FEDERAL COURT OF AUSTRALIA

Australian Postal Corporation v Mowbray [2003] FCA 1258

ADMINISTRATIVE LAW – worker’s compensation – 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) Pts II, IV, VI; ss 14, 60, 62, 64

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

Lees v Comcare [1999] FCA 753

Australian Postal Corporation v Oudyn [2003] FCA 318

Plumb v Comcare (1992) 39 FCR 236

AUSTRALIAN POSTAL CORPORATION v G A MOWBRAY, IN HIS CAPACITY AS A MEMBER OF THE ADMINISTRATIVE APPEALS TRIBUNAL

A 17 OF 2003

STONE J

6 NOVEMBER 2003

CANBERRA

THE COURT ORDERS THAT:

1.         The application be dismissed with costs. 

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

REASONS FOR JUDGMENT

introduction

1                     The applicant seeks relief under s 39B of the Judiciary Act 1903 (Cth) in relation to the conduct of the first respondent.  The complaint centres on an application made by the second respondent (‘Mr MacDonald’) to the Administrative Appeals Tribunal (‘AAT’) for review of a decision made by the applicant.  The applicant contends that the AAT has no jurisdiction and that therefore the application was not competent.  Before the AAT Mr MacDonald alleged that the applicant’s decision was made under s 62 of the Safety Rehabilitation and Compensation Act 1988 (Cth) (‘SRC Act’), that it fell within the definition of ‘reviewable decision’ in s 60 and therefore, under s 64 he was entitled to seek review of that decision.  The first respondent has entered a submitting appearance and has reserved the right to be heard only in relation to costs.  Reference in these reasons to the respondent is a reference to the second respondent.

2                     The issue before me is whether the AAT had power to review the alleged reviewable decision of the applicant or, in other words, whether there was a decision by the applicant which was susceptible to an application for review under s 64 of the SRC Act.  The facts that gave rise to this issue are not in dispute.

Factual background

3                     On 23 December 1987 the respondent made a claim for compensation in respect of an injury to his right arm (right lateral epicondylitis) and a left shoulder condition.  On 28 March 1988 the applicant accepted liability to compensate the respondent in respect of the right lateral epicondylitis pursuant to the Compensation (Commonwealth Government Employees) Act 1971 (Cth).  Subsequently this Act was repealed by the SRC Act Part X of which contains transitional provisions that allow continuity of rights in respect of injuries incurred before the commencement of the SRC Act; see s 124 et seq. 

4                     In a letter dated 8 February 1993 the applicant wrote to the respondent concerning his entitlement to continuing compensation and advised him that it had determined that compensation was not payable as from 6 July 1988 (‘1993 determination’).  The letter referred to the respondent’s failure to supply up-to-date medical evidence to support his ongoing entitlement to compensation and advised that his entitlement to compensation had been reviewed.  The letter stated:

‘As the available evidence does not satisfy me that there is liability to pay ongoing compensation, I have determined that on and from 6/7/88, Australia Post will no longer be liable to pay compensation for your claim.’

The letter also advised that if he was dissatisfied with the decision, the respondent was entitled to request reconsideration under s 62(2) of the SRC Act.

5                     The respondent did not request that this decision be reconsidered.  However, on 14 October 2002 his solicitor wrote to the applicant making a claim for compensation in respect of the respondent’s right lateral epicondylitis, that is in respect of the same injury that was the subject of the 1993 determination.  The letter explained that after Mr MacDonald left the applicant’s employ he was employed by the Australian Taxation Office and that on 10 July 1997 he suffered a further injury to his right arm and elbow in a fall.  The letter continued:

‘We enclose a copy of a report of 12 July 2001 from Dr Joan Chen.  On page 9 of the report … you will see that Dr Chen attributes the problems Mr MacDonald now has with his right arm [to] the fall he had while he was employed with Australia Post.

…

We are instructed by Mr MacDonald to make a claim against you for benefits pursuant to the [SRC Act] as a result of his right arm injury.’

