Colquhoun and DOF Management Australia Pty Ltd (Compensation)
[2020] AATA 4629
•18 November 2020
Colquhoun and DOF Management Australia Pty Ltd (Compensation) [2020] AATA 4629 (18 November 2020)
Division:GENERAL DIVISION
File Number(s): 2020/2890
Re:Robert Colquhoun
APPLICANT
AndDOF Management Australia Pty Ltd
RESPONDENT
DECISION
Tribunal:Deputy President Boyle
Date:18 November 2020
Place:Perth
The application is dismissed under s 42A(4) of the Administrative Appeals Tribunal Act1975 (Cth).
....................................[SGD].................................
Deputy President Boyle
CATCHWORDS
PRACTICE AND PROCEDURE – interlocutory application – dismissal for lack of jurisdiction – decision not a “reviewable decision” – identifying the decision under review – compensation – reconsideration – claim to be taken to be disallowed – extension of time to request reconsideration – application dismissed
LEGISLATION
Administrative Appeals Tribunal Act 1975 (Cth) – s 42A(4)
Seafarers Rehabilitation and Compensation Act 1992 (Cth) – ss 31, 63, 63(2), 63(4), 73, 73(2), 73(2)(a), 73(6), 76, 76(1), 78, 78(1), 78(3), 78(3)(b), 78(6), 88, 103
CASES
Abrahams v Comcare [2006] FCA 1829
Beecher and Telstra Corporation Limited [1994] AATA 6
Carson and Comcare [2011] AATA 103
Comcare v Smith [1977] FCA 140
Lees v Comcare (1999) 56 ALD 84
Shi v Migration Agents Registration Authority [2007] FCAFC 59
SECONDARY MATERIALS
Peter Sutherland and John Oman Ballard, Annotated Safety, Rehabilitation and Compensation Act 1988 (Federation Press, 11th ed, 2018) – para. [62.03]
REASONS FOR DECISION
Deputy President Boyle
18 November 2020
THE APPLICATION
This is an interlocutory application by the Respondent for dismissal of the substantive application. Although the Respondent does not identify the statutory provision pursuant to which it makes the present application, the Tribunal assumes that to be s 42A(4) of the Administrative Appeals Tribunal Act 1975 (Cth) (the AAT Act)
THE SUBSTANTIVE APPLICATION
By an application lodged in the Tribunal on 14 May 2020, the Applicant (apparently) seeks the review of 11 decisions which the Applicant says were made in relation to claims for compensation under the Seafarers Rehabilitation and Compensation Act 1992 (Cth)
(the SRC Act)BACKGROUND
It is not disputed that the Applicant was employed by the Respondent. The Applicant claims that he sustained an injury (allergic reaction to a yellow fever vaccination) in January 2017.
On or about 11 December 2018 the Applicant submitted a claim for compensation in respect of the allergic reaction.[1] That claim appears not to have been made on a form approved by the Seafarers Rehabilitation and Compensation Authority (the Authority) established by
s 103 of the SRC Act.[1] T4.
On or about 20 February 2019 the Respondent accepted liability for medical expenses only under the SRC Act[2] and thereafter has paid for the Applicant’s medical expenses.
[2] T7.
On or about 6 April 2019 the Applicant submitted a further claim in a form approved by the Authority.[3] By paragraph 15 of that claim form, the Applicant identified that he was, or would be, claiming for lost wages, medical expenses and travel expenses for attending medical examination/rehabilitation.
[3] T5.
The Respondent made no determination in respect of the claim submitted on 6 April 2019. Insofar as claims were made in that application, by operation of ss 73(2)(a) and 73(6), they were taken to have been disallowed on or about 18 April 2019. The Applicant did not request a reconsideration of the determination(s) taken to have been made.
On or about 15 July 2019 the Applicant lodged an application in the Tribunal for the review of the deemed disallowance of the Applicant’s claim of 6 April 2019.[4]
[4] Application 2019/4187.
By order made 10 October 2019 the Tribunal dismissed application 2019/4187 under
s 42A(4) of the AAT Act on the basis that the decision of which the Applicant sought review was not a reviewable decision. Pursuant to s 88 of the SRC Act, the Tribunal only has jurisdiction to review “reviewable decisions” which are defined in s 76 of the SRC Act as decisions under s 78 of the SRC Act. Relevantly to that application, a decision under s 78 of the SRC Act is a decision made by the employer, either on its own initiative (s 78(1)), or following a request for reconsideration of a determination by a claimant (ss 78(3) and (6)). As no request for reconsideration had been made by the Applicant and there had been no reconsideration on its own initiative by the Respondent of the determination taken to have been made disallowing the claim, there was no reviewable decision.On or about 19 November 2019 the Applicant’s lawyers provided a letter to the Respondent’s lawyers enclosing 11 Comcare Claim for time off work forms, one for each of the 11 periods for which compensation was claimed. The final paragraph of that letter read:
I confirm that s 73 of the [SRC Act] applies and that your client has 12 days in which to determine each of these claims.
By letter dated 4 December 2019 the Respondent’s lawyers responded to the Applicant’s lawyer’s letter of 19 November 2019 and the 11 enclosed claim forms, advising that:
(a)the claim forms stipulated that they were to be used for claims against the Commonwealth or the ACT Government and had to be submitted to the claimant’s current employer or to Comcare and that the Applicant was not employed by the Commonwealth of the ACT Government; and
(b)in any event, the documents submitted did not constitute a claim for the purposes of s 63 of the SRC Act.
and that, therefore, no determination would be made by the Respondent.
