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 236AUSTRALIAN POSTAL CORPORATION v G A MOWBRAY, IN HIS CAPACITY AS A MEMBER OF THE ADMINISTRATIVE APPEALS TRIBUNAL
A 17 OF 2003STONE J
6 NOVEMBER 2003
CANBERRA
IN THE FEDERAL COURT OF AUSTRALIA
AUSTRALIAN CAPITAL TERRITORY DISTRICT REGISTRY
A 17 OF 2003
BETWEEN:
AUSTRALIAN POSTAL CORPORATION
APPLICANTAND:
G A MOWBRAY, IN HIS CAPACITY AS A MEMBER OF THE ADMINISTRATIVE APPEALS TRIBUNAL
FIRST RESPONDENTSIDNEY MACDONALD
SECOND RESPONDENTJUDGE:
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
APPLICANTAND:
G A MOWBRAY, IN HIS CAPACITY AS A MEMBER OF THE ADMINISTRATIVE APPEALS TRIBUNAL
FIRST RESPONDENTSIDNEY MACDONALD
SECOND RESPONDENT
JUDGE:
STONE J
DATE:
6 NOVEMBER 2003
PLACE:
CANBERRA
REASONS FOR JUDGMENT
INTRODUCTION
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.
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…
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- Case
- [2003] FCA 1258
- Decision Date
CaseChat Overview and Summary
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
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
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.’