Bebek and Australian Capital Territory (Compensation)
[2022] AATA 3181
•30 September 2022
Bebek and Australian Capital Territory (Compensation) [2022] AATA 3181 (30 September 2022)
Division:GENERAL DIVISION
File Number(s):2022/6029
Re:Mirjana Bebek
APPLICANT
Australian Capital TerritoryAnd
RESPONDENT
INTERLOCUTORY Decision
Tribunal:Mr S. Webb, Member
Date:30 September 2022
Place:Canberra
Application made within the prescribed time.
............[SGD]...............
Mr S. Webb, Member
Catchwords
PRACTICE & PROCEDURE – application for review of reconsideration decision denying liability in respect of a workers’ compensation claim – prescribed time for making application – notice of decision sent by email – when decision is given to the applicant – decision given when it was capable of being retrieved by the applicant – application within prescribed time
Legislation
Acts Interpretation Act 1901, ss 28A, 29
Administrative Appeals Tribunal Act 1975, ss 25, 29, 68
Electronic Transactions Act 1999, ss 5, 9, 14, 14A
Evidence Act 1995, ss 4, 5, 160, 161, 163
Safety, Rehabilitation and Compensation Act 1988, ss 4, 4A, 60, 62, 64, 74, 108EAdministrative Appeals Tribunals Regulations 2015, r 17, 18
Cases
Swanton v Military Rehabilitation and Compensation Commission [2017] FCA 1142
Singh v Minister for Immigration and Border Protection [2015] FCA 220
Adhikari & Anor v Minister for Immigration & Anor [2017] FCCA 1884
Palmer v Commissioner of State Taxation (WA) [1976] HCA 61; 136 CLR 406
Russell v Minister for Home Affairs [2019] FCAFC 110
Flahive and Comcare [2020] AATA 3044
Danagher v Child Support Registrar [2014] FCA 1408
Wagner v National Disability Insurance Agency [2020] AATA 1775
Sullivan v Civil Aviation Safety Authority [2014] FCAFC 93
REASONS FOR DECISION
Mr S. Webb, Member
30 September 2022
Mirjana Bebek claims she was injured in her employment by the Australian Capital Territory (ACT). Initially, her claim was accepted but this was subsequently revoked following an own-motion reconsideration by Employers Mutual Limited (EML), compensation claims manager for the Australian Capital Territory (ACT). Ms Bebek applied for review of this decision.
In response, the ACT asserts Ms Bebek’s application is outside the time prescribed for the making of an application for review and, without the grant of an extension of time, it is not valid. In the ACT’s submission, grant of an extension of time is not reasonable in all the circumstances.
These interlocutory issues came on for hearing. Documents were taken into evidence and the parties have made written and oral submissions addressing relevant issues.
It is appropriate in the circumstances, with the parties agreement, to proceed to determine threshold issues relating to the prescribed time for making an application first.
These reasons address that issue, alone.
Relevant facts
The following relevant facts are established by evidence, without controversy:
(a)Ms Bebek signed a compensation claim form on 21 February 2021.
(b)On 6 May 2021, under s 14 of the Safety Rehabilitation and Compensation Act 1988 (SRC Act), EML determined to accept liability for an injury in the form of adjustment disorder with mixed anxiety and depressed mood and symptomatic exacerbation of alopecia areata.
(c)On 18 June 2021, EML issued a further decision in which, under s 7(4) of the SRC Act, it determined the date of the injury to be 28 July 2016.
(d)On 20 April 2022, on its own motion under s 62 of the SRC Act, EML reconsidered and decided to revoke the 6 May 2021 determination (reconsideration decision).[1]
(e)On 22 April 2022, ACT Payroll, Shared Services HR, Payroll Compo (Shared Services), sent an email to Ms Bebek informing her she had passed the 45 week threshold and, in consequence, changes to her leave accruals would occur.[2]
(f)On 15 June 2022, Shared Services sent Ms Bebek an email attaching EML’s reconsideration decision in which it stated:
Payroll received late notification that EML did a re-consideration of own motion and revoked the acceptance of your compensation claim … effective 20/4/22. Due to this decision you currently do not have an accepted compensation claim… [3]
(g)Also on 15 June 2022, Ms Bebek’s Rehabilitation Case Manager forwarded the Shared Services email to Ms Bebek’s nominated private email address: Mirjana Mirjana <m…[email protected]>.[4]
(h)On 21 July 2022, Ms Bebek instructed her solicitor, Mr Bill McCarthy of Bradley Allen Love Lawyers to lodge an application for review of the reconsideration decision,[5] which he did.[6] In the application, Ms Bebek stated she received the reconsideration decision on 15 June 2022.[7]
(i)On 23 August 2022, Mr Ron Moss, a solicitor employed by HWLE Ebsworth Lawyers, acting for the ACT, informed the Tribunal Ms Bebek’s application was outside the 60 day timeframe prescribed under s 29(2) of the Administrative Appeals Tribunal Act 1975 (AAT Act) as modified by s 65(4) of the SRC Act.
