D'Alfonso and Telstra Corporation Limited
[2006] AATA 492
•7 June 2006
CATCHWORDS – JURISDICTION – whether Tribunal has power to make a further decision if its initial decision was final – jurisdictional error – no jurisdiction
Acts Interpretation Act 1901 s 33
Administrative Appeals Tribunal Act 1975 ss 25, 42C and 43AA
Migration Act 1958 s 360
Safety Rehabilitation and Compensation Act 1988 s 64
Workers’ Compensation and Rehabilitation Act 1981 (WA)
Abebe v Commonwealth (1999) 197 CLR 510; 162 ALR 1; 55 ALD 1; 73 ALJR 584
Kuligowski v Metrobus (2004) 220 CLR 363; 208 ALR 1; 78 ALJR 1031
McWilliam v Civil Aviation and Safety Authority [2005] AATA 1148
Minister for Immigration and Multicultural Affairs v Bhardwaj (2002) 209 CLR 597; 187 ALR 117; 67 ALD 615; 76 ALJR 589
Plaintiff S157/2002 v The Commonwealth of Australia (2003) 211 CLR 476; 195 ALR 24; 72 ALD 1; 77 ALJR 454
DECISION AND REASONS FOR DECISION [2006] AATA 492
ADMINISTRATIVE APPEALS TRIBUNAL )
) V2002/622
GENERAL ADMINISTRATIVE DIVISION )
Re LINA D’ALFONSO
Applicant
AndTELSTRA CORPORATION LIMITED
Respondent
DECISION
Tribunal: Deputy President S A Forgie
Date: 7 June 2006
Place: Melbourne
Decision:It is decided that the Tribunal has no jurisdiction to consider the application further.
S A FORGIE
Deputy President
REASONS FOR DECISION
BACKGROUND
Mrs D’Alfonso claimed compensation in respect of “gradual pain occurring in both arms (mainly right) shoulders and wrists” after initially experiencing pain in mid 1995 and being first treated in October 1995.[1] After she lodged a claim for compensation on 5 May 1997, Telstra accepted liability for occupational overuse syndrome affecting the neck, shoulders and arms. It did so on 30 June 1997[2] but followed this on 11 October 1999 with a decision ceasing liability to pay compensation in respect of incapacity or medical expenses in respect of that condition. Its decision operated from the same day; 11 October 1999.[3] Telstra reversed its decision on 8 March 2000 and again accepted liability to pay compensation in respect of occupational overuse syndrome affecting neck, shoulders and arms on and from 11 October 1999.[4] At the conclusion of its decision, the delegate noted that “… the claimant is not incapacitated for employment and that costs associated with this claim are limited to ongoing reasonable medical treatment.”[5]
[1] T documents, 18-22
[2] T documents, 23-24
[3] T documents, 45-49
[4] T documents, 54-57
[5] T documents, 57
Mrs D’Alfonso continued to work part-time. On 8 March 2001, her solicitors wrote to Telstra’s delegate asking it to consider her claim for payment of compensation in respect of her “ongoing partial incapacity” from her compensable condition.[6] The delegate arranged for Mrs D’Alfonso to see a consultant orthopaedic surgeon and referred her for rehabilitation assistance.
[6] T documents, 64
On 27 November 2001, Telstra decided that there were no outstanding determinations in relation to Mrs D’Alfonso concerning her compensation claim. It did so after considering the medical report and the report from Mrs D’Alfonso’s Rehabilitation Case Manager as well as a letter from Telstra advising that her workplace arrangements had been consistent with her requests for part-time employment to meet her child rearing responsibilities.[7]
[7] T documents, 95
On 20 March 2002, Mrs D’Alfonso’s solicitors wrote to the delegate advising that, before her injury, she worked full-time. Her first child had been born on 28 August 1993. She returned to work on 14 July 1994 and worked reduced hours for the following eight months. Her second child was born on 4 November 1998. She returned to work on 1 October 1999 and has worked reduced hours ever since. She sought partial incapacity payments from 28 March 2000.[8] That was the date from which she had initially planned to work reduced hours.
