FEDERAL COURT OF AUSTRALIA

ADMINISTRATIVE LAW – s 43 Administrative Appeals Tribunal Act 1975 (Cth) - jurisdiction of the Administrative Appeals Tribunal to review of decisions and determinations of Comcare –jurisdiction of the Tribunal to decide matters not the immediate subject of a “reviewable decision” – “reviewable decision” constituted under the Safety, Rehabilitation and Compensation Act 1988 (Cth) by the process of determination and reconsideration – power of the Tribunal to award entitlements not adverted to by the primary decision-maker (Comcare) in the determination under review

WORKERS COMPENSATION – Safety, Rehabilitation and Compensation Act 1988 (Cth) – compensation for work-related injury – whether the Tribunal has jurisdiction to decide an entitlement to compensation for permanent impairment which was not the question determined and reconsidered by Comcare

Safety, Rehabilitation and Compensation Act 1988 (Cth), s 4, s 14(1), ss 15-22, s24, s 27, s 29, s 54(2)(b), s 54(3), s 55(4), s 56, s 60, s 62, s 64, s 69, s 72

Administrative Appeals Tribunal Act 1975 (Cth), s 3(3)(a), s 25(1), s 43(1)

Administrative Decisions (Judicial Review) Act 1977 (Cth), s 6, s 16(1)

Judiciary Act 1903 (Cth), s 39(1), s 39(1A)

Federal Court of Australia Act 1976 (Cth), s 23

Compensation (Commonwealth Government Employees) Act 1971 (Cth)

Hospital Benefit Fund of Western Australia Inc v Minister for Health, Housing and Community Services (1992) 39 FCR 225 (Followed)

Telstra Corporation Ltd v Barrow (1994) 35 ALD 461 (Referred to)

Secretary, Department of Social Security v Hodgson (1992) 37 FCR 32 (Followed)

Secretary, Department of Social Security v Riley (1987) 17 FCR 99 (Applied)

Owen v Repatriation Commission (1995) 59 FCR 93 (Referred to)

Commonwealth of Australia v Ford (1986) 65 ALR 323 (Referred to)

COMCARE (Applicant) v PAMELA BURTON, IN HER CAPACITY AS A SENIOR MEMBER OF THE ADMINISTRATIVE APPEALS TRIBUNAL (First Respondent) WENDY LEES (Second Respondent)

ACT G 37 of 1998

FINN J

CANBERRA

9 SEPTEMBER 1998

THE COURT ORDERS THAT:

1.                  The application be allowed.

2.                  The First Respondent not proceed to hear and determine the claim for compensation for permanent impairment.

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

REASONS FOR JUDGMENT

Under the Safety, Rehabilitation and Compensation Act 1988 (Cth) (“the SRC Act”) specified decisions are made reviewable by the Administrative Appeals Tribunal (“the Tribunal”):  the SRC Act, ss 60, 62 and 64.  This application concerns the reach of the Tribunal’s jurisdiction under its own Act, the Administrative Appeals Tribunal Act 1975 (Cth) (“the AAT Act”), in deciding matters not the immediate subject of a particular decision made reviewable under the SRC Act.

The frame of the question involved emerges clearly from the following short account of the facts.  They are not in dispute.

Factual Setting

1.                  In May 1995 the second respondent, Ms Wendy Lees, made a claim on the applicant Comcare for compensation for a work-related injury.  On 16 October 1995 Comcare accepted its liability to pay compensation in respect of that injury;  it approved payment for time off work; and it indicated it would pay any reasonable medical expenses related to her condition.

2.                  In response to a letter from Ms Lees’ treating specialist, Comcare determined on 9 April 1997 that it would not provide Ms Lees with payment for taxi fares to the rooms of those providing treatment for her injury.  This decision was made under s 16 of the SRC Act.  Her solicitors sought a reconsideration of it on 12 June 1997.  An Independent Review Officer of Comcare reconsidered the matter and confirmed the 9 April 1997 refusal.

3.                  That reconsideration decision being a “reviewable decision” under the SRC Act, Ms Lees applied to the Tribunal for review of it.  In her application she described the decision the subject of the application as:

“A decision affirming a decision to deny payment of taxi fares to and from treatment for compensable illness.”