[1] Exhibit B.
[2] Exhibit F.
[3] Exhibit D, Attachment A.
[4] Ibid, Attachment B.
[5] Exhibit D.
[6] Exhibit C.
[7] Ibid, page 2.
Affidavits sworn by Mr McCarthy and Mr Moss are in evidence.[8] Relevant claim notes from Ms Bebek’s compensation claim file have been placed before the Tribunal.[9]
[8] Exhibits E and G respectively.
[9] Exhibit H.
There is a controversy about an email the ACT asserts was sent to Ms Bebek on 20 April 2022. The ACT contends notice of the reconsideration decision was attached to the email, which was sent to two addressees: Mirjana Mirjana and ACTG.[10] Ms Bebek maintains she did not receive this email and she was not aware of it or the reconsideration decision until 15 June 2022.
[10] Exhibit A.
Submissions
In the ACT’s submission, notice of the reconsideration decision was given to Ms Bebek on 20 April 2022. The ACT asserts the notice was sent to Ms Bebek’s nominated email address on that day. Relying on Swanton v Military Rehabilitation and Compensation Commission (Swanton),[11] the ACT argues there is a legal presumption under s 161 of the Evidence Act 1901 (Evidence Act) the email was sent and it was received the next day by Ms Bebek. The presumption holds, so the argument goes, unless Ms Bebek produces contrary evidence sufficient to raise doubt about the presumption. The ACT relies on Singh v Minister for Immigration and Border Protection (Singh)[12] and Adhikari & Anor v Minister for Immigration & Anor (Adhikari)[13] as authority for the proposition a computer printout is evidence the email and any attachments were sent to Ms Bebek on 20 April 2022.
[11] [2017] FCA 1142, per Tracy J at [14]-[17].
[12] [2015] FCA 220.
[13] [2017] FCCA 1884.
The ACT asserts the Electronic Transactions Act 1999 (ET Act) does not apply as the ACT is not a Commonwealth authority and its role managing claims under the SRC Act is not the duty of an office for the purposes of s 74 of the SRC Act. Furthermore, relying on Palmer v Commissioner of State Taxation (WA) (Palmer),[14] the ACT contends the reconsideration decision is not a transaction to which the ET Act applies as the parties are not transacting and there is no over-arching business context. The ACT submits even if the ET Act is applicable, it ought not be applied over the Evidence Act and, even if it is applied, under s 9 and s 14 of the ET Act, the evidence establishes Ms Bebek was given the email on 20 April 2022.
[14] [1976] HCA 61; 136 CLR 406.
In consideration of this, the ACT maintains the 60 day period in which Ms Bebek could make an application for review of the reconsideration decision commenced on 20 April 2022. As her application was lodged on 21 July 2022, it was out of time and, without grant of an extension of time, it is not valid and it cannot proceed.
In Ms Bebek’s submission, the Evidence Act and the AAT Act are not relevant to determination of these issues. She asserts the ET Act applies to electronic communications of the kind EML allegedly sent on 20 April 2022, noting the SRC Act is not excluded under the Electronic Transactions Regulations 2020 (ET Regulations). Ms Bebek argues, under s 14A of the ET Act, the time of receipt of an electronic communication is the time when it is capable of being retrieved by the addressee at the designated addressee and evidence sufficient to establish the relevant facts is required.
Ms Bebek asserts the evidence does not establish the email on 20 April 2022 was sent to her private email on that day and she rejects the presumption it was. In her submission, the 20 April 2022 email was not fit for service and it was not sent by EML as a registered email in respect of which, without manual intervention, a delivery receipt would have been generated, capable of certifying delivery to Ms Bebek. In Ms Bebek’s submission a receipt of that kind would confirm the presumption in s 14A(2) of the ET Act had been satisfied and notice of the reconsideration decision had been served on Ms Bebek for the purposes of s 63 of the SRC Act. Mr McCarthy contends Ms Bebek’s evidence stands contrary to the presumption and the date on which the notice was capable of being retrieved was 15 June 2022.
