Comcare v Sassella

Case [2001] FCA 1514

FEDERAL COURT OF AUSTRALIA

Comcare v Sassella [2001] FCA 1514

COMCARE v MICHAEL J SASSELLA, JOY BROPHY
A53 of 2001

FINN J
CANBERRA
8 NOVEMBER 2001


IN THE FEDERAL COURT OF AUSTRALIA

AUSTRALIAN CAPITAL TERRITORY DISTRICT REGISTRY

A53 OF 2001

BETWEEN:

COMCARE
APPLICANT

AND:

MICHAEL J SASSELLA
FIRST RESPONDENT

JOY BROPHY
SECOND RESPONDENT

JUDGE:

FINN J

DATE OF ORDER:

8 NOVEMBER 2001

WHERE MADE:

CANBERRA

THE COURT ORDERS THAT:

1.The application be allowed.

2.The decision of the Administrative Appeals Tribunal dated 11 July 2001 be set aside.

THE COURT DECLARES:

1.The Administrative Appeals Tribunal did not have jurisdiction to review the decision found by it to have been made by Comcare.

2.The Administrative Appeals Tribunal did not have jurisdiction to hear and determine the application for review lodged by Ms Brophy on 15 March 2001.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.


IN THE FEDERAL COURT OF AUSTRALIA

AUSTRALIAN CAPITAL TERRITORY DISTRICT REGISTRY

A53 OF 2001

BETWEEN:

COMCARE
APPLICANT

AND:

MICHAEL J SASSELLA
FIRST RESPONDENT

JOY BROPHY
SECOND RESPONDENT

JUDGE:

FINN J

DATE:

8 NOVEMBER 2001

PLACE:

CANBERRA

REASONS FOR JUDGMENT

  1. An object of Comcare’s application under s 39B(1) and s 39B(1A) of the Judiciary Act 1903 for a review of a decision of the Administrative Appeals Tribunal (“the Tribunal”) is to ensure that the Tribunal had jurisdiction to hear and determine the application made to it by the second respondent, Joy Brophy, under the Safety, Rehabilitation and Compensation Act 1988 (Cth) (“the SRC Act”). The application had the potential to expose difficulties of no little complexity with this less than happily draughted statute. In the event, it can be dealt with in relatively simple fashion.

  2. At issue is whether, at the time at which Ms Brophy’s application to the Tribunal was made, a primary decision had been made by Ms Brophy’s previous employer (Qantas) under s 37 of the SRC Act which could be, and was, reviewed by Comare under s 38(4) of that Act, so providing a reviewable decision (see s 60(1)) that could enliven the Tribunal’s jurisdiction under s 64(1) of the Act.

    Background

  3. The factual background can be stated shortly.

  4. (1)       Ms Brophy sustained a back injury in a work related accident in 1993 in the course of her employment with Qantas.  After a report from the Commonwealth Rehabilitation Service, a return to work plan was formulated and Ms Brophy returned to work.  On 1 April 1997, Qantas terminated her employment.

  5. (2) On 9 September 1997, Ms Brophy’s solicitors requested that Qantas make a rehabilitation assessment under s 36 of the SRC Act. Qantas declined to do so, indicating by letter of 26 September 1997 that Ms Brophy had previously been assessed for rehabilitation; had completed the rehabilitation program; and, in consequence, her s 36 request had already been undertaken and completed.

  6. (3) On 27 October 1997, Ms Brophy sought reconsideration by Comcare of Qantas’s determination under s 38 of the SRC Act.…

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Details
AGLC
Comcare v Sassella [2001] FCA 1514
Case
[2001] FCA 1514
Decision Date

CaseChat Overview and Summary

In the case of Comcare v Sassella, the central dispute involved whether a primary decision made by Ms Brophy’s former employer, Qantas, under section 37 of the Social Security Act (SRC Act) had been reviewed by Comcare under section 38(4) of the same Act. This review was crucial to determining if the Tribunal had jurisdiction to hear Ms Brophy's application under section 64(1) of the SRC Act. The court was tasked with determining whether a decision by Qantas had indeed been made and communicated prior to Ms Brophy's application to the Tribunal.

