FEDERAL COURT OF AUSTRALIA

Duong v Australian Postal Corporation [2005] FCA 991

WORKERS' COMPENSATION – Safety, Rehabilitation and Compensation Act 1988 (Cth)– where Comcare liability determined to exist pursuant to s 14 – where decision-maker purported to determine that liability would cease at a particular time – whether decision a bar to future claims for compensation

PRACTICE & PROCEDURE – Administrative Appeals Tribunal – whether challenges alternative to s 44 appeal appropriate – Administrative Decisions (Judicial Review) Act 1977 (Cth) s 5

PRACTICE & PROCEDURE – Administrative Appeals Tribunal – extension of time – consideration of principles applicable to applications under s 29(7) of the Administrative Appeals Tribunal Act 1975 (Cth)

Administrative Appeals Tribunal Act 1975 (Cth) ss 29(7), 44

Administrative Decisions (Judicial Review) Act 1977 (Cth) s 5(1)

Judiciary Act 1903 (Cth) s 39B

Safety, Rehabilitation and Compensation Act 1988 (Cth) ss 14, 16, 24, 27

Atkinson v Commissioner of Taxation [2000] FCA 998, applied

Australian Postal Corporation v Oudyn [2003] 73 ALD 659, applied

Commissioner of Taxation v Beddoe (1996) 68 FCR 446, cited

Director-General of Social Security v Chaney (1980) 47 FLR 80, cited

Geographical Indications Committee v The Honourable Justice O’Connor [2000] FCA 1877, cited

Howard v Australian Electoral Commission [2000] FCA 1767, cited

Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344, cited

Jess v Scott (1986) 12 FCR 187, cited

Lees v Comcare [1999] 56 ALD 84, applied

Re Liu and Comcare [2004] 79 ALD 119, applied

Re Mulheron and Australia Telecom Corporation (1991) 23 ALD 309, cited

Tuite v Administrative Appeals Tribunal & Anor (1993) 40 FCR 483, cited

Wiest v Director of Public Prosecutions (1988) 23 FCR 472, cited

DUONG v AUSTRALIAN POSTAL CORPORATION

NSD 1858 of 2004

EDMONDS J

SYDNEY

20 JULY 2005

ON APPEAL FROM THE ADMINISTRATIVE APPEALS TRIBUNAL

THE COURT ORDERS THAT:

1.                  The applicant’s application for an order extending the time within which to bring an appeal from the decision of the Administrative Appeals Tribunal, constituted by Senior Member Bell, given on 24 July 2002 at Sydney be refused.

2.                  The applicant’s further amended appeal from the decision of the Administrative Appeals Tribunal, constituted by Senior Member Bell, given on 15 November 2004 be upheld.

3.                  The respondent’s reviewable decision of 8 November 2001 be remitted to the Administrative Appeals Tribunal for review according to law.

4.                  The respondent’s notice of motion filed in Court on 28 June 2005 be dismissed.

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

ON APPEAL FROM THE ADMINISTRATIVE APPEALS TRIBUNAL

REASONS FOR JUDGMENT

1                     By notice of appeal filed 13 December 2004, the applicant appealed from the following decisions:

(i)                  The decision of the Administrative Appeals Tribunal (‘the Tribunal’), constituted by Senior Member Bell, given on 24 July 2002 at Sydney, not to grant an extension of time to review two reviewable decisions of the respondent, dated 27 July 1995 and 16 March 1998:  [‘the first decision’].

(ii)                The decision of the Tribunal, similarly constituted, given on 15 November 2004, to affirm a reviewable decision of the respondent, dated 8 November 2001:  [‘the second decision’].

2                     The reviewable decisions concerned requests by the applicant for reconsideration of anterior determinations of Australia Post in respect of the applicant’s claims for compensation under the Safety, Rehabilitation and Compensation Act 1988 (Cth) [‘the SRC Act’].  These claims alleged that she sustained work related injuries on three separate occasions.

3                     From the form of the notice of appeal, it is clearly instituted in reliance on s44 of the Administrative Appeals Tribunal Act 1975 (Cth) [‘the AAT Act’] which, inter alia, provides:

“(1)     Appeal on question of law A party to a proceeding before the Tribunal may appeal to the Federal Court of Australia, on a question of law, from any decision of the Tribunal in that proceeding.

(2)       …

(2A)     When and how appeal instituted  An appeal by a person under subsection (1) or (2) shall be instituted:

(a)               not later than the twenty-eighth day after the day on which a document setting out the terms of the decision of the Tribunal is given to the person or within such further time as the Federal Court of Australia (whether before or after the expiration of that day) allows; and

(b)               in such manner as is prescribed by rules of court made under the Federal Court of Australia Act 1976.”

4                     The notice of appeal asserted that the following were questions of law raised on the appeal:

“1.)     Whether the Tribunal erred in exercise of its discretion not to grant an extension of time to apply for a review of the reviewable decisions dated 27 July 1995, and 16 March 1998 (‘the 1995 and 1998 reviewable decisions’).

2.)        Whether the Tribunal erred, in its decision of 15 November 2004, in its understanding of the implications of Oudyn [2003] FCA 318 and erred in holding that the decision in Oudyn meant that the decision under review had to be affirmed.”

