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Federal Court of Australia |
Last Updated: 26 October 1998
Acts Interpretation Act 1901 (Cth) s.23
Social Security Act 1991 (Cth) ss. 17,1163,1165,1166,1168,1170
Australian Broadcasting Tribunal v Bond Corporation Holdings (1989) 86 ALR 424, refd.
Blue Metal Industries Ltd v Dilley (1969) 117 CLR 651, refd.
Blunn v Cleaver 47 FCR 111, cons.
Walsh v Tattersall [1996] HCA 26; (1996) 188 CLR 77, refd.
SECRETARY, DEPARTMENT OF SOCIAL SECURITY v MARK REX JACKSON
NO QG 171 OF 1997
OLNEY, COOPER AND MOORE JJ
BRISBANE
22 OCTOBER 1998
IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY
No QG 171 of 1997
ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA.
BETWEEN:
APPELLANT
AND:
RESPONDENT
JUDGES: OLNEY, COOPER AND MOORE JJ
DATE: 22 OCTOBER 1998
PLACE: BRISBANE
THE COURT ORDERS THAT:
1. The appeal be allowed.
2. The orders of the primary Judge be set aside.
3. The appeal from the decision of the Administrative Appeals Tribunal made on 12 August 1996 be dismissed.
4. The respondent pay the costs of the appellant to the appeal and below.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY QG 171 OF 1997
|
BETWEEN: | SECRETARY, DEPARTMENT OF SOCIAL SECURITY
APPELLANT |
|
AND: | MARK REX JACKSON
RESPONDENT |
|
JUDGES: | OLNEY, COOPER AND MOORE JJ |
| DATE OF ORDER: | 22 OCTOBER 1998 |
| WHERE MADE: | BRISBANE |
THE COURT ORDERS THAT:
1. By agreement of the parties Order 4 of the Orders of the Court made this day is vacated and there be no order as to costs of the appeal or below.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY
No QG 171 of 1997
ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA.
BETWEEN:
APPELLANT
AND:
RESPONDENT
JUDGES: OLNEY, COOPER AND MOORE JJ
DATE: 22 OCTOBER 1998
PLACE: BRISBANE
This appeal raises an issue as to the proper construction of certain provisions of the Social Security Act 1991 which are intended to limit the entitlement to social security benefits of persons who have received lump sum compensation payments. It is said that the legislative policy is to prevent "double dipping" although that object is not necessarily achieved, and if achieved, does not necessarily do so on an equitable basis.
The factual context in which the statutory provisions fall to be considered are unremarkable. The respondent suffered personal injury at work on 11 September 1990 and was thereby totally incapacitated, initially, from the date of the injury until 22 April 1991. During that period he received weekly payments of compensation under Queensland workers' compensation legislation. He resumed employment in a different capacity on 23 April 1991 and continued until 1 February 1993. During this period he received wages, albeit at a reduced rate compared to his pre-accident earnings, but did not receive either workers' compensation payments or any social security benefit. In February 1993 he was required to undergo surgery and was again off work in receipt of workers' compensation until 20 June 1993. From 21 June 1993 until early in 1995, when he obtained further employment, he received unemployment benefit from the Department of Social Security. On 25 May 1995 he settled a common law damages claim against his former employer for a net sum of approximately $142,500. The settlement included allowances for both lost earnings and lost earning capacity.
Part 3.14 of the Act deals with compensation recovery. The general effect of the Part, as expressed in s 1163(1), is that if a person is or may be entitled to or receives compensation which contains a component relating to lost earnings or lost earning capacity (the term "compensation" is defined in s 17(2)) certain social security payments (including unemployment benefit) might be affected. In particular
s 1163(3) indicates that if the compensation is in the form of a lump sum, the benefit might cease to be payable for a period (based on the amount of the lump sum) and some or all of the benefit might be repayable.
The scheme of compensation recovery, insofar as it applies to the instant case, was triggered by receipt by the respondent of compensation in the form of a lump sum. In such a case a benefit for which the person may otherwise be qualified for is not payable for a period called "the lump sum preclusion period" (s 1165(1)), and if a benefit has been received for the lump sum preclusion period, the amount paid is recoverable by the Secretary of the Department of Social Security (s 1166(1)).
