Re Navratil and Secretary, Department of Family and Community Services
[2002] AATA 452
•14 June 2002
DECISION AND REASONS FOR DECISION [2002] AATA 452
ADMINISTRATIVE APPEALS TRIBUNAL )
) No Q2002/36
GENERAL ADMINISTRATIVE DIVISION )
Re PATRICIA NAVRATIL
Applicant
And SECRETARY, DEPARTMENT OF FAMILY AND COMMUNITY SERVICES COMCARE
Respondent
DECISION
Tribunal Mr R G Kenny, Member
Date14 June 2002
PlaceBrisbane
Decision The Tribunal affirms the decision under review.
..................(Sgnd)......................
R G Kenny
Member
CATCHWORDS
SOCIAL SECURITY – lump sum compensation payment – "payment by way of compensation" – compensation affected payment – lump sum preclusion period and calculation thereof – whether amount foregone by insurer part of lump sum –retrospective operation of provisions
Social Security Act 1947 (Cth) s 152
Social Security Act 1991 (Cth) ss 17(1),(2),(2B),(3),(4); 1165(1A),(5),(8),(9); 1184(1)
Social Security Legislation Amendment Act (No 1) 1995 (Cth)
WorkCover Queensland Act 1996 (Qld) s 10
Department of Social Security v Banks (1990) 20 ALD 19
Fisher v Hebburn Ltd (1960) 105 CLR 188
Maxwell v Murphy (1957) 96 CLR 26
Re Nolan and Secretary, Department of Family and Community Services [2000] AATA 361
Reid v Secretary, Department of Family and Community Services (2001) 33 AAR 269
Robertson v City of Nunawading [1973] VR 819
Re Secretary, Department of Social Security and Kilinc (1993) 19 AAR 58
Secretary, Department of Family and Community Services v Reid (2000) 32 AAR 347
REASONS FOR DECISION
14 June 2002 Mr R G Kenny, Member
The Application
On 30 May 2001, Patricia Navratil (the applicant), her former employer, Brisbane North Hospital Regional Health Authority, and Workcover Queensland (WorkCover) entered into a Deed of Discharge in respect of a claim for compensation by her in relation to a workplace injury sustained by her on 19 June 1993. In accordance with that deed, she was to receive a lump sum payment of $110,000.
The applicant had been paid periodic compensation payments from WorkCover after her injury until 13 December 1994 and then disability support pension from the Department of Social Security. On 25 May 2001, Centrelink claimed recovery of an amount of $22,324.39 from WorkCover, representing the disability support pension payments paid by Centrelink to the applicant from 13 December 1994 until 30 June 1997. Centrelink's calculations of that recovery amount were based on 50% of a total of $183,736.67 less the periodic WorkCover payments of $33,007.40. The final amount comprised the applicant's lump sum payment of $110,000 together with previous WorkCover payments for expenses totalling $40,729.27. Centrelink applied the formula, as provided for in the relevant provisions of the Social Security Act 1991 (the Act) (see below), to that sum. It determined that a preclusion period of 133 weeks was applicable to the applicant and that this equated with the amount of $22,324.39 claimed from WorkCover.
Centrelink's decision was affirmed on 13 December 2001 by the Social Security Appeals Tribunal and, on 15 January 2002, the applicant sought review of that decision by the Administrative Appeals Tribunal (the Tribunal).
AppearancesThe applicant did not attend the hearing but was represented by her solicitor, Mr S McGhie. Mr R McQuinlan appeared on behalf of the Secretary, Department of Family and Community Services (the respondent).
At the hearing, the following material was taken into evidence from:
the applicant:
exhibit 1 – documents prepared in accordance with section 37 of the Administrative Appeals Tribunal Act 1975 (the T documents: T1–T31); and
exhibit A1 – a statement from the applicant;
the respondent:
exhibit R1 – documents comprising a statement of facts and contentions dated 22 March 2002; an undated WorkCover letter; a Deed of Discharge between the applicant, Brisbane North Hospital Regional Health Authority and WorkCover dated 30 May 2001; and Payment Details of Claim from WorkCover.
