FEDERAL COURT OF AUSTRALIA

Lees v Comcare [1999] FCA 753

ADMINISTRATIVE LAW – Administrative Appeals Tribunal Act 1975 (Cth) (“the AAT Act”) – Safety, Rehabilitation and Compensation Act 1988 (Cth) (“the Act”) – jurisdiction of the Administrative Appeals Tribunal (“the AAT”) to decide matters not the subject of a reviewable reason pursuant to s 62 of the Act – structure of decision-making process and review process of the Act

WORKERS’ COMPENSATION – Safety, Rehabilitation and Compensation Act 1988 (Cth) (“the Act”) – entitlement to and liability for compensation for injury – whether the AAT has jurisdiction to make a decision on an entitlement under the Act which was not already subject of consideration by Comcare under the Act

Administrative Appeals Tribunal Act 1975 (Cth) ss 25, 43(1)

Safety, Rehabilitation and Compensation Act 1988 (Cth) ss 4, 14, 15, 16, 17, 18, 19, 20, 24, 25, 26, 53, 54, 60, 61, 62, 63, 64, 68, 69

WENDY LEES v COMCARE AND PAMELA BURTON in her capacity as Senior Member of the Administrative Appeals Tribunal

AG 101 of 1998

WILCOX, BRANSON AND TAMBERLIN JJ

SYDNEY

7 JUNE 1999

COMCARE v JUSTICE MATHEWS AND SENIOR MEMBER R. HANDLEY in their capacities as President and Senior Member respectively of the Administrative Appeals Tribunal AND TERENCE O’DONOHUE

NG 1393 of 1998

WILCOX, BRANSON AND TAMBERLIN JJ

SYDNEY

7 JUNE 1999

THE COURT ORDERS THAT:

1.                  The direction of the Administrative Appeals Tribunal dated 25 November 1998 that the hearing of the matter proceed upon the basis that the Tribunal has jurisdiction to determine a claim for permanent impairment under s 24 of the Safety, Rehabilitation and Compensation Act 1988 (Cth) be set aside.

2.                  It be declared that the Administrative Appeals Tribunal, in the hearing of the present appeal, does not have power to determine the second respondent’s claim for permanent impairment.

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

ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA

THE COURT ORDERS THAT:

1.                  The appeal be dismissed.

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

IN THE FEDERAL COURT OF AUSTRALIA                              AG 101 of 1998

AUSTRALIAN CAPITAL TERRITORY

DISTRICT REGISTRY

ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA

REASONS FOR JUDGMENT

THE COURT:

Introduction

1                     These two matters call for consideration of the same provisions of the Safety, Rehabilitation and Compensation Act 1988 (Cth) (“the Act”).  The issue in each case is the extent of the power of the Administrative Appeals Tribunal (“the AAT”) when conducting a review of a “reviewable decision” under s 64 of the Act.

2                     In the matter of Wendy Lees (“Ms Lees”) an appeal has been instituted from a decision of a judge of this Court, Finn J, whereby his Honour determined that the AAT lacked jurisdiction to make a determination under s 24 of the Act concerning the entitlement of Ms Lees to compensation for permanent impairment.

3                     In the matter of Mr Terence O’Donohue (“Mr O’Donohue”) an order of review under s 6(1) of the Administrative Decisions (Judicial Review) Act 1977 (Cth) (“the ADJR Act”) is sought, or in the alternative, relief under s 39B of the Judiciary Act 1903 (Cth), on the basis that the AAT lacks jurisdiction to hear and determine the claim of Mr O’Donohue for compensation for permanent impairment under s 24 of the Act.

Factual Background

Wendy Lees

4                     No criticism has been made of the outline given by Finn J in the matter of Lees of the factual setting from which the debate as to the jurisdiction of the AAT arises.  His Honour summarised the relevant facts in the following paragraphs from his reasons for judgment:

“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 [Safety, Rehabilitation and Compensation Act 1988]. 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.”

