FEDERAL COURT OF AUSTRALIA

Ascic v Comcare [2019] FCA 819

ORDERS

THE COURT ORDERS THAT:

1.    The application be dismissed.

2.    The applicant pay the respondent’s cost of the application, to be assessed if not agreed.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

MCKERRACHER J:

INTRODUCTION

1    The applicant, Mr Ascic, is former member of the Australian Federal Police (AFP), which was known as the Commonwealth Police when he was first employed on 25 December 1973. He retired being totally incapable of engaging in work on 1 September 1988.

2    Since 1988, the respondent, Comcare, has recognised that Mr Ascic suffers from ‘depression and acute paranoid reaction to perceived stress in employment’ stemming from an injury of 11 December 1987 whilst employed with the Commonwealth Police. Initially, Mr Ascic was given extended sick leave from the deemed date of injury until the date of his retirement. He has been certified as being totally incapable of engaging in any work from the date of injury. He has received a pension under a superannuation scheme. During the time that has since elapsed, Comcare has made various determinations of Mr Ascic’s entitlements pursuant to the relevant statutory provisions.

3    Mr Ascic contends before this Court, as he did before the Administrative Appeals Tribunal, that his entitlements have been incorrectly calculated. The outcome for which he contends would achieve a higher rate of compensation than that recognised by Comcare and the Tribunal. Mr Ascic seeks review of the Tribunal’s decision: Ascic and Comcare (Compensation) [2017] AATA 1436.

KEY STATUTORY FRAMEWORK

4    The application involves construction of several legislative provisions, including s 131 of the Safety, Rehabilitation and Compensation Act 1988 (Cth) (the 1988 Act), which at the time of the review relevantly provided:

131    Former employees under 65 who are in receipt of superannuation benefits and are unable to engage in any work

(1)    This section applies to a former employee who:

(a)    on the commencing day, was under 65 and in receipt of a pension under a superannuation scheme; and

(b)    is not capable of engaging in any work.

(2)    Subject to this Division, if the former employee’s total benefit immediately before the commencing day was equal to or more than 95% of his or her normal weekly earnings as at that day, the amount of compensation payable per week to the former employee under this Act is the amount that, when added to the former employee’s superannuation amount, results in a combined benefit equal to 95% of those normal weekly earnings.

…

(3)    Subject to this Division, if the former employee’s total benefit immediately before the commencing day was equal to or more than 70%, but less than 95%, of his or her normal weekly earnings as at that day, the amount of compensation payable per week to the former employee under this Act is an amount equal to the employee’s 1971 amount.

…

(4)    Subject to this Division, if the former employee's total benefit immediately before the commencing day was less than 70% of his or her normal weekly earnings as at that day, the amount of compensation payable per week to the former employee under this Act is the amount that, when added to the former employee's superannuation amount, results in a combined benefit equal to 70% of his or her normal weekly earnings for the time being.

(5)    Whenever the superannuation amount of a former employee referred to in subsection (2), (3) or (4) is increased, the amount of compensation payable under that subsection shall be reduced, or further reduced, as the case requires, by:

(a)    an amount equal to the amount of the increase; or

(b)    an amount that will result in a combined benefit equal to 70% of the former employee’s normal weekly earnings as at the date of the increase;

whichever is less.

5    It also concerns various provisions, particularly s 25 and s 45, of the now repealed Compensation (Commonwealth Government Employees) Act 1971 (Cth) (the 1971 Act), the relevant part of each being:

PART    III. - COMPENSATION

25.    …

…

(2)    A reference in the succeeding provisions of this section to earnings of an employee in relation to any employment shall be read as including a reference to any allowance payable to the employee in respect of that employment other than an allowance that is payable in respect of special expenses incurred or likely to be incurred by the employee in respect of that employment.

…

(4)    Subject to the succeeding provisions of this section, the average weekly earnings of an employee before the injury shall be calculated in relation to the period immediately preceding the date of the injury in which he was continuously employed by the Commonwealth but any part of that period that was earlier than twelve months before that date shall be disregarded.

(5)    Subject to the next succeeding sub-section, if, during the period ascertained in accordance with the last preceding sub-section, the minimum amount per week payable to the employee in respect of his employment by the Commonwealth was varied as a result of the operation of a law of the Commonwealth or of a State or Territory, or as a result of the making, alteration or operation of an award, order, determination or industrial agreement, or of the doing of any other act or thing, under such a law, so much of that period as occurred before the variation took place or, if there was more than one variation, before the last variation took place, shall be disregarded for the purposes of the last preceding sub-section.

…

(10)    Subject to the following provisions of this section, where-

(a)    the relevant employment of an employee is employment referred to in sub-section (4) or sub-section(5) of section 7 or subsection (2) of section 8; and

(b)    the employee is not in receipt of earnings from any other em-ployment at the date of the injury,

a reference in this Part to the average weekly earnings of the employee before the injury shall be read as a reference to an amount determined by the Commissioner to be the amount per week that the employee would have been able to earn at the date of the injury (including any amount that he would have been able to earn in respect of overtime) if he had engaged in suitable paid employment.

(11)    If the minimum amount per week payable in respect of employees included in a class of employees in which the employee was included at the date of the injury is increased or reduced on or after that date as a result of the operation of a law of the Commonwealth or of a State or Territory, or as a result of the making, alteration or operation of an award, order, determination or industrial agreement, or of the doing of any other act or thing, under such a law, the amount that is, by virtue of the preceding provisions of this section, to be taken to be the amount of the average weekly earnings of the employee before the injury shall be increased or reduced by the same percentage as the percentage by which that minimum amount was so increased or reduced, as the case may be.

…

(12)    In this section, “earnings” includes earnings in respect of overtime.

…

45.

(1)    Where an injury to an employee results in the employee being totally incapacitated for work, the succeeding provisions of this section have effect.

(2)    Subject to this section, compensation is payable to the employee, during the period of the incapacity, of an amount per week equal to -

(a)    $90, or such higher amount as is prescribed, plus any amount or amounts required to be added to that amount in accordance with the succeeding provisions of this section; or

(b)    the average weekly earnings of the employee before the injury,

whichever is the less.

…

(3)    If there is a prescribed person who is, or there are prescribed persons who are, wholly or mainly dependent upon the employee, there shall be added to the amount specified in paragraph (a) of sub-section (2) the amount of $23.60 or such higher amount as is prescribed.

(4)    If there is a child in relation to whom this Act applies (whether born before, on or after the date of the injury) who is wholly or mainly dependent upon the employee or there are children in relation to whom this Act applies (whether born before, on or after the date of the injury) who are wholly or mainly dependent upon the employee, there shall be added to the amount specified in paragraph (a) of sub-section (2) the amount of $11.25, or such higher amount as is prescribed, for that child or each of those children, but an amount shall not be so added for a child in relation to any time before the date of the birth of that child.

…

(7)    If the employee-

(a)    is retired from his employment as a result of the incapacity for work; and

(b)    as a result of the retirement is in receipt of a pension under a superannuation or provident scheme established or maintained by the Commonwealth or by a prescribed authority of the Commonwealth,

the compensation payable to the employee in respect of each week during the period of the incapacity shall not exceed the amount, if any, by which the average weekly earnings of the employee before the injury exceed-

(c)    if a part of the pension is, under the scheme, attributable to contributions for the pension paid by the employee-the part of the pension paid or payable to the employee in respect of that week that is not attributable to those contributions;

(d)    if the employee has paid contributions under the scheme, the scheme does not identify a part of the pension as being attributable to those contributions and the Commissioner has determined that if it is reasonable that a part of the pension should be treated as if it were attributable to those contributions-the part of the pension paid or payable to the employee in respect of that week that is determined by the Commissioner to be the part that is to be treated as not attributable to contributions for the pension paid by the employee; or

(e)    in any other case-the pension paid or payable to the employee in respect of that week.

…

THE TRIBUNAL DECISION

6    The Tribunal recorded that Comcare has made various determinations of Mr Ascic’s Average Weekly Earnings (AWE) and Normal Weekly Earnings (NWE) in relation to the injury, pursuant to the relevant provisions of the 1971 Act and the 1988 Act. It noted that Mr Ascic requested Comcare conduct an independent review of every determination ever made concerning his entitlement to compensation for incapacity. Mr Ascic submitted to the Tribunal that:

(a)    his compensation for incapacity had been incorrectly calculated because, at the commencement date of the 1988 Act, he was receiving a superannuation pension of $18,655.73 per annum and Comcare benefits of $14,456.09 per annum, being a total of NWE of $33,111.82 per annum;

(b)    his combined total benefit was $33,982.00 (being a salary of $26,375.00 per annum and penalties and overtime of $7,607.00);

(c)    95% of his NWE was $32,282.90;

(d)    his combined benefit was more than 95% of his NWE; and

(e)    his entitlement to compensation for incapacity should have been calculated, and should still be calculated, under s 131(2) of the 1988 Act.

7    The Tribunal noted that Comcare completed its reconsideration and on 23 December 2015 decided that the determinations were correct and affirmed them (the reviewable decision), finding that:

(a)    Mr Ascic’s entitlement to incapacity payments had been correctly calculated having regard to ss 131(3), 131(4) and 131(5) of the 1988 Act;

(b)    the result was that Mr Ascic should have been paid at 70% of his NWE from 28 June 1991, that is, s 131(3) of the 1988 Act was the appropriate provision under which to calculate Mr Ascic’s entitlements to compensation since 1 December 1988.

