Ascic v Secretary, Department of Social Services

1. The application be dismissed.
2. The applicants pay the respondent's costs, to be assessed if not agreed. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

BARKER J: 1 The applicant (Mr Marko Ascic) applies to extend the time to appeal from the decision and orders of the primary judge refusing his appeal and that of his wife, the second applicant (Ms Ana Ascic), from an earlier decision of the Administrative Appeals Tribunal concerning his claimed entitlements under the Social Security Act 1991 (Cth). 2 The respondent, the Secretary, Department of Social Services, does not contest that the applicant has explained why he did not seek to appeal within the required time, but submits that the application should not be granted because the primary decision against which the appeal is proposed to be made is not attended by sufficient doubt as to its correctness. 3 For the reasons that follow, I accept the Secretary's submission that the decision of the primary judge is not attended with that degree of doubt that makes it appropriate to grant the application before the Court. 4 The primary judge has set out with concision the factual circumstances surrounding this matter in his reasons at Ascic v Secretary, Department of Social Services [2016] FCA 1122, especially at [1] to [12]. 5 In short, the applicant and his wife were respectively denied the granting of a carer payment and a disability support pension under the Social Security Act because, in assessing whether their annual income was above the "allowable limit", a certain payment made to the applicant must be treated as "compensation" under the Social Security Act. 6 Following an injury in 1987, the applicant made a compensation claim in respect of the injury, which was work related, under the Compensation (Commonwealth Employees) Act 1971 (Cth) (1971 Act). It was accepted and approved by a delegate of the Commissioner for Employees' Compensation. The applicant has been in receipt of payments pursuant to that determination since 25 August 1988, when the determination was made. He retired shortly thereafter on the grounds of incapacity but remained in receipt of weekly payments under the 1971 Act. 7 The 1971 Act was replaced by the Safety, Rehabilitation and Compensation Act 1988 (Cth) (SRC Act) (formerly named the Commonwealth Employees' Compensation and Rehabilitation Act 1988 (Cth)) from 1 December 1988. 8 The Tribunal effectively accepted the Secretary's submission that, at material times, for the purpose of considering the eligibility of each of the applicants to the payments claimed, the applicant was in receipt of "compensation" as defined by s 17 of the Social Security Act. 9 As the primary judge said, at [17] of his reasons, the consequence of the Tribunal's decision was that, as a result of s 1173(1) and (2) of the Social Security Act, the applicant's entitlement to a carer payment was reduced by the amount of his existing Comcare compensation payments, with the effect that he was not entitled to a carer payment and nor was his wife entitled to a disability support pension. 10 At [26] of his judgment, the primary judge formulated three questions of law that he considered arose from the various matters that the applicant wished to agitate on the appeal, as follows: 1. Whether the payments made to Mr Ascic, pursuant to the 1988 claim were properly to be characterised on the evidence as benefits under a determination made pursuant to one of the statutory sources referred to in s 103(1) of the 1971 Act, or, instead, as compensation under the 1971 Act. 2. Whether the transitional provisions in Pt X of the SRC Act, had the effect of preserving the characterisation of the Comcare payments made to Mr Ascic pursuant to his 1988 claim. 3. Whether, alternatively, the proper characterisation of Mr Ascic's Comcare payments, at the time of the consideration of Mr Ascic's claim for a carer payment and Mrs Ascic's claim for a disability support pension, was as ordinary income referred to in s 1064-F5 of the Social Security Act, rather than compensation under s 17(2) of the Social Security Act. 11 On the hearing of the application before me, there was no question raised that these were not proper questions of law, from the applicant's point of view, and I accept unhesitatingly that they were. 12 In dismissing the applicant's appeal and upholding the approach taken by the Tribunal, the primary judge made the following relevant analysis in relation to the first question of law: 30 The relevant section is s 103 of the 1971 Act: (1) In this section, 'determination' means a determination, award or order by which provision is made for or in relation to the grant of any benefits to or in relation to employees or their dependants in respect of injury or disease causing death or incapacity, or in respect of the loss of, or damage to, property, in circumstances connected with the employment of those employees, being - a) a determination made under the Public Service Arbitration Act 1920-1969; b) an award or order made under the Conciliation and Arbitration Act 1904-1970; or c) a determination, award or order made by a prescribed person, tribunal or body under a law of the Commonwealth or of a Territory. (2) A person who would, but for this section, be entitled to compensation under this Act and to benefits under a determination in respect of the same injury, or in respect of the same loss of, or damage to, property, is not entitled to receive both compensation under this Act and benefits under the determination but shall elect whether to receive the compensation or the benefits. 