Duong and Australian Postal Corporation

[2004] AATA 1202

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2004] AATA 1202

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No N2002/199

GENERAL ADMINISTRATIVE DIVISION		)
Re		CUC KIM DUONG

Applicant

And AUSTRALIAN POSTAL CORPORATION

Respondent

DECISION

Tribunal Ms N Bell, Member

Date15 November 2004

PlaceSydney

Decision The decision under review is affirmed.

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

Ms N Bell  Senior Member

COMPENSATION – Cease Liability – Whether Jurisdiction to Review

Safety, Rehabilitation and Compensation Act 1988 - ss 24 and 27

Lees v Comcare [1999] FCA 753

Australian Postal Corporation v Oudyn [2003] FCA 318

Comcare v Sassella [2001] FCA 1514

REASONS FOR DECISION

15 November 2004   Ms N Bell, Senior Member

1.      Ms Duong, born in 1952 in Vietnam, arrived in Australia in 1980 and commenced work with Australia Post as a mail officer in 1985.  In May 1995 she developed pain in her right shoulder and right arm following an incident and claimed medical expenses and loss of income.  This claim was initially rejected by Australia Post.  On 27 July 1995 after reconsideration, the decision was varied and liability was accepted for her right shoulder and right arm but purported to be restricted to 26 May 1995 only.

2.      In December 1997 Ms Duong made a claim for medical expenses and loss of income in relation to an injury to her back.  Liability was denied by Australia Post.  On 16 March 1998, after reconsideration, the decision was varied to accept liability for a soft tissue injury to Ms Duong’s back with that liability to cease on 16 March 1998.

3.      On 20 December 2000, Ms Duong lodged the claim for compensation in relation to her neck, shoulder, right arm and lower back.  On 16 January 2001, Australia Post responded to the effect that liability had ceased in 1995 and 1998 in respect of Ms Duong’s injuries and she was therefore not entitled to compensation. On 8 November 2001, after reconsideration Australia Post affirmed that determination.

4.      Ms Duong lodged an application for review of that decision with the Tribunal.

5.      Ms Duong then applied for an extension of time to lodge her application for review of the decisions of 27 July 1995 and 16 March 1998 with the Tribunal.  The Tribunal declined to extend time.

6.      At the substantive hearing of the application to review the decision of 8 November 2001, Australia Post submitted that the Tribunal had no jurisdiction to hear the application on the basis that the issue of liability, which, according to the earlier reviewable decisions in 1995 and 1998 had ceased, was not before the Tribunal.

7.      The matter was adjourned to a date to hear submissions on this issue of jurisdiction.

8.      An extension of time having not been granted, the decisions of 27 July 1995 and 16 March 1998 are not before the Tribunal thus it cannot affirm, vary, or set them aside.  The issue to be considered, then, is how the 1995 and 1998 decisions, as they stand, impact upon the 2001 decision.

9.      Mr Polin, for Australia Post, submitted that, in accordance with the decision in Lees v Comcare [1999] FCA 753, the 1995 and 1998 decisions, as they stand, serve to “close the gate” to the question of liability.  He acknowledged the effect of the Federal Court’s decision in Australian Postal Corporation v Oudyn [2003] FCA 318, that a decision-maker cannot purport to bind itself into the future, but noted that the decisions, not being before the Tribunal, cannot be revisited and remain, rightly or wrongly, the last word on the question of liability.

10.     I considered whether, in light of the decision in Oudyn (supra), the Tribunal could interpret the effect of the 1995 and 1998 decisions in accordance with the principles set out in Oudyn (supra), that is, as determinations that the payments cease because the circumstances entitling payment under that section, that is, section 19 of the Safety, Rehabilitation and Compensation Act 1988, no longer exist or can no longer be made out by the claimant.

11.     However I am satisfied that it is not open to me to do so.  I have no power to change a decision that is not before me and in any event I have no evidence that this was the determination intended by Australia Post when making its decisions on these claims.  In addition, if I were, by similar or other means, to ignore the decisions as being rendered void or inoperative by the principles in Oudyn (supra), the original decisions, denying liability outright, would remain and Ms Duong’s position would not be improved.

