FEDERAL COURT OF AUSTRALIA

Australian Postal Corporation v Forgie [2003] FCAFC 223

ADMINISTRATIVE LAW – worker’s compensation – whether a decision required under s 37(7) of the Safety, Rehabilitation and Compensation Act 1988 (Cth) – whether the Administrative Appeals Tribunal has jurisdiction to review the application of 37(7) of the Safety, Rehabilitation and Compensation Act 1988 (Cth) – meaning of ‘determination’ in s 60(1) of the Safety, Rehabilitation and Compensation Act 1988 (Cth) – meaning of ‘decision’ in the Administrative Appeals Tribunal Act 1975 (Cth)

Safety, Rehabilitation and Compensation Act 1988 (Cth) s 4(1), s 14, ss 36-38, s 57, Pt VI

Administrative Appeals Tribunal Act 1975 (Cth) s 3(3)

Australian Postal Corporation v Pascoe [2003] FCA 390 not followed

Buck v Comcare (1996) 66 FCR 359 questioned

Chowdhary v Bayne (1999) 29 AAR 100 not followed

Electricity Supply Association of Australia Ltd v Australian Competition and Consumer Commission (2001) 113 FCR 230 applied

Director-General of Social Services v Chaney (1980) 31 ALR 571 approved

Director-General of Social Services v Hales (1983) 47 ALR 281 applied

Hutchins v Commission of Taxation (1996) 65 FCR 269 applied

Minister for Immigration and Ethnic Affairs v Mayer (1985) 157 CLR 290 applied

Telstra Corporation Ltd v Administrative Appeals Tribunal (2003) 37 AAR 40 considered

Trajkovski v Telstra Corporation Ltd (1998) 81 FCR 459 not followed

Australian Postal Corporation v Bottawan Long

V 26 of 2003

Australian Postal Corporation v Stephanie Forgie, in her capacity as Deputy President of the Administrative Appeals Tribunal and Bottawan Long

V 128 0f 2003

BLACK CJ, MERKEL AND STONE JJ

8 OCTOBER 2003

MELBOURNE

THE COURT ORDERS THAT:

1.                  The applications be dismissed.

2.         In the event that the parties do not agree on costs, the respondent, Mr Bottawan Long, file and serve any submissions on the question of costs within seven days and the applicant file and serve any submissions in reply within seven days thereafter.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

REASONS FOR JUDGMENT

THE COURT:

1                     The issue before the Court in these proceedings is whether the Administrative Appeals Tribunal (‘the Tribunal’) has jurisdiction to review the application by the Australian Postal Corporation (‘Australia Post’) of s 37(7) of the Safety, Rehabilitation and Compensation Act 1988 (Cth) (‘the SRC Act’) to one of its employees, the second respondent, Mr Bottawan Long.  Section 37(7) is one of the several provisions of the SRC Act relating to rehabilitation programs.  It provides:

‘Where an employee refuses or fails, without reasonable excuse, to undertake a rehabilitation program provided for the employee under this section, the employee’s rights to compensation under this Act, and to institute or continue any proceedings under this Act in relation to compensation, are suspended until the employee begins to undertake the program.’

2                     Two separate proceedings are before the Court.  The first (V 23 of 2003) is an application by Australia Post by way of appeal from the Tribunal, under s 44(1) of the Administrative Appeals Tribunal Act 1975 (Cth) (‘the AAT Act’), against a decision of Deputy President Forgie.  The applicant recognised that this application may be incompetent because it was decided by a Full Court in Director-General of Social Services v Chaney (1980) 31 ALR 571 (‘Chaney’) that a preliminary ruling as to the existence of jurisdiction is not a decision that gives rise to a right of appeal under s 44(1) of the AAT Act (this right of appeal being conferred only in respect of a final decision or determination of the Tribunal).  Australia Post has therefore also made an application for an order in the nature of prohibition under s 39B of the Judiciary Act 1903 (Cth) (V 128 of 2003).

3                     Ms Mortimer, who appeared with Mr Carey for Mr Long, submitted that the appeal under s 44(1) of the AAT Act was indeed incompetent, but she did not dispute that the Court had jurisdiction under s 39B of the Judiciary Act.  Counsel for Australia Post, Mr Howe, did not suggest that we should decline to follow Chaney or that the beneficial principle established in that case was inapplicable to the present appeal.  In these circumstances, the Court agreed that the parties should confine their submissions to the application for an order in the nature of prohibition and that the appeal under s 44(1) would not be pursued.  The hearing proceeded accordingly.

4                     The first respondent to the s 39B proceedings, Deputy President Forgie, took no part in the proceedings and it will be convenient to refer to the second respondent, Mr Long, as simply the respondent.

Background

5                     The following account of the background to this case is taken from, and is essentially a summary of, the account in Deputy President Forgie’s reasons for decision.

6                     Mr Long, who had been working with Australia Post since about December 1989 as a Senior Postal Officer (Grade 2), suffered an injury to his back on or about 25 July 2000.  He claimed compensation for which liability was accepted under s 14 of the SRC Act.  Mr Long was paid compensation under s 19 and later returned to work for seven hours each day on modified duties.

7                     On 30 April 2002, Australia Post determined that Mr Long should undertake a rehabilitation program, which required him to work an extra 1.25 hours each day in the period from 30 April 2002 to 27 May 2002 (‘the Program’).  The determination was made under s 37(1) of the SRC Act which provides:

‘A rehabilitation authority may make a determination that an employee who has suffered an injury resulting in an incapacity for work or an impairment should undertake a rehabilitation program and, where the authority so determines, it may make arrangements with an approved program provider for the provision of a rehabilitation program for the employee.’

8                     Australia Post formed the view that the Mr Long was not adhering to the requirements of the Program and by letter dated 9 May 2002, wrote to him seeking an explanation of his failure to comply with the Program and noting that, if he failed to provide a satisfactory explanation within seven days, his rights to compensation and to institute or continue any proceedings under the SRC Act would be suspended under s 37(7) until he began, commenced or performed the Program.

9                     Mr Long responded on 14 May 2002 stating that he was unable to comply with the Program because of increasing pain during the working day, which he said prevented him from concentrating on his job and caused him stress and anger.

10                  On 20 May 2002, a Rehabilitation Manager within Australia Post notified Mr Long that his explanation was not considered to be reasonable and that his rights to compensation and to institute or continue proceedings under the SRC Act were suspended.  Mr Long was also told that he was entitled to seek reconsideration of what was described as the ‘determination’ to apply s 37(7), which Mr Long did by letter from his solicitors dated 7 June 2002.