[8] T documents, 101-102
On 18 April 2002, the delegate affirmed the decision of 27 November 2001. In doing so, he said that he was not satisfied that the compensable injury has resulted in any partial incapacity for employment.[9]
[9] T documents, 103-106
Mrs D’Alfonso’s applied for review of Telstra’s reviewable decision. Her application was set down for hearing on 6 November 2003. On the day of the hearing, the parties reached an agreement that the decision should be set aside and that the following decision be substituted:
“(a) the applicant suffered a soft tissue injury to the neck and both upper limbs (the injury) arising out of or in the course of employment with the respondent;
(b)the applicant is entitled to weekly payments of compensation for incapacity as a result of the injury in accordance with s 19 of the Safety Rehabilitation and Compensation Act 1988 (the SRC Act) up to and including 26 October 2003;
(c)on and from 27 October 2003 the applicant is no longer entitled to weekly payments of compensation for incapacity as a result of the injury in accordance with s 19 of the SRC Act;
(d)on and from 27 October 2003 the applicant is no longer entitled to the cost of reasonable medical treatment obtained as a result of the injury in accordance with s 16 of the SRC Act; and
(e)on and from 27 October 2003 the injury and its effects ceased, save and except for any permanent impairment as a result of the injury.
2.The respondent shall pay the applicant’s reasonable party/party costs and disbursements of the application for review as agreed or in the absence of agreement to be taxed in accordance with the Tribunal’s General Practice Direction dated 18 May 1998.”
A decision in these terms was made by a differently constituted Tribunal. It did so under s 42C of the Administrative Appeals Tribunal Act 1975. Two years later, the parties disagreed over the interpretation of the Tribunal’s decision. Telstra had paid Mrs D’Alfonso incapacity payments for the period 22 November 2001 to 26 October 2003 but denies any liability to pay incapacity payments for the period from 28 March 2000 to 22 November 2001. Mrs D’Alfonso has given Telstra certificates of incapacity relating to the earlier period.
DOES THE TRIBUNAL HAVE ANY FURTHER ROLE: the principles
Tribunal generally has no power to make a further decision if its initial decision was final
By reading s 25 of the AAT Act with s 64 of the SRC Act, the Tribunal is given the power to review Telstra’s decision. Generally speaking:
“Where an Act confers a power or imposes a duty, then, unless the contrary intention appears, the power may be exercised and the duty shall be performed from time to time as occasion requires.”[10]
[10] Acts Interpretation Act 1901; s. 33(1)
That, however, is not always the case. In some instances, an Act may confer a power that, once exercised, cannot be used again. The decision-maker is said to be functus officio. Whether a power is of this nature depends on the terms in which it is given to the decision-maker and the context in which it is given. In Kuligowski v Metrobus,[11] the High Court considered whether a decision made by a review officer under the Workers’ Compensation and Rehabilitation Act 1981 (WA) was final:
“A ‘final’ decision, then, is one which is not of an interlocutory character, but is completely effective unless and until rescinded, altered or amended. The fact that an appeal lies from a decision does not make it any less final …. It must be ‘final and conclusive on the merits’: ‘the cause of action must be extinguished by the decision which is said to create the estoppel’ ….”[12]
[11] (2004) 220 CLR 363; 208 ALR 1; 78 ALJR 1031 at 374; 7; 1036
[12] (2004) 220 CLR 363; 208 ALR 1; 78 ALJR 1031 at 375; 9; 1037
What factors are taken into account in deciding if a decision is final? The character of an administrative decision, and so whether it has the necessary quality of finality, is determined by reference to the decision itself and the construction of the language used in the legislation under which it was made.[13] The non-judicial composition of the body, its functions, its speedy and informal processes, the substantial exclusion of legal representatives and its not being bound by the rules of evidence are all neutral on the question of finality.[14] The fact that a decision can be reconsidered does not prevent it from being final.[15]
[13] (2004) 220 CLR 363; 208 ALR 1; 78 ALJR 1031 at 377-379; 10-12; 1038-1039
[14] (2004) 220 CLR 363; 208 ALR 1; 78 ALJR 1031 at 377; 10; 1037
[15] (2004) 220 CLR 363; 208 ALR 1; 78 ALJR 1031 at 377; 10; 1038
