Wisniewski and Comcare (Compensation)

[2016] AATA 660

Wisniewski and Comcare (Compensation) [2016] AATA 660 (21 July 2016)

Division	GENERAL DIVISION
File Number(s)	2015/5196
Re	John (Jan) Wisniewski
APPLICANT
And	Comcare
RESPONDENT

DECISION

Tribunal	Deputy President S E Frost
Date	21 July 2016
Date of written reasons	31 August 2016
Place	Sydney

The Tribunal dismisses the application under s 42B(1)(b) of the Administrative Appeals Tribunal Act 1975 (Cth).

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Deputy President S E Frost

CATCHWORDS

WORKERS COMPENSATION – injuries claimed to have been sustained before the commencement day of the Safety, Rehabilitation and Compensation Act 1988 – success of claim depends on whether the applicant was entitled to compensation under the Compensation (Commonwealth Employees) Act 1971 (the 1971 Act) – applicant needed to establish he had been employed by the Commonwealth or by a prescribed authority of the Commonwealth – employed by Commonwealth Accommodation and Catering Services Limited (CACSL) – CACSL not the Commonwealth – CACSL not a prescribed authority of the Commonwealth – no entitlement to compensation under the 1971 Act – application has no prospect of success – application dismissed under s 42B(1)(b) of the Administrative Appeals Tribunal Act 1975

LEGISLATION

Safety, Rehabilitation and Compensation Act 1988 – s 124(2)

Compensation (Commonwealth Employees) Act 1971 – s 7(1)

Administrative Appeals Tribunal Act 1975 – s 42B

CASES

The Commonwealth v Bogle (1953) 89 CLR 229

SECONDARY MATERIALS

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REASONS FOR DECISION

Deputy President S E Frost

31 August 2016

INTRODUCTION

1. I dismissed this application on 21 July 2016, since I was satisfied that the Applicant’s application for review had no prospect of success.

2. The Applicant has asked for a statement in writing of the reasons for the decision.  This is that statement.

   BACKGROUND

3. The Applicant claims to have been employed, as at 27 January 1980, by Commonwealth Accommodation and Catering Services Limited (CACSL) as a cook/kitchen-hand, working in kitchens at a migrant hostel operated by CACSL at Villawood in New South Wales.  He also claims to have been attacked on that day by a group of men as he walked to work at the Westbridge Hostel for Migrants.  He claims to have sustained injuries in that attack – injuries that he says arose out of, or in the course of, his employment, resulting in incapacity and/or impairment.

4. The Applicant lodged a claim for workers compensation in December 2004, almost 25 years after the claimed attack.  Comcare refused the claim, and the Applicant has sought review of Comcare’s decision in this Tribunal.

   HOW THE CLAIM CAN SUCCEED

5. The injuries are alleged to have occurred before the commencement day of the Safety, Rehabilitation and Compensation Act 1988 (the SRC Act), which is the Act that currently applies with respect to injuries sustained by Commonwealth employees. Section 124(2) of the SRC Act provides that compensation is only payable, in such circumstances, where the claimant was entitled to compensation under the provisions of the Act in force at the time the injury was suffered. As at 27 January 1980, that Act was the Compensation (Commonwealth Employees) Act 1971 (the 1971 Act).

6. Section 7(1) of the 1971 Act provides that it applies:

   … to and in relation to a person who was employed by the Commonwealth or by a prescribed authority of the Commonwealth whether he is so employed under a law of the Commonwealth or of a Territory or under a contract of service or apprenticeship.

7. Therefore, to make good his claim, the Applicant must establish that he was at the relevant time either (a) employed by the Commonwealth, or (b) employed by a prescribed authority of the Commonwealth.  In other words, for the Applicant to succeed with his compensation claim, it must be the case that CACSL is either the Commonwealth, or a prescribed authority of the Commonwealth.

   IS CACSL THE COMMONWEALTH?

8. CACSL is the company formerly known as Commonwealth Hostels Limited (CHL), which was incorporated in Victoria under the Companies Act 1938 (Vic) on 13 September 1951.  Permission to use the term ‘Commonwealth’ in the company name of CHL was granted by the then Governor of Victoria.

9. The memorandum of association of CHL empowered the company to ‘“provide, acquire, take over, establish, equip, maintain, conduct, control, manage or supervise” hostels for the accommodation of “migrants” and others’: The Commonwealth v Bogle (1953) 89 CLR 229 (Bogle) per Fullagar J at 260.

10. CHL changed its name to CACSL on 10 May 1978.

11. In Bogle, Fullagar J concluded at 267 that it is ‘impossible to say that [CHL] is the Commonwealth’.

12. It follows that CACSL, the same company as CHL, is not ‘the Commonwealth’.

    IS CACSL A PRESCRIBED AUTHORITY OF THE COMMONWEALTH?

13. The expression ‘prescribed authority of the Commonwealth’ was defined in s 5(1) of the 1971 Act to mean:

    (a)a body corporate that is incorporated for a public purpose by a law of the Commonwealth other than such a body corporate that is declared by the regulations to be a body corporate in relation to which this Act does not apply; and

    (b)a body corporate that is incorporated for a public purpose by a law of a Territory of the Commonwealth and is declared by the regulations to be a body corporate in relation to which this Act applies.

14. CHL, now known as CACSL, even if incorporated for a public purpose, was not incorporated by a law of the Commonwealth or by a law of a Territory of the Commonwealth.  It was incorporated by a law of a State – namely, the State of Victoria.

15. It follows that CACSL is not a ‘prescribed authority of the Commonwealth’.

    IS THERE ANY OTHER WAY THE APPLICANT CAN BE SUCCESSFUL?

16. The Applicant may have had a case if he had been mistaken about his employment relationship in 1980.  If, for example, he had not been employed by CACSL, as he thought, but instead by the Department of Immigration, then he may have been able to establish that his injuries arose out of, or in the course of, employment attracting Commonwealth coverage.  In light of that possibility, the Tribunal issued a summons to the Department so that its records could be searched.  If there was any record of the Applicant having been in an employment relationship with the Commonwealth, the Department would have produced the record.  No such records were produced.

    CONCLUSION

17. I concluded that the Applicant could not establish that at the time of his claimed injuries, he was employed by the Commonwealth or by a prescribed authority of the Commonwealth.  He needed to prove one of those alternatives to attract the operation of the 1971 Act.

18. I therefore concluded that the Applicant’s application for review had no prospect of success. Accordingly I dismissed the application under s 42B(1)(b) of the Administrative Appeals Tribunal Act 1975.

I certify that the preceding 18 (eighteen) paragraphs are a true copy of the reasons for the decision herein of Deputy President S E Frost

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Associate

Dated 31 August 2016

Date(s) of hearing	3 June 2016
Date of return of summons	20 July 2016
Applicant	In person
Solicitors for the Respondent	Lehmann Snell Lawyers