The primary legal issue before the court was to ascertain if Qantas had made a decision under section 37 of the SRC Act, which could be reviewed by Comcare. The court needed to determine whether this decision was made and communicated to Ms Brophy before she lodged her application with the Tribunal. Specifically, the court had to interpret the statutory language of the SRC Act and the Administrative Appeals Tribunal Act 1975 to understand the requirements for a decision to be considered "made" and "communicated" under the relevant legislation. This involved examining whether Qantas's inaction constituted a refusal to make a decision, and if such inaction could be construed as a decision under the SRC Act.

The court reasoned that for a decision to be considered made and communicated, it must be manifest and final. This involves both a mental process leading to a conclusion and an overt act that gives finality to the conclusion. The court found that Qantas had indeed made a decision by its inaction, but the key issue was the timing of this decision. The court concluded that the decision was communicated on 20 March 2001, but found no express finding that the decision was made earlier than this date. Consequently, the court held that the decision was not made in time to provide the Tribunal with jurisdiction to hear Ms Brophy’s application, as the decision-making process had to be completed prior to her lodging the application with the Tribunal on 15 March 2001.

In light of the findings, the court ordered that the application be allowed, and the decision of the Administrative Appeals Tribunal dated 11 July 2001 be set aside. The court declared that the Administrative Appeals Tribunal did not have jurisdiction to review the decision found to have been made by Comcare and did not have jurisdiction to hear and determine Ms Brophy's application for review lodged on 15 March 2001.

Orders

Orders of the court

1. The application be allowed.

2. The decision of the Administrative Appeals Tribunal dated 11 July 2001 be set aside.

THE COURT DECLARES:

1. The Administrative Appeals Tribunal did not have jurisdiction to review the decision found by it to have been made by Comcare.

2. The Administrative Appeals Tribunal did not have jurisdiction to hear and determine the application for review lodged by Ms Brophy on 15 March 2001.

Background

Background to the litigation

At issue is whether, at the time at which Ms Brophy’s application to the Tribunal was made, a primary decision had been made by Ms Brophy’s previous employer (Qantas) under s 37 of the SRC Act which could be, and was, reviewed by Comare under s 38(4) of that Act, so providing a reviewable decision (see s 60(1)) that could enliven the Tribunal’s jurisdiction under s 64(1) of the Act.Background The factual background can be stated shortly. (1) Ms Brophy sustained a back injury in a work related accident in 1993 in the course of her employment with Qantas. After a report from the Commonwealth Rehabilitation Service, a return to work plan was formulated and Ms Brophy returned to work. On 1 April 1997, Qantas terminated her employment. (2) On 9 September 1997, Ms Brophy’s solicitors requested that Qantas make a rehabilitation assessment under s 36 of the SRC Act. Qantas declined to do so, indicating by letter of 26 September 1997 that Ms Brophy had previously been assessed for rehabilitation; had completed the rehabilitation program; and, in consequence, her s 36 request had already been undertaken and completed. (3) On 27 October 1997, Ms Brophy sought reconsideration by Comcare of Qantas’s determination under s 38 of the SRC Act. Comcare in turn determined that Ms Brophy should undergo a s 36 rehabilitation assessment. That assessment was undertaken by the Commonwealth Rehabilitation Service and was completed on 19 January 1999. (4) On 12 November 1999, Ms Brophy’s solicitors wrote to Qantas complaining of inaction by it on the assessment, a complaint reiterated on 12 April 2000. On 19 April 2000 Qantas replied, somewhat delphically, that it would be in a position to make its decision on whether a s 37 determination should be made. Further requests on Ms Brophy’s behalf made on 14 August 2000 and 31 October 2000 were met with like inaction by way of response from Qantas. (5) On 29 November 2000 Ms Brophy’s solicitors made a request to Comare under s 38(2) of the SRC Act requesting its review of the determination by Qantas not to implement the rehabilitation program recommended by the Commonwealth Rehabilitation Service. Comcare responded on 1 February in terms that (inter alia):“With respect to your contention, I do not consider that a determination has been made by QANTAS for the purposes of section 37 of the SRC Act. A refusal to make a decision requires an overt act to make a decision to refuse a request or application; not a mere failure to take any action. The full definition of “decision” in the AAT Act refers to such overt acts, that is, the actual decision to refuse to make a decision. It is that specific act of refusal that is required.In this matter QANTAS has merely not complied with requests to make a decision, or by definition, a determination under section 37 of the ARC [sic] Act. Until QANTAS makes such an overt determination, Comcare has no jurisdiction to undertake a review under section 38 of the SRC Act. Section 37 specifically states that QANTAS may make a determination that an employee should undertake a rehabilitation program. As a matter of statutory interpretation the making of a determination by the rehabilitation authority is discretionary. If the word “shall” had been used the requirement would have been obligatory. Accordingly, the request made on behalf of Ms Brophy cannot be complied with. It is up to QANTAS to make a determination.”