On this basis, Ms Bebek contends her application on 21 July 2022 is within the 60 day prescribed period, which commenced on 15 June 2022, and there is no cause for her to apply for the grant of an extension of time.
Consideration
There are difficulties with the submissions of each party.
Relevance of the AAT Act
Ms Bebek’s submission the AAT Act is not relevant must be rejected. The dispute whether Ms Bebek’s application to the Tribunal for review of the reconsideration decision is outside the prescribed period turns on when the reconsideration decision was given to Ms Bebek. This is to be determined under and for the purposes of s 29 of the AAT Act.
Section 29 is the starting point in the calculation of time when applying the period prescribed for the purposes of making an application to the Tribunal for review. The following sections are of present relevance:
(1) An application to the Tribunal for a review of a decision:
…
(d) if the terms of the decision were recorded in writing and set out in a document that was given to the applicant or the decision is deemed to be made by reason of the operation of subsection 25(5) or (5A)—shall be lodged with the Tribunal within the prescribed time.
Note: Paragraph 33(1)(c) provides that the Tribunal is not bound by the rules of evidence but may inform itself on any matter in such manner as it thinks appropriate.
…
Prescribed time for making applications—general
(2) Subject to subsection (3), the prescribed time for the purposes of paragraph (1)(d) is the period commencing on the day on which the decision is made and ending on the twenty‑eighth day after:
(a) if the decision sets out the findings on material questions of fact and the reasons for the decision—the day on which a document setting out the terms of the decision is given to the applicant; or
…
(7) The Tribunal may, upon application in writing by 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.
Importantly, s 29(2) is modified by s 65(4) of the SRC Act:
Subsection 29(2) of the Act has effect as if the reference to “the twenty‑eighth day” (first occurring) were a reference to “the sixtieth day”.
Thus it can be seen, the prescribed period commences on the day on which the reconsideration decision was made, 20 April 2022, and it ends on the sixtieth day after the day on which a document setting out the terms of the decision is given to Ms Bebek.
Requirements for the giving of documents to a person are set out in s 68 of the AAT Act, in particular:
(2) A document that is required or permitted by this Act or another enactment to be given to a person for the purposes of a proceeding before the Tribunal must be given to the person in accordance with:
(a) any direction under section 18B; or
(b) regulations made under this Act or the other enactment.
There is a question whether the phrase for the purposes of a proceeding before the Tribunal is sufficiently broad to include the giving of a document setting out the terms of a decision under s 29(2)(a). It is noted the word proceeding is given particular meaning in s 3 of the AAT Act:
proceeding, in relation to the Tribunal, includes:
(a) an application to the Tribunal for review of a decision; and
…
(f) any other application to the Tribunal under this Act or any other Act; and
(g) … and
(h) an incidental application to the Tribunal made in the course of, or in connection with, an application or proposed application, or a matter, referred to in a preceding paragraph.
If s 68(2) applies, the time at which the document is given to the person is to be determined under the Administrative Appeals Tribunal Regulations 2015 (AAT Regulations). Were that to be so, regs 17 and 18 would relevantly apply:
(1) For subsection 68(2) of the Act, this section prescribes the manner in which a document is to be given to a person for the purposes of a proceeding before the Tribunal.
Note: This section does not apply to the extent to which the Act or another enactment specifies how a document is to be given to a person for the purposes of a proceeding before the Tribunal (see subsection 68(3) of the Act).
(2) A document is to be given to the person:
(a) …; or
(b) in accordance with subsections (3) to (7) as applicable.
Giving documents to a person with address for documents
(3) If a person has an address for documents, a document may be given to the person by:
…
(c) sending the document to a DX address, fax number, email address or other electronic address included in the person’s address for documents.
…
18 Time an electronic communication is taken to be given to a person
For the purposes of paragraph 17(3)(c), a document given to a person by means of an electronic communication is taken to have been given on the day the electronic communication was dispatched.
Under these regulations, proof of dispatch to a nominated address is sufficient to establish when an electronic communication, including an email, is given to a person.
It is not clear, however, if these provisions of the AAT Act and the AAT Regulations apply for the purposes of determining when the reconsideration decision was given to Ms Bebek. There is a question whether the reference to giving the decision in s 29(2)(a) of the AAT Act can properly be construed as for the purposes of a proceeding under s 68(2).