8    The Tribunal correctly noted that the entitlement of former Commonwealth employees’ to incapacity payments stems from Pt X of the 1988 Act. Relevantly, s 123 of the 1988 Act provides the following definitions for the purposes of Pt X:

…

combined benefit, in relation to a former employee, means an amount equal to the sum of:

(a)    the amount of compensation payable to the former employee under this Act; and

(b)    the employee’s superannuation amount.

commencing day means the day on which this Part commences.

former employee means a person who, immediately before the commencing day, was receiving weekly payments of compensation under the 1971 Act in respect of an injury resulting in an incapacity and had ceased to be an employee within the meaning of that Act before that day.

total benefit, in relation to a former employee, means an amount equal to the sum of:

(a)    the amount of compensation payable per week to the former employee under the 1971 Act; and

(b)    the employee’s superannuation amount.

1971 amount, in relation to a former employee, means the amount of compensation that was, immediately before the commencing day, payable per week to the former employee under the 1971 Act.

9    The Tribunal correctly recorded that s 131 of the 1988 Act provides for former employees under the age of sixty five who are in receipt of superannuation benefits and are unable to engage in any work.

10    The Tribunal explained that ss 132(2), 132(3) and 132(4) of the 1988 Act effectively apply to calculate the combined benefit payable to a former employee whose total benefit immediately before the commencing day was:

(a)    equal to or more than 95% of their NWE as at that day (s 131(2) of the 1988 Act);

(b)    equal to or more than 70% but less than 95% of their NWE as at that day (s 131(3) of the 1988 Act); or

(c)    less than 70% of their NWE as at that day (s 131(4) of the 1988 Act).

11    Accordingly, the Tribunal said that each calculation above requires a determination to be made as to what a former employee’s ‘total benefit immediately before the commencing day’ was.

12    The Tribunal then considered s 25 of the 1971 Act (extracted above) which provides for the calculation of AWE. The Tribunal particularly emphasised s 25(2):

(2)    A reference in the succeeding provisions of this section to earnings of an employee in relation to any employment shall be read as including a reference to any allowance payable to the employee in respect of that employment other than an allowance that is payable in respect of special expenses incurred or likely to be incurred by the employee in respect of that employment.

(Emphasis added.)

13    Importantly, the Tribunal noted that as Mr Ascic has been totally incapacitated for work since his retirement, s 45 of the 1971 Act would have applied in calculating Mr Ascic’s weekly amount of compensation for incapacity at that time, relevantly:

(1)    Where an injury to an employee results in the employee being totally incapacitated for work, the succeeding provisions of this section have effect.

(2)    Subject to this section, compensation is payable to the employee, during the period of the incapacity, of an amount per week equal to -

(a)    $90, or such higher amount as is prescribed, plus any amount or amounts required to be added to that amount in accordance with the succeeding provisions of this section; or

(b)    the average weekly earnings of the employee before the injury,

whichever is the less.

(Emphasis added.)

14    The Tribunal then turned to the Compensation (Commonwealth Government Employees) Regulations (Amendment) (Statutory Rules 1988 No. 122) pursuant to which, by reg 3 (repealed on 1 December 1988), Sch 4 of the Compensation (Commonwealth Government Employees) Regulations (Cth) was substituted with the following schedule. The Schedule relevantly itemises the prescribed amounts of compensation as they relate to the 1971 Act as follows:

15    The Tribunal recorded that reg 4(a) of the Regulations (Amendment) provides that the amendments effected by the Regulations (Amendment) (including the substituted schedule) apply in relation to weekly payments of compensation under the 1971 Act in respect of any period commencing after 12 June 1988.

16    Before the Tribunal, as before this Court, the key issue was whether the review delegate was correct in having regard to s 131(3) of the 1988 Act in calculating Mr Ascic’s entitlement to incapacity payments or whether another provision ought to have been applied. The Tribunal noted that this issue required it to determine:

(a)    Mr Ascic’s ‘total benefit’ immediately before the commencing day;

(b)    Mr Ascic’s NWE ‘as at that day’;

(c)    the correct provision or provisions in the 1988 Act from which to calculate Mr Ascic’s entitlement to incapacity payments. The Tribunal noted that relevantly:

(i)    Mr Ascic contended that his compensation benefits should be calculated under s 131(2) of the 1988 Act; and

(ii)    Comcare contended that Mr Ascic’s compensation benefits should be calculated under ss 131(3), 131(4) and 131(5) of the 1988 Act; and

(d)    if Mr Ascic is entitled to receive incapacity payments calculated under s 131(2) of the 1988 Act, the amount of compensation he is entitled to receive.

17    Although the Tribunal did not find that s 131(2) of the 1988 Act ought to have been applied in calculating Mr Ascic’s incapacity payments, if it had done so then it would have ‘remitted the matter to Comcare’ to complete the necessary calculations. The Tribunal observed that its role was to determine which of the relevant subsections are applicable.

18    As to the first two key questions, there was substantial evidence before the Tribunal including:

(a)    an Amended Statement of Issues, Facts and Contentions received 22 June 2017;

(b)    AFP Minute Paper dated 7 June 1988;

(c)    Commonwealth Employee’s Compensation Determination dated 30 June 1988;

(d)    a 265 page set of T-Documents;

(e)    Comcare’s Amended Statement of Issues, Facts and Contentions, including annexures, dated 25 May 2017; and

(f)    a Statement of Agreed Facts and Issues dated 18 April 2017 (signed by both parties).

19    The Tribunal recorded that it was agreed that Mr Ascic’s superannuation amount ‘immediately before the commencing day’ was $358.76. This has not been challenged by any ground of appeal.

20    Comcare had added a small amount to the agreed NWE. While the Statement of Agreed Facts and Issues had set out Mr Ascic’s NWE ‘as at that day’ as being $734.46 as an agreed fact, Comcare took the revised view after undertaking further calculations that this figure was incorrect and did not include an ‘Exam allowance,’ ‘Investigator Allowance,’ ‘Plain Clothes Allowance,’ or ‘Higher Duties Allowance’ that should have been included in the calculation of Mr Ascic’s NWE. Comcare reached a revised figure of $769.13 for Mr Ascic’s NWE ‘as at that day’ and provided the Tribunal with its computations.

21    Mr Ascic disagreed with Comcare’s alternative NWE figure of $769.13 on the basis that the various allowances added were never actually paid to him at the time (other than the Higher Duties Allowance, which Mr Ascic states he was never paid but also that he was not actually entitled to it). Comcare acknowledged that until recently, the applicable allowances were not in fact paid to Mr Ascic.

22    In light of these facts, the parties addressed the Tribunal on the following disputed matters, which it was to resolve:

(a)    Mr Ascic’s ‘total benefits’ immediately before the commencing day. As Mr Ascic’s superannuation amount had been agreed, this left in dispute ‘the amount of compensation payable per week’ to Mr Ascic under the 1971 Act, for the purposes of ss 131(2), 132(3) and 132(4) of the 1988 Act) (see definition of ‘total benefit’ above);

(b)    Mr Ascic’s NWE ‘as at that day’ (for the purposes of ss 131(2), 132(3) and 132(4) of the 1988 Act);

(c)    whether the references to an employee’s NWE ‘as at that day’ in ss 131(2)-131(4) (inclusive) are references to the NWE as at 30 November 1988 or 1 December 1988 or some other date; and

(d)    the correct provision, or provisions, in the 1988 Act from which to calculate Mr Ascic’s entitlement to incapacity payments.

23    In addressing these questions, the Tribunal recording as having relied on certain documents, for example:

(a)    an AFP Minute Paper dated 7 June 1988 which stated that the standard incapacity compensation rate current at 1 July 1988 was $267.30 being the sum of $192.80 (in relation to Mr Ascic) plus $50.50 (in relation to Mrs Ascic) plus $24.00 (in relation to their child). The Minute Paper also stated that:

(i)    Mr Ascic received full sick pay from 12 December 1987 to 1 July 1988 (sic); and

(ii)    Mr Ascic’s current salary was $26,375.00 per annum with no allowances.

(b)    the Commonwealth Employees’ Compensation Determination dated 30 June 1988 which determined the rate of incapacity compensation for the period 5 July 1988 to 8 August 1988 was $267.30;

(c)    the Commonwealth Employees’ Compensation Determination dated 25 July 1988 which determined the rate of incapacity compensation as at 9 August 1988 was $267.30 in accordance with s 45(2) of the 1971 Act (currently $192.80 - Mr Ascic), s 45(3) of the 1971 Act (currently $50.50 – Mrs Ascic) and s 45(4) (currently $24.00 - child);

(d)    a letter from Comcare to the AFP dated 22 December 1988, which advised that:

…Mr Ascic’s compensation entitlement has not changed as a result of the commencement of [the 1988 Act]. Compensation payments should continue at the rate of $267.30 per week unless otherwise advised by this office…

(Emphasis added.)

(e)    a Comcare Incapacity Determination List run on 22 June 2015 (the List) which lists the following relevant entries:

24    At the commencement of the hearing, the Tribunal sought clarification from Comcare regarding the blank fields or gaps contained in the List, in particular the ‘weekly rate’ fields pertaining to determination numbers 503202 (start date 1 July 1988) and 503203 (start date 1 December 1988). Counsel for Comcare advised that in 1990 Comcare underwent a change to its record keeping processes. As such, some of the fields relating to periods prior to 1990 were entered onto the List manually and retrospectively. But the Tribunal also noted that Mr Ascic stated that counsel’s advice regarding the ‘gaps’ in the List was ‘false.’

25    Mr Ascic said that s 45(7) of the 1971 Act applies to his circumstances and hence after the date of his retirement, the weekly compensation payable should be an adoption of the pre-injury AWE amount. Mr Ascic said the entry on the List for the period 1 July 1988 to 30 November 1988 (being determination number 503202) under ‘Duration’ of 21.7737 (weeks) was ‘an impossible fraction’. Further, the period 1 July 1988 to 30 November 1988 was ‘stretched’ to include ‘an extra period of time.’ Mr Ascic said that there was no determination dated 1 July 1988, that is, it did not exist because he was on full sick pay until his retirement on 1 September 1988 and he was not in receipt of incapacity payments until his retirement when his sick leave payments ceased.

