FEDERAL COURT OF AUSTRALIA

Telstra Corporation Ltd v Kotevski [2013] FCA 27

THE COURT ORDERS THAT:

1.    The application be dismissed.

2.    By consent, the applicant pay the respondent’s costs as agreed or taxed.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

1    Telstra Corporation Limited is a self insurer and licensee under the Safety, Rehabilitation and Compensation Act 1988 (Cth) (the SRC Act). Telstra seeks to prohibit the Administrative Appeals Tribunal from acting on the basis of a Deputy President’s decision made on 5 March 2012 that the Tribunal had jurisdiction in relation to an application made by the respondent, David Kotevski, to review a decision made by Telstra on 9 September 2011 to pay him compensation of $2993.81 for permanent impairment resulting from an injury to his hearing while working for Telstra. The Tribunal found Telstra had overlooked a part of Mr Kotevski’s claim for compensation in respect of the yet to be incurred cost of acquiring hearing aids. Telstra contended that the scheme of the SRC Act did not provide for the Tribunal to have jurisdiction unless and until a reviewable decision, had been made within the meaning of s 62 of the SRC Act, in respect of Mr Kotevski’s claim for compensation under s 16(1) for the supply of hearing aids. It argued that a mere failure of a decision-maker to make a decision under the SRC Act or, as the Tribunal found, the fact that the decision-maker had overlooked a part of Mr Kotevski’s claim, did not give the Tribunal jurisdiction to review such a failure or oversight.

2    The decision of the Tribunal was interlocutory, hence Telstra has applied for prohibition under s 39B of the Judiciary Act 1903 (Cth) rather than pursuing an appeal under s 44 of the Administrative Appeals Tribunal Act 1975 (Cth): Irwin v Military Rehabilitation Commission (2009) 174 FCR 574 at 576-577 [7]-[11] per Downes, Greenwood and Tracey JJ.

The Statutory Scheme

3    Telstra was a licensee under the SRC Act and was authorised to accept liability to pay, and to manage claims for, compensation and other amounts under that Act in respect of particular injury, loss or damage suffered by its employees (ss 108(1), 108C(7)). By force of ss 108A(1) and 108C(7), Telstra was liable to pay that compensation and other amounts under the SRC Act in respect of that injury, loss or damage in lieu of Comcare. The functions imposed on Telstra, as a licensee with authority to pay compensation and other amounts and to manage claims under the SRC Act, included functions to make those payments accurately and quickly, to determine those claims accurately and quickly and to take all necessary action in respect of the subsequent management of those claims (s 108E(a) and (b); cf s 69(a) in respect of Comcare). Thus, for present purposes, references in the SRC Act that imposed liabilities on Comcare had the effect of imposing them on Telstra because it was a licensee authorised to accept liability to pay, and to manage claims for, compensation and other amounts due under the SRC Act in respect of injury, loss or damage suffered by Mr Kotevski.

4    The SRC Act defined a claim to mean a claim under Pt V, being ss 53-59 (s 4(1)). Relevantly, s 54 provided:

54 Claims for compensation

“(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.

(3)    Where a written claim, other than a claim for compensation under section 16 or 17, is given to a relevant authority under paragraph (2)(a) and the claim is not accompanied by a certificate of the kind referred to in paragraph (2)(b), the claim shall be taken not to have been made until such a certificate is given to that authority.

....

(5)    Strict compliance with an approved form referred to in subsection (2) is not required and substantial compliance is sufficient.”

5    Where an employee (including a person in Mr Kotevski’s position), had made a claim for compensation under s 54, a relevant authority, such as Telstra, might require him or her to undergo an examination by one medical practitioner that it nominated, at its expense (s 57). The relevant authority might also give a notice requiring the employee to provide information or a document that the relevant authority was satisfied the employee either had or could obtain (s 58).

6    Part II of the SRC Act dealt with Comcare’s (and a licensee’s) liability to pay compensation and certain other amounts. For simplicity, I will refer to Comcare’s liabilities imposed on it by Pt II of the SRC Act as being Telstra’s liabilities. Telstra was liable to pay compensation under s 14(1) in accordance with the SRC Act in respect of an injury suffered by an employee if the injury resulted in, relevantly, impairment. Impairment meant “… the loss, the loss of use, or the damage or malfunction, of any part of the body or of any bodily system or function or part of such a system or function”.

7    Where an employee suffered an injury (relevantly, a physical injury arising out of, or in the course of the employee’s employment (s 5A(1)(b)), Telstra was liable to pay, in respect of the cost of medical treatment that it was reasonable for the employee to obtain in respect of the injury, “compensation of such amount as [Telstra] determines is appropriate to that medical treatment” (s 16(1)). Importantly, s 16(3) provided that the cost of medical treatment that involved the supply, replacement or repair, of property used by the employee, included any fees or charges paid or payable by the employee to a legally qualified medical practitioner or other qualified person for, inter alia, a service reasonably required in connection with that supply, replacement or repair. Telstra was liable to pay compensation due under s 16(1) either to the employee, if he or she had already paid the cost of the medical treatment or, if he or she had not then paid that cost, to the person to whom the cost was payable (s 16(4)).

