 figure whether or not that contained any employee contribution, or whether it was entirely employer funded. He submitted that the $87,000 figure remains a "mystery" and that in that event, the Tribunal cannot reach a sensible assessment under the first limb of paragraph (b) of the section 4 definition of SA, meaning that the whole of the lump sum must be regarded as the SA.
Mr Howe contended that the letter from AMP Australia to Australian Airlines dated 20 October 1989 (Exhibit A2) does not enable an assessment to be made of that portion of the lump sum attributable to employer contributions. He maintained that it is impossible to assess what contributions were made by the employer to the group life pool of funds which is represented by the $182,118 figure, but that that pool was clearly comprised at least in part of direct and indirect contributions by both employer and employee. He submitted that the phrase "as the case requires" in paragraph (b) of the section 4 SA definition does not confer a general discretion on the Tribunal to hypothesise by reference to general notions of 'fairness', but refers more particularly to whether or not the superannuation payment was received as a pension or as a lump sum.
double dipping
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).
The Tribunal can see no reason why "identifies" should not be given its ordinary plain meaning. The Macquarie Dictionary defines "identify" as "1. To recognise or establish as being a particular … thing"; and the New Shorter Oxford English Dictionary relevantly defines it as "establish … what a given … thing is." And so it is apparent that a high degree of particularity or certainty is involved in the process of identifying a part of the lump sum benefit "as attributable to" the contributions made under the scheme by the employer. The latter words involve some causal connection between part of the lump sum on the one hand with the employer's contributions to the scheme on the other. The Tribunal has formed the view that the connection need not be sole or direct. A contributory causal connection would suffice. In reaching this conclusion the Tribunal has utilised the absence of such words as "caused by", "directly linked to" in place of "as attributed to" in the legislation coupled with the assistance gained from a consideration of the latter words by Toohey J in Law v Repatriation Commission (1979-80) 29 ALR 64 at 72.
The connotation of certainty and particularity implicit in the word "identifies", coupled with the fact that paragraph (a) of the subject definition commands that it is the superannuation scheme itself which must do the identifying, leads the Tribunal to conclude that paragraph (a) is not applicable on the material before it. The Tribunal is in agreement with the respondent's submissions in this regard.
The Tribunal now turns to a consideration of paragraph (b) of the definition of superannuation amount. Many and varied are the submissions which have been made by the parties with respect to which aspect of paragraph (b) is applicable. At the outset, the Tribunal would indicate that Parliament clearly gave thought to providing different ways of arriving at the relevant part of the lump sum benefit which is attributable to the employer contributions.
If paragraph (a) is not applicable as the Tribunal finds that it is not then paragraph (b) provides two other means of arriving at the superannuation amount. The first is by way of assessment, whereas the second is (if assessment cannot be made) the amount of the lump sum received by the employee. It is clear also from the plain wording of paragraph (b) that the use of the words "as the case requires" refers to these two alternatives, the first of which the Tribunal now turns to.
At the outset, the Tribunal would indicate that in relation to paragraph (b), It is not only the concept of assessment which is applicable, but assessment by the relevant authority ie, the respondent and this Tribunal on review, whereas if paragraph (a) is applicable, then it is the scheme itself which identifies a part of the lump sum as attributable to the contributions made under the scheme by the Commonwealth (the employer). The picture which emerges is that of an assessment taking place where the scheme does not identify and where, in turn, assessment is not possible, then Parliament has deemed that the whole amount of the lump sum is to be taken to be the superannuation amount. In this latter regard, the Tribunal agrees with the respondent's submissions. Parliament has made it clear that if the scheme identifies a part of the lump sum as attributable to the employer contributions, then that is the superannuation amount for the purposes of s.21. However, where it is not identifiable then an assessment must be made and where that is not possible then the last resort is to take the whole of the lump sum as being the superannuation amount in question.
What meaning then should be given to the word "assessment", having regard to its context, the purpose of the section in its context within the Act against the background of the purpose of the Act? The ordinary meaning of "assessment" is "Evaluation, estimation; an estimate of worth, extent, etc" (The New Shorter Oxford Dictionary). It is clear from its context both within the definition of "superannuation amount" and s.21 of the Act that assessment has the meaning of estimation. This is the meaning which the Tribunal adopts.
