Downs and Maersk Supply Service (Compensation)
[2021] AATA 2445
•19 July 2021
Downs and Maersk Supply Service (Compensation) [2021] AATA 2445 (19 July 2021)
Division:GENERAL DIVISION
File Number: 2021/0733
Re:Timothy Downs
APPLICANT
AndMaersk Supply Service
RESPONDENT
DECISION
Tribunal:Deputy President Boyle
Date:19 July 2021
Date of written reasons: 22 July 2021
Place:Perth
The Respondent’s application to dismiss the application under s 42A(4) of the Administrative Appeals Tribunal Act 1975 (Cth) is refused.
...[SGD].....................................................................
Deputy President Boyle
CATCHWORDS
PRACTICE AND PROCEDURE – application to dismiss an application under s 42A(4) of the AAT Act – application for review of a reconsideration of a determination under the Seafarers Act – Respondent concedes that it had reconsidered the deemed declinature – decision is reviewable by the Tribunal – application dismissed
LEGISLATION
Administrative Appeals Tribunal Act 1975 (Cth) – ss 37, 42A(4)
Seafarers Rehabilitation and Compensation Act 1992 (Cth) – ss 63, 73, 76, 78, 79, 88(1)
CASES
Colquhoun v DOF Management Australia Pty Ltd [2020] AATA 4629
SECONDARY MATERIALS
Administrative Appeals Tribunal, ‘Lodgement of documents under sections 37 and 38AA of the AAT Act Practice Direction’ (30 June 2015) – paras 4.2, 4.3
REASONS FOR DECISION
Deputy President Boyle
22 July 2021
THE APPLICATION
This is an application by the Respondent to dismiss the proceedings brought by the Applicant.
Although the Respondent does not identify the legislative provision pursuant to which the application to dismiss is made, I assume that it is s 42A(4) of the Administrative Appeals Tribunal Act 1975 (Cth) (AAT Act) which provides that an application may be dismissed without proceeding to review of the decision if the Tribunal is satisfied that the decision is not reviewable by the Tribunal.
THE HEARING AND THE EVIDENCE
The application for dismissal was heard on 19 July 2021. The Applicant was represented by Mr N Morrissey of counsel, instructed by McNally Jones Staff Lawyers and the Respondent was represented by Ms R Aria Retnam of Sparke Helmore Lawyers. On 19 July 2021 I dismissed the Respondent’s application to dismiss the substantive application. These are my reasons for doing so.
The Respondent lodged a bundle of documents pursuant to s 37 of the AAT Act (T documents) which, unfortunately, contrary to the Administrative Appeals Tribunal, ‘Lodgement of documents under sections 37 and 38AA of the AAT Act Practice Direction’ (30 June 2015), were unnumbered and were not paginated, making it difficult to identify specific documents for the purposes of these reasons.
Pursuant to directions made by the Tribunal, the parties filed submissions on the dismissal application, with the Applicant filing submissions in reply to the Respondent’s submissions. The Applicant’s submissions attached copies of documents and correspondence (identified as attachments A–K) to which the Applicant referred in his submissions.
THE SUBSTANTIVE APPLICATION
By application lodged with the Tribunal on 10 February 2021,[1] the Applicant seeks the review of a decision by the Respondent (the Decision), notification of which was given to the Applicant’s lawyers by the Respondent’s lawyers, Sparke Helmore, by letter dated 8 February 2021.[2]
[1] Included in the T documents.
[2] Included in the T documents.
By the letter dated 8 February 2021, the Respondent’s lawyers advised that the Respondent had “… now reconsidered the deemed declinature dated 12 August 2020” and “affirms its deemed declinature, dated 12 August 2020, to decline liability for your client’s claim”.
BACKGROUND
The background to the Application is not materially in dispute. The Applicant was employed by the Respondent. In July 2020 the Applicant lodged a claim with the Respondent for compensation under the Seafarers Rehabilitation and Compensation Act 1992 (Cth) (Seafarers Act).
The Respondent passed the Applicant’s compensation claim on to its insurer, AAI Limited trading as Vero Insurance. Over the next several months there was correspondence between the Applicant and various claims officers of Vero about the progress of the Applicant’s claim.
The Respondent’s submissions filed in support of the application for dismissal summarised the relevant events as follows:
…
3.He lodged the claim on the employer on 28 July 2021. The employer forwarded the claim to its seafarers’ compensation insurer Vero on 28 July 2020.