By letter dated 4 December 2019 the Applicant’s lawyers disputed the Respondent’s lawyer’s letter of the same date and advised that they considered the claims submitted with their letter of 19 November 2019 to have been claims properly made in accordance with
s 73 of the SRC Act and that, should the Respondent fail to provide a determination within the prescribed time, pursuant to s 73(6) of the SRC Act, the Respondent will be taken to have disallowed each of the 11 claims.
Following that letter there was correspondence between the parties’ lawyers in effect confirming their respective previously stated positions. By their letter dated
13 December 2019 the Applicant’s lawyers stated that unless a determination of the claims was received by 18 December 2019 “section 73(6) of the [SRC Act] will be invoked and a reconsideration of determination will be sought.”
By letter dated 28 January 2020 to the Respondent’s lawyers, the Applicant’s lawyers advised:
Given that your client is yet to issue its determination(s) with respect to our client’s claim for weekly compensation benefits within the time prescribed by the legislation, pursuant to s 73(6) of the [SRC Act], we consider that the “employer is taken to have made a decision, at the end of that period, disallowing the claim(s)”.
In such circumstance, and given that your client is now taken to have issued its determination disallowing each claim, I request a reconsideration of the “deemed” determination(s) pursuant to s 78 of the [SRC Act].
The next correspondence from the Respondent’s lawyers was a letter dated 9 March 2020. That letter:
·
stated that s 63(2) of the SRC Act required claims to be given to employers
“in accordance with a form approved by the Authority”;
·stated that the substantial compliance provisions of s 63(4) require substantial compliance with the information required;
·stated that, as the correspondence of 19 November 2019 and the enclosures did not constitute a valid claim, there was no determination to be made;
·stated that the Applicant had already made a claim for compensation under the SRC Act by way of the requisite claim form on 6 April 2019 and by way of Western Australian workers compensation claim form 2B which were not accepted;
·stated that the time for requesting reconsideration had expired; and
·noted that if an application were to be made to this Tribunal, the Respondent would submit that the Tribunal did not have jurisdiction to determine such claim.
The next relevant piece of correspondence before the Tribunal is the Applicant’s lawyer’s letter dated 14 May 2020 which referred to their letters dated 24 January 2020 (which is not before the Tribunal) and 25 February 2020 and advised that “we will now attend to filing an application at the AA [sic]”. On 14 May 2020 the Applicant lodged the substantive application in the Tribunal.
THE LEGISLATION
Section 42A(4) of the AAT Act provides:
The Tribunal may dismiss an application without proceeding to review the decision if the Tribunal is satisfied that the decision is not reviewable by the Tribunal.
Section 63 of the SRC Act relevantly provides:
Claims for compensation
(1)Compensation is not payable to a person under this Act unless a claim for compensation is made by or on behalf of the person under this section.
(2)A claim must be made by giving the employer:
(a) a written claim, in accordance with a form approved by the Authority for the purposes of this paragraph; and
(b) except where the claim is for compensation under section 28, 29 or 30--a certificate by a legally qualified medical practitioner in accordance with the form approved by the Authority for the purposes of this paragraph; and
(c) a notice setting out:
(i) the name and address of any other employer who has been given, or to whom it is intended to give, a claim under paragraph (2)(a) in relation to the injury; and
(ii) the name and address of any other employer whose employment is believed to have materially contributed to the injury.
(3)If a written claim (other than a claim for compensation under section 28, 29 or 30) is given to a person under paragraph (2)(a) and the claim is not accompanied by a certificate of the kind referred to in paragraph (2)(b), the claim is taken not to have been made until such a certificate is given to that employer.
(4)Strict compliance with an approved form referred to in subsection (2) is not required and substantial compliance is sufficient.
Section 73 of the SRC Act relevantly provides:
(1)This section applies to a claim for compensation relating to:
(a) an injury resulting in an employee being incapacitated for work; or
(b) the loss of, or damage to, property used by an employee; or
(c) the cost of medical treatment for an injury suffered by an employee.
(2)The employee's employer must determine its liability in relation to the claim by the latest of the following times:
(a) the end of the period of 12 days after the day on which the employer receives the claim;
(b) …
…
(6)If the employer has not determined the claim by the end of the period allowed by this section, the employer is taken to have made a decision, at the end of that period, disallowing the claim.
Section 88 of the SRC Act relevantly provides:
(1)Application may be made to the AAT by a claimant for review of a reviewable decision.
Section 76 of the SRC Act defines a reviewable decision as follows:
"reviewable decision" means a decision made under section 78.
Section 78 of the SRC Act relevantly provides:
(1)An employer may, on the employer's own initiative, reconsider a determination made by the employer, whether or not a proceeding has been instituted or completed under this Part in respect of a reviewable decision made in relation to that determination.
(2)A claimant may, by notice in writing given to an employer, request the employer to reconsider a determination made by the employer.
(3)A request for reconsideration of a determination must:
(a) set out the reasons for the request; and
(b) be given to the employer within 30 days after the day on which the determination first came to the notice of the claimant, or within such further period (if any) as the employer, either before or after the end of that 30 day period, allows.
(4)On receipt of a request, the employer must for the purposes of this section:
(a) if the employer is a party to a collective agreement or a pre-reform certified agreement that relates to industry panels--arrange for an industry panel; or
(b) in any other case--arrange with Comcare for a Comcare officer;
to assist the employer in reconsidering the determination under subsection (5).
(5)After making arrangements under paragraph (4)(a) or (b), the employer must, with the assistance of the industry panel or the Comcare officer, reconsider the determination.