8    Telstra was separately liable to pay compensation to an employee when an injury to him or her resulted in a permanent impairment (s 24(1)). Prior to 2 October 2001, no compensation was payable under s 24 of the SRC Act for any permanent impairment, including hearing loss, unless Telstra determined that the degree of permanent impairment was not less than 10% (s 24(7)). The amount of compensation payable to an employee under s 24 was such amount as was assessed by Telstra under s 24(4), not exceeding the maximum amount of $80,000 (s 24(3), (9)). Under s 24(5) Telstra had to “… determine the degree of permanent impairment of the employee resulting from an injury under the provisions of the approved Guide”, expressed as a percentage. That percentage had to be applied by Telstra to the maximum amount payable, so as to arrive at its assessment of the amount of compensation payable under s 24(1) (s 24(4)). An amount of compensation assessed under s 24 had to be paid to the employee within 30 days of the date of the assessment (s 26(1)).

9    Part VI of the SRC Act dealt with the reconsideration and review of determinations. Section 60(1) provided for definitions of a number of terms of Pt VI of the SRC Act. The definition of “decision” in s 60(1) provided that it had the same meaning as in, relevantly, s 3(3) of the Administrative Appeals Tribunal Act 1975 (Cth) (the AAT Act). The latter definition provided that, unless the contrary intention appeared, a reference to a decision included:

“(a)    making, suspending, revoking or refusing the make an order or determination …

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

10    Under s 60(1) of the SRC Act:

“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.”

Also s 60(1) provided that “reviewable decision” meant a decision under, relevantly, s 62. Importantly, ss 61-63 relevantly provided:

“61 Determinations to be notified in writing

(1)    As soon as practicable after a determining authority makes a determination, it shall cause to be served on the claimant a notice in writing setting out:

(a)    the terms of the determination;

(b)    the reasons for the determination; and

(c)    a statement to the effect that the claimant may, if dissatisfied with the determination, request a reconsideration of the determination under subsection 62(2).

(2)    This section does not apply in relation to a determination under subsection 16(1) that compensation of an amount equal to the full amount of the cost of medical treatment obtained by an employee is payable if that amount of compensation is payable to a person other than the employee.

62 Reconsideration of determinations

(1)    A determining authority may, on its own motion:

(a)    reconsider a determination made by it; or

(b)    cause such a determination to be reconsidered by a person to whom its power under this section is delegated, being a person other than the person who made, or was involved in the making of, the determination;

whether or not a proceeding has been instituted or completed under this Part in respect of a reviewable decision made in relation to that determination.

(2)    A request to a determining authority to reconsider a determination made by it may be made by:

(a)    the claimant; or

…

(3)    A request for reconsideration of a determination shall:

(a)    set out the reasons for the request; and

(b)    be given to the determining authority within 30 days after the day on which the determination first came to the notice of the person making the request, or within such further period (if any) as the determining authority, either before or after the expiration of that period, allows.

(4)    On receipt of a request, the determining authority shall reconsider the determination or cause the determination to be reconsidered by a person to whom its power under this section is delegated, being a person other than a person who made, or was involved in the making of, the determination.

(5)    Where a person reconsiders a determination, the person may make a decision affirming or revoking the determination or varying the determination in such manner as the person thinks fit.

63 Reviewable decision to be notified in writing

As soon as practicable after a person makes a reviewable decision, the person shall cause to be served on the claimant a notice in writing setting out:

(a)    the terms of the decision;

(b)    the reasons for the decision; and

(c)    a statement to the effect that, subject to the Administrative Appeals Tribunal Act 1975, application may be made to the Administrative Appeals Tribunal for review of the decision to which the notice relates.”

11    A claimant, such as Mr Kotevski could apply to the Tribunal for a review of a reviewable decision by force of s 64(1)(a).

12    Under s 25 of the AAT Act, the Tribunal had power to review “any decision in respect of which application is made to it under any enactment” (s 25(4)). Importantly, s 25(5) provided:

“(5)    For the purposes of an enactment that makes provision in accordance with this section for the making of applications to the Tribunal for review of decisions, a failure by a person to do an act or thing within the period prescribed by that enactment, or by another enactment having effect under that enactment, as the period within which that person is required or permitted to do that act or thing shall be deemed to constitute the making of a decision by that person at the expiration of that period not to do that act or thing.”

13    No such provision was made in the SRC Act at the time Mr Kotevski applied to the Tribunal. Once an application for review of a decision had been made to the Tribunal, s 26 of the AAT Act prohibited the decision from being altered otherwise than by the Tribunal on the review unless, relevantly, the parties and the Tribunal consented to that alteration. For the purpose of reviewing a decision, the Tribunal could exercise all the powers and discretions that were conferred on the decision-maker (s 43(1)).

Background

14    Mr Kotevski worked for Telstra and its predecessors from 4 June 1970 to 22 November 2001. During his employment he suffered noise exposure from jack hammers and other equipment that Telstra accepted resulted in him having ultimately suffered a binaural hearing loss.

15    On 2 December 2010, Mr Kotevski’s solicitors, on his behalf, lodged a claim with Telstra’s then insurer, Allianz Australia Insurance Limited. The claim was in three parts, consisting of a Comcare claim for workers compensation form, supported by a report of Dr Kenneth Howison dated 26 October 2010, together with audiology results and a quote of $5,115.00 for the supply of hearing aids dated 16 November 2010. In Dr Howison’s report, he opined that the only means of improving Mr Kotevski’s hearing loss was the use of the bilateral hearing aids and he recommended that Mr Kotevski obtain those.