Issues, Legislation and Background
The Act makes provision for Centrelink to impose a period of preclusion from receipt of income support payments in certain situations where a person has received lump sum compensation for an injury. The provision relevant to the determination of a preclusion period in this case reads:
"1165(1A) If:
(a)a person receives or claims a compensation affected payment; and
(b)the person is not a member of a couple; and
(c)the person receives a lump sum compensation payment (whether before or after the person receives or claims the compensation affected payment) on or after 20 March 1997;
no compensation affected payment is payable to the person for the new lump sum preclusion period."
The term "compensation affected payment" is defined in sub-section 17(1) of the Act and includes disability support pension. The term "lump sum compensation payment" is not defined in the Act but the term "compensation" is defined in sub-section 17(2) which reads:
"17(2) 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 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."
Since its amendment in 1995, the Act has made provision for separate lump sum payments made to a person in relation to injuries arising from the same event to be treated as a single sum. In that regard, sub-section 17(2B) of the Act reads:
"17(2B) For the purposes of this Act, if:
(a) a person receives more than one lump sum payment, whether simultaneously or at different times, in relation to one or more injuries arising from the same event (see subsection (5A)); and
(b) at least one of the payments is made wholly or partly in respect of lost earnings or lost capacity to earn;
the person is taken to receive one lump sum compensation payment, made wholly or partly in respect of lost earnings or lost capacity to earn, of an amount equal to the sum of those lump sum payments."
The component of the lump sum that may be taken into account is referred to as the "compensation part of a lump sum" which term is defined in the Act as follows:
"17(3) 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; or
(ab) 50% of the payment if the following circumstances apply:
(i) the payment represents that part of a person's entitlement to periodic compensation payments that the person has chosen to receive in the form of a lump sum; and
(ii) the entitlement to periodic compensation payments arose from the settlement (either with or without admission of liability) of a claim that is, in whole or in part, related to a disease, injury or condition; and
(iii)the claim was settled, either by consent judgment being entered in respect of the settlement or otherwise; or
(b) if those circumstances do not apply—so much of the payment as is, in the Secretary's opinion, in respect of lost earnings or lost capacity to earn.
17(3A) Paragraph (3)(d) does not apply to a compensation payment if:
(a) the recipient has made contributions (for example, by way of insurance premiums) towards the payment; and
(b) the agreement under which the contributions are made does not provide for the amounts that would otherwise be payable under the agreement being reduced or not payable because the recipient is eligible for or receives payments under this Act that are compensation affected payments."
10. Pursuant to sub-section 1165(5) of the Act, where periodic payments, as that term is defined in sub-section 17(1) of the Act, have been made, a lump sum preclusion period begins on the day after the last day of the periodic payment period. The length of that preclusion period is determined in accordance with the formula in sub-sections 1165(8) and (9) of the Act which read:
"1165(8) If a compensation lump sum is received on or after 20 March 1997, the number of weeks in the preclusion period is the number worked out under the following formula:
Compensation part of lump sum
Income cut-out amount
1165(9) If the number worked out under subsection (4) or (8) is not a whole number, the number is to be rounded down to the nearest whole number."
11. The term "income cut-out amount" is defined in sub-sections 17(1) and (8) of the Act. Also, where periodic payments have been paid and then a lump sum is paid, sub-section 17(4) of the Act applies to remove the periodic payments from the calculation of the preclusion period. It reads:
"17(4) Where a person:
(a) has received periodic compensation payments; and
(b) after receiving those payments, receives a lump sum compensation payment (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"
12. Where income support has been given during the period of preclusion, as in this case, the charge monies are able to be recovered directly from the insurer, in this case WorkCover, pursuant to the operation of the provisions in Part 3.14 of the Act.
13. The undisputed facts in this matter are as follows.
14. The applicant received periodic compensation payments from WorkCover from the time of her injury until 13 December 1994 in the amount of $33,007.40. She received income support in the form of disability support pension from Centrelink thereafter and these payments were continuing as at 30 June 1997. Pursuant to a Deed of Discharge (see exhibit R1) between the applicant, WorkCover and her former employer, she was to be paid a compensation lump sum of $110,000 (see clause 1) and her reasonable costs (see clause 2). Clause 3 of that deed reads:
"WorkCover acknowledges that it shall not be entitled to a refund out of the payments referred to in clauses 1 and 2 hereof in respect to Worker's Compensation benefits paid in relation to the injuries the subject of the proceedings in the sum of SEVENTY THREE THOUSAND SEVEN HUNDRED AND THIRTY-SIX DOLLARS AND SIXTY-SEVEN CENTS ($73,736.67)."
