Huynh and Australian Postal Corporation (Compensation)

[2021] AATA 4677

Huynh and Australian Postal Corporation (Compensation) [2021] AATA 4677 (3 December 2021)

Division:GENERAL DIVISION

File Number(s):      2021/8708

Re:Tan Hung Huynh

APPLICANT

AndAustralian Postal Corporation

RESPONDENT

DECISION

Tribunal:Dr L Bygrave, Member

Date:3 December 2021

Date of written reasons:        16 December 2021

Place:Sydney

The application is dismissed pursuant to subsection 42A(4) of the Administrative Appeals Tribunal Act 1975 (Cth).

................................[SGD]..................................

Dr L Bygrave, Member

CATCHWORDS

PRACTICE AND PROCEDURE – worker’s compensation – jurisdiction – whether application constitutes reviewable decision pursuant to section 62 of the Safety, Rehabilitation and Compensation Act 1988 (Cth) – Tribunal does not have jurisdiction – application dismissed

LEGISLATION

Administrative Appeals Tribunal Act 1975 (Cth) ss 3, 25, 42A(4)

Safety Rehabilitation and Compensation Act 1998 (Cth) ss 14, 16, 19, 24, 62, 63

REASONS FOR DECISION

Dr L Bygrave, Member

16 December 2021

1. The decision of the Tribunal and the reasons for the decision were delivered orally on 3 December 2021. At the request of the applicant, the following paragraphs are the written reasons for the decision.

   INTRODUCTION

2. On 11 November 2021, Mr Tan Hung Huynh lodged an application for review of a decision with the General Division of the Administrative Appeals Tribunal (the Tribunal) and provided additional documents. In his application, Mr Huynh identified the decision to be reviewed was a ‘worker’s compensation’ decision he received on 22 September 2021. Mr Huynh set out the reasons for his application, which included that he had worked ‘with Australia Post for over 15 years’ and had three work-related accidents on 13 February 1990, 12 May 1995 and 2 February 2001 that had resulted in a ‘back and foot condition’.

3. At the direction of the Tribunal, the legal representative for the Australian Postal Corporation provided written submissions dated 2 December 2021.

4. The Tribunal heard the interlocutory (jurisdiction) matter by teleconference on 3 December 2021. Mr Huynh attended the hearing and made oral submissions with the assistance of an interpreter of the Vietnamese language.

   RELEVANT LEGISLATION

5. The power of the Tribunal to review a decision is set out in section 25 of the Administrative Appeals Tribunal Act 1975 (Cth) (the AAT Act). Subsection 25(1) of the AAT Act states:

   (1)  An enactment may provide that applications may be made to the Tribunal:

   (a)for review of decisions made in the exercise of powers conferred by that enactment; or

   (b)for the review of decisions made in the exercise of powers conferred…by another enactment having effect under that enactment.

6. Section 3 of the AAT Act interprets ‘enactment’ to mean ‘an Act’.

7. The enactment or Act relevant to Mr Huynh’s application to the Tribunal is the Safety, Rehabilitation and Compensation Act 1988 (Cth) (the SRC Act). Part IV of the SRC Act outlines provisions for the reconsideration and review of determinations: section 62 deals with the reconsideration of determinations made by a determining authority in relation to a claimant and section 63 provides that a claimant shall be notified of a reviewable decision in writing. Section 63 of the SRC Act also stipulates that the notice in writing shall set out the terms of the decision, the reasons for the decision and contain a statement that an application may be made to the Tribunal for review of the decision, subject to the AAT Act.

   CHRONOLOGY

8. Mr Huynh provided documents to the Tribunal showing the following chronology of events:

   ·He suffered injuries from work-related accidents on 12 May 1995 and 2 February 2001, and subsequently lodged claims for compensation with Australia Post.

   ·His claims for worker’s compensation were initially determined by Australia Post and then progressed to be heard by the Tribunal.

   ·On 15 August 2003, the Tribunal (comprising Dr J D Campbell, Member) made the following decisions:

   omatter N2001/1774, the decision under review (to disallow Mr Huynh’s ‘claims for compensation for left heel pain and left ankle pain and sore back’) was affirmed; and

   omatter N2002/1982, the decision under review (to disallow Mr Huynh’s ‘claims of compensation for injury to the left foot or back arising from the nature and condition of employment; injury to the left foot/ankle/heel associated with the incident of 2 February 2001; and injury to back alleged to be sustained on 12 May 1995’) was affirmed.

   ·On 15 April 2004, the Australian Postal Corporation notified Mr Huynh in writing of his ‘invalidity retirement’ on the basis that the ‘medical evidence indicates that he is suffering from osteoarthritis affecting [his] back and (L) plantar fasciitis, which render him unable to discharge or incapable of discharging the duties of his position’.

   ·Mr Huynh has been in receipt of the disability support pension since 2008.

   ·On 22 September 2021, Mr Damian Howe (Medical Team Leader at Australia Post) sent an email to Mr Huynh that noted a copy of claims files was sent to him on 18 August 2020, as well as a summary of the information in the files. The email also identified Mr Huynh’s lawyers and listed his claims for incapacity with Australia Post, noting that all his claims had either been resolved or been determined at the Tribunal or been denied.

   ·On 1 November 2021, Mr Howe sent a letter to Mr Huynh that included the following information:

   As previously advised in my response email dated 22.09.2021…, your matter was already heard at a full hearing of the Administrative Appeals Tribunal. As a result of this hearing it was found that Australia Post holds no liability for your left heel, foot, ankle and back injuries as per the attached AAT hearing outcome…

   Australia Post is unable to provide guidance or advice in relation to your matter as your injuries have been deemed not to be work related by the Administrative Appeals Tribunal.

   CONSIDERATION

9. At the Tribunal hearing, Mr Huynh confirmed he is seeking review of the email Mr Howe sent to him on 22 September 2021. He said that he continues to experience medical issues, particularly since he was involved in two separate motor vehicle accidents in 2017 and 2018.

10. I accept that Mr Huynh is dissatisfied with the decision made by the Tribunal on 15 August 2003 in relation to his worker’s compensation claims and, more than 18 years later, remains distressed about the process. However, I am satisfied his claims for worker’s compensation were finally determined by the Tribunal on 15 August 2003 and liability for his claims of compensation were denied pursuant to sections 14, 16, 19 and 24 of the SRC Act. Moreover, I note the power granted under an Act to undertake a review of a particular decision can, as a general rule, be exercised only once.

11. I am also satisfied that the email dated 22 September 2021 and the letter dated 1 November 2021 do not meet the statutory provisions of a ‘reviewable decision’ in accordance with the SRC Act and AAT Act. In particular, these documents do not contain any of the information required by section 63 of the SRC Act.

12. On the basis of the available information, I therefore find that the Tribunal does not have jurisdiction to review Mr Huynh’s application made on 11 November 2021.

    DECISION

13. For these reasons, the application made by Mr Huynh on 11 November 2021 is dismissed in accordance with subsection 42A(4) of the AAT Act because I am satisfied the decision is not reviewable by the Tribunal.

I certify that the preceding 13 (thirteen) paragraphs are a true copy of the reasons for the decision herein of Dr L Bygrave, Member

..................................[SGD]....................................

Associate

Dated: 16 December 2021

Date(s) of hearing:	3 December 2021
Applicant:	In person
Solicitors for the Respondent:	Ms Emma O'Connor, Sparke Helmore Lawyers