Terence O’Donohue

5                     In the matter of O’Donohue the factual setting is as follows.  Mr O’Donohue was employed as the Director of Court Counselling at the Newcastle Registry of the Family Court of Australia.  On 27 October 1994 an incident occurred after a counselling session in which Mr O’Donohue was involved and charges were subsequently laid against him under the Public Service Act 1922 (Cth).  Initially an inquiry officer found two charges to have been made out but a Disciplinary Appeal Committee subsequently set aside the charges.  An appeal to the Federal Court from the decision of the Disciplinary Appeal Committee was discontinued in July 1996 when Mr O’Donohue accepted voluntary redundancy.

6                     Meanwhile, on 15 December 1995, Mr O’Donohue had completed and signed a “Claim for Rehabilitation and Compensation” form in respect of “major depression” arising out of his employment.  On 25 October 1996 a delegate of Comcare rejected Mr O’Donohue’s claim for compensation on the basis that his condition of depression resulted from reasonable disciplinary action taken by his employer.  That is, the delegate found that Mr O’Donohue had not suffered an injury as defined by s 4(1) of the Act.

7                     By letter dated 31 October 1996, Mr O’Donohue sought review of the delegate’s decision.  The decision was affirmed on 7 February 1997 and on 18 April 1997, Mr O’Donohue lodged an application for review by the AAT.

8                     In the course of normal pre-hearing procedures in the AAT, Mr O’Donohue indicated that he proposed to raise before the AAT the issue of his entitlement to compensation for permanent impairment and non-economic loss as a result of his condition of depression.  Comcare submitted, as a preliminary issue, that the AAT had no jurisdiction to consider Mr O’Donohue’s claims for compensation under these heads.  On 25 November 1998, the AAT, constituted by the President and Senior Member Handley, held that it did have jurisdiction to deal with Mr O’Donohue’s claims in the event of liability being established.  The AAT distinguished the decision of Finn J in Lees’ case on the basis that his Honour was concerned with a situation in which there was an unchallenged determination of entitlement to compensation.  It concluded:

“When the Tribunal is reviewing a decision which declined liability upon the basis that the employee did not suffer an injury under s 4, it is open to the Tribunal, having found that there is an injury, to then proceed to consider the applicant’s potential entitlement under such sections of the Act as are relevant to the claim.  This will require a preliminary assessment as to which are the relevant heads of compensation.  In making this assessment the Tribunal will not, in accordance with the general rules of administrative review, be restricted to the material which was before the primary decision-maker or the review officer.”

Statutory Framework

Administrative Appeals Tribunal Act 1975 (Cth)

9                     The power of the AAT to review decisions made under the Act is based wholly on statute.  The issues which this Court is called upon to determine are thus properly to be seen as issues of statutory interpretation.

10                  The AAT is established by s 5 of the Administrative Appeals Tribunal Act 1975 (Cth) (“the AAT Act”).  Section 25 of the AAT Act, so far as is here relevant, provides as follows:

“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; or

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

(2)   [repealed]

(3)   Where an enactment makes provision in accordance with sub-section (1), that enactment –

(a)               shall specify the person or persons to whose decisions the provision applies;

(b)               may be expressed to apply to all decisions of a person, or to a class of such decisions; and

(c)               may specify conditions subject to which applications may be made.

     (3A)Where an enactment makes provision in accordance with this section for the making of applications to the Tribunal for the review of decisions of a person made in the exercise of a power conferred on that person, that provision of that enactment applies also in relation to decisions made in the exercise of that power –

(a)               by any person to whom that power has been delegated;

(b)               in the case where the provision specifies the person by reference to his or her being the holder of a particular office or appointment – by any person for the time being acting in, or performing any of the duties of, that office or appointment; or

(c)               by any other person lawfully authorized to exercise that power.

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

11                  Section 64 of the Act, which is set out below, is an enactment of the kind envisaged by s 25 of the AAT Act.  It authorises applications to be made to the AAT for review of a limited class only of decisions made under the Act.

12                  Section 43(1) of the AAT Act provides:

“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 and shall make a decision in writing –

(a)               affirming the decision under review;

(b)               varying the decision under review; or

(c)               setting aside the decision under review and –

(i)                 making a decision in substitution for the decision so set aside; or

(ii)               remitting the matter for reconsideration in accordance with any directions or recommendations of the Tribunal.”

Safety, Rehabilitation and Compensation Act 1988 (Cth)

13                  The long title of the Act reads as follows:

“An Act relating to the rehabilitation of employees of the Commonwealth and certain corporations and to workers’ compensation for those employees and certain other persons, and for related purposes.”

