Destro and Telstra Corporation Ltd

[2005] AATA 1134

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2005] AATA 1134

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No S2005/246

GENERAL ADMINISTRATIVE DIVISION		)
Re		JOHN DESTRO

Applicant

And TELSTRA CORPORATION LTD

Respondent

DECISION

Tribunal Senior Member L Hastwell

Date16 November 2005

PlaceAdelaide

Decision The Tribunal has no jurisdiction to hear this application for review.

..............................................

L HASTWELL
  (Senior Member)

CATCHWORDS

PRACTICE AND PROCEDURE – jurisdiction – no prescribed time for making a determination in Safety Rehabilitation and Compensation Act 1988 – failure to make decision – can this be treated by Tribunal as reviewable decision? – no jurisdiction

Administrative Appeals Tribunal Act 1975 ss 3, 25

Safety Rehabilitation and Compensation Act 1988 ss 38, 61, 62, 64

REASONS FOR DECISION

16 November 2005   Senior Member L Hastwell   

1.      The hearing before the Tribunal was with respect to the issue of whether the Tribunal has jurisdiction to deal with the application for review lodged by the applicant’s solicitors on 9 September 2005.

2. Under s 25 of the Administrative Appeals Tribunal Act 1975 (the AAT Act) the jurisdiction of this Tribunal only arises in the event that there is a decision made under an enactment, and that enactment specifically provides for a review of that decision to the Tribunal.

3. Under s 3(3)(a) of the AAT Act a reference to a decision can include:

“(3)Unless the contrary intention appears, a reference in this Act to a decision includes a reference to:

(a)making, suspending, revoking or refusing to make an order or determination;”

4. Under s 25(5) of the AAT Act a failure to make a decision within a prescribed time can be deemed to constitute a decision. Section 25(5) of the Act provides:

“(5)For the purposes of an enactment that makes provision in accordance with this section for the making of applications to the Tribunal for review of decisions, a failure by a person to do an act or thing within the period prescribed by that enactment, or by another enactment having effect under that enactment, as the period within which that person is required or permitted to do that act or thing shall be deemed to constitute the making of a decision by that person at the expiration of that period not to do that act or thing.”

5. It is common ground that no reviewable decision has been made by the respondent. The applicant asks the Tribunal to find that the failure to make a decision is to be treated as a decision under s 3(3)(a) or under s 25(5) of the AAT Act.

6.      It is quite clear that the applicant has had difficulty in getting the respondent to respond to his claim.  In the application for review, the applicant refers to a request for a decision from the compensating authority in relation to payments of weekly incapacity payments, and refers to letters of 7 April 2004, 3 June 2004, 30 May 2005, 20 June 2005 and 27 July 2005.  In that final letter the respondent is put on notice that the applicant assumes a rejection of his claim, and requests reconsideration within 14 days.  They put the respondent on notice that if they do not receive a reconsideration within 14 days, they will then assume that the respondent has reconsidered so as to affirm the assumed determination to reject the applicant’s claim for incapacity payments.

7.      The respondent did initially respond to the request for a determination from the applicant.  On 28 May 2004, in response to a request for a determination, the respondent requested an updated medical examination of the applicant [Exhibit A1].  An independent medical examination was arranged for October 2004, but the applicant failed to attend.  This was not due to any fault of the respondent.

8.      In June 2004 the applicant again requested a determination, despite the indication from the respondent that they wanted an independent medical examination undertaken.  The respondent responded on 29 June 2004 stating that they had no supporting evidence regarding the closed period of alleged incapacity.  

9.      The medical examination was undertaken by the applicant in April 2005.  A report was available by late May 2005.

10.     On 30 May 2005 the applicant’s solicitor wrote to the respondent requesting a determination.  In June 2005, and then in July 2005, further letters were sent by the applicant’s solicitor requesting a determination, but no response was received from the respondent.  The applicant then lodged the application for review in this Tribunal treating the respondent’s failure to make a determination as a reviewable decision.

11.     In May 2005 GIO made inquiry through the Telstra Superannuation Scheme with respect to the applicant’s superannuation entitlements, to enable them to calculate his ongoing entitlement under the Safety Rehabilitation and Compensation Act 1988 (the SRC Act).  Nevertheless, the determination as to the respondent’s liability is not dependent on this information being provided, and the respondent has been in a position to make a determination as to liability for some months.  The applicant is being significantly prejudiced by the respondent’s unacceptable delay in dealing with his claim.

12.     The respondent says that they are intending to make a decision, and that the first time they were in a position to make such a decision was in late May 2005 when the medical report was received.  The respondent blames internal administrative difficulties for their failure to promptly deal with the applicant’s claim since that time.

13. The Tribunal’s power to review a decision made under s 64 of the SRC Act is a power limited to review of a reviewable decision made under s 38(4) or s 62 of the SRC Act. No such decision has been made in this case. There was also no original determination made within the meaning of s 61 of the SRC Act. Section 61(1) of the SRC Act provides:

“(1)As soon as practicable after a determining authority makes a determination, it shall cause to be served on the claimant a notice in writing setting out:

(a)      the terms of the determination;

(b)      the reasons for the determination; and

(c)a statement to the effect that the claimant may, if dissatisfied with the determination, request a reconsideration of the determination under subsection 62(2).”

Section 62 of the SRC Act deals with reconsideration of determinations and there is no time limit imposed on the reviewing officer. The applicable provision is s 62(5) which provides:

“(5)Where a person reconsiders a determination, the person may make a decision affirming or revoking the determination or varying the determination in such manner as the person thinks fit.”

14.     The issue here is whether the respondent’s failure to make any decision at all can be treated as a reviewable decision such that this Tribunal could review the matter.

15. The Tribunal is satisfied that neither s 3(3) nor s 25(5) of the AAT Act operates in this instance to confer jurisdiction on this Tribunal. There has been no refusal to make a determination within the meaning of s 3(3) of the AAT Act. The operation of s 25(5) of the AAT Act is dependant upon on there being a time limit prescribed in the SRC Act within which the decision-maker must make their decision that then becomes the reviewable decision. No such time limits are prescribed in the SRC Act. The Tribunal therefore has no jurisdiction to deal with the application for review lodged by the applicant on 9 September 2005 as there is no reviewable decision.

I certify that the 15 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member L Hastwell

Signed:         ................J Coulthard ......................................
  Associate

Date of Hearing  20 October 2005
Date of Decision  15 November 2005
Counsel for the Applicant         Mr I Milsom
Solicitor for the Applicant          Maloney & Partners
Counsel for the Respondent     Mr S MacGregor
Solicitor for the Respondent     Sparke Helmore