9.3.3 Section 12 has effect in Transitional Cases

Section 12(1), (1AA) and (1A) of the 1930 Act continue to have effect, in relation to claims for lump- sums payable under the 1930 Act, despite the repeal of the 1930 Act.

This was confirmed, in relation to an equivalent provision under the 1971 Act (S39(14)), by the Full Federal Court in Hoyle v Telstra Corporation Limited (1997) where the Court held that S39(14) had substantive and not procedural effect. The Court rejected an argument that the transitional provisions in Part X of the SRCA had rendered S39(14) of the 1971 Act of no effect, see the discussion in chapter 8.

Note that the Court accepted that an amount of lump-sum compensation could become payable if S39(14) ceases to have effect in a particular case, for example because a member ceases to be totally incapacitated or is no longer likely to become totally incapacitated. Circumstances where S39(14) ceases to have effect, possibly giving rise to entitlement to a transitional PI lump sum payment include:

• a member (including a former employee) ceases to be totally incapacitated, this may be demonstrated for example by the member commencing part-time work
• a medical report indicates that the member (or former employee) is no longer likely to become totally incapacitated from their pre-1988 injury
• a member who is totally incapacitated turns 65 and is therefore no longer entitled to weekly incapacity payments because of S23(1) of the SRCA (this is not applicable to former employees whose entitlement to incapacity payments continues after age 65).

References

• Hoyle v Telstra Corporation Limited (1997) 75 FCR 390; 145 ALR 148; 25 AAR 240: Total incapacity excludes compensation under S39
• Commonwealth v Matheson (1955) 93 CLR 403: LOEU

Note: As of 1 July 2017, the incapacity payment cut-off age is aligned with Age Pension age.