Kilty and Australian Postal Corporation
[2003] AATA 164
•19 February 2003
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2003] AATA 164
ADMINISTRATIVE APPEALS TRIBUNAL )
) No V02/685
GENERAL ADMINISTRATIVE DIVISION ) Re KERRYN KILTY Applicant
And
AUSTRALIAN POSTAL CORPORATION
Respondent
DECISION
Tribunal Mrs Joan Dwyer, Senior Member Date19 February 2002
PlaceMelbourne
Decision
The Tribunal decides it has jurisdiction to proceed further with the hearing of this application.
(Sgd) Joan Dwyer
Senior Member
COMPENSATION – suspension of compensation under s 37(7) of the Safety, Rehabilitation and Compensation Act 1988 where employee refuses or fails without reasonable excuse to undertake a rehabilitation program ‑ whether Tribunal has jurisdiction to review suspension – procedure Tribunal should adopt in deciding jurisdiction issue – Tribunal has jurisdiction
PRACTICE AND PROCEDURE – Hearing to determine “pertinent questions of fact and law” which arise as to jurisdiction question ‑ whether if Tribunal finds suspension was not under s 37(7) of the Act it can go on to hear and decide “the substantive compensation question”
Safety, Rehabilitation and Compensation Act 1988 ss 4(1), 14(1), 37, 37(7), 38, 57(1) and (2), 60(1)
Safety, Rehabilitation and Compensation and Other Legislation Amendment Act 2001 (No 144 of 2001) ss 2 and 3 items 35, 34 and 32, 50 and 50(1) of Schedule 2
Administrative Appeals Tribunal Act 1975 ss 37
Australian Postal Corporation v Burch (1998) 156 ALR 483
Whittaker v Comcare (1998) 28 AAR 55
Collector of Customs NSW v Brian Lawlor Automative Pty Ltd (1979) 24 ALR 307
Buck v Comcare (1996) 137 ALR 335
Chowdhary v Bayne (1999) 29 AAR 100
Trajkovski v Telstra Corporation Limited (1998) 153 ALR 248
Re Long and Australian Postal Corporation [2002] AATA 1333
Re Trajkovski and Telstra Corporation (AAT 12320, 22 October 1997)
Minister for Immigration and Ethnic Affairs v Naumovska (1983) 88 ALR 589
Re Martinielloand Comcare Australia (1994) 33 ALD 774
Onus v Alcoa of Australia Ltd (1981) 36 ALR 425
REASONS FOR DECISION
19 February 2002 Mrs Joan Dwyer, Senior Member
THE NATURE OF THIS APPLICATION
1. Ms Kilty was an employee of the Australian Postal Corporation (“Australia Post”) when she suffered an injury at work on 1 December 1998 (R1). Australia Post accepted that Ms Kilty was entitled to compensation under s 14(1) of the Safety, Rehabilitation and Compensation Act, 1988 (“the Act”) in respect of that injury. Mrs Kilty continued to be paid compensation in respect of the injury for periods when she was incapacitated for work until 13 March 2002 when she was sent a copy of a determination made on 13 March 2002 (R1, T107) to the effect that her compensation was suspended. The suspension determination was affirmed on reconsideration on 1 May 2002 (R1, T116).
2. This hearing was held at the respondent’s request to resolve a preliminary issue, namely whether the Tribunal has jurisdiction to review a suspension of Mrs Kilty’s right to compensation, under s 37(7) of the Act, on the ground that she had failed without reasonable excuse to attend a rehabilitation program.
THE ISSUE AS TO JURISDICTION
3. The scheme of the Act is to provide rehabilitation and compensation for employees of the Commonwealth and certain corporations, if they suffer employment related injuries, as defined in s 4(1) of the Act. If there is a dispute as to whether compensation is payable, the Act provides that, on request, an original determination must be reconsidered. If the employee is not satisfied with a reconsideration decision, the employee may seek review by this Tribunal. Decisions of the Tribunal can be appealed on points of law to the Federal Court. The system of a two-tiered review process, offering first an internal, and then an external review, is designed to ensure that a determination as to lack of entitlement, or as to cessation of entitlement, can always be reviewed by an independent Tribunal.
4. The beneficial nature of workers’ compensation legislation has often been recognised. Some recent decisions to that effect are the Full Court decisions of Australian Postal Corporation v Burch (1998) 156 ALR 483-488 at pp487, and Whittaker v Comcare (1998) 28 AAR 55 at pp67-68. It would be surprising if a suspension of compensation under s 37(7), on the ground that an employee has refused, or failed “without reasonable excuse”, to undertake a rehabilitation program, did not carry with it an entitlement to some form of review. Such a suspension could permanently deprive an employee of compensation, where the employee remained of the view, perhaps on medical advice, that he or she was not fit to undertake the designated rehabilitation program. Issues which would arise on a review would be whether the program was a “rehabilitation program”, and whether the employee refused or failed to undertake the program, and if so whether the employee had a reasonable excuse.
5. Such a suspension may be reviewable by the Courts but, as was pointed out in Collector of Customs NSW v Brian Lawlor Automative Pty Ltd (1979) 24 ALR 307 by Bowen CJ, at pp314:
The Act [the Administrative Appeals Tribunal Act 1975] is clearly intended to give a person whose interests are affected by an administrative decision an effective appeal, free of technicalities, against that decision on questions of fact and of law: . . .
6. The decision of 1 May 2002 was set out in a letter of 1 May 2002 to Mrs Kilty’s solicitors as follows:
Reviewable Decision: I now make, therefore, in accordance with sub-section 38(4) of the Safety, Rehabilitation and Compensation Act 1988, a reviewable decision AFFIRMING the determination of 13 March 2002.
The final paragraph of the letter reads as follows (T116 p257):
Rights: An application for review may be made to the Administrative Appeals Tribunal (AAT) if Ms Kilty is dissatisfied with the above decision. A formal Notice of Rights & responsibilities available to Ms Kilty is enclosed. The period of 60 days allowed for Ms Kilty to ask for a review by the AAT will expire on about 3 July 2002.
It is clear from the description of the decision and from the final paragraph of the letter (R1 T116 p257), that the decision-maker believed his decision was reviewable.
7. On 3 July 2002 Mrs Kilty lodged an application for review by the Administrative Appeals Tribunal (“AAT”) of the “reviewable decision” made on 1 May 2002.