5                     The notice of appeal further asserted the following grounds of appeal:

In relation to the first decision –

“The Tribunal misconstrued the discretion that the Tribunal had to exercise in determining whether or not to grant the applicant an extension of time to apply to the Tribunal for review of the reviewable decisions, or the discretion miscarried, in circumstances where there was an acceptable explanation of the delay, and was manifestly ‘fair and equitable’ and in the interests of justice to do so.”

In relation to the second decision –

“The Tribunal erred in law in concluding that it had to affirm the decision under review, without holding a hearing as to the merits of the case.”

6                     This latter ground was particularised as follows:

“1)      The Tribunal erred in law in concluding that because the maker of the 2001 reviewable decision did not revisit the question of liability, the Tribunal could not revisit the question of liability, and could not review the decision-maker’s failure to revisit the question of liability.

2)                 The Tribunal erred in law in concluding that because the 1995 and 1998 reviewable decisions were not before it, and they had purported to cease liability for the injuries to which they related, the Tribunal could not consider any claim which referred to the incidents on which those injuries were separately based.”

7                     The notice of appeal also sought an order for time to be extended for the application to this Court to review the first decision.

8                     On 4 May 2005 the applicant was given leave by Gyles J to file in Court an amended application seeking review of the first and second decisions on the same and additional grounds, the additional grounds being principally founded on sub-s5(1) of the Administrative Decisions (Judicial Review) Act 1977 (Cth) [‘the AD(JR) Act’].  In addition, the amended application invoked the jurisdiction of the Court under s39B of the Judiciary Act 1903 (Cth), but appeared to abandon any reliance on s44 of the AAT Act.  Apparently, this was done in response to a warning, as it was described, by Gyles J at a directions hearing on 13 April 2005 of the need to ensure that any notice of appeal complied with s44 of the AAT Act.  Why it was thought necessary to invoke the jurisdiction of the Court under the AD(JR) Act and s39B of the Judiciary Act and abandon any reliance on s44 of the AAT Act, was not explained, although at the hearing counsel for the applicant accepted that it was ‘a mistake and misconceived’.

9                     At the hearing, I gave leave to the respondent to file in Court a notice of motion seeking an order to dismiss the applicant’s amended application.  I also granted leave to the applicant to file a further amended application, which sought to resurrect its standing as a notice of appeal against the first and second decisions in reliance on s44 of the AAT Act, while maintaining reliance on the jurisdictions conferred by the AD(JR) Act and s39B of the Judiciary Act.

10                  This time the questions of law were said to be:

In relation to the first decision –

“1)       Whether the Tribunal erred in exercising its discretion not to extend time because it failed to take into account a relevant consideration, namely, that the applicant had provided a reasonable explanation for the delay.

2)         Whether the Tribunal erred in exercising its discretion not to extend time because it was manifestly unreasonably not to extend time.

3)         Whether the Tribunal erred in law in assuming prejudice to the respondent occasioned by the failure to apply to the AAT for review in circumstances where there was no evidence of prejudice.”

In relation to the second decision –

“1)       Whether a Tribunal considering a Comcare claim errs in law in holding that it was bound to affirm a reviewable decision of the respondent which denied liability for a claim, without holding a hearing as to the merits, where there are earlier reviewable decisions in relation to related, frank injuries, not before the Tribunal which, whilst accepting liability, purport to cease liability from a certain date which had passed.

2)         Whether a Tribunal considering a Comcare claim errs in law if it holds that a reviewable decision maker’s failure to consider liability precludes the Tribunal from considering (sic) liability.

3)         Whether the Tribunal erred in law in holding that it was bound not to consider the applicant’s claim as a fresh claim because the reviewable decision-maker had not considered it a fresh claim.”

11                  The grounds of the further amended application, and the reconstituted appeal, remain as they were in the amended application save that reliance is placed on s44 of the AAT Act and s39B of the Judiciary Act as well as on the AD(JR) Act.

12                  In my view, this further amended application is still mistaken and misconceived although it does have the merit of resurrecting the initiating process as a notice of appeal in reliance on s44 of the AAT Act and I am prepared to consider it, and the respondent’s notice of motion, on that basis and that basis alone.  I will set out my reasons for this view.  In my opinion, the first decision and the second decision are decisions of the Tribunal from which an appeal lies to this Court under s44 of the AAT Act on a question of law.  Neither the first decision nor the second decision is a direction going to practice and procedure:  cf., Geographical Indications Committee v The Honourable Justice O’Connor [2000] FCA 1877; Commissioner of Taxation v Beddoe (1996) 68 FCR 446.  Rather, each is a final decision in the sense explained by Deane J, with whom Fisher J agreed, in Director-General of Social Security v Chaney (1980) 47 FLR 80 at 100, 103; Beddoe at 447.  In Tuite v Administrative Appeals Tribunal & Anor (1993) 40 FCR 483, Davies J held that as s44 of the AAT Act provides a specific procedure for the granting of relief by the Federal Court in respect of decisions of the AAT, that procedure should be adopted, and applications brought under s5 of the AD(JR) Act, when an appeal under s44 of the AAT Act is available, should be dismissed as of course.  The decision in Tuite was based on the principle that as the AAT Act had made special provision for relief against an error of law in a particular kind of proceeding, the more general provisions for relief in the AD(JR) Act give way to the special provisions.  This is apparent from Davies J’s reliance on Wiest v Director of Public Prosecutions (1988) 23 FCR 472 at 483-484, 488-489, 505.

