Bradley and TNT Australia (Compensation)

[2018] AATA 4864

Bradley and TNT Australia (Compensation) [2018] AATA 4864 (18 December 2018)

Division:GENERAL DIVISION

File Number(s):  2018/5553

Re:Albert Bradley

APPLICANT

AndTNT Australia

RESPONDENT

DECISION

Tribunal:Senior Member A. Nikolic AM CSC

Date:18 December 2018

Date of written reasons:        23 January 2019

Place:Melbourne

The Tribunal does not have jurisdiction to hear Mr Bradley’s application.

[sgd]........................................................................

Senior Member A. Nikolic AM CSC

COMPENSATION – no jurisdiction in absence of liability determination under s 14 of Safety, Rehabilitation and Compensation Act 1988 (Cth)

Legislation

Safety, Rehabilitation and Compensation Act 1988 (Cth)
Commonwealth Government Employees Act 1974 (Cth)

Cases

Negri v Secretary, Department of Social Services [2016] FCA 879
Comcare v Burton and Lees 157 ALR 522

Lees v Comcare (1999) 56 ALD 84 at 91

Secondary Materials

REASONS FOR DECISION

Senior Member A. Nikolic AM CSC

23 January 2019

INTRODUCTION

1. On 25 September 2018 Mr Albert Bradley applied to the Administrative Appeals Tribunal for review of a decision by the Respondent, TNT Australia Pty Ltd. (“TNT”). Mr Bradley disputed TNT’s unwillingness to issue a determination in respect of a workers’ compensation claim he submitted on 2 May 2018 (“the claim”).[1] He contends, through his solicitor, that TNT’s refusal to issue a determination in respect of his claim ‘is calculated to put the Self Insurer’s decision making beyond the review powers of the Administrative Appeals Tribunal and the Federal Court…, subverting the intent of both the Safety Rehabilitation and Compensation Act 1988, the Comcare scheme and the Administrative Appeals Tribunal itself.’[2]

   [1] Letter from Arnold Dallas McPherson Lawyers (ADML) to TNT dated 2 May 2018.

   [2] Letter from ADML to TNT dated 22 November 2018.

2. An interlocutory hearing to consider the question of jurisdiction was held on 18 December 2018. Mr Bradley was represented by Ms Debbie Lawn of Arnold Dallas McPherson Lawyers (“ADML”). The Respondent was represented by Mr Damian Clarke of Clarke Legal.

3. At the conclusion of the hearing the Tribunal decided it did not have jurisdiction in respect of Mr Bradley’s application and gave its reasons ex tempore. On 8 January 2019 the Applicant requested written reasons. These are the reasons requested, which accord with the requirements of s 43(2B) of the Administrative Appeals Tribunal Act 1975 (“AAT Act”). In providing these reasons, the Tribunal notes the decision of Bromberg J in Negri v Secretary, Department of Social Services [2016] FCA 879, which considered the extent to which the Tribunal could elaborate upon its oral reasons when producing written reasons. His Honour stated at [27]:

   ‘...As long as the reasoning remains consistent, there can be no objection to the provision of a more-elaborate exposition of the same reasoning that was orally explained. What is not permissible is altered or new reasoning. The Tribunal is not permitted to substantially divert from the reasoning upon which its decision was made, but is permitted to explain that reasoning differently and, in doing so, is required to address the matters specified in s 43(2B).’

   BACKGROUND

4. Mr Bradley states in his claim that his right ankle injury is a ‘reoccurrence, aggravation, acceleration, exacerbation, and/or deterioration’ of an injury that first occurred over 36 years ago, on 6 June 1982. It is desirable to set out the exchange of correspondence between the parties from May to September 2018 by way of background:

   (a)ADML submitted Mr Bradley’s claim to TNT via email on 2 May 2018, requesting completion of the ‘Employer to Complete’ section and that TNT forward the claim to Comcare within five days of receipt.[3]

   [3] Letter from ADML dated 2 May 2018.

   (b)TNT responded to ADML on 8 May 2018 denying liability for the claim.[4] TNT stated that the original injury (osteoarthritis) had been sustained in 1982 and invited ADML to submit the claim ‘directly with the relevant insurer.’

   (c)TNT sent further correspondence to Mr Bradley on 11 May 2018,[5] 15 May 2018,[6] and 24 May 2018, to establish additional details relating to his claim.[7]

   (d)On 25 May 2018 ADML advised TNT of the medical practitioners and specialists Mr Bradley had seen since his original right ankle injury on 6 June 1992.[8] ADML stated there ‘are no insurance companies who have provided cover and/or treatment in relation to the right ankle injury since 6 June 1982.’