The reason Ms Lees gave in her application for seeking review of that decision was that:

“It is wrong in fact and in law and is otherwise defective.”

4.                  On 11 February 1998 Ms Lees’ solicitors wrote to the Registrar of the Tribunal giving notice that she would be “expanding the issues and her claims in relation to these proceedings”.  The particular “expansion” foreshadowed in that letter is no longer in issue in this proceeding.  It was, though, the herald to yet another “expansion”.  In her Statement of Issues served on the Office of the Australian Government Solicitor (“the AGS”) on 16 February 1998, the following issue (amongst others) was specified:

“What other, if any, entitlements the Applicant has arising from the compensable conditions, the subject of these proceedings.”

On 25 March 1998 it was made clear that one of those “other entitlements” was for compensation for permanent impairment under s 24 of the SRC Act.

5.                  At a preliminary hearing on 1 April 1998 on the question of the Tribunal’s jurisdiction in the matter, the Tribunal member, the first respondent, decided the Tribunal had jurisdiction when reviewing the “taxi fares decision” to consider Ms Lees’ entitlement to compensation for permanent impairment.

6.                  In her Reasons for Decision the Tribunal member located her jurisdiction to decide the impairment claim in the proposition that once the Tribunal had jurisdiction in relation to one issue it could consider the whole question of compensation under the SRC Act.  Justification for this was found in s 43(1) of the AAT Act, the provisions of which are set out below.

The Present Application

The application seeks a finding that the Tribunal has no jurisdiction to proceed as it proposes and consequential relief.  In form the application is for an order of review of proposed conduct under s 6 of the Administrative Decisions (Judicial Review) Act 1977 (Cth);  for a writ of prohibition under the Judiciary Act 1903 (Cth), s 39(1);  and for a declaration under s 39(1A) of the Judiciary Act 1903.

The Statutes in Question

1.                  The AAT Act

The only provisions to which reference need be made are s 25 and s 43 of this Act.  Section 25 provides (inter alia) that:

“25      (1)        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;

…

(4)               The Tribunal has power to review any decision in respect of which application is made to it under any enactment.”

I note in passing that it is s 64 of the SRC Act which performs the function envisaged by s 25(1)(a) of the AAT Act of specifying the type of decision – “a reviewable decision” – for which application for review may be made to the Tribunal.  As will be seen only decisions under particular provisions of the SRC Act are capable of giving rise to a “reviewable decision”.

For its part s 43(1) provides (inter alia):

“43      (1)        For the purpose 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 ….” (Emphasis added)

The purposive limitation on the power so given the Tribunal by this provision is of no little importance in this proceeding.

2.                  The SRC Act

It is necessary to detail some number of the provisions of this Act.

The centrepiece of the SRC is s 14(1) which, subject to the Part in which it appears, makes Comcare liable to pay compensation “in accordance with this Act” in respect of an “injury” (defined in s 4) suffered by an employee that results variously in death, incapacity for work, or impairment.  The Act in individual sections goes on to particularise types of compensation that are payable under the Act, ie compensation (a) for loss of, or damage to, property (s 15);  (b) in respect of medical and related expenses (s 16);  (c) for injuries resulting in death (s 17);  (d) for funeral expenses (s 18);  (e) for injuries resulting in incapacity (ss 19-22);  (f) for injuries resulting in permanent impairment (ss 24 and 27);  and (g) compensation for household services etc (s 29).

Of these various provisions I would note the following.  First, the decision to refuse the taxi fares was made under s 16 and the proposed decision on permanent impairment would be made under s 24.  Secondly, decisions made under each of the statutory provisions referred to above are capable of giving rise to “reviewable decisions” for the purpose of an application to the Tribunal by virtue of s 64 of the SRC Act.

Part V of the SRC Act regulates the making of “claims for compensation”.  While that Part clearly contemplates that a claim may be made under a particular section (see eg s 54(2)(b);  s 54(3);  s 55(4); s 56) for a particular type of compensation, it does not in terms require that a separate application be made in respect of each different type of compensation payment to which a particular claimant may be entitled.

