Comcare v Willems
[1996] FCA 975
•13 NOVEMBER 1996
CATCHWORDS
ADMINISTRATIVE LAW - appeal - Safety Rehabilitation and Compensation - whether error of law in Tribunal's finding letter constituted a "request for reconsideration" of a determination - whether error of law in Tribunal allowing extension of time to make request without reference to evidence of events subsequent to it - whether abandonment a live issue before the judge.
Administrative Appeals Tribunal Act 1975, s29(7)
Administrative Decisions Review Act 1977,
Limitation of Actions Act 1974 (Q), s31(2)
Safety Rehabilitation and Compensation Act 1988, s54, s60, s62, par62(2)(b), s62(3), s63, par63(3)(b), s64, s69, s72, s72(a)
Brisbane South Regional Health Authority v Taylor (2 October 1996, unreported)
Comcare v A'Hearn (1993) 119 ALR 85
Re Costello and Secretary, Department of Transport (1979) 2 ALD 934
Drake v Minister for Immigration and Ethnic Affairs (1979) 2 ALD 60
Duff v Freijah (1982) 62 FLR 280
Re Flynn and Department of Aviation (1987) 13 ALD 279
Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344
Jebb v Repatriation Commission (1988) 80 ALR 329
Maric v Comcare (1993) 40 FCR 244
New South Wales Blue-Metal Quarries v Commissioner of Taxation (Cth) (1956) 94 CLR 509
Pilkington v Anti-Dumping Authority (1995) 56 FCR 424
Re Young v Telstra Corp (1993) 32 ALD 307
COMCARE v JOHN LEWIS WILLEMS
NO ACT G45 OF 1996
CORAM:NORTHROP, WILCOX and R D NICHOLSON JJ
PLACE:CANBERRA
DATE:13 NOVEMBER 1996
IN THE FEDERAL COURT OF AUSTRALIA )
WESTERN AUSTRALIA DISTRICT REGISTRY )
GENERAL DIVISION ) NO ACT G45 OF 1996
On appeal from a single judge of the Federal Court of Australia
B E T W E E N: COMCARE
Appellant
and
JOHN LEWIS WILLEMS
Respondent
MINUTE OF ORDER
JUDGES MAKING ORDER: NORTHROP, WILCOX and R D NICHOLSON JJ
DATE OF ORDER: 13 NOVEMBER 1996
WHERE MADE: CANBERRA
THE COURT ORDERS THAT:
The appeal be dismissed
The appellant pay the costs of the respondent.
Note:Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
IN THE FEDERAL COURT OF AUSTRALIA )
WESTERN AUSTRALIA DISTRICT REGISTRY )
GENERAL DIVISION ) NO ACT G45 OF 1996
On appeal from a single judge of the Federal Court of Australia
B E T W E E N: COMCARE
Appellant
and
JOHN LEWIS WILLEMS
Respondent
CORAM:NORTHROP, WILCOX and R D NICHOLSON JJ
DATE:13 NOVEMBER 1996
PLACE:CANBERRA
REASONS FOR JUDGMENT
THE COURT: This is an appeal from a decision of Finn J dismissing an appeal from a decision of the Administrative Appeals Tribunal. In its decision the Tribunal:
(a)decided that the decision of the appellant ("Comcare") refusing the respondent an extension of time pursuant to par62(2)(b) (apparently a misdescription of pars62(3)(b)) of the Safety Rehabilitation and Compensation Act 1988 ("the SRC Act") be set aside;
(b)directed Comcare to accept a letter from the respondent's solicitor dated 14 November 1989 ("the 14 November letter") as a request for reconsideration; and
(c)extended time for the lodgment of the request for reconsideration of the determination of 21 November 1988 until the date the 14 November 1989 letter was received by Comcare.
There are two broad grounds of appeal. The first alleges error of law in the Court in upholding the second limb of the above decision. The second alleges error of law in the Court
in upholding the first limb of the above decision on the basis, applied by the Tribunal, that only those events up to the time of lodging the 14 November letter fell to be considered in relation to the exercise of discretion to allow further time so that events occurring after lodgment of the request and up to the date of the exercise of the discretion by either the primary decision maker (21 December 1994) or the Tribunal standing in its place (21 September 1995) were not relevant.