14                  Section 68 of the Act establishes a body called Comcare which has the function, amongst others “to make determinations accurately and quickly in relation to claims and requests made to Comcare under [the] Act”(s 69).

15                  Part II of the Act is concerned with compensation.  Division I of Part II, which is comprised of ss 14, 15 and 16, is headed “Injuries, property loss or damage, medical expenses”.

16                  Section 14 provides:

 “14(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.”

17                  Central to the operation of s 14 are the definitions of “injury” and “disease” contained in s 4 of the Act.  These definitions are in the following terms:

‘“injury” means:

(a)               a disease suffered by an employee; or

(b)               an injury (other than a disease) suffered by an employee, being a physical or mental injury arising out of, or in the course of, the employee’s employment; or

(c)               an aggravation of a physical or mental injury (other than a disease) suffered by an employee (whether or not that injury arose out of, or in the course of, the employee’s employment), being an aggravation that arose out of, or in the course of, that employment;

but does not include any such disease, injury or aggravation suffered by an employee as a result of reasonable disciplinary action taken against the employee or failure by the employee to obtain a promotion, transfer or benefit in connection with his or her employment.’

‘“disease” means:

(a)               any ailment suffered by an employee; or

(b)               the aggravation of any such ailment;

being an ailment or an aggravation that was to in a material degree by the employee’s employment by the Commonwealth or a licensed corporation.”’

18                  Sections 15 and 16 of the Act provide for the payment of compensation to employees in circumstances which fall outside s 14 of the Act.  Section 15 provides for compensation to be paid to an employee who has an accident arising out of and in the course of his or her employment and, although the employee suffers no injury, he or she does suffer loss or damage to property.  Section 16 provides for an employee who suffers an injury to receive compensation in respect of medical expenses whether or not the injury results in death, incapacity for work, or impairment.

19                  Divisions 2, 3 and 4 of Part II of the Act deal more specifically with the liability created by s 14 of the Act.  Division 2, which is comprised of ss 17 and 18, is concerned with compensation for injuries resulting in death (s 17) and in respect of funeral expenses (s 18).  Section 17, far as is here relevant, provides:

“17(1)This section applies where an injury to an employee results in death.

(2)   Subject to this section and sections 16 and 18, if the employee dies without leaving dependants, compensation is not payable in respect of the injury.

(3)   Subject to this section and to sections 16 and 18, if the employee dies leaving dependants some or all of whom were, at the date of the employee’s death, wholly dependant on the employee, Comcare is liable to pay compensation in respect of the injury of $120,000 and that compensation is payable to, or in accordance with the directions of, Comcare for the benefit of all of those dependants.

(4)   If the employee dies without leaving dependants who were wholly dependent on the employee at the date of the employee’s death but leaving dependants who were partly dependant on the employee at that date:

(a)               subject to this section and to sections 16 and 18, Comcare is liable to pay compensation in respect of the injury of such amount, not exceeding $120,000, as Comcare determines, having regard to any losses suffered by those dependants as a result of the cessation of the employee’s earnings; and

(b)               that compensation is payable to, or in accordance with the directions of, Comcare for the benefit of those dependants.

            …”

20                  Division 3 of Part II of the Act, which is comprised of ss 19 to 23, is concerned with injuries resulting in incapacity for work.  Section 19 provides, so far as is here relevant:

 “19(1)            This section applies to an employee who is incapacitated for work as a result of an injury, other than an employee to whom section 20, 21, 21A or 22 applies.

(2)   Subject to this Part, Comcare is liable to pay compensation to the employee in respect of the injury, for each of the first 45 weeks (whether consecutive or otherwise) during which the employee is incapacitated, of an amount calculated under the formula:

…

(3)   Subject to this Part, Comcare is liable to pay to the employee, in respect of the injury, for each week during which the employee is incapacitated, other than a week referred to in subsection (2), compensation:

…”

21                  Section 20 of the Act is concerned with the payment of compensation where the employee is in receipt of a superannuation pension.  So far as is here relevant, s 20 provides:

“20(1)This section applies to an employee who, being incapacitated for work as a result of an injury, retires voluntarily, or is compulsorily retired, from his or her employment at any time after the commencement of this section and, as a result of the retirement, receives a pension under a superannuation scheme.