13                  As indicated in [6] above, an appeal to this Court against the first decision can only be brought if time for the institution of such an appeal is extended by nearly three years.  That is a substantial extension of time.  No reason or explanation was given for the delay and no submission was made as to why I should so substantially extend time.  These apparent deficiencies in the applicant’s application for an extension of time assume greater profile in face of the fact that the underlying appeal is from the refusal of the Tribunal to extend time (by some seven years and four years respectively) for the applicant to make applications for review by the Tribunal of two reviewable decisions made by the respondent on 27 July 1995 and 16 March 1998.

14                  Indeed, when I asked the applicant’s counsel whether his client would suffer any prejudice in her appeal from the second decision if I decline to extend time for instituting an appeal against the first decision, such as rendering the appeal from the second decision incompetent, he responded: “None at all”.  On the other hand, it was put by counsel for the respondent which, not surprisingly, opposed the granting of the extension of time to appeal against the first decision, that granting such an extension might cause prejudice to the respondent in reopening something which, justifiably, it thought had been put to rest years earlier. 

15                  As well as the extent of the delay, the reason or reasons for the delay, and prejudice to the respondent as considerations to which I am entitled to have regard, the authorities suggest that in exercising my discretion, I am entitled to have regard to the prospects of any appeal, assuming an extension of time is granted; and that I would not exercise my discretion in the applicant’s favour in circumstances where the proposed appeal had no prospects of success and would be an exercise in futility:  Jess v Scott (1986) 12 FCR 187 at 188; Howard v Australian Electoral Commission [2000] FCA 1767 (Branson J) at [6] and [7]; Atkinson v Commissioner of Taxation [2000] FCA 998 (Sackville J) at [3].

16                  The power of the Tribunal to extend time for making an application for a review of a decision is to be found in sub-s29(7) of the AAT Act, which provides:

“(7)     The Tribunal may, upon application in writing of a person, extend the time for the making by that person of an application to the Tribunal for a review of a decision (including a decision made before the commencement of this section) if the Tribunal is satisfied that it is reasonable in all the circumstances to do so.”

17                  In her reasons for decision, which were given ex tempore, the learned senior member said that in making her decision she had regard to the principles set out in the decision of this Court (Wilcox J) in Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344 and with the decision of the Tribunal (O’Connor J) in Re Mulheron and Australia Telecom Corporation (1991) 23 ALD 309.  Those principles may be summarised as follows:

(1)               Prima facie, proceedings should be commenced within the prescribed period and an applicant for extension must show ‘an acceptable explanation of the delay’ and that it is ‘fair and equitable in the circumstances’ to extend time;

(2)               Any action taken by the applicant, other than by making an application for review, is relevant to the consideration of the question whether an acceptable explanation for the delay has been furnished.  A distinction is to be made between the case of a person who, by non-curial means, has continued to make the decision-maker aware that he contests the finality of the decision (who has not ‘rested on his rights’) and a case where the decision-maker was allowed to believe that the matter was finally concluded.

(3)               Any prejudice to the respondent including any prejudice in defending the proceedings occasioned by the delay is a material factor militating against the grant of an extension.

(4)               However, the mere absence of prejudice is not enough to justify the grant of an extension.  In this context, public considerations often intrude.  A delay which may result, if the application is successful, in the unsettling of other people or of established practices is likely to prove fatal to the application.

(5)               The merits of the substantial application are properly to be taken into account in considering whether an extension of time should be granted.

(6)               Considerations of fairness as between the applicants and other persons otherwise in a like position are relevant to the manner of exercise of the court’s discretion.

18                  I have already set out in [10] above what are said to be the questions of law on which an appeal would be brought if an extension of time to institute an appeal is granted.  The first, failure on the part of the Tribunal to take into account a relevant consideration, is grounded in the Tribunal’s alleged failure to take into account that the applicant had provided a reasonable explanation for the delay, namely, at the time that the reviewable decisions were made, they were, on their face, favourable to the applicant, because her medical expenses were paid, and her time off work was paid, and, at the time for appealing, she had no other claim.  My review of the transcript of the hearing before the Tribunal on 24 July 2002 indicates that this was not advanced as a reason or explanation for the delay in seeking review of the two reviewable decisions of the respondent.  Indeed, in the course of the hearing on that day, the senior member put certain questions to the applicant the answers to which indicate, with respect, that the applicant was not happy with the reviewable decisions at the time they were made.

“MS BELL:  Just a couple of questions before you, Ms Henderson.  Ms Duong in 1995 after you had received Australia Post’s final decision were you happy with that decision?

THE INTERPRETER:  I wasn’t happy with it.

MS BELL:  Why weren’t you happy with it?

THE INTERPRETER:  Because they only accepted liability up until that day only I  wasn’t happy with it but I wanted to retain my employment so I didn’t put any claim in to challenge the decision.