Factual Setting
In his reasons the primary judge set out "in skeletal form" the factual setting. That setting is not in dispute on this appeal. Essential features of it are as follows.
On 6 October 1987 liability was accepted under the statutory precursor of the SRC Act to pay the respondent for a back injury while employed as a linesman by the Australian Capital Territory Electricity Authority ("the employer").
In September of 1988 the respondent rejected an offer of redeployment to light duties. On 24 October 1988 he resigned his employment. On 21 November 1988 he was notified it had been determined his employer was not liable to pay him compensation from the time of his resignation ("the determination").
On 20 June 1989 the respondent's solicitors wrote to the employer stating that, as the employer was unable to provide suitable alternative employment, their client wished to claim compensation, and requesting the necessary claim forms be made available. On 27 June the employer responded by forwarding a letter with which it enclosed a claim form. The letter recorded that the respondent had previously submitted a claim for compensation "in respect of his incapacity".
Between the dates of the solicitor's request for the forms and 14 November, two file notes were made by Comcare officers. One referred to the need for a "request for reconsideration" if an earlier medical certificate was to be considered by Comcare; the other, to a visit to Comcare by the respondent and possibly his wife in which it was stated he was advised "to request a reconsideration of our determination of 21/11/88".
In the 14 November letter the solicitors for the respondent said:
"We act for [the respondent] in relation to a claim for compensation that our client has arising out of his employment with [the employer].
We enclose herewith the following:
1.Copy letter from your office 1/11/88.
2.Copy letter from [the employer] 27/6/89.
3.Comcare Claim Form.
We are instructed by our client that [the employer] is now unable to provide him with suitable alternative employment and [the respondent] therefore wishes to claim compensation in respect of his ongoing incapacity.
We would be pleased if you would give this claim your earliest attention."
The reference to the letter of 1/11/88 is accepted as an erroneous reference to the determination.
Comcare did not respond to the 14 November letter until 12 March 1990. On that day it wrote requesting medical evidence if the respondent was unable to work as a result of his compensable condition. It requested that the evidence comment "on the relationship between that condition and the incident on 9 September 1987 when he injured his back at work". The relevant doctor not being available, the respondent's attempts to obtain further medical evidence came to an end.
On 20 September 1993 the respondent's solicitors wrote to Comcare requesting that it "re-examine... old records" and
take steps to remedy non-payment to the respondent in respect of his total incapacity for work.
On 17 January 1994 Comcare provided to the respondent's solicitors what it described as a statement of reasons for the determination. It expressly stated this was not a reconsideration. Comcare invited the solicitors to make a written request for reconsideration of the determination. The solicitors did so on 19 January 1994, seeking reconsideration of both the determination and the decision, as the solicitor so characterised it, of 17 January 1994. By letter dated 24 June 1994 Comcare requested the solicitors to provide evidence relating to the circumstances of the delay in the request for reconsideration until January 1994.
On 24 August 1994 the solicitors provided their response.
By letter dated 12 December 1994 ("the primary decision") Comcare refused to allow an extension of time in which to request reconsideration of the determination. In doing so it stated "there must be some positive reason for concluding that it would be just to extend the period". It addressed the evidence as to why that was not the case. It also asserted the letter of 17 January 1994 was not a determination so that the request for reconsideration did not apply to it.
Application was then made by the respondent to the Tribunal for review of the primary decision. Before the Tribunal there arose for the first time the question whether the 14 November letter was a "request for reconsideration". The Tribunal being charged to remake the primary decision, no particular difficulty arises from this.
Request for reconsideration
It is convenient to deal firstly with the question whether the primary judge was in error in upholding the Tribunal's finding
that the 14 November letter was a request for reconsideration.