11                  On 15 July 2002, the ‘determination’ of 20 May 2002 was affirmed by what was described as a ‘reviewable decision’ made by a Senior Claims Manager in Australia Post.  The letter notifying Mr Long of this ‘reviewable decision’ also informed him that he was entitled to seek review by the Tribunal.  Mr Long lodged an application for review of the ‘reviewable decision’ on 9 August 2002.

12                  When the matter came before the Tribunal, however, Australia Post changed its approach.  It no longer accepted that it had made a ‘determination’ or that there was a ‘reviewable decision’.  Instead it raised, as a preliminary question, what it said was an absence of jurisdiction.  It argued that the application of s 37(7) was not in fact reviewable by the Tribunal and that the indications to the contrary in the correspondence with Mr Long were mistaken, for the reason that it had been established by decisions of the Federal Court that s 37(7) was a self-executing provision.  Australia Post argued that as a self-executing provision the subsection did not involve any ‘determination’ and its application was not subject to merits review before the Tribunal.

13                  On 23 December 2002, Deputy President Forgie handed down her decision on the preliminary question as to the Tribunal’s jurisdiction to entertain Mr Long’s application. Deputy President Forgie rejected the applicant’s arguments.  She held that the practical application of s 37(7) did involve a ‘determination’, as defined by s 60 of the SRC Act, or alternatively that it required the making of a ‘determination’ refusing to pay any further compensation under s 19 of the SRC Act (the learned Deputy President may have intended to refer to s 37(5) under which compensation becomes payable once a s 37(1) rehabilitation program is in place).  On either view, Deputy President Forgie concluded, the Tribunal had jurisdiction to review the application of s 37(7) to Mr Long.  It is this decision that the applicant, Australia Post, now challenges.

The status of Australia post

14                  It should be noted at the outset that throughout Australia Post’s interactions with Mr Long about his rehabilitation program, and also in Deputy President Forgie’s decision, there appears to be have been some confusion about the status of Australia Post under the SRC Act.  Under s 37(1), only a ‘rehabilitation authority’ can make a determination that an employee should undertake a rehabilitation program.  Rehabilitation authority is relevantly defined in s 4(1) as follows:

‘rehabilitation authority, in relation to an employee, means:

…

(b)         where the employee is employed by a licensed authority – the principal officer of that authority; and

…

(c)          if the employee is employed by an Entity or a Commonwealth authority, other than an exempt authority – the principal officer of the Entity or the Commonwealth authority in which the employee is employed; …’

Rehabilitation authorities are further divided into two categories, ‘relevant authorities’ and ‘rehabilitation authorities (other than relevant authorities)’.  Relevant authority is also defined in s 4(1):

‘relevant authority means:

(a)         in relation to an employee who is employed by a licensee – the licensee; and

(b)         in relation to any other employee – Comcare.’ 

Australia Post’s status as a ‘relevant authority’ or as a ‘rehabilitation authority (other than a relevant authority)’ is material because the SRC Act provides for a different process for review of determinations made under ss 36 and 37 of the SRC Act according to whether they are made by a ‘relevant authority’ (set out in Part VI of the SRC Act) or by a ‘rehabilitation authority (other than a relevant authority)’ (set out in ss 38, 63 and 64).

15                  Australia Post’s Senior Claims Manager and Deputy President Forgie each formed the view that Australia Post was not a ‘relevant authority’ under the SRC Act, but Australia Post’s Rehabilitation Manager appears to have assumed that it was a ‘relevant authority’.

16                  Before us, the applicant contended and counsel for Mr Long accepted, that Australia Post is in fact a ‘relevant authority’.  We consider that this approach is correct for reasons we should now explain.  

17                  Whether an authority is a ‘relevant authority’ under the SRC Act in its current form turns on the definition of ‘licensee’, which is contained in s 4(1) of the SRC Act  and is as follows:

‘licensee means a Commonwealth authority or a corporation that is licensed, or that is taken to be licensed, under Part VIII.’ 

18                  Australia Post does not fall within the definition of licensee in s 4(1) of the SRC Act, as it currently stands, because it is neither the holder of a licence under Part VIII, nor taken to be the holder of such a license.  Australia Post has, however, since 30 June 1992, been the holder of a license under the former Part VIIIA of the SRC Act.  That part, and Part VIIIB, were repealed by the Safety Rehabilitation and Compensation and Other Legislation Amendment Act 2001 (Cth) (‘the Amending Act’), which came into force on 1 April 2002. Parts VIIIA and VIIIB, nevertheless, continue to have effect for some purposes by reason of the transitional provisions in the amending legislation.  These transitional provisions include s 50(1), which is in the following terms:

‘50    Transitional provisions

(1)     Subject to sub-items (2) and (3), if, immediately before the day this Part commences, a Commonwealth authority or corporation held a licence under Part VIIIA or VIIIB of the Safety, Rehabilitation and Compensation Act 1988, the provisions of that Act as in force immediately before that day continue to apply in relation to the authority or corporation in its capacity as licence holder under Part VIIIA or VIIIB, as the case requires, as if the items of this Part had not been enacted.’ 

19                  As the holder of a licence under the former Part VIIIA, Australia Post came within the definition of ‘relevant authority’ under the SRC Act, as in force immediately before the new Part VIII commenced.  Under the transitional provisions, Australia Post has remained a ‘relevant authority’ subject to the former provisions.  Indeed, if the SRC Act in its present form is read without the relevant amendments, as s 50(1) in effect requires, it becomes clear that Australia Post remains a relevant authority for the purposes of the SRC Act as it currently stands.  This is because Australia Post holds a licence under the former (but relevantly continued) Part VIIIA and because under the SRC Act in its earlier form ‘licence’ was defined as meaning a licence under Part VIIIA or VIIIB.  Australia Post, as the holder of a licence, was a licensed authority for the purposes of the definition of ‘relevant authority’ under the SRC Act before it was amended.  Reading, then, the new Act as if the items to which s 50(1) refers had not been enacted, Australia Post is a relevant authority for the purposes of the SRC Act in its present form.  (It may be noted that the detailed provisions of s 50(3)(b) of the Amending Act would appear to assume the conclusion we have reached.)  Reconsideration and review of Australia Post determinations is, therefore, governed by Part VI of the SRC Act.

Does the Tribunal have jurisdiction?

20                  In determining whether the Tribunal has jurisdiction to review an administrative action, s 25(1) of the AAT Act directs attention to the terms of the legislation pursuant to which that action was taken. Section 25(1) provides:

‘An enactment may provide that applications may be made to the Tribunal:

(a)         for review of decisions made in the exercise of powers conferred by that enactment; or

(b)         for the review of decisions made in the exercise of powers conferred, or that may be conferred, by another enactment having effect under that enactment.’