(6)After an employer reconsiders a determination, the employer must make a decision affirming or revoking the determination or varying the determination in such manner as the employer thinks fit.
THE HEARING
The Respondent’s interlocutory application was heard on 21 September 2020.
The Applicant was represented by Mr A Stewart and the Respondent was represented by Ms L Grey. By a direction made on 22 October 2020 the Tribunal sought submissions from the parties on a specific issue which had not been addressed by the parties (see [37] below). Submissions on that specific issue were received from the Respondent on 29 October 2020 and from the Applicant on 5 November 2020.
THE PARTIES SUBMISSIONS
The Respondent’s submissions
The Respondent puts forward three grounds for dismissal of the substantive application.
Ground 1 (Submissions paras 15-17)
The correspondence provided on 19 November 2019 and the enclosed eleven “Claim for Time off work forms” did not constitute a valid claim for compensation, given:
1.the documentation did not provide the required information pursuant to s 63 of the SRC Act;
2.section 63(4) requires compliance or substantial compliance with the information required by the form approved by the Authority; and
3.the Applicant was neither a Commonwealth nor ACT Government employee.
Therefore, no claim had been made and there was no requirement for the Respondent to make any determination or reconsideration in respect of the alleged claims. There is no reviewable decision and therefore the Tribunal has no jurisdiction.
Ground 2 (Submissions paras 18-20)
If the Applicant wishes to argue that the previously lodged claim for compensation dated
6 April 2019 should be considered by the Tribunal with the eleven “Claim for Time off work forms” and, as a combined document, should be considered to overcome any jurisdictional issue, the Respondent says the following:1.the claim form lodged on 6 April 2019 claimed for time lost but did not specify what time had been lost. The Applicant was still working when he lodged the claim form and hence did not have any time lost when that claim form was lodged;
2.the subsequent 11 “Claim for Time off work forms” constitute a new and separate claim for a separate entitlement of compensation namely weekly payments;
3.the Applicant cannot overcome the failure to provide the information he is required to provide by s 63(4) of the SRC Act by using a claim form which did not particularise a claim for weekly payments; and
4.in any event, the Applicant cannot overcome the failure to provide the information he is required to provide by s 63(4) of the SRC Act by using the claim form dated
6 April 2019 which has already been considered and dismissed in separate proceedings for a want of jurisdiction.If there was no valid claim form lodged, there is no reviewable decision to be considered and therefore the Tribunal has no jurisdiction.
Ground 3 (Submissions para 21)
If the Tribunal finds that the correspondence provided on 19 November 2019 and the enclosed 11 “Claim for Time off work forms” as a combined document constitutes a valid claim for compensation (which is strongly denied by the Respondent):
1.the Respondent considers that the claim was deemed disputed on
2 December 2019;2.therefore, a request for reconsideration was due on 1 January 2020;
3.the Applicant did not request a reconsideration until 28 January 2020 which was out of time; and
4. therefore, the is no valid reviewable decision and the Tribunal does not have jurisdiction.
The Applicant’s submissions
The Applicant refers to a number of authorities. He submits that the principles set out by the Full Court in Lees v Comcare[5] (Lees v Comcare) relating to substantial compliance defeat the Respondent’s argument in that regard and the Respondent’s “contention that the completion of a previous claim form (on 6 April 20I9) somehow renders the subsequent claim for weekly payments nugatory”.[6]
[5] (1999) 56 ALD 84.
[6] Para. 8 of the Applicant’s submissions
In relation to the proper construction of ss 63(2) and 63(4) of the SRC Act, the Applicant argues that “a broad, generous and practical approach should be taken to the question of notice” citing Commonwealth of Australia v Ford[7] at [9], Carson and Comcare[8] (Carson and Comcare) at [24] (wrong citation provided) and Abrahams v Comcare[9] at [18].
[7] [1986] FCA 94.
[8] [2011] AATA 103.
[9] [2006] FCA 1829.
The general legal propositions put forward by the Applicant on the proper constructions to be given to the relevant statutory provisions are largely not contentious and, although there was no formal response to the Applicant’s submissions, the Tribunal understands the Respondent not to contest those general principles which are to the effect that the initial claim need not specify the type of compensation claimed and that the claims should not be interpreted in a narrow or technical manner. Workers compensation legislation is to be interpreted in light of the beneficial purpose of the legislation, namely, to provide compensation to injured workers.
These principles are reduced to the proposition that:[10]
In essence, the provisions requiring a worker to provide "notice" of the claim are in place to ensure sufficient information is given to the decision maker to allow them to properly respond and issue a determination. The question of notice is not to be approached in a technical way and substance should always prevail over form.
[10] Applicant’s submission para. 41.
The approach taken by the Respondent has, contrary to the above principles, been “highly technical” and “disingenuous”. The 11 forms by which the claims the subject of the substantive application were made were Comcare forms for claiming time off work and these, coupled with the previous claim made by the Applicant which, in respect of medical expenses, was accepted by the Respondent, together with the claim form submitted on
6 April 2019 which was in the form approved by the Authority (see [6] above) result in the claims the subject of the substantive application being valid claims under the SRC Act.