4.The claim was deemed disputed on 12 August 2021.
5.On 19 November 2020, Vero received a letter from Trewin Norman. Vero advised Trewin Norman that the claimant had had to seek a reconsideration by on or about 12 September 2020 which the claimant had not done.
6.On 10 December 2020, the claimant instructed new solicitors McNally Jones Staff requesting a reconsideration of the deemed declined decision.
7.On 8 February 2020, the employer’s solicitors, Sparke Helmore Lawyers, advised the claimant’s solicitors that a request for review was required to be made by 12 September 2020 and that that deadline had expired.
8.On 18 February 2020, the employer received a notice of application for review of decision from the AAT.
9.On 19 March 2021, we provide the AAT with the employer’s statement setting out the findings on material questions of fact.
(Original emphasis.)
There are significant omissions in the above chronology to which I will return later.
LEGISLATIVE FRAMEWORK
Section 88(1) of the Seafarers Act provides:
Application may be made to the AAT by a claimant for review of a reviewable decision.
Section 73 of the Seafarers Act relevantly provides:
(1)This section applies to a claim for compensation relating to:
(a)an injury resulting in an employee being incapacitated for work; or
(b)the loss of, or damage to, property used by an employee; or
(c)the cost of medical treatment for an injury suffered by an employee.
(2)The employee’s employer must determine its liability in relation to the claim by the latest of the following times:
(a)the end of the period of 12 days after the day on which the employer receives the claim;
…
(6)If the employer has not determined the claim by the end of the period allowed by this section, the employer is taken to have made a decision, at the end of that period, disallowing the claim.
Section 76 of the Seafarers Act relevantly provides:
"reviewable decision" means a decision made under section 78.
Section 78 of the Seafarers Act relevantly provides:
(1)An employer may, on the employer's own initiative, reconsider a determination made by the employer, whether or not a proceeding has been instituted or completed under this Part in respect of a reviewable decision made in relation to that determination.
(2)A claimant may, by notice in writing given to an employer, request the employer to reconsider a determination made by the employer.
(3)A request for reconsideration of a determination must:
(b)set out the reasons for the request; and
(c)be given to the employer within 30 days after the day on which the determination first came to the notice of the claimant, or within such further period (if any) as the employer, either before or after the end of that 30 day period, allows.
…
(6)After an employer reconsiders a determination, the employer must make a decision affirming or revoking the determination or varying the determination in such manner as the employer thinks fit.
CONSIDERATION
The basis of the Respondent’s application for dismissal is not clear, or at least it is not clear to me. The Respondent’s submissions, having set out the chronology quoted at [10] above, refer to the provisions of the Seafarers Act to which I have referred in [12]–[15] above and to ss 63 and 79 of that act.
The Respondent’s submissions then set out what the Respondent says are the requirements for a valid claim for compensation under the Seafarers Act, largely basing those requirements on the Seafarers’ Safety, Rehabilitation and Compensation Authority Claim for Workers’ Compensation Form. The Respondent identifies 38 requirements.
The Respondent then submits as follows:
Ground 1
19The claimant lodged the claim on 28 July 2020. Liability was deemed disputed.
1.The employer submits that the claim was deemed to be disputed, at the latest on 12 August 2020;
2.Therefore, a request for reconsideration was due on 12 September 2020;
3.The claimant did not request a reconsideration until 10 December 2020 and accordingly, the claimant’s request was out of time;
20Therefore, there is no reviewable decision and the Tribunal does not have jurisdiction in relation to this application.
The Respondent’s submissions then refer to my decision in Colquhoun v DOF Management Australia Pty Ltd[3] (Colquhoun) and quote [64] (although the paragraph is not identified) of that decision which held that:
“The Respondent was therefore under no obligation under s 78 of the SRC Act to reconsider the determinations taken to have been made on 2 December 2019 and to make a decision on the redetermination. There was no decision made, and no obligation to make a decision, under s 78. There is therefore no reviewable decision as that term is defined in s 76(1) of the SRC Act. The Tribunal therefore does not have jurisdiction.”
[3] [2020] AATA 4629.
Despite that which is quoted in [18] above being headed “Ground 1”, there is no other “ground” for the application for dismissal identified by the Respondent either in the submissions or at the hearing. It relies solely on “Ground 1”.