8. On 7 August 2002 the respondent wrote seeking this hearing as to whether or not the Tribunal had jurisdiction to review the “reviewable decision” made on 1 May 2002. Mr A. Moulds of Counsel appeared for Australian Postal Corporation (“Australia Post”). Mr M. Carey of Counsel appeared for the Mrs Kilty.
9. Because the respondent challenges the jurisdiction of the Tribunal in this matter, the Tribunal does not have the assistance which it usually obtains from the documents (“the T documents”), lodged pursuant to s 37 of the Administrative Appeals Tribunal Act 1975 (“the AAT Act”). The respondent did however, lodge with the Tribunal a bundle of documents (R1) selected from the documents which had been prepared as T documents in the matter, presumably before it was decided to raise an issue as to jurisdiction. That bundle, was received in evidence, together with a letter dated 11 March 2002 from Mrs Kilty, which was inserted where it should have been, between documents T106 and T107. The respondent also lodged various medical reports from treating doctors (R2, R3 and R4), and an Australia Post Authorisation of Power to Approve Rehabilitation Providers (R5). The applicant lodged an extract from McMillan J "Recent Themes in Judicial Review of Federal Executive Action" (1996) 24 FL Rev 347 (A1).
10. Mr Moulds submitted that whatever the decision-maker may have thought, at the time he made the decision on reconsideration, the Tribunal did not have jurisdiction to review a reconsideration of a suspension of rights to compensation pursuant to s 37(7) of the Act. Mr Moulds relied on two Federal Court decisions of Finn J, Buck v Comcare (1996) 137 ALR 335 and Chowdhary v Bayne (1999) 29 AAR 100. Mr Carey relied on the decision of Tamberlin J in Trajkovski v Telstra Corporation Limited (1998) 153 ALR 248. Since the matter was heard before me, Deputy President Forgie has heard Re Long and Australian Postal Corporation [2002] AATA 1333, another matter raising the same point, in which the same Counsel appeared. She delivered her reasons for decision in Re Long on 23 December 2002. A Notice of Appeal was lodged on 17 January 2003. The issues are complex as that history indicates.
11. It is helpful in considering the issue of jurisdiction to set out something of the background history. The following paragraphs are derived from the exhibits received in evidence and set out matters as to which there does not seem to be any dispute.
BACKGROUND HISTORY
12. Mrs Kilty was injured at work, on 1 December 1998. Originally her injury was described as “an internal derangement of the left knee as well as traumatic fat necrosis of both legs” (R1 T27 p57). Following Mr Jones’ report of 21 June 2000, (R2, T45), the respondent appears to have changed the description of the injury to accord with Mr Jones’ diagnosis of “chrondomalacia left patella”.
13. Mrs Kilty had treatment including physiotherapy, a bone scan and an arthroscopy. She was off work until September or October 1999. She then resumed her employment on a graduated return to work program (“GRTWP”) and achieved a return to full-time work on light duties. In June 2000 she ceased work again. When she saw Mr Jones, an orthopaedic surgeon, on 19 June 2000, at the request of Australia Post, he stated that an open lateral patello-retinacular release would be appropriate, given her symptoms at that time (R1 T45 p118). That operation was performed in August 2000 and was followed by more physiotherapy.
14. Mrs Kilty returned to work in February 2001, on light duties and limited hours. She ceased work again in mid July 2001. She saw Mr Jones again on 27 August 2001. He wrote in his report of 28 August 2001 (R2, T81 p175) that the patello femoral compression test was markedly positive. He wrote that a report of an MRI scan suggested that “there may have been a subtle tear of the anterior horn of the lateral meniscus”, but he commented that he did not agree with that conclusion, and it did not coincide with Mrs Kilty’s symptoms or signs.
15. Mr Jones, in his report of 28 August 2001, expressed the opinion that the injury sustained during employment with Australia Post continued to be a significant contributing factor to Mrs Kilty’s left knee condition. He wrote that in the short term Mrs Kilty was not fit for work requiring repeated squatting, kneeling, stair climbing, or sitting for long periods in one position. He suggested that in the longer term there was a likelihood of her developing osteoarthritis in the patella femoral joint. In spite of her problems, Mr Jones suggested that Mrs Kilty would be able to return to sedentary and clerical type work in the future, with certain restrictions.
16. In a short follow-up report, directed to the hours Mrs Kilty could work (R2 T85), Mr Jones suggested that she could initially return to work on a graduated basis of three hours per day, at duties involving predominantly sitting, interspersed with occasional limited walking. He wrote that he believed the hours could be gradually increased over a four to six week period, with a view to full-time clerical employment at the end of eight weeks, depending on her symptoms.
17. In August, September and November 2001, Mrs Kilty was seen by Dr Thomas, a consultant in rehabilitation and pain medicine. In a report (R3, T96) he advised that Mrs Kilty had not been able to tolerate any of medication he had prescribed to assist with her pain. He diagnosed a chronic pain syndrome to the knee and said that work remained a significant contributing factor. He wrote that in the appropriate work environment, it was his opinion that Mrs Kilty could work up to 20 hours a week.
18. On 21 January 2002 Mrs Kilty was re-examined by Mr Jones. He obtained a history of the rehabilitation treatment under the direction of Dr Thomas. He examined Mrs Kilty and, in a report dated 22 January 2002 (R2 T98), wrote that he believed the injury sustained during her employment with Australia Post continued to be a significant contributing factor to her left knee condition (T98). He wrote that Mrs Kilty had a permanent impairment in her left knee. Significantly he added at paragraphs 9, 10 and 11:
9.This patient’s knee pain symptoms and level of disability I believe are out of all proportion to her clinical findings and history. This patient certainly suffers from bilateral chondromalacia of her patellae which appears to be symptomatically more severe on the left than the right.
10.In the short-term this patient will be capable of work involving sedentary and standing duties alternating. In spite of her claims I believe this patient could work in this capacity for a normal eight hours per day, five days a week. She would not be capable of undertaking work requiring repeated stair-climbing or ladder-climbing or any work requiring squatting or kneeling.
11.All active physical treatment has been undertaken for this patient. Her only alternative in terms of future management would be to avoid potential aggravating factors and to take tolerable analgesics where required.