When a claim is made Comcare (see s 4 “relevant authority”) may require an employee to undergo medical examination;  and it may request the provision of information and the production of documents.

A distinctive (though by no means unique) feature of the SRC Act is its particularised review procedure.  And it is this procedure that provides the pathway to applications to the Tribunal.  For present purposes, the Act envisages a three-tiered process of decision making:

(i)                  an initial “determination”, a term defined in s 60(1) of the SRC Act 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;

(ii)        a reconsideration of that determination by the person who made it (or a delegate) undertaken on his or her own motion or at the request of (inter alia) the claimant:  s 62;  the determination so reconsidered then becoming what the Act in s 60 designates to be a “reviewable decision” ie –

“a decision made under … section 62”;  and

(iii)       an application to the Tribunal under s 64 which provides (inter alia):

“64.     (1)        Application to the Administrative Appeals Tribunal for review of a reviewable decision may be made by:

            (a)        the claimant;  … .”

The obvious, but important, point to be made of this tiered process is that application can only be made to the Tribunal to review a decision made under the Act (a) if the decision itself was made under a section that can give rise to a s 60 “determination”;  and (b) that decision has been reconsidered so as to constitute a s 62 “reviewable decision”.

For the sake of completeness and because of their relevance to a submission made by the second respondent I note the following SRC Act provisions.

“69.     Subject to this Act, Comcare has the following functions, in addition to its other functions under this Act:

(a)               to make determinations accurately and quickly in relation to claims and requests made to Comcare under this Act;

…

72.            In performing the function referred to in paragraph 69(a), Comcare:

(a)               shall be guided by equity, good conscience and the substantial merits of the case, without regard to technicalities;”

The Parties’ Contentions

The applicant’s case can be simply put. 

(i)         Comcare was asked to and did make a “determination” under s 16 relating to the taxi fares.  It reconsidered that determination thus constituting it a “reviewable decision”.  And by so doing made it a decision amenable to Tribunal review under s 64.

(ii)        Comcare was not at any relevant time asked to make a “determination” under s 24 relating to compensation for impairment.  No basis thus existed for a s 62 reconsideration, hence there is not a reviewable decision in respect of s 24 compensation that would give the Tribunal jurisdiction to make a s 24 decision.

(iii)       The “s 16 decision” properly under review did not relate to Ms Lees’ entitlement to s 24 compensation.  The latter would not “address the same question as was before the primary decision-maker”:  Hospital Benefit Fund of Western Australia Inc v Minister for Health, Housing and Community Services (1992) 39 FCR 225 at 234;  Telstra Corporation Ltd v Barrow (1994) 35 ALD 461.  In consequence the Tribunal lacked jurisdiction to consider s 24 compensation.

(iv)       Section 43(1) of the AAT provides no alternative basis for conferring jurisdiction to deal with s 24 compensation.  Its concern is with the powers available for use in the exercise of jurisdiction and not with jurisdiction itself.  Given the purposive limitation in s 43(1) – the powers etc are conferred on the Tribunal “for the purpose of reviewing a decision” –

“there must be an association between the power to be exercised by the Tribunal and the decision under review, but that association is to be found in the restriction of the grant of power in s 43(1) to the purpose of the Tribunal’s review.  The test is one of relevance rather than dependence.  Where the exercise of a power or discretion is relevant to the making of the decision under review then, if requested, the Tribunal may exercise the discretion.”:  Secretary, Department of Social Security v Hodgson (1992) 37 FCR 32 at 40.

(v)        Before s 43(1) can be applied it is necessary to determine what was the decision under review.  Section 43 does not empower the Tribunal “to review a totally different decision”:  Secretary, Department of Social Security v Riley (1987) 17 FCR 99 at 105.  For present purposes a decision to be reviewed can be described as the response given by a reconsideration decision-maker to the actual issue or question either raised by a claimant with Comcare for which a determination is sought under the Act, or else the issue or question discerned by Comcare from what was asked of, or provided to, it:  cf Owen v Repatriation Commission (1995) 59 FCR 93 at 99.  That issue may relate to one or more of the varying types of compensation provided for in the SRC.  But whether related to one or to several types of compensation there must in a practical sense be a live issue in relation to the type of compensation in question on which the claimant is entitled to have a determination made.  In the present case there was no such live issue before the primary decision-maker or the reconsideration decision-maker in relation to permanent impairment.  The sole issue related to the entitlement to taxi fares.  In exercising its review function the Tribunal was called upon “to address the same question” as was before the reconsideration decision-maker and not an entirely distinct one:  Hospital Benefit Fund of Western Australia Inc v Minister for Health, Housing and Community Services, above, at 234;  Telstra Corporation Ltd v Barrow, above, 466.