26    Counsel for Comcare advised the Tribunal that while Comcare could not manipulate the amount of compensation for a period (in the case of determination number 503202, the liability amount was $5,838.04), it could manipulate the duration of the period to which the amount relates. Counsel also stated it would not have been possible for Mr Ascic to have received compensation payments prior to his retirement.

27    The Tribunal recorded that it then confirmed with Mr Ascic that ‘he did not dispute’ that the ‘actual liability amount’ for determination number 503202 of $5,838.04 was correct. The recording of this concession has not been expressly challenged on appeal.

28    Counsel contended that while the entries on the List were relevant, they were extrinsic information and ultimately regard must be had to the application of the legislation.

29    It was reiterated before the Tribunal that Mr Ascic’s position was:

(a)    he relied on s 45(7) of the 1971 Act in submitting that after his retirement date, only his AWE could be used as the weekly compensation amount; and

(b)    he criticised determination 503232 on the List on the basis that Comcare did not discount the period prior to his retirement from the determination period to reflect that incapacity payments were only payable following his retirement date, that is, the period for determination 503202 should have started on 2 September 1988 rather than on 1 July 1988.

30    In response to Mr Ascic’s reliance on s 45(7) of the 1971 Act, counsel for Comcare contended to the Tribunal that, while Mr Ascic does satisfy s 45(7)(a) and s 45(7)(b), the ‘compensation payable’ in s 45(7) is referring back to the ‘compensation that is payable to the employee’ in accordance with s 45(2) of the 1971 Act. Further, in response to Mr Ascic’s criticism of the start and end dates for determination 503202, determinations dated 30 November 1988 or 1 December 1988 may indeed never have existed as those dates may not have reflected the start date of a particular period of incapacity for Mr Ascic.

31    Counsel for Comcare confirmed that Mr Ascic’s base salary at the time of claim (without any allowances, which would in turn increase the figure) was $25,048.00 as recorded in a document which confirms Mr Ascic’s annual salary for leave bonus purposes (including any higher duties allowance) as $25,164.00 per annum. The Tribunal noted that Mr Ascic confirmed he was prepared to accept those salary figures ($25,048.00 and $25,164.00). Again, the Tribunal recorded (and there is no express appeal from this notation) that counsel also referred to ss 25(2), 25(4), 25(5) and 25(11) of the 1971 Act in submitting that in calculating AWE, an employee’s earnings shall include payable allowances (other than special expenses) and shall be calculated in relation to the period in the 12 months immediately preceding the injury (in this case, from 10 December 1986 to 10 December 1987).

32    As to the identification of the date of a person’s NWE as at ‘that day’ referred to in s 131 of the 1988 Act, counsel submitted to the Tribunal, and the Tribunal accepted, that this day is a reference to 1 December 1998 because:

(a)    s 131 of the 1988 Act ‘commenced’ on that day; and

(b)    the 1988 Act introduced the concept of NWE whereas prior to the 1988 Act the earnings amount was AWE. Therefore, ‘that day’ in the context of NWE ‘can only be’ a reference to 1 December 1988 because NWE ‘did not exist’ prior to then (emphasis added).

33    As to the term ‘immediately before the commencing day’ in the 1988 Act, Mr Ascic submitted that as the 1988 Act commenced on 1 December 1988, the date ‘immediately before’ the commencing day is 30 November 1988. However, counsel submitted to the Tribunal, and the Tribunal accepted, that ‘immediately before the commencing day’ does not refer to a fixed date per se, rather it refers to ‘a date.’ The Tribunal said that if it had been the intention that the date ‘immediately before’ the commencing day be 30 November 1988, then the legislation would have read ‘on a date immediately before the commencing day,’ rather than ‘immediately before the commencing day.’

34    The Tribunal noted that ‘total benefit’ is defined in s 123 of the 1988 Act as the amount of compensation payable per week to Mr Ascic under the 1971 Act plus Mr Ascic’s superannuation amount. Mr Ascic’s superannuation amount was agreed at $358.76. What remained for determination, therefore, was the weekly amount of Mr Ascic’s compensation under the 1971 Act.

35    In relation to this key issue the Tribunal recorded its computation and methodology as follows (at [54]-[63]):

Weekly compensation payable to Mr Ascic under the 1971 Act

54.    As to the amount of compensation payable per week to Mr Ascic under the 1971 Act (and as defined, immediately before the commencing day), the Tribunal finds as follows:

(a)    Mr Ascic’s weekly amount of compensation payable as at 1 July 1988, 9 August 1988 and 22 December 1988 was $267.30.

(b)    The phrase ‘immediately before the commencing day’ for the purpose of Part X of the 1988 Act may (but may not necessarily always) refer to the date of 30 November 1988. As a matter of practicality, the Tribunal considers it reasonable to interpret the words ‘immediately before’ as meaning ‘during the applicable determination period that immediately preceded 1 December 1988.’ Depending upon when that determination period commenced, ‘immediately before’ may refer to, for example, a period of several days or several weeks.

(c)    Given that Mr Ascic’s weekly amount of compensation payable remained the same throughout the points in time prior to and after the commencement of the 1988 Act … the Tribunal considers that it can reasonably be inferred that ‘immediately before the commencing day,’ as interpreted … above, the amount of compensation payable to Mr Ascic at the relevant time under the 1971 Act (i.e. Mr Ascic’s AWE prior to the injury) was $267.30. This figure is also supported by:

(i)    regulation 3 of the Regulations; and

(ii)    subsection 45(2) of the 1971 Act.

(d)    Given the facts that:

(i)    Mr Ascic does not dispute the actual liability amount for determination number 503232 …;

(ii)    Mr Ascic accepts the base salary figure (with no allowances) of $25,048 …, which gives a weekly figure that is in excess of $267.30; and

(iii)    the fact that the various amounts Mr Ascic has claimed are payable to him under the 1971 … Act are in excess of $267.30,

then on Mr Ascic’s own evidence, subsection 45(2)(a) of the 1971 Act applies (rather than subsection 45(2)(b), as submitted by Mr Ascic).

55.    In finding so, the Tribunal accepts Comcare’s submission that the ‘compensation payable’ in subsection 45(7) of the 1971 Act is referring back to the compensation payable under subsection 45(2), rather than ‘compensation payable’ more generally, as submitted by Mr Ascic. To find in the alternative would give a result that all former employees retired due to incapacity would have a weekly compensation amount under the 1971 Act equal to their pre-injury AWE, which the Tribunal considers is not the intent of the legislation. The Tribunal also accepts Comcare’s explanation regarding the ‘gaps’ in the List and considers nothing turns on these ‘gaps’ in any event given Mr Ascic’s agreement with the actual liability amount for determination number 503232.

56.    As such, the Tribunal finds that Mr Ascic’s ‘total benefit’ as defined in section 123 of the 1988 Act is $626.06 (being the superannuation amount of $358.76 plus the weekly amount of Mr Ascic’s compensation under the 1971 Act of $267.30).

Mr Ascic’s NWE ‘as at that day’

57.    Comcare submits that Mr Ascic’s NWE ‘as at that day,’ being 1 December 1988 for the purposes of section 131 of the 1988 Act, was $769.13, based on the base salary and allowances. Mr Ascic takes issue with this figure on the basis that [sic] was never entitled to the Higher Duties Allowance that was included in the figure and he has never, over the years, actually been paid the other allowances (being the ‘Exam allowance,’ the ‘Investigator Allowance,’ the ‘Spending Allowance’ and the ‘Plain Clothes Allowance’).

58.    Comcare has conceded Mr Ascic’s latter point … that he was not paid the applicable allowances until recently. Even when this concession is taken into consideration, the Tribunal maintains the inclusion of these allowances in the NWE figure because … they were the applicable allowances at the relevant time in light of subsections 25(2), (4), (5) and (11) of the 1971 Act.

59.    On the basis that the Tribunal accepts that Ms Ascic was never entitled to the Higher Duties Allowance but was and is entitled to the remaining allowances, and adopting the figures set out in [the Annexure to Comcare’s Amended Statement of Issues, Facts and Contentions], the Tribunal finds that Mr Ascic’s NWE ‘as at that day’ is $777.59, being the total sum of the following amounts:

•    Mr Ascic’s total NWE excluding allowances as at that day = $734.46, plus the applicable weekly allowances, being the:

o    Exam allowance = $21.65;

o    Investigator’s allowance = $9.82; and

o    Spending allowance = $11.66.

Correct provisions from which to calculate Mr Ascic’s entitlement to incapacity payments

60.    Mr Ascic is of the view that subsection 131(2) applies to him on the basis of his interpretation of subsection 45(7) of the 1971 Act that on and from his retirement, and given his being in receipt of a superannuation pension as a result of the retirement, his weekly compensation payable is the amount of his pre-injury AWE. Mr Ascic also says that the phase ‘immediately before the commencement day’ refers to 30 November 1988, the date immediately prior to the commencement of the 1988 Act on 1 December 1988.

61.    The Tribunal reiterates its findings regarding:

(a)    its interpretation of the phrase ‘compensable payable’ in subsection 45(7) of the 1971 Act …; and

(b)    its interpretation of the phrase ‘immediately before the commencement day,’ …;

(c)    Mr Ascic’s ‘total benefit’ as defined in section 123 of the 1988 Act is $626.06 …; and

(d)    Mr Ascic’s NWE ‘as at that day’ was $777.59 ...

62.    Based on these figures … the Tribunal finds that Mr Ascic’s total benefit immediately before the commencing day of the 1988 Act was 80.52% of his NWE ‘as at that day.’

63.    As this percentage is equal to or more than 70% but less than 95% of his NEW [sic] ‘as at that day’, the Tribunal finds that subsection 131(3) of the 1988 Act has been correctly applied to calculate Mr Ascic’s entitlement to compensation since the commencement of the 1988 Act.