MS BELL:  Did you think that making a further challenge to the decision would have some effect on your employment?

THE INTERPRETER:  Yes.

MS BELL:  Why?

THE INTERPRETER:  Because at the work place initially I mentioned that and they flatly refused it and then I had to get the application form and see doctors and went through other procedures before I could make the initial claim and I found that it was too complicated and too difficult.

MS BELL:  So are you saying, Ms Duong that the reason why you didn’t take your claim any further is because you found the process too difficult or for some other reason?

THE INTERPRETER:  Because at the time they make it very hard for people to make to make claims at the Australia Post and I was afraid that if I put in my challenge on my claim then I might lose my job.  They gave me light duties work to do and I had a job so I wanted to continue doing the work.

MS BELL:  What was it that made you think you might lose your job if you pursued your claim?

THE INTERPRETER:  Actually I wasn’t aware that I could pursue the claim in such a way.  The only thing I was aware of was that at the centre where I worked at the time the people working in the office made life very hard for workers working outside.

MS BELL:  All right, well do you say the same things about your inquiry in 1997?

THE INTERPRETER:  Yes.”

19                  Moreover, in submissions which her counsel, Mr Canceri, made to the Tribunal, it is quite clear that the consideration which the notice of appeal alleges the Tribunal failed to take into account by way of explanation for the delay, was not advanced at all:

“MR CANCERI:  …Just turning to the first consideration, member.  The explanation for the delay in bringing the proceedings.  Member, you heard evidence from the applicant that what happened was she sought to challenge the first decisions and then, in my submission, the effect of her evidence is she sought to take it no further because her priority at the time was getting back to work.

You put some useful questions to her about why it was that she sought to go no further and if she was happy with the decisions of Australia Post, and in my submission, it is clear that she wasn’t happy with the final decisions in respect of the 1995 injury and the 1997 injury where once again her main focus was to return back to work and to keep her job with Australia Post.  You’ve heard her evidence in re-examination that certainly she did not know of the existence of the AAT at the time but she received the final decisions in respect of the 1995 accident and the 1997 accident.

…

In my submission, there has been a sufficient explanation for the delay.  There are no gaps.  The applicant sought legal advice in August 2000 and from there on she has been pursuing her rights.  In relation to the final decisions in ‘95 and ‘97 you have the evidence that her main priority was getting back to work and indeed I understand that the gist of her evidence was that she was concerned that she may be dismissed if she sought to challenge those decisions of Australia Post in ‘96 and ‘98.

Member, in relation to the second consideration whether the applicant rests on her rights, once again in relation to that consideration, my submission is that at face value the applicant did rest on her rights but she gives an explanation as to why she didn’t do anything and that is because she simply wanted to get on with her job, that was her priority and she simply didn’t want to create any waves with her employer which, in my submission, is reasonable behaviour in the circumstances by the applicant.”

20                  In giving its reasons for decision, which were given ex tempore, the Tribunal said:

“Mrs Duong said she did not seek legal advice in relation to either of the decisions of the respondent because she simply made use of the process for claims at Australia Post and the seeking of reconsiderations provided by the respondent.  She said she’d read the part of the letter advising her of the initial decision of the respondent that said she could ask for a reconsideration and spoke to her union.  She said she was not happy with the ultimate decision that was made by the respondent but wasn’t aware of her right to challenge the decisions further and did not want to make waves and found the process difficult and complicated.

She said she did not seek legal advice in relation to either of the decisions and simply wanted to have the respondent take responsibility for her injuries and the time she had taken off work.  She also said she was not aware of her right to make a claim for permanent impairment or of the existence of the Administrative Appeals Tribunal.  Initially the applicant said she was afraid of losing her job but in cross-examination she said that she had not thought she would be sacked for requesting a reconsideration and knew of no-one who had been sacked for applying to this Tribunal.  She said she did not speak to the union about her claims after she had received the reconsiderations.

…

I note that the length of the delay in seeking review of the decisions by this Tribunal is substantial.  Seven years in relation to one reviewable decision and four years in relation to the other.  I note that the reviewable decisions each contain information about the applicant’s rights of appeal to this Tribunal.  I also note that the applicant’s evidence as to her ability to read and speak English.

Mr Canceri submitted that the applicant’s reasons for failing to apply to this Tribunal was that she was focussed on working.  While I accept that was the case I do not accept she had any reason to think that by applying to the Tribunal she would endanger her job.  She had made contact with her union in relation to her requests for reconsideration and could have done so again in relation to an application to the Tribunal of which she was advised in the letters containing the reviewable decisions.

As to the question of whether the applicant rests on her rights it is clear that she did.  There is no evidence to suggest she took any steps to make the respondent aware that she intended to pursue her rights.  The first action taken by her was in approximately August 2000 when she sought legal advice after having been retired by the respondent and wrote to the respondent on 27 August 2000.  I accept that the applicant did not know that she could make a claim for permanent impairment but this does not alter the fact that the respondent was entitled by the applicant’s lack of action to regard the matters of her injuries in 1995 and 1997 as concluded.