21                  As mentioned previously, Part VI of the SRC Act deals with reconsideration and review of determinations, including Tribunal review.  Section 61 provides for the claimant to be notified of determinations in writing.  Section 62 provides for reconsideration of determinations by the determining authority, either on its own motion or pursuant to a request by the claimant.  Once a reconsideration has been undertaken, the decision upon the reconsideration is called a ‘reviewable decision’ and s 63 requires the claimant to be notified of it in writing.  An application ‘for review of a reviewable decision’ can be made to the Tribunal under s 64, by inter alia, a claimant.

22                  Section 60(1) sets out the important definitions applicable to Part VI:

‘claimant means a person in respect of whom a determination is made.

decision has the same meaning as in the Administrative Appeals Tribunal Act 1975.

determination means a determination, decision, or requirement made under section 8, 14, 15, 16, 17, 18, 19, 20, 21, 21A, 22, 24, 25, 27, 29, 30, 31, 34, 36, 37 or 39, under paragraph 114B(5)(a) or under Division 3 of Part X (emphasis added)

determining authority, in relation to determination, means the person who made the determination.

reviewable decision means a decision made under subsection 38(4) or section 62.’

23                  The reference to ‘decision’ in section 60(1) of the SRC Act leads to s 3(3) of the AAT Act, which provides for the interpretation of ‘decision’ as follows:

‘A reference in this Act to a decision includes a reference to:

(a)          making, suspending, revoking or refusing to make an order or determination;

(b)          giving, suspending, revoking or refusing to give a certificate, direction, approval, consent or permission;

(c)           issuing, suspending, revoking or refusing to issue a licence, authority or other instrument;

(d)          imposing a condition or restriction

(e)           making a declaration, demand or requirement;

(f)            retaining, or refusing to deliver up an article; or

(g)          doing or refusing to do any other act or thing.’

24                  The central question in this case is whether the suspension of an employee’s rights to compensation and of the right to institute and continue proceedings in the Tribunal under s 37(7) requires or involves a ‘determination’ as defined in s 60 of the SRC Act.  If it does, the two-tiered review rights set out in Part VI apply and the Tribunal has jurisdiction to review the application of s 37(7).  If it does not, the Tribunal lacks jurisdiction, it not being suggested that it could derive jurisdiction from any other source.

The applicant’s Arguments

25                  The applicant’s contention is simply that s 37(7) takes effect, by operation of law, as a self-executing provision and that it does not require any determination to be made.  It follows, so it is argued, that there is nothing that it is amenable to the usual process of internal reconsideration, or that could give rise to a free-standing independent jurisdiction in the Tribunal to review the suspension on its merits.  In support of this contention, Australia Post relies upon the decisions of single judges of the Court in Buck v Comcare (1996) 66 FCR 359 at 363-364 (‘Buck’); Trajkovski v Telstra Corporation Ltd (1998) 81 FCR 459 at 464 (‘Trajkovski’); Chowdhary v Bayne (1999) 29 AAR 100 at 102-103 (‘Chowdhary’), Telstra Corporation Ltd v Administrative Appeals Tribunal (2003) 37 AAR 40 (‘Telstra’); and Australian Postal Corporation v Pascoe [2003] FCA 390 (‘Pascoe’).

26                  Although the applicant contends that the provision is self-executing, in the sense that once the requisite conditions exist the employee’s rights are suspended by operation of the section and not as a result of a decision taken by a rehabilitation authority, Australia Post recognises that as a matter of practical reality somebody – a person – needs to reach a conclusion about the existence of two requisite conditions: (1) that the employee has refused or failed to undertake a rehabilitation program; and (2) that this was without reasonable excuse.  It argues, however, that the process of reaching such a conclusion does not amount to a ‘determination’ within the meaning of the SRC Act, but is simply a necessary consequence of the administration of the Act.  It is a conclusion that rights have been suspended by operation of s 37(7) rather than a decision to suspend rights. 

27                  Australia Post conceded, on the authority of the decisions of Tamberlin J in Trajkovski and Finn J in Chowdhary, that if there were another matter before the Tribunal in respect of which it had jurisdiction, (for example an application for review of a reviewable decision not to pay compensation in respect of medical expenses under s 16 of the SRC Act, or indeed an application for review of a determination under s 37(1) that the employee should undertake a rehabilitation program) the Tribunal would for the purposes of deciding whether or not the employee had a right to proceed, have an ancillary jurisdiction to consider the merits of the application of s 37(7) of the SRC Act.  But it contended that in Mr Long’s situation, where review is sought only in relation to the suspension of entitlements under subsection 37(7) and not in relation to another reviewable decision under the SRC Act, there is no primary jurisdiction to determine whether the conditions for the application of s 37(7) exist.

28                  The applicant submitted that the non-reviewability of the suspension of rights under s 37(7) is consistent with the definition of ‘determination’ in s 60(1) because suspension of entitlements under s 37(7) does not come about as a result of a decision ‘made under’ that subsection, for the reason that the subsection is self-executing.  The assessment of whether an excuse is reasonable or not, or whether there has been a refusal or failure to comply with a rehabilitation program, is not ‘made under’ s 37(7) but is simply, it was said, an act required as a consequence of that section.

29                  In addition, it was put that s 38 of the SRC Act, which relates to review of determinations by a ‘rehabilitation authority (other than a relevant authority)’ deals only with review of determinations made under ss 36(1), 36(3) and 37(1).  The applicant submitted that this provides a further indication that s 37(7) was not intended by the Parliament to be reviewable because there is no policy reason to provide for different review regimes according to whether a rehabilitation authority is licensed or not.

30                  The coercive nature of s 37(7) and equivalent provisions was also emphasised;  the primary goal of these provisions was not to determine compensation entitlements but to ensure the good administration of the SRC Act.  Finally, the existence of other checks and balances, in the form of review of a determination under s 37(1) or a challenge to the suspension of rights under s 37(7) in the Federal Court on the ground of error of fact or law,in relation to the application of s 37(7) was put forward as support for the applicant’s interpretation.

The Respondent’s Arguments

31                  The respondent accepts that the suspension of rights under s 37(7) is self-executing in nature.  He contends, however, that this self-executing aspect of s 37(7) first requires a decision to be made about: (1) whether there has been a failure or refusal to undertake a rehabilitation program; and (2) whether there was a reasonable excuse for that failure or refusal.  This requires the exercise of judgment.  The respondent argues that these decisions constitute a ‘determination’ as defined in s 60(1) of the SRC Act because they require ‘doing or refusing to do any other act or thing’, which is a ‘decision’ within the meaning of s 3(3)(g) of the AAT Act and hence a ‘determination’ under s 60(1) of the SRC Act.