(Citations omitted, emphasis in original.)

36    The Tribunal also noted that:

(a)    if it had reached the same figure as Comcare of $769.13 for Mr Ascic’s NWE ‘as at that day’; and/or

(b)    if Mr Ascic in fact was and is entitled to the weekly ‘Higher Duties allowance’ of $2.23,

then Mr Ascic’s NWE ‘as at that day’ would still fall within the ‘equal to or more than 70% but less than 95%’ range expressed in subsection 131(3) of the 1988 Act.

37    Given the Tribunal had not found that Mr Ascic’s total benefit immediately before the commencing day of the 1988 Act was equal to or more than 95%, the Tribunal did not go onto consider any further calculations under the 1988 Act.

38    It followed that the Tribunal affirmed Comcare’s reviewable decision determining that:

(a)    Mr Ascic’s entitlement to incapacity payments had been correctly calculated having regard to ss 131(3), 131(4) and 131(5) of the 1988 Act; and

(b)    s 131(3) of the 1988 Act was the appropriate provision under which to calculate Mr Ascic’s entitlements to compensation since 1 December 1988.

GROUNDS OF APPEAL

39    The questions of law raised by Mr Ascic in his judicial review application are threefold. They are as follows:

(1)    Whether the Tribunal erred in law in concluding that Mr Ascic’s entitlement to incapacity payments arose under s 131(3) the 1988 Act, when it should have found instead that it arose under s 131(2) of the 1988 Act?

(2)    Whether the Tribunal erred in law in failing to give adequate or sufficient reasons for concluding that Mr Ascic is entitled to incapacity payments arose under s 131(3) of the 1988 Act and for rejecting Mr Ascic’s arguments and contentions that s 131(2) of the 1988 Act applied?

(3)    Whether the Tribunal erred in law or committed jurisdictional error in failing to apply s 45(7) of the 1971 Act and consider s 25(1)-(12) of the 1971 Act?

40    Clearly, question 1 and question 2 are related. Mr Ascic seeks either a recalculation or a remittal of the matters to the Tribunal.

41    The grounds of appeal are expressed in the following terms:

1.    The Tribunal erred in law in concluding that [Mr Ascic’s] entitlements to incapacity payments under the Act arose under s 131(3), when it should have found instead that it arose under s 131(2) of the [1988] Act.

Particulars

(a)    Pursuant to s 131(2) of the [1988] Act, [Mr Ascic’s] “total benefit immediately before the commencement day” was only calculable from the date [Mr Ascic] retired; from 01 September 1988 until 30 November 1988, being on the day “immediately before the commencing day” of [t]he [1988] Act.

(b)    It was an uncontested finding that [Mr Ascic] had retired on 1 September 1988;

(c)    As the Tribunal found at [40], [41], there was no dispute that the amount of money received or receivable by [Mr Ascic] during that relevant period was $5,838.04;

(d)    By reason of the operation of s 45(7) of the [1971 Act] …, and contrary to the findings of the Tribunal, the “amount of compensation payable per week to the former employee under the 1971 Act” apropos s 123(a) of the [1988] Act, was only calculable from the date [Mr Ascic] had retired;

(e)    Accordingly, the Tribunal fell into legal error in computing the total benefit payable to [Mr Ascic]. Had it not fallen into error, the only, or only reasonable, or preferable conclusion open to it would have been that [Mr Ascic’s] entitlement to incapacity payments fell within the terms of, and were determinable under, s 131 (2) of the [1988] Act.

2.    The Tribunal erred in law in failing to give adequate or sufficient reasons for concluding that [Mr Ascic’s] entitlement to incapacity payments arose under s 131(3) of the [1988] Act and for rejecting [Mr Ascic’s] arguments and contentions that s 131(2) of the [1988] Act applied; without correctly considering the calculations and that the payments must be in a weekly amount that is “payable”.

3.    The Tribunal committed jurisdictional error or error of law by failing to determine the compensation amounts applicable pursuant to s 45(7) of the [1971] Act, as s 45(2) was enacted expressly “subject to” the provisions of s 45(7).

4.    The Tribunal committed jurisdictional error or error of law at [58] by only considering sections 25 (2), (4), (5) and (11) of the [1971] Act; but not considering 25 (10) and (12) as well.

5.    The Tribunal committed jurisdictional error or error of law in not accepting that “earnings” in Average Weekly Earnings include earnings in respect to overtime and that allowances are payable under 45(2) instead of 25(2).[at 59][.]

6.    The Tribunal erred in law [at 55] in concluding that Compensation payable under 45(7) refers back to compensation payable under 45(2) of the 1971 Act.

7.    The Tribunal erred in law in concluding that the “total NWE as at that day was $777.59, including allowances [61 (d)]; but did not also consider that this can only be a reference to AWE instead and that overtime and allowances are not payable under section 45 (2) and only become payable under Section 45 (7), [after being retired].

ARGUMENTS IN SUPPORT OF THE APPLICATION

42    Mr Ascic filed an affidavit in support of his application, which also attaches 32 documents. Much of this material focusses upon his history with the Commonwealth Police, then the AFP and the difficulties he experienced in that employment. He makes reference to threats, intimidation and poor treatment, but little of this material was relevant to the limited role which this Court may play under s 44 of the Administrative Appeals Tribunal Act 1975 (Cth) (the AAT Act), confining any review to a question of law on the part of the Tribunal. The affidavit was not expressly read or referred to in the course of the hearing, but to the extent that there are references to incorrect computations of payments, that material is satisfactorily evident from the face of the judgment of the Tribunal and to his submissions. I do not propose receiving the affidavit into evidence.

43    Mr Ascic also filed, well after the date directed and also after the date on which Comcare had filed its original anticipatory submissions, a bundle of documents well exceeding the prescribed page length and purporting to be his submissions. These submissions ran to 32 pages and were accompanied by a chronology of events of four pages with seven supporting documents attached. Objection was raised with respect to all of the supporting documents as none of those documents were tendered in evidence before the Tribunal. Nor were any of the documents relevant for the purposes of s 56(2) of the Evidence Act 1995 (Cth), particularly having regard to the fact that Mr Ascic was not requesting the Court to make findings of fact under s 44(7) of the AAT Act. Comcare’s objections must be upheld.

44    The content of the submissions themselves, to which objection was also taken, contained inadmissible hearsay about exchanges with the Tribunal when the transcript was not before the Court. In any event, Mr Ascic’s submissions generally were broad ranging and difficult to follow by reference to the issues he raised in his application. That being so, I requested Mr Ascic at the hearing of the ‘appeal’ to identify precisely what it was he said in support of the first question of law he raised. Mr Ascic explained as follows:

MR ASCIC: The figures that the tribunal derived their decision on and the figures that were information that was provided by [Comcare] is in contradiction to the legislation itself. That is, the values were derived under provisions of section 45(2), (3) and (4), claiming to be my incapacity benefit, instead of the figures being derived under provisions of 45(7), which is the discretionary, unappealable power of the Commissioner to make that decision, and it is not prescribed in any way, but they are relying – their argument relies on the prescribed amount of benefit under 45(2), (3) and (4). So the legislation is wrong. The values were derived under inappropriate and incorrect legislation. Therefore, the values can’t be correct and, therefore, the correct subsection of the 1988 Act cannot be applied or if it is applied, it cannot be applied correctly.

45    In relation to the second question of law, Mr Ascic explained:

MR ASCIC: The tribunal initially accepted that the values that do exist, which are the real values of what I was paid from the date of my retirement until 30 November 1988 – those values were of critical importance, but they were missing, and the tribunal accepted that they were of critical importance, but did not consider those values thereafter, but, rather, dismissed them on the basis that nothing turns on those gaps whereas prior to that everything was determined on those gaps. In fact, if those gaps had have been completed correctly, this process would not have needed to take place. So everything hinges on that interpretation. The tribunal applied the wrong values to make a decision, but totally ignored the correct values that were present – yes, on the documents and were presented by me and explained by me.

46    Mr Ascic explained in relation to the third question of law:

MR ASCIC: … the tribunal accepted and [Comcare] submitted that section 45(7) is only a payment provision for 45(2), (3) and (4), which is not correct – cannot be correct. They did so by not quoting the whole section in full, deleting or leaving out the actual important part that contradicts what their inference is. So if it wasn’t for section 45(7) and the effect – being put into effect, no Commonwealth employee that is ever retired on the validity grounds would be entitled to any payment whatsoever, and that is not the intent of the legislation. It cannot be the intent of the legislation, but the tribunal accepted that to be so: that the 45(7) is a mere payment provision for 45(2) or (3). And in that case, the argument that the tribunal accepted, which was put up by [Comcare] – you take part of a phrase of one section, a part of a phrase of another, join them together and then join them back again and make up an inference of what you want out of the two sections, which is totally in contradiction to each of those sections as they are.

…

MR ASCIC: I mean, 45(7) cannot be a payment provision for 45(2), (3) and (4). In fact, according to the explanatory memoranda on that, the – it was explained that 45(7) is an unappealable discretionary power given to the Commissioner.

…

MR ASCIC: And if it’s a discretionary power, that means it is not prescribed. The amount cannot be prescribed in any way. The amount cannot be calculated in any way. It can only be read from the records that were made at the time.

…

47    In relation to the Tribunal’s treatment of s 25 of the 1971 Act, Mr Ascic submitted:

MR ASCIC: Well, section 25 provides for what’s called the guidance – or the instructions to the Commissioner in how to calculate average weekly earnings.

…

MR ASCIC: That is – and the benefit for the injured person upon – yes, retirement, as such.

…

MR ASCIC: So it is really self-explanatory. The critical part of that section is 45 – 25(12) which says – in this section, average earnings means earnings by way of overtime. Now, without that phrase being included – and [Comcare] in each of the cases apart from the current documents did not include 45 – 25(12) in there. So there was no consideration for any overtime being a component of average weekly earnings, but on retirement the amount – or that the Commissioner determines – the guides are there to determine on what basis and from what date everything is determined. Example – I think number 4 says that.