6                     In its reply, dated 13 November 2002, the applicant referred to the letter of 8 February 1993 and stated that by this determination ‘liability in respect of right lateral epicondylitis was ceased.’  The reply continued:

‘You are over nine years outside the statutory time frame for requesting reconsideration and have failed to supply reasons for the delay in your request.

Should you wish to provide reasons for the delay I will further consider your request at that time.  However on the information supplied with your correspondence of 14 October 2002 a reconsideration will not be entertained.’

7                     Apparently the respondent did not reply to this letter but on 11 December 2002 his solicitors lodged a new claim for compensation (‘2002 claim’).  The applicant responded to the 2002 claim on 16 December 2002 stating:

‘The claim for compensation which you have forwarded merely repeats the compensation claim  ...  made by Mr MacDonald in 1987.  The original claim has been dealt with (see our letter of 13/11/02), and no action is proposed in relation to the duplicate claim’.

8                     The solicitors for Mr MacDonald wrote to the applicant on 23 December 2002 requesting reconsideration of this decision for the reason that,

‘the current claim relates to the affect [sic] our client’s injuries have had on his recent capacity for paid work.’

9                     The applicant declined to reconsider saying, in a letter dated 31 December 2002, that the letter of 16 December was merely advice that Mr MacDonald’s claim had previously been dealt with and that no action was proposed.  Therefore, the applicant said, there was not a decision on 16 December 2002 that was reviewable under the SRC Act.

Relevant legislation

The SRC Act

10                  Part II of the SRC Act provides for compensation to be paid to employees (including persons employed by the Commonwealth) in a variety of circumstances.  The basic obligation is set out in s 14 which is as follows:

‘(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 intentionally self-inflicted, unless the injury results in death, or serious and permanent impairment.’ 

11                  The regime in Part II provides for compensation for injury under separate heads including medical expenses (s 16); compensation for injuries resulting in death (ss 17 and 18); compensation in respect of injuries resulting in incapacity (s 19); compensation for permanent impairment (s 24); and compensation for household services (s 29).  Section 4 defines injury as meaning:

‘(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.’

12                  In Part III, s 53 stipulates that the SRC Act does not apply in relation to an injury unless notice of the injury is given to the employee ‘as soon as practicable after the employee becomes aware of the injury’.  Section 54 of the SRC Act provides that compensation is not payable unless a claim for compensation is made under that section.  This involves, inter alia, that the claim be in writing and be supported by a medical certificate given by a legally qualified medical practitioner.

13                  Part VI of the SRC Act provides a three tier process for the reconsideration and review of determinations.  The first stage is initial determination.  Section 61 obliges a determining authority to notify a claimant in writing of the terms of the initial determination and the reasons for that determination.  It must also advise the claimant that, if dissatisfied with the determination, he or she may request reconsideration of that initial determination under s 62(2).  This reconsideration is the second stage and may be in initiated by the determining authority on its own motion or, inter alia, by the claimant.  On reconsideration the initial determination may be affirmed, revoked or varied; ss 62(4) and (5).  A request for reconsideration must be made within 30 days ‘after the day on which the determination first came to the notice of the [claimant]’ or within such further time as the determining authority allows; s 62(3).  A decision made under s 62 (or under s 38(4) which is not relevant here) is a reviewable decision.  The third stage is a review of a reviewable decision by the AAT.  In considering the review process the following definitions contained in s 60 are relevant:

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

Determination means a determination, decision or requirement made under s 8, 14, 15, 16, 17, 18, 19, 20, 21, 21A, 22, 24, 25, 27, 29, 30, 31, 34, 36, 37 or 39, under paragraph 114 (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 sub-section 38(4) or section 62.’

14                  The definition of ‘decision’ in s 3(3) of the Administrative Appeals Tribunal Act 1975 (Cth) (‘AAT Act’) is as follows:

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

(a)                       making, spending, 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.’ (emphasis added)

15                  The Full Court in Lees v Comcare [1999] FCA 753 (‘Lees v Comcare’) considered the extent of the AAT’s jurisdiction to review decisions made under the SRC Act and commented, at [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.’