21                  From these extracts, it is clear to me that no reason or explanation for the delay of the kind advanced in the notice of appeal was given by the applicant in response to questions put to her or in submissions made by her counsel.  In those circumstances, it is not possible to say that the Tribunal failed to take this consideration into account in deciding whether the applicant had provided a reasonable explanation for the delay.  Indeed, from the abovementioned extracts, it is quite clear that the Tribunal did take into account the considerations advanced by the applicant for the delay in seeking review of the reviewable decisions.  In my opinion, if I was to grant an extension of time to institute an appeal from the first decision, the applicant could not succeed on this ground. 

22                  The second question of law on which an appeal would be brought if I was to grant an extension of time to institute such an appeal is said to be grounded in the Tribunal’s error that it was manifestly unreasonable not to extend time.  The notice of appeal does not particularise why this is so and nothing was advanced by counsel for the applicant in support of this ground.  I note from the transcript of the hearing before the Tribunal on 24 July 2002 that counsel for the applicant (Mr Canceri) submitted that considerable injustice would result from the applicant not being able to have the first two reviewable decisions reviewed because that could effectively bar the Tribunal from considering her claim for permanent impairment.  As I indicated at [14] above, reliance on this was eschewed by the applicant’s counsel at the hearing in his response to a question I put to him directly in point.  Insofar as this ground is founded on the Wednesbury concept of unreasonableness, my review of the Tribunal’s reasons leads me to the conclusion that it would inevitably fail.  It follows, in my view, that it would be futile in extending time to institute an appeal from the first decision on this ground.

23                  The third question of law on which the appeal would be brought if an extension of time were granted is the Tribunal’s alleged error in assuming prejudice to the respondent, occasioned by the applicant’s failure to apply to the Tribunal for review on a timely basis, in circumstances where there was no evidence of prejudice.  In that regard, Mr Canceri before the Tribunal, conceded that there is presumptive prejudice from the passing of time – seven years in respect of the first reviewable decision and four in respect of the second reviewable decision.  Mr Canceri’s submissions suggested that this prejudice could be overcome by the respondent’s legal practitioners obtaining a history from the applicant in relation to that time and the respondent availing itself of subpoena to produce to obtain evidence of the applicant’s symptomology over the seven years in respect of the first reviewable decision, and four years in respect of the second reviewable decision.

24                  In relation to the wider prejudice to the general public, Mr Canceri conceded that it is true that people should be allowed to arrange their affairs on the basis that no claim could be made against them but, in his submission, the interests of justice in this particular case outweighed that consideration. 

25                  The Tribunal dealt with the matter of prejudice in the following way:

In relation to the issue of the prejudice to the respondent if this application is granted I note that the respondent has been unable to locate its records in relation to the 1998 reviewable decision.  The respondent has submitted that it has no information about the applicant’s activities since her sick leave in 1999 and has had no opportunity to have the applicant medically evaluated since the reviewable decisions.

Mr Canceri’s submission that any prejudice occurring to the respondent can be remedied by the respondent’s medical practitioners obtaining a history from the applicant and by the subpoena of medical records is limited by its reliance on the accuracy of any such history and the availability of such records.  Neither can be assured.  …

On the question of the wider prejudice to the public were the application to be granted, Mr Canceri submitted that considerable injustice would result from the applicant not being able to have the decisions reviewed because that could effectively bar the Tribunal from considering her claim for permanent impairment.  The issue was not debated in the hearing.  The matter for consideration today being an application for extension of time and not a hearing as to the Tribunal’s jurisdiction.  However, suffice to say that the issue referred to by Mr Canceri is somewhat less than settled and engages the Tribunal frequently with varying conclusions.”

26                  As indicated at [14] and [26] above, the latter consideration, that is, that the interests of justice in this particular case outweigh any wider prejudice to the public, was effectively eschewed by the applicant’s counsel at the hearing.

27                  Importantly, the Tribunal found that the respondent had been unable to locate its records in relation to the second reviewable decision, that the respondent had had no opportunity to have the applicant medically evaluated since the reviewable decisions, and that the remedies to overcome any resulting prejudice suggested by Mr Canceri could not be assured.

28                  Moreover, even if that prejudice could be overcome, as indicated in the principles which flow out of Hunter Valley Developments in [17] above, it does not follow that mere absence of prejudice is enough to justify an extension of time.

29                  I have come to the view that none of the grounds of the applicant’s appeal from the first decision contained in the further amended notice of appeal have any real prospect of success and, for that reason, as well as the reasons canvassed at [13] and [14] above, I refuse the applicant’s application for an extension of time in which to institute an appeal from the first decision.

30                  Turning to the applicant’s appeal from the second decision, that was made on a timely basis.  No extension of time is required for the applicant to pursue her appeal.  The second decision, given by the Tribunal, similarly constituted as for the first decision, on 15 November 2004, affirmed a reviewable decision of the respondent, dated 8 November 2001.  That reviewable decision was in the following terms:

“Reference is made to your letter dated 6 November 2001 requesting a reconsideration of a decision dated 14 September 2001 in respect of payment of permanent impairment for your client Mrs Duong for right upper limb and cervical/lumbar spine. 

Having regard to the evidence before me and pursuant to section 62 of the above Act I hereby affirm the determination in question and determine that Australia Post is not liable to pay compensation and there is no entitlement under sections 24 and 27 of the Act.