(2)   Comcare is liable to pay compensation to the employee, in respect of the injury, in accordance with this section for each week after the date of retirement during which the employee is incapacitated.

(3)   [formula for calculating the amount of compensation].”

22                  Division 4 of the Part II of the Act, which is comprised of ss 24 to 28, is headed “Injuries resulting in impairment”.  Each of the sections within the division is concerned with permanent impairment.  Section 24, so far as is here relevant, provides:

“24(1)Where an injury to an employee results in a permanent impairment, Comcare is liable to pay compensation to the employee in respect of the injury.

(2)   For the purpose of determining whether an impairment is permanent, Comcare shall have regard to:

(a)               the duration of the impairment;

(b)               the likelihood of improvement in the employee’s condition;

(c)                whether the employee has undertaken all reasonable rehabilitative treatment for the impairment; and

(d)               any other relevant matters.

(3)   Subject to this section, the amount of compensation payable to the employee is such amount, as is assessed by Comcare under subsection (4), being an amount not exceeding the maximum amount at the date of the assessment.

(4)   The amount assessed by Comcare shall be an amount that is the same percentage of the maximum amount as the percentage determined by Comcare under subsection (5).

(5)   Comcare shall determine the degree of permanent impairment of the employee resulting from an injury under the provision of the approved Guide.

…

(9)For the purposes of this section, the maximum amount is $80,000.”

23                  Section 25 of the Act allows for the payment, in certain circumstances, of interim compensation for permanent impairment.  It provides, so far as is here relevant:

“25(1)Where Comcare:

(a)               makes a determination that an employee is suffering from a permanent impairment as a result of an injury; and

(b)               is satisfied that the degree of impairment is equal to or more than 10% but has not made a final determination of the degree of impairment;

Comcare shall, on the written request of the employee made at any time before the final determination is made, make an interim determination of the degree of permanent impairment under section 24 and assess an amount of compensation payable to the employee.

(2)   The amount assessed by Comcare under subsection (1) shall be an amount that is the same percentage of the maximum amount specified in subsection 24(9) as the percentage determined by Comcare under subsection (1) to be the degree of permanent impairment to the employee.

(3)   Where, after an amount of compensation has been paid to an employee following the making of an interim determination, Comcare makes a final determination of the degree of permanent impairment of the employee, there is payable to the employee an amount equal to the difference (if any) between the amount payable under section 24 on the making of the final determination and the amount paid to the employee under this section.

…”

24                  Section 26 of the Act is concerned with the timing of the payments of an amount of compensation “payable to an employee under s 24 or 25.”

25                  Divisions 5 and 6 of Part II of the Act are respectively concerned with “Household and attendant care services” and “Miscellaneous” matters.  It is not necessary for present purposes to further consider the provisions of these divisions.

26                  We have set out this large number of statutory provisions to illustrate what we see as the intended structure of Part II of the Act.

27                  As Finn J noted, s 14 is the central provision of the Act so far as the liability of Comcare to pay compensation is concerned.  Section 14 creates a liability in Comcare in respect of injuries suffered by employees which result in death, incapacity for work or impairment.  However, the liability in Comcare created by s 14 is qualified in two ways.  First, such liability is a liability “[s]ubject to” Part II of the Act.  That is, it is a liability limited in its extent by other provisions of Part II of the Act (see, for example, s 17(2)).  Secondly, the liability is a liability to pay compensation “in accordance with” the Act.  That is, it is a liability to pay the compensation for which the statute provides, as required by the Act (see, for example, ss 17(3)(4) and (5), 19, 20, 24 and 25).

28                  A consideration of the provisions of Parts V and VI of the Act tends, in our view, to confirm the above construction of s 14 of the Act.

29                  Part V relates to claims for compensation.  Section 53(1) is concerned to ensure that appropriate notice of injuries is given.  Section 54 makes the right to receive compensation under the Act dependant upon the making of a claim.  So far as is here relevant s 54 provides:

 “54(1)            Compensation is not payable to a person under this Act unless a claim for compensation is made by or on behalf of the person under this section.