The AAT Decision

16                  As noted above, in its letter of 16 December 2002 and 31 December 2002, the applicant refused to entertain the 2002 claim.  Mr MacDonald regarded the rejection in the applicant’s letter of 31 December 2002 as a reviewable decision within s 62 of the SRC Act and sought review of it in the AAT. 

17                  The applicant contested the jurisdiction of the AAT on the basis that there was no reviewable decision.  The AAT heard both parties on the issue and on 4 April 2003 held that it had jurisdiction to hear Mr MacDonald’s application and gave oral reasons.  At the request of the applicant the AAT provided written reasons on 29 April 2003.  In summary those reasons were that:

(a)                The 1993 determination (see [4] above) was ‘a determination to cease payment of compensation under the relevant heads, such as sections 16 and 19, from July 1988’ and was not a denial of further liability for the injury to Mr MacDonald’s right arm. 

(b)               The letter of 16 December 2002 (see [7] above) ‘manifests a determination as defined in s 60(1) of the SRC Act’being in substance if not in form, ‘a refusal to make a determination to grant compensation as requested, that is, for a new period of incapacity commencing on 31 January 2000.’

(c)                The letter of 31 December 2002 (see [9] above) amounted to a refusal to make a decision under s 62 of the SRC Act and is therefore a ‘reviewable decision’ within the meaning of s 60.

The parties’ POSITIONS

Applicant’s position

18                  The different positions of the applicant and Mr MacDonald may be stated briefly.  The applicant submits that the 1993 determination (see [4] above) was made under s 14 of the SRC Act and was to the effect that by the date specified Mr MacDonald’s right lateral epicondylitis no longer existed and consequently all liability for Mr MacDonald’s right lateral epicondylitis had ceased and, consequently, no further compensation was payable in respect of that injury.  In accordance with s 62(2), Mr MacDonald could have requested a reconsideration of that determination within the 30 days referred to in s 62(3) or within such further period of time as the respondent allowed.  A request for reconsideration would have to be supported by reasons as required under s 62(3)(a).  No such request was ever made. 

19                  It was submitted that Mr MacDonald sought to avoid the process of reconsideration by making a fresh claim in respect of the same injury.  In the applicant’s view the letter of 16 December 2002 (see [7] above), in which the applicant advised Mr MacDonald that no further action was proposed in respect of the 2002 claim, was not a determination or decision but was merely procedural, that is merely written advice drawing Mr MacDonald’s attention to the 1993 determination.  As such it could not be the subject of reconsideration under s 62 and consequently the letter of 31 December 2002 did not contain a reviewable decision.  In its written submissions and in the oral argument of its counsel at the hearing the applicant elaborated this point in considerable detail.  It is on this basis that the applicant challenges the jurisdiction of the AAT.

Respondent’s position

20                  The respondent’s position is that the decision of the AAT was correct for the reasons given.  He submits that the 1993 determination related to whether there was an obligation at that time to pay compensation.  It did not (and in the respondent’s submission, could not) relate to liability to pay compensation in respect of any future incapacity or impairment that might result from the injury in question.  According to the respondent the applicant’s rejection of his 2002 claim was a determination that he was entitled to have reconsidered.  The letter of 31 December 2002 was, in substance, a refusal to reconsider and consequently was a reviewable decision under the SRC Act that the AAT has jurisdiction to review. 

consideration

21                  It is implicit in the applicant’s argument that the 1993 determination (see [4] above) involved not only a finding that Mr MacDonald’s incapacity or impairment ceased by the date specified but also that this necessarily meant that his injury had ceased to exist.  As a result there could be no further liability to pay compensation in respect of that injury.  In fact counsel for the applicant readily conceded that if Mr MacDonald was able to show that he suffered further incapacity or impairment attributable to that injury, it would follow that the 1993 determination was wrong. 