31 An important element of Mr Ascic's argument that he applied for and was awarded benefits under s 103(1) of the 1971 Act, and not compensation, is the fact that at para 14 of the claim form that he completed on 28 April 1988, the following words appear: I certify that • I am fully aware of my rights and obligations (as outlined at the front of this form) in this matter and elect to claim benefits under the Compensation (Commonwealth Government Employees) Act 1971. 32 Mr Ascic contended that the Tribunal did not have regard to that part of his claim form. Mr Ascic contended that the use of the word 'benefits' in para 14 of the claim form meant that his claim was to be construed as having been made by reference to s 103(1) of the 1971 Act. Accordingly, said Mr Ascic, the subsequent determination was for the payment of benefits pursuant to that section, and not for the payment of compensation under the 1971 Act. 33 The Tribunal found that there was no evidence to support Mr Ascic's contention that the determination of his 1988 claim was a determination of 'benefits' of the nature referred to in s 103(1) of the 1971 Act. However, said Mr Ascic, the Tribunal did not have the benefit of the delegate's determination. 34 In my view, it is apparent that s 103 of the 1971 Act contemplates that an applicant may potentially receive 'benefits' for a work related injury under a determination made by reference to one or more of the statutory sources referred to in s 103(1)(a), (b) or (c); or an employee may receive compensation for such an injury under the other provisions of the 1971 Act pursuant to a determination made by the Commissioner. Section 103(2) of the 1971 Act provides that an employee cannot, in respect of the same injury, receive compensation under that Act as well as under a statutory determination from a source referred to in s 103(1). 35 I have had regard to para 14 of Mr Ascic's claim form and the delegate's determination. In my view, contrary to Mr Ascic's contention, the delegate's determination shows that the payments awarded to Mr Ascic in 1988 were compensation payments made under s 45(2) of the 1971 Act; and so was not a payment of benefits made pursuant to a determination by one of the statutory bodies or persons referred to in s 103(1) of that Act. 36 First, the delegate's determination expressly states that the payment to Mr Ascic is made under s 45(2) of the 1971 Act. That section provides for the payment of compensation under the 1971 Act where an employee is totally incapacitated for work. 37 Secondly, the determination is signed by a delegate of the Commissioner and not a statutory body or a person referred to in s 103(1) of the 1971 Act. 38 Thirdly, the letter of 25 August 1988, serving the determination on the Australian Federal Police refers to the service of the determination under s 61(1)(a) of the 1971 Act. That section only applies where a determination has been made by the Commissioner for compensation under the 1971 Act. 39 Accordingly, in my view, on the proper construction of s 103 of the 1971 Act, and on the application of that section to the evidence, I am of the view that the determination for compensation by the delegate in respect of Mr Ascic's 1988 claim, was made under the 1971 Act and is, therefore, to be characterised as compensation under that Act. 13 On the application before me, it was accepted all round that this was the primary issue before the primary judge and also the primary issue that the applicant, before me, considered the primary judge had erred in relation to. 14 In my view, the analysis made by the primary judge, with respect, was plainly correct and is not attended by any doubt at all. Indeed, at the hearing before me, the applicant accepted what the primary judge said at [35] as being correct. 15 The applicant's argument before me, however, was that the primary judge erred in not considering that s 45(7) of the 1971 Act and/or s 131 of the SRC Act, following his retirement from his position in the public service as a policeman, had the effect of changing the status of the payments that he received under the delegate's 1987 determination from "compensation" to some other category, in particular ordinary weekly earnings. 