The issue between the parties to the appeal relates to the time when, in the facts of this case, the lump sum preclusion period commenced to run.
The matter in dispute has a long history. On 7 June 1995 a delegate of the appellant made a decision to preclude payment of a pension, benefit or allowance to the respondent during a lump sum preclusion period from 21 June 1993 to 17 December 1995 and to recover payments totalling $26,381 which had been paid during that period. The decision was affirmed by an Authorised Review Officer on 25 September 1995. The respondent applied to the Social Security Appeals Tribunal (the SSAT) to review the decision. On 11 December 1995 the SSAT set the decision aside and returned the matter to the appellant for reconsideration in accordance with its direction that the amount to be recovered be recalculated on the basis that the preclusion period of 130 weeks should commence on 23 April 1991, and represent an aggregation of the periods 23 April 1991 to 31 January 1993 and 21 June 1993 to 6 March 1994. The appellant then applied to the Administrative Appeals Tribunal (the AAT) to review the decision of the SSAT. On 12 August 1996 the AAT set aside the SSAT decision and substituted a decision that the decision of the delegate made on 7 June 1995 be affirmed. On 6 September 1996 the respondent appealed to the Federal Court from the decision of the AAT. The appeal was heard by Spender J who rejected the reasoning of the AAT in favour of that adopted by the SSAT. The appeal was allowed and the matter remitted to the AAT.
In this appeal the appellant seeks to have the decision of Spender J set aside and that of the AAT affirmed.
The amount which the appellant seeks to recover is the total of unemployment benefit paid to the respondent after the cessation of the second period of workers' compensation benefits until he resumed employment in 1995. It is said that the whole of this period is within the "lump sum preclusion period" as defined in s 1165(3) and if this is so, the appellant is entitled (by virtue of s 1166(1)) to recover the amount of benefit paid. The contrary view, advanced by the respondent and held to be so by the primary Judge, is that the lump sum preclusion period commenced to run on 23 April 1991, (when the respondent first returned to work), was suspended in the period 1 February 1993 to 20 June 1993 (when the respondent was again in receipt of workers' compensation payments) and continued thereafter until 6 March 1994. On this approach the appellant's entitlement to recover unemployment benefit would be confined to the benefit received in the period 20 June 1993 to 6 March 1994.
It is unnecessary to dwell upon the definition (in s 1165(4)) of the term "lump sum preclusion period" except to say that it involves the application of an arbitrary formula which pays no regard to the actual basis upon which lump sum compensation has been calculated. The application of the formula produces the lump sum preclusion period expressed in terms of a number of weeks. In the present case the parties agree that the lump sum preclusion period is 130 weeks.
There is no question that but for the provisions of s 1165(1) the respondent was qualified for unemployment benefit during the period it was paid to him after 20 June 1993. Nor is it in dispute that the respondent received compensation in the form of a lump sum payment of damages made partly in respect of lost earnings or lost earning capacity. However, in order to properly understand the question in issue and the basis for the competing arguments it is necessary to refer in more detail to other provisions of the Act.
Section 1165(3) provides:
If periodic compensation payments are made in respect of the lost earnings or lost earning capacity, the lump sum preclusion period is the period that:
(a) begins on the day after the last day of the periodic payments period; and
(b) ends after the number of weeks specified in subsection (4).
Whatever may be said about the proper construction of the Act insofar as it relates to the commencement of the lump sum preclusion period, there can be no question that once the period begins, it runs for the number of weeks calculated in accordance with s 1165(4). The words of the subsection are unambiguous. There is a starting date when the period begins and it ends after the appropriate number of weeks. There is no warrant to be found within the statute to suspend the running of the lump sum preclusion period as contemplated by the primary Judge.
In order to identify the date when the lump sum preclusion period begins it is necessary to turn to s 17(1) which provides (to the extent relevant):
"periodic payments period" means:
(a) in relation to a series of periodic payments - the period in respect of which the payments are, or are to be, made;
It will be noted that this definition speaks of the period in respect of which periodic payments are made which suggests that in any particular case there will be but a single period in respect of which periodic payments are made. This cannot be strictly correct. Each weekly payment of workers' compensation is made in respect of a separate period of incapacity and even when payments are made over a period of consecutive weeks, it would be more accurate to speak of the periods rather than a single period in respect of which the payments are made. There can be no doubt however that in the definition of periodic payments period, in relation to a series of periodic payments, it is the total of the several periods in respect of which compensation payments are made that is referred to.