22                  The applicant’s analysis leaves no room for the view that an injury that initially caused impairment or incapacity to work (thus entitling an employee to compensation) may have symptoms which abate, thereby extinguishing the liability for compensation (under s 14) for such period as those symptoms are in abeyance and there is no incapacity or impairment.  Another way of looking at the matter would be that in the absence of incapacity or impairment the amount of compensation calculated in accordance with s 19 would be nil.  Mr MacDonald takes the view however that the initial incapacity or impairment requiring compensation may disappear but that subsequently the same injury can manifest itself, causing a further period of incapacity or impairment.  At least in theory, Mr MacDonald’s view appears to be supported by the medical report that is referred to in the letter of 14 October 2002; see [5] above.  Whether or not that is so in this case has not as yet been established and I express no opinion on that issue.

23                  In my opinion the interpretation of the SRC Act advocated by the applicant must be rejected.  Section 14, subject to Pt II, lays down the criteria that must be met if the applicant is to be liable for compensation.  It is necessary for there to be an injury which, in this case, is the injury to Mr MacDonald’s right arm.  In accordance with the SRC Act, Mr MacDonald must have been an employee at the time of the injury and that injury must arise out of, or in the course of his employment; ss 4 and 5.  It must also have resulted in death, incapacity for work or impairment.  Further, for the SRC Act to apply notice in writing of the injury must have been given to the relevant authority as soon as practicable after the employee became aware of the injury; s 53.  The applicant’s acceptance of liability on 28 March 1988 involved its acceptance that these criteria had been met.  The matter does not rest there however, as s 14 provides that the applicant’s liability to pay compensation is subject to Pt II of the SRC Act.  Thus in Lees v Comcare the Full Court said, at [34]:

‘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 … all matters to be determined under other provisions of the Act.’

24                  In Australian Postal Corporation v Oudyn [2003] FCA 318, a matter that also involved the present applicant, Cooper J took a similar view.  His Honour observed, at [34]:

‘APC cannot bind itself in advance to reject any future application on the basis of a determination made to cease payment of compensation for an injury under a particular section of the Act:  Plumb v Comcare (1992) 39 FCR 236 (FC) at 240.  Nor can that result be achieved by purporting to determine on a reconsideration of a determination under s 14 that a liability, which correctly and effectively attached to APC in respect of a particular injury, ceased on the date of the determination and that entitlement to compensation under any section of the Act was thereafter excluded in respect of the injury.  The Act does not contemplate the making of such a determination once liability under s 14 of the Act has properly arisen and a determination made to accept a claim made in accordance with s 54 of the Act.’

25                  The facts in Oudyn were similar to the facts in this proceeding.  The respondent, Mr Oudyn, was an employee of the applicant.  On 2 August 1999 he was injured in the course of his employment.  He gave the requisite notice under s 53 of the SRC Act, made a claim under s 54 and duly received compensation from the applicant for the period of his incapacity for work.  On 18 May 2000 the applicant determined that the effects of Mr Oudyn’s injury had resolved and that it was no longer liable to pay him compensation under the SRC Act.  That claim was referred to the Reconsiderations Delegate (‘delegate’) who affirmed the applicant’s decision to deny liability under the SRC Act.  Mr Oudyn applied to the AAT for review of the delegate’s decision.  Mr Oudyn also lodged a separate claim (assessable under s 24) for permanent incapacity.  On 8 March 2001 the applicant wrote to Mr Oudyn stating, in effect, that the only way to advance his claim for permanent impairment was to vary the delegate’s decision affirming the applicant’s denial of liability in relation to incapacity (under s 14).  Mr Oudyn then lodged a further application in the AAT for review of the applicant’s decision not to assess his impairment claim.  The two AAT proceedings were heard together.  The AAT considered the Full Court’s decision in Lees v Comcare and held that there was nothing to suggest that a determination, under s 14 of the SRC Act, that liability had ceased would thereafter bar a claim to benefits to which a claimant was otherwise entitled.  The AAT also found that it had jurisdiction to re-examine the decision of 8 March 2001, as it amounted to a determination for the purposes of s 62 of the AAT Act.  The applicant applied to this Court for review of the AAT’s decision. 

