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

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.
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.
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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2018] AATA 4864
Decision Date: 18 December 2018

CaseChat Overview and Summary

This matter concerned an application by Mr. Bradley to the Administrative Appeals Tribunal (AAT) for review of a decision by TNT Australia. The dispute arose from TNT's failure to issue a determination in respect of Mr. Bradley's workers' compensation claim under the *Safety, Rehabilitation and Compensation Act 1988* (SRC Act).

The primary legal issue before the AAT was whether it had jurisdiction to hear Mr. Bradley's application. This required the Tribunal to determine whether TNT's failure to issue a determination, and the subsequent correspondence disputing this absence, constituted a "reviewable decision" as defined by the SRC Act, thereby enlivening the Tribunal's jurisdiction under section 64 of the SRC Act and section 43(1) of the *Administrative Appeals Tribunal Act 1975*.

The Tribunal reasoned that its jurisdiction is not general but is specifically conferred by statute. It held that, under the SRC Act, a "reviewable decision" only arises after an initial determination has been made and subsequently reconsidered under section 62. The Tribunal referred to *Comcare v Burton and Lees* and *Lees v Comcare* to establish that a three-tiered process is required: an initial determination, a reconsideration of that determination, and then an application to the AAT to review the reconsidered determination. As Mr. Bradley's claim had not progressed through this process to the point of a reconsidered determination, the Tribunal concluded that no reviewable decision was before it.

Consequently, the Tribunal found that its jurisdiction to hear Mr. Bradley's application was not enlivened. The Tribunal affirmed the decision under review, which was effectively the absence of a reviewable decision.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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.’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. 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 CONSIDERATIONMr 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.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.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; … .”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”.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.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. 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.DECISIONAs there is no reviewable decision before the Tribunal, the Tribunal’s jurisdiction to hear Mr Bradley’s application is not enlivened.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]……………………………………………….AssociateDated: 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