   (e)On 6 July 2018 TNT wrote to ADML, following receipt of clinical notes from Mr Bradley’s treating practitioners and an Independent Medical Examination (IME) report by Dr Evan Romas. TNT advised that it was unable to determine Mr Bradley’s claim because the ‘periods stated as the date of injury fall outside of our current jurisdiction (SRC Act 1988).’[9]  TNT further advised that it had ‘forwarded the claim to CGU, the Victorian Worksafe Insurer for TNT at the time of the aggravation in 2006.’

   (f)On 3 August 2018 ADML wrote to TNT stating that it would treat TNT’s correspondence of 6 July 2018 ‘as a determination (decision)’ and requested a reconsideration of the decision pursuant to s 62 of the Safety Rehabilitation and Compensation Act 1988 (“the SRC Act”).

   (g)On 24 August 2018 TNT wrote to ADML in the following terms:

   I refer to your correspondence dated 3 August 2018 requesting a reconsideration of a letter dated 6 July 2018, issued by TNT Australia Pty Ltd (TNT).

   I note that this is a letter advising that TNT would not be able to issue a determination in respect of the workers compensation claim received from your client on 7 May 2018. TNT advised that the date of the injury was outside their current jurisdiction, being the SRC Act 1988.

   Therefore in the absence of a primary determination being issued, the reconsideration request dated 3 August 2018 is invalid.

   I note that TNT advised in their letter that the claim mentioned above, had been forwarded to CGU, who are the Victorian Worksafe insurer for TNT at the time of the alleged injury.[10]

   [4] Letter from TNT to ADML dated 8 May 2018.

   [5] Two letters from TNT to ADML dated 11 May 2018.

   [6] Letter from TNT to ADML dated 15 May 2018.

   [7] Letter from TNT to ADML dated 24 May 2018.

   [8] Letter from ADML to TNT dated 25 May 2018.

   [9] Letter from TNT to ADML dated 6 July 2018.

   [10] Letter from TNT to ADML dated 24 August 2018.

   THE LEGISLATION

5. The Respondent’s general liability to pay compensation is set out in a threshold provision at s 14 of the SRC Act. Acceptance of liability under s 14 may result in payment for medical expenses (s 16), incapacity payments (s 19), or permanent impairment and non-economic loss (ss 24 and 27).

6. A ‘determination’ results from the consideration of claims by Comcare or licenced corporations, which is defined at s 60(1) of the SRC Act as:

   "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, 29A, 30, 31, 34, 36, 37 or 39, under paragraph 114B(5)(a) or under Division 3 of Part X.

7. The Tribunal’s jurisdiction is limited by the interplay between the AAT Act and other legislation. Section 25 of the AAT Act relevantly provides:

   (1) An enactment may provide that applications may be made to the Tribunal:

   (a) for review of decisions made in the exercise of powers conferred by that enactment; or

   (b) for the review of decisions made in the exercise of powers conferred, or that may be conferred, by another enactment having effect under that enactment.

8. Section 64 of the SRC Act provides for applications to the Tribunal, but only in respect of a ‘reviewable decision’:

   (1) Application to the Administrative Appeals Tribunal for review of a reviewable decision may be made by:

   (a) the claimant; or

   (b) if the decision affects the Commonwealth – the Commonwealth; or

   (c) if the decision affects a Commonwealth authority – the Commonwealth authority; or

   (d) if the decision affects a corporation that holds a licence under Part VIII – the licensed corporation.

9. In relation to s 64(1)(d), TNT is a licensed corporation under Part VIII of the SRC Act, having become licensed with effect from 1 July 2008.[11]

   [11] >

   The expression ‘reviewable decision’ is defined in s 60(1) of the SRC Act as ‘a decision made under subsection 38(4) or section 62.’

10. Workers’ compensation claims are processed in accordance with Part V of the SRC Act. Part VI of the SRC Act provides for reconsideration and review of determinations. Section 61 requires a determining authority to notify claimants in writing after considering each claim for compensation under s 14, including the terms of the determination, the reasons for the determination and advice on the claimant’s rights of review.

11. Section 62 provides that a determining authority may, on its own motion or at the claimant’s request, reconsider a determination made under section 61. Pursuant to s 62(5), the person reconsidering the determination may make a decision affirming, revoking or varying the determination. Pursuant to s 63, notice of and the reasons for a reconsidered determination must be provided to the claimant in writing. It is at this point that a reconsidered determination becomes a ‘reviewable decision,’ enabling application to the Tribunal pursuant to s 64 of the SRC Act. Section 43(1) of the AAT Act enables the Tribunal to exercise all the powers and discretions conferred on decision-makers by the SRC Act.