15. The amount of $73,736.67 referred to in clause 3 of the deed comprised the amounts listed below (and see exhibit R1) and Mr McQuinlan and Mr McGhie agreed that these amounts were paid to the applicant prior to the end of 1994. They also agreed that the amount relating to disability expenses was for loss of function in accordance with a statutory scale rather than loss of earning capacity. In particular, this was for "50% loss of bodily function due to post traumatic stress disorder" in the amount of $36,340.00 (see undated WorkCover letter at exhibit R1):
item $
weekly benefit 33,007.40
hospital expenses 0.00
medical expenses 1295.41
other expenses 2571.36
rehabilitation expenses 522.50
disability expenses 36,340.00
cost of claim 73,736.67
16. On 15 May 2001, a solicitor acting on behalf of WorkCover advised Centrelink (see T15) that the applicant's former employer was to pay the applicant the sum of $110,000 "clear of Workcover's refund". On 25 May 2001, Centrelink advised that it calculated a repayment amount on the basis of an amount of $183,736.67, this amount comprising the applicant's settlement sum of $110,000 together with previous WorkCover payments for expenses totalling $40,729.27 and the periodic WorkCover payments of $33,007.40. Applying the statutory formula and adopting $562.75 as the relevant income cut-out amount for that formula, Centrelink calculated the preclusion period to be 133 weeks and determined that this equated with the amount of $22,324.39 claimed from WorkCover.
17. The matter in issue is whether the quantum of the lump sum utilised in the application of the statutory formula, and which led to the preclusion period of 133 weeks, was correctly calculated.
Applicant's Case
18. Mr McGhie submitted that there was no basis for Centrelink to add the amounts paid to the applicant prior to settlement to the lump sum of $110,000 nominated in the Deed of Discharge. He said these monies were foregone by WorkCover and this was specifically stated in the deed and in the letter from WorkCover's solicitor so that the lump sum was paid to the applicant "clear of the WorkCover refund". He referred to the Tribunal decision of Re Nolan and Secretary, Department of Family and Community Services [2000] AATA 361 as authority for that approach.
19. Mr McGhie also submitted that the payments to the applicant, apart from the final settlement amount, were paid to her towards the end of 1994. Therefore, this meant that the nature of those payments was not changed through the operation of sub-section 17(2B) of the Act which came into effect in 1995.
20. Mr McGhie conceded that there were no relevant special circumstances which would have the effect of treating some part of the compensation payment as not having been made in this case.
Respondent's Case
21. Mr McQuinlan conceded that the case of Re Nolan and Secretary, Department of Family and Community Services (above) contained propositions of law which supported the applicant viz that the amount foregone by WorkCover should not be added to the settlement sum of $110,000. He acknowledged that the decision, that of a Senior Member of the Tribunal, had not been appealed but submitted that the decision had always been considered by the Department to have been wrongly decided on the issue of whether or not foregone sums could be included as part of the lump sum for calculating a preclusion period. He submitted that it should not be followed and that the approach adopted in that case was not consistent with the Federal Court decision of Department of Social Security v Banks (1990) 20 ALD 19 where von Doussa J said:
"The expression 'the lump sum payment...made...in settlement of a claim' is apt to describe the total amount which is payable as the monetary consideration passing from the party on whose behalf the payment is to be made to the recipient in exchange for a release from the claim."
22. Mr McQuinlan submitted that payment or consideration need not be pecuniary in nature, and may cover various methods of discharging an obligation and that this could, for example, be by a promise to undertake a particular course of action. Even so, the undertaking given by WorkCover to forego recovery of an amount otherwise recoverable constituted pecuniary consideration in the sense that there was a direct monetary benefit to the applicant. Therefore, he submitted, the amount of forebearance can properly be considered compensation for the purposes of Act.
23. Mr McQuinlan noted that, in this case, the defendant in the common law damages claim was the State of Queensland and that the insurer was also a State instrumentality, Workcover. He submitted that this was an explanation of why WorkCover did not seek to recover the monies previously paid, ie they were, in effect, the same entity. He submitted that such an approach would be very unlikely if the insurer was a private organisation because, in that situation, the monies would not have been foregone and would all be taken into account when calculating the overall quantum of the lump sum. He submitted that it was appropriate that all persons should be treated equally regardless of who the insurer was and that the only way of achieving that outcome was for the foregone component to be added in.