On the one hand, the date on which a document setting out the reasons for the decision is given to a prospective applicant is a relevant fact when determining the validity of an application. Determination of that fact is for the purposes of a proceeding before the Tribunal, noting the word proceeding is broadly defined to include an application in connection with a prospective application. On the other hand, it is the giving of the document, not the date on which the giving occurs, which preconditions operation of s 68(2) and, where the document is required to be given or served by operation and for the purposes of another enactment, the giving or service is not for the purposes of proceedings in the Tribunal.
The reconsideration decision was made under s 62(1) of the SRC Act. By definition in s 60(1) it is a reviewable decision in respect of which s 63 applies:
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.
As can be seen, the notice which must be served includes a statement of the person’s right to apply to the Tribunal for review of the decision. It may be argued the service or giving of this statement is for the purposes of a proceeding before the Tribunal. If that is correct, for the purposes of s 29(2) of the AAT Act, the date on which the notice including the statement was given to the person would be determined under s 68(2) and regs 17 and 18, where proof of dispatch of an electronic communication would be determinative.
This issue has not been squarely raised or addressed by the parties. Consequently, I am reluctant to express a concluded view about it. For reasons that will appear, it is not necessary to do so as the evidence does not establish when the controversial email was dispatched and no different result would be obtained.
When is notice served or given?
The SRC Act does not specify or provide guidance on when a notice under s 63 is taken to be served.
In such circumstances, it is appropriate to refer to s 28A of the Acts Interpretation Act 1901 (Interpretation Act) to elicit the meaning of the phrase cause to be served:
(1) For the purposes of any Act that requires or permits a document to be served on a person, whether the expression “serve”, “give” or “send” or any other expression is used, then the document may be served:
(a) on a natural person:
(i) by delivering it to the person personally; or
(ii) by leaving it at, or by sending it by pre‑paid post to, the address of the place of residence or business of the person last known to the person serving the document; or
(b) on a body corporate—by leaving it at, or sending it by pre‑paid post to, the head office, a registered office or a principal office of the body corporate.
Note: The Electronic Transactions Act 1999 deals with giving information in writing by means of an electronic communication.
(2) Nothing in subsection (1):
(a) affects the operation of any other law of the Commonwealth, or any law of a State or Territory, that authorises the service of a document otherwise than as provided in that subsection; or
(b) affects the power of a court to authorise service of a document otherwise than as provided in that subsection.
As can be seen, the means by which a document may be served in the terms of s 28A(1) are not presently applicable. Nevertheless, quite clearly, the reference to the ET Act in the Notation following s 28A(1) is presently relevant as the giving of information in writing by means of an electronic communication would include the serving of the terms of and reasons for a decision by email.
Consequently, the time when an electronic communication is taken to be served on a person is subject to applicable provisions of the ET Act.
The objects of the ET Act are set out in s 3:
The object of this Act is to provide a regulatory framework that:
(a) recognises the importance of the information economy to the future economic and social prosperity of Australia; and
(b) facilitates the use of electronic transactions; and
(c) promotes business and community confidence in the use of electronic transactions; and
(d) enables business and the community to use electronic communications in their dealings with government.
[Emphasis added.]
The terms electronic communication and information are given meaning in s 5(1):
electronic communication means:
(a) a communication of information in the form of data, text or images by means of guided and/or unguided electromagnetic energy; or
(b) a communication of information in the form of speech by means of guided and/or unguided electromagnetic energy, where the speech is processed at its destination by an automated voice recognition system.
information means information in the form of data, text, images or speech.
Under s 9, the regulatory framework applies to the communication of written information in electronic form is required or permitted to be given under a law of the Commonwealth, relevantly:
(1) If, under a law of the Commonwealth, a person is required to give information in writing, that requirement is taken to have been met if the person gives the information by means of an electronic communication, where:
(a) in all cases—at the time the information was given, it was reasonable to expect that the information would be readily accessible so as to be useable for subsequent reference; and
(b) …; and
(c) …; and
(d) if the information is required to be given to a person who is neither a Commonwealth entity nor a person acting on behalf of a Commonwealth entity—the person to whom the information is required to be given consents to the information being given by way of electronic communication.
Permission to give information in writing
(2) If, under a law of the Commonwealth, a person is permitted to give information in writing, the person may give the information by means of an electronic communication, where:
(a) in all cases—at the time the information was given, it was reasonable to expect that the information would be readily accessible so as to be useable for subsequent reference; and
(b) …; and
(c) …; and
(d) if the information is permitted to be given to a person who is neither a Commonwealth entity nor a person acting on behalf of a Commonwealth entity—the person to whom the information is permitted to be given consents to the information being given by way of electronic communication.