19. In the course of her return to work from September or October 1999 to June 2000, Mrs Kilty had received a number of letters from Mr Hewitt of Australia Post requiring her to commence what was described as “a rehabilitation program” (R1, T27, T29, T33, T37, T42). The first letter (T27) set out something described as “Determination of Section 37(1), SRC Act”. It stated:
In pursuance of the provisions of the Safety, Rehabilitation and Compensation Act 1988 and in particular Section 37(1), I hereby determine on the evidence available:
1.That Ms. Kerryn Kilty shall commence a rehabilitation program as follows:
As per attached Return to Work Plan dated 27/9/99.
Consideration may be given to variation on presentation by the employee of medical certificates which alter the duties or hours required by this rehabilitation program.
2.The claimant will be entitled to weekly payments of compensation in accordance with Section 37(5) of the Act. (emphasis added)
20. The second letter T29, dated 20 October 1999, is in identical terms save that the “Return to Work Plan” referred to is dated 18 October 1999. The third letter, T33, dated 17 March 2000, for the first time described the rehabilitation program as being “As per attached Rehabilitation Program” dated 14 March 2000. T37 and T42, dated 16 May 2000 and 13 June 2000 respectively, both refer to the attached document as a “Rehabilitation Program” rather than as a “Return to Work Plan”.
21. On 21 February 2002, Mr Hewitt sent a further similar letter to Mrs Kilty (T101 p224). It stated, so far as relevant
Determination of Section 37(1), SRC Act 1988
In pursuance of the provisions of the Safety, Rehabilitation and Compensation Act 1988 and in particular Section 37(1), I hereby determine on the evidence available:
1.That Ms Kilty shall commence a rehabilitation program as follows:
From 25 February 2002 to 26 April 2002 as per the attached Rehabilitation Program.
2.The claimant will be entitled to weekly payments of compensation, if any, in accordance with Section 37(5) of the Act.
Reasons for determination
You have been assessed as capable of undertaking a rehabilitation program by Mr Peter Hutchinson, an approved rehabilitation provider, based on reports from Mr Ian Jones (22 January 2002) and Dr Clayton Thomas (27 December 2001). Please find enclosed copies of these reports.
Rights of Reconsideration
If you are dissatisfied with this determination, you may request a review of the determination in writing under Section 62 of the SRC Act which shall set out the reasons for the request and such request shall be given within thirty (30) days of [illegible] this determination, or within such further period (if any) as Australia Post, either before or after the expiration of that period, allows.
Your request for reconsideration should be directed to:
Mr Richard Melder
Reconsideration Delegate
GPO Box 2020SMELBOURNE
Other Information
A Notice of Effects of Non Compliance is attached explaining possible consequences should you fail to comply. If you have any questions, please contact me on 9299 4649.
22. The attachment described in the letter of 21 February 2002 as a “Rehabilitation Program” was dated 18 February 2002 to 26 April 2003 (R1, T101 p226). It set out the “Rehabilitation Goal” as “To prevent aggravation to knee injury” and stated under the heading “Medical Guidelines”:
GP – Sedentary work. To walk 5 mins every 30 mins
Self paced
No stairs – to start 2hrs 3 days/wk
Specialist – Clayton Thomas – ‘up to 20 hrs/wk. sedentary work’
Various tasks were either ticked or crossed as to whether or not it was proposed that Mrs Kilty undertake those duties. There were comments opposite some of the tasks. The document includes a “graded return to work program” which sets out the number of hours it was proposed that Mrs Kilty work per day, with the hours increasing, one hour a day each fortnight. It was proposed that Mrs Kilty work five days a week, starting on two hours a day on 25 February 2002, and increase to six hours a day in the week commencing 22 April 2003.
23. Although there is provision on the document for it to be signed by Mrs Kilty, and by Australia Post, as well as by the Australia Post Rehabilitation provider, the only person who signed the “Rehabilitation Program” was P Hutchinson the Rehabilitation Provider. There is a note on the documents stating “worker not willing to sign but will attempt program”.
24. From the documents (R1, T103 p229), it appears that Mrs Kilty started the program on 25 February 2002, but left early on 27 February 2002 at 7.30 p.m., giving the reason for leaving early as “severe knee pain”. On 6 March 2002, Mr Hewitt wrote to Mrs Kilty advising that he noted that she had not undertaken the requirements of the rehabilitation program, in that she had been absent from work. He asked her to advise him of the reasons for her not having undertaken the requirements of the “rehabilitation program”. His letter added (R1, T106 p232):
Please note that if you fail to provide satisfactory explanation for non-compliance with the above rehabilitation program within seven days of the date hereof, (by 13 March 2002), your rights to compensation are suspended.
In the absence of satisfactory reasons, your rights to compensation under this Act, and to institute or continue any proceedings under this Act in relation to compensation, are suspended under Section 37(7) of the SRC Act 1988 until you perform the rehabilitation program. When your rights to compensation are suspended, you are not entitled to payment for the period of suspension.
25. Mrs Kilty replied to Mr Hewitt by letter dated 11 March 2002, (document added to R1). She advised that she had left early on 27 February 2002 because of pain, and that she had gone to her doctor who had advised her not to work for the next two days. She wrote that she had handed in a workcover certificate on 1 March 2002 and, after being in pain for the following four days, had returned to her doctor, and been diagnosed with mild depression. She wrote that she had returned to work on 6, 7 and 8 March 2002, but had not been able to last the time set out in the “Rehab form”. She wrote (R1 after T106):
I am finding it very hard to do more than two hours and more than two days in a row, as it states on the back of the Rehab form. I did tell Peter Hutchinson I was not able to meet the demands of this program.
26. On 13 March 2002, Mr Dickson, an Australia Post Rehabilitation Manager, determined under s 37(7) of the Act (T107 p233):
Pursuant to Section 37(7) of the Safety, Rehabilitation and Compensation Act 1988, I hereby determine that Ms Kilty’s rights to compensation under this Act and to institute or continue any proceedings under this Act in relation to compensation is suspended on and from 13 March 2002 until such time as Ms Kilty begins to undertake the rehabilitation program which was the subject of the determination dated 21 February 2002.
27. The reasons for the determination of Mr Dickson stated that advice from Mr Jones and Dr Thomas indicated that Mrs Kilty was capable of following the program outlined in the determination of 21 February 2002. In fact, there is no indication that either of those medical specialists had seen the “rehabilitation program as outlined in the determination of 21 February 2002,” although it was consistent with their reports of 22 January 2002 (Mr Jones R2, T98) and 27 December 2001 (Dr Thomas R3). More importantly, there was no medical evidence before Mr Dickson, as to the pain and depression reported by Mrs Kilty, other than Dr Meisha’s certificate, stating that Mrs Kilty was not fit to work. Mr Dickson did not arrange for Mr Jones or Dr Thomas to see Mrs Kilty to give an opinion as to whether her condition had deteriorated, as a result of her attempt to comply with the hours set out in the “rehabilitation program”.