32                  The respondent further contends that a decision that there has been an unreasonable failure or refusal to comply with a rehabilitation program must be ‘made under’ s 37(7) because there is no power elsewhere in the SRC Act to make such a decision.  He does not accept the validity of the distinction between a decision ‘made under’ s 37(7) and a decision made as a consequence of s 37(7).  He submits that in both cases the decision must be authorised by s 37(7) and that the qualifying term ‘made under’ is simply another way of expressing such authority, whether express or implied.

33                  While acknowledging the coercive element in s 37(7), the respondent contends that the inclusion of the words ‘without reasonable excuse’ are plainly protective in intendment.  The introduction of the notion of ‘reasonable excuse’ acknowledges that there will be circumstances in which it is justifiable for an employee to refuse or fail to comply with a rehabilitation program.  It is said, therefore, that s 37(7) should be given an interpretation in the context of the SRC Act that furthers its protective object, and provides a safeguard against arbitrary decision-making, by subjecting the suspension of rights under s 37(7) to the two tiered system of merits review established under the SRC Act.

34                  To the argument that an employee can seek review of the rehabilitation program under s 37(1), the respondent answers that review of the presence or absence of a ‘reasonable excuse’ in s 37(7) is directed to different circumstances, which may arise at any time after an employee has engaged upon a rehabilitation program, and by which time the 30 day time limit in s 62(3) for seeking review of a rehabilitation determination under s 37(1) may have expired.

Interpreting subsections 37(7) and 60(1) of the SRC Act

35                  In determining whether Parliament intended the suspension of rights under s 37(7) of the SRC Act to be subject to the two tiered reconsideration and review process provided for in Part VI of the SRC Act, it is first necessary to interpret the definition of ‘determination’ in s 60(1), because it is only ‘determinations’ that are subject to reconsideration under s 61 and which give rise to a decision reviewable by the AAT under s 64.

36                  As previously mentioned, s 60(1) defines a ‘determination’ as follows:

‘determination means a determination, decision, or requirement made under section 8, 14, 15, 16, 17, 18, 19, 20, 21, 21A, 22, 24, 25, 27, 29, 30, 31, 34, 36, 37 or 39, under paragraph 114B(5)(a) or under Division 3 of Part X.’

Section 37 is, thus, explicitly mentioned. ‘Decision’is also defined in s 60(1) to have the same meaning as in the AAT Act, s 3(3)(g) of which concludes by providing that a reference to a decision includes a reference to ‘doing or refusing to do any other act or thing’.

37                  The definition of ‘determination’ in the SRC Act thus becomes an inclusive definition of substantial breadth.  In general it refers to whole sections and not subsections, even though the sections referred to do contain subsections.  Moreover, it refers to several sections, such as ss 14, 15, 18, 20, 21, 21A and 36, which do not use the language of ‘determination’ but give work to do to the other concepts of ‘decision’ and ‘requirement’ embraced by the s 60(1) definition of ‘determination’.

38                  Section 14 in particular provides a good illustration of the way in which the definition of ‘determination’ applies to the listed sections. It provides:

‘14 Compensation for injuries

(1)  Subject to this Part, Comcare is liable to pay compensation in accordance with this Act in respect of an injury suffered by an employee if the injury results in death, incapacity for work, or impairment.

(2)  Compensation is not payable in respect of an injury that is intentionally self-inflicted. 

(3)  Compensation is not payable in respect of an injury that is caused by the serious and wilful misconduct of the employee but is not intentionally self-inflicted, unless the injury results in death, or serious and permanent impairment.’ 

39                  None of these subsections uses the language of ‘determination’.  Indeed, all three have about them much the same self-executing element as s 37(7): Comcare is liable if certain circumstances exist, Comcare is not liable if certain other circumstances exist, just as rights are suspended under s 37(7) if certain circumstances exist. It is clear that, as with s 37(7), as a matter of practical reality each subsection in s 14 requires a decision to be made in respect of Comcare’s liability to pay compensation in accordance with the SRC Act.  This is not only practical reality, however, but also legal reality.  One of these subsections, at least, must give rise to a determination as defined in s 60(1) as otherwise there would have been no point in including it in the list of sections under which a ‘determination’ can be made.  The fact that these subsections must give rise to at least one ‘determination’ and their similarity with s 37(7) suggests that s 37(7) also requires a ‘determination’ for its operation.

40                  The way in which s 37(7) must operate also suggests that a ‘determination’ is required.  The inclusion of the words ‘without reasonable excuse’ introduces a distinctive requirement for some deliberative human action.  An assessment needs to be made at some point – by a person – as to a refusal or failure to undertake a rehabilitation program, and to the reasonableness or unreasonableness of that refusal or failure.  Such a process requires that the person at least consider the circumstances surrounding the employee’s failure or refusal to undertake a rehabilitation program and to evaluate what is reasonable in the circumstances.  This intellectual process involves matters of judgment and degree.  The suspension of rights under s 37(7) can only occur by force of law once some such assessment has been made.  The process cannot be conducted in a manner analogous to the mechanistic operations of a sorting machine.  The process that is required would seem unequivocally to fall, at least, within the s 3(3)(g) AAT Act definition of ‘decision’as ‘doing or refusing to do any other act or thing’ and hence within the definition of ‘determination’ under the SRC Act.

41                  As noted, however, the respondent contends that a line of authority in this Court, beginning with Buck (1996) 66 FCR 359 compels a different conclusion. 

42                  Buck concerned the interpretation of section 57(2) of the SRC Act which, although appearing in a different setting, provides, in terms analogous to s 37(7), as follows:

‘(2)Where an employee refuses or fails, without reasonable excuse, to undergo [a medical] examination, or in any way obstructs an examination, the employee’s rights to compensation under this Act, and to institute or continue any proceedings under this Act in relation to compensation, are suspended until the examination takes place.’

The applicant in Buck sought review under the Administrative Decisions (Judicial Review) Act 1977 (Cth) (ADJR Act) of what she alleged was Comcare’s decision to find her non-attendance at the examination was without reasonable excuse.  Finn J held (at 363-364):

‘I have reached the conclusion, albeit with some hesitation, that s 57(2) does not, relevantly, authorise or require a decision of an administrative character to be taken by Comcare.  To use the language of Lockhart J in Minister for Immigration and Ethnic Affairs v Naumovska [(1983) 88 ALR 589] at 601, “[t]he subparagraph means what it says”.  It stipulates the circumstances in which an employee’s rights will be suspended – and suspended by force of the subsection. As and when those circumstances occur, so also does the suspension of rights.  Again to use the language of Lockhart J (at 601): “No decision by anybody is required to bring about this change.”’