Certain other laws not affected
(3) This section does not affect the operation of any other law of the Commonwealth that makes provision for or in relation to requiring or permitting information to be given, in accordance with particular information technology requirements:
(a) on a particular kind of data storage device; or
(b) by means of a particular kind of electronic communication.
Giving information
(4) This section applies to a requirement or permission to give information, whether the expression give, send or serve, or any other expression, is used.
(5) For the purposes of this section, giving information includes, but is not limited to, the following:
(a) making an application;
(b) making or lodging a claim;
(c) giving, sending or serving a notification;
(d) lodging a return;
(e) making a request;
(f) making a declaration;
(g) lodging or issuing a certificate;
(h) making, varying or cancelling an election;
(i) lodging an objection;
(j) giving a statement of reasons.
The time of dispatch and receipt of an electronic communication is subject to s 14 and s 14A:
14 Time of dispatch
(1) For the purposes of a law of the Commonwealth, unless otherwise agreed between the originator and the addressee of an electronic communication, the time of dispatch of the electronic communication is:
(a) the time when the electronic communication leaves an information system under the control of the originator or of the party who sent it on behalf of the originator; or
(b) if the electronic communication has not left an information system under the control of the originator or of the party who sent it on behalf of the originator—the time when the electronic communication is received by the addressee.
Note: Paragraph (b) would apply to a case where the parties exchange electronic communications through the same information system.
(2) Subsection (1) applies even though the place where the information system supporting an electronic address is located may be different from the place where the electronic communication is taken to have been dispatched under section 14B.
14A Time of receipt
(1) For the purposes of a law of the Commonwealth, unless otherwise agreed between the originator and the addressee of an electronic communication:
(a) the time of receipt of the electronic communication is the time when the electronic communication becomes capable of being retrieved by the addressee at an electronic address designated by the addressee; or
(b) the time of receipt of the electronic communication at another electronic address of the addressee is the time when both:
(i) the electronic communication has become capable of being retrieved by the addressee at that address; and
(ii) the addressee has become aware that the electronic communication has been sent to that address.
(2) For the purposes of subsection (1), unless otherwise agreed between the originator and the addressee of the electronic communication, it is to be assumed that the electronic communication is capable of being retrieved by the addressee when it reaches the addressee’s electronic address.
(3) Subsection (1) applies even though the place where the information system supporting an electronic address is located may be different from the place where the electronic communication is taken to have been received under section 14B.
Under s 14()1)(a) or (b), the time of dispatch of an electronic communication to an addressee outside the information system controlled by the originator may be different to the time an electronic communication is dispatched to an addressee within the information system. The time of dispatch under s 14(1)(a) is the time when the electronic communication leaves the information system of the originator who sent it, whereas the time of dispatch under s 14(1)(b) is the time when the electronic communication is received by the addressee. Facts sufficient to prove the latter may not be sufficient to prove the former.
Ms Bebek’s nominated email address was outside the information system controlled by the ACT or EML and used by the person who was required to serve the reconsideration decision on her. Consequently, the time of dispatch of the controversial email is taken to be the time it leaves the information system controlled by the ACT or EML. Relevant factual findings are required to determine the time the controversial email was dispatched to Ms Bebek’s nominated email address.
As there is no dispute about Ms Bebek’s nominated email address for communications with the ACT in respect of her compensation claim, the time of receipt is that applying under s 14A(1)(a), namely when the electronic communication becomes capable of being retrieved by the addressee. The ET Act does not provide guidance about the scope or meaning of the phrase capable of being retrieved. This was considered in Russell v Minister for Home Affairs (Russell),[15] in which the Full Court said at [20]:
[20] … The question is not merely when the electronic communication becomes capable of being retrieved by the addressee, but when it becomes capable of being retrieved at an electronic address designated by the addressee.
[15] [2019] FCAFC 110.
In Russell’s case, the electronic communication was not capable of being retrieved because the pdf file accompanying the email was too large to be delivered and it was not received at the nominated address. This construction was adopted by the Tribunal in Flahive and Comcare (Flahive),[16] in which the Tribunal accepted Mr Flahive’s evidence he received the electronic communication, an email, but he was unable to open an attachment to the email purportedly containing notice of a reviewable decision in that case. Little turned on this, however, as the Tribunal determined notice of the reviewable decision was served by post.[17]
[16] [2020] AATA 3044 at [51]-[54].
