Michael James Hammerton v Comcare Australia

[1995] AATA 63

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Michael James Hammerton
vComcare Australia

Tribunal:

Member: S. A. Forgie (Deputy President)

Legislative References:
Defence Force Retirement and Death Benefits Act 1973 - s 24
Commonwealth Employees' Rehabilitation and Compensation Act 1988 - s 20
Administrative Appeals Tribunal Act 1975 - s 37
Income Tax and Social Services Contribution Assessment Act 1936 - sub-paragraph 23(j)(i)
Superannuation Act 1976 - s 153AB
Equal Opportunity Act 1984 (SA) -
Income Tax Assessment Act 1936 - s 26A
Naval Defence Act 1910 -
Defence Act 1903 -
Air Force Act 1923 - s 4
Bankruptcy Act 1924 - s 101
Superannuation Act 1916 (NSW) - s 88
Army Act 1881 - s 141
Pay-roll Tax Act 1971 (NSW) - s 3
Safety Rehabilitation and Compensation Act 1988 - s 20

Case References:
Buckland v Federal Commissioner of Taxation - (1960) 34 ALJR 60
Clowes v Federal Commissioner of Taxation - [1954] HCA 10; (1954) 91 CLR 209
Crowe v Price - (1989) 22 QBD 429
Federal Commissioner of Taxation v J Walter Thompson (Australia) Pty Ltd - [1944] HCA 23; (1944) 69 CLR 227
Hobson v Kingston-Upon-Hill Corp - (1855) 24 LJ B 251
Investment and Merchant Finance Corporation Ltd v Federal Commissioner of Taxation - [1970] HCA 1; 120 CLR 177
Khoury (M and S) v Government Insurance Office of NSW - [1984] HCA 55; (1984) 54 ALR 639
M Steinberg and Others v Commissioner of Taxation - [1975] HCA 63; (1973) 47 ALJR 255
Mahony v Commissioner of Taxation - (1967) 41 ALJR 232
Melville v Mutual Life and Citizens Assurance Co Ltd - [1980] FCA 114; (1980) 31 ALR 649
Meulman and Others v OTC Ltd - (1990)96 ALR 223
Morris Steinberg v Commissioner of Taxation - (1976) 545 ALJR 43
Nette v Howarth - [1935] HCA 22; (1935) 53 CLR 55
Premier Automatic Ticket Issuers Ltd v Federal Commissioner of Taxation - [1933] HCA 51; (1933) 50 CLR 268
Scott v Commissioner of Taxation (Cth) - (1966) 40 ALJR 265
Trustees Executors and Agency Co Ltd v Reilly - [1941] VicLawRp 22; (1941) VLR 110
Tubemakers of Australia Limited v FCT - (1992) 93 ATC 4
Williams and Others v United Dairies Ltd - (1986) 10 ACLR 406
Wright v City of Brighton - (unreported, Judgment No 3074, 24 October, 1991)
XCC Proprietary Limited v Commissioner of Taxation - (1971) 45 ALJR 460
XCO Pty Ltd v Federal Commissioner of Taxation - [1971] HCA 37; (1971) 124 CLR 343

Hearing date:
Decision date: 10 March 1995

Brisbane

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ORDER

The Tribunal:

1. sets aside the decision under review;

2. substitutes a decision that:

(1)

the respondent is liable to pay compensation to the applicant in accordance with section 20 of the Safety Rehabilitation and Compensation Act 1988; and

(2)

in calculating the amount of compensation payable, the respondent is:

(a)

to take account of the amount of pension actually received by the applicant from time to time and to disregard the amount of the pension which he would have received had he not commuted part of his pension pursuant to section 24 of the Defence Force Retirement and Death Benefits Act 1973; and

(b)

to take no account of the 3% productivity bonus; and 3. adjourns further consideration.