The primary Judge was of the view that in the definition of periodic payments period "a series of periodic payments" means a number of consecutive payments for a continuous period of incapacity and on the basis of that construction he held that there had been two series of periodic payments. In this context submissions were made as to the dictionary meaning of the word "series". The most relevant of the several meanings of "series" in the Oxford dictionary is -
"A number of things of one kind following one another in temporal sequence"
whereas the Macquarie Dictionary, 2nd Revised Edition refers to -
"A number of things, events, etc ranged or occurring in spatial, temporal, or other succession; a sequence".
In this case the weekly payments were paid sequentially although not in an unbroken sequence. There would appear to be nothing in the context of the definition or in relation to the scheme of the Act that requires "series" to be construed as referring only to a number of consecutive weekly payments in respect of an unbroken period of incapacity. It does no violence to the language to construe "series" in the context in which it appears as embracing the totality of all periodic payments made in respect of a single compensible injury.
As already indicated, the reference to the period in respect of which the payments are made in the definition of periodic payments period cannot be construed as applying to only a single period for which a compensation payment is made. The totality of the several periods is obviously embraced by "the period" and in the absence of any apparent contrary intention the singular form would include the plural (Acts Interpretation Act 1901 , s 23). Thus "the period" can be read to include more than one period. This is entirely consistent with ss 1165(3) and (4) which clearly contemplate that there be a single indivisible preclusion period which begins after the last day of the periodic payments period.
An initial response to the matter presently under consideration could well be that those who framed the legislation did not contemplate the possibility of a factual situation such as in this case, but I am inclined to reject that criticism. The facts here are in no way unique and once it is accepted that provision is made for a single lump sum preclusion period which runs uninterrupted from the day after the end of the period or periods for which periodic compensation is paid, there is no ambiguity.
The primary Judge seems to have taken some comfort from the decision of the Full Court in Blunn v Cleaver 47 FCR 111. His Honour expressed the opinion that the Full Court had held in that case that where there is not a continuous period but a number of periods during which periodic payments are made, there is not a "series of periodic compensation payments" but, more precisely, there is a "number of series of compensation payments". In Blunn v Cleaver the respondent had obtained a determination under the Commonwealth Employees' Rehabilitation and Compensation Act 1988 (Cth) that he was entitled to weekly payments of workers' compensation totalling $22,950.40 in respect of several periods between September 1989 and November 1990. Before he received any payment, a sum was deducted under s 1174 of the Social Security Act for unemployment and sickness benefits that had been paid to him. The question before the Full Court was whether the compensation awarded to him, which was paid in a single sum, was to be treated as "compensation in the form of a lump sum" or "a series of periodic payments". The Full Court concluded that the payment was in fact properly characterised as a series of periodic payments. In concluding its judgment the Court said (at p 128-9):
In the result, for the reasons we have given, we answer the question referred for our decision by saying that, in our opinion, the compensation payment of $22,950.40 is properly characterised as being, for the purposes of Pt 3.14 of the Social Security Act 1991, a series of periodic compensation payments, or, more accurately, bearing in mind that the amount relates not to a continuous period but to a number of separate periods, a number of series of periodic compensation payments.
It is clear that for the purposes of the definition of periodic payments period the Full Court treated a number of series of periodic payments as a series of periodic payments. As a matter of statutory construction it was clearly proper to treat a provision expressed in the singular, i.e. "a series", as including the plural, i.e. "a number of series". The reasoning in Blunn v Cleaver does not support the conclusion reached by the primary Judge. Rather, it supports the contrary view.
I would allow the appeal with costs, set aside the decision of the primary Judge and affirm the decision of the AAT.