(vi)       If Ms Lees wished for a determination of her entitlement to compensation for permanent impairment it was open to her to make a claim for that type of compensation – which she in fact later did on 29 April 1998.

The second respondent’s case accepts in part some of the applicant’s contentions.  It is as follows.

(i)         Comcare having accepted liability to pay compensation to Ms Lees in respect of her injury, and Ms Lees having made a claim for “compensation”, it was Comcare’s obligation:

“to make such determinations from time to time as were necessary to confer upon her the particular benefits to which she was, on the facts as they may be from time to time, entitled.”:  Commonwealth of Australia v Ford (1986) 65 ALR 323 at 327.

Ms Lees was not required by Part V of the SRC Act (dealing with the making of claims) to specify the type of compensation sought.

(ii)        A compensation claim having been made and a reviewable decision arrived at, the Tribunal was then, by virtue of s 43(1), put in the same position as Comcare in relation to the making of determinations as to the types of compensation to which Ms Lees was entitled on the basis of the evidence put before it, even though the primary and reconsideration decision-makers had not adverted to one or more of the types of compensation that the Tribunal proposed to consider.

(iii)       The question before the primary and reconsideration decision-makers was Ms Lees’ entitlement to compensation in accordance with the Act for her injury.  Notwithstanding that the primary and reconsideration decision-makers only considered that question vis-à-vis taxi fares, if the Tribunal was to consider permanent impairment as well it nonetheless would be addressing “the same question” (ie Ms Lees’ entitlement to compensation) as was considered by the earlier decision-makers:  cf Telstra Corporation Ltd v Barrow, above.

            (iv)       The practical effect of a finding that the Tribunal has no jurisdiction to hear and determine a claim based on a different head of entitlement, would be to require a beneficiary under the SRC Act to lodge a written claim for each and every head of entitlement to compensation, before the claimant would be entitled to seek an external review, notwithstanding that each entitlement related to the one compensable injury.  Such an outcome is inconsistent with sections 69 and 72 of the SRC Act which require Comcare to make determinations “accurately and quickly” and to be guided by “equity, good conscience and the substantial merits of the case”.

Conclusion

As I am in broad agreement with the applicant’s contentions I can state my views briefly.  First, in relation to s 43(1) of the AAT Act, that provision (as with for example s 23 of the Federal Court of Australia Act 1976 (Cth) as it applies to this court) confers power on the Tribunal in relation to matters in which it has jurisdiction.  It is not itself a source of jurisdiction.  Furthermore the s 43(1) conferral is subject to the limitation that it is “for the purpose of reviewing a decision”:  for the effect of this limitation see generally Secretary, Department of Social Security v Hodgson, above, at 40.  In similar vein and in light of the second respondent’s submissions I would add likewise that s 69(a) and s 72(a) of the SRC Act cannot be used to extend the review jurisdiction of the Tribunal:  Owens v Repatriation Commission, above, 101.  Those provisions stipulate how Comcare must act.  They have no bearing on when the Tribunal has jurisdiction to act.

Secondly, in relation to SRC Act appeals the Tribunal’s jurisdiction is limited in two ways.  (1) By virtue of s 25 of the AAT Act and s 64 of the SRC Act its province is limited to reviewing what under the SRC Act is a “reviewable decision”.  (2) To be constituted such a decision under the SRC Act the process of determination and reconsideration must have been engaged in - and then only in respect of those sections of the statute that can give rise to a “determination”:  SRC Act s 60, s 62.  Both forms of limitation, but particularly the latter, necessitate that it be ascertained what is the particular “reviewable decision” that the Tribunal is to review:  Secretary, Department of Social Security v Riley, above, at 105.  The process of reviewing that decision is to occur in the setting of the question(s) that gave rise to the decision.  And while in that process the Tribunal can exercise its s 43(1) powers, it nonetheless is obliged to answer the same question(s) as was (were) before the reconsideration decision-maker, Hospital Benefit Fund of Western Australia v Minister for Health, Housing and Community Services, above, at 234.

