FEDERAL COURT OF AUSTRALIA
Shillingford v Comcare [2020] FCA 775
Appeal from: Shillingford v Comcare [2019] AATA 4972 File number: ACD 102 of 2019 Judge: GRIFFITHS J Date of judgment: 9 June 2020 Catchwords: ADMINISTRATIVE LAW – appeal from a decision by the Administrative Appeals Tribunal (AAT) affirming a reviewable determination of Comcare that the applicant’s incapacity entitlement under s 19 of the Safety, Rehabilitation and Compensation Act was $0 because his normal weekly earnings under s 8(10)(a) were calculated as $0 – whether AAT erred in finding that the applicant was no longer entitled to receive compensation payments from 11 September 2017 – whether the AAT should have found that Comcare was liable to make continuing payments under s 19 with reference to s 8(10)(b) because the applicant ceased to be employed by the Commonwealth from 24 February 2017 – notice of appeal dismissed with costs Legislation: Administrative Appeals Tribunal Act 1975 (Cth), s 44
Public Service Act 1999 (Cth), ss 7, 22
Safety, Rehabilitation and Compensation Act 1988 (Cth), ss 5, 8, 9, 19, 62
Cases cited: Bortolazzo v Comcare [1997] FCA 515; 75 FCR 385
Comcare v Simmons [2014] FCAFC 4; 220 FCR 102
Dunstan v Comcare [2014] AATA 208; 139 ALD 691
John Holland Group Pty Ltd v Robertson [2010] FCAFC 88; 185 FCR 566
Date of hearing: The matter was determined on the papers Registry: Australian Capital Territory Division: General Division National Practice Area: Administrative and Constitutional Law and Human Rights Category: Catchwords Number of paragraphs: 87 Counsel for the Applicant: Mr P Hanks QC with Mr M Carey Solicitor for the Applicant: Slater & Gordon Counsel for the Respondent: Ms P M Bindon Solicitor for the Respondent: McInnes Wilson Lawyers ORDERS
ACD 102 of 2019 BETWEEN: KIM SHILLINGFORD
Applicant
AND: COMCARE
Respondent
JUDGE:
GRIFFITHS J
DATE OF ORDER:
9 june 2020
THE COURT ORDERS THAT:
1.The amended notice of appeal be dismissed.
2.The applicant pay the respondent’s costs, as agreed or taxed.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
GRIFFITHS J:
introduction
Mr Shillingford appeals under s 44 of the Administrative Appeals Tribunal Act 1975 (Cth) (AAT Act) from a decision dated 26 November 2019 by the Administrative Appeals Tribunal (AAT). The AAT affirmed a reviewable determination of Comcare that, on and from 11 September 2017, Mr Shillingford’s incapacity entitlement, as determined under s 19 of the Safety, Rehabilitation and Compensation Act 1988 (Cth) (SRC Act), was $0 because his normal weekly earnings under s 8(10)(a) of the SRC Act were calculated as $0. In coming to that view Comcare took into account that Mr Shillingford would not be earning any income irrespective of his compensatable injuries because there was no work available for him in his area as a casual food safety…
Continue reading Shillingford v Comcare
Sign in free to access the full text
- AGLC
- Shillingford v Comcare [2020] FCA 775
- Case
- [2020] FCA 775
- Decision Date
CaseChat Overview and Summary
The court found that Mr Shillingford remained a Commonwealth employee on 11 September 2017, and his entitlement to incapacity payments fell to be determined under s 8(10)(a) of the SRC Act because that provision applies where an employee continues to be employed by the Commonwealth at the date of calculation. The court rejected Mr Shillingford’s contention that he had ceased to be an employee and his entitlement to incapacity payments should be determined under s 8(10)(b). The court emphasised that the terms of s 22(2)(c) of the Public Service Act 1999 (Cth) made clear that a contract of employment under that legislation may be for duties which are irregular or intermittent, and the effect of s 22(2)(c) was to deem Mr Shillingford’s engagement as a non-ongoing APS employee to be a contract of employment whatever might be the position at common law. Applying the reduction test in s 8(10)(a), because there was no available work for Mr Shillingford, he would have earned nothing even if he was not incapacitated. As the threshold so calculated under s 8(10)(a) was nil, the excess is the full amount of NWE calculated under s 8(1) (i.e. $1,362.88) and, once that excess is deducted from Mr Shillingford’s NWE, the balance is nil. The court found that the AAT did not err in its decision and that the notice of appeal should be dismissed with costs.
