Webley and Telstra Corporation Limited - [2003] AATA 539

Administrative

Appeals

Tribunal

DECISION AND REASONS FOR DECISION [2003] AATA 539
ADMINISTRATIVE APPEALS TRIBUNAL Nº V2002/508
GENERAL ADMINISTRATIVE DIVISION

Re: KAREN WEBLEY
Applicant

And: TELSTRA CORPORATION LIMITED
Respondent

DECISION
Tribunal:       M.J. Carstairs, Member
Date:             11 June 2003
Place:            Melbourne
Decision:The Tribunal sets aside the decision under review and remits the matter to the respondent with a direction to recalculate the amount of compensation under the formula in s21(3) of the Safety, Rehabilitation and Compensation Act 1988.

(sgd) M.J. Carstairs
Member

COMPENSATION - Commonwealth employees' compensation – calculation of weekly payment – adjustment of compensation for lump sum benefit under a superannuation scheme
Safety, Rehabilitation and Compensation Act 1988 ss19, 21, 114, 114B
Archer v Comcare (2000) 101 FCR 30
Telstra Super Pty Ltd v Flegeltaub (2000) 2 VR 276
Yew Bon Tew alias Yong Boom Tiew v Kenderaan Bas Maria [1982] 3 All ER 833
Metropolitan Film Studios Ltd v Twickenham Film Studios Ltd [1962] 3 All ER 508
Re Archer and Comcare (1999) 61 ALD 521
Reitano v Commonwealth of Australia (1985) 9 ALN N201
Re Hammerton and Comcare (1995) 21 AAR 204
Rose v Secretary, Department of Social Security (1990) 21 FCR 241
Re Secretary, Department of Social Security and Jessop (1989) 17 ALD 62
REASONS FOR DECISION
11 June 2003   M.J. Carstairs, Member
1.      This is an application by Karen Webley (the applicant) for review of a reviewable decision made by a delegate of Comcare (the respondent) on 22 March 2002, which recalculated weekly payments of compensation payable to the applicant from 16 November 1999 onwards. The reviewable decision affirmed a decision made on 14 January 2002.
2.      At the hearing Mr P. Bingham of counsel, instructed by Maurice Blackburn Cashman, solicitors, represented the applicant. Mr J. Lenczner of counsel, instructed by Sparke Helmore, solicitors, represented the respondent.
3. The Tribunal had before it the documents lodged under s37 of the Administrative Appeals Tribunal Act1975 as well as exhibits marked A1-A3. The parties lodged Statements of Facts and Contentions before the hearing. After the hearing further submissions were lodged by the applicant and the respondent on 4 December 2002 and on 17 and 18 December 2002 respectively.
BACKGROUND
4. The applicant was born on 1 January 1947. Telstra employed her as a tele‑marketing consultant until 15 November 1999, when she retired on health grounds. In February 2000 she lodged a claim for total and permanent incapacity with her superannuation fund, TelstraSuper. After her retirement the applicant was paid compensation payments under s19 of the Safety, Rehabilitation and Compensation Act 1988 (the Act). On 2 November 2001 the trustee of TelstraSuper granted her claim under the scheme. According to the documentary evidence, the employer‑financed portion of the superannuation benefit, as at the date of the applicant’s retirement in November 1999, was $80,989.45 (T3). It appears that the applicant has rolled over at least part of the sum arising out of her claim for impairment.
5. In the determination dated 14 January 2002, the respondent recalculated the…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2003] AATA 539
Decision Date: 11 June 2003

CaseChat Overview and Summary

The case of Webley and Telstra Corporation Limited involved an appeal by Karen Webley against a decision made by a delegate of Comcare, which recalculated her weekly compensation payments. The dispute centred on the interpretation of the term "receives" in Section 21 of the Safety, Rehabilitation and Compensation Act 1988, which applies to employees who retire due to incapacity and receive a lump sum benefit under a superannuation scheme. The key issue was whether the term "receives" should be interpreted to mean the date when the lump sum benefit was payable or when it was actually received by the employee.

Webley argued that the benefit could not be considered received until it was actually paid to her, which occurred in November 2001. She contended that until this point, only Section 19 of the Act applied to her, and any recalculation under Section 21 was impermissible. Conversely, Telstra Corporation argued that once the lump sum was payable, Section 21 applied from the date of retirement, necessitating a recalculation of her weekly compensation payments.

The Tribunal examined the legislative framework, particularly the definitions and the interaction between Sections 21 and 114B of the Act. It concluded that the term "receives" should be interpreted in its ordinary and natural meaning within the context of the Act, and that a lump sum is received when it is paid to the employee. The Tribunal held that Section 21 applied as soon as the lump sum was payable, thereby allowing for retrospective adjustments to compensation payments. The decision under review was set aside, and the matter was remitted to Telstra Corporation for recalculation of the compensation amount under the formula in Section 21(3) of the Act.

Orders