I certify that this and the preceding
six (6) pages are a true copy of the
Reasons for Judgment herein of the
Honourable Justice Olney
Associate:
Dated:
Counsel for the Appellant: C. Holmes
Solicitor for the Appellant: Australian Government Solicitor
Counsel for the Respondent: W.H. Tutt & Quinlan
Date of Hearing: 20 July 1998
Date of Judgment: 22 October 1998
|
IN THE FEDERAL COURT OF AUSTRALIA | |
| QUEENSLAND DISTRICT REGISTRY | QG 171 of 1997 |
|
BETWEEN: | SECRETARY, DEPARTMENT OF SOCIAL SECURITY
APPELLANT |
|
AND: | MARK REX JACKSON
Respondent |
|
JUDGES: | OLNEY, COOPER AND MOORE JJ |
| DATE: | 22 october 1998 |
| PLACE: | BRISBANE |
Introduction
A person's entitlement to receive or retain a social security payment may be affected if that person, or the person's partner, is entitled to receive compensation for loss of earnings or loss of earning capacity. The effect of compensation recovery on social security payments is dealt with in Part 3.14 of the Social Security Act 1991 (Cth) ("the Act"). The objective of the Part is to ensure that the person does not receive both compensation and a social security payment in respect of the same period of time.
Compensation may be paid or be payable in a lump sum or in the form of a series of periodic payments. Each form of compensation is dealt with differently under the Act.
Compensation in the form of a lump sum may result in the pension, benefit or allowance ceasing to be payable for a period of time depending on the size of the payment, or if paid, to become repayable (s 1163(3)). The Act achieves this objective by creating a period of time during which the recipient of the lump sum compensation is precluded from entitlement to one or more of a number of specified social security payments. The period of time is calculated by dividing the compensation part of the lump sum (as defined in s 17(3) of the Act) by average weekly earnings (as defined by s 17(1) of the Act) and rounding down to the nearest whole number (s 1165(4)). The figure produced by this calculation represents the number of weeks the person will be precluded from entitlement to the compensation affected payments (as defined by s 17(1) of the Act). The period of preclusion is called the lump sum preclusion period and it operates for the number of weeks ascertained under s 1165(4) in the manner specified in ss 1165(3), (3A), (3B) and (3C) of the Act.
Compensation in the form of a series of periodic payments does not preclude the recipient from an entitlement to a compensation affected payment. Rather, receipt of the compensation may result in the pension, benefit or allowance being reduced for the period in which the payments are received (s 1163(4)). The provisions dealing with the treatment of periodic compensation payments are ss 1168 and 1170. The focus of these sections is the effect of periodic compensation payments made or payable in the "periodic payments period" (as defined by s 17(1)) on a compensation affected payment (as defined) of social security payable in respect of that periodic payments period. For the purpose of ss 1168 and 1170, the adjustments are made for payments of periodic compensation paid or payable in respect of a like period for which a compensation affected payment under the Act has been claimed or is payable. Specifically, the Act does not deal with periods when no periodic payments are made or payable unless at some subsequent time the person receives compensation for loss of earnings or earning capacity in the form of a lump sum.
Facts
The respondent was injured on 11 September 1990 and was in receipt of periodic workers' compensation payments for the period from the accident up to and including 22 April 1991. On 23 April 1991 he recommenced employment in a different category of employment to that of his pre-accident employment and for a lower rate of remuneration. The respondent continued in paid employment until 1 February 1993 when he ceased employment in order to undergo surgery in respect of his previous injury. Upon cessation of his paid employment he again received periodic workers' compensation payments from 2 February 1993 up to and including 20 June 1993.
The respondent from 21 June 1993 until early 1995 was unemployed and received social security benefits. He regained employment in early 1995 whereupon the social security benefits ceased.
On 25 May 1995 the respondent received a lump sum compensation payment in respect of the injury he sustained in 1990. It included compensation for lost earnings and loss of earning capacity. It was a payment to which s 1165(1) of the Act applied. After repayment of the workers' compensation payments the balance remaining was approximately $142,500. The calculation of the period of the lump sum preclusion period in accordance with s 1165(4) produces a figure of 130 weeks.
The decision maker determined that in the facts of this case the lump sum preclusion period commenced to run from 21 June 1993 and that compensation affected payments were to be dealt with on that basis. The respondent was successful before the Social Security Appeals Tribunal which set aside the original decision and in lieu determined that the lump sum preclusion period commenced to run from the day after the last day of the first period of workers' compensation payments and to the extent that it had not expired at the commencement of the second period of workers' compensation payments recommenced to run on the day after the second period of workers' compensation payments ceased. The appellant was successful before the Administrative Appeals Tribunal in having the commencement date of 21 June 1993 restored.