(2)   A claim shall be made by giving the relevant authority;

(a)               a written claim in accordance with the form approved by Comcare for the purposes of this paragraph; and

(b)               except where the claim is for compensation under section 16 or 17 – a certificate by a legally qualified medical practitioner in accordance with the form approved by Comcare for the purposes of this paragraph.

                        …”

30                  It is clear that Part V of the Act envisages first, the giving of notice of an injury and separately, and in most cases it may be assumed subsequently, the making of a claim for compensation in accordance with an approved form.  The claim for compensation envisaged by s 54 is not, it would seem, necessarily a claim for compensation under a particular section, or particular sections, of the Act.  The form approved by Comcare as required by s 54(2)(a) reflects the generic nature of a claim under the section.  It is headed “Claim for Rehabilitation and Compensation”.  It requires the provision of detailed information concerning the injury and time taken off work because of the injury, but it does not provide for the provision of information of the kind that would be necessary before a determination could be made under, for example, ss 16, 17, 18, 20, 21, 24 and 25 of the Act.

31                  The claim, and the claim form, envisaged by s 54 of the Act reflects the practical reality that a claim for compensation is likely to be made relatively soon after the suffering of an injury, particularly if incapacity for work or significant medical expenses result from the injury.  At the time that this initial claim is made it may be quite impossible for the employee to provide details of, for example, the fact or extent of any permanent impairment.  For the reasons expressed below, the determination which is made on a claim, as required by s 54 of the Act, will ordinarily be a determination under s 14 of the Act.

32                  Part VI of the Act is headed “Reconsideration and Review of Determinations”.  It establishes a three tiered decision-making process: the original decision or determination to be made by an authorised person within Comcare or a licensed authority, a reconsidered determination to be made within the same authority as the original decision - but ordinarily by a fresh decision-maker, and a decision of the AAT reviewing the reconsidered determination.

33                  Section 60 contains definitions, amongst others, of “determination”, “determining authority” and “reviewable decision”.  These definitions are in the following terms:

‘“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;

“determining authority”, in relation to a determination, means the person who made the determination;

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

34                  The definition of “determination” makes it plain that it is part of the scheme of the Act for determinations to be made under the various sections referred to therein.  In particular, the definition reveals that a determination may be made under s 14 of the Act.  A determination under s 14 cannot amount to more than a determination that Comcare “is liable to pay compensation in accordance with this Act” in respect of a particular injury.  The amount of compensation which Comcare will be liable to pay, the person or persons to whom the compensation will be payable and the time or times at which Comcare’s liability will give rise to a present obligation to make payments are, as the above examination of the structure of the Act reveals, all matters to be determined under other provisions of the Act.

35                  This is not to say that a determination under s 14 is without real significance.  Such a determination will involve findings on the following matters.  First, that an appropriate notice of injury has been given to the relevant authority as required by s 53 of the Act; secondly, that a claim for compensation has been made as required by s 54 of the Act; thirdly, that the person who made the claim or on whose behalf the claim was made was an “employee” at the time of the alleged injury (ss 4 and 5); fourthly, that the employee suffered an injury (s 4); and finally, that the injury has resulted in death, incapacity for work or impairment.

36                  Section 61 requires a determining authority, as soon as practicable after making a determination, to serve on the claimant a notice in writing setting out the terms of the determination and the reasons for it.

37                  Section 62 is concerned with the reconsideration of determinations (ie. with the second tier decision-making process).  Section 62(1) provides for a determining authority to reconsider a determination made by it on its own motion, or to cause such a determination to be reconsidered by an authorised person, not being a person involved in the making of the determination.  Section 62(2) authorises certain persons, authorities or corporations affected by a determination to request a determining authority to reconsider a determination made by it.  Where such a request is made the reconsideration is undertaken by an authorised person who was not involved in the making of the determination.  Section 62(5) provides for the person undertaking the reconsideration to affirm, revoke or vary the determination in such a manner as the person thinks fit.