The figures are derived from a period 12 months before injury, and obviously the reason this has to be done – so that the annual – the figures for the purposes of calculating the amount of overtime have to remain static because as time goes, as the figures change, there will be – or further figures, it would not be possible to calculate an amount. So not only is overtime included, but it is – the legislation demands that the overtime must be correct and accurate, not just any random figures selected, you know, out of thin air. It must be derived on the basis of the calculation form that was provided. And while I’m talking about the calculation form, [Comcare] has a number of times described that as my document. Now, that’s a document. It was tendered as A2 by [Comcare] at hearing, but it is not contained in the T documents – the T file.

The reason is because they denied that that document existed. When I gave Comcare and AFP a copy of it, they tried desperately to convince me that that document is irrelevant, right, that it should not be regarded in any way, even though it is the critical document – yes, under the circumstances. So – and, in fact, at the tribunal hearing, the member considered the insignificant components of that document, but totally ignored the critical document – the content and purpose of the document, which was to determine my average weekly earnings on retirement. So – okay. 45 – 25 – yes, the whole of that section according to the decision that was made and submissions by the tribunal, the critical components of that were totally ignored.

48    In his written submissions, as far as I can follow them, Mr Ascic repeated the arguments raised in the Tribunal as reflected in his questions of law and grounds of appeal. He listed the issues as being:

2.    The Application requires an examination and interpretation of the relationship between the [1971 Act] and [1988 Act]. Particularly the interpretation of the provisions of Section 131 and the 6 sub sections, to determine; whether the operation of this section is dependent on the day immediately before the commencing day; the commencing day or any other future days; in retrospect.

3.    This application also requires a determination whether Sections 27 and 29 of the 1971 Act; are “provisions that give rise to incapacity payments” under Sections 45(2) and/or 45(7); as submitted by Comcare at page 25, paragraph 40 of hearing transcript and accepted by the Tribunal.

4.    The application also requires an examination and interpretation of the relationship, if any, between Section 45(2) (3) and (4) and Section 45(7) of the 1971 Act.

5.    The application also requires a determination, whether the ‘1971 amount’ component of ‘total benefit’ is prescribed in a specific amount or is determined by the Commissioner or his Delegate at his or her discretion in accordance with S 25 and S 45(7) of the 1971 Act..

6.    The application also requires a determination whether; ‘1988 amount’, ‘combined benefit’ and Normal Weekly Earnings, can lawfully be determined on the basis of information generated on and after 1 December 1988 or alternatively only obtained on 01/12/1988 on the basis of AWE, ‘total benefit’ and the ‘1971 amount’ values existing on or before 30 November 1988.

49    Mr Ascic also made oral and written submissions complaining about the lack of production by Comcare or the AFP of employment documentation. In written submissions he said:

[Comcare] has generated an inference of this necessity and ability; because AFP and/or Comcare had failed to provide the historical information that was required on 01/12/1988 and now endeavour to replace that missing information with their unsupported calculated result. The 1971 Act ceased operation on 30/11/1988 and all information or records that were made pursuant to that Act were recorded as required and therefore; whether on 01/12/1988 or 7 September 2017 those records can not be subject to any re-calculation; but can only be read or derived from the records made at that time. Any attempt to calculate a value, made on the basis of a power of discretion is also not supported, possible or logical. That is why [Comcare] has argued that 45(2) is the applicable provision for payment of incapacity payments, instead of sick leave only, because this value is prescribed and known.

The 1988 Act does not, and can not, have any provision for making any calculations that relate to the period of operation of the 1971 Act. The transitional provisions of the 1988 Act provide that liabilities incurred under the 1971 Act be continued under the 1988 Act. There is no provision that those original liabilities can or should be re calculated, but only transposed, as those values were and then applied in accordance with provisions of S 131. If AFP and Comcare had performed their duty correctly on 01/12/1988, this whole issue would not be in existence now.

This application requires a correct examination of all of the evidence that exists, before the commencing day, and to establish the correct values for my AWE and total benefit; as is required by legislation and justice, so that the correct subsection of S 131 can be determined. This does not need any calculation, only understanding and accepting existing evidence.

The whole of [Comcare’s] submissions and arguments are aimed towards discrediting the only relevant factual evidence and relevant legislation and substituting that with non factual values and incorrect legislation; referred to as calculations and applying them in retrospect to 01/12/1988 not 30/11/1988. The same standard of lack of veracity is evident in their numerous statements that they reproduced all relevant legislation in full. Section 45(7) was not ever reproduced in full, because the omitted part directly contradicts the basis of their argument relating to that section. Additionally, by also joining the quoted part to a part of 45(1), they then falsely argue that 45(7) is a mere payment provision for 45(1) or (2).

50    Mr Ascic continues under the section entitled ‘BACKGROUND TO THIS PROCESS’, by noting:

f)    My original approach to Comcare was that upon my retirement on 01/09/1988 and until December 1988 I was receiving a much higher level of income than after 01/12/1988, and that this level should have continued to and from 01/12/1988. Much of my then contact was via telephone and no records of those conversations exist, relating to those years.

Throughout this process, Comcare and AFP have not ever provided any figures for my income for that period, but only advice that my figures were not correct. This standard of response is also contained in the reviewable decision; which is supported by values form 28 June 1991 and applied in retrospect to the commencement of the [1988] Act and avoiding any reference to the day immediately before the commencing day or any values at all times. This argument hinges on the ‘inference’ generated by ‘as at that day’ that the day immediately before the commencing day is the commencing day instead.

g)    The whole of this process is an appeal against a reviewable decision, the basis of which is illogical, unsupported, impossible to be in reality, and in contradiction to all principles of justice. It is merely an ‘opinion’ that can not be supported by any evidence and therefore also can not be disproved by any evidence either.

The decisions on 23/12/2015 states; “The result of those findings was that the delegate found that the applicant should have been paid at 70% of his Normal Weekly Earnings (NWE) from 28 June 1991 (that is, that section 131(3) was the appropriate section under which to calculate the Applicant’s entitlements to compensation since 1 December 1988)”, but no path of reasoning or calculation is provided or any value from 30/11/1988 to 28/06/1991.

Until very recently, I could not understand why 28 June 1991 was chosen as the reference date for the reviewable decision, this being recorded on the incapacity determination list of 22 June 2015. … My vague recollection and contemporaneous emails now confirm that upon receiving above, I questioned the record of my payment authority being changed from 131(3) to 131(4) on 28/06/1991.

Comcare refused to provide any answers and have used the reviewable decision to now support that change; in contradiction to the legislation itself. At that time I also questioned the reasons for the impossible fractions recorded in only the first 3 entries and nowhere else; which they also refused to respond to. In response to this enquiry, Comcare provided alternate printouts that contained numerous extra impossible fractions and … of Comcare informed me, by telephone, that these were the correct printouts and that the earlier ones had inaccuracies that are now rectified. One of these printouts is referred to, in my Response to SOFIC at para. 17. The above legislation provides that this decision had to be made on the Commencing day, and the only information that was available on that day was from immediately before or from 30/11/1988. The day, 28 June 1991 was 31 months into the future and … argues that the values on 28/06/1991 can in retrospect lawfully determine the values on 01/12/1988.

This can only be determined by the values from 30/11/1988 and only on 01/12/1988.

The reasons that this necessity arises is because AFP and Comcare claim that all documents and all information from 01/09/1988 to 30/11/1988 were permanently lost and unknown.

During the AAT pre hearing conferences, the Respondent assured me and the Tribunal that; in good time before the hearing, they would provide all the information that is missing from T35, page 195; as they were conducting a ‘holistic’ review of the whole of my claim file. I also anticipated that they would provide detailed information on the ‘path of reasoning’ of the basis of the reviewable decision. This was a false promise and a false expectation.

Before the Tribunal hearing and at the hearing, Comcare have totally abandoned the basis of the reviewable decision, and substituted that with their version of the decision, history, interpretation of legislation and the interpretation of the English language.

51    Mr Ascic returns to the issue of allegedly undisclosed material later in his submissions, noting:

20.    The apparent or possible reason that the Respondent has gone to these lengths is the AFP and Comcare claims that all documents and records that relate to my retirement and the period 01/09/1988 to 30/11/1988 have been lost and never to be found again.

This was not possible, unless this was done deliberately.

Even if the documents were lost, the fact is that I received payments of 1971 amount of total benefit from 01/09/1988 till 30/11/1988 and that means that financial records of that exist, and must have been recorded for that period and until 30/11/1988. That information must have been available on 01/12/1988; otherwise no payments could have continued.

The financial record that represents this period is the first entry of Determination 503202 on page 195 of T35 and proves that the payment records could not have been lost.

Likewise, the correct salary and average weekly earnings values must have existed on 30/11/1988 and would have been available on 01/12/1988.

The lack of veracity of the Respondent’s arguments on loss of these documents is illustrated by the following;

Document T 46F is a copy of a letter, addressed to me, advising that a copy of the formal determination and a notice were forwarded to me; but not ever received by me. Document T46E is a letter to AFP, advising that the above letter and attached determination had been forwarded to me and now also to AFP as required under 61 (1) (a) of the 1971 Act.

It is incomprehensible, that the letter and a copy of my letter was received by AFP, and is on file; but the attached determination was not received, is not on file and is lost forever. Document T46D precedes the above letters in the T file and creates the inference that this is the determination that is referred to in the above letters.

This is a false inference in that this is the formal determination relating to the period of my sick leave under 45(2) (3) and (4), from 09/08/1988 to a date to be determined, which must have been 31/08/1988; because my definite retirement date was not known on 09/08/1988.