24. Mr McQuinlan relied on the terms of sub-section 17(2B) of the Act for aggregating all of the payments to the applicant into a single sum. He submitted that the provision was enacted by amendments to the Act in 1995 and also that the purpose of the amendment was to overcome the approach adopted by the Tribunal in a series of cases, including Re Secretary, Department of Social Security and Kilinc (1993) 19 AAR 58, which did not include, as being part of the compensation lump sum, any payment which was not made for the purpose, wholly or partly, in respect of lost earnings or lost capacity to earn. He conceded that the payments to the applicant, apart from the final settlement amount, were paid to her towards the end of 1994 but submitted that, nevertheless, they were to be taken into account under the provision.
Consideration
25. Many of the facts in this case are not in dispute and I find them to be as set out in paragraphs 14 to 17 of these reasons.
26. The purpose behind the introduction of the application of a formula to lump sum payments made in the settlement of a claim, as in this case, for common law damages, has been frequently stated and, in Department of Social Security v Banks (above), von Doussa J referred to the abuses of earlier compensation recovery provisions by manipulation of settlements to obscure the economic loss component in the compensation payment. The effect of the provisions of the Act outlined above is to deem 50% of a lump sum payment to be the compensation part and to have been made in respect of lost earnings or capacity to earn.
27. In the Banks case, the court was applying sub-section 152(2) of the Social Security Act 1947 and, after noting that the term "lump sum" was not defined in that Act, von Doussa J said (at 24-25):
"A 'lump sum' payment is simply one which includes a number of items. Where a payment by way of compensation consists of the aggregate of several amounts which could have been paid separately or at different times the payment is one of a lump sum. A payment the total of which is arrived at by adding amounts for different heads of loss would also be a lump sum payment. A 'payment by way of compensation' as defined in s152(2)(a) includes periodic payments. A 'payment by way of compensation' need not be a final payment. There could be a 'lump sum payment by way of compensation' attracting the provisions of s152(2)(c) which did not have the characteristic of a final payment intended to conclude the liability of the party on whose behalf the payment is made. Thus, the provisions of s152(2)(c)(ii) could apply to an interim assessment of damages made under s30b of the Supreme Court Act 1935 (SA).
A notion of finality however is introduced in s152(2)(c)(i) by the requirement that the lump sum payment be one 'in settlement of a claim...'. The expression 'the lump sum payment...made...in settlement of a claim' is apt to describe the total amount which is payable as the monetary consideration passing from the party on whose behalf the payment is to be made to the recipient in exchange for a release from the claim. The reference to a judgment by consent in cl (A) of subpara (i) provides a further guide to the broad meaning of the expression 'the lump sum payment'. Where a judgment is entered, the underlying claim or cause of action merges in the judgment. The judgment sum in the case of a payment by way of damages on a claim that includes a claim related to disease or injury, will usually be a once and for all amount paid in discharge of all legal liability of the defendant. In subpara (i) a 'lump sum payment...in settlement of a claim' is a compendious expression encompassing the total amount paid in settlement of the claim. However the expression 'settlement of a claim' in s152(2)(a)(i) does not necessarily require that the payment be in settlement of all claims between the recipient of the payment and the party on whose behalf it is made..."
28. The provision under consideration in that case was essentially the same as sub-section 17(2) of the Act where the term "lump sum" is still not defined. The judgement of von Doussa J is concerned with what constitutes a lump sum. Clearly, the settlement amount of $110,000 constitutes a lump sum in this case. The amounts which made up the sum foregone by WorkCover, apart from that relating to periodic payments, may also comprise one or several lump sums.
29. Not every lump sum that a person receives constitutes a lump sum compensation payment. For that to be so, it must come within the meaning of one of paragraphs (a) to (d) of the definition of "compensation" in sub-section 17(2) of the Act. That provision is set out above and the categories in that provision are:
(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.