And so the Tribunal now turns to whether or not the amount of the part of the lump sum attributable to the contributions made under the scheme by the employer can be estimated. The Tribunal's considered view is that this question is to be answered in the affirmative for the following reasons. At the outset, what is clear is that the total lump sum benefit received by the applicant comprises five different amounts of money. Two of these relate to the contributions made by the employer and the applicant as employee. These are the only sums of money which can be utilised in the particular scheme before the Tribunal for the purposes of investment. The investment section of the relevant deed makes clear what these investments can be and include any investment authorised by law for the investment of trust funds, shares and the like, and any type of policy effected with an insurer (ST4/38,39):
"INVESTMENTS
14.(1)The Trustees may, in their name or under their control, invest the whole or any part of the moneys or assets of the Plan not required for the immediate purposes of the Plan in any one or more of the following forms of investment with power from time to time to sell, vary, transpose, convert or for the purposes of obtaining temporary finance borrow against any of the investments of the Plan PROVIDED THAT loans to Members are hereby expressly excluded:
(a)any investment authorised by law for the investment of trust funds;
(b)the purchase of or subscription for shares, stock, debentures or securities of any kind in any company incorporated in any part of the world whether or not carrying on business in Australia and whether those shares, stock, debentures or securities are fully or partly paid up;
(c)deposits at call or otherwise with any bank, Insurer or financial institution;
(d)a Superannuation policy or any other type of policy effected with an Insurer and in the payment of premiums thereon;
(e)any other form of investment without being limited by any of the foregoing which could be made by the Trustees if acting personally and not as Trustees.
(2) The Trustees may appoint in writing on such terms as they see fit one or more corporate bodies persons or organisations to act as Investment Trustee on behalf of the Trustees in regard to the purchase sale administration or retention of and the dealing in any or all of the investments or the Plan whether in the name of that Investment Trustee or otherwise provided that the Investment Trustee undertakes in writing to hold the investments made from the moneys of the Plan in trust for and on behalf of the Trustees PROVIDED THAT the Trustees may revoke or vary any such appointment subject to the terms of any agreement entered into by the Trustees with any such Investment Trustee."
Whilst it is clear in the delineating of the 5 amounts (T23/111-114) comprising the lump sum benefit as to the origin of each amount, what is not clear is as to what connection there is as between the employer's contributions (and for that matter the applicant's contributions) and any one or more of the other 3 amounts comprising the lump sum benefit. This, however, does not prevent an appropriate assessment in the opinion of the Tribunal. The relevant deed obligates as follows (ST4/31,32):
"APPLICATION OF CONTRIBUTIONS
3.(1) All amounts forming part of the Plan shall be held in trust by the Trustees and the contributions by and in respect of the Members shall be applied to provide the benefits referred to in this Deed and the Rules for or in respect of the Members.
(2)The Trustees shall arrange for benefits to be funded in whole or in part by means of the investment authorised by this Deed and in whole or in part by means of a Policy of such form as is from time to time agreed upon by the Trustees and the AMP and the Trustees shall from the moneys in their hands available for this purpose pay to the AMP the premiums under the Policy.
(3)Payments made with the concurrence of the Trustees by the Commission to the AMP in connection with the Plan shall be deemed to have been paid by the Commission to the Trustees and by the Trustees to the AMP.
(4)When for any reason a benefit becomes payable (whether in a lump sum or otherwise) to or in respect of a Member in accordance with this Deed and the Rules the Trustees shall subject to the terms and conditions of the Policy receive from the AMP the amount so payable.
(5)If in respect of the funding of any benefits under the Plan amounts are invested other than in payment of premiums under the Policy the investments and the proceeds thereof shall be held upon the same trusts as those relating to the benefits funded by means on the Policy and the provisions of this Deed and the Rules shall mutatis mutandis apply to those investments and proceeds."

The above obligation must be viewed in the light of the fact that the only incoming monies are from the employer and the employee. The sole source of funding to invest emanates only from the employer and employee by way of contributions. It is that money that is then utilized by way of investment and which then results in the payment of the appropriate benefit. And so what is clear is that there must be said to be in relation to a particular benefit received by an employee a causal connection between the benefit and what the employee and employer contributed. In other words, the contributions, plus the investment process pursuant to the deed, equals the ultimate benefit received by the employee. The material before the Tribunal does not indicate how much of the employee's or employer's contributions were put into any particular investments of the scheme and when one takes into account the many people making contributions and the changing nature of investments as time goes by that is understandable. However, what is known is the actual amount of the contributions made by both the employer and employee and the amount of the ultimate lump sum benefit. Common sense accords and fairness dictates that the appropriate form of assessment, ie estimation and one which Parliament must have had in mind, is for the part of the lump sum that is to be attributable to the contributions made by the employer is to be the proportion of the lump sum equivalent to the proportion of contributions made by the employer, ie 72.677% of $354,995, namely $258,000.

Accordingly, 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 Act is set aside and in substitution therefor it is decided that the superannuation amount for that purpose is $258,000.
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.
I certify that the 54 preceding paragraphs are a true copy of the reasons for the decision herein of Deputy President B.H. Burns
Signed:         ..................………................….
  DM Walkley (Personal Assistant)
Date/s of Hearing  28 August 2000
Date of Decision  18 April 2001
Counsel for the Applicant        Mr T Bourne
Solicitor for the Applicant         Bourne Lawyers
Counsel for the Respondent    Mr T Howe
Solicitor for the Respondent    Sparke Helmore