26                  Cooper J, at [35]-[36],analysed the issues thus:

‘The determination of APC made on 18 May 2000 involved two elements.  The first was that the effects of the injury sustained on 2 August 1999 had resolved.  That is, that the injury no longer resulted in an incapacity for work or an impairment.  The second element was a consequence of the first.  It was to terminate, as and from the date of the determination, the payment of compensation then being made to Mr Oudyn under one or more sections of the Act.  To the extent that APC attempted to exonerate itself from future liability and to foreclose any future claims by Mr Oudyn by the determination, APC was in error as to its power to do so by the determination.

… the determination did not, and could not, for the future preclude Mr Oudyn from an entitlement to compensation in respect of the injury sustained on 2 August 1999 if he was otherwise entitled to receive compensation in accordance with the Act.’

27                  His Honour’s reasoning is applicable to this case.  Although it was not expressly stated, the 1993 determination implied a determination that Mr MacDonald was not then suffering from any impairment or incapacity for work.  It was therefore determined that payment of compensation would cease ‘on and from 6/7/88’.  That determination could not preclude Mr MacDonald from entitlement to compensation if, as a result of the injury that occurred in 1987, he should suffer incapacity or impairment in the future. 

28                  Mr Johnson, counsel for the applicant, submits that the 1993 determination also involved a determination that the injury no longer existed.  He submits that the correct course of action was for Mr MacDonald to seek a reconsideration of the 1993 determination.  The difficulty I have with that proposition is that it seems to assume that Mr MacDonald needs to show that the 1993 determination was wrong.  But Mr MacDonald does not argue that the 1993 determination was wrong.  His position, as I understand it, is that on 11 December 2002 he lodged a new claim for compensation (under s 54) on the basis that his incapacity to work was attributable to the injury he sustained to his right arm whilst working for the applicant in 1987.  Such compensation was an entitlement under s 14 of the SRC Act and required assessment irrespective of any intervening period in which he was not entitled to compensation because his injury did not incapacitate him.  The applicant’s contention that the 1993 determination involved a determination that the injury ceased to exist so that no claim in respect of it could ever be made without first challenging the validity of the 1993 determination cannot be accepted.  It is clear that, whatever the 1993 determination purported to do, the applicant cannot bind itself with respect to any future application for compensation which relates to a later period of incapacity; see Plumb v Comcare (1992) 39 FCR 236 at 240;  Oudyn at [34]. 

29                  Upon receiving Mr MacDonald’s application for compensation, dated 11 December 2003, the applicant should have determined, in accordance with the SRC Act,  whether it was liable to pay compensation for that claim; see in particular s 14 and the comments of the Full Court in Lees v Comcare at [35].  It refused to do so and informed Mr MacDonald as such by way of letter dated 16 December 2003, its reason being that it considered Mr MacDonald should seek review of the 1993 determination.  That letter constituted a refusal to make a determination under s 14 in relation to Mr MacDonald’s application for compensation dated11 December 2002; s 61.  It is not in dispute that under the SRC Act, by reference to the AAT Act, a refusal to make a determination or ‘refusing to do any other act or thing’ constitutes a decision: see s 60 SRC Act, s 3(3) AAT Act, especially subs 3(3)(a) and (g).  A decision made under certain sections (including s 14) is, by virtue of the extended definition in s 60 of the SRC Act, a ‘determination’.  On 23 December 2002 Mr MacDonald sought reconsideration of the determination of 16 December 2002; s 62(2).  On 31 December 2002 the applicant responded that it had not made any reviewable decision.  The applicant was incorrect in that assertion but it amounted to a decision under s 62 which is, by virtue of the definition in s 60 a ‘reviewable decision’.  As such it was reviewable by the AAT pursuant to s 64(1) of the SRC Act. 

30                  The limited jurisdiction of the AAT to review decisions under the SRC Act was discussed by the Full Court in Lees v Comcare; see the passage at [15] above.  The applicant’s letter of 16 December 2003 amounted to a first tier decision.  In conformity with the statutory scheme Mr MacDonald sought, on 16 December 2003, reconsideration of that decision.  The applicant’s letter of 31 December 2003 was a second tier ‘reviewable decision’.  For the reasons given above the applicant’s challenge to the jurisdiction of the AAT is misconceived.  Accordingly, the application must be dismissed with costs.

Associate:

Dated:              6 November 2003