Spaul and Comcare

[2008] AATA 784

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2008] AATA 784

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No   2007/5408 & 5536

DIVISION		)
Re		FRANK SPAUL

Applicant

And   COMCARE

Respondent

DECISION

Tribunal   J.W. Constance, Senior Member

Date  3 September 2008

Place  Canberra

Decision 1.        The application made by Comcare is dismissed.

....................[signed]....................

J.W. Constance, Senior Member

CATCHWORDS

PRACTICE AND PROCEDURE - jurisdiction – whether Tribunal bound to accept fact asserted – whether Tribunal has power to overturn fact at hearing - no basis to make finding at this stage of application.

Safety, Rehabilitation and Compensation Act 1988 (Cth) ss19, 21.

REASONS FOR DECISION

BACKGROUND

2. In October 2006 this Tribunal decided that Comcare was liable to compensate Mr Spaul in respect of an injury he suffered as an employee of the Health Insurance Commission in the period July 2004 to September 2004 inclusive. Pursuant to that decision Comcare determined that Mr Spaul was entitled to incapacity payments for the period 8 September 2004 to 30 June 2007 calculated in accordance with section 21 of the Safety, Rehabilitation and Compensation Act 1988 (Cth).[1]

[1] This section has since been amended by Item 23 in Schedule 1 to the Safety, Rehabilitation and Compensation and Other Legislation Amendment Act 2007 (No 54/2007). The new provision took effect prospectively from 13 April 2007.

3. Mr Spaul is seeking a review of Comcare’s decision on the ground that his entitlement to incapacity payments should not be calculated under section 21, but rather under section 19 of the same Act. Under the latter section Mr Spaul is entitled to payment at a higher rate.

4. Section 21(1) provides:

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]

[2] Safety, Rehabilitation and Compensation Act 1988.

5. Mr Spaul has indicated that one of the grounds for review on which he relies is that the purported termination of his employment by the Commission in September 2004 was invalid and a nullity. He argues that as a result section 21 did not apply to him as he is still employed by the Commission and therefore is not retired from his employment.

6.      The application for review by the Tribunal is yet to be listed for hearing.

THE PRESENT APPLICATION

7.      Comcare is seeking “a preliminary finding that the Tribunal does not have jurisdiction to disturb the termination of the Applicant’s employment”.[3] During argument, Counsel for Comcare made it clear that what was being sought was a direction that at the final hearing Mr Spaul will not be entitled to call evidence to attempt to show that his employment has not been terminated.  Counsel conceded that the Tribunal does have jurisdiction to review the decision Mr Spaul seeks to have reviewed and I am satisfied that this is so.

COMCARE’S ARGUMENT.

[3] Respondent’s Outline of Submissions 20 May 2008.

8.      Comcare puts its argument as follows:

The Respondent contends that the Applicant’s position is not sustainable, for the following reasons:

a)as a matter of fact the Applicant is no longer an employee of the Commonwealth;

b)the Tribunal is bound by that fact;

c)the Tribunal has no power under the SRC Act or any other legislation to overturn that fact; and

d)while the Applicant may have arguments that his termination was a nullity:

(1)until a court of competent jurisdiction declares the termination to be a nullity, or the AIRC overturns the termination decision, the termination of his employment remains effective; and

(2)the Tribunal has no power to declare the termination a nullity.[4]

[4] Respondent’s Outline of Submissions 20 May 2008.

REASONING

9. There is no basis to make a finding or direction such as that sought by Comcare at this stage of these proceedings. The relevant finding that the Tribunal will be required to make if it is to determine that section 21 is applicable to Mr Spaul is that Mr Spaul is retired from his employment.  This requires determination of fact and law which is the task of the Tribunal constituted to hear and determine the application for review.

10. Section 21 does not refer to termination of employment. Whether it is necessary to determine that Mr Spaul’s employment was terminated (validly or otherwise) in order to decide whether he is retired from his employment is solely a matter for determination by the Tribunal constituted to hear the matter. It may be that the Tribunal will decide that evidence as to the validity or otherwise of the claimed termination is irrelevant. This is not a matter to be decided at this stage and, as Counsel properly conceded, it is not a question going to the Tribunal’s jurisdiction to determine Mr Spaul’s application.

DECISION

11.     The application made by Comcare is dismissed.

I certify that the 11 preceding paragraphs are a true copy of the reasons for the decision herein of Mr J.W.Constance, Senior Member.

Signed: .…….....................................................................................
  Peter Horobin  
  Associate

Date of Hearing  25 July 2008
Date of Decision  3 September 2008
Representative for the Applicant  Frank Spaul
Counsel for the Respondent        Ben Dubé
Solicitor for the Respondent        Stuart Marris

Sparke Helmore