    THE TRIBUNAL’S CONSIDERATION

12. Mr Bradley submits through his solicitor that TNT’s decision not to issue a determination in respect of his claim nevertheless enlivens the Tribunal’s jurisdiction. That submission is misconceived.

13. The Tribunal does not have a general jurisdiction like the courts and is not itself a source of jurisdiction. The Tribunal cannot, of its own motion, determine a claim under the SRC Act that has not previously been made, determined and reviewed by the primary decision-maker.

14. In Comcare v Burton and Lees,[12] the Federal Court considered the Tribunal’s jurisdiction in deciding matters that were not the immediate subject of a particular decision made reviewable under the SRC Act.  In allowing Comcare’s appeal, Finn J held at [1] that only decisions under particular provisions of the SRC Act are capable of giving rise to a ‘reviewable decision.’ His Honour reflected on the distinctive, particularised review process in the SRC Act that ‘provides the pathway to applications to the Tribunal.’ This process requires

    [12] [1998] FCA 1144; 157 ALR 522; 28 AAR 70; 50 ALD 846.

    …a three-tiered process of decision making:

    (i)          an initial “determination”, a term defined in s 60(1) of the SRC Act as   follows:

    “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;

    (ii)         a reconsideration of that determination by the person who made it (or a   delegate) undertaken on his or her own motion or at the request of (inter   alia) the claimant: s 62; the determination so reconsidered then becoming               what the Act in s 60 designates to be a “reviewable decision” ie –

    “a decision made under … section 62”;  and

    (iii)       an application to the Tribunal under s 64 which provides (inter alia):

    “64.     (1)        Application to the Administrative Appeals Tribunal for review   of a reviewable decision may be made by:
                         (a)       the claimant;  … .”

15. His Honour further noted:

    The obvious, but important, point to be made of this tiered process is that application can only be made to the Tribunal to review a decision made under the Act (a) if the decision itself was made under a section that can give rise to a s 60 “determination”; and (b) that decision has been reconsidered so as to constitute a s 62 “reviewable decision”.

16. In Lees v Comcare,[13] Wilcox, Branson and Tamberlin JJ stated at [32] and [39]:

    32. Pt VI of the Act…establishes a three tiered decision-making process: the original decision or determination to be made by an authorised person within Comcare or a licensed authority, a reconsidered determination to be made within the same authority as the original decision - but ordinarily by a fresh decision-maker, and a decision of the AAT reviewing the reconsidered determination.

    …

    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...

    [13] (1999) 56 ALD 84 at 91.

17. The Tribunal does not accept that the statutory test giving rise to the Tribunal’s jurisdiction has been met in this case. Although a claim for compensation has been lodged, the determination and reconsideration of Mr Bradley’s claim, as required by Part VI of the SRC Act, has not occurred. It is not the Tribunal’s role to act as the primary decision-maker in respect of workers’ compensation claims,[14] but to consider reviewable decisions within the meaning of the SRC Act consistent with the Tribunal’s powers under s 43(1) of the AAT Act. The correspondence between Mr Bradley and TNT disputing the absence of a determination does not result in a reviewable decision within the meaning of the SRC Act.

    [14] Re Brian Lawlor Automotive Pty Limited and Collector of Customs (1978) 1 ALD 167, per Brennan J at pp. 175-176.

18. The Tribunal notes from its discussions with the Respondent during the hearing that the Respondent intended issuing a determination to Mr Bradley in respect of his claim. The Tribunal has confirmed with Mr Bradley’s solicitor that a determination has already been issued. That enables Mr Bradley to consider the need for a reconsideration request and it may be that the Tribunal’s jurisdiction is enlivened at some future stage. But the absence of a liability determination when this matter was heard on 18 December 2018 precludes the Tribunal’s consideration of Mr Bradley’s application.

    DECISION

19. As there is no reviewable decision before the Tribunal, the Tribunal’s jurisdiction to hear Mr Bradley’s application is not enlivened.

20. The Tribunal affirms the decision under review.

I certify that the preceding 21 (twenty-one) paragraphs are a true copy of the reasons for the decision herein of Senior Member A. Nikolic AM CSC

[sgd]……………………………………………….
Associate

Dated: 23 January 2019

Date of hearing:	18 December 2018
Solicitors for the Applicant:	Ms Debbie Lawn, Arnold Dallas McPherson Lawyers
Solicitors for the Respondent:	Mr Damian Clarke, Clarke Legal