30. The settlement amount of $110,000 falls within paragraph 17(2)(c). The periodic sums are not to be taken into account but the other amounts, ie those for hospital, medical, rehabilitation and disability expenses, respectively, come within paragraphs 17(2)(b) or (c) of the Act as payments under a scheme of insurance. However, that, by itself, would not be sufficient for them to fall within the ambit of sub-section 17(2) because paragraph (e) of that provision additionally requires that a payment be made "wholly or partly in respect of lost earnings or lost capacity to earn" before sub-section 17(2) of the Act has application. That description applies to the settlement sum of $110,000 but is not applicable to the various forms of payments made to the applicant for those hospital, medical, rehabilitation and disability expenses.
31. In Re Nolan and Secretary, Department of Family and Community Services (above), the facts were not materially different from those of the present case. There, by Deed of Discharge, the employer and WorkCover agreed to pay the sum of $70,000 to Mr Nolan and, in a clause identical to that in the present case, acknowledged that it was not entitled to a refund of the following previously paid sums:
item $
weekly benefit 24,293.00
hospital expenses 4,632.00
medical expenses 9,689.00
other expenses 854.00
rehabilitation expenses 2,070.00
disability expenses 7,268.00
cost of claim 48,807.00
32. The Senior Member noted von Doussa J's comments but held that the term "lump sum" did not extend to the amount of $48,807.00 which had been foregone by WorkCover and said (at paras 38 and 39):
"38. I have a different view of the dicta of von Doussa J to that put for the applicant. When his Honour said at page 25 that the expression lump sum payment made in settlement of a claim is apt to describe the total amount which is payable as the monetary consideration passing from the party his Honour was referring to, on the facts of this case, the $70,000 payable under the deed of discharge. By referring to monetary consideration I do not understand his Honour to be referring to a waiver of a charge. Nor, with respect, do I think the words "payment in settlement of a claim" can embrace waiver of a charge not involving a payment to, in this case, the respondent.
39. Even if I be wrong in this I take the view that it would be contrary to the intention of the legislation that expenses for medical, hospital and rehabilitation treatment incurred by WorkCover Queensland during the period the respondent was on periodical compensation payments and in respect of which WorkCover has a right to recover from an award of damages etc should be deemed to be a portion of a compensation payment to the respondent. There is no question of any payment to the respondent or on behalf of the respondent; the expenditure relates to a period outside any lump sum preclusion period because of the operation of section 17(4) of the Act and the expenditure was incurred by the Workers' Compensation Board in the course of performing its statutory functions and because the respondent was injured in the course of his employment. While there is a benefit to the respondent that the expenditure was incurred it was incurred for the purpose of statutory obligations. Different considerations apply in relation to the disability settlement payment. That is a separate lump sum compensation payment for the purposes of the Act and for which a lump sum preclusion period would apply if the payment included compensation for lost earnings or economic loss. It did not. It follows that no issues arises in relation to the payment of that amount to the respondent by the Workers' Compensation Board in 1995. To now seek to take that amount into account again, as the applicant does, must be seen to be 'double dipping'."
33. I agree with that reasoning in relation to the nature of the payments made prior to the parties entering into the Deed of Discharge as being related to the discharge of statutory obligations of WorkCover. These obligations in relation to compensation are set out in Chapters 3 and 4 of the WorkCover Queensland Act1996 (the WorkCover Act) and the term compensation is defined in section 10 of that Act in terms quite different from those of sub-section 17(2) of the Act. Section 10 of the WorkCover Act reads:
"10. 'Compensation' is compensation under this Act, that is, amounts for a worker's injury payable under chapters 3 and 4 by WorkCover or a self-insurer to a worker, a dependant of a deceased worker or anyone else, and includes compensation paid or payable under a former Act."
34. The types of payments under the WorkCover Act may relate to disability expenses and injury management matters such as hospital, medical, and rehabilitation expenses. Such payments are not made "wholly or partly in respect of lost earnings or lost capacity to earn". They are unrelated to earnings. Payments are also able to be made for weekly earnings under Chapter 3 of the WorkCover Act but it is not disputed that these are to be disregarded in calculating a preclusion period under the Act because of the operation of sub-section 17(4) thereof.