The fairly obvious flaw in the Respondent’s argument, and one that was pointed out by the Applicant in his submissions, is that the Respondent did reconsider the “deemed declinature” of the Applicant’s claim. The fact that the Applicant may not have requested a reconsideration of the deemed declinature of his claim within the time required by the Seafarers Act for such a request (or at all) is irrelevant. The indisputable fact is that the Respondent, somewhat bizarrely, having argued that it was not required to reconsider the deemed declinature of the Applicant’s claim because the Applicant had failed to request a reconsideration within the time required, did, in any event, reconsider the deemed declinature.
The terms of the Sparke Helmore letter dated 8 February 2021 make that clear. The letter is headed “Reconsideration Determination”. It goes on to state, amongst other things, that:
On 12 August 2020, our client declined liability for your client’s compensation claim by a deemed declinature on the basis that there was insufficient medical and factual evidence to support your [sic] claim.
The above statement is oxymoronic. If the claim is deemed to be declined because the Respondent, or more correctly its insurer, failed to make a decision on liability within the time required by the Seafarers Act, then the claim is clearly not declined because there was “insufficient medical and factual evidence to support” the claim. It was declined by operation of s 73(6) of the Seafarers Act.
The letter goes on to state:
Our client has now reconsidered the deemed declinature dated 12 August 2020.
…
Pursuant to section 79 of the Seafarers’ [sic] Rehabilitation and Compensation Act 1992 (“the Act”), our client has reconsidered its determination taking into account the available evidence.
In accordance with the Act, our client affirms its deemed declinature, dated 12 August 2020, to decline liability for your client’s claim.
Under the headings “Medical and Factual Evidence” and “Declinature of your client’s claim” on page 2 of that letter, it stated that:
Our client has considered the medical and factual evidence received in particular that:
1.There is limited medical and factual information that has been provided by your client in support of his claim;
2.Our client will submit that your client was aggressive to fellow staff and threatened to stab people, your client exaggerated or fabricated his claims and your client was subject to reasonable disciplinary action based on his work performance and you client was invited to a disciplinary meeting on 22 September 2020, which we understand he did not attend.
Under the heading “Terms of Reconsideration” the letter stated that:
Our client affirms its deemed declinature determination, dated 12 August 2020, to decline liability for your client’s claim for psychological/psychiatric injury.
By its language and content, the Sparke Helmore letter of 8 February 2021 is unequivocally advising the Applicant’s lawyer that the Respondent has reconsidered the deemed declinature of the Applicant’s claim. It could not be read any other way. That exercise, despite the 8 February 2020 letter referring to s 79 of the Seafarers Act (which deals with the time for making a reconsideration decision following a request for reconsideration), was a decision under s 78 of the Seafarers Act which is the section by which an employer, either on its own initiative or following a request by a claimant, reconsiders a previous decision. That would clearly include, as it did in this case, reconsideration of a decision constituted by a deemed declinature of a claim.
Accordingly, it is clear that the decision the subject of the substantive application is a decision under s 78 of the Seafarers Act, and is, therefore, a reviewable decision as that term is defined in s 76 of that act and is a decision that is reviewable by the Tribunal under s 88 of the Seafarers Act. For that reason, the Respondent’s application to dismiss the application on the basis that the decision is not reviewable must fail.
As noted at [11] above, there were, in my view, omissions from the chronology in the Respondent’s submissions. The chronology jumps from 12 August 2020, when the Respondent says that the claim for compensation was deemed to be declined, to 19 November 2020 when Respondent says that Vero received a letter from Trewin Norman. No letter from Trewin Norman was included in the T documents filed by the Respondent. A letter dated 19 November 2020 from Trewin Norman was attached to the Applicant’s submissions (attachment H). The Applicant’s submissions also referred to a letter dated 14 September 2020 from Trewin Norman to GIO Insurance (attachment F). The 14 September 2020 letter from Trewin Norman advised that they acted for the Applicant, asked whether liability for the Applicant’s claim had been admitted and sought copies of various of the documents that had been provided to the insurer by the Applicant.
It appears that the Vero claims officer handling the Applicant’s claim responded to the letter dated 14 September 2020 by email dated 24 September 2020 (attachment G to the Applicant’s submissions). That email was not included in the T documents. The email stated that it attached a copy of the file “as requested”, advised that the claim was made on 16 July 2020 under the Seafarers Act and said that the claims officer was happy to discuss the claim once Trewin Norman had had the opportunity to review the claim.
The next relevant correspondence, again not included in the T documents, was the letter from Trewin Norman dated 19 November 2020 (attachment H to the Applicant’s submissions). That letter again asked whether liability for the Applicant’s claim had been accepted and sought a response within 14 days.