As outlined to you in the delegate’s determination of 14 September 2001 all liability for the claims relating to the upper limbs and spine were ceased. The Australia Post Reconsideration Officer accepted liability for a short period only and ceased all further liability in decisions of 27 July 1995 for claim 95/211039 and 17 March 1998 for claim 97/201530.”  [Emphasis]

31                  The decision of 14 September 2001, the subject of the reconsideration request, read:

“I refer to your client’s claim for payment of compensation for permanent impairment in respect of right upper limb, cervical/lumbar spine. 

Liability for the conditions claimed has been ceased in determinations of 27 July 1995 and 17 March 1998 and there is no further entitlements under the sections of the Act.

The available evidence would indicate that any impairment from which your client currently suffers could not be related to the original compensation claims.  I therefore determine that your client is not entitled to payment of compensation under sections 24 and 27 of the above Act.”  [Emphasis]

32                  The claim in respect of these decisions was made on 20 December 2000.  In the claim form, the injury was described as having been sustained to:

“Neck, shoulder, right arm and lower back”.

The injuries are said to have taken place on three separate occasions, namely, March 1994, 28 April 1995 and 24 December 1997 as a result of discrete incidents.  By the time of the respondent’s decision of 14 September 2001, the claim had been rearticulated as a claim for ‘payment of compensation for permanent impairment in respect of right upper limb, cervical/lumbar spine’.  In other words, the location of the injuries sustained had been confined to those of the earlier claims although it is not clear whether the earliest date of March 1994 (not within the earlier claims) was still maintained.  Nevertheless, the claim so confined was what was reconsidered by the respondent and the subject of its reviewable decision of 8 November 2001.  It was only the respondent’s decision on that claim that came before the Tribunal, so it is difficult to understand the relevance of references to the ‘neck injury’ in the submissions to the Tribunal by both sides, as well as in submissions on appeal. 

33                  On the applicant’s application to the Tribunal for review of the reviewable decision, the Tribunal affirmed the decision, however, and with respect to the learned senior member, it is not easy to understand the reasons upon which her decision was based.  At best, those reasons appear to be as follows:

(i)                  The earlier reviewable decisions in 1995 and 1998 had ceased in the sense that, the Tribunal having declined to extend time to the applicant to apply for their review by the Tribunal, they were not before the Tribunal.

(ii)                Those earlier reviewable decisions had determined that the respondent’s liability ceased in the case of the first reviewable decision from 26 May 1995, and in the case of the second reviewable decision, from the date of that decision, viz., 16 March 1998.

(iii)               It could not be argued that the reviewable decision of 8 November 2001 impliedly included a fresh determination under s14 of the SRC Act.

(iv)              The comments of the Full Court in Lees v Comcare [1999] FCA 753 (reported at 56 ALD 84) at [49] to the effect that it may be that, where no earlier determination under s14 has been made, the SRC Act allows the issue of liability to be determined under s24, cannot apply where, as here, there is a determination that purports to ‘cease’ liability and remains at large.

34                  Having read the transcript of the proceedings before the Tribunal, I am inclined to the view that a large part of the senior member’s difficulty in dealing with this application was caused by the confusing submissions that were put to her, not only as to the scope of the decision before her for review (in this regard I have in mind, in particular, the submissions relating to the ‘neck injury’) but also the submissions that were put to her in relation to the impact of the judgments of the Full Court in Lees v Comcare and of Cooper J in Australian Postal Corporation v Oudyn [2003] FCA 318 (reported at 73 ALD 659).

35                  From the Tribunal’s decision affirming the respondent’s reviewable decision of 8 November 2001, the applicant brings her appeal to this Court.  The questions of law on which the appeal is brought are set out in [10] above and are said to be grounded as follows:

(i)                  The Tribunal allegedly erred in law in concluding that it had to affirm the decision under review without holding a hearing as to the merits of the applicant’s claims, because the 1995 and 1998 reviewable decisions, in which liability was accepted but purportedly for a closed period, were not before the Tribunal (misapplying and misunderstanding Oudyn’s case).

(ii)                The Tribunal allegedly erred in law in concluding that because the maker of the 2001 reviewable decision did not revisit the question of liability in the light of the fresh application, and because the reviewable decision-maker did not treat the application as a fresh application, that the Tribunal could not revisit the question of liability, could not review the decision-maker’s failure to revisit the question of liability, and could not treat the application as a fresh application.

36                  Section 14 of the SRC Act provides:

“14.     Compensation for injuries

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

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

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

37                  Section 16 provides, inter alia:

“16.     Compensation in respect of medical expenses, etc

(1)               Where an employee suffers an injury, Comcare is liable to pay, in respect of the cost of medical treatment obtained in relation to the injury (being treatment that it was reasonable for the employee to obtain in the circumstances), compensation of such amount as Comcare determines is appropriate to that medical treatment.

(2)               Subsection (1) applies whether or not the injury results in death, incapacity for work, or impairment.

…”.

38                  Section 24 provides, inter alia:

“24.     Compensation for injuries resulting in permanent impairment

(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 provisions of the approved Guide.