16    On 7 December 2010, Allianz responded to the claim form noting that it was unable to process the claim at that time because Mr Kotevski had not completed a hearing loss questionnaire, which the insurer enclosed with its letter. The completed questionnaire was returned by Mr Kotevski’s solicitors on 10 January 2011. Allianz also arranged for Mr Kotevski to be assessed by its own ear, nose and throat specialist, Dr Leon Gillam. Dr Gillam’s report of 12 April 2011 recommended that Mr Kotevski undergo a trial of BTE (behind the ear) bilateral digital hearing aids, which, he said, were required as a result of Mr Kotevski having suffered from noise exposure whilst employed by Telstra. He estimated the cost of those hearing aids at between $3,500 and $4,500. Dr Gillam concluded that Mr Kotevski had suffered a total binaural hearing impairment of 12.8%.

17    On 4 May 2011, Allianz made a determination under s 14 of the SRC Act that Telstra was liable to pay compensation in respect of Mr Kotevski’s injury resulting in his hearing loss impairment. In its letter of 4 May 2011 to Mr Kotevski’s solicitors, Allianz acknowledged that it had received Mr Kotevski’s claim form, his completed questionnaire, Dr Howison’s report and Dr Gillam’s report. As noted above, both doctors had recommended that Mr Kotevski use hearing aids as the means of enabling him to deal with his hearing loss. The letter stated that the claims manager was satisfied based on, inter alia, the assessments of Dr Howison and Dr Gillam, that Mr Kotevski had suffered hearing loss attributable, in part, to his employment by Telstra.

18    On 10 May 2011, Mr Kotevski’s solicitors requested that his compensation in respect of permanent impairment be paid in accordance with Dr Gillam’s higher assessment of impairment, namely, on the basis of 12.8% binaural loss of hearing.

19    On 25 July 2011, Telstra wrote to Mr Kotevski’s solicitors with its determination of his claim for compensation for permanent impairment in respect of his accepted binaural hearing loss. At some point shortly before this letter was written, Telstra became a self-insurer under the SRC Act and ceased to rely on Allianz. However, Mr Kotevski’s solicitors did not become aware that Allianz had ceased to be responsible until after 2 August 2011.

20    In the letter of 25 July 2011, Telstra’s decision-maker, Amy Kelly, determined that Telstra was liable to pay compensation to Mr Kotevski for whole person impairment under ss 24 and 124 of the SRC Act in the sum of $2,993.81 on the basis of Dr Gillam’s assessment of a 12.8% binaural hearing loss. Ms Kelly did not refer at any point in her letter to the component of Mr Kotevski’s claim for compensation of the cost of being supplied with hearing aids. She made the calculation of the monetary sum based on apportioning Mr Kotevski’s entitlements under ss 24, 27 and 124 of the SRC Act having regard to the periods between 4 June 1970 and 22 November 2001 in which Telstra and its predecessor employer corporations were liable under respectively s 12 and the Third Schedule of the Commonwealth Compensation Act 1930 (Cth) (the 1930 Act), s 39 of the Compensation (Commonwealth Government Employees) Act 1971 (Cth) (the 1971 Act) and ss 24, 27 and 124 of the SRC Act.

21    Ms Kelly found that Mr Kotevski was entitled to 0.5% hearing loss compensable under the 1930 Act, in the sum of $47.67 and 7.012% hearing loss compensable under the 1971 Act, in the sum of $2,946.14. However, she determined that Mr Kotevski had no entitlement under the SRC Act for the balance of his hearing loss of 5.28% because it fell below the 10% threshold for which compensation was payable under s 24(7) of the SRC Act, as it was in force during the period up to 1 October 2001 when the hearing loss occurred. Under s 24(7), as in force for that period, no compensation was payable where the whole person impairment resulting from an injury, that was equivalent to half of the binaural hearing loss, was not equal to, or higher than, 10%. She also determined that nothing was payable to Mr Kotevski for non-economic loss under s 27(3) of the SRC Act. Thus the total compensation which Ms Kelly found payable to Mr Kotevski entirely excluded liability under the SRC Act itself for the last 12 year period for which he worked for his employer and made no mention of his claim for compensation for the supply of hearing aids.

22    Apparently before they received Ms Kelly’s letter of 25 July 2011, Mr Kotevski’s solicitors wrote to Allianz on 2 August 2011. It seems that Telstra’s letter of 25 July 2011 to Mr Kotevski’s solicitors crossed in the mail with his solicitor’s letter of 2 August 2011 addressed to Allianz. The letter of 2 August 2011 re-enclosed a non-economic loss questionnaire completed by Dr Howison, a “details of aids, appliances modifications” form completed by Mr Kotevski’s general practitioner on 21 July 2011, a quote for hearing aids for $10,000 and a “compensation claim for permanent impairment” form signed by Mr Kotevski and his general practitioner. The letter noted that Dr Gillam had assessed the binaural hearing loss at 12.8% and that Allianz had agreed to pay compensation based on that assessment. The letter sought Allianz’s calculation of Mr Kotevski’s entitlement so that his claim could be finalised and asked for the matter to be expedited. Allianz forwarded this letter to Telstra, which received it on 23 August 2011.

23    On 31 August 2011, Mr Kotevski’s solicitors wrote to Ms Kelly at Telstra referring to her decision of 25 July 2011 and requesting that it be reviewed on three bases, namely that the decision was “wrong”, he was entitled to compensation for the period covered directly by the SRC Act and the 10% impairment threshold did not apply to his claim.