CONSIDERATION
As noted above, the Respondent raises three grounds for the dismissal of the substantive application. The substance of Ground 1 is that there was no claim which could form the basis of a reviewable decision because the 11 claims made on 19 November 2019 were not in the required form and/or did not provide the information required for a valid claim under s 63 of the SRC Act. Grounds 2 operates if the Applicant argues, and presumably the Tribunal finds, that the required information was provided in the claim made on 6 April 2019 and that the claims made on 19 November 2019 need to be read in conjunction with the information provided in the 6 April 2019 claim form resulting in a substantial compliance with the requirements of s 63(2) for the purposes of s 63(4) of the SRC Act. Ground 3 comes into play only if Grounds 1 and 2 are found not to be made out, in other words, if the Tribunal accepts that the documents submitted on 19 November 2019 constituted a valid claim under s 63(2) of the SRC Act, or if the Tribunal accepts that the documents submitted on
19 November 2019 in conjunction with the information set out in the claim submitted on
6 April 2019 constituted a valid claim under the SRC Act.
The Applicant’s submissions largely sought to address Grounds 1 and 2. However, even if the Applicant successfully rebuts grounds 1 and 2, he will still need to be successful in rebutting Ground 3.
In considering the parties’ written submissions made prior to the hearing and to the parties’ submissions made at the hearing, a further potential issue was identified by the Tribunal upon which the Tribunal sought the parties’ submissions. By direction made on
22 October 2020 the Tribunal sought submissions on the following issue, which, for the purposes of these reasons, the Tribunal will refer to as the Supplementary Issue:The Supplementary Issue
Ground 3 set out in paragraph 21 of the Respondent’s submissions is:
1. The respondent considers that the claim was deemed disputed on
2 December 2019;2. Therefore, a request for reconsideration was due on 1 January 2020;
3. The applicant did not request a reconsideration until 28 January 2020 which was out of time;
4. Therefore, the [sic] is no valid decision and the Tribunal does not have jurisdiction in relation to this application.
Section 78(3)(b) of the SRC Act provides for the request for reconsideration to be made “within 30 days…or within such further period (if any) as the employer, either before or after the end of that 30 day period, allows”.
A refusal to extend time for the making of a request for reconsideration is a decision under s 78 of the SRC Act and therefore a reviewable decision as defined in s 76 (Re Beecher and Telstra Corporation Limited [1994] AATA 6; Comcare v Smith [1977] FCA 140; see Sutherland and Ballard 11th edition para. [62.03].
Three issues therefore arise:
1. Has the Applicant made a request, implied or express, for an extension of time for requesting a reconsideration;
2. Standing in the shoes of the decision maker, exercising “all of the powers and discretions that are conferred by any enactment on the person who made the decision the subject of the Tribunal’s review…” (Shi v Migration Agents Registration Authority [2007] FCAFC 59 per Nicholson J at [10]) does the Tribunal have the power to, and if it does, should it exercise the discretion to extend time for the request for reconsideration of the determination;
3. Irrespective of the answers to 1 and 2, can the Tribunal extend time for a request for reconsideration in this application, i.e. is it within the scope of this application.
As noted at [23] above, the parties duly provided submissions on the Supplementary Issue.
Ground 1
The Applicant’s observation that the Respondent has taken a technical approach to the provisions of the SRC Act is a fair one. The Applicant in his submissions refers to the following passage in Carson and Comcare wherein Deputy President Jarvis noted at [24]:
I think that a claim would be sufficient if it identifies the particular type(s) of compensation that is sought, and it would not be necessary for the claimant to identify the particular sections in the SRC Act that provide for the type(s) of compensation being claimed. Further, I consider that claims for compensation should not be interpreted in a technical or narrow manner; to do so would be inconsistent with the beneficial nature of the SRC Act, and with Comcare’s responsibility under s 72(a) to be “guided by equity from a good conscience and the substantial merits of the case, without regard to technicalities”. I am mindful also of the comments of Madgwick J in Abrahams v Comcare [2006] FCA 1829; (2006) 93 ALD 147 at [18] when he formulated propositions relating to the construction of documents purporting to be a notice of injury under s 53 of the SRC Act. These propositions included the following:
“2. In deciding what injury it is, as to which a claimant has given notice,
the purposes of giving notice must be borne in mind. These are to enable Comcare, with the aid of the relevant employing agency, to determine whether the claim should be met.”The intent of the Applicant’s lawyer’s letter of 19 November 2019 and the documents enclosed therewith are clear. The letter refers to s 31 of the SRC Act and to it being a claim for compensation for time off work. The letter must be read in the context of there already having been extensive correspondence between the Applicant and the Respondent and a claim for the injury having previously been made by the Applicant and accepted by the Respondent. The Respondent clearly had all of the information necessary for it to make a determination as to liability and it was plain on the face of the documents what the Applicant was claiming and the legal basis for that claim.
In paragraph 15 of its submissions, the Respondent argues that the letter dated
19 November 2019 and the 11 enclosed claims for time off work did not “provide the required information pursuant to s 63” which, as the Tribunal understands the Respondent’s argument, is the information required by the form approved by the Authority which the Respondent sets out in subparagraphs (i) to (xxxv) of paragraph 8 of the Respondent’s submissions. There are fundamental problems with that argument. The first, and most obvious, is that insofar as such information was necessary, the Respondent already had that information having received the claim[11] on 6 April 2019 which was made on the Authority approved claim form. However, even before it received that claim form inApril 2019, the Respondent clearly had the information that it needed to assess its liability to pay compensation. It had already done that and accepted liability for the injury under the SRC Act in February 2019 (see [5] above). The fact that that acceptance of liability was at that time for medical expenses only is irrelevant. In this case, the information that was needed to assess liability under the SRC Act for payment for time off work was primarily the information upon which the Respondent had already assessed itself as being liable to medical expenses in February 2019. The only additional information needed to assess liability for time off work was provided by the 11 claim forms enclosed with the 19 November 2019 letter.[11] T5.