The requirements for reconsideration of determinations are dealt with in s62 of the SRC Act which reads:
"62(1) a determining authority may, on its own motion:
(a)reconsider a determination made by it; or
(b)cause such a determination to be reconsidered by a person to whom its power under this section is delegated, being a person other than the person who made, or was involved in the making of, the determination;
(2)A request to a determining authority to reconsider a determination made by it may be made by:
(a)the claimant; or
(b)if the determination affects the Commonwealth - the Commonwealth; or
(c)if the determination affects a Commonwealth authority that is not a licensed authority - the Commonwealth or that authority; or
(d)if the determination affects a licensed authority that holds a Class 1 Licence under PtVIIIA - the licensed authority; or
(e)if the determination affects a licensed authority that holds a Class 2 Licence under PtVIIIA - the Commonwealth; or
(f)if the determination affects a licensed corporation that holds a Class A licence under PtVIIIB - the licensed corporation.
(3)A request for reconsideration of a determination shall:
(a)set out the reasons for the request; and
(b)be given to the determining authority within 30 days after the day on which the determination first came to the notice of the person making the request, or within such further period (if any) as the determining authority, either before or after the expiration of that period, allows.
(4)On receipt of a request, the determining authority shall reconsider the determination or cause the determination to be reconsidered by a person to whom its power under this section is delegated, being a person other than a person who made, or was involved in the making of, the determination.
(5)Where a person reconsiders a determination, the person may made a decision affirming or revoking the determination or varying the determination in such manner as the person thinks fit."
The question before the Tribunal was whether the 14 November letter in all the circumstances was capable of coming within the category of a request for reconsideration. The authorities on whether this raises a question of law or of fact are conveniently summarised in Pilkington v Anti-Dumping Authority (1995) 56 FCR 424 at 427-8 by Lockhart and Beazley JJ:
"The question of whether a word or phrase in a statute is to be given its ordinary meaning or some technical or other meaning is a question of law: Brutus v Cozens [1973] AC 854. The ordinary meaning of a word or its non‑legal technical meaning is a question of fact: New South Wales Associated Blue‑Metal Quarries Ltd v Commissioner of Taxation (Cth) (1956) 94 CLR 509 at 512; Life Insurance Co of Australia Ltd v Phillips (1925) 36 CLR 60 at 78; Neal v Department of Transport (1980) 3 ALD 97 at 107-108. The question whether facts fully found fall within the provision of a statutory enactment properly construed is generally a question of law subject to the qualification stated by Kitto J in New South Wales Associated Blue-Metal Quarries Ltd v Commissioner of Taxation (Cth) in these terms:
"...whether the material before the Court reasonably admits of different conclusions as to whether the appellant's operations fall within the ordinary meaning of the words [of the statute] so determined... is a question of law; see also per Isaacs and Rich JJ in Australian Slate Quarries Ltd v Commissioner of Taxation (Cth) (1923) 33 CLR 416 at 419. If different conclusions are reasonably possible, it is necessary to decide which is the correct conclusion; and that is a question of fact: see per Williams J in Commissioner of Taxation (Cth) v Broken Hill South Ltd (1941) 65 CLR 150 at 160."
This statement was adopted by Mason J with whom Gibbs CJ, Stephen, Murphy and Aickin JJ agreed in Hope v Bathhurst City Council (1980) 144 CLR 1 at 7. See also Australian National Railways Commission v Collector of Customs (SA) (1985) 8 FCR 264 and Collector of Customs v Pozzolonic Enterprises Pty Ltd (1993) 43 FCR 280, where the Full Court of this Court stated (at 288):
"...when a statute uses words according to their ordinary meaning and the question is whether the facts as found fall within those words [then] [w]here it is reasonably open to hold that they do... the question whether they do or not is one of fact. The corollary of this of course is that where only one conclusion is possible, the matter is a question of law.""
Here it was reasonably open to the Tribunal to hold the 14 November letter was a claim, a request for reconsideration or neither. The question therefore fell within the qualification stated by Kitto J in New South Wales Blue-Metal Quarries v Commissioner of Taxation (Cth) (1956) 94 CLR 509 and was a question of fact. It was not therefore appealable to the primary judge. However, that point was not taken before him. In any event, as we consider the conclusion was reasonably open to the Tribunal, nothing need be made of the point here.
