Case: Department of Social Security v A'Beckett [1990] FCA 332 ; (1990) 26 FCR 349
Outcome: cited
mischief to which s 1169 and s 1170 , read in conjunction with the definitions of "compensation" and "compensation affected payment" is directed, was stated by reference to an earlier, but nonetheless analogous, regime in social security legislation by von Doussa J in Secretary of the Department of Social Security v A'Beckett [1990] FCA 332 ; (1990) 26 FCR 349 at 359-360 in these terms: In my opinion, the intention of the scheme for preclusion and recovery is to prevent double payments from arising from that part of a payment by way of compensation, which is fairly to be characterised as damages or compensation for an incapacity for work. The intention of the scheme, in my opinion, remains to prevent double payments arising from payments which are to be characterised as compensation affected payments, and in that way, not to burden the revenue, ie, the Australian taxpayer, with the making of payments to an individual who has already received a compensation affected payment from another source. The Tribunal was, in my opinion, well entitled, having regard to the facts that it found, to reach the conclusion that the payment received by Mr Borcherdt was a compensation affected payment. In particular, the Tribunal was, in my opinion, well entitled to reach the conclusion that the payment was one that fell within the terms of s 17(2)(c) , and that it was one which was made wholly or partly "in respect of" lost earnings or lost capacity to earn, resulting from personal injury. Those words, "in respect of," as they appear in s 17(2) , have a role to play. In that regard, reference might usefully be had to earlier decisions of this Court in respect of words used in an analogous way in earlier statutory regimes and, in particular, the observation made by von Doussa J in A'Beckett's case as to the policy which lies behind the statutory regime is instructive. In the absence of very singular evidence as to the construction of a settlement payment and the heads of damage for which it is made, where one sees a payment made in the course of either compensation or personal injuries proceedings, which is made as a result of those proceedings having been brought, it would ordinarily be an unremarkable conclusion, where the proceedings have included a claim in respect of loss of earning capacity or incapacity to undertake work, to reach a conclusion that the payment was one which had been made wholly or partly "in respect" of earnings or lost capacity to earn, resulting from personal injury. However one approaches this case, either on the basis that it is not truly an appeal on the question of law, or even if, perhaps, with respect, charitably, one approaches it on the basis that raised for consideration is whether the Tribunal was entitled on the facts that it found to reach the conclusion that it did, there is no merit in the appeal. It follows, necessarily, that it must be dismissed. I certify that the preceding thirty-five (35) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Logan. Associate: Dated: 10 February 2009 Counsel for the Appellant: The Appellant appeared in person Solicitor for the Respondent: Minter Ellison Date of Hearing: 3 February 2009 Date of Judgment: 3 February 2009 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2009/62.html