Hanna v Australian Postal Corporation

[1990] FCA 196

Re: NICOLA ABOU HANNA
And: AUSTRALIAN POSTAL CORPORATION
No. G9 of 1990
FED No. 196
Administrative Law
12 AAR 511

COURT

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
Davies J.(1)

CATCHWORDS

Administrative Law - Judicial Review - review of determination of delegate of Australian Postal Corporation made under Commonwealth Employees' Rehabilitation Compensation Act 1988 (Cth) - operation of s.62(1) and s.127(2) of the Act - whether the Australian Postal Corporation may reconsider an entitlement to compensation which had earlier been the subject of a decision by the Administrative Appeals Tribunal.

Administrative Law - Administrative Appeals Tribunal - nature of AAT decisions.

Administrative Appeals Tribunal Act 1975 (Cth) s.43

Commonwealth Employees' Rehabilitation Act (Cth) - ss.4, 60, 62, 101, 124, 127

HEARING

SYDNEY

#DATE 17:5:1990

Counsel for the applicant: Mr B. O'Sullivan

Solicitors for the applicant: Messrs Bolzan and Dimitri

Counsel for the respondent: Miss R. Henderson

Solicitor for the respondent: Australian Government Solicitor

ORDER

The application be dismissed with costs.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

JUDGE1

This is an application for orders of review under the Administrative Decisions (Judicial Review) Act 1977 (Cth) ("the ADJR Act") with respect to a decision of a delegate of the respondent, the Australian Postal Corporation, taken on 1 November 1989, that the Corporation was no longer liable to pay compensation to the applicant, Nicola Abou Hanna, under the Commonwealth Employees' Rehabilitation Compensation Act 1988 (Cth) ("the 1988 Act").

1. The application is brought on the ground that the delegate had no power to make that decision because an earlier decision with respect to Mr Hanna had been made by the Administrative Appeals Tribunal.

2. Counsel for the applicant did not challenge the view expressed by Evatt, Northrop and Burchett JJ. in Reitano v. Commonwealth of Australia, reported in part in (1985) 9 ALN. 201, that under s.20(4) of the Compensation (Commonwealth Government Employees) Act (1971)(Cth)("the 1971 Act") the Commissioner for Employees' Compensation had power in an appropriate case to reconsider an entitlement to compensation in respect of which the Administrative Appeals Tribunal had previously given a decision.

3. Counsel submitted, nevertheless, that, under the 1988 Act, there was no power in the Australian Postal Corporation to reconsider an entitlement to compensation which had earlier been the subject of a decision of the Administrative Appeals Tribunal.

4. On 2 July 1987, a delegate of the Commissioner for Employees' Compensation determined that "The Australian Postal Commission (now the Corporation) is not liable to pay compensation on and from 10 December 1986." On application for a review of the determination being lodged with it, the Administrative Appeals Tribunal, on 4 August 1988, made a consent decision in the following terms:-
   

"WHEREAS the parties have reached agreement after a preliminary conference held pursuant to s.34 of the Administrative Appeals Tribunal Act 1975, as to the terms of a decision of the Tribunal that would be acceptable to the parties, being a decision as hereinafter set out, and have lodged a signed agreement with the Tribunal in accordance with s.34(2); AND WHEREAS the Tribunal is satisfied that a decision as hereinafter set out would be within the powers of the Tribunal; NOW the Tribunal decides that the determination under review is varied as follows:

1. The respondent is liable to pay compensation on and from 10 December 1986 and ongoing until such time as the respondent is able to offer the applicant employment within the restrictions as set out in the Medical Examination Report of the Joint Medical Board dated 7th September 1987.

2. The respondent is ordered to pay the applicant's costs in accordance with the appropriate scale in the Compensation Court of New South Wales as agreed; and in the absence of agreement such costs are to be taxed by a Registrar or a Deputy Registrar of the Administrative Appeals Tribunal.

3. Liberty to apply is reserved to both parties generally."

Thereafter, until the subject determination, compensation was paid in accordance with that decision.