38                  Section 64 of the Act establishes the third tier of the decision-making process established by the Act.  It provides:

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

(a)               the claimant; or

(b)               if the decision affects the Commonwealth – the Commonwealth; or

(c)                if the determination affects a Commonwealth authority that is not a licensed authority – the Commonwealth or that authority; or

(d)               if the determination affects a licensed authority that holds a Class 1 Licence under Part VIIIA – the licensed authority; or

(e)                if the determination affects a licensed authority that holds a Class 2 Licence under Part VIIIA:

(i)                 the Commonwealth; and

(ii)               in the circumstances mentioned in subsection (2) – the licensed authority; or

(f)                 if the determination affects a licensed authority that holds a Class 3 Licence under Part VIIIA and the circumstances mentioned in subsection (2) apply – the licensed authority; or

(g)               if the determination affects a licensed corporation that holds a Class A Licence under Part VIIIB – the licensed corporation; or

(h)               if the determination affects a licensed corporation that holds a Class B Licence under Part VIIIB and the circumstances mentioned in subsection (2) apply – the licensed corporation.

(2)               The circumstances mentioned in subparagraph (1)(e)(ii) and paragraphs (1)(f) and (h) are that the licence is subject to a condition referred to in subparagraph 107G(3)(d)(ii) or paragraph 108H(4)(d), as the case may be.

(3)               Despite section 27 of the Administrative Appeals Tribunal Act 1975, a person may not make an application to the Administrative Appeals Tribunal for a review of a reviewable decision except as provided by subsection (1) of this section.

39                  In considering the extent of the power of the AAT when reviewing decisions under the Act, it is to be noted, first, that the AAT is authorised by s 64 of the Act to review only reviewable decisions – that is, for present purposes, second tier or reconsideration decisions made under s 62 of the Act.  Decisions under s 62 of the Act are the result of the reconsideration by Comcare or a licensed authority of a determination, as defined by s 60 of the Act, concerning which a claimant will have received a notice in writing setting out the terms of the determination and the reasons for the determination (s 61(1)).  Secondly, it is to be noted that the powers of the AAT under s 43(1) of the AAT Act are powers “[f]or the purpose of reviewing” the reviewable decision, not powers that may be exercised at large.  Further, the powers and discretions that the AAT may exercise under s 43(1) are the powers and discretions conferred by the Act on the determining authority for the purposes of reconsidering a determination under s 62 of the Act.  The AAT will not be authorised on review of a reviewable decision to exercise any powers and discretions which would not have been available to the determining authority at the second tier decision-making stage, albeit that such powers and discretions might have been available to the determining authority at the first tier decision-making stage.

Consideration

Wendy Lees

40                  On 5 May 1995, Ms Lees completed the standard “Claim for Rehabilitation and Compensation” form.  The documentation which accompanied the form indicated that her claim related to depression and post traumatic stress disorder.  On 16 October 1995 an authorised officer of Comcare determined that Comcare was liable to pay compensation to Ms Lees in respect of the condition of “Morbid Depressive Episode and Post-traumatic Stress Disorder”.  This determination is to be understood as involving the findings referred to above as being necessarily consequential upon a determination of liability under s 14 of the Act.

41                  By letter dated 8 April 1997 addressed to Ms Lees’ Comcare Claims Officer, Ms Lees’ consultant psychiatrist, Dr Hugh Veness, enquired whether Comcare was prepared to pay for Ms Lees’ taxi fares to attend group cognitive therapy at the Mood Disorders Unit at Prince Henry Hospital.  Comcare apparently treated this inquiry as a request for payment of compensation in respect of expenditure in making a necessary journey for the purpose of obtaining medical treatment.  Section 16(6) of the Act authorises the payment of compensation in respect of such expenditure under certain circumstances.  By memorandum dated 9 April 1997 Dr Veness was advised by Comcare as follows:

“Comcare will not provide payment for taxi fares to service providers as the reason she [ie Ms Lees] needs taxi fares is because she has lost her license and not because her injury makes her incapable of driving.”

This advice constituted a determination under s 16 of the Act (see the definition of “determination” in s 60 of the Act).

42                  Ms Lees, by her solicitor, requested reconsideration of the determination “denying taxi expenses for visits to her treating psychologist”, and of certain other specific decisions taken by Comcare concerning Ms Lees.

43                  By a written decision dated 6 January 1998 an Independent Review Officer affirmed the determination dated 9 April 1997.  By his written reasons the Independent Review Officer identified the decision to be reconsidered by him as the decision made by Comcare on 9 April 1997 to determine “that it would not pay for the Employee to travel to her medical appointments by taxi.”

