Trevis Nibbs and Comcare
[2012] AATA 892
[2012] AATA 892
Division GENERAL ADMINISTRATIVE DIVISION File Number
2011/2312
Re
Trevis Nibbs
APPLICANT
And
Comcare
RESPONDENT
DECISION
Tribunal Senior Member Bernard J McCabe
Date 18 December 2012 Place Brisbane The decision under review is affirmed, and there is no order as to costs.
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Senior Member Bernard J McCabe
CATCHWORDS
COMPENSATION – Reconsideration of an earlier determination – entitlement to compensation – entitlement to costs – jurisdiction – power to award costs – decision affirmed.
LEGISLATION
Administrative Appeals Tribunal Act 1975 (Cth) s 43.
Compensation (Commonwealth Government Employees) Act 1971 (Cth) s 49.
Safety, Rehabilitation and Compensation Act 1988 (Cth) ss 30, 31 and 67.REASONS FOR DECISION
Senior Member Bernard J McCabe
18 December 2012
This case is ultimately about the applicant’s entitlement to costs under s 67 of the Safety, Rehabilitation and Compensation Act 1988 (the SRC Act). The proceedings commenced on 9 June 2011 when the applicant asked the Tribunal to review a decision dated 3 May 2011 that reconsidered (and varied) an earlier determination dealing with the applicant’s entitlement to compensation and the correct rate of compensation. Following correspondence from Comcare in July and December 2011, the applicant says the proceedings should be resolved with a costs order in his favour. Comcare disagrees. It says the requirements referred to in ss 67(2) and (8) of the Act have not been met.
The applicant has also tendered a “form of proposed order” which asks for a decision stating his entitlement to compensation is to be calculated in accordance with the provisions of s 31 of the SRC Act. He seeks a number of other orders about his entitlements in that form that immediately raise an awkward question about the Tribunal’s jurisdiction. The Tribunal’s power is limited to affirming, varying or setting aside a reviewable decision (albeit that it typically substitutes its own decision, or remits the matter for further consideration) pursuant to s 43 of the Administrative Appeals Tribunal Act 1975. I think it is important to keep that limitation in mind when discussing what should be done in this case.
THE POWER TO AWARD COSTS UNDER THE SRC ACT
I will began by discussing the power to award costs. For present purposes, an applicant in proceedings under the SRC Act may recover costs in circumstances identified in s 67. There are two provisions that may be relevant here. Section 67(2) and (8) provide:
(2) Subject to this section, where a proceeding instituted under this Part in respect of a reviewable decision relating to a determination is rendered abortive because a decision has been made, following a reconsideration under subsection 62(1), varying or revoking that determination, the responsible authority is liable to reimburse the claimant for costs reasonably incurred by the claimant in connection with that proceeding.
(8) Where, in any proceedings instituted by the claimant, the Administrative Appeals Tribunal makes a decision:
(a) varying a reviewable decision in a manner favourable to the claimant; or
(b) setting aside a reviewable decision and making a decision in substitution for the reviewable decision that is more favourable to the claimant than the reviewable decision;
the Tribunal may, subject to this section, order that the costs of those proceedings incurred by the claimant, or a part of those costs, shall be paid by the responsible authority.
Costs are ordinarily awarded at 75% of the Federal Court scale: See the Tribunal’s Guide To The Workers Compensation Jurisdiction. The Tribunal has the power to order a different rate, but that would only be done where it was inappropriate to use the ordinary rate.
BACKGROUND TO THE DISPUTE
I turn now to the history of these proceedings. Mr Nibbs was injured in a motor vehicle accident in the course of his work on 19 July 1984. He was employed by the Northern Territory government at the time, which meant he was covered under the Commonwealth workers’ compensation legislation. His employment was subsequently terminated on 1 March 1985.
Liability was accepted for the applicant’s serious injuries, and he began to receive weekly compensation payments. He subsequently negotiated a lump sum payment in the amount of $228,660 pursuant to s 49 of the Compensation (Commonwealth Government Employees) Act 1971 (the 1971 Act). That agreement was recorded in a determination dated 8 June 1988: s 37 documents at p 104. The lump sum payment was a partial redemption of future entitlements to weekly compensation. The payment was possible because Mr Nibbs was determined to be suffering from a permanent partial incapacity. The applicant pointed out his agreement did not prevent him from seeking further compensation in the event he became totally incapacitated for any period.
The SRC Act came into force in December 1988. Injured workers thereafter had to look to the new Act for their remedy – albeit that the SRC Act picked up and referred to some provisions in the old legislation. It was not always easy to determine the entitlements of individuals who straddled the two legislative regimes.
The applicant subsequently experienced a period of total incapacity in 1991 when he underwent surgery.