Further, the 11 December 2018 claim[12] that was accepted by the Respondent in February 2019, was not in a “form approved by the Authority”, or at least there is no evidence before the Tribunal that that claim form had been approved by the Authority. Materially, it certainly did not contain the information which, in paragraph 8 of its submissions, the Respondent claims is required by approved “Seafarers Claim Form”, as defined in that paragraph.
[12] T4.
The second fundamental problem with the Respondent’s argument is that it ignores the express provisions of the Authority approved Claim Form[13] submitted by the Applicant on
6 April 2019. Despite the repeated assertion by the Respondent that the Applicant had not made a claim for time off work, by which it means a claim that was in proper form “approved by the Authority”, the Applicant had made such a claim. Part 15 of the 6 April 2019 claim submitted by the Applicant was, relevantly, as follows:[13] T5.
15. For what are you claiming (tick all that apply)
Note: This question does limit your entitlement to make further claims in relation to the injury or illness. You do not need to complete another claim form if you wish to make a claim for below benefits in the future.
☐Lost wages resulting from an incapacity to work
☐Medical and related expenses
☐Travel expenses attending medical examination/rehabilitation (only round trips of 50 km or more are reimbursable)
☐…
(Emphasis added.)
The Applicant had ticked the first three boxes.
Accordingly, there was a claim in a form approved by the Authority and the Applicant had, as the claim form itself advised, not needed to complete a new claim form to claim the
“lost wages” after the claim form was submitted. The submission of the 11 claims for lost time with the letter of 19 November 2019 is precisely the procedure for making a claim for lost wages envisaged by the authorised claim form submitted on 6 April 2019.
In paragraph 3 of Ground 1 the Respondent makes the observation that the Applicant is “neither a Commonwealth or [sic] ACT Government employee”. Presumably this is a reference to the claim forms (which were Comcare claim forms) submitted under cover of the letter of 19 November 2019 containing a notation under the heading “Claim for Time off work form” that they are to be used by employees who “continue to be employed by Commonwealth or ACT Government”. Although it is not stated, the Tribunal assumes that the Respondent argues that that statement somehow renders the claim not a claim for the purposes of the SRC Act. There is no validity to that argument.
Firstly, it is a pedantic point and adopts precisely the “technical or narrow” approach which should not be taken in assessing a claim for compensation under the SRC Act (see [39] above). The Respondent clearly understood the purpose of the letter of 19 November 2019 and the enclosed, completed claim forms which, coupled with the previous claims made by the Applicant, including the claim form of 6 April 2019, provided the Respondent with all of the information necessary for it to make an assessment of its liability to pay compensation. The fact that those 11 claims were made on Comcare forms might be explained by the fact that, according to the Tribunal’s enquiry of the Authority, there is no equivalent time off work claim form approved by the Authority. It is not clear what form the Respondent says the Applicant should have used to claim compensation for lost wages, noting that the Authority approved form of 6 April 2019[14] allowed for and did claim lost wages without specifying the periods for which claims were, or would be, made. That detail, as is the standard practice in workers’ compensation claims, is often provided afterwards as envisaged by part 15 of the approved claim form. Obviously that must be the case for medical expenses and lost wages which arise after the submission of the substantive claim form. The form of the claim specifically allows for that.
[14] T5.
Secondly, it is disingenuous of the Respondent to seek to argue that a claim submitted on a Comcare form is somehow ineffective when the Respondent itself accepted liability under the SRC Act for this injury in February 2019 based on a claim made on a form[15] which was not, on its face at least, approved by the Authority, and which did not contain the information identified in paragraph 8 of the Respondent’s submissions as being “required” for a valid claim.
[15] T4.
The procedure envisaged by the approved Authority claim form, followed by the Applicant in this case, of submitting specific claims for time off work without the “need to complete another claim form… in the future” (see [43] above) is also reflective of the standard practice in the industry as described by the Full Court in the oft-cited Lees v Comcare at [30] and [31].
The Tribunal finds that the submission of the 11 claim forms under cover of the letter of
19 November 2019 was a claim for the purposes of s 63(4) of the SRC Act.
Ground 1 fails.
Ground 2
The basis of Ground 2 is that the claim constituted by the form submitted on 6 April 2019 was, by operation of ss 73(2) and (6) of the SRC Act, deemed to have been disallowed 12 days later, namely on 18 April 2019 and that the time for requesting reconsideration of that deemed disallowance expired 30 days after that, namely on 18 May 2019 (s 78(3) of the SRC Act).
For the reasons set out in [39] to [50] above, the Tribunal finds that a claim for compensation for lost wages was made on 19 November 2019 through the Applicant’s lawyer’s letter of that date and the 11 claim forms enclosed therewith. It is that claim which is, apparently, the subject of the substantive application.
In paragraph 19 of its submissions the Respondent submits that in the event of such a finding, the claim as made on 19 November 2019 does not contain the information which the Respondent says is necessary for a valid claim. The Respondent firstly says that the Applicant cannot overcome any jurisdictional issue caused by the necessary (according to the Respondent) information being missing (presumably from the 19 November 2019 letter and 11 claim forms) because the 6 April 2019 claim “did not specify what time had been lost”. In subparagraph 1 of paragraph 19 of those submissions, the Respondent seems to answer its own point by noting that that would not have been possible because the Applicant “was still working …and hence did not have any time loss when the claim form was lodged”. That is hardly a unique circumstance when a claim is submitted. The Respondent’s argument, as with Ground 1, ignores the standard way that compensation claims are made, which would be well known to the Respondent’s insurer which is running this matter in the Respondent’s name, and, more materially, ignores the specific wording of part 15 of the Authority approved claim form of 6 April 2019 which says that if, having submitted the claim form on 6 April 2019, the Applicant wanted “to make further claims in relation to the injury or illness. You do not need to complete another claim form if you wish to make a claim for below benefits in the future”. As noted above, that is exactly what the Applicant has done. The claim submitted on 6 April 2019 contains the information which the Respondent says is required for a valid claim given that it is in the form approved by the Authority and was meant to be, and expressed to be, read in conjunction with future claims for any of the nominated benefits, which did included lost wages.