Tribunal may make a further decision if its initial decision was affected by jurisdictional error
If the Tribunal has used its power but made a jurisdictional error in doing so, it may use its power again and decide the matter again. This, in essence, is a proposition approved by the High Court in Minister for Immigration and Multicultural Affairs v Bhardwaj.[16]In brief, the High Court decided that the Immigration Review Tribunal (IRT) had not made a decision at all when it reviewed a decision but failed to comply with s 360 of the Migration Act 1958 (“Migration Act”). It had made a jurisdictional error and so could make a second decision reviewing that same decision. The reasoning of Gaudron and Gummow JJ, with whom McHugh concurred,[17] was:
“… a decision involving jurisdictional error has no legal foundation and is properly to be regarded, in law, as no decision at all. Once that is accepted, it follows that, if the duty of the decision-maker is to make a decision with respect to a person’s rights but, because of jurisdictional error, he or she proceeds to make what is, in law, no decision at all, then, in law, the duty to make a decision remains unperformed. Thus, not only is there no legal impediment under the general law to a decision-maker making such a decision but, as a matter of strict legal principle, he or she is required to do so. …”[18]
[16] (2002) 209 CLR 597; 187 ALR 117; 67 ALD 615; 76 ALJR 589
[17] McHugh J’s concurrence was subject to two important qualifications but they do not affect the principles on which the majority based their judgment. Gleeson CJ and Callinan J reached the same conclusion. Gleeson CJ concluded that it was inconsistent with the scheme of the Migration Act to conclude that the IRT could treat a decision as legally ineffective and consider a matter afresh simply because it had been persuaded that it had denied one of the parties procedural fairness. There was, however, more to it than a denial of procedural fairness. What had occurred was an error in fact leading the IRT to fail to conduct a review:
“In those circumstances, it was not inconsistent with the statutory scheme for the tribunal, upon becoming aware that it had not given effect to its own intention, and that it had failed to conduct a review of the delegate’s decision, to give the respondent the opportunity which the statute required, which he wanted, and which the tribunal had intended to give him. On the contrary, it was in accordance with the requirements of the Act.” ((2002) 209 CLR 597; 187 ALR 117; 67 ALD 615; 76 ALJR 589 at 606; 121; 619; 601)
Hayne J and Callinan J reached the same conclusion on the basis that what had happened. As Callinan J said, what had happened:
“… was something more than a breach of the rules of natural justice. It was a failure to exercise a jurisdiction which the tribunal was bound to exercise. If one thing is abundantly clear, it is that the tribunal must, if an application has properly been made … review the minister’s decision. This means that the tribunal must exercise the jurisdiction of reviewing the minister’s decision …”: ((2002) 209 CLR 597; 187 ALR 117; 67 ALD 615; 76 ALJR 589 at 649; 156-157; 655; 626) and see per Hayne J at ((2002) 209 CLR 597; 187 ALR 117; 67 ALD 615; 76 ALJR 589 at 647; 155; 653; 625)
[18] (2002) 209 CLR 597; 187 ALR 117; 67 ALD 615; 76 ALJR 589 at 616; 129-130; 628; 607
Their Honours reached their conclusion based on the general law but also referred to the Migration Act under which the IRT reviewed certain migration decisions. Their analysis of the Migration Act led them to conclude that:
“… a decision which does not involve jurisdictional error and which is not challenged within 28 days is effective for all purposes notwithstanding that, for the purposes of that Part, it involves reviewable error. There is no like limit with respect to decisions involving jurisdictional error which may be the subject of proceedings in this Court. …”[19]
[19] (2002) 209 CLR 597; 187 ALR 117; 67 ALD 615; 76 ALJR 589 at 614; 128; 628; 606
In McWilliam v Civil Aviation and Safety Authority[20] I summarised the authorities considering what is a “jurisdictional error”:
42. … The expression was considered by Gaudron J in Minister for Immigration and Multicultural Affairs v Yusuf.[21] Referring to her earlier judgment in Abebe v Commonwealth[22] when she considered its meaning in the context of and application for relief under s. 75(v) of the Constitution, her Honour said that:
‘… the notion of jurisdictional error … “is not confined to situations in which a tribunal either lacks jurisdiction or exceeds its jurisdiction’ but extends to situations in which it ‘wrongly den[ies] the existence of its jurisdiction or … mistakenly place[s] limits on its functions or powers”.’[23]
43. What amounts to jurisdictional error when Parliament has provided a statutory framework of judicial review of administrative decisions depends on the general law and any qualifications of that law made by the statutory framework.[24] In the absence of any qualification, jurisdictional error may take various forms including:
‘… taking an irrelevant consideration into account. Equally, it may be disclosed by the failure to take a relevant matter into account.’[25]
‘…failure of the tribunal to take a particular matter into account indicat[ing] that, in the circumstances, the tribunal has misunderstood its duty or applied itself to the wrong question and has, on that account, failed to conduct a review as required by … the Act.’[26]
‘Subject to any … statutory provision, denial of natural justice or procedural fairness will ordinarily involve failure to comply with a condition of the exercise of decision-making power, and jurisdictional error.’[27]”[28]
[20] [2005] AATA 1148 at [92]
[21] (2001) 206 CLR 323; 180 ALR 1; 62 ALD 225; 75 ALJR 1105
[22] (1999) 197 CLR 510 162 ALR 1; 55 ALD 1; 73 ALJR 584 at 552; 11-12; 11-12; 592-593
[23] (2001) 206 CLR 323; 180 ALR 1; 62 ALD 225; 75 ALJR 1105 at 339; 11; 235; 1113 per Gaudron J
[24] (2001) 206 CLR 323; 180 ALR 1; 62 ALD 225; 75 ALJR 1105 at 340; 12; 236; 1113
[25] (2001) 206 CLR 323; 180 ALR 1; 62 ALD 225; 75 ALJR 1105 at 340; 12; 236; 1113
[26] (2001) 206 CLR 323; 180 ALR 1; 62 ALD 225; 75 ALJR 1105 at 340; 12; 236; 1113
[27] Plaintiff S157/2002 v The Commonwealthof Australia (2003) 211 CLR 476; 195 ALR 24; 72 ALD 1; 77 ALJR 454 at 490; 32; 9; 461 per Gleeson CJ
[28] [2005] AATA 1148 at [42] and [43]
Does the Tribunal have any further power to make a decision in this case?
A decision under s 42C of the AAT Act requires the Tribunal to be satisfied that the decision upon which the parties have agreed is within its powers to make. Although the decision made in this case did not state that the Tribunal was so satisfied, that it was so must be implicit in the terms of the decision. That means that the decision must be read as extending only to compensation payments that may be properly made under the SRC Act.
Under the SRC Act, Mrs D’Alfonso was not limited to claiming compensation only in relation to future incapacity. The claim for compensation made on 8 March 2001 by her solicitors related to Mrs D’Alfonso’s ongoing partial incapacity. It was not limited to a particular date but, in subsequent correspondence, her solicitors identified 28 March 2000 as the date from which she claimed partial incapacity payments. On review, the Tribunal was entitled to consider whether Mrs D’Alfonso was entitled to compensation from that date.
The terms of the Tribunal’s decision suggest that it was exercising all of its powers to determine the matter. In stating that “the applicant is entitled to weekly payments of compensation for incapacity as a result of the injury … up to and including 26 October 2003” and not thereafter, the decision reads as if it is dealing with the whole period it could consider. The whole of the period included the period 28 March 2000 to 22 November 2001.
As that period has already been considered and decided by the Tribunal, there is nothing left for it left to do. In particular, it cannot now consider whether Telstra should pay compensation to Mrs D’Alfonso.
There is nothing in this case to suggest that the Tribunal made a jurisdictional error in deciding the case. Therefore, I cannot reconsider the issues on that basis.
If the parties were agreed that the decision contained an obvious error of a clerical or typographical nature, it would, in my view, be capable of being corrected by an amended decision. The President or the previously constituted Tribunal could use its power to do so under s 43AA(1) of the AAT Act. As it is, I do not consider that I have any avenue available to me to resolve the disagreement between the parties.
I certify that the nineteen preceding paragraphs are a true copy of the reasons for the decision herein of
Deputy President S A Forgie,
Signed: ...............................................................
Jayne Rathjen Associate
Date of Telephone Directions Hearing 2 December 2005
Date of Decision 7 June 2006
Solicitor for the Applicant Ms A. Sdrinis
Ryan Carlisle ThomasSolicitor for the Respondent Mr T. Noonan
Sparke Helmore
0
6
0