24    On 9 September 2011, Telstra’s Cheryl Blanchard wrote to Mr Kotevski’s solicitors informing them of her decision to affirm the determination of 25 July 2011. She pointed out that amendments to the SRC Act that came into force on 2 October 2001 reduced the 10% threshold for binaural hearing loss to 5%, but only in respect of injuries suffered on or after 2 October 2001. Ms Blanchard noted that Mr Kotevski had suffered an apportioned hearing loss of 5.28% over the whole of the period between 1 December 1988 and 22 November 2011 (which was a typographical error for 2001). She reasoned that his proportion of binaural hearing loss for the period between 2 October 2001 and 22 November 2001 would not have been 5%.

25    At the time of the hearing before the Tribunal on 20 February 2012, Telstra informed the Deputy President that it had decided to pay Mr Kotevski’s claim for bilateral hearing aids. However, although Telstra informed the Deputy President that it had made a decision to accept Mr Kotevski’s claim for those hearing aids on the morning of the hearing, it had said that the terms of that decision were not yet available.

The Tribunal’s decision

26    The Tribunal reasoned that Mr Kotevski’s claim for hearing aids was clearly before the original decision-maker (Ms Kelly) when Telstra accepted liability under s 14 of the SRC Act in respect of his injury. It found that that claim had been overlooked and that Ms Kelly had failed to address it when she made her decision. It held that the definition of “decision” in s 3(3) of the AAT Act was inclusive and, so, non-exhaustive. It found that a failure to address part of a claim in circumstances where another part of the claim had been determined should be regarded as part of the overall decision that attracted the provisions of Pt VI of the SRC Act for reconsideration and review.

27    The Tribunal considered that Mr Kotevski’s situation was similar to that in Irwin 174 FCR 574 because all the required documentation in support of his entire claim was before Ms Kelly. The Tribunal held that Ms Blanchard should have recognised this when dealing with the reconsideration of Mr Kotevski’s claim under s 62 of the SRC Act. It found that the submission that the original decision was wrong, required Ms Blanchard to examine the whole of Mr Kotevski’s claim on her reconsideration under s 62. The Tribunal held that the failure of the reconsideration decision-maker (Ms Blanchard) to deal with the totality of Mr Kotevski’s claim did not deprive the Tribunal of jurisdiction to review what was clearly part of the claim that was the subject of the request for reconsideration. It found that the expeditious determination of claims would be undermined if such a failure to deal with part of a claim deprived the Tribunal of jurisdiction to deal with the outstanding part. It referred to the decision of Jagot J, sitting as a Presidential member of the Tribunal, in Re Durham and TNT Australia Pty Ltd (2011) 124 ALD 136 at 145 [51] that, in conducting a review under s 64 of the SRC Act, the Tribunal had to assess for itself the true scope of a claim under that Act and is empowered to conduct the review on that basis. The Tribunal concluded that, notwithstanding that the reconsideration decision was flawed, it had jurisdiction under s 64 of the SRC Act to review the whole claim (including for compensation for hearing aids).

Telstra’s submissions

28    Telstra contended that the Tribunal’s finding that the claim for hearing aids had been overlooked by the original and reconsideration decision-makers entailed that no refusal or decision had been made in respect of that claim. It argued that, accordingly, there was no reviewable decision before the Tribunal for the purposes of s 64(1) of the SRC Act. It submitted that the decision in Lees v Comcare (1999) 56 ALD 84 identified a three tiered structure of decision-making under the SRC Act that resulted in limitations on the jurisdiction of the Tribunal. It argued that, before Mr Kotevski could apply to the Tribunal for compensation under s 16 of the SRC Act in respect of the hearing aids, it was necessary for there to have been both a determination of such a claim under s 60 and a reviewable decision under s 62 on that particular claim. It contended that a mere failure to make a decision was not sufficient to create rights of review.

29    Telstra pointed to the definition of “making a decision” in s 3(2) of the Administrative Decisions (Judicial Review) Act 1977 (Cth) (the ADJR Act) as including a reference “to a failure to make a decision” which contrasted with the absence of any reference to a failure to make a decision in the definition of “decision”, in ss 3(3) or 25 of the AAT Act. It argued that prior to the commencement of cl 6 in Sch 2 of the Safety Rehabilitation and Compensation and Other Legislation Amendment Act 2011 on 7 December 2011, there were no time limits imposed on decision-makers under the SRC Act. Telstra said that this had the consequence that s 25(5) of the AAT Act did not operate to deem, as being a refusal, the failure of a decision-maker to make a decision where there was no time limit prescribed for doing so. Telstra relied on the decisions of Hack DP in Re Slater and Telstra Corporation Ltd (2007) 45 AAR 111 esp at 114 [12], 115 [17] and of Finn J in Semunigus v Minister for Immigration and Multicultural Affairs [1999] FCA 422 at [19]-[20] and Comcare v Sassella (2001) 34 AAR 142 at 148 [22]-[23], 149 [26]-[28] that a decision required a conclusion reached by a mental process and a translation of that process into a decision by means of an overt act.

30    Telstra also relied on the Ombudsman’s power under s 10(1) of the Ombudsman Act 1976 (Cth) to create a deemed refusal by certifying that there had been unreasonable delay in making the decision by a decision-maker who had not made a decision under an enactment that prescribed no time within which the decision-maker had to decide. It argued that a purpose for that power was so that a person would be able to use the Ombudsman’s certificate to apply for review of the deemed refusal (TWSR 2-7). It contended that the SRC Act provided for progressive and evolving decision-making allowing for adjustment or change in light of events and circumstances as Heerey J, Dowsett and Conti JJ had each held in Telstra Corporation Ltd v Hannaford (2006) 151 FCR 253 at 255-256 [10]-[11], 256 [13] and 273 [57]. Telstra contended that it had not completed its decision-making functions and that, accordingly, there was no reviewable decision in respect of the hearing aids.