Evidence

Evidence Before The Court

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Decision

Reasons for decision

MICHAEL J
For Ms Brophy it is submitted I should (a) draw the contrary inferences: the date of communication of the decision provided no basis in the circumstances for the inference proposed by Comcare and the history of the matter would suggest to the contrary; and (b) the para 55 observation means what it says, the word “effectively” merely signifying that Comcare’s 1 February refusal to review in effect affirmed the decision Qantas had made.Conclusion The concession made by Comcare was that, for the purposes of s 37(1) of the SRC Act, a decision by Qantas that qualified as a “decision” under s 3(3) of the Administrative Appeals Tribunal Act 1975, could be reviewed by Comcare under s 38(4) of the SRC Act. The Tribunal has found that such a decision was both made and communicated, the latter event occurring on 20 March 2001. The misfortune is that the Tribunal made no express finding that the decision was made earlier than by the communication of 20 March. In this matter, as Comcare rightly emphasises, the time of making of Qantas’ decision is all important. The review process set in train by Ms Brophy on 15 March 2001 presupposed a decision of Qantas made earlier both than 1 February 2001 (which was the date of Comcare’s allegedly reviewable decision) and 29 November 2000 (which was the date of Ms Brophy’s s 38(2) review request to Comcare). In Semunigus v Minister for Immigration and Multicultural Affairs [1999] FCA 422 I indicated, in passages approved on appeal: see Semunigus v Minister for Immigration and Multicultural Affairs (2000) 96 FCR 533 at 536 and 546-547; that in a setting such as the present (at paras 19-20):“the making of a decision involves both reaching a conclusion on a matter as a result of a mental process having been engaged in and translating that conclusion into a decision by an overt act of such character as, in the circumstances, gives finality to the conclusion – as precludes the conclusion being revisited by the decision-maker at his or her option before the decision is to be regarded as final.What constitutes such an act can obviously vary with the setting in which the decision is made: it may be no more than a written notation of a conclusion on a departmental file; it may be publication of the conclusion in a particular forum, or communication of it to another; it may be performing a consequential or collateral act that presupposes the decision’s having been made, etc.” This conception of a decision - and particularly the requirement that it be manifest – can properly be said to be one contrived for the purposes of the administrative decision-making context in which it does its practical work: Director-General of Social Services v Chaney (1980) 31 ALR 571 at 590. I should add that, by indicating when a decision is taken to have been made, I am not expressing any view on the related but distinct question of reopening a decision that has been made: cf Minister for Immigration and Multicultural Affairs v Bhardwaj (2000) 99 FCR 251; Beech-Jones, “Reopening Tribunal Decisions: Recent Developments (2001) 21 Aust Bar Rev 75.

Ratio Decidendi

Legal Principle Established

Established by: MICHAEL J

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