Crowe v Comcare AUSTRALIA (No.1) - [2002] FMCA 146

FEDERAL MAGISTRATES COURT OF AUSTRALIA

CROWE v COMCARE AUSTRALIA (No.1)

[2002] FMCA 146

ADMINISTRATIVE LAW – Judicial review – election by injured employee to sue or accept workers’ compensation – whether any reviewable decision made by respondent.

Administrative Decisions (Judicial Review) Act 1977 (Cth), ss. 3, 8,
Federal Magistrates Act 1999 (Cth), ss.16, 18

Safety, Rehabilitation and Compensation Act 1988 (Cth), ss. 24, 25, 27, 44, 45, 57

Australian Broadcasting Tribunal v Bond (1990) 17 CLR 321; 94 ALR 11
Buck v Comcare (1996) 41 ALD 281; 137 ALR 335
Cunningham v Repatriation Commission (1996) 44 ALD 379
Janssen v Commonwealth [1994] 1 QdR 596
Walsh v Commonwealth [1998] NSWSC 223

Applicant:

DEAN WILLIAM CROWE

Respondent:

COMCARE AUSTRALIA

File No:

CZ14 of 2002

Delivered on:

18 July 2002

Delivered at:

Canberra

Hearing Date:

18 July 2002

Judgment of:

Driver FM

REPRESENTATION

Counsel for the Applicant:

Mr D A Hassall

Solicitors for the Applicant:

Ken Cush & Associates

Counsel for the Respondent:

Mr G M Watson

Solicitors for the Respondent:

Phillips Fox Lawyers

ORDERS

The respondent’s objection to the competency of the application is disallowed.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
CANBERRA