Mr Kotevski’s submission

31    Mr Kotevski argued that the Tribunal’s reasoning and decision were correct. He noted that Telstra did not dispute that his claim for hearing aids was part of his overall claim for compensation. He contended that Ms Blanchard’s decision should not be deconstructed, as Telstra had submitted, into two parts, namely a decision dealing with hearing aids, that it had failed to make, and another decision dealing with all other aspects of his claim for compensation that Telstra had made. Mr Kotevski contended that such an approach was artificial and unrealistic in the factual context in which he had submitted a quote for hearing aids as part of his original claim for compensation under the SRC Act on 2 December 2010. Mr Kotevski’s written submissions asserted that on 10 May 2011 his solicitors had sent the details of the “aids, appliances modification form” referred to at [22] above. (However, that is incorrect. That form is dated 21 July 2011 and was sent to Telstra only with Mr Kotevski’s solicitor’s letter of 2 August 2011.) He argued that what occurred in Ms Kelly’s decision of 25 July 2011 and Ms Blanchard’s reconsideration decision of 9 September 2011 was a single decision making process dealing with the entirety of his claim for compensation. He relied on Irwin 174 FCR 574 to suggest that there was a single reviewable decision that comprehended his claim for compensation for hearing aids.

32    Mr Kotevski argued that, alternatively, the Tribunal had jurisdiction to review a failure of Telstra to make a decision where the circumstances warranted the conclusion that the failure amounted to a decision. Mr Kotevski submitted that neither of Telstra’s letters communicating the original and reconsideration decisions referred to or reserved for further consideration his claim for compensation for hearing aids or limited the decisions to determinations only of a claim in respect of or under ss 24 and 27. He argued that because everything necessary to make a decision in respect of the supply of hearing aids was before each decision-maker, each of them could have made a determination of his entitlement then and there. Accordingly, he contended, because neither decision-maker awarded compensation for hearing aids, in the context of Telstra’s function to determine that aspect accurately and quickly under s 108E(a) and (b) of the SRC Act, the Tribunal had jurisdiction, in the review of the reconsideration decision, to consider that aspect of his claim.

Consideration

33    The belated decision of Telstra to pay Mr Kotevski’s claim for compensation for bilateral hearing aids could not affect the jurisdiction of the Tribunal to determine that claim, if the Tribunal was already seized of it. That is because s 26 of the AAT Act, relevantly, prohibited the reconsideration decision from being altered by Telstra. On the other hand, if the Tribunal had no jurisdiction to determine that claim, Telstra’s decision will be effective to amount to a determination to compensate Mr Kotevski for the supply of the hearing aids. Thus, the issue of the Tribunal’s jurisdiction, which Telstra wishes to have determined, is not moot. It agreed to pay Mr Kotevski’s costs in any event, so that this issue might be determined.

34    In Lees 56 ALD 84 Wilcox, Branson and Tamberlin JJ considered the decision-making scheme provided for in the SRC Act. They observed that ordinarily the claim, and the claim form, envisaged by s 54 of the SRC Act were likely to be made and provided relatively soon after an employee suffered the injury complained of (56 ALD at 91 [31]). They held that Pt VI of the SRC Act established a three tiered decision-making process consisting of the original decision, a reconsidered decision and a decision by the Tribunal that reviewed the reconsidered decision (56 ALD at 91 [32]). Their Honours identified that part of the scheme was for determinations to be made under the various sections of the SRC Act referred to in the definition of “determination” in s 60(1). They pointed out that under s 43(1) of the AAT Act, the Tribunal exercised its powers for the purpose of reviewing the reconsideration decision made under s 62 of the SRC Act. It followed that the Tribunal was authorised to exercise only those powers and discretions that would have been available to the reconsideration decision-maker and that those might not include all the powers and discretions that were available to the original decision-maker (56 ALD at 93 [39]).

35    In that decision the Full Court dealt with appeals by two separate claimants. In Ms Lees’ appeal she had originally sought review by the Tribunal of a decision under s 16 of the SRC Act to deny her compensation for the cost of taxis to attend medical examinations. She sought to expand the review to include consideration of her claim under s 24 of the SRC Act for compensation for permanent impairment that had not been determined by either of the anterior decision-makers. The other appellant, Mr O’Donohue, sought to challenge a rejection of his claim to have suffered an injury under s 14 of the SRC Act. When his claim came before the Tribunal he, too, sought to expand it to obtain a determination of a claim under s 24 that had not been determined by the original or reconsideration decision-makers. The Full Court held that the Tribunal had no jurisdiction to determine the two s 24 claims because those had not been the subject of the original decisions and, so could not have been, and were not, considered in the reconsideration decisions (56 ALD at 94-95 [48]-[50], 96 [53]-[56]). Wilcox, Branson and Tamberlin JJ said that the terms of the reconsideration decisions were revealed in the notice in writing served under s 61(1) of the SRC Act and that there had been no suggestion that the notices misrepresented that actual determination made (56 ALD at 96 [54]).

36    The SRC Act allows for progressive and evolving decision-making that allows for what are likely to be inevitable changes in circumstances in the interests of both employee and employer: Hannaford 151 FCR at 255 [10] per Heerey J, 256 [13] per Dowsett J, 273-274 [57] per Conti J. They held that the Tribunal had power to make findings of fact in decisions under, inter alia, s 16 of the SRC Act subsequent to, and different from, earlier findings made in the decision-making processes under the SRC Act, such as the determination of the entitlement to compensation in respect of an injury under s 14 (151 FCR at 273-274 [57]).