[17] Ibid at [41].
I note the Court in Russell’s case rejected Ms Russell’s argument an electronic communication becomes capable of being retrieved by an addressee when the electronic communication comes within the information system of the recipient organisation (the Tribunal in that case). The Court said at [22]:
Two propositions stand in the way of acceptance of that argument. The first, as we have noted, is the explicit unmet predicate of s 14A(1)(a) that the communication be received at the designated address. That arises from the word “retrieved...at an electronic address”, which indicates that it must actually have arrived at that address, Secondly, the subsection makes no reference to an “information system”. That is a term defined in s 5 of the [ET Act]. Receipt of a message within an information system would no doubt extend the scope for receipt beyond the electronic address specified. However, Parliament chose not to user that term in s 14A(1)(a). By contrast, the defined term does appear in s 14(3). In such circumstances we would not conclude that s 14A(1)(a) extends the concept of receipt to receipt within an information system.
Importantly, the determinative issue in Russell turned on the time of receipt: in order to exercise her review rights, Ms Russell was required to lodge an application for review within a prescribed time.
In Ms Bebek’s case, the ACT asserts the issue is one of service, not receipt, to which s 14A of the ET Act does not apply.
This is not correct. The word served in s 63 of the SRC Act and the word given in s 29(2)(a) of the AAT Act are not synonymous with and involved more than dispatch of the subject notice or decision. These are words of service or conveyance that must be construed in their statutory setting. A construction that is confined to dispatch, or to the time of dispatch more particularly, interprets too narrowly what is required for a notice to be served under s 63 of the SRC Act or for a decision to be given for the purposes of s 29(2)(a) of the AAT Act.
Interpretation of these words in a statutory context has a long history which it is not necessary to discuss in detail for present purposes. The conception given expression in s 28A of the Interpretation Act is not confined to dispatch of or sending the particular document, but it extends to delivery, albeit deemed delivery to a particular address. Sections 160, 161 and 163 of the Evidence Act contain a similar conception, albeit where receipt is deemed to occur once a specified time has elapsed.
When s 14 and 14A of the ET Act are considered, a similar conception clearly appears, albeit cast in terms of dispatch and receipt. For notice to be served by electronic communication under s 63 of the SRC Act the following factual questions arise:
(a)Has the claimant consented to electronic communication of information?
(b)Has the claimant designated an electronic address for electronic communication?
(c)Is the designated electronic address outside the information system controlled or used by the decision-maker?
(d)Was an electronic communication sent to the claimant’s designated electronic address?
(e)When did the electronic communication leave the information system controlled or used by the decision-maker?
(f)When was the electronic communication delivered to the claimant’s designated electronic address?
(g)Was the electronic communication capable of being retrieved by the claimant at the designated electronic address?
It should be noted the answer to the last question may turn on the assumption set out in s 14A(2) whereby the electronic communication may be assumed to be capable of being retrieved once it reaches the claimant’s designated electronic address.
Which Act applies?
The ACT asserts matter is to be determined by reference to relevant provisions of the Evidence Act. Ms Bebek argues it is to be determined by reference to relevant provisions of the ET Act.
The ACT’s submission must be rejected.
The Evidence Act and the ET Act serve different purposes. It is not a matter of choosing which applies in a case of the present kind. The regulatory framework established by the ET Act applies to electronic communication of notices and decisions under the SRC Act. When proof of facts is in issue, under s 4(1) of the Evidence Act, the laws of evidence would apply if the Tribunal is a ‘federal court’, but it is not and the rules of evidence do not apply.[18] While the sections of the Evidence Act given extended operation under s 5 might be applicable in Tribunal proceedings,[19] the operation of s 161 in respect of electronic communications is not extended and it does not apply in Tribunal proceedings. Even though this does not apply in its terms, as Flick and Perry JJ said in Sullivan v Civil Aviation Safety Authority[20] at [97]:
The procedural flexibility afforded to an administrative tribunal freed from the rules of evidence does not absolve it from the obligation to make findings of fact based upon material which is logically probative in which the rules of evidence provide a guide.
[18] Danagher v Child Support Registrar [2014] FCA 1408 at [37]-[38].
[19] Wagner v National Disability Insurance Agency [2020] AATA 1775 at [12].
[20] [2014] FCAFC 93.
At this point, it is necessary to deal with two submissions made by the ACT in respect of the applicability of the ET Act. The ACT asserts there is doubt whether the ACT is a ‘Commonwealth entity’ to which the ET Act applies, and there is doubt whether a reviewable decision (including the reconsideration decision) is a ‘transaction’ to which the ET Act applies.