Thirdly, in the present case the identification of that question presents no particular difficulty.  It may well be the case that Ms Lees is able to claim some number of the types of compensation specified in the SRC Act given the nature and consequences of her injury and her actual circumstances.  But whatever the claims she may be able to make, what she has done was to seek the determination of a quite particular question – that of payment of taxi fares under s 16 of the Act.  The determination and reconsideration of that question has created the conditions which gave the Tribunal jurisdiction to address that particular question.  At the time of the primary decision no express request of hers had raised, as a practical matter, the consideration as well of her actual entitlement (if any) to compensation for permanent impairment. 

Even if it is the case that Comcare of its own motion was obliged to determine on the facts from time to time her entitlements to particular benefits from time to time (irrespective of whether Ms Lees has actually adverted to them):  cf Commonwealth of Australia v Ford, above, at 327;  Comcare has not as yet done so in relation to compensation for permanent impairment.  At best – and I make no finding on this – that failure might be shown to be such in the circumstances as to amount to a refusal to make a determination under s 24 of the SRC Act and hence constitute a “decision” for the purposes of the AAT Act and thus the SRC Act:  see AAT Act s 3(3)(a);  SRC Act, s 60 “decision”.  But all that could possibly flow for present purposes from a decision being so found would be that a s 62 SRC Act reconsideration could be had.  Only if that had occurred – which it has not – would there be a reviewable decision such as would give the Tribunal jurisdiction to entertain consideration of compensation for permanent impairment.  I would note in passing that it is the need for this additional step in the SRC Act review process – a step not contained in the Compensation (Commonwealth Government Employees) Act 1971 (Cth) – that precludes the Tribunal from acting as Commonwealth of Australia v Ford, above, would otherwise allow.

Given the twin limitations imposed on the Tribunal’s jurisdiction to which I referred above, it simply lacked jurisdiction to make a determination under s 24 of the SRC Act.   It is important to emphasise that in SRC Act cases where Comcare’s liability to pay compensation has been accepted, it is not the Tribunal’s function to determine entitlements to compensation as such (ie as a primary decision-maker).  Rather its function is to review decisions that have been made concerning entitlements and for that purpose to exercise as appropriate its s 43(1) powers.

Fourthly, the scheme of the SRC Act itself is opposed to the jurisdiction asserted in the second respondent’s contentions.  While Comcare’s acceptance of liability resulted in its being obliged to pay compensation to Ms Lees, that liability was to pay “in accordance with this Act”:  SRC Act s 14.  While Part V of the Act allows Ms Lees to make a claim or claims for compensation, both Part II (types of compensation) requires and Part VI (reconsideration and review of determinations) presupposes, that before a particular type of compensation is paid, or for that matter denied to, Ms Lees, Comcare will have made a decision in relation to her entitlement to that type of compensation.  As and when entitlement to such a type of compensation becomes an actual question for Comcare (either because of the claim made by Ms Lees or because of its own appreciation of the facts), it is then that the making of a decision is called for.  And when so made, the reconsideration and review process can begin.  That process is an integral part of SRC Act’s pathway to the Tribunal.  It cannot be avoided by means of the jurisdiction asserted by the Tribunal in this matter. 

Finally, it has been asserted by the second respondent that a consequence of taking the applicant’s view of the legislation would be fragmentation and delay in the provision of compensation where the liability to compensate is not in dispute, and that this tells against the construction I have found.  For my own part I am of the view that there is an order implicit in the statutory scheme – an order not inconsistent with the efficient management by Comcare of the provision of compensation to claimants.

I would allow the application and order under s 16(1) of the Administrative Decisions (Judicial Review) Act 1977 that the First Respondent not proceed to hear and determine the claim for compensation for permanent impairment.

Associate:

Dated:              8 September 1998