The missing determination is the formal retirement determination number 503202 for the period 01/09/1988 to 30/11/1988 and can not be the falsely recorded period 1/7/88 to 30/11/88 for 21.7737 weeks. (T35, 195) The existing financial records; when considered with reference to the correct application of all the relevant legislation establishes the following missing information on T 35 above, and the information required to correctly determine and apply Section 131 of the 1988 Act on the commencing day.

On 30/11/1988, my 1971 benefit was $449.08, my AWE was $807.84, my total benefit was $807.84, my actual salary was $583.57 and my overtime was 38.43% or $224.27 additional to my salary; without any allowances, because no allowances were payable.

21.    In contradiction to above, Comcare and AFP do not provide any values for 30/11/1988 and instead they and the Tribunal confirmed their claim that on 01/12/1988 my benefit was $267.30, my NWE was $734.46; but amended before the hearing to $769.13 and by the Tribunal to $777.59. My combined benefit was decided to be $626.06 and my salary to be $26,375.00, or $507.21 per week and overtime component not identified or known. (31) Based on the above calculations, if my salary is $507.21 and my NWE is $777.59; that means that my overtime and allowances must be $270.38 additional to my salary, or 53.31%. This is not supported by any evidence and therefore this and all the other values must also be incorrect.

Perhaps the Respondent’s intent was to legitimise the amended amount and thereby also legitimise the total amount, through the decision of the Tribunal. There is no other reason, or legislated support for this retrospective increase of my NWE. At footnote on page 20, the Tribunal justified the addition of non payable allowances because “special expenses” is not defined. This is not correct as the provision states, “incurred or likely to be incurred by the employee in respect of that employment.” This refers to working or operational allowances only, to which I was not entitled to on sick leave or retirement.

…

23.    …

On 01/12/1988, the NWE value must be derived from the AWE value from 30/11/1988 and not on what arbitrary value Comcare decided that to be on 01/12/1988 or via the Tribunal on 7 September 2017.

There is no evidence on how this value was derived.

The NWE value, determined by the Tribunal at $777.59 at 61 (d) can not be correct, because that value must be derived from the AWE value and because the total benefit of $807.84 immediately before the commencing day is higher, this contradicts the provisions of 45(7) and also proves that this value is wrong.

Following the publication and providing of the Tribunal decision; Comcare informed me that they now intend to adopt the NWE that was determined by the Tribunal; to be my NWE for all the years to 2017 and consequently that they intend to re-calculate all of my payments and seek recovery of all paid entitlements that have been calculated on the basis of any values above this value.

For a period of time, I was terrified that they would initiate this process; but they did not ever proceed and perhaps they merely sought to frighten the life out of me, or to frighten me into submission or from any further proceedings.

24.    The document under consideration above is a critical document; as its contents were relied upon to correctly determine the values of AWE, Salary, Overtime and Total Benefit under the 1971 Act. All the information on this was provided by AFP, and by law, this should all be accurate.

Not one of the figures recorded on this document is my actual salary on 01/09/1988. Not a single recorded hourly rate of pay, calculates to any recorded annual rate of pay. Not a single recorded date is relevant or is, as is required by the form and the Act, apart from my injury date and the date of preparation of A.

According to 25 (4) of the 1971 Act, the calculation date is 12 months before injury, that being 11/12/1986.

The hourly rate of pay, 12 months prior to injury; that being 11/12/1986; is shown to be $12.9636 and a calculated total of $518.54 per week, or $26,964.29 per annum and therefore all other annual values and dates are incorrect and irrelevant.

Document T46A records my salary to be $26.375.00 p.a. on 7 June 1988, this being a lower rate than it was 18 months earlier, on 11/12/1986 of $26,964.29.

The end result of these incorrect values is that if one relies on them as the basis for calculating the amount or percentage of overtime, the results can not be reconciled with any recorded annual value.

The total amount of overtime earned is $10,362.45 at $12.9636 per hour and when divided by $26,964.29, the result is 0.3843, or 38.43%; this representing the percentage of my overtime earnings in addition to my salary.

By adding the total hours of overtime and penalties earned and expressed as normal time; the result is 799.35 hours and when divided by the total annual hours of 2080, the result is also 38.43%, thereby confirming the accuracy of above calculations.

These calculations confirm the accuracy of this overtime calculation and that the salary value is correct for that day. My previous calculations on this are not correct, because I attempted to make the calculations on the basis of wrongly recorded annual salary values instead; I was therefore unable to calculate the above confirmation.

This salary value is not my correct salary at retirement on 01/09/1988 and even though AFP and Comcare have failed or refused to provide this correct value, it is something that the Delegate of the Commissioner would have known at that time, and therefore the only value that was needed for AWE purposes was the overtime. I have previously advised that at my retirement interview, the Delegate informed me that they would grant me the highest level of retirement income; that is 100% of AWE.

(Emphasis in the original.)

52    In responding to Comcare’s submissions, Mr Ascic submits:

33.    [Comcare], at paragraph 25, is critical that I have not provided a means of calculating the amount of compensation payable under the 1971 Act. The reason for this is simple; it is not possible to make such a calculation, for a discretionary determination that is not prescribed. It is only possible to look at the historical records of what was paid and not what was or is calculated to be payable in 2017.

The necessity for this only arises because Comcare and AFP have failed to make and maintain records correctly.

In my amended SOFIC, at paragraph 22, I recorded my total benefit to be $807.84 and my 1971 amount $449.08; but I was not able to calculate my salary or average weekly earnings; because Comcare and AFP concealed that information, and provided distracting false information instead.

Subsequently, after eventually obtaining and understanding the contents of the AWE calculation sheet and being able to verify the amount of overtime to be 38.43%; I was able to provide the missing information at 20 above.

It is AFP and Comcare that generated all of the documents, not I.

53    On the proper construction of s 45 of the 1988 Act, Mr Ascic contends:

8.    Provisions of S 45(1) (2) and (3); clearly state that the prescribed compensation payments relate to being totally incapacitated for work, during that period of incapacity. The amount is prescribed and not determined by the Commissioner. Additionally, 2(A), 2(b) and 2(C) clearly state that the employee; “who would be, or would have been, employed but for his incapacity shall be taken to be employed, or to have been employed; as the case may be;”

Therefore, for the periods of sick leave, the employee is deemed to be employed and not retired or his employment terminated; and consequently; when he is retired these payments must cease.

9.    Payments under 45(7) are conditional upon the employee being retired, as a result of incapacity for work and as a result of retirement being in receipt of a superannuation pension. Therefore employment has been terminated and the previous payments must cease. The payment under this provision is not prescribed in any amount, but is limited to be;” the compensation payable to the employee in respect of each week during the period of the incapacity “shall not exceed the amount, if any, by which the average weekly earnings of the employee before the injury exceed –

“-the part of the pension paid or payable to the employee in respect of that week that is not attributable to contributions for the pension paid by the employee”. S 45(7) Obviously, under this provision, the total benefit is not prescribed, can not be higher than the average weekly earnings, or a total benefit of 100% of AWE value.

In their submissions; in the SOFIC, the hearing and currently; [Comcare] omitted the above highlighted part of 45(7) from their submissions. Without this part, 45(7) and 25 become inoperative and average weekly earnings are deleted from retirement calculations. This inference is further strengthened by avoiding any reference to 25(12), which states that in this section “earnings” includes earnings in respect of overtime; that is, overtime is a component of average weekly earnings.

10.    From the above, it is obvious that 45(2) and 45(7) are distinctly separate provisions; one dealing with sick leave following injury, until employment is resumed or terminated and the other with retirement benefit after employment is terminated.

…

12.    The result of [Comcare’s] argument is to discredit or deny the correct intent and operation of S 45(7). In conjunction with ignoring S 25 (12), this has the effect of eliminating consideration of overtime, AWE or Salary from total benefit consideration. They also created the inference that 45(7) is only the payment provision for incapacity payments of the prescribed amount under 45(2).

This inference was achieved by ‘cherry picking’ parts of 45(7) and parts of 45(2) and inferring that they relate or refer to each other and by ignoring the remaining content of such sections and sub sections. (Page 26 of hearing transcript)

The respondent also argues that subsection (7) is not a ‘payment provision’ because the “compensation payable to the employee.” then refers back to subsection (2). The compensation payable to employee under that section is, “and then you go back to subsection 7 where the rest of the sentence says’.” “Shall not exceed the amount”. The logic of this argument is beyond comprehension and the written law.

One can not pick a phrase in one section or subsection, and then combine that with another cherry picked phrase and make up an inference, of own choice, of the relationship between the two sections; as if this was all a continuation of one provision.

13.    [Comcare] omitted a critical part of 45(7) in all submissions, despite stating that they reproduced sections in full. (15) The omitted part is at 9 above. In replacement to their previous accepted submissions that 45(7) is a mere payment provision for 45(2), they now submit at 33.

“Section 45(7) simply operates to ensure that if either s 45(7) (c) to (e) apply, an employee in receipt of a superannuation pension does not receive more by way of compensation for incapacity than a person who is not in receipt of a superannuation pension.” This interpretation is wrong; if the person is retired and not in receipt of a pension, there is no entitlement to any payments under this provision. Even now, their current citation of 45(7) in Part A-1 is incomplete. It is beyond comprehension how and why this is persistently done by a Senior Counsel. (26, line 24 of hearing)

…

17.    The considerations of average weekly earnings, for the purposes of 45 (2) (b) are totally different to 45(7). In the first instance, it is merely to determine if the amount is higher or lower than the prescribed amounts, so that the lower amount is then payable as sick leave. If an accurate calculation of AWE was needed for the application of 45(2), then the calculation sheet tendered as A would always be needed to be completed immediately upon injury and not on 25/08/1988; in preparation for my retirement on 01/09/1988.