The respondent appealed from the decision of the Administrative Appeals Tribunal to a judge of this Court who allowed the appeal being of the view that the reasoning of and the result in the Social Security Appeals Tribunal were correct. The appellant appeals from this decision.
Issues on the Appeal
The issues in the present appeal are:
(1) Whether his Honour the trial judge was correct in his view that the lump sum preclusion period commenced on 23 April 1991.
(2) Whether his Honour the trial judge was correct in his view that the lump sum preclusion period was suspended during the second period when the respondent was in receipt of periodic workers' compensation payments and that it recommenced again on 21 June 1993 when the workers' compensation payments had ceased.
(3) Whether his Honour ought to have held that the lump sum preclusion period commenced on 21 June 1993 and continued for a period of 130 weeks thereafter.
Submissions
The appellant submits that all of the periodic payments of workers' compensation should be treated as "a series of periodic payments" for the purposes of the definition of the "periodic payments period" in s 17(1). This would result in a single periodic payments period which commenced on 11 September 1990 and ended on 20 June 1993. Section 1165(3) would operate in respect of that period to apply a lump sum preclusion period for 130 weeks commencing on 21 June 1993.
The appellant submits that if his Honour was correct in his view that there were two separate and discrete periodic payments periods, the first of which ended on 22 April 1991 and the second of which ended on 20 June 1993, then the second of the two periods should be used for the purposes of s 1165(3). This conclusion is justified, the appellant submits, because it avoids an overlap of the lump sum preclusion period with a periodic payments period, which the appellant submits is the evident intention of s 1165(3), and because it leaves the lump sum preclusion period as an unbroken single period which the appellant submits is the evident intention in s 1165(3), (3A), (3B) and (3C). The respondent submits that the appeal should fail for the reasons expressed in the judgment appealed from.
Conclusion on the Appeal
The sections dealing with ascertainment of the lump sum preclusion period provide:
"1165(3) If periodic compensation payments are made in respect of the lost earnings or lost earning capacity, the lump sum preclusion period is the period that:
(a) begins on the day after the last day of the periodic payments period; and
(b) ends after the number of weeks specified in subsection (4).
1165(3A) If a person chooses to receive part of an entitlement to periodic compensation payments in the form of a lump sum, the lump sum preclusion period is the period that:
(a) begins on the first day on which the person's periodic compensation payment is a reduced payment because of that choice; and
(b) ends after the number of weeks specified in subsection (4).
1165(3B) If a person:
(a) receives compensation in relation to an injury, disease or condition in the form of a lump sum (in this subsection called the `first lump sum'); and
(b) the person receives compensation in the form of a further lump sum (in this subsection called the `second lump sum'); and
(c) the second lump sum is compensation in relation to the same injury, disease or condition;
the lump sum preclusion period for the second lump sum is the period that:
(d) begins on the day after the last day of the lump sum preclusion period for the first lump sum; and
(e) ends after the number of weeks specified in subsection (4).
1165(3C) If none of subsections (3), (3A) and (3B) applies, the lump sum preclusion period is the period that:
(a) begins on the day on which the loss of earnings or loss of earning capacity began; and
(b) ends after the number of weeks specified in subsection (4)."
The term "periodic payments period" is defined in s 17 of the Act. It means:
"(a) in relation to a series of periodic payments - the period in respect of which the payments are, or are to be, made; and
(b) in relation to a payment of arrears of a series of periodic payments - the period in respect of which those periodic payments would have been made if they had not been made by way of an arrears payment;"
Importantly for present purposes, the periodic payments are ones which are made, or to be made, in respect of specific periods. The period does not include periods of time in respect of which no payment is made or payable. Such a construction is reinforced by that part of the definition which deals with payment of arrears.
In the context where the definition principally operates, ss 1168 and 1170 the provisions dealing with the payment of compensation in the form of a series of periodic payments, the relevant periodic payment period is the discrete period in which the periodic payment is made and the compensation affected social security payment is also claimed and paid. Because the Act is only concerned to prevent double dipping during periods when both the compensation and social security payment are paid or payable, it is only concerned with corresponding payment periods. The series of periodic payments with which ss 1168 and 1170 of the Act is concerned are therefore the payments made in respect of specific periods of time where there is a claim for, or there has been paid, a compensation affected payment for the same period. The result is that there may only be one periodic payment period in respect of any series of periodic payments for the purposes of these sections.
