Advisory Note from Rehabilitation & Entitlements Group
No. 1/2010
FULL FEDERAL COURT DECISION IN JAMES
This is an advisory note only. It is not a Military Rehabilitation and Compensation Commission Guideline or a Departmental Instruction. The advice is not intended to conflict with the proper application of the Military Rehabilitation and Compensation Act 2004 or the judgements of the Courts. It may be subject to change as a result of further interpretation by the Courts of the legislation. Nevertheless it represents a considered view that should be taken into account by all delegates.
Summary
Decision
a. The appeal in James had questioned whether the legislative authority for establishing the offsetting principles and formulae in Chapter 25 was sound. The Court ruled that it was and that section 13 of the Military Rehabilitation and Compensation (Consequential and Transitional Provisions) Act 2004 (CTPA) authorised this.
b. The Court found that the introduction of Chapter 25 into GARP M is not beyond the exercise of power conferred by the CTPA, and that the MRCC was not acting beyond its authority in establishing the formulae and methods for offsetting the old SRCA and/or VEA conditions against a MRCA PI assessment.
c. The appellant had argued that section 13 of the CTPA was only for the calculation of offsets related to a person's entitlement to an SRDP safety-net payment under Chapter 4 Part 6 of the MRCA. This argument was incorrectly based around the construction of s14 of the CTPA and the Court dismissed this aspect of the appeal.
d.The appellant had argued that the operation of Chapter 25 can result in a person receiving no compensation due to the offsets applied from the old injuries, and that this operation would remove their entitlement to pursue common law damages and that this was a removal in rights of the claimant. The Court dismissed this aspect, as the person affected in this way is no worse off than a person who suffers an injury, which does not result in a compensable level of impairment.
Result
Action
{signed}
Adam Luckhurst
National Manager
Rehabilitation & Entitlements Policy Group
9 August 2010
Links
[1] https://clik.dva.gov.au/user/login?destination=node/21572%23comment-form