43                  Thus, Finn J held that the suspension of rights under s 57(2) did not require a decision of an administrative character made under an enactment.  It was therefore not a decision to which the ADJR Act applied under s 3(1).  Finn J went on to hold, however, that the existence of a ‘reasonable excuse’ was an objective fact, which could be reviewed by a court and could be the subject of a declaration.  Section 57(2), however, is not one of the provisions listed in the definition of ‘determination’ in s 60(1) of the SRC Act and so there was no occasion for Finn J to consider the effect of ss 60-64 and, in particular, the broad definitions of ‘determination’ and ‘decision’ in s 60(1), which require reference to s 3(3) of the AAT Act.

44                  The reasoning in Buck appears to have been accepted as being applicable to s 37(7) in Trajkovski v Telstra (1998) 81 FCR 459, it being (at 464):

‘… common ground that the language of s 37(7) makes it clear that the suspension of rights under s 37(7) operates directly and without the need for any antecedent decision. Nevertheless, as a practical matter, some person or body must make a decision as to its application in any specific case. To this extent the reasoning in Buck is accepted by both parties.’

45                   The facts of Trajkovski were similar to those in the present case in that the employee sought to challenge before the Tribunal the suspension of his rights under s 37(7).  In Trajkovski, however, the employee also challenged the correctness of the original compensation decision.  Although Tamberlin J held that a suspension of rights under s 37(7) was not a ‘decision’ that came within the two tiered review scheme in Part VI, he nonetheless held that the Tribunal had (at 468):

‘the competence and authority to determine whether it had jurisdiction. It is not bound to decline jurisdiction simply because the jurisdictional question cannot be described as a “reviewable decision” and it must consider antecedent matters going to its jurisdiction in order to enable it to perform its primary function.’

46                  Accordingly, to determine whether or not it had jurisdiction, the Tribunal was required to consider the applicability of s 37(7).  This required an examination of whether the employee had: (1) failed or refused to undertake a rehabilitation program; and (2) whether there was a reasonable excuse for that failure or refusal.  Australia Post contends, however,  that this jurisdictional question arises only as an ancillary to an application for review of a ‘reviewable decision’ under the SRC Act and that review of the suspension of rights under s 37(7) alone is not within the jurisdiction of the Tribunal because it is not a ‘determination’ and therefore cannot give rise to a ‘reviewable decision’.

47                  Trajkovski was accepted as being correctly decided by Finn J in Chowdhary and by Whitlam J in Pascoe, two other cases concerning s 37(7). It was also accepted by Kiefel Jin Telstra in relation to s 57(2) .  These cases raise for consideration by this Court, whether s 37(7) is in fact self-executing such as to produce the result that there is no decision and no ‘determination’ within the meaning of s 60(1). 

48                  Moreover, even if s 37(7) does require a ‘determination’ to be made, such a ‘determination’, according to Australia Post, is not ‘made under’ s 37(7) as required by the definition in s 60(1).  This is therefore a second issue that the Court needs to consider.

Does s 37(7) require a decision to be made?

49                  It was accepted in Buck, and in the subsequent cases that, as a practical matter, some person or body must make a decision as to the application of s 37(7) in any specific case (cf. Trajkovski at 464).  This cannot be controversial.  The question is whether it is correct to conclude that what are said to be the self-executing aspects of s 37(7) deprive the processes required for the application of s 37(7) of any relevant decision-like character.  Framed in terms of the definition of ‘determination’ in s 60(1), which includes the definition of ‘decision’ in s 3(3) of the AAT Act, the question is whether or not those processes constitute, at least, ‘doing or refusing to do any act or thing’.

50                  The correct approach to the interpretation of the word ‘decision’ in the AAT Act was discussed by Lockhart J, with whom Sheppard J agreed, in Director-General of Social Services v Hales (1983) 47 ALR 281 (‘Hales’).  Hales followed the decisions in Director-General of Social Services v Hangan (1982) 45 ALR 23 and Re Matteo and Director General of Social Services (1981) 4 ALD 398, and was followed in Secretary, Department of Social Security v Alvaro (1994) 50 FCR 213.

51                  In Hales, Lockhart J held (at 305-306):

‘One cannot look to the definition in s 3(3) [of the AAT Act] to determine definitively the meaning of the word “decision”.  It must take its colour and content from the enactment which is the source of the decision itself.  No narrow or pedantic approach is called for in determining whether a decision falls within the scope of review of the Administrative Appeals Tribunal.  The multiplicity of statutes which continue to grow and to confer jurisdiction on the Administrative Appeals Tribunal, and the manifold and diverse circumstances which attract the power of the decision maker, all call for a liberal approach to the definition of the word “decision”… It is necessary to examine the Act which confers jurisdiction on the Administrative Appeals Tribunal and the administrative framework in which it operates to determine whether there is a “decision” susceptible to review under the Administrative Appeals Tribunal Act.  A pronouncement which alters rights or imposes liabilities is readily classified as a “decision”, but the word has a wider scope. It may include a declaration or statement which has a real practical effect although not altering rights or imposing liabilities: Duncan v Defence Force Retirement and Death Benefits Authority and Commonwealth of Australia (1980) 30 ALR 165 at 169-70.’

52                  The central issue in Hales was whether s 140(1) of the Social Security Act 1947 (Cth) required a ‘decision’, within the meaning of the AAT Act, to be made.  The section relevantly provided:

‘140(1)    Where in consequence of a false statement or representation, or in consequence of a failure or omission to comply with any provision of this Act, an amount has been paid by way of pension allowance, endowment or benefit which would not have been paid but for the false statement or representation, failure or omission, the amount so paid shall be recoverable in a court of competent jurisdiction from the person to whom, or on whose account, the amount was paid, or from the estate of that person, as a debt due to the Commonwealth.’

53                  Lockhart J held (at 307):          

‘I am content to assume that the recoverability of an overpayment as a debt due to the Commonwealth does not depend upon a decision of the Director-General that he cannot waive such a debt.  But I fail to see how action for recovery of an overpayment can be taken otherwise than by following a decision of the Director-General or his delegate to recover it.  Certain administrative processes must precede any action for recovery in a court pursuant to s 140(1).  Some officer in the Department must form an opinion that there has been a failure or omission to comply with a provision of the Social Services Act or that there has been a false statement or representation, and that a benefit has been paid in consequence of that failure or omission or false statement or representation that would not otherwise have been paid. Some officer must decide that then overpayment is recoverable and should be recovered.’