Because the provisions of ss 1168 and 1170 only operate to adjust the rate of entitlement to a compensation affected payment for the periodic payments period and not beyond it, there may be any number of period payment periods which correlate with any number of relevant series of periodic payments of compensation. Similarly, the recovery provisions of ss 1174 and 1179 can accommodate multiple period payment periods for the same reason.
Although for the purposes of the definition of "periodic payments period" and for s 1165(3)(a), the Act is not concerned with the payment of compensation affected payments in a periodic payments period, the definition must have a consistent meaning and be capable of operating in each context where it is used as a defined term. Having regard to the terms of the definition and the context in which the definition is to operate in respect of periodic payments of compensation, I am of the view that a periodic payments period as defined does not, and cannot, for the purposes of ss 1168 and 1170, include within the period periods of time in respect of which no payments of compensation are, or are to be, made.
It follows, in my view, that there can be no single periodic payments period in this case which began on 11 September 1990 and ended on 20 June 1993 and his Honour the trial judge was correct in so finding. The perceived difficulty with s 1165(3)(a) is the use of the definite article before the term "periodic payments period". The respondent submits and his Honour found that the subsection does not accommodate the possibility of there being more than one periodic payment period. His Honour said:
"In my opinion, the decision of the AAT in this case proceeded on a wrong basis in that the Tribunal assumed that, even if there was a number of periodic payments for compensation, albeit separated by a discrete period of twenty-one weeks, the total period spanning the two periodic payments periods and the interregnum might appropriately be described as the periodic payments period.
The reasons for judgment of the AAT misquotes s 1165(3) in the following crucial way. It said that that provision provided:
If periodic compensation payments are made in respect of the lost earnings or lost earning capacity, the lump sum preclusion period is the period that:
(a) beings (sic) on the day after the last day of the periodic payments periods; and
(b) ends after the number of weeks specified in subsection (4).
The error is in the plurality of the word `periods' in paragraph (a). Under the Act, the requirement is directed to the periodic payment period (singular)."
In my opinion, the difficulty is more apparent than real. Section 23 of the Acts Interpretation Act 1901 (Cth) provides:
"23. In any Act, unless the contrary intention appears:
...
(b) words in the singular number include the plural and words in the plural number include the singular."
In Blue Metal Industries Ltd v Dilley (1969) 117 CLR 651, Lord Morris of Borth-y-Gest, in delivering the advice of the Privy Council, said (at 656):
"By s. 21 of the Interpretation Act, 1899 (N.S.W.) it is enacted that in all Acts, unless the contrary intention appears, words in the singular shall include the plural and words in the plural shall include the singular. Such a provision is of manifest advantage. It assists the legislature to avoid cumbersome and over-elaborate wording. Prima facie it can be assumed that in the processes which lead to an enactment both draughtsman and legislators have such a provision in mind. It follows that the mere fact that the reading of words in a section suggests an emphasis on singularity as opposed to plurality is not enough to exclude plurality. Words in the singular will include the plural unless the contrary intention appears. But in considering whether a contrary intention appears there need be no confinement of attention to any one particular section of an Act. It must be appropriate to consider the section in its setting in the legislation and furthermore to consider the substance and tenor of the legislation as a whole. (See Sin Poh Amalgamated (H.K.) Ltd. v. Attorney-General of Hong Kong [1965] 1 W.L.R. 62.) In that case a test was indicated which often may be helpful. In the judgment of the Board delivered by Lord Pearce it was said :
"The Interpretation Ordinance was intended to avoid multiplicity of verbiage and to make the plural cover the singular except in such cases as one finds in the context of the legislation reason to suppose that the legislature, if offered such amendment to the bill, would have rejected it."
(See also Walsh v Tattersall [1996] HCA 26; (1996) 188 CLR 77 at 91 per Gaudron and Gummow JJ and Australian Broadcasting Tribunal v Bond Corporation Holdings (1989) 86 ALR 424 FC at 430.)
