Australian Postal Corporation v Mowbray

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FEDERAL COURT OF AUSTRALIA

Australian Postal Corporation v Mowbray [2003] FCA 1258

ADMINISTRATIVE LAW – worker’s compensation – meaning of ‘determination’ in s 60(1) of the Safety, Rehabilitation and Compensation Act 1988 (Cth) – meaning of ‘decision’ in the Administrative Appeals Tribunal Act 1975 (Cth)

Safety, Rehabilitation and Compensation Act 1988 (Cth) Pts II, IV, VI; ss 14, 60, 62, 64
Administrative Appeals Tribunal Act 1975 (Cth) s 3(3)

Lees v Comcare [1999] FCA 753
Australian Postal Corporation v Oudyn [2003] FCA 318
Plumb v Comcare (1992) 39 FCR 236

AUSTRALIAN POSTAL CORPORATION v G A MOWBRAY, IN HIS CAPACITY AS A MEMBER OF THE ADMINISTRATIVE APPEALS TRIBUNAL
A 17 OF 2003

STONE J
6 NOVEMBER 2003
CANBERRA

IN THE FEDERAL COURT OF AUSTRALIA

AUSTRALIAN CAPITAL TERRITORY DISTRICT REGISTRY

A 17 OF 2003

BETWEEN:

AUSTRALIAN POSTAL CORPORATION
APPLICANT

AND:

G A MOWBRAY, IN HIS CAPACITY AS A MEMBER OF THE ADMINISTRATIVE APPEALS TRIBUNAL
FIRST RESPONDENT

SIDNEY MACDONALD
SECOND RESPONDENT

JUDGE:

STONE J

DATE OF ORDER:

6 NOVEMBER 2003

WHERE MADE:

CANBERRA

THE COURT ORDERS THAT:

1.        The application be dismissed with costs. 

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

IN THE FEDERAL COURT OF AUSTRALIA

AUSTRALIAN CAPITAL TERRITORY DISTRICT REGISTRY

A 17 OF 2003

BETWEEN:

AUSTRALIAN POSTAL CORPORATION
APPLICANT

AND:

G A MOWBRAY, IN HIS CAPACITY AS A MEMBER OF THE ADMINISTRATIVE APPEALS TRIBUNAL
FIRST RESPONDENT

SIDNEY MACDONALD
SECOND RESPONDENT

JUDGE:

STONE J

DATE:

6 NOVEMBER 2003

PLACE:

CANBERRA

REASONS FOR JUDGMENT

INTRODUCTION

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

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

    FACTUAL BACKGROUND

  3. On 23 December 1987 the respondent made a claim for compensation in respect of an injury to his right arm (right lateral epicondylitis) and a left shoulder condition.  On 28…

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Details
Case
[2003] FCA 1258
Decision Date

CaseChat Overview and Summary

In the case of Australian Postal Corporation v Mowbray, the applicant, Australian Postal Corporation, brought an appeal to the Federal Court of Australia regarding the jurisdiction of the Administrative Appeals Tribunal (AAT) to review a decision related to compensation claims under the Safety, Rehabilitation and Compensation Act 1988 (Cth). The central dispute involved whether the AAT had the authority to review the applicant's decision to cease compensation payments for the respondent's injury, specifically regarding the right lateral epicondylitis. The respondent, Mowbray, argued that the AAT had jurisdiction to review the applicant's refusal to reconsider his 2002 claim for compensation, which related to the same injury addressed in a prior determination made in 1993.

The primary legal issue before the court was whether the AAT had the jurisdiction to review the applicant's decision, as per section 64 of the SRC Act. The court examined whether the 1993 determination and subsequent correspondence constituted a "determination" within the meaning of section 60 of the SRC Act, thus making the AAT's review of the decision permissible. The applicant contended that the 1993 determination did not preclude future liability for the injury, whereas the respondent argued that the 1993 decision was limited to the period specified and did not affect future incapacity or impairment related to the injury.

The court's reasoning hinged on the interpretation of the SRC Act and the nature of the 1993 determination. The court found that the 1993 determination was not an absolute denial of future liability but rather a cessation of compensation payments based on the available evidence at the time. The subsequent correspondence in 2002, which refused to reconsider the 2002 claim, was deemed to be a reviewable decision as it involved a refusal to grant compensation for a new period of incapacity. The court held that the AAT had jurisdiction to review the applicant's refusal to reconsider the 2002 claim, as it amounted to a refusal to make a decision under section 62 of the SRC Act.