54                  Similarly in this case, we can assume for present purposes that the suspension of an employee’s rights to compensation or to institute or continue any proceedings under s 37(7) of the SRC Act where an employee has in fact refused or failed, without reasonable excuse, to undertake a rehabilitation program is not expressed to depend upon a decision of the determining authority.  But we, like Lockhart J in Hales, fail to see how action to suspend payments, or to stop any proceedings under the SRC Act, can be taken otherwise than by following a decision of the determining authority that the requisite conditions are met, that steps to stop payments should be taken and that a record of the suspension of rights to institute or continue proceedings in relation to compensation should be made on the employee’s file.

55                  To adopt again the language of Lockhart J in Hales, certain administrative processes must precede the suspension of compensation and proceeding rights.  Some officer in the determining authority must form an opinion that there has been an unreasonable refusal or failure to undertake the rehabilitation program such that s 37(7) applies.

56                  In cases such as the present, a conclusion that an employee has refused or failed to comply with a rehabilitation program, and that there is no reasonable excuse for such failure or refusal, has real practical effect.  It is only when such a conclusion, however it is characterised, has been reached that what is said to be the self-executing aspect of s 37(7) is triggered.

57                  In Buck (at 361 and 365) and in Trajkovski (at 464), both Finn J and Tamberlin J in coming to the conclusion that no decision was required under ss 57(2) and 37(7) respectively, emphasised that the formation of an opinion as to the presence or absence of a reasonable excuse required the ascertainment of an ‘objective’ fact.  In our view, however, the distinction between an ‘objective’ and a ‘subjective’ fact does not assist in determining whether or not a subsection of legislation does or does not require a decision to be made. Although, the ‘objective’ or ‘subjective’ nature of a fact, required to be determined for the operation of a subsection, may be relevant to the nature of review available in this Court and may raise issues of jurisdictional fact, it does not seem to us to say anything about whether a decision has to be made by the administrator in order to enliven the subsection.

58                  For these reasons, we do not consider that the cases relied upon by the applicant should stand in the way of the conclusion that we would otherwise reach.

59                  Moreover, as was agreed in argument, in whatever way the process of arriving at a reasonable excuse is to be characterised, ordinary administrative law principles are not excluded.  Thus, the process – whatever it should be called – is one that would have to be undertaken in good faith, taking into account only relevant considerations and in accordance with procedural fairness obligations, etc.  It would be anomalous if such a process were to be excluded from the broadly-based merits review provisions of the SRC Act, when those provisions are directed expressly to the section under which the process must take place.

Made under s 37 of the SRC Act?

60                  The question that now remains is whether such a decision has been ‘madeunder’ s 37(7) so as to satisfy the ‘made under’ element of the definition in s 60(1).  In Hutchins v Commission of Taxation (1996) 65 FCR 269 in the context of interpreting the phrase ‘made under an enactment’ in s 3(1) of the ADJR Act, Black CJ said (at 271):

‘It is clear that there may be a decision “under an enactment” within the meaning of that expression in the ADJR Act notwithstanding that the enactment concerned does not expressly require or authorise the decision in question but does so impliedly.’

61                  Similarly in Electricity Supply Association of Australia Ltd v Australian Competition and Consumer Commission (2001) 113 FCR 230, Finn J held (at 250-251):

‘The second quality required of a “reviewable decision” is that it be a decision “made under” an enactment…  This test requires there to be a “sufficient connection” between the text of the statute in question and the decision sought to be reviewed…  This “sufficient connection” requirement itself effects a balance between the policy, on the one hand, of allowing effective redress to persons aggrieved by administrative decision making processes (so enhancing those processes), and that, on the other hand, of protecting the efficient administration of government from impairment by an extended conception of a reviewable decision.’

62                  In Minister for Immigration and Ethnic Affairs v Mayer (1985) 157 CLR 290, the High Court considered a question similar to the one before us now.  That case involved the interpretation of s 6A(1)(c) of the Migration Act 1958 (Cth).  Section 6A(1)(c) was to the effect that an entry permit was not to be granted unless one or more of a number of conditions were met, one of them being that ‘the Minister has determined … that he has the status of a refugee.’  Mason, Deane and Dawson JJ (Gibbs CJ and Brennan J dissenting) held that the Minister’s decision that the respondent did not have refugee status was made in performance of a function impliedly conferred upon him by s 6A(1)(c) of the Migration Act.  It was therefore a decision made ‘under an enactment’ as required by s 3(1) of the ADJR Act.

63                  Likewise under s 37(7), when an employee has refused or failed to undertake a rehabilitation program, rights are to be suspended, unless one element is present, namely a reasonable excuse.  There is a direct connection between the text of the statute ‘without reasonable excuse’ and the decision, which the respondent seeks to have reviewed ‘that there is no reasonable excuse’.  Since the connection is both direct and explicit, it must easily fall within the notion of a sufficient connection for the purposes of ‘made under’ in the context of the ADJR Act.  It follows that it would also be a decision ‘made under s 37’ for the purposes of s 60(1) of the SRC Act.

Other Considerations

64                  The broad definition of ‘determination’ in s 60(1) and its application to specific sections is consistent with an intention to give a wide measure of merits review within the field – limited as it is – marked out by the definition.  Within that field there would seem to be no occasion to take a narrow view, since to do so would be inconsistent with the beneficial object of legislation for the compensation of employees (see DC Pearce and RS Geddes, Statutory Interpretation in Australia, 5^th ed. Butterworths, Australia, 2001 at 9.2 - 9.3). 

65                  Whilst we would accept the applicant’s contention that s 37(7) is an enabling provision, providing a mechanism to ensure the good administration of the SRC Act and that it is, therefore, to some extent coercive, those factors do not warrant the exclusion of decisions made in relation to s 37(7) from the review process provided for under Pt VI of the SRC Act.  In any event, the respondent’s contention, which we accept, that the words ‘without reasonable excuse’ are protective in intendment, offers some support for the view that there is no intention to exclude decisions made in relation to s 37(7) from the review process provided for under Pt VI.