Following the course directed in Blue Metal Industries can it be said of s 1165(3) in the context of the Act that the legislature intended to exclude its operation where there was more than one periodic payments period? That is, was it intended that the term "the periodic payments period" should be understood to be limited to a single such period and to exclude a plurality of such periods? In my view the legislature had no such intention. I come to that view for the following reasons.
The payment of compensation in the form of a lump sum payment is dealt with in the Act under a separate, distinct and different regime from that applicable to compensation in the form of a series of periodic payments. Section 1165 demonstrates an intention to deal with the receipt of a particular lump sum payment to the exclusion of any previous compensation receipt which ought, in terms of the Act, to have been dealt with previously as the circumstances and statutory provisions then required. Consequently, s 1165(3) in its introductory words is intended to bring within its operations any case in which periodic compensation payments have been made previously in respect of lost earnings or lost earning capacity. Section 1165(3A) is concerned to catch all cases where an existing entitlement to periodic compensation payments is converted in part to a lump sum payment. Section 1165(3B) is concerned to catch all cases where there has been one or more previous lump sum payments. Finally, s 1165(3C) brings within its ambit all cases where no previous compensation in either form has been received by the person. Once it is acknowledged that the legislative intent was to bring under s 1165(3) all cases where there had been payments of periodic compensation and having regard to the real possibility of there being any number of relevant periodic payments periods for the purposes of ss 1168 and 1170 of the Act, the legislature must be presumed to have intended to accommodate those cases with multiple periodic payment periods under s 1165(3). Those cases are accommodated by reading s 1165(3)(a) to include a plurality of periodic payments periods.
So construed, and conformably with s 23 of the Acts Interpretation Act 1901 (Cth), the paragraph reads as:
"(a) begins on the day after the last day of the periodic payments periods."
The last day of the periodic payments periods is the last day of the last period. In this case, that is 20 June 1993. The relevant lump sum preclusion period commenced on 21 June 1993. In my view, his Honour erred in concluding that the lump sum preclusion period commenced on 23 April 1991. I would allow the appeal and set aside the orders made below on 17 October 1997 and in lieu thereof order that the appeal from the decision of the Administrative Appeals Tribunal made on 12 August 1996 be dismissed. I would order that the respondent pay the appellant's costs of the appeal and below to be taxed if not agreed.
I certify that this and the preceding
nine (9) pages are a true copy of the
Reasons for Judgment herein of the
Honourable Justice Cooper
Associate:
Dated:
Counsel for the Appellant: C Holmes
Solicitor for the Appellant: Australian Government Solicitor
Counsel for the Respondent: P L Feely
Solicitor for the Respondent: W H Tutt & Quinlan
Date of Hearing: 20 July 1998
Date of Judgment: 22 October 1998
|
IN THE FEDERAL COURT OF AUSTRALIA | |
| QUEENSLAND DISTRICT REGISTRY | QG 171 of 1997 |
ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA
|
BETWEEN: | SECRETARY, DEPARTMENT OF SOCIAL SECURITY
AppElLant |
|
AND: | MARK REX JACKSON
Respondent |
|
JUDGES: | OLNEY, COOPER AND MOORE JJ |
| DATE: | 22 October 1998 |
| PLACE: | BRISBANE |
MOORE J
I have had the benefit of reading the reasons for judgment of Olney J in draft form. I do not repeat much of what his Honour has said in describing the history of the matter and the relevant legislation.
We are concerned with the Social Security Act 1991 ("the Act") in so far as s 1166(1) confers a power on the Secretary to demand a payment from a recipient of a pension or benefit which has been paid under the Act. The power arises where the recipient later receives compensation in the form of a lump sum. The amount that can be demanded is calculated in accordance with a prescription identified in s 1166(2), (3) and (4). To give effect to the prescription it is necessary to identify a lump sum preclusion period which entails recourse to s 1165(3) to (5). The duration of the preclusion period is directly proportional to an element of the lump sum as defined by s 17(3) and (4). The larger the element in monetary terms, the longer the period.
The point at which the preclusion period commences depends on whether the recipient has received periodic compensation payments, a lump sum in partial satisfaction of an entitlement to periodic compensation payments, lump sum compensation only or has received none of these payments. For present purposes, the contentious situation is where a recipient of a pension or benefit has received periodic compensation payments.