28. Mr Dickson’s letter advising Mrs Kilty of the determination to suspend her rights to compensation stated (T107 p234):
Rights of Reconsideration
If you are dissatisfied with this determination, you may request a reconsideration of the determination in writing under Section 62 of the SRC Act which shall set out the reasons for the request and such request shall be given within thirty (30) days of receipt of this determination, or within such further period (if any) as Australia Post, either before or after the expiration of that period, allows.
29. On 5 April 2002, Mrs Kilty, as invited, requested a reconsideration of the determination of 13 March 2002. On 1 May 2002, Mr Melder, the Senior Claims Manager of Australia Post, and a Reconsideration Delegate, reconsidered the determination and made, what he described as “a reviewable decision”. He stated, as set out in paragraph 6 of these reasons, that his decision was made in accordance with s 38(4) of the Act, and was a decision “AFFIRMING the determination of 13 March 2002”, (R1, T116 pp255-257). He provided reasons for his reviewable decision.
30. Unless Mrs Kilty can have the suspension of her payments reviewed, either by this Tribunal or by a Court, her compensation payments remain suspended without there being any opportunity for her to obtain a review of whether the program described in Mr Hewitt’s letter as a “rehabilitation program”, was correctly described, and, if so, whether she failed to comply with the program without reasonable excuse.
CONSIDERATION OF JURISDICTION ISSUE
31. The first step is to set out and refer to the relevant legislative provisions. Section 14(1) of the Act provides for entitlement to compensation as follows:
14. (1) Subject to this Part, Comcare is liable to pay compensation in accordance with this Act in respect of an injury suffered by an employee if the injury results in death, incapacity for work, or impairment.
32. The amount of compensation payable under the Act to an injured employee who is incapacitated for work is specified in s 19 of the Act. Other forms of compensation are dealt with in other sections, for example, s 16 of the Act provides for compensation for medical expenses, and ss 24 and 27 provide for compensation for permanent impairment.
33. Primary determinations of claims are made under the entitling sections. Such determinations are reviewable under s 62 of the Act. Once a “determination” as defined in s 60(1) has been reviewed under s 62 of the Act, it becomes a reviewable decision and under s 64 may be reviewed by the AAT. Section 38(4) of the Act provides for review of a narrow class of primary determinations relating to rehabilitation.
34. It is necessary to analyse the actions which were taken by the delegates who made the “primary determination” and the “reviewable decision” in this matter. Although they believed they were taking action under the sections they specified in their “determination” and “reviewable decision”, it was Mr Mould’s submission that they were incorrect in their characterisation of their own actions. If that submission is upheld, the Tribunal is required to decide what characterisation is appropriate, and what follows from that characterisation.
35. Mrs Kilty’s compensation payments have, so the respondent contends, been suspended under s 37(7) of the Act because she refused or failed, “without reasonable excuse”, to undertake a rehabilitation program provided under s 37 of the Act. That section is found in Part III of the Act which makes provision for rehabilitation of employees who have suffered an injury resulting in an incapacity for work or an impairment.
36. Section 37 provides:
37. (1) A rehabilitation authority may make a determination that an employee who has suffered an injury resulting in an incapacity for work or an impairment should undertake a rehabilitation program and, where the authority so determines, it may make arrangements with an approved program provider for the provision of a rehabilitation program for the employee.
(2) A rehabilitation authority must not make arrangements for the provision of a rehabilitation program to its employees other than by an approved program provider.
(3) In making a determination under subsection (1), a rehabilitation authority shall have regard to:
(a) any written assessment given under subsection 36 (8);
(b) any reduction in the future liability to pay compensation if the program is undertaken;
(c) the cost of the program;
(d) any improvement in the employee's opportunity to be employed after completing the program;
(e) the likely psychological effect on the employee of not providing the program;
(f) the employee's attitude to the program;
(g) the relative merits of any alternative and appropriate rehabilitation program; and
(h) any other relevant matter.
(4) The cost of any rehabilitation program provided for an employee under this section shall be paid by the relevant authority in relation to that employee.
(5) Where an employee is undertaking a rehabilitation program under this section, compensation is not payable to the employee under section 19 or 31 but:
(a) if the employee is undertaking a full-time program-compensation is payable to the person of an amount per week equal to the amount per week of the compensation that would, but for this subsection, have been payable under section 19 if the incapacity referred to in that section had continued throughout the period of the program; or
(b) if the employee is undertaking a part-time program-compensation is payable to the employee of such amount per week as the relevant authority determines, being an amount not less than the amount per week of the compensation that, but for this subsection, would have been payable to the employee under this Act and not greater than the amount per week of the compensation that would have been payable under paragraph (a) if the employee had been undertaking a full-time program.
(6) An employee who is entitled to receive compensation under subsection (5) during a period is not entitled to receive rehabilitation allowance under the Social Security Act 1991 during that period.
(7) Where an employee refuses or fails, without reasonable excuse, to undertake a rehabilitation program provided for the employee under this section, the employee's rights to compensation under this Act, and to institute or continue any proceedings under this Act in relation to compensation, are suspended until the employee begins to undertake the program.
(8) Where an employee's right to compensation is suspended under subsection (7), compensation is not payable in respect of the period of the suspension.
37. As I pointed out to the parties at the hearing, a question arises as to whether any determination under s 37(1) of the Act was made in this matter. It is only a failure to undertake a rehabilitation program provided under s 37 of the Act, which gives rise to the possibility of suspension of the right to compensation under s 37(7) of the Act. There is an issue as to whether the document described as “the attached Rehabilitation Program” in R1, T101 p224, is in fact a “rehabilitation program” such as to enliven s 37(7). I requested that after the conclusion of the hearing the parties provide me with submissions on that question. Those submissions have been received.
38. Although Mr Melder, in his decision of 1 May 2002, stated that he was making a reviewable decision, “in accordance with s 38(4)”, it is clear that he was in error in asserting that sub-section to be the source of his power to make a decision. In order to understand why Mr Melder’s decision was not made under s 38(4) of the Act, it is necessary to set out s 38 of the Act in full. It provides:
Review of certain determinations by Comcare
38. (1) As soon as practicable after a rehabilitation authority (other than a relevant authority) makes a determination under section 36 or 37, the authority shall cause to be served on the employee to whom the determination relates a notice in writing setting out:
(a) the terms of the determination;
(b) the reasons for the determination; and
(c) a statement to the effect that the employee may, if dissatisfied with the determination, request Comcare for a review of the determination under this section.