Commonwealth entity
The term Commonwealth entity is given definition in s 5(1) of the ET Act and means:
(a) a Minister; or
(b) an officer or employee of the Commonwealth; or
(c) a person who holds or performs the duties of an office under a law of the Commonwealth; or
(d) an authority of the Commonwealth; or
(e) an employee of an authority of the Commonwealth.
Under s 4A(1) of the SRC Act, the responsible Minister may declare the ACT is a Commonwealth authority for the purposes of the SRC Act. This was done with effect from 1 July 1994: Safety, Rehabilitation and Compensation Act 1988 – Notice of Declaration (Notice No. ACT1 of 1994) (1994 Declaration). Even though the 1994 Declaration has been amended a number of times, Item 1 is presently in effect:
For the purposes of subsection 4A(1) of the Act, the Australian Capital Territory is declared to be a Commonwealth authority.
Consequently, the ACT is a Commonwealth authority for the purposes of the SRC Act and the ET Act.
Lest there be any doubt about this and the applicability of the ET Act, a further declaration was made by the Minister under s 4(14)(a) on 18 April 2016 in respect of the principal officer of the ACT - Safety, Rehabilitation and Compensation (Principal Officer of the ACT) Declaration 2016 (2016 Declaration):
5 Principal officer of the ACT
I declare that the Head of Service is to be taken to be the principal officer of the Australian Capital Territory for the purposes of the SRC Act.
6 Repeal
Item 4 of the Safety, Rehabilitation and Compensation Act 1988 – Notice of Declaration – Notice No. ACT1 of 1994 (F2009B00133) is repealed.
Note: Item 4 of the 1994 notice declared the Commissioner for Public Administration as the
principal officer of the Australian Capital Territory.
This is significant because the ACT is a licensee under Part VIII of the SRC Act with licence to manage claims made by its employees under s 108B, where the consequences of the authorisation are set out in s 108C. Significantly, under s 108F, as a licensee, the ACT exercises powers under the SRC Act in performance of functions conferred by s 108E. It is in this regard, the principal officer has power, under s 108H, to delegate any or all of the ACT’s powers and functions as a licenced authority under the SRC Act to an officer of, or a person employed by the ACT. Consistently with this, under s 11 of the SRC Act, the ACT is a relevant authority which bears liability to pay compensation, in such amounts as are determined, under the SRC Act.
The ACT’s assertion of doubt about the status of the ACT as a Commonwealth entity is not well made and its submission on this point is not accepted.
The ACT is a Commonwealth entity for the purposes of the SRC Act and the ET Act.
Transaction
The ACT’s submission of doubt that a reviewable decision is a ‘transaction’ to which the ET Act applies is misconceived and it cannot be accepted.
Even if the proposition a reviewable decision is not a contract, agreement or other arrangement is correct, the proposition is not to the point of the present issue: the definition of transaction in s 5(1) of the ET Act is not determinative of the scope of the regulatory framework the ET Act establishes or the kinds of electronic communication or information (see definitions in s 5(1)), and the requirement to give information (see the simplified outline in s 4), to which the ET Act applies. The principle that may be drawn from Palmer’s case is not applicable.
The scope and operation of the ET Act is not confined to transactions, rather s 9 applies to the giving of information within its terms. As can be seen in s 9(5), the phrase giving information is defined inclusively to include giving, sending or serving a notification and giving a statement of reasons. There is no room for doubt that this would include notice of a reviewable decision made under s 62 of the SRC Act where it is required to be served on a person under s 63 of the SRC Act or given to a person for the purposes of s 29(2) of the AAT Act.
When the reconsideration decision was given
In order to determine when the reconsideration decision was served on and given to Ms Bebek, it is necessary to return to the question of whether provisions of the Evidence Act or the ET Act relevantly apply.
The ACT’s reliance on Swanton is misplaced as that case turned on the giving of notice by post. The presumption Tracey J referred to, having regard to the operation of s 160(1) and s 163 of the Evidence Act, assisted proof of facts relating to the ordinary course of the post for the purposes of s 29 of the Interpretation Act.[21] Swanton is not authority relevant to the determination of facts relating to electronic communication of notice.
[21] Swanton at [14]-[17].