The reviewable decision is a reconsideration decision dated 3 May 2011. That decision varied a determination dated 5 October 2010: see pp 2-10 of the documents filed pursuant to s 37 of the Administrative Appeals Tribunal Act 1975 (the “s 37 documents”). The decision-maker summarised his understanding of the applicant’s net weekly earnings (NWE) and reached a view on what those earnings were in the period 1 October 1994 to 5 October 2010. He affirmed the determination of 5 October 2010 on this point. The decision-maker then turned to the question of the applicant’s entitlement to incapacity payments over the period following the redemption payment. He affirmed the earlier determination with one modification: the earlier determination had used a figure of $187.50 per week in its calculation of the applicant’s entitlement under s 30 of the SRC Act. The reviewable decision noted that figure was incorrect. The figure that should have been used was $185.70 per week. It followed, for the purposes of s 30, the applicant’s entitlement was equal to 75% of his NWE less the (slightly) smaller sum of $185.70 per week.
There was further correspondence with Comcare after the proceedings were commenced in which the applicant’s solicitors asked for clarification of certain matters. There were two letters the applicant says are particularly important: one dated 28 July 2011 and the other dated 5 December 2011.
THE LETTER OF 28 JULY 2011
The letter from Comcare was addressed to Mr Nibbs following a meeting with him at Comcare’s offices in Brisbane. It seems that meeting ranged across a number of matters that were in dispute between Mr Nibbs and Comcare, not all of which relate to the current proceedings. The letter referred to the NWE figure but did not indicate any other figure than $185.70 (the figure referred to in the reviewable decision) was appropriate. The first page of the letter concluded saying: “You have also been advised that Comcare has been given information from Centrelink that the recovery amount should be $146,919.31 and that an amount of $61,442.78 will be repaid to Comcare”. The letter goes on to say the applicant received an overpayment that Comcare proposed to write off. Lastly, the letter apologises for errors made in relation to the claim and expresses the hope that the courses of action proposed in the letter would satisfactorily address the applicant’s concerns.
The letter does not describe itself as a reconsideration decision. It is merely a summary of the outcome of a wide-ranging meeting.
THE LETTER OF 5 DECEMBER 2011
The second letter is dated 5 December 2011. The letter acknowledges “a number of errors involved with the calculation and payment of your entitlements to weekly incapacity payments since your lump sum redemption in 1988”. The letter then identified Comcare’s understanding of the errors. It noted the agreement referred to in the earlier letter that the overpayment would be written off, (albeit that the amount would still be recoverable) and that the money from Centrelink would be paid to him as a lump sum. It went on to note that Comcare would:
·adjust incapacity payment rates in line with the reviewable decision of 3 May 2011;
·increase weekly payments by $1.80 per week from 27 May 2010;
·make adjustments to take into account Centrelink payments; and
·determine incapacity for the period 8-9 February 1991.
The applicant says the decision to pay him for the period of incapacity in 1991, the recalculation of the proper sum payable to Centrelink (which has resulted in a substantial refund), and the recalculation of the rate of compensation from May 2010 after the proceedings were commenced rendered them abortive.
The applicant says these two letters amount to a reconsideration on Comcare’s own motion. I do not see how: Comcare expressly affirmed its conclusions with respect to NWE and the use of the $185.70 figure contained in the reviewable decision of 3 May 2011. To be sure, there were other matters mentioned that might affect the amount the applicant ultimately received – such as the dealings with Centrelink and any decision with respect to the waiver of overpayments – but these matters were not the subject of the reviewable decision. I note the letter of 5 December expressly declined to take a view on the question of NWE because that issue was before the Tribunal.
In any event, I do not see how what was said in those letters renders the proceedings abortive. If the applicant wished to do so, the issues in relation to NWE might still be agitated. He no longer wishes to do so. The applicant may well be satisfied with his position once some of the other matters that were referred to in the two letters were addressed, but that does not mean the proceedings were rendered “abortive” in the sense there was no point in going on.
It follows the applicant cannot be awarded costs pursuant to s 67(2). But what of his claim under s 67(8)? The applicant says I should vary the decision under review, and that costs are therefore payable. I disagree. The reviewable decision set out a determination with respect to NWE and corrected the figure to be used in the calculation of entitlements. Everyone now agrees (or at least accepts) that was the right thing to do. The reviewable decision did not purport to do anything else. I have no grounds to vary or set aside the decision in circumstances where the applicant is not disputing the NWE calculations or the figure used to calculate entitlements. I must therefore affirm the decision.
CONCLUSION
The decision under review is affirmed, and there is no order as to costs.
I certify that the preceding 18 (eighteen) paragraphs are a true copy of the reasons for the decision herein of Senior Member Bernard J McCabe. ................................[Sgd]........................................
Associate
Dated 18 December 2012
Date of hearing 2 October 2012 Counsel for the Applicant Mr Morgan Solicitors for the Applicant Kerin Lawyers Counsel for the Respondent Mr Wallace Solicitors for the Respondent Sparke Helmore Lawyers
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