Cooper v Comcare [2002] FCAFC 50; [2002] FCA 220 (8 March 2002)

Last Updated: 8 May 2002

Cooper v Comcare [2002] FCAFC 50

Cooper v Comcare [2002] FCA 220

NOTE: CHANGES TO THE MEDIUM NEUTRAL CITATION (MNC)

The Federal Court adopted a new medium neutral citation (FCAFC) for Full Court judgments effective from 1 January 2002. Single Judge judgments will not be affected and will retain the FCA medium neutral citation.

The transitional arrangements are as follows:

* All Full Court judgments delivered prior to 1 January 2002 will retain the FCA medium neutral citation.

* All Full Court judgments delivered between 1 January 2002 to 30 April 2002 have been assigned parallel medium neutral citations in both the FCA and FCAFC series.

* All Full Court judgments delivered from 1 May 2002 will contain the FCAFC medium neutral citation only.

FEDERAL COURT OF AUSTRALIA

Cooper v Comcare [2002] FCA 220

WORKERS COMPENSATION - Commonwealth employees compensation - Appellant (a former employee of Commonwealth) was receiving compensation in respect of an injury at 1 December 1977, the date of commencement of the 1988 Act - Appellant turned 65 in December 2000 - Compensation payments then reduced by 65% - Claim that compensation payable in December 2000 related to a different injury than that occasioning compensation at 1 December 1988 - Whether appellant was a "former employee" within the definition in s 123 of 1988 Act - Meaning of "an injury resulting in an incapacity" - Discussion of effect of transitional provisions of Act.

Safety, Rehabilitation and Compensation Act 1988: ss 19, 23, 123, 132, 134

JAMES COOPER v COMCARE

W 371 of 2001

BLACK CJ, WILCOX and MOORE JJ

8 MARCH 2002

PERTH

IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY	W371 OF 2001

ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN:	JAMES COOPER APPELLANT
AND:	COMCARE RESPONDENT
JUDGES:	BLACK CJ, WILCOX and MOORE JJ
DATE OF ORDER:	8 MARCH 2002
WHERE MADE:	PERTH

THE COURT ORDERS THAT:

1. The appeal be dismissed.

2. Costs be reserved.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY	W371 OF 2001

ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN:	JAMES COOPER APPELLANT
AND:	COMCARE RESPONDENT

JUDGES:	BLACK CJ, WILCOX and MOORE JJ
DATE:	8 MARCH 2002
PLACE:	PERTH

REASONS FOR JUDGMENT

THE COURT:

1 This is an appeal against a decision of a judge of the Court (French J) dismissing an appeal against a decision of the Administrative Appeals Tribunal ("the AAT"). The litigation concerns the entitlement of the appellant, James Cooper, to receive compensation under the Safety, Rehabilitation and Compensation Act 1988 ("the 1988 Act"). The respondent to the appeal is Comcare, the body corporate established under s 68 of the 1988 Act.

Background

2 On 29 January 1987 Mr Cooper commenced employment with the Department of Veterans Affairs as an orderly at the Repatriation General Hospital at Hollywood, Western Australia. Within the following few months, he sustained two injuries in the course of his employment: an ankle injury on 19 February 1987 and a back injury on 22 May 1987. At various times prior to 1 December 1988, Mr Cooper received weekly compensation payments in respect of each of these injuries. These payments were made to him pursuant to the predecessor of the 1988 Act: the Compensation (Commonwealth Government Employees) Act 1971 ("the 1971 Act").

3 The 1988 Act commenced on 1 December 1988. It replaced and repealed the 1971 Act. It contained transitional provisions dealing with Commonwealth employees who had become entitled to compensation under the 1971 Act. We will return to the detail of these provisions.

4 After the commencement of the 1988 Act, Mr Cooper continued to receive weekly payments of compensation. These payments were calculated on the basis that he was incapacitated for work. The payments continued to be made, in accordance with the applicable rate from time to time, until Mr Cooper attained his 65^th birthday on 5 December 2000. It is clear that, by that time, Mr Cooper's compensation entitlement was solely referable to his back condition, not his ankle.

5 Shortly before his 65^th birthday, Mr Cooper received a letter from an officer of Comcare that relevantly read as follows:

"I am writing to you about your claim for back injury sustained on 22/5/87 and to advise you that Comcare's liability to pay you compensation for incapacity will be reduced from your 65^th birthday.

The reason for this decision is section 134 of the Act, which provides that when a former employee reaches age 65 the weekly payment will be reduced and fixed as calculated under the formula:

5 x (65 - A) x C

100

where

A is the age of the former employee, expressed in completed years, as at the commencing day (1 December 1988)

And

C is that amount of compensation payable per week to the former employee.

In simple terms, following your birthday, your gross fortnightly incapacity payments will be reduced by 5% for each year (or part thereof) that the Act has been in force. As the SRC Act commenced on 1 December 1988 the current reduction is 65%. This is a once only reduction and future payments are frozen at this new rate.