(2) An employee in respect of whom a determination under section 36 or 37 is made by a rehabilitation authority (other than a relevant authority) may, by notice in writing given to Comcare, request Comcare to review the determination.
(3) A request shall:
(a) set out the reasons for the request; and
(b) be given to Comcare within 30 days after the day on which the determination first came to the notice of the employee, or within such further period (if any) as Comcare, either before or after the expiration of that period, allows.
(4) On receipt of a request, Comcare shall review the determination and may make a decision affirming or revoking the determination or varying the determination in such manner as Comcare thinks fit.
39. Senior Member Allen considered the terms of s 38 of the Act, in Re Trajkovski and Telstra Corporation (AAT 12320, 22 October 1997). He pointed out, as did Deputy President Forgie in Long, that the reference to a rehabilitation authority in s 38 of the Act, applies only to “a rehabilitation authority (other than a relevant authority)”. Senior Member Allen found that Telstra was “a relevant authority”, as it was a licensed Authority pursuant to Part VIIIA of the Act. He concluded that s 38 of the Act did not apply to Telstra. Tamberlin J, on appeal, agreed with Senior Member Allen’s analysis, as to s 38 (4) of the Act, saying “Section 38(4) is not relevant for present purposes”.
40. Deputy President Forgie, in Long, at para 23 of her reasons, pointed out that the reason s 38 of the Act applies only to determinations made by “a rehabilitation authority (other than a relevant authority)”, is that a determination made by “a relevant authority”, under s 37 of the Act, may be reviewed under s 62 of the Act.
41. A “relevant authority” as at 13 March 2002, so far as relevant, was defined in s 4(1) of the Act as meaning:
(a) in relation to an employee who is employed by a licensed authority – that authority;
. . .
The term “licensed authority” was defined as follows:
“licensed authority” means a Commonwealth authority that is the holder of a licence that is in force;
“Licence” was defined in s 4(1) as follows:
“licence” means a licence under Part VIIIA or VIIIB;
Australia Post was a “licensed authority” as at 13 March 2002. The Commonwealth of Australia Gazette No. GN 46, 18 November 1992 includes a Notice 2 of 1992 being a notice under the Act (then called The Commonwealth Employees’ Rehabilitation and Compensation Act 1988) stating that Australia Post was taken to have been granted a Class 3 Licence under Part VIIIA of the Act with effect from 30 June 1992.
42. The Act was amended by the Safety, Rehabilitation and Compensation and Other Legislation Amendment Act 2001 (No 144 of 2001) (“the Amendment Act”). The amendments commenced on 1 April 2002 (ss 2 and 3 of the Amendment Act). Those amendments repealed Parts VIIIA and VIIIB of the Act and substituted a new Part VIII of the Act, which deals with “licences to enable Commonwealth authorities and certain corporations to accept liability for, and/or manage claims”. (Unfortunately the amendments which came into force on 1 April 2002 as a result of the Amendment Act are not included in the CCH Australian Workers’ Compensation Guide). The definitions of “relevant authority”, “licensee” and “licence” were amended by the Amendment Act, items 35, 34 and 32, from 1 April 2002 to provide:
“relevant authority” means:
(a)in relation to an employee who is employed by a licensee‑the licensee; and
(b) in relation to any other employee‑Comcare
“licensee” means a Commonwealth authority or a corporation that is licensed, or that is taken to be licensed, under Part VIII.
“licence” means a licence under Part VIII.
43. Item 50 of Schedule 2 of the Amendment Act, so far as relevant, provides:
50 Transitional provisions
(1) Subject to subitems (2) and (3), if, immediately before the day this Part commences, a Commonwealth authority or corporation held a licence under Part VIIIA or VIIIB of the Safety, Rehabilitation and Compensation Act 1988, the provisions of that Act as in force immediately before that day continue to apply in relation to the authority or corporation in its capacity as licence holder under Part VIIIA or VIIIB, as the case requires, as if the items of this Part had not been enacted.
(2) Nothing in subitem (1) implies that a Commonwealth authority or a corporation that holds a licence under Part VIIIA or Part VIIIB of the Safety, Rehabilitation and Compensation Act 1988 may not, while continuing to hold that licence, apply for a licence under Part VIII of that Act.
44. Deputy President Forgie, in Long, held that as Australia Post had not applied to be licensed under Part VIII of the Act, it was not a “licensed authority” after 1 April 2002. She therefore held that s 38 of the Act was relevant. After careful consideration, I have formed a different view. I have concluded that the effect of the transitional provision in item 50(1) of Schedule 2 of the Amendment Act is that Australia Post, which held a licence under Part VIIIA immediately before 1 April 2002, and thus was a “relevant authority” as defined in s 4(1) of the Act, continued to be a “relevant authority”, after that date, as if the items in Schedule 2, Part 8 of the Amendment Act had not been enacted, and thus as if Part VIII had not been substituted for Parts VIIIA and VIIIB.
45. Thus I have concluded that Australia Post, because of item 50(1) of Schedule 2 of the Amendment Act, continued to be a “relevant authority”, at all relevant times. Accordingly as Tamberlin J said in Trajkovski, “Section 38(4) is not relevant for present purposes”.
THE FEDERAL COURT DECISIONS
46. The first relevant Federal Court decision is Buck.. Mrs Buck was in receipt of compensation when she refused, on the advice of her doctors, to attend a medical examination which the respondent had arranged. Her payments were suspended under s 57(2) of the Act, on the ground that she had refused or failed without reasonable excuse to undergo an examination. Section 57(1) and (2) of the Act provide as follows:
57. (1) Where:
. . .
(b) an employee has made a claim for compensation under section 54; the relevant authority may require the employee to undergo an examination by one legally qualified medical practitioner nominated by the relevant authority.
(2) Where an employee refuses or fails, without reasonable excuse, to undergo an examination, or in any way obstructs an examination, the employee's rights to compensation under this Act, and to institute or continue any proceedings under this Act in relation to compensation, are suspended until the examination takes place.