44                  Ms Lees’ application to the AAT for review of the decision of the Independent Review Officer has not been placed in evidence.  However, by letter dated 11 February 1998 addressed to the Registrar of the AAT, Ms Lees’ solicitor advised:

“I give notice that the Applicant will be expanding the issues and her claims in relation to these proceedings to include a denial of funding for proper treatment and will be seeking a declaration from the Tribunal in relation to the Applicant’s entitlement to treatment.”

45                  On or about 16 February 1998 Ms Lees served on the solicitors for Comcare a document entitled “Applicant’s Statement of Issues” dated 12 February 1998.  That document identified the following issues:

“.  Whether the Applicant is entitled to taxi fares for the purpose of attending on her treatment providers pursuant to Section 16 and specifically Sub-Sections 16(6), 16(7), and 16(8) of the relevant legislation.

 .   Whether the decision in the case of Saladin Mohamed Elmazny and Australian Postal Corporation (Dr Grimes, Senior Member) is good law.

 .   Whether conveyance by taxis to and from medical treatment for a severely ill person is conveyance by public or private transport.

 .   Whether the Applicant has an entitlement to medical treatment at the Mood Disorders Unit of the Prince Alfred [sic] Hospital or any other hospital which can attend to her injury.

 .   Whether the Respondent has behaved ethically, in good conscience, honestly and with due regard of the principles of beneficial legislation in its dealings with medical practitioners and others resulting in the denial of payment and a refusal of funding for certain treatments.

 .   Whether the Applicant has had an entitlement to that treatment for over twelve months.

 .   Whether Comcare has breached its statutory duties in the administration of the Applicant’s medical treatment entitlements.

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

46                  On 1 April 1998 the AAT convened a hearing to determine what claims were properly before it.  Following that hearing the AAT decided -

“that it [ie. the AAT] has jurisdiction pursuant to s 43(1) of the Administrative Appeals Tribunal Act 1975 to hear applicant’s claim in this matter for medical expenses in respect of treatment at the Mood Disorder Unit at the Royal Prince Alfred [sic] Hospital, and a lump sum for Permanent Impairment under the Safety, Rehabilitation and Compensation Act 1988.”

47                  The challenge to the decision of the AAT concerning its jurisdiction was apparently only pressed before Finn J to the extent that the AAT found that it was able to hear Ms Lees’ claim for a lump sum payment of compensation for permanent impairment.  His Honour concluded that the AAT did not have jurisdiction to make a determination as to the amount of compensation, if any, payable to Ms Lees under s 24 of the Act.

48                  In our view, his Honour was plainly right in so concluding.  As is mentioned above, on 16 October 1995 an authorised officer of Comcare had determined pursuant to s 14 of the Act that Comcare was liable to pay compensation in accordance with the Act to Ms Lees in respect of the injury suffered by her.  That determination had not been the subject of reconsideration under s 62 of the Act and was therefore not a “reviewable decision” for the purposes of s 64 of the Act.  The determination under s 14 established, amongst other things, that Comcare would be liable to pay compensation to Ms Lees under s 24 of the Act if the injury resulted in permanent impairment.  We interpolate that we do not read s 24(1) of the Act as a second source of liability to pay compensation in respect of an injury to an employee resulting in impairment.  We see that liability as being created by s 14 of the Act.  Section 24 we understand as being intended to define the nature and extent of the liability to pay compensation in respect of an injury which results in permanent impairment.

49                  It may be that a situation could arise in which an employee has a claim for compensation for permanent impairment under s 24 of the Act where no determination of Comcare’s liability under s 14 of the Act has been made.  In such a case it may well be that the Act allows the issue of Comcare’s liability to pay to the employee compensation for permanent impairment to be determined under s 24 notwithstanding that no earlier determination under s 14 has been made.  However, the practical reality is that such cases will be rare.  Ordinarily, before any issue of an employee’s, or former employee’s, entitlement to compensation for permanent impairment arises, a determination concerning that person’s entitlement to compensation will have been made under s 14 of the Act.  Neither of the matters under present consideration is an instance of a case in which a claim for  compensation  for  permanent  impairment arose in the absence of a determination under s 14 of the Act.

