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.)