8 eae ne tot a ned ll al alk in ie hee r IN THE FEDERAL COURT OF AUSTRALIA VICTORIA DISTRICT REGISTRY V. No. G 2 of 1586 wee er GENERAL DIVISLON BETWEEN : SELMAN AGDARTI Applicant and SNOWY MOUNTAINS HYDRO ELECTRIC AUTHORITY Respondent COURT: WNORTHROF J. DATE: 19 JUNE 1986 PLACE: MELBOURNE MINUTE OF ORDER THE COURT ORDERS THAT the appeal be dismissed. (Settlement and entry of Orders is dealt with in 0.36 of the Rules of Court.) (Not considered appropriate for further distribution.) ps ee ee penne onmee be teee - - fee Tost ee ~ smpe on, wo et ney Se De eee ee ed IN THE FEDERAL COURT OF AUSTRALIA VICTORIA DISTRICT REGISTRY Ve. No. G2 of 13986 wee GENERAL DIVISTON BETWEEN: SELMAN AGDARI Applicant and SNOWY MOUNTAINS HYDRO ELECTRIC AUTHORIT? Respondent COURT: NORTHROP J. DATE: 19 JUNE 1986 PLACE: MELBOURNE EX TEMPGRE REASONS FOR JUDGMENT The matter before the Court is an appeal brought by the applicant, Selman Agdari, from a decision of the Administrative Appeals Tribunal given on 1 November 1985. The appeal to this Court is an appeal ona question of law only, and this Court is exercising its original jurisdiction. The background to the appeal is confused, and unfortunately the matter went far further before the Administrative Appeals Tribunal than 1t should have. The bare outline of the facts 15 that the applicant was injured in the course of his amployment with the respondent, the Snowy Mountains Hydro Electric Authority, in Roe a Fe re ee eo re ee a, a yeor - i '' 1972. Since then, he has not engaged in any full-time employment. There have been occasions when he has done some part-time work, but the last of that work was in the 1970s. Unfortunately, there is a complete absence of any formal determinations made pursuant to the Compensation (Commonwealth Government Employees) Act 1971 ("the Compensation Act"), but it appears that at all relevant times since the late 1970s at the latest, the applicant was yeceiving weekly payments of compensation as for total incapacity, the payments being made pursuant to s.45 of the Compensation Act. The applicant desired to receive a lump sum payment by way of redemption of his entitlement to weekly compensation payments. The only basis on which this can he done is pursuant to s.49 of the Compensation Act. In substance, under that section, where payments of compensation in respect of an injury have been made to an employee under s.46 for a continuous pericd of not less than six months, the employee may request the Commissioner in writing that the liability of the Commonwealth to make further payments to the employee under that section be redeemed by the payment to the employee of a lump sum. The condition precedent to jurisdiction to make such a lump sum payment is the fact of receipt of compensation as for partial incapacity for a continuous period of not less than six months. Once such a request has been made, the Commissioner is required to consider the matter and to determine whether the liability of the Commonwealth is to be redeemed by the payment of a lump re w—--— - — sng weep ren ee ee ~~ ——— ee aan = poke Meets * rere age wae _ oT sum, and if he so determines that the liahility 1s to be redeemed, tha amount of the lump sum. Under sub-section (4) of 5.49, the method by which the lump sum is to be determined is set out, and it depends upon the amount of the partial incapacity payments being made at the time. Under sub-section (S), the Commissioner is not permitted to make a determination unless he is satisfied of three things, namely, that the injury is not likely to result in the amployee becoming totally incapacitated for work, that the employee intends to use the lump sum in a manner that is particularly advantageous to the employee, and that in all the Circumstances it is desirable in the interests of the employee that the liability of the Commonwealth be redeemed. Reference should also be made to s.61 and 5.62 of the Act which treat proceedings under 58.49 as if they were applications for determinations. From this summary, it is obvious that before the Commissioner has any power to make an order of the type described, there must be compliance with sub-section 49(1) of the Act. It is also important to remember that this section forms but part of a number of provisions in the Act dealing with compensation payments to persons injured as a result of their employment. The provisions have been discussed in some detail in a number of decisions of this Court, and I merely refer to them as a guide to future consideration of problems that might arise in matters of this kind. The first of those decisions is Re Portelli (1981) 53 F.L.R. 78, and in particular commencing at page 84. The successful appeal from — to " ele 20t te ate at A ie 7 v2 items that decision does not affect the views contained in the reference just given. A similar discussion of relevant provisions, particularly in regard to 5.49 of the Act and its relationship to other sections in the Act, is contained in Re Heath (1981) 61 F.L.R. 13, and in particular the passages commencing at page 30. The successful appeal to the High Court from that decision does not affect the views as to the provisions of the Act contained in that reference. Finally, reference is made to Reitano v. Commonwealth of Australia, a decision of the Full Court of this Court given on 13 December 1985, unreported, and in particular to the joint judgment of Mr. Justice Evatt and myself. In the course of those greasons, reference is made to the case of McDonald v. Director-General of Social Security (1984) 1 F.C.R. 354. The present appeal can be decided on the very short point of whether there has been compliance with the jurisdictional fact contained in sub-section 49(1) of the Compensation Act. It is sufficient to say that there is just no evidence at all to show that the applicant comes within the provisions of that sub-section. It was suggested, faintly, that for some period in 1973/74 or 75, the applicant was partially incapacitated only in that he did some other part-time work and received payment for that