47. The matter came before the Federal Court on an application under the Administrative Decisions (Judicial Review) Act 1977 (“the ADJR Act”). The case for the applicant was that Mrs Buck did have a reasonable excuse to refuse or fail to undergo the examination and therefore the decision to suspend her rights to compensation was unauthorised under the Act. Finn J decided, “albeit with some hesitation” (p339), that s 57(2) did not authorise or require “a decision” of an administrative character to be taken by Comcare. He referred with approval to the reasons of Lockhart J in Minister for Immigration and Ethnic Affairs v Naumovska (1983) 88 ALR 589 at p601, saying:
To use the language of Lockhart J . . ..,” the sub-paragraph means what it says”. It stipulates the circumstances in which an employee’ s rights will be suspended and suspended by force of the subsection. As and when those circumstances occur, so also does the suspension of rights. Again to use the language of Lockhart J (at 601): “No decision by anybody is required to bring about this change.
48. Finn J, in Buck, therefore concluded that he did not have jurisdiction under the ADJR Act to decide as to the lawfulness of the suspension of Mrs Buck’s entitlement to compensation payments. He added:
. . . the question whether Mrs Buck in fact had a reasonable excuse is one which a court of competent jurisdiction can itself decide in proceedings before it which properly raise that issue.
His Honour added:
If, contrary to what is the case, the SRC Act provisions were such that (i) distinct subsequent decisions involving an employee could be taken by Comcare once the requirements of s 57(2) had been satisfied and Comcare had indicated that in its view it was so satisfied and hence could take a consequential decision (cf Minister for Immigration and Ethnic Affairs v Naumovska ; Director-General of Social Services v Hales (1983) 47 ALR 281; Nolan v Minister for Immigration and Ethnic Affairs (1992) 27 ALD 755); or (ii) the suspension of rights was not automatic but depended on a decision by Comcare consequent on a finding of a refusal without reasonable excuse (cf SRC s 58(3)) I would be constrained to hold that the subjective opinion of Comcare in either case would be sufficiently a “decision” (or, in the case of (i), at least “conduct”) for ADJR Act purposes. The statutory scheme here does not raise either of these contingencies. But even if it did, it would remain the case that the question whether an employee had a reasonable excuse would, in relation to (i) above, be one still for the court to determine because that question would be as to the existence of an objective fact (see Minister for Immigration and Ethnic Affairs v Naumovska at 601-2); and, in relation to (ii) above, be examinable by the court on the basis that it involved a “jurisdictional fact” : cf Queensland v Wyvill (1989) 25 FCR 512 90 ALR 611. There is no need here to further consider these two possibilities, the former of which in particular is not without its difficulties.
49. I understand that case scenario (ii) does not apply, even though the suspension of rights must depend on a finding by Comcare “of a refusal without reasonable excuse”, because the wording of the s 57(2) does not provide for the making of a “decision” consequent upon that finding. It is difficult to see why that finding is not itself “a decision”, but I am bound to accept that it is not.
50. Finn J then went on to consider the position of an employee in Mrs Buck’s position. He stated that the right to ongoing payment of compensation was not in the category of “common law” rights, which traditionally have been safeguarded from legislative interference in the absence of clear and unambiguous statutory language, yet it was a right of sufficient significance to the individual. He added: (p340):
where there may be doubt as to parliament’ s intention, the courts should favour an interpretation which safeguards the individual.
51. Finn J, in Buck, concluded at p341:
Finally, in relation to the submission that parliament intended to confer a coercive power on Comcare, I would merely say that if it wished so to arm Comcare in its dealings with the individual it could have done so expressly. For my part its failure so to do should properly be interpreted as manifesting that it had no such intention. The courts should, in my view, be slow to find that parliament has placed the individual in the power of any agency of government when it could, without difficulty, have made that intent plain and did not do so.
52. Finn J adjourned the hearing to consider, at a later stage, whether Mrs Buck was entitled to a declaration of right, either, that she had reasonable excuse for refusing to undergo the medical examination, or, that her entitlement to compensation was not lawfully suspended pursuant to s 57(2) of the Act. He accepted jurisdiction to entertain the application for a declaration of right because of the construction he placed on s 57(2).
53. Thus, although Finn J held that he did not have jurisdiction under the ADJR Act to pass on the lawfulness or otherwise of the suspension of Mrs Buck’s entitlement to compensation payments, he recognised that there must be some venue in which the question whether Mrs Buck had refused or failed without reasonable excuse to undergo the examination would be determined.
54. The second relevant Federal Court decision is Trajkovski. That was an appeal from a decision of the Tribunal in relation to s 37(7) of the Act. The Tribunal, in purported reliance on Finn J’s reasoning in Buck, decided that it did not have jurisdiction to review a suspension under s 37(7), where an employee was said to have refused or failed “without reasonable excuse to undertake a rehabilitation program”. That, of course, is the very issue in this matter. Senior Member Allen in Trajkovski pointed out that s 37(7) of the Act is in similar terms to s 57(2), which was the relevant sub-section in Buck. He explained that it was his understanding that the Federal Court decision in Buck required him to hold that a s 37(7) suspension of rights under the Act occurred by force of the relevant legislative provision, and was not a decision which gave rise to a reconsideration so as to provide a “reviewable decision”, amenable to review by this Tribunal under s 64(1) of the Act.
55. Tamberlin J allowed the appeal in Trajkovski, and remitted the matter to the AAT for determination. His Honour analysed the decision in Buck and said at p253:
It is common ground that the language of s 37 (7) makes it clear that the suspension of rights under s 37 (7) operates directly and without the need for any antecedent decision. Nevertheless, as a practical matter, some person or body must make a decision as to its application in any specific case. To this extent the reasoning in Buck is accepted by both parties.
56. Tamberlin J considered a decision of the AAT in Re Martinielloand Comcare Australia (1994) 33 ALD 774.. He quoted a passage from the Tribunal’s reasons in that matter at p776. The Tribunal had considered whether the applicant’s failure to undertake a rehabilitation program was unreasonable, had concluded that it was unreasonable, and that there was no reasonable excuse for that failure. It therefore found that s 37(7) applied to the matter.
57. Tamberlin J in Trajkovski said of the Tribunal decision in Martiniello, at p254:
It is apparent from these remarks that the AAT considered it had authority to determine whether it had jurisdiction.