The primary judge was not persuaded the Tribunal was in error in concluding that the 14 November letter constituted a request pursuant to s62(3) and could properly be treated by Comcare as such. The Tribunal's reasons on this point were:
"The information provided by the solicitor to Comcare in his letter of 14 November 1989 and attachments (T88) to the effect that an earlier determination was made on 21 November 1988, that he was instructed by his client that ACTEA was unable to provide him with suitable employment and that he had ongoing incapacity, when placed in the context of the file notes at T86 and T87 indicating the applicant's need to make a request for reconsideration, is sufficient to satisfy me that this constitutes a request for reconsideration pursuant to subs62(3) of the 1988 Act. Notwithstanding that a new claim was included in the letter from the applicant's solicitor, in the context of the abovementioned evidence I am not persuaded that this necessitated that the matter be treated by the respondent as a new claim."
In our opinion the evidence referred to by the Tribunal was evidence upon which the Tribunal could conclude that the 14 November letter constituted a request for reconsideration.
It was also the opinion of the primary judge that the reasons given in the 14 November letter for the making of the request - that is the change of circumstances, although delphic, were sufficiently "reasons" for the purposes of s62(3). We agree with that conclusion. The reason given (the absence of alternative employment) was not insignificant in the circumstances.
This conclusion, devoid of error of law, is nevertheless closely confined to the circumstances in which the 14 November letter was made. An administrator faced with a claim for compensation apparently made pursuant to s54 of the SRC Act should not in the general run be required to consider whether it amounts to a request for reconsideration of a prior claim. On the face of it, a second claim could relate to a different injury. In this case the relevant claim was not placed before either the Tribunal or the Court on appeal. However, it was accepted before the primary judge on behalf of both parties that it was not open to the respondent to make a fresh claim under the SRC Act for the particular injury in respect of which he was seeking to have his compensation payments reinstated and it seems to be clear that the 14 November letter was made, and understood to be made, with respect to the original injury.
It is also relevant to note that s72 of the SRC Act provides that in performing its functions to make determinations "accurately and quickly in relation to claims and requests made to Comcare" under the SRC Act, Comcare (and so the Tribunal standing in the shoes of Comcare) should be "guided by equity, good conscience and the substantial merits of the case, without regard to technicalities". To insist that a letter which fairly admitted of an interpretation, in the particular circumstances, that it was an application for reconsideration, was not a "request for reconsideration" would be to insist upon formality without regard to the provisions of s72 and without regard to the nature of the SRC Act as beneficial legislation.
Furthermore, given this view was reached by the Tribunal in relation to quite particular circumstances, there are no ongoing difficulties of administration which ought to have been taken into account to dictate a contrary categorisation of the 14 November letter.
Extension of time
The question before the primary judge was whether the Tribunal had been correct to conclude that in considering the question of extension of time to lodge the request for reconsideration it should consider only events up to the time of the lodging of the request for reconsideration. As the primary judge pointed out, the consequence of that decision was to exclude from consideration by the Tribunal evidence of what occurred in the three and half years which passed between the date of the request and the date when the solicitors for the respondent again agitated his claim.
In finding there was no error in that approach his Honour said:
"The effect of the Tribunal's first conclusion is that on 14 November 1989 [the respondent] made a request for reconsideration which was somewhat under eleven months out of time with the consequence that Comcare became obliged to decide whether or not it would then (ie as of that date) accept the request notwithstanding its untimeliness. [The respondent] request was not withdrawn; it was not abandoned. Neither did Comcare seek to set up on estoppel against him because of what may have transpired subsequent to the lodging of the request. Given then, the decision that Comcare was required to make, it is not obvious to me why [the respondent] subsequent conduct and its possible effect on Comcare are of relevance to that decision insofar as it is concerned with the issue of untimeliness."