CZ14 of 2002

DEAN WILLIAM CROWE

Applicant

And

COMCARE AUSTRALIA

Respondent

REASONS FOR JUDGMENT

I have before me for ex tempore judgment an application by Dean William Crowe seeking to review a decision, so-called, of Comcare in relation to his application for Commonwealth employees’ compensation. The applicant seeks declarations, the effect of which would be to avoid the consequences of an election he purportedly made under s.45 of the Safety, Rehabilitation and Compensation Act 1988 (Cth) (“the SRC Act”). A preliminary objection was raised by the respondent, Comcare, whether any “decision” for the purposes of the Administrative Decisions (Judicial Review) Act 1977 (Cth) (“the AD(JR) Act”) had been made. The consequence of the raising of that point is that I must consider whether there is a relevant decision for the purposes of the application for review. Plainly, if there is no such decision, the application is incompetent. The jurisdiction of the Court arising from s. 8 of the AD(JR) Act is initially limited for the purpose of determining that preliminary issue.
A further necessary consequence of such a finding would be that the applicant would not be entitled to any declaration of right under s. 16 of the Federal Magistrates Act 1999 (Cth) and neither would the applicant be entitled to invoke any associated jurisdiction of the Court under s.18 of that Act, nor any accrued jurisdiction under the general law.
I do not need to deal with the background facts in this matter at any length, but briefly, the applicant had made an application for compensation under the SRC Act, which had been determined by Comcare on the basis that no compensation was payable. The applicant then submitted a further application for compensation in respect of the same injury, apparently on the basis of additional medical evidence. On receipt of that application, Comcare sent to the solicitors for the applicant an election form and pointed out, correctly, that the applicant could make an election at any time before payment of compensation, pursuant to s. 45 of the SRC Act. That section is related to s. 44 of the SRC Act, which takes away common law rights to sue formerly enjoyed by Commonwealth employees in respect of workplace injuries. Section 45 partially restores those rights on the making of an election, limited to claims for non-economic loss and limited to a statutory cap on damages.
It is clear from both the decision of the Queensland Court of Appeal in Janssen v Commonwealth [1994] 2 Qd R 596 and, more recently, from the decision of the New South Wales Supreme Court in Walsh v Commonwealth [1998] NSWSC 223, that such an election can be made prior to a determination of compensation by Comcare.
It is premature to deal with the issue of whether a valid election was made in this case. It is asserted that no election at law was made by the applicant, even though he signed the election form that was sent to him by his solicitors and even though that purported election was communicated back to Comcare. Comcare purported to act on that election, although it was subsequently disputed by the applicant's solicitors.
In considering whether a reviewable decision was made by Comcare it is necessary, first, to have regard to the decision of the High Court in the Australian Broadcasting Tribunal v Bond (1990) 17 CLR 321; 94 ALR 11. In that case, the majority of the High Court narrowed the interpretation of the term, "decision", as defined in s. 3 of the AD(JR) Act. The High Court relevantly decided that a decision for the purposes of s. 3 will generally, but not always, entail a decision which is final or operative and determinative, at least in a practical sense, of the issue of fact falling for consideration. A conclusion reached, as a step along the way of a course of reasoning leading to an ultimate decision, would not ordinarily amount to a reviewable decision unless the statute provided for the making of a finding or ruling on that point, so that the decision, though an intermediate decision, might accurately be described as a decision under an enactment. Although that case has been interpreted in a substantial number of later decisions, that is the relevant statement for the purposes of the resolution of the issue I have before me.
The issue in dispute between the parties is whether the applicant, in law, made an election for the purposes of s. 45. The submissions made in writing by the parties appeared to have assumed that the preliminary question is whether a reviewable decision was made by Comcare for the purposes of s. 45 of the SRC Act. I accept the proposition advanced by the respondent, that s. 45 is a self-executing provision. Once an election is made, Comcare is entitled ordinarily to act on that election and no decision is required of it.
An exception might be where it is apparent or suspected that an election might not be a valid election for the purposes of s. 45. That might be apparent to Comcare, or it might be pointed out by someone else. In those circumstances, Comcare may well, on advice, choose not to rely upon a purported election.
In this case, following the communication of the purported election to Comcare by the solicitors for the applicant, those solicitors disputed whether a valid election had been made. The response from Comcare was that the election was being treated as a valid election by Comcare and that, in consequence, the SRC Act operated so that no compensation was payable under ss. 24, 25 or 27 of the SRC Act, the applicant having elected pursuant to s. 45 to pursue his common law rights which remained.
It became apparent in the course of Mr Hassall's oral submissions to me that the parties may not have clearly thought through the issue to be determined. As Mr Hassall's submissions advanced, it became apparent that he was not really submitting that a reviewable decision was made under or for the purposes of s. 45 of the Act, although he did submit that perhaps conduct was engaged in for the purposes of that section, leading to another decision. What Mr Hassall finally was submitting to me was that Comcare had failed, or, alternatively, refused to make a determination of compensation on the applicant's application for compensation, in consequence of the purported election.
I pointed out to Mr Hassall that Comcare exists primarily for the purposes of making just such a determination and it appears to me from s.69 of the SRC Act that Comcare has a duty to make a determination on applications for compensation in the absence of an election and provided that sufficient information is put before it to enable it to make a determination. I do not think much turns on the question of whether we are dealing with a failure or refusal to make a decision; a failure to make a decision is reviewable where there is a duty and, in general terms, there is such a duty apparent from the terms of the SRC Act.