The information I hold indicates that you will turn 65 on 6/12/1935, that you are a former employee for the purposes of the SRC Act and that your presently weekly entitlement is $366.94.

I therefore determine that in accordance with section 134, from 6/12/1935 your compensation is reduced to $128.42 and will remain fixed at that rate."

6 The two references to "6/12/1935" were, of course, errors. The references should have been to 6 December 2000.

7 Mr Cooper filed with the AAT an application for review of this decision. Comcare responded with an application pursuant to s 42B of the Administrative Appeals Tribunal Act 1975 ("the AAT Act") for orders dismissing the application for review and restraining Mr Cooper, without leave of the AAT, from making any subsequent application to the AAT in respect of the same or associated issues.

8 On 9 May 2001, a Deputy President of the AAT acceded to Comcare's application and made the orders it had sought.

9 Pursuant to s 44 of the AAT Act, Mr Cooper appealed to this Court against the AAT's orders. The matter came before French J. On 9 August 2001 his Honour ordered that the appeal be dismissed with costs.

The factual issue

10 In his reasons for decision, French J made two factual statements that Mr Cooper contested on the appeal. First, at para 13, his Honour said it was not in dispute that s 132 of the 1988 Act applies to Mr Cooper. Mr Cooper told us this was, and always had been, in dispute. Second, and related to the first point, French J said at para 22 (and again at para 25) that, at the date of commencement of the 1988 Act, the compensation entitlement of Mr Cooper "derived from both his ankle and his back injuries". Mr Cooper maintained before us that the compensation paid to him immediately before the commencement of the 1988 Act was solely attributable to his ankle injury, and not in any way to his back injury. It is not clear to us whether this was his stance before French J.

11 The identity of the injury that gave rise to Mr Cooper's compensation entitlement immediately prior to 1 December 1988 was fundamental to his argument on the appeal. In order to explain why this was so, it is necessary to refer to the transitional provisions in the 1988 Act.

The statutory provisions

12 The transitional provisions are contained in Part X of the 1988 Act. That part commences with a definition section (s 123). The definitions include that of "former employee" viz "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".

13 Section 124(1) of the 1988 Act makes that Act apply, subject to Part X, "in relation to an injury, loss or damage suffered by an employee, whether before or after the commencing day". The presumable reason for making the 1988 Act apply to injuries suffered before the commencing day is that the 1971 Act was being repealed; without such an application the employee would have been left without compensation.

14 Subsection (1A) of s 124 dealt with this entitlement more specifically. It provided:

"Subject to this Part, a person is entitled to compensation under this Act in respect of an injury, loss or damage suffered before the commencing day if compensation was, or would have been payable to the person in respect of that injury, loss or damage under the 1912 Act, the 1930 Act or the 1971 Act."

15 The remainder of s 124 stated various circumstances under which a person "is not entitled under this Act". None of those circumstances apply to this case. It is not necessary to set them out. However, it is important to make the point that s 124 does not provide any particular entitlements. It merely talks about "compensation under this Act"; thus referring the reader to earlier provisions concerning the nature and amount of various compensation entitlements. Those concerning weekly payments on account of incapacity are ss 19, 20, 21, 21A, 22 and 23. It seems to be common ground that the payments received by Mr Cooper after commencement of the 1988 Act were based on s 19.

16 It is not necessary to refer to ss 125 to 131 of the 1988 Act. However, s 132(1) is important. It appears in Division 3 of Part X. That Division is headed "Special transitional provisions relating to certain former employees". Section 132(1) reads:

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

(a) on the commencing day, was under 65 and not in receipt of a pension under a superannuation scheme; and

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

17 Section 134(1) provides:

"(1) When a former employee to whom section 131, 132 or 132A applies reaches 65, the amount of compensation payable per week to the former employee but for this section shall be reduced by an amount calculated under the formula:

5 x (65 - A) x C

100

where:

A is the age of the former employee, expressed in completed years, as at the commencing day; and

C is that amount of compensation payable per week to the former employee."

18 It is common ground that neither s 131 nor s 132A applies to Mr Cooper. The question is whether s 132 does so.

The appellant's argument

19 As we have said, it was fundamental to Mr Cooper's argument that, at the time of commencement of the 1988 Act, his compensation entitlement was solely referable to his ankle whereas, as is clearly the position, his entitlement at 6 December 2000 was solely referable to his back. He said that, as the compensation entitlement at the two critical dates, for s 134(1) purposes, was referable to different injuries, he did not fall within the definition of "former employee" contained in s 123; consequently he was not a "former employee who: on the commencing day, was under 65 and not in receipt of a pension under a superannuation scheme", within the meaning of s 132 of the 1988 Act. That meant, according to the argument, that s 134(1) did not apply. As this provision was the basis of the decision to reduce his compensation entitlement from 6 December 2000, the decision was erroneous in law. It would follow that the AAT erred in law in dismissing his application for review as frivolous and French J erred in dismissing Mr Cooper's appeal in this Court.