The final orders were that the amended notice of appeal be dismissed and that the applicant pay the respondent’s costs, as agreed or taxed.
Orders
Orders of the court
1. The amended notice of appeal be dismissed.
2. The applicant pay the respondent’s costs, as agreed or taxed.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
Background
Background to the litigation
Full text does not contain this section.
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
Ratio Decidendi
Legal Principle Established
Mr Shillingford submitted that the termination of employment could not be relevant to a consideration of the level of earnings prior to the injury when employment existed, or to the calculation of the level of compensation payable by reasoning of the former employee’s incapacity for work, because such an approach “would undermine the SRC Act’s provisions (in Part III) for rehabilitation of incapacitated employees, reinforced by continuing payment of weekly compensation (pursuant to s 19) if rehabilitation proves impracticable”. CONSIDERATION AND DETERMINATION It is convenient first to make some general observations regarding relevant caselaw and principles before applying those matters to the circumstances here and bearing in mind the importance of giving effect to the AAT’s relevant findings of fact unless there is some good reason in law demonstrated by Mr Shillingford for not doing so. (a) Caselaw and relevant principles Unsurprisingly, both parties referred to various cases regarding the construction and operation of the SRC Act, as well as caselaw on the common law meaning of employment. There is nothing wrong with that approach as long as it does not derogate from the fundamental importance of applying now well settled principles of statutory construction to relevant provisions of the SRC Act and PS Act having regard to the unchallenged findings of fact made by the AAT. It is also relevant to note that neither party invited the Court to make findings of fact pursuant to s 44(7) of the AAT Act and although Mr Shillingford contested the AAT’s reasoning in construing and applying various provisions in both the SRC Act and PS Act, I did not understand him to contend that any finding of fact made by the AAT was vitiated by an error of law. In summarising the parties’ respective submissions, reference has been made to the relevant authorities relied upon by the parties. It is desirable to say something further regarding John Holland, which is probably the leading relevant authority for the purposes of this appeal. In John Holland, Dowsett J (with whom Spender J agreed) highlighted some important features of s 8(10) of the SRC Act. As his Honour noted at [18], the effect of a reduction under s 8(10) is to reduce the amount of compensation payable pursuant to s 19. Other important features of s 8(10) were identified by Dowsett J at [19] and [20]:19.Section 8(10) differentiates between employees who continue to be employed by the Commonwealth or a licensed corporation (to whom s 8(10)(a) applies) and employees who have ceased to be so employed (to whom s 8(10)(b) applies). However the section does not expressly identify the point in time at which a relevant employee’s employment status is to be determined. The compensation payable pursuant to s 19 is weekly compensation, being the amount of the NWE less the amount which the employee earns in the week for which he or she is to be compensated, or the amount which he or she is capable of earning in suitable employment. I infer that s 8(10) is to operate according to the circumstances which obtain in each week in respect of which compensation is otherwise payable. In Bortolazzo v Comcare (1997) 75 FCR 385 at 388, Heerey J took that approach.20.The amounts identified in ss 8(10)(a) and (b) are hypothetical amounts. In s 8(10)(a) the identified amount is the amount of weekly earnings which the employee “would receive if he or she were not incapacitated for work”. In the context of s 8(10) this provision contemplates the possibility that the employee, even if not injured, may, in the week in question, have received less than his or her NWE as otherwise calculated. Section 8(10)(b) prescribes reduction of that figure by the difference between it and the greater of two other amounts. The first amount is the weekly earnings which the employee would have received if he or she had continued to be employed by the Commonwealth or the licensed corporation in the employment in which he or she was engaged at the date of the injury. The second amount is the amount which the employee would have received if he or she had continued to be employed by the Commonwealth or the licensed corporation in the employment in which he or she was engaged at the date on which employment by the Commonwealth or the licensed corporation ceased.