(6)               The degree of permanent impairment shall be expressed as a percentage.”

39                  Section 27 provides:

“27.     Compensation for non-economic loss

(1)               Where an injury to an employee results in a permanent impairment and compensation is payable in respect of the injury under section 24, Comcare is liable to pay additional compensation in accordance with this section to the employee in respect of that injury for any non-economic loss suffered by the employee as a result of that injury or impairment.

(2)               The amount of compensation is an amount assessed by Comcare under the formula:

($15,000 X A) + ($5,000 X B)

where:

A is the percentage finally determined by Comcare under section 24 to be the degree of permanent impairment of the employee; and

B is the percentage determined by Comcare under the approved Guide to be the degree of non-economic loss suffered by the employee.

(3)               This section does not apply in relation to a permanent impairment commencing before 1 December 1988 unless an application for compensation for non-economic loss in relation to that impairment has been made before the date of introduction of the Bill for the Act that inserted this subsection.”

40                  In Lees v Comcare the Full Court said, in relation to s14:

“[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).

…

[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.

…

[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.”

41                  And later, the Court said:

“[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.” [Emphasis]

42                  Subsequently, in Australian Postal Corporation v Oudyn, Cooper J said:

“[30]  The decision of the Full Court in Lees makes clear that a decision to accept liability under s 14 of the Act involves no more than acceptance of a liability to pay compensation under the Act in accordance with the provisions of the Act in respect of a particular injury.  A decision to accept liability under s 14 of the Act involves findings as to the five elements identified by the Full Court in par [35] of its reasons.

[31]    The content, duration and means of satisfying the liability to pay compensation is to be found and worked out by determinations made under other sections of the Act including s 24.  These determinations give substance to the liability “... to pay compensation in accordance with this Act”, provided for in s 14.  They do not require that the determination under s 14 of the Act to accept liability be reconsidered or revoked when the liability to pay under s 14 is satisfied by payment in accordance with the requirements of one or more of the other sections of the Act.  The liability under s 14 of the Act to pay compensation stands until it is discharged in accordance with the Act.  Once discharged it is terminated.

[32]    The power of APC to reconsider a determination under s 62 of the Act, when exercised in relation to a determination made under s 14, is a power limited to a reconsideration of one or more of the elements identified by the Full Court in Lees.  A determination on reconsideration that one or more of the elements did not exist is a determination that there was at no time a liability under s 14 of the Act to pay compensation for the particular injury.  The position is different to, and to be contrasted with, the situation where a benefit is being paid under a particular section, in consequence of a determination having been made under s 14.

[33]    Where APC is paying compensation under one or more sections of the Act and it determines that its liability to pay in accordance with that section has been satisfied, the relevant determination is that the payment cease because the circumstances entitling payment under that section no longer exist, or can no longer be made out by the claimant.  It is a determination under that section.  It operates in respect of the claim then in existence for the payment of compensation under that section.  It does not operate as a bar to future claims in respect of that injury if the circumstances under the section can be made out again in the future, or if it can be brought under another applicable section of the Act.

[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.

[35]    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.

[36]    For the reasons which I set out above, 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.

[37]    Notwithstanding the determination of APC made on 18 May 2000, Mr Oudyn was entitled to make the claim for permanent impairment under s 24 of the Act which he did by letter dated 12 February 2001 from his solicitors.  APC was obliged to make a determination accurately and quickly in relation to that claim:  s 69;  Lees at [14].  The application required APC to again revisit the issue as to whether or not, at the time this determination was to be made, the injury Mr Oudyn had sustained on 2 August 1999 had resulted in impairment, and if so, whether the impairment was permanent:  s 24(2) and (5) of the Act.”  [Emphasis]

43                  More recently, in Re Liu and Comcare (No N2002/1489) reportedat [2004] 79 ALD 119, the Tribunal, comprising President G. Downes J, Deputy President R.P. Handley and Senior Member M.D. Allen), said:

“(1)     Section 14 of the Safety, Rehabilitation and Compensation Act 1988 (Cth) (the Act) creates a general liability for the payment of compensation to injured workers covered by the Act. It does not address categories of compensation. It does not address quantification. That is left to other sections of the Act. An initial determination of entitlement to compensation under the Act will normally incorporate a finding in favour of the claimant both under s 14 and also under one of the other sections of the Act: for example, ss 16, 19 or 24.

(2)       A positive determination under s 14 is a determination of the existence of a compensable injury. The nature and amount of the compensation is to be determined under other provisions of the Act. Compensable injuries may not always result in the payment of compensation. They may give rise to intermittent entitlements to compensation. There may be periods when there is no present entitlement to compensation under any of the sections of the Act relating to the nature and amount of compensation. But during such periods an injury which has been determined to be a compensable injury under s 14 will not cease to be a compensable injury. It will simply be correct to say during some periods that at the present the compensable injury does not give rise to an entitlement to compensation. Such periods may be long. The compensable injury may never give rise to any future entitlement to compensation. But this can not be known or determined in advance. No determination, whether by consent of the parties or not, can preclude the making of a future application for compensation with respect to a compensable injury determined to exist under s 14. This was made clear in Plumb v Comcare (1992) 39 FCR 236 at 240.