His Honour pointed out that Martiniello was not referred to by the Tribunal in Trajkovski, or by the Federal Court in Buck.. He found error on the part of the Tribunal in Trajkovski saying:
The AAT simply accepted the assertion that there was a suspension of rights, without considering the merits or substance of the assertion, namely: whether the elements of the s 37(7) suspension were present. In other words, the AAT declined to hear and determine questions of fact and law which have to be considered in determining whether it had jurisdiction. (emphasis added)
58. Tamberlin J, concluded, at p257:
In the present case, in my view, the AAT had the competence to consider the limits of its authority and the existence of its jurisdiction. In order to perform its statutory duty to review the decision pursuant to the SRC Act, it was essential that the AAT come to a conclusion on the existence and limits of its jurisdiction. This necessarily involves a consideration of the applicability of s 37(7) and its effect. Thus it requires an examination of pertinent questions of fact and law which arise in making this determination. This is not a question of “reviewing” any decision as to jurisdiction but of properly considering the threshold question of whether it has jurisdiction. The AAT has declined, in this case, to examine and determine the factual and legal questions necessary to decide whether it had jurisdiction. The effect of the AAT’s failure to look at the jurisdictional issue was to preclude itself from considering the substantial question because it was not considered to be one which involved a review of a decision made by Telstra. Such an approach is erroneous and unduly restrictive.
This approach was wrong in law. The AAT had the competence to form an opinion, albeit not a conclusively binding one, for the purpose of exercising its jurisdiction on the substantive question as to the merits of the determination and should have done so.)
One consequence of the AAT determination that it had no jurisdiction to consider the question whether s 37(7) applied was that the applicant, who disputed the application of this provision, lost the benefit of a hearing on the jurisdictional issue. The result was that the mere assertion by Telstra that s 37(7) applied was, in effect, adopted without any factual determination or consideration of legal argument and was taken as being conclusive on the question of whether s37(7) operated. This is an odd result to say the least. Such an approach enables an Authority to simply assert that s 37(7) applies. The consequence of such an assertion of the Authority’s view is to suspend all rights and deny any jurisdiction without evidence or submissions in relation to the s 37 applications. (emphasis added
59. His Honour considered a submission that there were alternative remedies available to Mr Trajkovski by way of a declaration of the Court or a challenge of the s 37(1) determination requiring Mr Trajkovski to undertake the rehabilitation program. He concluded at p258:
In my opinion, the fact that there are other collateral or independent remedies potentially available does not require a conclusion that the AAT did not have power to make an administrative determination. There is much to be said for the practical approach taken by the AAT in Martiniello, whereby the AAT entertained and resolved questions as to both jurisdiction and the merits. If the AAT finds that it has jurisdiction it can proceed to hear the substantive, compensation question.. If either party is then dissatisfied an appeal can be taken to this Court. My conclusion, for the above reasons, is that there has been an error of law in this matter arising from the AAT’s refusal to enter into the question as to whether it had jurisdiction. The question of whether the elements of s 37(7) have been made out has not been ventilated before me and it is not, therefore, appropriate, on the limited material presently available, to enter upon or express any view in relation to the application of that provision. This is a question which should be considered after evidence has been presented and full submissions made to the AAT. (emphasis added)
The matter was remitted to the AAT for determination in accordance with law. If Trajkovski were the last word of the Federal Court on the matter, it would be clear that this Tribunal had jurisdiction and indeed was bound to consider “the question whether the elements of s 37(7) have been made out”.
60. If the Tribunal, having entered into the question whether it has jurisdiction, finds that there was a reasonable excuse for the failure “to undertake a rehabilitation program” or that there was no “rehabilitation program”, then, applying Tamberlin J’s reasoning, the elements of a suspension under s 37(7) of the Act would not have been made out. That finding could carry the further consequence that the AAT would have jurisdiction to proceed to hear “the substantive, compensation question”.
61. The issue was again addressed, by Finn J, in Chowdhary v Bayne. The facts of that decision were summarised by Deputy President Forgie at paragraph 37 of her decision in Long. I adopt that summary:
37. The third authority to which the parties referred is Chowdhary v Bayne (1999) 29 AAR 100, which is a judgement of Finn J in an appeal pursuant to s. 44 of the AAT Act and an application under the ADJR Act. Mrs Chowdhary was in receipt of compensation payments from Comcare and later unsuccessfully claimed compensation in respect of physiotherapy treatment under s. 16 and for household services under s. 29 of the SRC Act. Comcare then ceased paying her compensation pursuant to s. 37(7) on the basis that she had failed, without reasonable excuse, to undertake a rehabilitation program. Mrs Chowhdary sought review of the two decisions refusing her claim for physiotherapy treatment and household services and for the suspension of her payments of compensation.
38. Finn J summarised the Tribunal’s decision as follows:
“It held, as it was obliged to, that, for the purpose of determining whether it had jurisdiction in relation to the physiotherapy and home services appeal, it could consider whether Mrs Chowdhary had a reasonable excuse for her failure and that having concluded on the evidence that she did not, it accepted that by the ‘self-executing’ force of the provisions of s 37(7) Mrs Chowdhary’s application for review was incompetent. It took a like view of the ‘decision’ to suspend compensation payments from 29 May 1996. Accordingly it determined that it had no jurisdiction to review any of the decisions presented to it for review.” (page 101)
62. Finn J, in Chowdhary, at para 10 of his reasons, p102, set out four principles or conclusions about the operation of s 37 of the Act as follows:
(i) The determination whether there has been a failure to undertake a rehabilitation program without reasonable excuse calls for an objective determination of both the law and facts. It does not depend upon the opinion of any specified person or body notwithstanding that, as a practical matter, some person or body must make a decision as to its application in any specific case: Trajkovski v Telstra Corporation Ltd, at 26 [ALR 253]; Buck v Comcare (1996) 66 FCR 359.
(ii) A s37(7) suspension of rights under the SRC Act does not as such depend upon such a ‘decision under an enactment’ as would be amenable to judicial review under the ADJR Act: Buck v Comcare.
(iii) Where, but for the operation of s37(7), a person would be entitled to appeal to the Tribunal for review of a decision made reviewable under the SRC Act: see SRC Act ss60, 62 and 64; the Tribunal can consider the applicability of s37(7) to such an appeal for the purpose of coming to a conclusion as to whether it has jurisdiction in the matter: Trajkovski v Telstra Corporation Ltd at 30; ‘It is not bound to decline jurisdiction simply because the jurisdictional question cannot be described as a ‘reviewable decision’ [ALR 256-257]. (emphasis added)
(iv) A Tribunal decision that, because of s37(7), it does or does not have jurisdiction can be the subject of an application to this court under s44 of the AAT Act and on such an application it is for the court to come to its own conclusion whether the facts are such that the Tribunal had jurisdiction to determine the appeal to it.
