Zivkov v Comcare [2003] FCA 867

FEDERAL COURT OF AUSTRALIA

Zivkov v Comcare [2003] FCA 867 VOJISLAV ZIVKOV v COMCARE Q 76 of 2003 DOWSETT J 21 JULY 2003 BRISBANE

IN THE FEDERAL COURT OF AUSTRALIA

QUEENSLAND DISTRICT REGISTRY Q 76 OF 2003

ON APPEAL FROM THE ADMINISTRATIVE APPEALS TRIBUNAL

BETWEEN: VOJISLAV ZIVKOV

APPLICANT

AND: COMCARE

RESPONDENT

JUDGE: DOWSETT J

DATE OF ORDER: 21 JULY 2003

WHERE MADE: BRISBANE

THE COURT ORDERS THAT:

1. The appeal be dismissed.

2. The applicant pay the respondent's costs of the appeal.

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 Q 76 OF 2003

ON APPEAL FROM THE ADMINISTRATIVE APPEALS TRIBUNAL

BETWEEN: VOJISLAV ZIVKOV

APPLICANT

AND: COMCARE

RESPONDENT

JUDGE: DOWSETT J

DATE: 21 JULY 2003

PLACE: BRISBANE

REASONS FOR JUDGMENT 1 This is an appeal from a decision of the Administrative Appeals Tribunal (the "Tribunal") pursuant to the Administrative Appeals Tribunal Act 1975 (Cth). An appeal lies only as to a question of law. The issue before the Tribunal was quite narrow. Paragraph 15 of the Tribunal's reasons identifies the question as involving the correctness of a decision not to redeem the liability to make weekly payments to the applicant by a lump sum payment. The only question before me is the correctness or otherwise of the Tribunal's resolution of that issue. 2 The Tribunal considered that the applicant's pension is presently payable pursuant to the Safety, Rehabilitation and Compensation Act 1988 (Cth) and has been so since the relevant part of that Act came into force on 1 December 1988. Pursuant to that Act, certain pensions payable under earlier legislation became payable pursuant to its terms, Pt X containing the relevant provisions. All of the earlier legislation was repealed by s 139. It is quite clear that entitlements under Pt X of the 1988 Act were substituted for previous entitlements under earlier legislation. Section 137 of the 1988 Act authorizes lump sum redemption in certain circumstances. Redemption is not permitted where the relevant payee is receiving weekly payments more than a certain level. The Tribunal stated at par 31 of its reasons that level was $79.43 as at 1 July 2002. At the relevant time, the applicant was receiving more than that sum. For that reason, the Tribunal held that the applicant was not entitled to redemption. 3 The correctness of the decision depends upon the correctness of the Tribunal's view that the applicant's right to receive such payments was, by that time, pursuant to the 1988 Act and that any right of redemption could only arise under that Act. The applicant disputes the correctness of that proposition. However that point was not in issue before the Tribunal. The applicant should not be allowed to raise it now. In any event, it is clear that the 1988 Act repealed the earlier Acts with the intention that any previous entitlements be payable pursuant to Pt X. 4 Until 1971, claims for compensation by Commonwealth employees were dealt with under the Commonwealth Employees' Compensation Act 1930-1970. In 1971 the Compensation (Commonwealth Employees) Act 1971 was enacted. Its name was subsequently amended to the Compensation (Australian Government Employees) Act 1971-1973. The change of name is irrelevant for present purposes, save that it explains certain confusion apparently experienced by the applicant with respect to the legislation. The applicant's injury occurred after the commencement of the 1971 Act. Under that Act, an employee who was totally incapacitated for work was entitled to payments pursuant to s 45. An employee who was partially incapacitated was entitled to payments pursuant to s 46. Pursuant to s 49, an employee entitled to payments under s 46 could apply for a cash redemption, but there was no such provision for a person receiving payments pursuant to s 45. At some stage in 1984, the Tribunal decided that the applicant's entitlement was pursuant to s 45 and not s 46. That decision is not presently subject to appeal. In those circumstances, it seems that even under the 1971 Act, the present applicant would not have been entitled to a cash redemption of his weekly payments. 5 Reference was made in the course of argument to the decision of the High Court in Esber v The Commonwealth of Australia & Anor (1991-1992) 174 CLR 430. As I understand that case, it concerned applications pending at the time of legislative amendment, an issue which does not arise in the present case. 6 The appeal should be dismissed. 7 In the usual course, costs should follow the event. I will order that the applicant pay the respondent's costs of the appeal. However I consider that, in the circumstances of this case, it would be most inappropriate if the respondent were to seek to enforce the order. I certify that the preceding seven (7) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Dowsett.