It appears that it was only in response to this letter of 19 November 2020 from the Applicant’s then lawyers, that the claims officer, by email on 2 December 2020, first advised the Applicant that the insurer was treating the claim as being deemed to have been rejected on 12 August 2020 and that any request for reconsideration of that deemed rejection had to have been made by “around 12 September 2020”.
Another significant omission in the chronology for this period in the Respondent’s submissions, was the omission of reference to the correspondence between the Applicant and the insurer following the submission of his claim on or around 28 July 2020. I do note that most of these exchanges were included in the T documents and were referred to in the s 37 Statement Setting Out the Findings on Material Questions of Fact filed by the Respondent. As the s 37 Statement disclosed, during the several months after the Applicant submitted his claim, the Respondent (or more correctly the insurer) was actively considering the merits of the Applicant’s claim. It was undertaking investigations, gathering evidence, preparing reports and giving the impression to the Applicant, and then to his solicitors, that the claim was still under active assessment. In fact, it seems that right up until the decision was apparently made by the insurer to rely on the deemed rejection of the claim months earlier and the failure to make a request for reconsideration of the deemed determination within 30 days thereof, that that was what the Respondent (or insurer) was doing. As the Applicant’s now lawyers, McNally Jones Staff Lawyers, put it in their email to Sparke Helmore on 10 December 2020 (accurately, in my view):
It has become apparent that your organisation (it is not clear from the correspondence whether that is Suncorp, Vero or GIO), has allowed some 5 months to pass whilst my client has been under the impression that GIO has been investigating his claim with a view to issuing a Determination as to liability.
This is not the first time that this has happened. We need only look to the case to which both parties referred, Colquhoun, to see another example of a claimant being given to believe that his claim for compensation was being considered on its merits while the time for the request for reconsideration of the deemed rejection continued to run and, in both cases, pass. It would be of concern if insurers thought it was an appropriate practice to cause claimants, particularly unrepresented claimants, to think that their claims were being assessed on the merits while they were, in reality, heading towards a deemed rejection (in the case of the Seafarers Act after 12 days) in relation to which they have to request reconsideration within 30 days thereafter. In the majority of cases it is unlikely that a determination as to liability would be reached within 12 days of the claim being made. Further, it is probably only slightly less unlikely that such a decision on liability would even be reached within 42 days of a claim being made, by which time the claimant will have lost the right to request a reconsideration thereby denying the claimant the right to review by the Tribunal.
The other, and probably the most critical, omission in the Respondent’s chronology in its submissions was the omission of the fact that on or about 8 February 2021 the Respondent did reconsider the deemed rejection of the Applicant’s claim. Paragraph 7 of the Applicant’s submissions (see [10] above) says that the Sparke Helmore letter of 8 February 2021 “advised the claimant’s solicitors that a request for review was required to be made by 12 September 2020 and that that deadline had expired”. However, what that paragraph omitted to mention was that that letter also advised in several places that, notwithstanding that the time for the Applicant to request a reconsideration had long-passed, the Respondent had “now reconsidered the deemed declinature dated 12 August 2020” (see [24]–[26] above).
I note again that the s 37 Statement did concede that the Respondent had reconsidered the deemed declinature. It stated at para 18 that:
On 8 February 2021, the respondent issued a reconsideration determination affirming the deemed declinature and raising the fact the applicant was out of time to request a reconsideration. Accordingly, the respondent says the Administrative Appeals Tribunal (Tribunal) does not have jurisdiction to hear the claim.
(Original emphasis.)
For the reasons that I have set out, the statement in [36] above is non-sequitur. The Respondent, correctly, concedes that it issued a reconsideration of the previous decision (albeit a deemed decision). For the reasons set out at [27] and [28] above, that is a decision under s 78 of the Seafarers Act and is a decision that is reviewable by the Tribunal.
DECISION
The Respondent’s application to dismiss the application under s 42A(4) of the AAT Act is refused.
I certify that the preceding 38 (thirty-eight) paragraphs are a true copy of the reasons for the decision herein of Deputy President Boyle
...[SGD].....................................................................
Associate
Dated: 22 July 2021
Date of hearing: 19 July 2021 Counsel for the Applicant: Mr N Morrissey Solicitors for the Applicant: McNally Jones Staff Lawyers Counsel for the Respondent: Ms R Aria Retnam Solicitors for the Respondent: Sparke Helmore Lawyers
0
1
0