63. His Honour stated the effect of those propositions on the factual situation in Chowdhary at paras 11 and 12, p103, as follows:
11 Applied to the circumstances of the present matter, these propositions ordain that:
(a) s 37(7) apart, the Tribunal had jurisdiction to entertain at least the appeals relating to physiotherapy and home services claims, reviewable decisions having previously been made in relation to each of these; (emphasis added)
(b) in these circumstances, once s 37(7) was put in issue the Tribunal was obliged to consider whether it had jurisdiction to entertain those appeals or whether the applicant's rights to appeal had been suspended;
(c) it was open to the applicant to appeal to this Court from the Tribunal's decision that it lacked jurisdiction; and
(d) it was for this court to reach its own view whether on the facts the applicant had the "reasonable excuse" required by s 37(7).
12 In consequence the AAT Act s 44 appeal will raise for direct consideration whether there was such an excuse. If there was, then the 29 May 1996 suspension of compensation payments lacked lawful foundation and the Tribunal's declining of jurisdiction to entertain at least the physiotherapy and home services appeals was an error of law. If there was not, then s 37(7) holds sway. In other words, in that appeal the matter of substance raised in the present application can be resolved and the order-making power of the court under s 44 of the Act is such that appropriate relief can be given.
64. Mr Moulds submitted that the effect of that reasoning is that there is no jurisdiction to consider what he termed a “naked” s 37(7) application. It is only where there is another matter, such as the physiotherapy and home services appeals, giving rise to a reviewable decision capable of review by this Tribunal, that the Tribunal can decide as to its jurisdiction, bearing in mind the applicability of s 37(7) of the Act. Mr Moulds sought to support that view on the basis of paragraphs 11(a) and 12 of Finn J’s reasoning when he said the Tribunal’s declining of jurisdiction to entertain, “at least”, the physiotherapy and home services appeal, was an error of law. However the addition of the words “at least”, shows that his Honour was not ruling that the error of law was clearly confined to the physiotherapy and home services appeals. He left open the possibility that there may also have been error of law on the part of the Tribunal in declining jurisdiction to entertain the other appeal as to Comcare ceasing to pay compensation.
65. That approach, of course, is consistent with the reasoning of Tamberlin J, who held in Trajkovski, that it was an error of law for the Tribunal not to examine “pertinent questions of fact and law” which arise as to the s 37(7) jurisdiction issue.
66. Finn J at para 10(iii) of the reasons in Chowdhary, p102, cited, as authority for his conclusion on that issue, Tamberlin J’s comment in Trajkovski at pp256-7, where his Honour said of the Tribunal:
It is not bound to decline jurisdiction simply because the jurisdictional question cannot be described as a “reviewable decision”.
67. An analysis of Chowdhary and Trajkovski, shows that both Finn J and Tamberlin J have held that this Tribunal is bound to consider the jurisdiction issue to decide whether it is precluded from reviewing a suspension decision by the operation of s 37(7) of the Act. The Tribunal is obliged to examine pertinent questions of fact and law in order to decide whether s 37(7) of the Act is applicable.
68. Finn J, in Chowdhary, left open the possibility that even in, what Mr Moulds called, a “naked” s37(7) matter, the Tribunal should consider the factual and legal issues necessary to determine the applicability of s 37(7) as to the question of its jurisdiction to determine “the substantive issue”. He said in Buck that, if there is an ambiguity in a matter such as this, the courts and, no doubt, the Tribunal should be slow to find, without express language to that effect, that parliament has placed the individual in the power of an agency of government. Tamberlin J held that the Tribunal has a statutory duty to examine pertinent questions of fact and law which arise as to the applicability of s 37(7) of the Act.
69. Applying the Federal Court decisions of Trajkovski and Chowdhary, I hold that, in order to perform its statutory duty to review reviewable decisions under the Act, the Tribunal must come to a conclusion as to the existence and limits of its jurisdiction. This necessarily involves a consideration of the applicability of s 37(7) and its effect. The consideration of the threshold question of jurisdiction requires the Tribunal to examine “pertinent questions of fact and law”.. Thus the Tribunal is bound to hear evidence as to the jurisdiction issue.
70. The Tribunal will adopt the practical approach taken by the AAT in Re Martiniello and approved by Tamberlin J in Trajkovski so that the Tribunal will entertain and resolve questions as to both jurisdiction and the merits at the further hearing of this matter. This has the advantage of avoiding both unnecessary legalism and also the dangers of arriving at a conclusion without a full understanding of the relevant facts. The High Court has cautioned against the hearing of preliminary points on scant material and expressed a preference for such points to be considered in the hearing as to the merits of the case. Gibbs CJ said in Onus v Alcoa of Australia Ltd (1981) 36 ALR 425 at p433:
It is unfortunate that the question of the appellant’s standing was determined as a preliminary issue in the present case, particularly on such scanty material.
71. At the further hearing the Tribunal will hear evidence and submissions as to the following matters:
(i)whether the respondent’s determination of 13 March 2002 was a determination under s 37(1) that Mrs Kilty “should undertake a rehabilitation program”;
(ii)whether the respondent made “arrangements with an approved program provider for the provision of a rehabilitation program” for Mrs Kilty;
(iii)whether Mrs Kilty refused or failed “to undertake a rehabilitation program” provided for her under s 37 of the Act;
(iv)if so, whether her refusal or failure was “without reasonable excuse” ;
(v)in the event that the Tribunal finds that s 37(7) is not applicable, whether the Tribunal has jurisdiction to review “the substantive, compensation question” raised by the decision to cease or suspend payment of compensation to Mrs Kilty. That will require consideration of the question whether the decision, made on 1 May 2002, was a reconsideration under s 62 of the Act and is thus a “reviewable decision” under s 64 of the Act; and
(vi)if so, what decision is the correct decision on review.
I certify that the 71 preceding paragraphs are a true copy of the reasons for the decision herein of
Mrs Joan Dwyer, Senior Member
Signed: G.A. Carney
Personal AssistantDate of Hearing 9 October 2002
Date of Decision 19 February 2003
Counsel for the Applicant Mr M Carey
Solicitor for the Applicant Arnold Thomas & Becker
Counsel for the Respondent Mr A Moulds
Solicitor for the Respondent Sparke Helmore
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