Comcare v Chenhall, Gregory Charles [1996] FCA 745

CATCHWORDS COMMONWEALTH EMPLOYEES COMPENSATION - whether earnings from non-government employment deductible from compensation payments - meaning of "suitable employment" Safety Rehabilitation and Compensation Act 1988 (Cth): ss 19, 20 and 30 Superannuation Act 1976 (Cth): s 75(1) Comcare v Gregory Charles Chenhall No. QG 78 of 1996 Judge: Heerey J Date: 16 August 1996 Place: Hobart (heard in Brisbane)

IN THE FEDERAL COURT OF AUSTRALIA) ) QUEENSLAND DISTRICT REGISTRY ) No. QG 78 of 1996 ) GENERAL DIVISION ) (On appeal from the General Administrative Division of the Administrative Appeals Tribunal constituted by Mr K Beddoe, Senior Member) B E T W E E N: COMCARE Applicant - and - GREGORY CHARLES CHENHALL Respondent JUDGE: Heerey J DATE: 16 August 1996 PLACE: Hobart (heard in Brisbane) MINUTES OF ORDER The Court orders that: 1. The application is dismissed. 2. The applicant pay the respondent's costs including reserved costs. 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 78 of 1996 ) GENERAL DIVISION ) (On appeal from the General Administrative Division of the Administrative Appeals Tribunal constituted by Mr K Beddoe, Senior Member) B E T W E E N: COMCARE Applicant - and - GREGORY CHARLES CHENHALL Respondent JUDGE: Heerey J DATE: 16 August 1996 PLACE: Hobart (heard in Brisbane) REASONS FOR JUDGMENT The point raised in this appeal from the Administrative Appeals Tribunal constituted by Mr K Beddoe, Senior Member, is whether in assessing compensation under s 20 of the Safety Rehabilitation and Compensation Act 1988 (Cth) (the Act), Comcare should have deducted certain earnings of the respondent Mr Chenhall from non- Commonwealth employment. The context in which this question arose was a proposed redemption of payments to Mr Chenhall under s 30 of the Act. If the view Comcare took was correct, its liability to make payments to Mr Chenhall was less than $50 per week and redemption under s 30 was mandatory. The history of Mr Chenhall's compensation disputes with Comcare is long and complicated. However for present purposes the relevant facts can be shortly stated and are not in dispute. Mr Chenhall was born in 1947. He joined what was then known as the Commonwealth Police in 1975. By an instrument dated 14 June 1989 the Commissioner of Police retired Mr Chenhall from the Australian Federal Police with effect from 18 June 1989. The retirement was effected because Mr Chenhall was incapable of performing his duties in consequence of physical and mental incapacity. Mr Chenhall was in receipt of superannuation. By an instrument dated 20 April 1993 a delegate of the Commissioner for Superannuation determined that, after receiving reports from a number of doctors, including two psychiatrists, she was not satisfied that the health of Mr Chenhall had become so restored as to enable him to perform his former duties or other suitable duties. This determination was made under s 75(1) of the Superannuation Act 1976 (Cth) which provides: Where the Commissioner is satisfied, after receiving the report or reports of a medical practitioner or medical practitioners with respect to the health of a person to whom invalidity pension is payable, that the health of the person has become so restored as to enable him to perform duties of a kind that are, in the opinion of the Commissioner, suitable to be performed by him (having regard to the duties performed by him immediately before his retirement on the ground of invalidity and to such other matters as the Commissioner considers relevant), the Commissioner shall so inform such person or authority as the Commissioner considers appropriate with a view to that person or authority finding suitable employment for the pensioner. The Tribunal in the decision under appeal found that the effect of this determination was that Mr Chenhall was "considered to be not sufficiently restored to health to be found suitable employment by the Commonwealth". The Tribunal continued: The delegate's decision was taken in the knowledge that the applicant had been working in part-time employment, but it was also taken in the knowledge that the applicant, because of psychiatric illness, would best function in an isolated situation. That view was consistent with the findings on the medical evidence in these proceedings to the effect that the applicant cannot cope with a hierarchical structure in an organisation such as the Australian Federal Police. The findings of the Tribunal in relation to Mr Chenhall's part-time employment were as follows: Subsequent to being so retired the applicant undertook employment as a security officer with a company which carries on business providing security services and is well known as a commercial security service. Exhibit 2 is the pay records in relation to the applicant's employment by this company including a record of actual payments to the applicant. It is apparent from Exhibit 2 that the employment was of a casual nature because the hours worked from week to week seemed to vary between a maximum of approximately 50 hours per week and a minimum of around 10 hours per week. In certain weeks, the applicant worked in excess of 50 hours per week. It is clear enough, and I so find, that the applicant was able to earn income in other employment, but the question is whether he is able to earn income in suitable employment. Because Mr Chenhall received as a result of his retirement a pension under a superannuation scheme, he was governed by s 20 of the Act. The quantum of compensation payable under s 20 is set forth in s 20(2) and (3) as follows: (2) Comcare is liable to pay compensation to the employee, in respect of the injury, in accordance with this section for each week after the date of the retirement during which the employee is incapacitated. (3) The amount of compensation is an amount calculated under the formula: AC - (SA + SC) where: AC is the amount of compensation that would have been payable to the employee for a week if: (a) section 19, other than subsection 19(6), had applied to the employee; and (b) the week were a week referred to in subsection 19(3);