Johns and Telstra Corporation Limited (Compensation)

[2024] AATA 2084

Johns and Telstra Corporation Limited (Compensation) [2024] AATA 2084 (21 June 2024)

Division:                  GENERAL DIVISION

File Number:          2024/3112

Re:Roger James Johns

APPLICANT

AndTelstra Corporation Limited

RESPONDENT

DECISION

Tribunal:Mrs J C Kelly, Senior Member

Date:21 June 2024

Date of written reasons:        27 June 2024

Place:Sydney

The Tribunal does not have jurisdiction to review the decisions dated 26 April 2022, 7 November 2022 and 26 March 2024.

..................................[sgd]......................................

Mrs J C Kelly, Senior Member

CATCHWORDS

PRACTICE AND PROCEDURE – jurisdiction question – workers compensation claim – application for review by the Tribunal – whether decisions are reviewable - Tribunal has no jurisdiction to review the decisions

LEGISLATION

Administrative Appeals Tribunal Act 1975 (Cth)

Safety,RehabilitationandCompensationAct 1988 (Cth)

REASONS FOR DECISION

Mrs J C Kelly, Senior Member

27 June 2024

Introduction

1. On 15 May 2024, the Applicant, Mr Johns, filed an application for review of three decisions made by the Respondent dated 26 April 2022, 7 November 2022 and ‘22 March 2024’.

2. The issue is whether the Tribunal has jurisdiction to review each of the decisions.

3. I gave an oral decision on 21 June 2024 in which I found there was not. These are the written reasons for the oral decision, as requested by the Applicant’s solicitors.

   Background

4. The Applicant is 80 years old. He was employed as a Technician by Telstra Corporation Limited and its predecessors (the Respondent).

5. The Applicant submitted a claim for workers’ compensation dated 1 March 2021 in respect of “loss of hearing” and “tinnitus” claimed to have been sustained as a result of exposure to noise in the course of his employment with the Respondent between January 1959 and December 2000.

6. On 23 March 2021, the Respondent accepted liability for “noise induced hearing loss” pursuant to section 14 of the Safety,RehabilitationandCompensationAct 1988 (Cth) (the Act). Liability was also accepted for reasonable medical treatment including the provision of hearing aids pursuant to section 16 of the Act.

7. The Applicant lodged a claim for compensation for permanent impairment and non-economic loss dated 23 March 2021 for “noise induced hearing loss”.

8. The Respondent issued a decision dated 26 April 2022 that the Applicant was entitled to compensation for permanent impairment totalling $4,304.38 consisting of:

   (a)$609.16 pursuant to section 12, Third Schedule of the Commonwealth Employees Compensation Act 1930 for 6.45% binaural hearing loss;

   (b)$3,695.22 pursuant to section 39(9) of the Compensation(CommonwealthEmployees)Act 1971 for 8.80% binaural hearing loss;

   (c)Nil under section 24 and 27 of the Act in respect of 6.15% binaural hearing loss.

9. On 10 October 2022 the Applicant, through his solicitors, requested a reconsideration of the determination dated 26 April 2022, as well as an extension of time to make that request.

10. The Respondent issued a decision dated 7 November 2022 affirming the determination dated 26 April 2022. The decision contained a notice of rights advising the Applicant he had 60 days from receipt of that decision to lodge an application for review with the Tribunal.

11. The Applicant did not lodge an application for review with the Tribunal within the 60 day time period as required by section 65 of the Act.

12. The Applicant’s solicitor wrote a letter to the Respondent dated 22 March 2024 seeking reconsideration of the determination dated 26 April 2022 and providing additional evidence.

13. The Respondent replied by email dated 26 March 2024:

    Thank you for your email.

    Upon reviewing the information provided and the history, I consider my own knowledge under powers of own motion, however I’m not persuaded the hearing suffered over the last two years are related to his Telstra employment which ceased over two decades ago.

    Therefore, if you wish to proceed any further you must direct your application to the AAT.

14. No notice of rights was attached to the email dated 26 March 2024.

    Consideration

15. Relevantly, a reviewable decision is defined in section 60 of the Act as a decision made under subsection 62 of the Act, that is, a reconsideration of a determination as defined in section 60 of that Act. An application to the Tribunal pursuant to section 64 of the Act may only be made for review of a reviewable decision. 

16. The written decision made on 26 April 2022 was not a reviewable decision because it was not a reconsideration of a determination pursuant to section 62 of the Act. It was a determination as defined in section 60 of the Act, being a decision in respect of a claim for permanent impairment pursuant to section 24 of the Act. It was notified in writing and therefore satisfied section 61 of the Act. The Tribunal does not have jurisdiction to review that decision.

17. The decision made on 7 November 2022 was a reviewable decision however, the application for review by the Tribunal was not made within the time prescribed by subsection 29(2) the Administrative Appeals Tribunal Act 1975 (Cth) (the AAT Act). Section 65 of the Act has the effect that the prescribed time for making an application to the Tribunal in subsection 29(2) of the AAT Act is 60 days.

18. Subsection 29(7) of the AAT Act provides that the Tribunal may upon application in writing by a person, extend the time for the making by that person of an application to the Tribunal for a review of a decision … if the Tribunal is satisfied that it is reasonable in all the circumstances to do so.

19. Subsection 29(8) of the AAT Act provides that The time for making an application to the Tribunal for a review of a decision may be extended under subsection (7) although that time has expired.

20. The Applicant has not applied for an extension of time. Therefore, the Tribunal has no jurisdiction to review the reviewable decision dated 7 November 2022.

21. I did not understand the Applicant’s solicitor to disagree with the findings in relation to the decisions made on 26 April 2022 and 7 November 2022. The characterisation of the letter dated 26 March 2024 was contentious.

22. I have concluded that the email dated 26 March 2024 is not a reviewable decision for the following reasons.

23. Upon reflection after the hearing, the reason that the email is not a reviewable decision is that it is a response to a request to reconsider a determination which has been the subject of reconsideration by the determining authority with which the Applicant is dissatisifed. The request acknowledges that the 7 November 2022 reconsideration decision had been made.

24. The scheme of the Act does not include the power to do so. The Act sets out the review hierarchy as reconsideration by the determining authority and then review by the Tribunal. In the latter case, there is a timeframe for making application for review which may be extended pursuant to section 29(7) of the AAT Act.

25. Alternatively, if that is incorrect, the writer of the email has chosen not to exercise or has not exercised any power. He does not affirm, revoke or vary the determination or the reconsideration decision as required by section 62(5) of the Act. Therefore he has not set out the terms of the decision as required by subsection 63(a) of the Act. He states his conclusion but does not engage with the evidence and give reasons for that conclusion as required by subsection 63(b) of the Act.

26. The Tribunal does not have jurisdiction to review the decisions dated 26 April 2022, 7 November 2022 and 26 March 2024.

I certify that the preceding 26 (twenty -six) paragraphs are a true copy of the reasons for the decision herein of Mrs J C Kelly, Senior Member

...............................[sgd].........................................

Associate

Dated: 27 June 2024

Date of hearing:	21 June 2024
Solicitors for the Applicant:	Ms M Celi, Marsdens Law Group
Solicitors for the Respondent:	Ms S Johnson, HBA Legal