50                  The only issues under s 24 of the Act which required determination in Ms Lees’ case were the issues of whether she had a permanent impairment and, if she did, the amount of compensation payable under the section in respect of that impairment.  Neither of these issues had been determined at the first tier decision-making stage.  Necessarily in the circumstances, there had been no reconsideration under s 62 of the Act of a determination on these issues.  Consequently there was no reviewable decision touching on these issues to found an application to the AAT under s 64 of the Act.  The reviewable decision which founded Ms Lees’ application to the AAT was the determination of the Independent Review Officer concerning Ms Lees’ entitlement under s 16 of the Act for compensation in respect of taxi fares incurred, or to be incurred, for the purpose of obtaining medical treatment.  It was that determination, and that determination only, that s 64 of the Act authorised the AAT to review.  The powers of the AAT under s 43 of the AAT Act were powers which it was authorised to exercise for the purpose of reviewing only that determination.

51                  No complaint was made by Comcare as to the form of the order made by Finn J in Lees’ case.  We would not in the circumstances have made a restraining order directed to an individual member of the AAT.  The form of order which we consider to be preferable is the order which we propose below in the O’Donohue case.  Nonetheless, in the circumstances, we consider that the appropriate order here is that the appeal be dismissed.  Comcare has indicated that in the event of the appeal being dismissed it does not seek a costs order in its favour.

Terence O’Donohue

52                  On 15 December 1995 Mr O’Donohue completed the standard “Claim for Rehabilitation and Compensation” form.  On 25 October 1996 an authorised officer of Comcare disallowed Mr O’Donohue’s claim on the basis that he had not suffered an injury within the meaning of the Act.  By so doing, the officer is to be understood as having made a determination under s 14 of the Act that Comcare was not liable to pay compensation to Mr O’Donohue in accordance with the Act because Mr O’Donohue had not suffered an injury within the meaning of s 14 (ie. as defined in s 4).

53                  Mr O’Donohue received a notice in writing setting out the terms of the determination and the reasons for it (s 61).  He requested reconsideration of the determination (s 62(2)).  An Independent Review Officer reconsidered the determination and was “satisfied that the decision to deny liability … [was] correct.”  He affirmed the determination.  The decision of the Independent Review Officer was a reviewable decision within the meaning of the Act.  Mr O’Donohue was served with a notice in writing setting out the terms of the decision, the reasons for the decision and a statement alerting him to his right to apply to the AAT “for review of the decision to which the notice relates” (s 63).

54                  The only application which s 64 of the Act entitled Mr O’Donohue to make to the AAT was an application for review of the reviewable decision made by the Independent Review Officer.  The terms of that decision are revealed by the notice in writing served on Mr O’Donohue.  No suggestion has been made that the notice in writing misrepresents the actual determination made by the Independent Review Officer.

55                  For the AAT to reach a decision as to Mr O’Donohue’s entitlement, if any, to receive compensation under s 24 of the Act in respect of a permanent impairment it would have to become involved in a process extending beyond review of the reviewable decision made under s 62 of the Act.  It would require the AAT to consider issues not determined at either the first or the second tier of the decision-making process established by the Act.

56                  In view of the structured decision-making process established by the Act, and the plain language of s 64 of the Act, the powers of the AAT under s 64 do not, in our view, on an application to review a decision under s 14 of the Act, extend to allowing it to reach a decision as to Mr O’Donohue’s entitlement, if any, to receive compensation under s 24 of the Act.  In this regard it is immaterial in our view, whether the reviewable decision was one which determined that Comcare was liable to pay compensation in respect of an injury or one which determined that Comcare had no such liability.

57                  Although Finn J in the Lees case exercised the power given to the Court by s 16(1) of the ADJR Act, in effect, to direct the AAT to refrain from hearing and determining Ms Lees’ claim for compensation for permanent impairment, we are inclined to the view that it is sufficient to set aside the ruling of the AAT and declare that the AAT does not have the power on the application presently before it to determine the entitlement, if any, of Mr O’Donohue to receive payments of compensation under s 24 of the Act.

58                  Comcare has indicated that, in the event of such an order being made, it does not seek a costs order in its favour.

Associate:

Dated:              7 June 1999

In AG 101 of 1998

In NG 1393 of 1998