Conclusion

20 As we have indicated, there is doubt as to the source of Mr Cooper's compensation entitlement immediately before commencement of the 1988 Act. This doubt probably arises because of the course taken by the AAT in summarily dismissing Mr Cooper's application for review. French J questioned whether it was desirable for the Tribunal to dismiss an application under s 42B because any review of the decision would involve the application of principle governing summary disposition. We agree. However there is an additional consideration pointing to the undesirability of summary dismissal which was evident in this case. If a primary decision-maker dismisses an application summarily findings may not have been made concerning all relevant facts. In our opinion the preferable course, other than in the clearest of cases, is for the Tribunal to determine the application on the merits and, in so doing, find all relevant facts.

21 Fortunately, in the present case, the doubt about the source of the 1988 entitlement does not matter. We are of the opinion, and contrary to the submission of Mr Cooper, that the application of the definition of "former employee" does not depend upon the identity of the injury in respect of which the employee received weekly payments of compensation under the 1971 Act. It is sufficient there be "an injury resulting in an incapacity"; that is, any injury. This is the meaning of "former employee" contended for by the respondent in these proceedings.

22 We reach this conclusion for two reasons. First, we think it is the most natural construction of the definition. The words "an injury" contain no element of particularity. Second, the reason for the definition must be borne in mind. It was inserted in order to identify people whose accrued rights were to be protected under the transitional provisions. Having regard to that fact, and the broader circumstance that the whole purpose of the Act was to provide benefits for injured Commonwealth employees, the definition should be construed as widely as its terms will permit.

23 Mr Cooper argued this appeal in the belief that it is in his interests for the Court to determine that he does not fall within the definition of "former employee" in s 123. He rightly realised that, if this were the case, s 134(1) would not apply to him; no reduction of compensation could be made under that subsection. However, he overlooked the effect of s 23(1) of the Act. As we have indicated, Mr Cooper's entitlement to weekly compensation after the commencement of the 1988 Act depended upon s 19 of that Act. However, s 23(1) of the 1988 Act provides:

"Compensation is not payable under section 19, 20, 21, 21A or 22 to a person who has reached 65."

24 As Mr Cooper's compensation was being paid under s 19, between the commencement of the 1988 Act and his 65^th birthday, the prima facie effect of s 23 is to terminate his compensation payments on his 65^th birthday. Contrary to a submission put by Mr Cooper, it is immaterial that the original compensation entitlement arose before his 65^th birthday; Comcare's liability to pay weekly compensation in respect of incapacity accrues from week to week: see the opening words of s 19(3).

25 As we understand the position, the 1971 Act did not provide for weekly compensation payments to terminate upon the recipient's 65^th birthday. Consequently, if it had stood alone, s 23 would have had a sudden adverse effect upon some people who were receiving compensation, under the 1971 Act, immediately prior to the commencement of the 1988 Act. One of the evident purposes of the transitional provisions, in Part X of the 1988 Act, was to avoid that situation. Compensation payments to persons over 65 years of age were not to cease immediately, but to be withdrawn gradually over a 20 year period. The mechanism by which this was effected was the concept of "former employee" and the substantive rules set out in Division 3 of Part X, including s 134.

26 Mr Cooper needs to fall into the definition of "former employee" in order to take advantage of the transitional provisions - in particular, s 134 - and thereby avoid the full effect upon him of s 23 of the 1988 Act. His case illustrates why the words "an injury", in the definition of "former employee", should be read expansively, so as to refer to any injury in respect of which compensation payments were being made at the date of commencement of the Act; whether or not it was this injury that attracted compensation payments immediately before the person's 65^th birthday.

27 The decision of Comcare to reduce Mr Cooper's pension by 65% on his 65^th birthday did not involve any error of law. Although we share the concern of French J as to the course adopted by the AAT, in summarily dismissing Mr Cooper's application for review, this did not involve any error of law. Nor did it deprive Mr Cooper of any prospect of success; he had no such prospect. Accordingly, we endorse the decision of French J to dismiss Mr Cooper's appeal. The appeal to the Full Court must also be dismissed.

28 At the hearing, nothing was said about costs. The point argued by Mr Cooper is one of general importance in relation to the operation of the 1988 Act. Having regard to that fact, and the nature of the relationship between the parties, Comcare may decide not to seek an order for costs. If it does wish to obtain an order, application should be made by way of a written submission.

29 The formal orders of the Court will be that:

(a) the appeal be dismissed; and

(b) costs be reserved.

I certify that the preceding twenty-nine (29) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Court.

Associate:

Dated: 8 March 2002

Appellant appeared in person.
Counsel for the Respondent:	S Pilkinton
Solicitor for the Respondent:	Dibbs Barker Gosling
Date of Hearing:	5 March 2002