The general structure of the scheme permitting the Secretary to make the demand, in so far as concerns an individual who has received periodic compensation payments, involves a sequence of events culminating with the demand for payment. It commences with a compensable injury, disease or condition resulting in loss of earnings or earning capacity. That is followed by periodic compensation payments and then the cessation of those payments. A demand for payment by the Secretary would only be made if, after the cessation of those periodic compensation payments, a pension or benefit is paid. The general scheme of the Act is that a pension or benefit is not payable if the claimant is engaged in remunerative employment deriving income exceeding a specified amount.
It appears to me that the purpose of the recovery provisions in the Act, as they relate to a recipient of a pension or benefit in the circumstances I have just outlined, is to enable a notional recovery of a part of the amount paid by way of pension or benefit when lump sum compensation is later received by that recipient. A court or the parties may have characterised the lump sum and its components when it is awarded or agreed to as part of a settlement. Its characterisation may have expressly included, but in any event may actually have included, damages for pre trial loss of earning capacity. Damages of this type could include the period for which the pension or benefit was paid. Thus the recovery of an amount under s 1166(1) ensures that the recipient has not received in full and without deduction a pension or benefit for a period for which he or she is later compensated for lost earnings or diminished earning capacity.
With this in mind, it is necessary to consider the terms of s 1165(3) which effectively define the lump sum preclusion period. It provides:
(3) If periodic compensation payments are made in respect of the lost earnings or lost earning capacity, the lump sum preclusion period is the period that:
(a) begins on the day after the last day of the periodic payments period; and
(b) ends after the number of weeks specified in subsection (4)
Periodic payments period is defined in s 17(1) as relevantly:
"periodic payments period" means:
(a) in relation to a series of periodic payments - the period in respect of which the payments are, or are to be, made; and
(b) in relation to a payments of arrears of a series of periodic payments - the period in respect of which those periodic payments would have been made if they had not been made by way of an arrears payment;
The lump sum preclusion period follows the periodic payments period and they cannot be co-extensive. Section 1165(3) identifies a commencing point and a concluding point of a period. In my opinion it does nothing more. That is, it does not imply that the period must run continuously from the commencing point to the concluding point.
In a situation where there is one periodic payments period, the commencing point and the concluding point can be readily identified. It is plain in those circumstances that the lump sum preclusion period is intended to be a period immediately following a period during which compensation was paid. It appears to me that the scheme of recovery assumes that it is then that a benefit or pension may be sought and provided.
The difficulty arises, as is apparent from the facts of this case, if there is more than one period during which compensation payments are made. The definition of periodic payments period can be approached in one of two ways in those circumstances. The first is the approach adopted by Olney J to treat all such payments as a plurality of series or one series which result in one period. The other is to treat each period in which compensation payments were made as satisfying the definition with the result that there would be two or more periodic payments periods. For reason I discuss shortly, this approach, which was the approach of Spender J, achieves a result which is more consistent with what I perceive to be the legislative scheme. It is also consistent with the language of the Act.
The approach I favour is that where there are several periodic payment periods the preclusion period would commence on the last day of the first of them. The preclusion period would not continue for any subsequent period which was a periodic payments period given, as I earlier discussed, that they cannot be co-extensive periods. At the end of any subsequent periodic payments period the process of exhausting the weeks identified by 1165(3)(b) would continue until the end of the lump sum preclusion period was reached. Approached this way, the lump sum preclusion period would always be a period immediately following any period in which there had been paid weekly compensation payments (subject to the limit imposed by 1165(3)(b)) and any period when pensions and benefits might be expected to have been sought and provided.
I would dismiss the appeal with costs.
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I certify that this and the preceding three (3) pages are a true copy of the Reasons for Judgment herein of the Honourable Justice
Moore |
Associate:
Dated: 22 October 1998
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Counsel for the Appellant: | C Holmes |
| Solicitor for the Appellant: | Australian Government Solicitor |
| Counsel for the Respondent: | P L Feely |
| Solicitor for the Respondent: | W H Tutt & Quinlan |
| Date of Hearing: | 20 July 1998 |
| Date of Judgment: | 22 October 1998 |
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URL: http://www.austlii.edu.au/au/cases/cth/FCA/1998/1329.html