In the second instance, the average weekly earnings must be correctly established so that the amount of combined benefit can be determined upon retirement. The argument at 34 is only partially correct, but incorrect with reference to retirement and S 25, which details how AWE are to be calculated and that overtime is a component of AWE. (S 25 (12)[,] The error here is that no consideration was given to 45(7) and 25, which requires the precise value of average weekly earnings to be established, only upon retirement. This necessity under 45(2) would only arise in instances where the employee’s AWE is less than the prescribed amount.

(Emphasis in original.)

CONSIDERATION

54    Despite very lengthy and broad ranging submissions, particularly from Mr Ascic, the differences between the parties are perhaps most clearly evident from the following exchanges which occurred in 2015.

55    On 29 September 2015, Mr Ascic emailed Comcare saying:

…

1.    I was retired on a salary of $26,375.00 per annum, with penalties of overtime earned of $7,607.00 … this being an additional 28.84% of salary.

    Making a total of $33,982.00 per annum. This being the income that was considered and used to calculate the income I was retired on.

    ARE AND HAVE MY NORMAL WEEKLY EARNINGS BEEN CALCULATED ON THE BASIS OF THE SALARY ONLY, OR IS THE OVERTIME AMOUNT OR PERCENTAGE ALSO INCLUDED IN THAT CALCULATION????

    If not, I request that this be reviewed and corrected.

56    At paragraph 2 of his email, Mr Ascic set out s 131 of the 1988 Act. The email continues with him noting:

…

3.    As to 30/11/1988, some 3 months after retirement, I was receiving a superannuation pension of $18[,]655.73 per annum and Comcare benefits of $14,456.09 per annum.

    As total of Normal Weekly Earnings of $33,111.82, 95% of $33,982.00 is $32,282.90 and this is less than $33,111.82. Therefore I was receiving more than 95% of NWE… and according to the above, should have continued to do so. But obviously have not. I REQUEST THAT YOU REVIEW/EXAMINE AND RECTIFY THIS AND INFORM ME ACCORDINGLY.

4.    I do not have copies of all above supportive documents and if your Office does not, I can provide them to you… if required…

PLEASE ATTEND TO THESE MATTERS A MATTER OF URGENCY….

57    By letter dated 23 December 2015, a Senior Review Officer from Comcare responded stating relevantly:

On 29 September 2015 you wrote an email to Comcare submitting that your compensation for incapacity had been incorrectly calculated because, at the commencement date of the [1988 Act] you were ‘receiving a superannuation pension of $18,655.73 per annum and Comcare benefits of $14,456.09 per annum’, being a combined total benefit of $33,982 per annum. You also submitted that your normal weekly earnings (‘NWE’) were $33,111.82 at that time and that 95% of your NWE was $32.282.90. You then submitted that your combined benefit was more than 95% of your NWE and that your entitlement to compensation for incapacity should have been calculated, and should still be calculated, under section 131(2) of the [1988] Act.

I agree that your combined superannuation and compensation benefit at the commencement date of the [1988] Act was $33,111.82, but I do not agree that your NWE at that time was only $33,982.

Our electronic records of your NWE figures commence from November 1990, and at that time your NWE were $838.96 per week, which is a yearly figure of $43,625.92. It is important to note that the NWE figure is calculated taking into account the earnings at the time of your injury and increasing in line with award increases and also takes into account allowances and overtime.

I have used the November 1990 NWE figure as a starting point. Your figure of $33,982 from November 1988 would need to have increased by approximately 24% in two years to reach the November 1990 figure. I find this extremely unlikely.

I am satisfied that your NWE was significantly higher than $33,982 at the commencement of the [1988] Act, such that the combined benefit you were receiving at the time is very unlikely to have been more than 95% of the NWE.

In other words, at the commencement date of the [1988] Act, I am satisfied that you were receiving total benefits that were less than 95% of your NWE. The applicable subsection of the [1988] Act for the calculation of incapacity at the commencement of the [1988] Act was subsection 131(3), being the section relevant to those employees who were receiving between 70% and 95% of their NWE on the commencement date.

Section 131(5) is also relevant. It has the effect of gradually reducing compensation for incapacity until the combined benefit equals 70% of NWE. From reviewing your file, it appears that your compensation for incapacity was reduced in line with that section until 28 June 1991. As at that date, your combined benefit equalled 70% of your NWE.

(Emphasis added.)

Overview

58    In an attempt to better understand Mr Ascic’s arguments, the initial listing of the application was adjourned to enable him to attempt to obtain legal advice and representation. Regrettably, at least for the purposes of this hearing and the filing of submissions, the hope did not materialise and his arguments about a reasonably complex legislative interface between the 1971 Act and the 1988 Act have not been easy to follow either as to their substantive basis or the consequences of the construction he has advanced.

59    The conclusion to which one is driven, however, is that the decisions Mr Ascic asks the Court to reach are (in large measure) conclusions of fact based on evidence that was before the Tribunal and to which the Tribunal alone was entitled to afford the appropriate weight. Whilst Mr Ascic has sought to identify questions of law, those questions when examined by reference to the legislation simply involve findings of fact on material before the Tribunal. Once certain facts were found, certain subsections apply. Secondly, although Mr Ascic focusses on non-provision of documents, evidence in support of this possibility, apart from bar table assertions, is scant. There is no doubt that the Tribunal had sufficient information from which to reach its conclusions of fact in relation to the amounts payable to Mr Ascic, which is the statutory test in contrast to his recollection as to amounts actually paid. It is nonetheless regrettable that certain contemporaneous records are no longer available, but not particularly surprising given the events concerned occurred over 30 years ago. The succinct response in Comcare’s 2015 correspondence is a correct and complete answer to Mr Ascic’s complaints. Once the facts as to the amounts payable were found by the Tribunal, it was clear what Mr Ascic’s NWE at the commencement of the 1988 Act was and that Mr Ascic’s total benefits fell in the range of 70% to 95% of this NWE. As such s 131(3) (not s 131(2)) of the 1988 Act applied, as found by the Tribunal.

Application of the statute

60    The 1988 Act commenced on 1 December 1988. It deals separately with an ‘employee’ and a ‘former employee’ for the purposes of calculating payments for incapacity. A ‘former employee’ is defined in s 123 of Pt X of the 1988 Act to mean:

… a person who, immediately before the commencing day, was receiving weekly payments of compensation under the 1971 Act in respect of an injury resulting in incapacity and had ceased to be an employee within the meaning of that Act before that day.

61    Mr Ascic is, of course, a ‘former employee’ rather than an ‘employee’ because he was retired on 1 September 1988; that is, before the commencing day. He was receiving weekly payments of compensation under the 1971 Act in respect of an injury resulting in incapacity. Therefore, Pt X of the 1988 Act (setting out the ‘transitional provisions’ in respect of a former employee previously covered by the 1971 Act), rather than Pt II, applied to the calculation of the amount of compensation payable to Mr Ascic in respect of his incapacity for work which was a consequence of his injury sustained on 11 December 1987.

62    As is apparent from the first question of law raised by Mr Ascic, the central issue in dispute before the Tribunal related to which subsection of s 131 within Pt X of the 1988 Act applied to Mr Ascic. Section 131 functions to equate the compensation entitlements that a class of former employees receive with the payment entitlements of employees injured after the commencement of the 1988 Act. It seeks to achieve this by indexing payments. Section 131 of the 1988 Act applies to a ‘former employee’ who falls within a specific class, namely, pursuant to s 131(1), a former employee who (a) on the commencing day, was under 65 and in receipt of a pension under a superannuation scheme; and (b) is not capable of engaging in any work.

63    Mr Ascic was 37 years old when injured. He was therefore ‘under 65’ on the commencing day of the 1988 Act. In 1988, prior to the commencing date, Mr Ascic was also in receipt of a pension under a superannuation scheme. Therefore, as the Tribunal found, s 131(1)(a) is satisfied. As at the date of the Tribunal’s decision, Mr Ascic continued to be certified as unfit for work. Therefore, s 131(1)(b) is satisfied. Accordingly, s 131 applies to Mr Ascic’s circumstances and, as the Tribunal found, needs to be applied in calculating the amount of Mr Ascic’s incapacity payments.

64    For convenience, s 131(2) and s 131(3) are also now repeated. They provide:

131    Former employees under 65 who are in receipt of superannuation benefits and are unable to engage in any work

…

(2)    Subject to this Division, if the former employee’s total benefit immediately before the commencing day was equal to or more than 95% of his or her normal weekly earnings as at that day, the amount of compensation payable per week to the former employee under this Act is the amount that, when added to the former employee’s superannuation amount, results in a combined benefit equal to 95% of those normal weekly earnings.

…

(3)    Subject to this Division, if the former employee’s total benefit immediately before the commencing day was equal to or more than 70%, but less than 95%, of his or her normal weekly earnings as at that day, the amount of compensation payable per week to the former employee under this Act is an amount equal to the employee’s 1971 amount.

65    It becomes necessary then to calculate the ‘total benefit’. It is also necessary to clarify the meaning of ‘immediately before the commencing day’.

66    Section 123 of the 1988 Act defines ‘total benefit’, in relation to a former employee, to mean:

… an amount equal to the sum of:

(a)    the amount of compensation payable per week to the former employee under the 1971 Act; and

  (b)    the employee’s superannuation amount.

(Emphasis added.)

67    As Mr Ascic was a former employee, ‘the amount of compensation payable per week’ was to be determined pursuant to the 1971 Act, specifically s 45 which, as noted, dealt with the compensation payable to an employee ‘totally incapacitated for work’. Section 45 of the 1988 Act was examined by the Tribunal and it determined that the amount of compensation payable under the 1971 Act was $267.30. There was ample material on which it could reach its decision as to the amount payable (see above at [23]). That fact finding was for the Tribunal, not the Court. The parties agreed that Mr Ascic’s ‘superannuation amount’ was $358.76. It follows, by adding the ‘superannuation amount’ and the ‘amount of compensation payable per week…under the 1971 Act’ together, that Mr Ascic’s ‘total benefit immediately before the commencing day’ (as defined by s 123 of the 1988 Act and for the purposes of s 131 of the 1988 Act) was $626.06.