35. Despite my conclusion that the payments for hospital, medical, and rehabilitation expenses may be characterised as being for the discharge of the statutory obligations of WorkCover rather than as actually being in relation to lost earnings or lost capacity to earn, this does not mean that they fall outside the ambit of consideration when calculating a preclusion period. Whilst a single payment must meet the definition of "compensation" in sub-section 17(2) of the Act, that is not so for payments previously made. That is the effect of sub-section 17(2B) of the Act. It refers to the receipt of more than one lump sum payment in relation to an injury for the same event. In this case, it is not disputed and I so find that there was but the one event which, under sub-section 17(5A) of the Act, was the applicant's accident.
36. Where sub-section 17(2B) of the Act is satisfied, that provision deems the person to have received one lump sum comprising the total of the individual amounts. It deems that aggregate amount to be one "lump sum compensation payment, made wholly or partly in respect of lost earnings or lost capacity to earn". Therefore, even though the payments for hospital, medical, and rehabilitation expenses were not actually for the purpose relating to lost earnings or capacity to earn, they will be deemed to have been received for that purpose by sub-section 17(2B) of the Act provided that provision has application.
37. Sub-section 17(2B) of the Act was enacted with effect from 1 July 1995 by the Social Security Legislation Amendment Act (No 1) 1995 (Act No 104 of 1995) and was intoduced, as the Explanatory Memorandum indicates, to overcome a trend in compensation cases decided by the Tribunal whereby the compensation recovery provisions were avoided by splitting compensation settlements into two or more payments, only one of which (usually relatively small) was expressed to represent lost earnings or earning capacity: see Re Secretary, Department of Social Security and Kilinc (1993) 19 AAR 58 which was referred to in that Memorandum as an example of the trend.
38. Sub-section 17(2B) of the Act was not in operation in 1994 when the payments totalling $40,729.27 were made to the applicant. The applicant has submitted that to apply the provision in this case would be to apply it retrospectively. There is a well established presumption against giving legislation a retrospective effect when to do so would impact on acquired rights: see Maxwell v Murphy (1957) 96 CLR 261 per Dixon CJ at 267 and Fisher v Hebburn Ltd (1960) 105 CLR 188 per Fullagar J at 194. However, to apply sub-section 17(2B) of the Act to sums received prior to July 1995 is not to give the provision retrospective effect. The sums have been received and the applicant's right to those sums does not change. Rather, it is the characterisation of the purpose for which those sums were received that is changed by the provision which deems them to have been made wholly or partly in respect of lost earnings or lost capacity to earn. The provision is remedial in nature and to limit its operation to sums paid after the commencement would require the inclusion of qualifying words into paragraph 17(2B)(a) so that it would read:
"If a person receives more than one lump sum payment, whether simultaneously or at different times after July 1995…"
There is no justification for importing that limitation into the provision which, rather than impacting on acquired rights, takes account of past events as criteria for making an adjustment to future payments. A similar analysis was applied, in relation to section 1163A of the Act, by von Doussa J in the Federal Court in Secretary, Department of Family and Community Services v Reid (2000) 32 AAR 347 at 354. This was affirmed by a majority of the Full Federal Court (Branson and Mansfield JJ; Lindgren J dissenting) in Reid v Secretary, Department of Family and Community Services (2001) 33 AAR 269. There, the majority noted the following comment of the Victorian Supreme Court in Robertson v City of Nunawading [1973] VR 819 at 824 in relation to the principle that legislation is presumed not to operate retrospectively:
"The principle is not concerned with the case where the enactment under consideration merely takes account of antecedent facts and circumstances as a basis for what it prescribes in the future, and it does no more than that."
Here, sub-section 17(2B) of the Act enables previous payments to be taken into account as a basis for the application of the statutory formula. It is applied to the sums received for medical, rehabilitation, and other expenses totalling $40,729.27, along with the sum of $110,000 for the purposes of calculating the period of preclusion under section 1165 of the Act. It was on that basis that the decision under review was made and this led to the preclusion period of 133 weeks and social security charge of $22,324.39.
DecisionThe decision under review is affirmed.
I certify that the preceding 41 paragraphs are a true copy of the reasons for the decision herein of Mr R G Kenny, Member
Signed: Sarah Oliver
AssociateDates of Hearing 26 March 2002 and 21 May 2002
Date of Decision 14 June 2002
Solicitor for the Applicant Mr S McGhie, Richardson McGhie
Solicitor for the Respondent Mr R McQuinlan, Departmental Advocate
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