66                  Moreover, the beneficial nature of merits review is such that when provisions are made for it within a legislative scheme, it is unlikely that the legislature would have intended that they should be construed in a narrow or technical way since to do so would be inconsistent with the generally beneficial nature of merits review.  This is particularly the case where the legislation in question is intended to apply in relation to matters concerning a person’s employment in the public sector.  As was observed by the then Attorney-General in the second reading speech for the Administrative Appeals Tribunal Bill 1975 (Cth) (Parliamentary Debates Vol H or R 93 (11 February – 6 March 1975) 1186 at 1187):

‘The intention of the present Bill is to establish a single independent tribunal with the purpose of dealing with appeals against administrative decisions on as wide a basis as possible.’ (emphasis added)

67                  The consequences of the approach to the legislation contended for by Australia Post highlight the point just made.  As Tamberlin J observed in Trajkovski (at 469):

‘One consequence of the AAT determination that it had no jurisdiction to consider the question whether s 37(7) applied was that the applicant, who disputed the application of this provision, lost the benefit of a hearing on the jurisdictional issue.  The result was that the mere assertion by Telstra that s 37(7) applied was, in effect, adopted without any factual determination or consideration of legal argument and was taken as being conclusive on the question of whether s 37(7) operated.  This is an odd result to say the least.  Such an approach enables an Authority to simply assert that s 37(7) applies.  The consequence of such an assertion of the Authority’s view is to suspend all rights and deny any jurisdiction without evidence or submissions in relation to the s 37 applications.’

68                  The submission by Australia Post that alternative remedies were available, (in the form of a separate proceeding in this Court for a declaration or in the form of an application for internal reconsideration and then Tribunal review of the rehabilitation determination under s 37(1)) does not point to the conclusion that the Tribunal lacks jurisdiction to determine an issue under s 37(7).  There is no evident policy reason for moving disputes under s 37(7) from the arena of merits review before the Tribunal to the more expensive and time-consuming arena of litigation in the Federal Court.

69                  In any event, Mr Long does not have the option of seeking review of the s 37(1) rehabilitation determination and the structure of the SRC Act is such that there may be others in the same position.  Mr Long’s rights are currently suspended under s 37(7) and he has not previously sought reconsideration of the s 37(1) determination under s 62 of the SRC Act.  There is therefore no ‘reviewable decision’ made under s 37(1) in relation to which Mr Long could seek review in the Tribunal.  This illustrates that, as the respondent contends, the question of reasonable excuse under s 37(7) is directed to a different situation, or to a wider range of circumstances, than a review sought under s 37(1). 

Inconsistencies arising from the interpretation of Sections 37(7) and 60(1) of the SRC Act

70                  It remains to consider the submission that a conclusion that s 37(7) provides for the making of a ‘determination’ for the purposes of s 60(1) should be rejected because it would give rises to serious inconsistencies in the operation of the relevant parts of the SRC Act and therefore could not have been intended.  It is said that these inconsistencies show that the legislature must have intended that the suspension of rights under s 37(7) was not to be subject to merits review and that the Buck line of authority correctly interpreted the SRC Act.

71                  The first claimed inconsistency relates to s 57(2), which, as previously mentioned, is an analogous provision to s 37(7) but in the context of requiring attendance at a medical examination.  The second claimed inconsistency relates to the slightly different review regime provided for in s 38 for determinations by a ‘rehabilitation authority (other than a relevant authority)’.

The s 57(2) inconsistency

72                  Section 57(2) provides:

‘Where an employee refuses or fails, without reasonable excuse, to undergo an examination, or in any way obstructs an examination, the employee’s rights to compensation under this Act, and to institute or continue any proceedings under this Act in relation to compensation, are suspended until the examination takes place.’

This subsection is worded in the same way, and has the same effect in relation to a failure to attend a medical examination, as s 37(7) has in relation to the failure to undertake a rehabilitation program. 

73                  Thus it is said there is no policy or principle to justify a distinction being drawn between s 37(7) and s 57(2), so that it would not be expected that merits review was intended in one case and not in the other.  The short answer to this submission is that s 37 is specified in the s 60(1) definition of ‘determination’ as one of the sections under which there can be a determination.  Section 57, however, is not listed in this way.  It is excluded from the definition in s 60(1).  Accordingly, although both sections have a similar structure, the presence of one and the absence of the other from the definition of ‘determination’ is a clear indication that the legislature intended them to be treated differently for the purposes of the availability of merits review before the Tribunal.

74                  It is not necessary to speculate about the policy reasons for the distinction but it cannot be said to be irrational.  It might well be considered, for example, that the requirement to attend a medical examination, in the context of an employer’s assessment of a claim for compensation, is much less onerous and more transitory than the obligation to comply with a rehabilitation program.  Thus it may have been considered that merits review in relation to s 57 (in its entirety, including determinations requiring an employee to undergo a medical examination) was not necessary to avoid unfairness to individual employees.  A different view could well be taken about compliance with a rehabilitation program. 

The s 38 inconsistency

75                  Section 38 provides for reconsideration of certain determinations made by a ‘rehabilitation authority (other than a relevant authority)’, namely those made under ss 36 and 37.  It effectively replaces the operation of ss 61 and 62 in Part VI, which are applicable to ‘determining authorities’.  The difference is that under s 38 Comcare undertakes the reconsideration, whereas under ss 61 and 62 the ‘determining authority’ undertakes the reconsideration.

76                  The applicant contends, however, that there is another difference.  This difference is that because s 38 is not located in Part VI, to which the broad definition of ‘determination’in s 60(1) is expressed to apply, the ‘determination’ to which s 38 refers, is necessarily limited to a determination so called and cannot extend to any decision required under s 37(7).  This contention is founded on two propositions.  The first is that in the absence of a definition clause ‘determination’ in s 38 cannot be taken to have a wider meaning than ‘determination’ in s 37.

77                  The second is that the terms of s 38(4):

‘On receipt of a request, Comcare shall review the determination and may make a decision affirming or revoking the determination or varying the determination in such manner as Comcare thinks fit.’(emphasis added)

are not apposite to describe any decision-making function under s 37(7).  This is because, once an unreasonable refusal or failure to comply with a rehabilitation program has been found, there is no discretion whether or not to suspend the claimant’s rights.  This lack of discretion is said not to be compatible with a reconsideration ‘as Comcare thinks fit’.  To this point, the applicant also adds the contention that the Tribunal’s review rights under s 43(1) of the AAT Act to affirm, vary, set aside, remake or remit for reconsideration, are also quite inapt to describe the decision-making process required to dispose of a challenge to the application of s 37(7).

78                  The applicant thus contends that an interpretation of the SRC Act that allows merits review of the suspension of rights under s 37(7) introduces an inconsistency in the reconsideration and review regime between the rights of employees employed by a ‘relevant authority’ and those employed by a ‘rehabilitation authority (other than relevant authority)’.  It is said that a differentiation of review rights, dependent upon the status of an employee’s employer could not have been intended by the legislature and that the broad definition in s 60(1) should be interpreted in a manner that avoids such an inconsistency.