12.     Mr Jackson, for the Applicant, submitted that the claim made on 20 December 2000 was a fresh and different claim, concerning different matters.  In particular, Mr Jackson submitted the later claim concerns the nature and conditions of the Applicant’s work and raised a new injury (her neck).

13.     I note that the claim on which the 2001 decision is based was a claim for “neck, shoulder, right arm and lower back” and the date of injury given is 6 March 1994.  The claim is dated 20 December 2000.  Three incidents are noted in an annexure to the claim and two of these are the same incidents as were the subjects of the earlier decisions in 1995 and 1998.  No mention is made of the nature and conditions of work.  The Respondent wrote to the Applicant’s solicitors on 16 January 2001, noting that claims had already been lodged for two of the incidents noted, that liability had been “ceased” and requesting particulars of an incident claimed to have taken place in March 1994.

14.     The next correspondence appearing in the T documents is a letter from the Applicant’s solicitors dated 24 August 2001, purporting to serve a medical report which deals solely with an assessment of percentage impairment under what appears to be the Comcare Tables - for right upper limb, cervical spine and lumbar spine.

15.     The Respondent’s response on 14 September 2001 stated:

“Liability for the conditions claimed has been ceased in determinations of 27 July 1995 and 17 March 1998 and there is no further entitlements (sic) under the sections of the Act.”

16.                On this basis Australia Post determined that the Applicant was not entitled to payment of compensation under sections 24 and 27 of the Act.

17.     On 6 November 2001, Ms Duong’s solicitors wrote to Australia Post as follows:

“We refer to the above matter and advise that we are instructed to request a reconsideration/determination in respect of permanent impairment and in respect of weekly payments.”

18.     The Respondent affirmed its determination of 14 September 2001, and referred again to its decisions of 27 July 1995 and 17 March 1998, “ceasing” liability.

19.     It is clear from this correspondence that the Respondent considered that its determinations as to liability in 1995 and 1998, continued to apply and no new determination as to liability was made.

20.     On this basis, it cannot be argued that the decision of 8 November 2001 impliedly included, although unstated, a fresh determination under section 14 of the Act.

21.     I also note the comments of the Full Court in Lees (supra) to the effect that it may be that, where no earlier determination under section has been made, the Act allows the issue of liability to be determined under section 24.  Here, however, there is a determination that purports to “cease” liability and it remains at large.

22.     Mr Jackson, for Ms Duong, drew my attention to the decision of Wilcox J in Commonwealth of Australia v Ford (65 ALR 323) in which His Honour was critical of the Commonwealth taking technical jurisdictional points that require proceedings to be recommenced before the Tribunal. I consider that the matter raised by the Respondent in this application goes considerably further than that raised in Ford and that, in light of Lees, it is more than a mere technical jurisdictional point.

23.     Mr Jackson also submitted that Australia Post, in its 2001 determination, should have revisited the question of liability and its failure to do so is open to review by the Tribunal.  However, the decision of the Federal Court in Comcare v Sassella [2001] FCA 1514 was brought to my attention by Mr Polin.  In that decision Finn J said:

“… The making of a decision involves both reaching a conclusion on a matter as a result of a mental process having been engaged in and translating that conclusion into a decision by an overt act of such character as, in the circumstances, gives finality to the conclusion …”

24.     There is no evidence before me of Australia Post having engaged in the process referred to in Comcare v Sassella (supra) and, it follows, there is no decision of the kind suggested by Mr Jackson available for review.

25.     The difficulties in this application were put to me by the Respondent as an absence of jurisdiction.  I consider, rather, that they amount to an obstacle to the Applicant’s success.  There is a reviewable decision before me.  Its precursor decision, and the one from which it flows, is not before me.  The practical and logical effect of that is that I can do nothing but affirm the reviewable decision before me.

Decision

26.     The decision under review is affirmed.

I certify that the 26 preceding paragraphs are a true copy of the reasons for the decision herein of Ms N Bell, Member

Signed:         ........[Linda Blue]........................................
  Associate

Dates of Hearing  3 September 2004; 15 October 2004
Date of Decision  15 November 2004
Counsel for the Applicant         Mr Cameron Jackson
Solicitor for the Applicant          Mr Philip Pham
Counsel for the Respondent     Mr Nick Polin
Solicitor for the Respondent     Ms Emma O’Connor