work, but unfortunately apart from the determination which is the subject of the appeal, there is no sther determination under the Compensation Act showing just what entitlement the applicant had. ed eae ea - ease car eott . It was conceded by the partics, and in fact found by the Tribunal, that since at least from 1975 the applicant has been receiving payment as for total incapacity, the amount of those payments being determined in accordance with 5.45. In cases of this kind, it is most important that all relevant determinations made under the Compensation Act should be placed before the Tribunal, since, in the absence of the determinations, it is not clear what is the entitlement of the person receiving payment. Further, nice questions arise as to whether, in the absence of determinations, the Commonwealth or any Commonwealth statutory authority bound by the Compensation Act can validly make payments of compensation under the Compensation Act. I merely draw attention to that fact and hope that in the future steps will be taken to ensure that all appropriate and relevant determinations are before the Tribunal when it is asked to review a decision of the Commissioner under the Compensation Act. I reject completely the submission that because at some time in the past there have been payments of compensation under 5.46, even though they are not being paid now, a person receiving compensation may make application under s.49 of the Act. A consideration of the whole of 5.49 makes it very clear that the payments of compensation under s.46 must be being made at the time of the application and must have been paid for at least six months prior to that date. The lump sum payment is to be calculated having regard to the amount of those compensation payments and a number of peor ee. me ree magne wpe —e ear ye 4 TP : factors, including the likelihood of them continuing into the future and matters of that kind. This is made clear by sub-section 49(4), and I read that sub-section:- "The amount of the lump sum is the amount determined to be the value, as at the date of the determination by the Commissioner that the liability is to he redeemed, of the right of the employee to receive further payments of compensation under section 46 and, in the determination of the value of that right, regard shall be had to the nature of the injury to the employee, the age and occupation of the employee and any other relevant matters." Of necessity, that must relate to the position as at the time of the determination, and it is completely irrelevant as to what happened some ten or more years earlier. Accordingly, on that point only the appeal must fail since there is no evidence to show that at the time of the application for the lump sum payment under 5.49 the applicant complied with the requirements of sub-section 49(1) of the Act. That should have been the only matter which was before the Tribunal and should have been the only matter considered by the Tribunal. In the event the Tribunal affirmed the decision of the Commissioner, or rather, the delegate of the Commissioner, the relevant part of which was that since there was no entitlement to payment of compensation under 5.46 of the Compensation Act, it follows there is no liability on the part of the Authority that can be redeemed by the payment of a oe pee epaiy oe eo ae eS Oe aed A ery rs a lump sum under 5.19 of the Act. Therefore, the decision was to refuse the request for a lump sum payment. That was a correct determination on the facts before the delegate to the Commissioner. That was the correct decision on the matters put before the Tribunal. The Tribunal affirmed that determination and in all the circumstances of the case it would be unwise of me to consider the other matters discussed by the Tribunal. At the very most they are dicta; at the very worst they can lead to false expectations and it is unwise for the Tribunal to go to matters of that kind where the jurisdictional fact has not been satisfied. The decision made was a correct decision and accordingly, no error of law has been demonstrated. Therefore, the appeal to this Court must fail and the formal order is that the appeal be dismissed. I make no order as to costs of the appeal. The basis for this 1s that in my opinion the Commonwealth or the Snowy Mountains Hydro Electric Authority should have put to the Tribunal the relevant determinations in relation to the total incapacity and the payments under s.45 of the Compensation Act on the basis of total incapacity in regard to the applicant. This was not done. In my opinion it is unfair to say, well, the applicant should have done this as he had sufficient warning of the fact that before he could apply under s.49, he had to be partially incapacitated. One is aware of the problems of the individual keeping all necessary records. The Commonwealth and the Authority should have ee ee a epee oe eee ee + Sy tte ied ae ee Pee aprmyes CS eteie enti aallciet en those records somewhere. I will assume for present purposes, and I think it is the only assumption open, that there are in existence determinations authorising the payment by the Commonwealth or the Authority of total incapacity payments under 5.45. If the Commonwealth or the Authority had produced those determinations, and I should say I assume that because I am not prepared to assume or infer that the Commonwealth or the Authority is making payments without the authority of any such determination, and if those determinations had been produced before the Tribunal, that would have brought the whole proceeding to an end in a much more effective and simple way and would have, in all probability, avoided the appeal to this Court. Accordingly, in the exercise of my discretion, I refuse to make the order for costs sought by the Commonwealth and the Authority. So the formal order is that the appeal be dismissed. I certify that this and the seven (7) preceding pages are a true copy of the Reasons for Judgment herein of the Honourable Mr. Justice Northrop. ' o~ - \e sae CN mole Associate 19 June 1986