Subparagraphs 2, 3 and 4 of paragraph 19 of the Respondent’s submissions in effect repeat the proposition that, notwithstanding the specific wording of the approved claim form,
the claim submitted on 19 November 2019 should not be read in light of or supplemented by the information contained in the 6 April 2019 claim. For the reasons set out above that argument is rejected.
Subparagraph 4 of paragraph 19 of the Respondent’s submissions also makes the claim that reliance cannot be placed on information contained in the 6 April 2019 claim form because “the claim form dated 6 April 2019…has already been considered and dismissed in separate proceedings for want of jurisdiction”. If that is a reference to this Tribunal dismissing application 2019/4187 (see [9] above) then that submission by the Respondent misrepresents the basis upon which that application to the Tribunal was dismissed.
The Applicant’s application 2019/4187 was dismissed under s 42A(4) of the AAT Act on the basis that the decision sought to be reviewed was not a reviewable decision because the Applicant had not requested a reconsideration of the deemed rejection of the claim and no reconsideration had been made. The claim of 6 April 2019 has not, as asserted by the Respondent, “been considered and dismissed” by the Tribunal previously.
Ground 2 fails.
Ground 3
As noted earlier, although the Applicant’s submissions were programmed to be and were received after the Respondent’s submissions, it being the Respondent’s application for dismissal, the Applicant’s submissions did not address, at least specifically,
the Respondent’s Ground 3.The sequence of events upon which Ground 3 is based is not contentious. Even if it is accepted, as the Tribunal has found, that a claim for compensation was made on
19 November 2019, that claim was, by operation of ss 73(2) and (6) of the SRC Act, taken to have been disallowed 12 days after it was made, namely on 2 December 2019. This was in fact stated to be the case in the Applicant’s lawyer’s letter of 19 November 2019.Having correctly identified in their letter of 19 November 2019 s 73 of the SRC Act and the requirement of that section for a determination within 12 days, the Applicant’s lawyers in their letter dated 4 December 2019 to the Respondent’s lawyers referred to expecting a “determination within the next 12 days”. It is not clear why that comment was made given that the time for the Respondent to make a determination, correctly identified in the Applicant’s lawyer’s letter of 19 November 2019, had expired two days earlier.
Notwithstanding that the Applicant’s lawyers were aware that a determination had to be made by 2 December 2019, and presumably that by operation of s 73(6) of the SRC Act the claim was to be taken to have been disallowed as at that date if a determination had not been made, it was not until their letter dated 28 January 2020 (see [14] above) that the Applicant’s lawyers wrote to the Respondent’s lawyers stating that by operation of s 73(6) of the SRC Act the claim was taken to have been disallowed and requesting a “reconsideration of the ‘deemed’ determination(s) pursuant to s 78…”. The request for a redetermination under s 78 “must… be given to the employer within 30 days after the day on which the determination first came to the notice of the claimant…” (s 78(3)(b); see [22] above). In the present case the determination was taken to have been made, as the Applicant’s lawyer’s identified, under s 73(6) 12 days after the claim was made, namely on 2 December 2019. Any request for a reconsideration under s 78 of the SRC Act, therefore, had to be made within 30 days of that date, namely, by 1 January 2020. The request for reconsideration was clearly out of time.
By letter dated 25 February 2020 the Applicant’s lawyers asked the Respondent’s lawyers when they anticipated the reconsideration being provided. The next material letter before the Tribunal was that from the Respondent’s lawyers dated 9 March 2020, which, in effect, reiterated the Respondent’s lawyer’s previously stated position that they did not consider the Applicant’s lawyer’s correspondence of 19 November 2019 to be a valid claim under the SRC Act. That letter also referred to the claim submitted on 6 April 2019 which “were not accepted”. The letter goes on to assert that:
The time for requesting a reconsideration of those determination(s) has since expired. We note that a failure to provide a request for reconsideration within the specified time may result in the claimant losing their right to request reconsideration of the original determination.
In the context in which that comment is made in that letter, a reader could reasonably take the reference to those determination(s) to be a reference to the determination(s) of the claims made in the 6 April 2019 claim (which again were taken to have been made given the Respondent’s failure to make a determination; see [6] and [7] above). Irrespective of that context, the comment obviously also had application to the claims made in the
19 November 2019 correspondence, and the deemed disallowance of those claims.
The end result is that the Applicant did not request reconsideration of the “deemed” disallowance of the claims made on 19 November 2020. This was, as it must be,
conceded by the Applicant’s counsel at the hearing.[16] The Respondent was therefore under no obligation under s 78 of the SRC Act to reconsider the determinations taken to have been made on 2 December 2019 and to make a decision on the redetermination.
There was no decision made, and no obligation to make a decision, under s 78.
There is therefore no reviewable decision as that term is defined in s 76(1) of the SRC Act. The Tribunal therefore does not have jurisdiction.
[16] Transcript at 16.
Ground 3 is made out.