1. The 1988 Act made a number of fundamental changes to the legislation, including the establishment of the Commission for the Safety, Rehabilitation and Compensation of Commonwealth Employees. It provides for the making of determinations by that Commission and by Commonwealth authorities declared by the Minister under s.101 of the Act to be administering authorities.

2. Section 62(1) of the 1988 Act provides for reconsideration of determinations as follows:-
   

"(1) A determining authority may, on its own motion:

(a) reconsider a determination made by it; or

(b) cause such a determination to be reconsidered by a person to whom its power under this section is delegated, being a person other than the person who made, or was involved in the making of, the determination;

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."

That provision uses the expression "made by it". It also uses the term "determining authority", which is defined in s.60(1) as follows:-

"'determining authority' means:

(a) in relation to a determination made by the Commission - the Commission; and

(b) in relation to a determination made by an administering authority - that authority;"

Section 101(1) of the 1988 Act provides that the Minister may declare a Commonwealth authority to be an administering authority. The argument in this appeal proceeded on the footing that the Australian Postal Corporation was so specified.

1. The transitional provisions of the 1988 Act provide, inter alia:-
   

"124.(1) Subject to this Part, this Act applies in relation to an injury, loss or damage suffered by an employee, whether before or after the commencing day. ...

127.(2) Any determination made or action taken by the Commissioner for Employees' Compensation under the 1930 Act or the 1971 Act and having effect immediately before the commencing day, being a determination or action in respect of the liability of the Commonwealth to pay compensation or make any other payment to a person under the 1930 Act or the 1971 Act, as the case may be, shall be taken be a determination made by the relevant authority under this Act in respect of the corresponding liability of that relevant authority to pay compensation or make a similar payment under this Act to that person."

As the Australian Postal Corporation is the relevant authority, for the purposes of Mr Hanna's entitlement, it follows that the Australian Postal Corporation was entitled to reconsider under s.62(1) not only its own determinations but any determination made or action taken by the Commissioner for Employees' Compensation under the 1971 Act.

1. That brings us to the provisions of s.43(6) of the Administrative Appeals Tribunal Act 1975 (Cth) ("the AAT Act") which provides:-
   

"A decision of a person as varied by the Tribunal, or a decision made by the Tribunal in substitution for the decision of a person, shall, for all purposes (other than the purposes of applications to the Tribunal for a review or of appeals in accordance with section 44), be deemed to be a decision of that person and, upon the coming into operation of the decision of the Tribunal, unless the Tribunal otherwise orders, has effect, or shall be deemed to have had effect, on and from the day on which the decision under review has or had effect."

By virtue of this provision, the consent decision made by the Administrative Appeals on 4 August 1988 was and is deemed to be, for all relevant purposes, a decision of the Commissioner for Employees' Compensation.

1. Therefore, the decision of the delegate of the Commissioner for Employees' Compensation, of 2 July 1987, as varied by the decision of the Administrative Appeals Tribunal on 4 August 1988, was a decision made by the Corporation for the purposes of s.62(1) and the Australian Postal Corporation was empowered to make the determination which is under challenge.

2. In putting his argument, counsel for Mr Hanna relied upon the practice and law of New South Wales whereby, under s.107 of the the Workers' Compensation Act 1987 (NSW), the Compensation Court has exclusive jurisdiction to examine, hear and determine all matters arising under that Act. Counsel submitted that, once the Administrative Appeals Tribunal had made a decision, there could be no variation or termination of the entitlement thereby established, save through the process of a further application to the Administrative Appeals Tribunal. This submission, however, misstates the function of the Administrative Appeals Tribunal. The Administrative Appeals Tribunal is not a compensation court. Section 43(6) of the Administrative Tribunals Act makes express what would otherwise be necessarily implied, namely, that for the purposes of the review of a specific decision in relation to which application has been made to it, the Administrative Appeals Tribunal stands in the shoes of the primary decision-maker and its decision in the review has the effect of a decision of the primary decision-maker. But, having given its decision, the Administrative Appeals Tribunal is functus officio. It does not take over the management of an employee's entitlement to compensation by reason of having reviewed a decision with respect thereto.

3. For these reasons, the application will be dismissed with costs.