The court dismissed the applicant's appeal and ordered that the application be dismissed with costs. This decision affirmed the AAT's jurisdiction to review the applicant's refusal to reconsider the 2002 compensation claim, thereby upholding the respondent's position that the AAT could review the decision as a matter of law.

Orders

Orders of the court

1. The application be dismissed with costs.

Background

Background to the litigation

The issue before me is whether the AAT had power to review the alleged reviewable decision of the applicant or, in other words, whether there was a decision by the applicant which was susceptible to an application for review under s 64 of the SRC Act. The facts that gave rise to this issue are not in dispute. FACTUAL BACKGROUND On 23 December 1987 the respondent made a claim for compensation in respect of an injury to his right arm (right lateral epicondylitis) and a left shoulder condition. On 28 March 1988 the applicant accepted liability to compensate the respondent in respect of the right lateral epicondylitis pursuant to the Compensation (Commonwealth Government Employees) Act 1971 (Cth). Subsequently this Act was repealed by the SRC Act Part X of which contains transitional provisions that allow continuity of rights in respect of injuries incurred before the commencement of the SRC Act; see s 124 et seq. In a letter dated 8 February 1993 the applicant wrote to the respondent concerning his entitlement to continuing compensation and advised him that it had determined that compensation was not payable as from 6 July 1988 (‘1993 determination’). The letter referred to the respondent’s failure to supply up-to-date medical evidence to support his ongoing entitlement to compensation and advised that his entitlement to compensation had been reviewed. The letter stated:‘As the available evidence does not satisfy me that there is liability to pay ongoing compensation, I have determined that on and from 6/7/88, Australia Post will no longer be liable to pay compensation for your claim.’The letter also advised that if he was dissatisfied with the decision, the respondent was entitled to request reconsideration under s 62(2) of the SRC Act. The respondent did not request that this decision be reconsidered. However, on 14 October 2002 his solicitor wrote to the applicant making a claim for compensation in respect of the respondent’s right lateral epicondylitis, that is in respect of the same injury that was the subject of the 1993 determination. The letter explained that after Mr MacDonald left the applicant’s employ he was employed by the Australian Taxation Office and that on 10 July 1997 he suffered a further injury to his right arm and elbow in a fall. The letter continued:‘We enclose a copy of a report of 12 July 2001 from Dr Joan Chen. On page 9 of the report … you will see that Dr Chen attributes the problems Mr MacDonald now has with his right arm [to] the fall he had while he was employed with Australia Post. …We are instructed by Mr MacDonald to make a claim against you for benefits pursuant to the [SRC Act] as a result of his right arm injury.’ In its reply, dated 13 November 2002, the applicant referred to the letter of 8 February 1993 and stated that by this determination ‘liability in respect of right lateral epicondylitis was ceased.’ The reply continued:‘You are over nine years outside the statutory time frame for requesting reconsideration and have failed to supply reasons for the delay in your request.Should you wish to provide reasons for the delay I will further consider your request at that time. However on the information supplied with your correspondence of 14 October 2002 a reconsideration will not be entertained.’