I conclude, in this case, that we are dealing with a refusal to make a decision in that Comcare brought its mind to bear on the issue of whether it would proceed further with the application for compensation. Comcare decided that it would not proceed further with that application on the basis of the election purportedly made under s. 45. I take that to be a refusal, in the circumstances, to make a determination on the application for compensation.
Plainly, a refusal to make a decision is reviewable as a decision defined under s. 3 of the AD(JR) Act. Before Mr Hassall closed his submissions I surmised that it would not be open to the applicant to take his proceedings anywhere else as Comcare had advised the solicitors for the applicant in the second last paragraph of a letter dated 27 March 2002, (annexure I to Mr Crowe's affidavit in the proceedings), that the matter at issue between the parties was not reviewable under the SRC Act, and was only reviewable under the AD(JR) Act. This is not a case of an applicant wishing to pursue common law remedies who would, in the case of a dispute over an election, be able to at least commence those proceedings in a court of competent jurisdiction and have the issue ventilated in that court.
In his submissions Mr Watson put to me that the correspondence from Comcare that I have referred to was plainly wrong. He submitted that the matter in dispute between the parties was reviewable under the SRC Act but was not reviewable under the AD(JR) Act. Mr Watson put to me that it was open to the applicant in these circumstances to seek internal reconsideration from Comcare of the decision to refuse to make a determination of compensation based upon the purported election under s. 45 and that the dispute over the validity of that election could have thus been ventilated on internal reconsideration, and subsequently before the AAT, if the matter were not resolved on internal review.
It does not appear from the papers filed in support of the application that that possibility was properly considered, let alone pursued. Certainly, there was no advice from Comcare that such an option could be pursued. The advice from Comcare was to the opposite effect. Nevertheless, I accept, for the purposes of these proceedings, Mr Watson's submission that that avenue was open to the applicant. It seems to me, however, that that interpretation of the SRC Act substantially makes the applicant's case for the purposes of the preliminary issue. It seems to me that if there was a reviewable decision for the purposes of internal review and AAT review under the SRC Act there must also be a decision for the purposes of the AD(JR) Act, the legal theory relating to what is and what is not a decision being essentially the same whether one is dealing with merits review or judicial review. I also note that this Court has jurisdiction to hear appeals from decisions of senior members and ordinary members of the AAT. It would be an absurd result if the applicant could pursue what is an issue of law to this Court by that circuitous route, but could not bring the issue more directly before the Court under the AD(JR) Act.
I was referred by Mr Watson to the decision of Finn J in Buck v Comcare (1996) 41 ALD 281; 137 ALR 335. In that case Finn J was dealing with a purported decision for the purposes of s. 57(2) of the SRC Act, and notwithstanding that both parties had proceeded on the assumption that a reviewable decision was made under that section, his Honour concluded that the section was self-executing and that no decision was made that could be reviewed under the AD(JR) Act.
I distinguish this case from the case of Buck on the basis that I am not asked to decide whether a decision was made under s. 45 that is reviewable under the AD(JR) Act. I am asked to decide whether I can review a refusal by Comcare to make a determination of compensation under ss.24, 25 or 27 of the SRC Act in circumstances where Comcare was relying upon a purported election. I find that such a refusal is a reviewable decision for the purposes of the AD(JR) Act.
Mr Watson referred to me the following extract from Pearce's Administrative Law Service at paragraph 223:
Sometimes a result is expressed to follow upon the occurrence of a specified event. For example, that if a person fails to attend a medical examination their pension ceases to be payable. The issue that arises in such a case is whether the cancellation in these circumstances is reviewable or whether its taking effect as a matter of course on the occurrence of the designated event means that there is no "decision" that can be reviewed. The view that has gradually emerged through the cases is that the [AAT] may determine whether the designated event has occurred because that is a jurisdictional issue, the existence of which is essential to the relevant decision. But once those preliminary facts are found to have occurred the result that flows is dependent upon the Act and not on the intervention of a decision-maker. It is therefore not reviewable by the AAT.
The learned authors refer to Re Cunningham v Repatriation Commission (1996) 44 ALD 379 following the decision in Buck v Comcare.
The conclusion I draw is that the present decision to refuse to make a determination of compensation was reviewable by the AAT pursuant to the SRC Act and is similarly reviewable by me under the AD(JR) Act. What is not reviewable is any purported decision under s. 45 of the SRC Act, which is a self-executing provision. What remains to be determined in this case is whether Comcare made a lawful decision in refusing to pursue further the application for compensation made on the second occasion by the applicant. That necessarily involves a consideration of whether the applicant had made a valid election for the purposes of s. 45. If he did then as s. 45 is a self-executing provision, there was nothing further for Comcare to do and it was legally entitled to refuse to consider further the application for compensation.
If, on the other hand, no valid election was made, then provided that it had sufficient information to determine the compensation application, Comcare had a statutory obligation to continue and to determine the application. I will deal with that issue in the balance of these proceedings.

I certify that the preceding twenty (20) paragraphs are a true copy of the reasons for judgment of Driver FM

Associate:

Date: 2 August 2002