68    The Tribunal then proceeded to calculate what Mr Ascic’s ‘normal weekly earnings as at that day’ (as distinct from ‘total benefit immediately before the commencing day’). It concluded that they amounted to $777.59. While Mr Ascic took issue with this figure before the Tribunal and before this Court, it is not for this Court in an application for judicial review to reassess the evidence and I am not satisfied any error of law is shown in the Tribunal reaching this finding. This figure of $777.59 comprised the $734.46 that was the quantum agreed upon by the parties, plus the allowances the Tribunal was satisfied also comprised Mr Ascic’s NWE. I do not consider the Tribunal erred in this assessment in light of the definition of ‘normal weekly earnings’ in s 8 of the 1988 Act.

69    Finally, having regard to its findings as to what amounted to Mr Ascic’s ‘total benefit’ and his ‘normal weekly earnings as at that day’, the Tribunal determined that Mr Ascic’s total benefit immediately before the commencing day of the 1988 Act was 80.52% of his NWE as at that day. Therefore, as this percentage was ‘equal to or more than 70% but less than 95% of his NWE as at that day’, the Tribunal therefore determined that s 131(3) (not s 131(2)) of the 1988 Act applied to calculate Mr Ascic’s compensation payments.

70    Mr Ascic appears to contend that the only period the Tribunal should have had regard to was from 1 September 1988 to 30 November 1988.

71    The prescribed amount, for the purposes of s 45(2)(a) as at 12 June 1988 was $192.80. In 1988, Mr Ascic had a wife and a child. He was therefore also entitled to an additional $50.50 in relation to his wife (pursuant to s 45(3)) and $24.00 in relation to his child (pursuant to s 45(4)). The total of those three figures amounts to $267.30.

72    The deemed date of injury was over 30 years ago. No direct evidence was available to the Tribunal of the amount of compensation that was actually paid to Mr Ascic in the period from 1 September 1988 to 30 November 1988. However, the following evidence led the Tribunal to accept that it was more likely than not that the weekly amount of compensation paid or payable to Mr Ascic in the period ‘immediately before the commencing day’ was $267.30 per week:

(a)    a determination dated 7 June 1988 that stated that, with respect to Mr Ascic, the ‘Standard compo rates current at 1.7.88’ were $267.30 per week;

(b)    a determination dated 30 June 1988 that determined the rate of incapacity compensation payable to Mr Ascic during the period from 5 July to 8 August 1988 was $267.30 per week;

(c)    a determination dated 25 July 1988 that determined that the rate of incapacity compensation payable to Mr Ascic during the period from ‘9/8/88 to a date to be determined by the Commissioner or his delegate’ totalled $267.30; and,

(d)    a letter from Comcare dated 22 December 1988 which stated that:

Mr Ascic’s compensation entitlement has not changed as a result of the commencement of the [1988 Act]. Compensation payments should continue at the rate of $267.30 per week until otherwise advised by this office.

It is not entirely clear whether this finding of fact is challenged but it is not a fact finding open to merits review and was based on legitimate reasoning. Furthermore, the test for ‘total benefit’ and for s 131 is ‘payable’ not ‘paid’. So whether, in fact Mr Ascic was paid $267.30, is not the issue.

73    Section 45(2) of the 1971 Act provided:

(2)    Subject to this section, compensation is payable to the employee, during the period of the incapacity, of an amount per week equal to-

(a)    $90, or such higher amount as is prescribed, plus any amount or amounts required to be added to that amount in accordance with the succeeding provisions of this section; or

(b)    the average weekly earnings of the employee before the injury,

whichever is the less.

(Emphasis added.)

74    Pursuant to s 45(2), that amount must be compared to the ‘average weekly earnings’ or the AWE of Mr Ascic before the injury to determine which is the lesser amount. Pursuant to s 25(4) of the 1971 Act, with regard to the date of Mr Ascic’s injury, the relevant period for determining Mr Ascic’s AWE is 10 December 1986 to 10 December 1987. Comcare contended, and the Tribunal recorded that Mr Ascic accepted, that Mr Ascic’s base salary (without allowances) was $25,048, a figure in excess of $267.30 per week.

75    Therefore, the amount calculated pursuant to s 45(2)(a), rather than s 45(2)(b), was payable. Any additional amount added to the base salary to account for allowances payable to Mr Ascic for overtime payments, would only have increased his AWE and, consequently, s 45(2)(a) would continue to apply as it is to be the lower of the amounts that is payable.

76    As to the s 45(7) argument, Mr Ascic contends, by ground 3 and ground 6, that the Tribunal erred by ‘failing to determine the compensation amounts applicable pursuant to s 45(7)’ of the 1971 Act and by finding that the phrase ‘compensation payable’ in s 45(7) refers back to the phrase ‘compensation payable’ used in s 45(2).

77    Section 45(7), which for ease of reference is repeated, provides:

(7)    If the employee-

(a)    is retired from his employment as a result of the incapacity for work; and

(b)    as a result of the retirement is in receipt of a pension under a superannuation or provident scheme established or maintained by the Commonwealth or by a prescribed authority of the Commonwealth,

the compensation payable to the employee in respect of each week during the period of the incapacity shall not exceed the amount, if any, by which the average weekly earnings of the employee before the injury exceed-

(c)    if a part of the pension is, under the scheme, attributable to contributions for the pension paid by the employee-the part of the pension paid or payable to the employee in respect of that week that is not attributable to those contributions;

(d)    if the employee has paid contributions under the scheme, the scheme does not identify a part of the pension as being attributable to those contributions and the Commissioner has determined that if it is reasonable that a part of the pension should be treated as if it were attributable to those contributions-the part of the pension paid or payable to the employee in respect of that week that is determined by the Commissioner to be the part that is to be treated as not attributable to contributions for the pension paid by the employee; or

(e)    in any other case-the pension paid or payable to the employee in respect of that week.

(Emphasis added.)

78    Mr Ascic seeks to rely on s 45(7)(d) of the 1971 Act which gives Commissioner a discretion in those limited circumstances. No such discretionary determination was in evidence. Nor has it been factually identified at any time. There is no foundation for any argument based on such a determination. The argument that s 45(7) means s 45(2)(a) does not apply to his circumstances cannot be accepted. I accept Comcare’s contention that s 45(7) simply operates to ensure that if either ss 45(7)(c)-45(7)(e) apply, an employee in receipt of a superannuation pension does not receive more by way of compensation for incapacity than a person who is not in receipt of a superannuation pension. I cannot identify error in the Tribunal’s reasoning with respect to the application of s 45(7).

79    Mr Ascic contends by ground 4 that the Tribunal erred by failing to consider s 25(10) and s 25(12) when it calculated Mr Ascic’s AWE. In my view, the Tribunal was not required to do so. Mr Ascic’s base salary (without allowances) as a weekly sum exceeded the figure that the Tribunal concluded was applicable pursuant to s 45(2)(a). It was not necessary for the Tribunal to establish precisely what the ‘average weekly earnings’ were because adding more allowances to that base figure (pursuant to s 25(10) and s 25(12)) would only have increased the ‘average weekly earnings’ figure and thus further confirmed that the amount calculated pursuant to s 45(2)(a) applied as the lesser amount.

80    It is not easy to follow the contentions raised in ground 5 and ground 7. Ground 5 contends that the Tribunal erred in law by not accepting that the AWE included overtime and allowances and that they are both payable under s 45(2). By ground 7, it is contended that ‘overtime and allowances are not payable under section 45(2)’. The amount of $777.59 represents the normal weekly earnings or NWE figure, not the average weekly earnings or AWE figure. The Tribunal was correct to conclude that ‘normal weekly earnings’ was an expression introduced to the Commonwealth workers’ compensation scheme by the 1988 Act on 1 December 1988. The concept of NWE did not apply to any period prior to 1 December 1988 as it was not a phrase used in any of the legislation that preceded the 1988 Act. Therefore the phrase, ‘as at that day’, can only refer to the commencement date. This is precisely how it reads. I accept the Comcare submissions (as did the Tribunal), that if the reference was intended to be to a date prior to the commencement day, the phrase ‘normal weekly earnings’ would not have been used because it is a concept foreign to the 1971 Act. The phrase ‘immediately before the commencing day’ does not refer to a fixed date. If the legislature intended to refer to a fixed date, it could easily have done so.

81    On the second question of law, whether adequate reasons were given, I have identified the only submissions made by Mr Ascic on this point. The reasons of the Tribunal were fulsome and clear, despite the complexity of the legislation and more so of Mr Ascic’s arguments. Section 43(2) of the AAT Act requires the Tribunal to give reasons (either orally or in writing). Section 43(2B) of the AAT Act requires the Tribunal’s reasons to include its findings on material questions of fact and a reference to the evidence or other material on which those findings were based.

82    That a question of law may be raised by a failure on the part of the Tribunal to comply with its statutory obligation under s 43(2B) of the AAT Act may be accepted: Ekinci v Civil Aviation Safety Authority (2014) 227 FCR 459 per Bennett, Nicholas and Griffiths JJ (at [116]). This Court has always approached the duty prescribed in s 43(2B) as one which must be interpreted and applied sensibly. It is not necessary that the reasons address every issue raised in the proceeding; it is sufficient that they deal with the substantive issues upon which the decision turns: Total Marine Services Pty Ltd v Kiely (1998) 51 ALD 635 per Sackville J (at 640 and the cases therein cited). I am not satisfied there was any inadequacy of reasoning.

CONCLUSION

83    As the grounds cannot succeed, the application must be dismissed with costs.

Associate:

Dated:    4 June 2019