16 Although put in various ways, the applicant submitted in substance that when one had regard to those "critical" provisions and indeed regarded many other provisions of the Social Security Act, there is no relevant reference to be found to the continued payment of "compensation" in a circumstance like his, but that payments that continue to be made following retirement are to be treated, on the proper construction of the Social Security Act, as not compensation but ordinary weekly earnings. 17 I am unable to accept that submission. Whether or not it was argued in precisely those terms before the primary judge - and I think it possibly was not in light of the applicant's current acknowledgement that his Honour did not err in what he said in [35] - his Honour nonetheless effectively dealt with the question in the course of dealing with the second question of law posed. 18 In this regard, what the primary judge said in dealing with the second question of law should be set out: 40 The relevant provisions for this question are the transitional provisions to be found in Pt X of the SRC Act. The question is whether those provisions preserved the characterisation of the Comcare payments which Mr Ascic was receiving as a consequence of his 1988 claim. 41 As mentioned, Mr Ascic's contention was that he had never applied for or received compensation but that he had been awarded "benefits" under s 103(1) of the 1971 Act, and the relevant transitional provisions in the SRC Act did not effect a transformation of the characterisation of the payments from "benefits" to "compensation" for the purposes of s 17(2) of the Social Security Act. Therefore, said Mr Ascic, the Tribunal had erred in the characterisation of his payments as compensation, rather than benefits. 42 Mr Ascic relied particularly on s 126(4) of Pt X of the SRC Act. This provides as follows: An election made by an employee under section 103 of the 1971 Act shall: (a) in the case of an election to receive benefits under a determination referred to in that section-be taken to be an election under section 52 of this Act to receive benefits under that determination; or (b) in the case of an election to receive compensation under that Act-be taken to be an election made under section 52 of this Act to receive compensation under this Act. 43 In my view, Mr Ascic is correct in his argument in respect of the construction of the relevant transitional provisions in the SRC Act. The sections do not contemplate a recharacterisation of the nature of the Comcare payments of which he was in receipt under the 1971 Act. To the contrary, they provide for the continuation of the entitlement to, and liability on the part of the Commonwealth in respect of the compensatory payments in existence at the commencement of the SRC Act. (See s 125(1), s 126(2) and s 128 of the SRC Act.) 44 However, the Tribunal did not find that the characterisation of the payments had changed in the manner contended for by Mr Ascic. Rather, as I have said, the Tribunal was of the view that the payments which were initially received by Mr Ascic pursuant to the 1971 Act were properly to be characterised as compensation under that Act, and not as the payment of benefits pursuant to a determination by reference to s 103(1) of that Act. 19 In my view, s 126(4) of the SRC Act expressly contemplates that the payment of "compensation" under the 1971 Act continues to be of relevance to the application and operation of the SRC Act in relevant ways. 20 Moreover, when one refers to the terms of s 131, it also is apparent that the concept of "compensation" is an enduring one under that Act; it did not cease to be relevant upon the coming into operation of the SRC Act soon after the retirement of the applicant from his public sector position. 21 It is sufficient simply to refer to s 131(1) and (2) of the SRC Act in this regard, which provide as follows: 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. 22 I should immediately say there is no evidence before the Court in this case that s 131 had any application in the case of the applicant as, for the purposes of subs (1), there is no evidence that the applicant was in receipt of any payments under a superannuation scheme at any material time. 23 In any event, even if it were to be assumed that he was, for the purposes of making s 131 applicable, subs (2) plainly creates a formula for use which takes into account and draws a distinction between compensation payments and other payments. 24 I apprehend that the applicant's challenge both to the Tribunal's decision and that of the primary judge is more concerned with questions of fairness and why the law should be the way it is, and why compensation payments such as his, which have been paid now for about 30 years, should not be simply treated as ordinary weekly earnings, rather than compensation. 25 Be that as it may, it is clear enough that, at material times, the applicant was and continues to be in receipt of payments that are payments for "compensation", as that term is defined in the Social Security Act. 26 As a result, there is no doubt, and certainly not sufficient doubt, about the correctness of the primary judge's decision and as a consequence the application for extension of time to appeal must be refused.