(3)       The only time that liability under s 14 can be reconsidered is under s 62. But that is a reconsideration of whether the original determination was correct on its merits and cannot address any issue of cessation of correctly determined liability. A changed determination upon such a reconsideration is a determination that there never was a compensable injury: see Australian Postal Corp v Oudyn (2003) 73 ALD 659 at 666-7.

(4)               It has been suggested that there is a statement in the judgment of Cooper J in Oudyn which supports a claim that liability under s 14 can come to an end at 667:

‘The liability under s 14 of the Act to pay compensation stands until it is discharged in accordance with the Act. Once discharged it is terminated.’

(5)       These sentences are unexceptionable. However, they do not correct or qualify any of the observations above. The words speak of liability to pay compensation. That liability can be discharged from time-to-time where all entitlements for payment of past compensation have been satisfied and there is no continuing liability. But it is only the liability to pay compensation under sections other than s 14 which is discharged. The reference to “liability under s 14” in the quotation must be seen both in its immediate and surrounding context. It is a shorthand reference to the primary determination of the existence of a compensable injury which is a necessary, but not a sufficient, condition for the payment of compensation. Before compensation is payable an additional finding of liability to pay compensation must be made which, as Cooper J clearly sets out in the previous sentences, depends upon liability being established under other sections of the Act. It is this particular liability to pay compensation, and only this liability, which can, at a point in time, but not prospectively, be discharged and terminated.”  [Emphasis]

44                  The reviewable decision of the respondent dated 27 July 1995 involved an acceptance of liability under s14 and a decision to pay compensation (cost of medical treatment obtained in relation to the injury) pursuant to sub-s16(1) of the SRC Act: Re Liu at [1].  Insofar as the reviewable decision limited the respondent’s liability to pay compensation up to 26 March 1995, that was a limitation on its liability to pay pursuant to sub-s16(1), not a limitation on its accepted liability under s14.  That has to be so otherwise the limitation, once the liability to pay is satisfied or discharged, would operate as a bar to future claims in respect of the injury if the circumstances under the section can be made out again in the future or if, as here, it can be brought under another applicable section of the Act:  Oudyn at [33], [34]; Re Liu at [4], [5].

45                  The same observations are equally applicable to the reviewable decision of the respondent dated 16 March 1998.  That decision also involved an acceptance of liability under s14 and a decision to pay compensation (cost of medical treatment obtained in relation to the injury) pursuant to sub-s16(1) of the SRC Act.  Insofar as the reviewable decision determined that the respondent’s liability to pay compensation ceased from the date of the decision, that was a limitation on its liability to pay pursuant to sub-s16(1), not a limitation on its accepted liability under s14.

46                  It follows, in my view, that when the respondent made its reviewable decision of 8 November 2001 affirming the decision of 14 September 2001, on the ground that all liability for the claims relating to the right upper limb and cervical/lumbar spine had ceased by virtue of the terms of the limitations contained within the earlier reviewable decisions, the respondent erred.  Acceptance of liability to pay compensation under s14 of the SRC Act was still on foot for both; it was only the liability to pay compensation pursuant to sub-s16(1) which had ceased.  It further follows, in my view, that the reconsideration officer was bound to consider the applicant’s claim for compensation for permanent impairment under s24 and s27 of the SRC Act on its merits and not affirm the anterior decision on the ground that the s14 liability had, in some way or another, been satisfied or discharged.

47                  This error was perpetuated when the reviewable decision of 8 November 2001 came before the Tribunal for review.  The fact that the earlier reviewable decisions had ceased, in the sense that the Tribunal having declined to extend time to the applicant to apply for their review by the Tribunal, they were not before the Tribunal, was irrelevant.  The fact that those earlier reviewable decisions had determined that the respondent’s liability ceased in the case of the first reviewable decision from 26 May 1995, and in the case of the second reviewable decision, from the date of that decision, viz., 16 March 1998, did not discharge the respondent’s liability under s14, only its liability to pay the cost of the medical treatment pursuant to sub-s16(1) of the SRC Act.  The fact that it could not be argued that the reviewable decision of 8 November 2001 impliedly included a fresh determination under s14 was irrelevant; none was required because the acceptance of liability under s14 inherent in the earlier reviewable decisions was still on foot; it had not been discharged.

48                  In my opinion, it was open to the applicant to bring her claim for payment of compensation for permanent impairment under ss24 and 27 of the SRC Act in respect of the same injuries from the same incidents the subject of the earlier reviewable decisions, and the reconsideration officer and the Tribunal on review of the reviewable decision of 8 November 2001 were required to review that claim on its merits, even though the earlier reviewable decisions were not before the Tribunal.

49                  The appeal against the Tribunal’s decision of 15 November 2004 must be upheld and the matter remitted to the Tribunal for review of the reviewable decision of 8 November 2001 according to law, which will necessary involve a merits review of the applicant’s claim to be paid compensation for permanent impairment under ss24 and 27 of the SRC Act in respect of the same injuries from the same incidents the subject of the earlier reviewable decisions.

50                  As each party has been successful in part, each party should pay its own costs of the appeal.  There will be no order as to costs.

Associate:

Dated:              20 July 2005