Later he continued:
"In coming to its decision Comcare, properly, should have regard (i) to the cause of, and the explanation for, the delay in submitting the request; (ii) to [the respondent's] conduct in this; and (iii) to the consequences to Comcare of the delay and [the respondent's] conduct. But what, in my view, it could not do in evaluating the significance of delay in the matter was to have regard either to [respondent's] conduct subsequent to the request being submitted or to its consequences for Comcare, unless the effect of that conduct was such as to defer, falsify or nullify the request submitted - and I here refer to later conduct which would amount to the legal abandonment or withdrawal of the request, which would give rise to an estoppel or which revealed the request to be a fraudulent one. The time of submitting the request, in other words, temporally fixed the delay that was relevant for the purposes of determining whether an extension should be granted.
This is not to say that there may not be other reasons which could make it entirely proper to look beyond the period of delay. It has, for example, often been acknowledged that the merits of the substantive request are a relevant consideration when a determination is being made on the extension question: see Hunter Valley Developments Pty Ltd v Minister for Home Affairs and Environment (1984) 58 ALR 305. The Tribunal recognised this to be so in the instant case and this led it to have regard to [the respondent's] condition at the time of the Tribunal's decision: see Reasons for Decision, par52."
In our opinion his Honour was correct.
Four observations are made relating to s62(3) of the SRC Act in its context. The first is that the subsection does not require a separate application to be made for the granting of a further period within which to make the request for reconsideration under s62(2). Nor does the subsection require that the claimant for reconsideration make an express request for allowance of time. That obligation arises automatically upon receipt of an out of time application for reconsideration. Similar problems with respect to similar legislation, the Administrative Decisions (Judicial Review) Act 1977, were considered in Duff v Freijah (1982) 62 FLR 280.
That authority makes clear that statutory provisions of the type now being considered are different in nature from the normal limitation of actions statutory provisions.
Secondly, the requirements of par62(3)(b) must be understood in the context of s69 by which Comcare is called upon to make determinations "accurately and quickly" and s72(a) by which Comcare must act, "without regard to technicalities"; and the provisions of the paragraph itself.
Thirdly, the purport of par62(3)(b) is that the issue of allowance of a further period is to be determined in the context in which it arises - namely the reasons supporting the request for reconsideration. Subsection (3) specifies the content of the request - it must set out reasons - and must be made within 30 days of notice of the determination "or within such further period (if any) as the determining authority... allows". If the request for reconsideration fails to set out reasons - understanding that requirement in the beneficial and non-technical manner explained above, it may not comply with the requirements of the paragraph. However, there is no reason why, in appropriate circumstances, the defect could not be cured by amendment which gave the required reasons. Further reasons could be added. It would be unwise for the determining authority to ignore what may be a defective request. Any further delay from conduct of that kind could be relevant in the consideration of whether a further period of the making of the request for reconsideration should be allowed. Likewise, a request for reconsideration given after the 30 day period remains a request but the delay requires the determining authority to consider whether to allow the further period. That will be a matter for the determining authority to decide, having regard to all relevant circumstances up to the date of the making of the request for reconsideration.
Where delay is involved, those reasons might encompass an explanation for delay. If no explanation was included, this
could be sought by Comcare. In Comcare v A'Hearn (1993) 119 ALR 85 at 88 the Full Court said in relation to s29(7) of the Administrative Appeals Tribunal Act 1975 (Cth) (providing for the Tribunal to extend time for the making of review):
"We note that the tribunal used language that might be taken to suggest that it is a precondition for success in such an application that an acceptable explanation for the delay must be given. Although it is to be expected that such an explanation will normally be given, as a relevant matter to be considered, there is no rule that such an explanation is an essential precondition; see Dix v Crimes Compensation Tribunal [1993] 1 VR 297 at 302 per Brooking J, with whom Fullagar and Tadgell JJ agreed; cf Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344 at 348 and Maric v Comcare (1993) 40 FCR 244 at 247-9; 17 AAR 259 at 261-2."
In Maric v Comcare (1993) 40 FCR 244 at 249, O'Loughlin J, after considering the cited passage in Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344 at 348-50, said the precondition for the exercise of the discretion to extend time in s29 of the AAT Act "is not limited to the question of delay but extends to aspects of fairness and equity".