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

STONE J
The Full Court in Lees v Comcare [1999] FCA 753 (‘Lees v Comcare’) considered the extent of the AAT’s jurisdiction to review decisions made under the SRC Act and commented, at [39]:‘In considering the extent of the power of the AAT when reviewing decisions under the Act, it is to be noted, first, that the AAT is authorised by s 64 of the Act to review only reviewable decisions – that is, for present purposes, second tier or reconsideration decisions made under s 62 of the Act. Decisions under s 62 of the Act are the result of the reconsideration by Comcare or a licensed authority of a determination, as defined by s 60 of the Act, concerning which a claimant will have received a notice in writing setting out the terms of the determination and the reasons for the determination (s 61(1)). Secondly, it is to be noted that the powers of the AAT under s 43(1) of the AAT Act are powers “[f]or the purpose of reviewing” the reviewable decision, not powers that may be exercised at large. Further, the powers and discretions that the AAT may exercise under s 43(1) are the powers and discretions conferred by the Act on the determining authority for the purposes of reconsidering a determination under s 62 of the Act. The AAT will not be authorised on review of a reviewable decision to exercise any powers and discretions which would not have been available to the determining authority at the second tier decision-making stage, albeit that such powers and discretions might have been available to the determining authority at the first tier decision-making stage.’THE AAT DECISION As noted above, in its letter of 16 December 2002 and 31 December 2002, the applicant refused to entertain the 2002 claim. Mr MacDonald regarded the rejection in the applicant’s letter of 31 December 2002 as a reviewable decision within s 62 of the SRC Act and sought review of it in the AAT. The applicant contested the jurisdiction of the AAT on the basis that there was no reviewable decision. The AAT heard both parties on the issue and on 4 April 2003 held that it had jurisdiction to hear Mr MacDonald’s application and gave oral reasons. At the request of the applicant the AAT provided written reasons on 29 April 2003. In summary those reasons were that:(a)The 1993 determination (see [4] above) was ‘a determination to cease payment of compensation under the relevant heads, such as sections 16 and 19, from July 1988’ and was not a denial of further liability for the injury to Mr MacDonald’s right arm. (b)The letter of 16 December 2002 (see [7] above) ‘manifests a determination as defined in s 60(1) of the SRC Act’ being in substance if not in form, ‘a refusal to make a determination to grant compensation as requested, that is, for a new period of incapacity commencing on 31 January 2000.’(c)The letter of 31 December 2002 (see [9] above) amounted to a refusal to make a decision under s 62 of the SRC Act and is therefore a ‘reviewable decision’ within the meaning of s 60. THE PARTIES’ POSITIONSApplicant’s position

Ratio Decidendi

Legal Principle Established

Established by: STONE J

The respondent’s position is that the decision of the AAT was correct for the reasons given. He submits that the 1993 determination related to whether there was an obligation at that time to pay compensation. It did not (and in the respondent’s submission, could not) relate to liability to pay compensation in respect of any future incapacity or impairment that might result from the injury in question. According to the respondent the applicant’s rejection of his 2002 claim was a determination that he was entitled to have reconsidered. The letter of 31 December 2002 was, in substance, a refusal to reconsider and consequently was a reviewable decision under the SRC Act that the AAT has jurisdiction to review. CONSIDERATION It is implicit in the applicant’s argument that the 1993 determination (see [4] above) involved not only a finding that Mr MacDonald’s incapacity or impairment ceased by the date specified but also that this necessarily meant that his injury had ceased to exist. As a result there could be no further liability to pay compensation in respect of that injury. In fact counsel for the applicant readily conceded that if Mr MacDonald was able to show that he suffered further incapacity or impairment attributable to that injury, it would follow that the 1993 determination was wrong. The applicant’s analysis leaves no room for the view that an injury that initially caused impairment or incapacity to work (thus entitling an employee to compensation) may have symptoms which abate, thereby extinguishing the liability for compensation (under s 14) for such period as those symptoms are in abeyance and there is no incapacity or impairment. Another way of looking at the matter would be that in the absence of incapacity or impairment the amount of compensation calculated in accordance with s 19 would be nil. Mr MacDonald takes the view however that the initial incapacity or impairment requiring compensation may disappear but that subsequently the same injury can manifest itself, causing a further period of incapacity or impairment. At least in theory, Mr MacDonald’s view appears to be supported by the medical report that is referred to in the letter of 14 October 2002; see [5] above. Whether or not that is so in this case has not as yet been established and I express no opinion on that issue. In my opinion the interpretation of the SRC Act advocated by the applicant must be rejected. Section 14, subject to Pt II, lays down the criteria that must be met if the applicant is to be liable for compensation. It is necessary for there to be an injury which, in this case, is the injury to Mr MacDonald’s right arm. In accordance with the SRC Act, Mr MacDonald must have been an employee at the time of the injury and that injury must arise out of, or in the course of his employment; ss 4 and 5. It must also have resulted in death, incapacity for work or impairment. Further, for the SRC Act to apply notice in writing of the injury must have been given to the relevant authority as soon as practicable after the employee became aware of the injury; s 53. The applicant’s acceptance of liability on 28 March 1988 involved its acceptance that these criteria had been met. The matter does not rest there however, as s 14 provides that the applicant’s liability to pay compensation is subject to Pt II of the SRC Act. Thus in Lees v Comcare the Full Court said, at [34]:‘A determination under s 14 cannot amount to more than a determination that Comcare “is liable to pay compensation in accordance with this Act” in respect of a particular injury. The amount of compensation which Comcare will be liable to pay, the person or persons to whom the compensation will be payable and the time or times at which Comcare’s liability will give rise to a present obligation to make payments are … all matters to be determined under other provisions of the Act.’