The Supplementary Issue
Issue 1: Has the Applicant made a request, implied or express, for an extension of time for requesting a reconsideration
The fact that no reconsideration decision was made does not mean that there is not a reviewable decision. As the Tribunal noted in identifying the Supplementary Issue and seeking submissions from the parties (see [37] above), a refusal to extend time for the making of a request for reconsideration is a decision under s 78 of the SRC Act and, therefore, a reviewable decision as defined in s 76 (Beecher and Telstra Corporation Limited;[17] Comcare v Smith;[18] see Sutherland and Ballard[19] at para. [62.03]).
[17] [1994] AATA 6.
[18] [1977] FCA 140.
[19] Peter Sutherland and John Oman Ballard, Annotated Safety, Rehabilitation and Compensation Act 1988 (Federation Press, 11th ed, 2018).
The obvious difficulty that the Applicant has in establishing that there is such a reviewable decision, is the lack of any request by the Applicant for an extension of time under s 78(3)(b) of the SRC Act for the making of a request for reconsideration. The Respondent’s written submissions on the Supplementary Issue point out that “the correspondence between the parties clearly shows that the applicant did note make any written request for an extension of time”. The Applicant’s submissions “accept that he did not expressly request an extension of time for requesting a reconsideration” but submit that “In the circumstances he did not believe that was necessary”.[20]
[20] Applicant’s submissions para. 8.
The Applicant argues[21] that “[h]aving regard to the correspondence passing between the parties in respect of the issue, the Applicant submits that the request for an extension of time was implied”. In support of this the Applicant summarises the correspondence between the parties’ respective lawyers which is set out above in [10] to [16]. The Applicant submits that the Applicant’s lawyer’s correspondence was “for the purposes of resolving the issue between the parties and attempting to persuade the Respondent that it should issue a formal determination in accordance with the SRC Act. That way, whether the Applicant agreed with the Respondent’s decision or not, the matter could be progressed to the Tribunal for determination”.
[21] Para. 9.
The difficulty with the above statement is that the Applicant’s lawyers were aware, or even if they were not, they should have been aware, that a determination had to be made by the Respondent within 12 days of the claims being made on 19 November 2019
(their letter of that date specifically points that out (see [10] above)) and that a failure to make a determination within that time results in the claim(s) being taken to have been disallowed (their letter dated 4 December 2019 specifically points that out (see [12] above)).
The Applicant’s lawyers were well aware of the operation of the SRC Act and the timeframes in that act. They made the choice, they say because they were trying to resolve issues through correspondence with the Respondent’s lawyers, not to act within the timeframes set out in the SRC Act.The second problem with the Applicant’s above statement is that “a formal determination” is not needed so “the matter could be progressed to the Tribunal for determination”. The whole purpose of s 73(6) is to cover the situation where the employer fails to make a determination within the time limited. The determination is “taken” to have been made so that the claim process can move on to the next stage notwithstanding the employer’s recalcitrance. That next stage, for the purposes of a matter to eventually come before the Tribunal, is the making of a request for reconsideration under s 78 of the SRC Act.
Paragraph 21 of the Applicant’s submission on the Supplementary Issue is as follows:
In light of the Respondent’s refusal to issue any form of determination, it could not be said that the “deemed” determination was of any fixed date such that it was difficult for the Applicant to ascertain precisely when the time to request a reconsideration of determination would expire.
That statement is wrong. It ignores the straight-forward operation of ss 73(2)(a), 73(6) and 78(3)(b) of the SRC Act. In the absence of a determination by the employer, the claim is taken to be disallowed 12 days after it is made (ss 73(2) and (6)) and the 30 day period for requesting a reconsideration of the determination taken to have been made starts to run. The statement also overlooks the fact that the Applicant’s lawyers in their correspondence to the Respondent’s lawyers referred to the operation of these provisions.
The submission is them made at paragraph 23 of the Applicant’s submissions on the Supplementary Issue that:
In this context, the Applicant submits that it is implied within the letter from Slater & Gordon Lawyers to Sparke Helmore lawyers dated 28 January 2020 that the Applicant sought an extension of time in which to request the reconsideration of a “deemed” determination, that being a determination which in substance did not exist.
The Tribunal does not accept that proposition. Apart from that letter asking for a reconsideration, there is nothing in the text of the letter or the context of the prior correspondence between the parties which would imply that that letter is requesting an extension of time. Further, it should be remembered that the Applicant was being represented by experienced compensation lawyers, who had extensively referred to relevant provisions of the SRC Act in their previous correspondence. It should not be left to the recipient of correspondence from an experienced, specialist law firm to infer such a request.
The other thing which should be noted is that it was pointed out in the Respondent’s lawyer’s letter of 9 March 2020 (see [15] above) that the time for requesting a reconsideration had expired, and it was stated that if the Applicant were to make an application to the Tribunal, the Respondent would argue lack of jurisdiction on that basis. Notwithstanding that,
the Applicant’s lawyers still did not request an extension of time to seek a reconsideration nor did they respond to that letter asserting that a request for an extension of time had been made or implied in any previous correspondence. Section 78(3)(b) of the SRC Act specifies that the time for requesting a reconsideration can be extended “either before or after the end of the 30 day period”. The Applicant’s lawyers could have sought an extension of the time to make a request for reconsideration after they received the Respondent’s lawyer’s letter of 9 March 2020 and any decision in respect of that request for an extension of time would have been a reviewable decision. They chose not to request that extension but rather chose to lodge the present application in the Tribunal in circumstances where it had been pointed out to them that the request for reconsideration had been made out of time and that that fact went to the Tribunal’s jurisdiction.
The Tribunal does not accept that any request, implied or express, was made by the Applicant for an extension of time for the making of a request for reconsideration.