37    Telstra relied on the reasoning of Finn J in Semunigus [1999] FCA 422 at [19] and the Full Court, on appeal, in Semunigus v Minister for Immigration and Multicultural Affairs (2000) 96 FCR 533 at 536 [11] per Spender J 540 [55], 542-543 [71]-[75] per Higgins J, 546-547 [101] per Madgwick J. It contended that in order for a decision to be made, the decision-maker had first, to reach a conclusion on a matter as a result of engaging in a mental process and, secondly, to translate that decision into an overt act that gave it, in the circumstances, the character of finality, so as to preclude the decision-maker revisiting the decision at his or her option. That case was concerned with whether the decision-maker was functus officio at a particular stage in the decision-making process so that it was precluded from considering a submission that had been lodged with it after that time. Buchanan J, with whom Logan J and Barker agreed in separate reasons, in Minister for Immigration and Citizenship v SZQOY (2012) 206 FCR 25 at 31 [29] (see too at 32 [34], 35-36 [50]-[55]) pointed out that for that purpose, what is critical is that the decision-maker must be precluded, as a matter of law, from revisiting the decision at his or her or its option before it is regarded as final in the relevant sense.

38    Finn J noted in Sassella 34 AAR at 148 [23] that concept of a decision, and particularly the requirement that it be manifest, is one that has been contrived for the purposes of the administrative decision-making context in which it does its practical work. He went on to note that no provision in the SRC Act (as it was then, or I would add up to 7 December 2011) prescribed a time for a decision to be made under s 37 (dealing with rehabilitation) so as to attract a deeming provision that equated a failure to decide with a negative determination: 34 AAR at 149 [26]. The same position relevantly obtained in respect of Mr Kotevski’s claims under ss 24, 27 and 16.

39    In Irwin 174 FCR at 580 [26] Downes, Greenwood and Tracey JJ in the course of giving reasons for making a consent order allowing an appeal, observed that under the Military Rehabilitation and Compensation Act 2004 (Cth) a claim could be made that simultaneously sought acceptance of liability and a payment of compensation. They held that the decision-maker could consider such a joint claim. There, the original and reconsideration decision-makers determined that the Commission was not liable. The Full Court continued:

“That finding made it unnecessary for it to deal with the compensation aspect of the claim. This did not mean that the compensation determination could not have been made contemporaneously had the Commission made a positive finding on the liability issue. Indeed, in such circumstances, it would have been required, by s 333, to do so. It can, therefore, be said that the rejection determination involved both an explicit rejection of the liability claim and an implicit rejection of the compensation claim. This conjoint determination was reviewable.”

(original italic emphasis, bold emphasis added)

40    Their Honours noted that in Lees 56 ALD 84 there had been no implicit rejection of the compensation claim. They observed that the difference in outcomes of the appeal before them and Lees 56 ALD 84 was explicable because of the different statutory regimes that applied to each case: 174 FCR at 579-580 [24]-[28].

41    The statutory scheme of the SRC Act requires the decision-maker to make particular determinations under individual sections, as the definition of “determination” in s 60(1) demonstrates. Here, Mr Kotevski required Telstra to make determinations of his entitlements under each of ss 14, 24, 27 and 16 of the SRC Act. Those determinations were in respect of whether:

(1)    he had suffered an injury that resulted in impairment pursuant to s 14(1). Telstra so decided on 4 May 2011: see [17] above;

(2)    that injury had resulted in permanent impairment and, if so, the percentage degree of permanent impairment and amount of compensation payable pursuant to s 24 and whether he should be compensated for non-economic loss under s 27. Clearly enough that determination was made on 25 July 2011 and affirmed on 9 September 2011: see [19]-[21] and [24] above;

(3)    he was entitled to compensation for the cost of the supply of hearing aids pursuant to s 16. He had made this claim on 2 December 2010. Dr Gillam confirmed that Mr Kotevski should have a trial with BTE hearing aids on 12 April 2011: see [15]-[16] and [22] above.

42    Importantly, after receiving Allianz’s determination dated 4 May 2011 that Telstra was liable to pay compensation for Mr Kotevski’s injury under s 14, Mr Kotevski’s solicitors responded immediately on 10 May 2011, asking that compensation for permanent impairment be paid in accordance with Dr Gillam’s assessment of 12.8%. Mr Kotevski’s solicitors’ letter of 2 August 2011 sought to update, and increase, his claim for the supply of hearing aids. That letter was written in ignorance of Telstra’s letter of 25 July 2011. Mr Kotevski’s claim increased from the quote submitted with his original claim on 2 December 2010 of $5,115.00 to the claim on 2 August 2011 of $10,000.00, supported by Mr Kotevski’s general practitioner’s recommendation of the supplier who gave the latter quote in the “detail of aids, appliances modifications” form. However, since he had not purchased any hearing aids, his claim at that stage could only be for the supplier of the hearing aids to be paid for the cost of supply under s 16(4) of the SRC Act.

43    Mr Kotevski’s claim for compensation made on 2 December 2010 included claims under each of ss 14, 24, 27 and 16. The “details of aids, appliances modifications” form appears to be the form approved for, or in connection with, a claim under s 16. That form was only sent to Allianz on 2 August 2011. Importantly, s 54(5) provided that strict compliance with an approved form was not required and substantial compliance would suffice. Mr Kotevski’s original claim of 2 December 2010 contained all relevant information, then known to him, in support of the claim for supply of hearing aids under s 16 including a quote of the cost. The information he provided in the letter of 2 August 2011 updated the earlier claim but did not alter its fundamental character. And that update was provided in light of Dr Gillam’s lower estimate of the cost of supply of hearing aids in his report of 12 April 2011.