Fourthly, it is clear the determining authority's decision in relation to extension of time is a "reviewable decision"; that is a decision susceptible to review by the Administrative Appeals Tribunal. Section 60 of the SRC Act defines the term "reviewable decision" to include a decision made under s62 of that Act. Accordingly notice of the decision should be given in accordance with s63 of the Act and applications may be made for review to the Tribunal pursuant to s64 of the Act. This was the view reached by the President of the Tribunal, O'Connor J, in Re Young v Telstra Corp (1993) 32 ALD 307 at 310-1. The President there stated that the SRC Act was beneficial legislation and "the legislature could not have intended that a determining authority's refusal to exercise a discretion should exclude the tribunal's powers of review".
In argument for Comcare on this appeal the Court was taken to the decision of the High Court of Australia in Brisbane South Regional Health Authority v Taylor (2 October 1996, unreported). That was a decision relating to the limitation of a personal injury action and the exercise of a discretion
to grant extension of time arising under s31(2) of Limitation of Actions Act 1974 (Q). That is a very different statutory regime to the beneficial legislation in which s62 appears. Taylor raises issues about the rationale of limitation periods (see especially the reasons for judgment of McHugh J), but those considerations are not germane to s62(3).
Regard may also be had to decisions of the Tribunal in other matters. In Jebb v Repatriation Commission (1988) 80 ALR 329 at 333, Davies J described the general approach of the Tribunal as being "to regard the administrative decision making process as a continuum, to look upon the tribunal's function as a part of that continuum so that, within the limits of a reconsideration of the decision under review, the tribunal considers the applicant's entitlement from the date of application, or other proper commencing date, to the date of the tribunal's decision". This was the approach followed by the Tribunal in, for example, Re Flynn and Department of Aviation (1987) 13 ALD 279 applying Drake v Minister for Immigration and Ethnic Affairs (1979) 2 ALD 60 and Re Costello and Secretary, Department of Transport (1979) 2 ALD 934. However, those decisions concerned a present or continuing entitlement or obligation, a situation where it is important to take into account all the relevant facts occurring up to the date of the Tribunal's decision. A decision pursuant to s62(3) of the Act in relation to an extension of time is not such a decision.
Where there is evidence of events subsequent to the request for reconsideration which suggest the request has been withdrawn or abandoned, or was fraudulently made, or constitute conduct giving rise to an estoppel, that evidence may be considered, the purpose being to determine whether there is an request falling for consideration. If withdrawal, abandonment, fraud or estoppel is established, no request will be on foot in relation to which the issue of extension of time will arise.
Abandonment
In his reasons the primary judge recorded Comcare did not argue that the respondent had abandoned his request in such a way as to prevent him from reviving it as a matter of law. Abandonment had been referred to in Comcare's written submission to his Honour but apparently was not pressed.
On the appeal, however, it was contended for Comcare that abandonment was a live issue before the Tribunal which the Tribunal should have considered. In cross‑examination before the Tribunal the respondent said he had decided, after receiving the letter of March 1990, not to pursue the issue of compensation. However, there was no evidence this decision was communicated to Comcare or the employer. Even if there were a proper foundation for us to go behind the primary judge's finding that this issue was not pressed, the evidence does not establish abandonment.
Conclusion
The Tribunal concluded, on the basis the 14 November letter constituted a request for reconsideration, that an extension of time should be allowed the respondent pursuant to par63(3)(b). Although the question of the proper characterisation of that letter arose only at the Tribunal, the primary decision under review was a decision not to allow an extension of time with respect to reconsideration of the determination. There was no need for the primary judge to refer the matter back to the Tribunal.
The appeal should be dismissed with costs.
I certify that this and the preceding 12 pages are a true copy of the Reasons for Judgment of the Court.
Associate:
Date:13 November 1996
APPEARANCES
Counsel for the Appellant: Mr R Tracey QC and
Mr T Howe
Solicitors for the Appellant: Australian Government Solicitor
Counsel for the Respondent: Mr R L Crowe
Solicitors for the Respondent: Gary Robb & Associates
Date of Hearing: 28 October 1996
Date of Judgment: 13 November 1996
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