The ACT’s assertion that Singh is authority for use of a computer printout to prove and email and its attachment was sent on a certain day does not advance the matter. Perry J clearly explained that, unlike the Court, the Tribunal is not bound by the rules of evidence.[22] Her Honour accepted the computer printout was admissible under s 71 of the Evidence Act despite its hearsay character and noted the definition of electronic communication is that contained in s 5(1) of the ET Act. In the result, Perry J found the rebuttable presumption in s 161 of the Evidence Act was not contraindicated by probative evidence for the reasons she set out in [52] and the presumption assisted proof of facts for the purposes of s 66(2) of the Migration Act 1958.
[22] Singh at [45], citing Kirby J in Re Minister for Immigration and Multicultural Affairs; ex parte Epeabaka [2001] HCA 10 at [52].
Ultimately, Ms Bebek’s case turns on its particular facts relevant to s 14 and s 14A of the ET Act.
There is no dispute Ms Bebek consented to the electronic communication of information about her compensation claim. She designated an electronic address for this purpose. For privacy reasons it is not appropriate to set out that address in full. It is <m…[email protected]>. This electronic address appears in the following form in the email Ms Bebek received from her Rehabilitation Case Manager on 15 June 2022[23]: Mirjana Mirjana <m…[email protected]>.
[23] Exhibit D, Attachment B.
The email that was purportedly sent to Ms Bebek’s designated electronic address on 20 April 2022 in Exhibit A includes the following information:
From: Recon <[email protected]>
Date: Wednesday, 20 April 2022 12:57 PM
To: Mirjana Mirjana
Cc: ACTG
Subject: Reconsideration of own motion
Attachments: Reconsideration of own motion.pdf
A record of this email is included in text form in Exhibit H. Ms Bebek’s email address in the record is ‘Mirjana Mirjana’ <m…[email protected]>. What is to be made of this difference, if anything, is unclear. There is no evidence of when the email left the information system controlled by the ACT or EML. The ACT asserts the sending of the email and time of dispatch is established by evidence the email was received by ACTG, an internal EML email address to which it was copied. There are two difficulties with this assertion. Firstly, it does not prove the email was correctly addressed to Ms Bebek’s designated electronic address, although it might have been. Secondly, it does not establish when the email left the information system controlled by the ACT or EML, if at all. There is not sufficient evidence on which to safely draw any such inference.
It is not sufficient to rely on other email communications which were sent and received at other times without apparent difficulty. The occurrence of malfunctions, glitches or interruptions to service in digital communications is a matter of common knowledge. It is for this reason, where certainty of dispatch and delivery of electronic communication is required, verifiable certification mechanisms are commonly used, such as delivery or read receipts for example. No such evidence has been adduced in this case. Without proof of dispatch sufficient to meet the threshold in s 14(1)(a), no such finding can be made.
There is no evidence the email reached or was delivered to Ms Bebek’s designated electronic address. Ms Bebek’s sworn evidence is to the contrary.
Without evidence of delivery, or evidence the 20 April 2022 email reached her designated email address, there is no sound basis on which to find the email was capable of being retrieved by Ms Bebek at that address.
The factual basis which essentially preconditions the assumption in s 14A(2) is not made out and the assumption does not arise.
That being so, for the purposes of s 63 of the SRC Act, I am not reasonably satisfied, and it is not established, notice of the reconsideration decision was served on Ms Bebek on 20 April 2022. On the present materials, service did not occur until 15 June 2022. I so find.
For the purposes of s 29(2)(a) of the AAT Act, the evidence does not establish and I am unable to find Ms Bebek was given the reconsideration decision on 20 April 2022. The evidence establishes she was given the reconsideration decision on 15 June 2022.
Conclusion
The prescribed period in which Ms Bebek was entitled to lodge an application for review of the reconsideration decision commenced on the day the reconsideration decision was made it ended 60 days after the decision was given to her on 15 June 2022.
This means the application for review Ms Bebek lodged on 21 July 2022 was within the prescribed period. No extension of time is required. The application is valid and sufficient to enliven the Tribunal’s jurisdiction. Henceforth, the application will proceed in the usual manner.
77. I certify that the preceding 76 (seventy-six) paragraphs are a true copy of the reasons for the decision herein of Mr S. Webb, Member.
.............[SGD]...............
Associate
Dated: 30 September 2022
Date(s) of hearing: 26 August 2022 Date final submissions received
7 September 2022
Solicitor for Applicant:
Mr William McCarthy, Bradley Allen Love Lawyers
Solicitor for Respondent:
Mr Ron Moss, HWL Ebsworth Lawyers
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