44    An administrative decision-maker is required to make is, her or its decision on the basis of material available to him, her or it at the time of the decision: Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 at 45 per Mason J (with whom Gibbs CJ at 30 and Dawson J at 71 agreed on this issue); see too my reasons in SZJTQ v Minister for Immigration (2008) 172 FCR 563 at 571-573 [27]-[37]. Updated information on a claim is not a new claim.

45    Here, Ms Kelly’s determination of 25 July 2011 was stated to have been made under ss 24, 27 and 124 of the SRC Act (s 124 being relevant to the period of Mr Kotevski’s employment prior to the commencement of the SRC Act). It noted that the reports of both Dr Howison and Dr Gillam but did not mention the supply of hearing aids that both doctors had recommended and for which Mr Kotevski had claimed compensation.

46    Telstra argued that the original decision was simply a decision on compensation for permanent impairment under s 24 of the SRC Act, as well as its statutory predecessors pursuant to s 124 and for non-economic loss under s 27. However, there was no evidence that after Ms Kelly’s letter was sent, Telstra was still considering the s 16 claim. Telstra relied on the Tribunal’s finding that that claim had been overlooked as being equivalent to a finding that it had not been rejected.

47    The Tribunal had jurisdiction to decide the issue of whether it had jurisdiction to determine the s 16 claim. However, its power to decide the facts relevant to that claim could not supplant the power of the Court to determine authoritatively the jurisdictional facts on which the Tribunal’s jurisdiction depended: Corporation of the City of Enfield v Development Assessment Commission (2000) 199 CLR 135 at 146 [23], 151 [38], 155 [48] per Gleeson CJ, Gummow, Kirby and Hayne JJ.

48    I am of opinion that Ms Kelly’s decision of 25 July 2011 conveyed an appearance of finality. It dealt with his claims for permanent impairment and non-economic loss and, by omission of any reference to the contemporaneous claim for hearing aids, gave rise to the inference that all decision-making on Mr Kotevski’s claim of 2 December 2010 had then come to an end. The letter conveyed in its natural and ordinary meaning that $2,993.81 was all the compensation that Telstra was prepared to pay to Mr Kotevski in respect of his injury that resulted in his permanent impairment.

49    Importantly, Mr Kotevski’s solicitors’ letter of 2 August 2011 was before Ms Blanchard. She too wrote the letter of 9 September 2011 that ignored the up-to-date information in the letter of 2 August 2011 despite saying that she had considered all the available evidence.

50    There was no evidence before the Tribunal or the Court that any further decision-making process in relation to the s 16 claim was underway within Telstra at any time after 25 July 2011 except to the extent that Ms Blanchard’s letter of 9 September 2011 conveyed the same appearance of finally disposing of all Mr Kotevski’s claims as Ms Kelly’s letter had conveyed. Indeed, only during a pre-hearing conference in the Tribunal some time after 2 November 2011 (when Mr Kotevski had filed his application for review) did Telstra indicate that it had not made a decision under s 16. And it took until 20 February 2012, the day of the hearing before the Tribunal to announce that it had made a decision accepting Mr Kotevski’s claim for hearing aids although, even then, it did not reveal what the terms of that decision was. Thus, there was no evidence, that between 25 July 2011 and the pre-hearing conference, Telstra was doing anything further in relation to the claim for hearing aids, despite its function to determine and pay claims accurately and quickly under s 108E(a) and (b). The delay was unexplained.

51    Mr Kotevski’s claims were not complicated, once Telstra accepted liability and worked out the apportionment of the compensation payable for permanent impairment under ss 24 and 124 of the SRC Act. No decision-maker acting according to law could have ignored the concurring opinions of Dr Howison and Dr Gillam that Mr Kotevski should try hearing aids. But to all appearances, both decision-makers seemed to have made a decision not to pay compensation for the supply of hearing aids under s 16 as part of the original and reconsideration decisions. Apart from those decisions, Telstra remained silent on that topic for several months after receiving Mr Kotevski’s solicitors’ letter of 2 August 2011. Of course, the change in the estimated cost of the hearing aids may have been a matter that Telstra needed to address. Had it done so, sensible, efficient administrative decisions should have been made, if that were the case, to inform Mr Kotevski that Telstra was considering the s 16 claim.

52    I am of opinion that the s 16 claim was before both Ms Kelly and Ms Blanchard and that each of them implicitly rejected it: Irwin 174 FCR at 580 [26]. Thus, the Tribunal did have jurisdiction to determine the s 16 claim. The conclusion of implicit rejection in that case was one of fact, as is mine. There is no question that under the SRC Act different determinations can be, and often are, made for claims under provisions such as ss 14, 24 and 16. That is because such claims ordinarily are made sequentially not, as here, contemporaneously: see Lees 56 ALD at 91 [31]-[32]. Here, once Telstra had made its decision to accept liability under s 14 on 4 May 2011, Mr Kotevski had a straightforward claim for compensation for both permanent impairment and the supply of hearing aids to assist him in dealing with that impairment that was at all times before Telstra for determination under the SRC Act.