There was, therefore, no decision which might be considered a reviewable decision as found in the cases referred to in the direction for further submissions set out in [37] above.
Issue 2: Does the Tribunal have the power to, and if it does, should it exercise the discretion to extend time for the request for reconsideration of the determination
The thrust of the Respondent’s submissions seems to be that the Applicant has never made a request for an extension of time within which to seek a reconsideration under s 78(3) and that is not the decision of which the Applicant seeks review in these proceedings.
The Applicant submits that the principles enunciated in Shi v Migration Agents Registration Authority[22] (Shi) allow the Tribunal to address the extension of time issue as it “stands in the shoes of the decision maker” and can exercise the discretion under s 78(3)(b) of the SRC Act to extend time for the request for reconsideration.
[22] [2007] FCAFC 59.
The Applicant cites [10] of the decision of Nicholson J in Shi which establishes that the Tribunal can exercise all of the powers of the original decision maker, but does say[23] that:
…Nicholson J goes on to reiterate that the Tribunal is nonetheless “obliged to address the same question as the primary decision-maker”
[23] Para. 36.
The Applicant submits that:
… in this case, had the reconsideration of determination been undertaken, the decision maker would have been required to determine both the claim for weekly compensation benefits and the issue concerning the fact the reconsideration was made out of time.
…
In all of the circumstances therefore, the Applicant submits that the Tribunal, in exercising the powers and discretions of the original decision maker, has the power to allow the Applicant further time beyond that of 30 days in which to request the reconsideration of determination. That power being conferred on the decision maker and therefore the Tribunal under s 78(3)(b) of the SRC Act.
The Applicant submits that the explanation for the delay in seeking a reconsideration was that the Applicant’s lawyers were seeking to resolve the matters, that there is no prejudice to the Respondent in extending time for requesting a reconsideration and that it would be fair and equitable to allow an extension.
While it is the case that the Tribunal stands in the shoes of the original decision maker and can exercise all of the powers of that original decision maker, that must be limited to the exercise of the powers that would be relevant to the reviewable decision that is before the Tribunal. In the present case, as the Respondent points out, it is not completely clear of what decision the Applicant seeks review. The application to the Tribunal[24] in the section in which the decision is to be identified, sets out, over two pages, the correspondence that passed between the Applicant’s lawyers and the Respondent’s lawyers with a summary of the contents each letter. The application form then, in the section headed “Reason for Application”, says as follows:
·That they incorrectly determined the worker has failed to make a valid claim pursuant to s63 of the Act, and in doing so they have misinterpreted s 63(4) of the Act.
·That they incorrectly determined the worker has already made a “claim” for weekly compensation benefits in respect of the periods claimed.
·That the Respondent has failed to issue the relevant determination(s) within the time allowed by s 73(2)(a) of the Act such that each claim is “taken to have been disallowed”.
·In turn, the 60 day period in which to issue a reconsideration of each determination pursuant to s 79 has now elapsed which in accordance with
s 79(6) results in the employer having been taken to have disallowed each claim.·Accordingly, the provisions of the Act have been complied with and there is jurisdiction to hear the dispute.
[24] T1.
From the above the Tribunal understands that, as far as the Applicant is concerned,
the dispute is with the Respondent’s rejection of the Applicant’s claims submitted on
19 November 2019. There is no specific identification of the Applicant seeking review of a decision of the Respondent not to reconsider the determination taken to have been made under s 73(6) of the SRC Act or referencing a request of an extension of time to request reconsideration.
The Tribunal can only stand in the shoes of the original decision maker and exercise the powers and discretions that that original decision maker has in respect of the decision of which review is sought. The power that the Applicant now asks the Tribunal to exercise may well be a power that the original decision maker had if he had been asked to make a decision on extending time for requesting a reconsideration, or even if he had decided to exercise that discretion on his own initiative, however, it is not a decision that he ever made or was asked to make. What the Applicant is effectively asking the Tribunal to do is to exercise a discretion in relation to a decision that was never made or sought to be made by the Applicant. As was noted by Nicholson J in Shi “the Tribunal is… ‘obliged to address the same question as the primary decision-maker’” (see [79] above). The Tribunal’s jurisdiction is limited to reviewing the reviewable decision in relation to which the substantive application is made. The Applicant is effectively asking the Tribunal to review a different decision to that made by the original-decision maker which the Applicant identifies in the substantive application.
The second issue is answered in the negative.
Issue 3: Irrespective of the answers to 1 and 2, can the Tribunal extend time for a request for reconsideration in this application, i.e. is it within the scope of this application.
Issue 3 has largely been answered in the consideration of Issue 2 above. For the response set out above the Tribunal finds that the power that the Applicant seeks be exercised in its favour is not within the scope of the decision made by the Respondent or identified by the Applicant in the substantive application.
DECISION
The end result of the above is that Ground 3 is made out. As the request for reconsideration was not made within the time required under the SRC Act, that Respondent was therefore under no obligation to reconsider the determinations taken to have been made.
There is, as a result, no reviewable decision and the application must be dismissed under s 42A(4) of the AAT Act.
I certify that the preceding 87 (eighty-seven) paragraphs are a true copy of the reasons for the decision herein of Deputy President Boyle
..................................[SGD]...................................
Associate
Dated: 18 November 2020
Date(s) of hearing: 21 September 2020 Date final submissions received: 5 November 2020 Counsel for the Applicant: Mr A Stewart Solicitors for the Applicant: Slater & Gordon Counsel for the Respondent: Ms L Grey Solicitors for the Respondent: Sparke Helmore Lawyers
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