79                   Turning to the scope of ‘determination’ in s 38, it is immediately apparent that s 38 applies to ‘determinations’ under s 36 of the SRC Act as well as to ‘determinations’ under s 37 of the SRC Act.  Although s 37(1) explicitly refers to the making of a ‘determination’, s 36 does not make any such reference.  Subsection 36(1) authorises a rehabilitation authority to ‘arrange’ for the assessment of the employee’s capability of undertaking a rehabilitation program and s 36(3) authorises a rehabilitation authority to ‘require’ an employee to undergo an examination. Subsection 36(4) is in substantially the same terms as s 37(7).  For s 38 to have any effect in relation to s 36, ‘determination’ in s 38 must clearly encompass a broader sphere than the term ‘determination’ so called.  Indeed, it must encompass the terms ‘arrange’ and ‘require’.  If ‘determination’ in s 38 embraces the actions of ‘arranging’ and ‘requiring’, it should equally embrace the evaluative process of assessing the reasonableness of an excuse required under ss 36(4) and 37(7).

80                  Moreover, it could be said that the legislature intended the word ‘determination’ to have the same meaning in all provisions relating to claimant’s reconsideration and review rights and that it provided for such a definition in Part VI.  When placing s 38 directly after ss 36 and 37, to which it applies, instead of in Part VI, it may not have been realised that the broad s 60(1) definition would no longer be automatically applicable.

81                  We therefore reject Australia Post’s contention that the decision-making process required under s 37(7) cannot involve a ‘determination’ for the purpose of s 38, on the basis of this first argument.  On this view, no question of inconsistency arises.

82                  Even if the contrary view were correct, it may be doubted whether there would be an inconsistency based on employer status, in relation to an employee’s rights of reconsideration and review.  If the more limited view of ‘determination’ under s 38 were accepted, s 38 would provide a somewhat different reconsideration process for ‘determinations’ made under s 37(1), and perhaps some subsections of s 36.  It would not deal with reconsiderations under ss 36(4) and 37(7).  In such a case, however, ss 61 and 62, with their broad definition of ‘determination’ might still allow reconsideration of the application of ss 36(4) and 37(7). Sections 61 and 62, refer to determinations of a ‘determining authority’, which is defined in s 60(1) as follows:

‘determining authority, in relation to a determination, means the person who made the determination.’

This definition is broad enough to encompass both a ‘relevant authority’ and a ‘rehabilitation authority (other than a relevant authority)’ and might, therefore, allow for merits review of the application of ss 36(4) and 37(7) whether the employer is a relevant authority or not, and irrespective of a limited role for s 38.

83                   In relation to the second argument, that the decision-making function under s 37(7) is not apposite to a reconsideration ‘as Comcare thinks fit’ or to the dispositive powers of the Tribunal, it should be noted that under s 62(5) a ‘determining authority’ may equally:

‘make a decision affirming or revoking the determination or varying the determination in such manner as the person thinks fit’ (emphasis added). 

84                  Secondly, these powers are alternatives and it can easily be seen that in certain circumstances all three options will not be open to the ‘rehabilitation authority’ on a reconsideration.  In the case of s 37(7), only the power to affirm or revoke will be available. This does not make the decision-making function under s 37(7) inappropriate for reconsideration.

85                  Similarly in s 43(1) of the AAT Act the words:

‘For the purposes of reviewing a decision, the Tribunal may exercise all the powers and discretions that are conferred by any relevant enactment on the person who made the decision…’

in conjunction with the fact that the items in the list of dispositive powers are presented as alternatives, indicates that the powers of the Tribunal will vary with the nature of the decision it has to review.  In this case, where the application of s 37(7) is not discretionary once the decision maker has determined that there has been failure or refusal to comply with a rehabilitation program and that there is no reasonable excuse, the Tribunal will similarly have no discretion in reviewing the application of s 37(7) and will only have the power either to affirm or to revoke its application.

Conclusion

86                  This is a case in which the express words of the statute must govern the outcome.  Section 37(7) of the SRC Act is a provision which requires a ‘determination’ within the meaning of s 60(1) to be made.  An employee can request a reconsideration of such a ‘determination’ under s 62, which is what Mr Long did in this case.  This resulted in a Senior Claims Manager at Australia Post making a ‘reviewable decision’ on 15 July 2002.

87                  Pursuant to s 64, the Tribunal has jurisdiction to review ‘reviewable decisions’ under the SRC Act. The Tribunal, therefore, has jurisdiction to hear Mr Long’s application.  This will require the Tribunal to assess whether Mr Long has: (1) refused or failed to comply with his rehabilitation program; and (2) whether or not he had a reasonable excuse for doing so.  If the Tribunal finds that Mr Long has failed or refused to undertake his rehabilitation program and that he has no reasonable excuse, then his rights to compensation and to institute proceedings will be suspended by virtue of s 37(7). If on the contrary it is found that Mr Long has not refused or failed to comply with his rehabilitation program, or that he has a reasonable excuse, s 37(7) will not apply to his circumstances.

88                  It follows that the application under s 39B of the Judiciary Act must be dismissed, with costs.   

89                  The Court was informed that this was a test case and that Australia Post had agreed to pay Mr Long’s ‘party-party’ costs irrespective of the outcome of the litigation.  This is appropriate.  Subject, however, to what the parties may wish to put by way of submission, it would seem unfair if Mr Long were required to bear any cost burden as a result of this litigation.  Mr Long’s concern about his rehabilitation program may or may not be justified but it appears to have risen in the ordinary course of his employment relationship.  He also appears to have acted properly to exercise his rights in the way in which his employer had advised him was appropriate.  Having done what the employer told him he was entitled to do and having filed an application for review in the Tribunal, Australia Post contested his ability to do so.  This was no doubt prompted by an understanding at a higher level in Australia Post’s management of the effect of previous decisions of this Court.  Whilst that is all very understandable and appropriate from the point of view of Australia Post, it was doubtless very troubling for Mr Long, who having done what he was told he was entitled to do, found himself embroiled in a test case.  The issues involved in the test case although, as we were told, of substantial importance for Australia Post, were of a very personal and limited nature as far as Mr Long was concerned. 

90                  Subject to any submissions the parties may make, it would seem appropriate that an order should be made to ensure that Mr Long is not out of pocket in respect of any fees reasonably charged by his counsel and solicitors.  In the event that the parties cannot agree upon a costs order, we grant leave to the respondent to file and serve any submissions on the question of costs within seven days and to Australia Post to file and serve any submissions that it wishes to make on the question of costs within a further seven days from the date of the respondent’s submissions.

Associate:

Dated:              8 October 2003