53    The criterion of a decision-maker’s preclusion from revisiting a decision before it is relevantly final in the sense asserted by Telstra cannot be absolute. That is because an administrative decision that involves jurisdictional error is regarded in law as no decision at all: Plaintiff S157/2002 v The Commonwealth (2003) 211 CLR 476 at 506 [76] per Gaudron, McHugh, Gummow, Kirby and Hayne JJ who applied Minister for Immigration and Multicultural Affairs v Bhardwaj (2002) 209 CLR 597 at 614-615 [51] per Gaudron and Gummow JJ, 618 [63] per McHugh J and 646-647 [152] per Hayne J. And as Bhardwaj 209 CLR 597 held, where the decision-maker became aware, after making a decision, that it had done so erroneously (in that case by overlooking a written application for adjournment where the applicant had not attended the hearing) it could re-open the proceedings and make the decision afresh. Thus, any administrative decision involving jurisdictional error will never have the legal effect of precluding the decision-maker from revisiting that decision in the sense discussed in Semunigus [1999] FCA 422 and 96 FCR 533, and SZQOY 206 FCR 25 as explained in [37] above.

54    Nonetheless, most administrative decisions, including those that do involve jurisdictional error, are regarded by the persons affected by the decisions as binding, until a Court determines otherwise. It cannot be the law that those decisions are unreviewable by the AAT, or similar tribunals or bodies, because they are not decisions at all. Indeed, in Zubair v Minister for Immigration (2004) 139 FCR 344 at 352-354 [28]-[32] Finn, Mansfield and Gyles JJ rejected an argument that the Migration Review Tribunal had no jurisdiction to review a decision of a Minister’s delegate that failed to comply with a procedural requirement or involved an error of law. They said (139 FCR at 353 [28]):

“There is no reason why the Act, which provides for a full merits review by the Tribunal of decisions which may be brought to it, should impose upon the Tribunal the task of culling out those decisions which may involve jurisdictional error on the part of the original decision-maker. That would impose an unnecessary additional complexity upon the merits review process. Moreover, it may expose the Tribunal's decision as to the existence of a valid delegate's decision (a jurisdictional fact on the appellant's argument) to review by a court even where (as here) the Tribunal has fully reviewed the decision on the merits. Administrative convenience strongly points to an alternative conclusion to that urged by senior counsel for the appellant. The review process applicable to the Tribunal is a full merits review. As with review under the Administrative Appeals Tribunal Act 1975 (Cth) (the AAT Act), the Tribunal is given powers under s 349 to exercise all the powers and discretions that are conferred by the Act on the person who made the decision. It may affirm the decision, vary it, or remit the matter for reconsideration with directions or recommendations, or may set aside the decision and substitute a new decision. The only limit upon its power is that it may not, by varying or setting aside a decision and substituting a new decision, make a decision that is not authorised by the Act or the Regulations (s 349(4)). That is similar to the review powers of the Administrative Appeals Tribunal (the AAT): see AAT Act, s 43. In that context it has been held that the review by the AAT is available even though the decision-maker at first instance may have made a decision which is legally ineffective: see eg, Clements v Independent Indigenous Advisory Committee (2003) 131 FCR 28 at [38]-[39].”

55    Here, the reconsideration decision had all the appearance of finality. Mr Kotevski and the Tribunal had proceeded on that basis until Telstra raised the jurisdictional objection during the Tribunal’s pre-hearing conference. As Jagot J observed in Durham 124 ALD at 145 [51] the Tribunal had to assess for itself the true scope of a claim under the SRC Act when exercising its power to review a decision. That involves a consideration of what decision, the subject of the review, was made in fact and not its legal effect: Zubair 139 FCR at 353 [29], 354 [32]; Twist v Randwick Municipal Council (1976) 136 CLR 106 at 116 per Mason J. As Mason J observed a party affected can elect to treat an administrative decision as a valid, though erroneous, decision by appealing from it to a body that can review the decision on its merits, in preference to asserting his or her right to proper performance by the decision-maker of its duty. He also said that in some cases the Court can take account of the public interest in the efficiency of the administrative process and the necessity for reasonably prompt despatch of public business balancing that against the countervailing interest of the individual in securing a fair hearing (136 CLR at 116).

56    Here, of course, Telstra had statutory functions to determine claims and pay compensation accurately and quickly and to take all necessary action in respect of management of those claims (s 108E(a) and (b)). By failing to state expressly that the claim for compensation for the supply of hearing aids under s 16 of the SRC Act remained unresolved and under consideration at any time prior to Mr Kotevski beginning his proceedings in the Tribunal, Telstra, in the circumstances, conveyed to Mr Kotevski and the tribunal that that claim had been implicitly rejected in Ms Kelly’s and Ms Blanchard’s decisions. Mr Kotevski had asked each of them to make a decision on that claim.

57    Because each made no reference to the s 16 component of Mr Kotevski’s claims that were before them, each of Ms Kelly and Ms Blanchard conveyed in her decision, by implication in all the circumstances, that it had been rejected by her. Those circumstances included the lack of evidence that Telstra was still considering the claim for supply of hearing aids. That was indicative that Telstra had finalised its determination of all Mr Kotevski’s entitlements under the SRC Act. The implicit refusals of the original and reconsideration decision-makers to make a determination of compensation under s 16 was a “decision” within the meaning of s 3(3)(a) or (g) of the AAT Act.

Conclusion

58    For these reasons, I am of opinion that the Tribunal correctly ruled in the factual situation before it that it had jurisdiction to determine Mr Kotevski’s claim for compensation for the supply of hearing aids. Telstra’s application must be dismissed.

Associate:

Dated:    25 January 2013