Krawczyk and Comcare

Case •

[2001] AATA 1062

•

5 September 2001

DECISION AND REASONS FOR DECISION [2001] AATA 1062

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No A2000/390

GENERAL ADMINISTRATIVE  DIVISION       )          
           Re      STANLEY KRAWCZYK   
  Applicant
           And    COMCARE  
  Respondent

DECISION

Tribunal       Senior Member J.A. Kiosoglous MBE    

Date5 September 2001

PlaceCanberra

Decision      Pursuant to section 42D(1) of the Administrative Appeals Tribunal Act 1975, the Tribunal remits the decision to the respondent for reconsideration of the decision under review.

(Signed)
  J.A. KIOSOGLOUS
  (Senior Member)
CATCHWORDS
PRACTICE AND PROCEDURE – jurisdiction – whether decision made under section 53 constitutes a "reviewable decision" – whether decision made under section 53 is part of a determination made under section 14 – definition of "determination".
Safety Rehabilitation and Compensation Act 1988 ss.14, 53, 60, 62, 64
Administrative Appeals Tribunal Act 1975 s.42D(1)
Lees v Comcare (1999) 29 AAR 350
Trajkovski v Telstra Corporation (1998) 81 FCR 459
Chowdhary v Bayne (1999) 29 AAR 100
Deveson and Comcare (1999) 53 ALD 794
Quis and Comcare [2001] AATA 263
Peisley and Comcare [2001] AATA 121

REASONS FOR DECISION

5 September 2001   Senior Member J.A. Kiosoglous MBE                    

  1. The applicant, Mr Stanley Krawczyk, filed a claim for compensation on 28 February 2000 (T3) for an injury suffered in February 1992.  The respondent rejected this claim on 11 May 2000 (T10) pursuant to section 53 of the Safety Rehabilitation and Compensation Act 1988 (the Act).  On 18 May 2000 the applicant requested a reconsideration (T11) and on 1 June 2000 (T12) the respondent informed the applicant that they were unable to reconsider the decision because it had been made pursuant to section 53 of the Act.

  2. The Tribunal received into evidence the documents lodged pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 (T1-T12), together with written submissions from the applicant dated 11 July 2001 and from the respondent dated 12 June 2001. The applicant was represented by Mr C. Erskine and the respondent was represented by Mr B. Dubé, both of counsel.

  3. The matter was brought before the Tribunal prior to consideration of the substantive issues, in order for the Tribunal to consider whether or not it, in fact, had jurisdiction to consider the substantive application.  The jurisdictional issue before the Tribunal turns upon the question of whether or not there is a reviewable decision before the Tribunal.
    background to the application

  4. On 28 February 2000, the applicant completed a claim for compensation in respect of an umbilical hernia (T3/4-9).  The claim form was stated to have been received by the respondent on 13 April 2000 (T8/17).  On the claim form, the applicant indicated at Question 14 that the date of injury was February 1992 (T3/4).

  5. On 11 May 2000, the respondent decided that it was not reasonable to consider the applicant's claim for compensation because of the applicant's failure to meet "s53 notice requirements" (T10/19).  In the letter notifying the applicant of the respondent's decision, the respondent stated (inter alia) (T10/19):

    "…
    Notice has failed to meet the requirements of s53 of the Safety, Rehabilitation and Compensation Act 1988.  This decision is justified on the following grounds:
    -Notice was not given as soon as practicable after you became aware of the injury as it has been seven years since the stated incident.
    -The failure did not result from the death, or absence from Australia, of a person.
    -The failure did not result from ignorance, from a mistake or from any other reasonable cause.  It is noted that you have two previous claims for compensation and therefore are aware of your rights as an injured worker.
    -It is reasonable to disregard this claim for compensation as a result of your failure to meet the s53(1) Notice requirements.
    -The relevant authority would be prejudiced by your failure to comply with the section 53 notice provisions.
    I therefore determine that Comcare is not liable to pay compensation under the Safety, Rehabilitation and Compensation Act 1988.
    In accordance with Commonwealth policy you have general statutory rights of administrative review in relation to this matter. This might include an approach to the Ombudsman, or review under the Administrative Decisions (Judicial Review) Act 1977 following application to the Federal Court.
    …"

  1. By letter dated 18 May 2000, the applicant's solicitors requested a reconsideration of the respondent's decision to deny compensation pursuant to section 14 on the basis that the applicant had failed to comply with section 53 of the Act (T11/21).

  2. On 1 June 2000, the respondent decided that it was unable to undertake a reconsideration of the decision to deny compensation (T12/22-23).  The respondent stated (inter alia) (T12/22-23):

    "…
    The decision which you have requested be reconsidered was one that invoked the provisions of Section 53 of the Safety Rehabilitation and Compensation Act 1988 (the Act).
    …
    This decision was made on the basis that Mr Krawczyk failed to give sufficient notice of his injury and therefore Section 53 was relevant.
    Subsection 60(1) of the Act defines the reconsideration process.
    …
    I draw your attention to the definition of a determination provided above.  As can be seen from the above information, the decision in this matter, pursuant to section 53 of the Act, is not a 'determination' that is considered reviewable for the purposes of the Act.  Therefore, I am unable to undertake a reconsideration as requested in your letter dated 18 May 2000.
    …"

  1. On 17 October 2000, the applicant lodged with the Tribunal an application for review of the "reviewable decision" of 1 June 2000 (T1/1-2).
    legislation

  2. The relevant legislation to be considered is as follows:

    "PART II – COMPENSATION

    Compensation for injuries

    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.

    (2)       Compensation is not payable in respect of an injury that is intentionally self-inflicted.

    (3)       Compensation is not payable in respect of an injury that is caused by the serious and wilful misconduct of the employee but is not intentionally self-inflicted, unless the injury results in death, or serious and permanent impairment.

    …

    PART V – CLAIMS FOR COMPENSATION

    Notice of injury or loss of, or damage to, property

    53.      (1)       This Act does not apply in relation to an injury to an employee unless notice in writing of the injury is given to the relevant authority:

    (a)as soon as practicable after the employee becomes aware of the injury; or

    (b)if the employee dies without having become so aware or before it is practicable to serve such a notice-as soon as practicable after the employee's death.

    …

    (3)       Where:

    (a)a notice purporting to be a notice referred to in this section has been given to the relevant authority;

    (b)the notice, as regards the time of giving the notice or otherwise, failed to comply with the requirements of this section; and

    (c)the relevant authority would not, by reason of the failure, be prejudiced if the notice were treated as a sufficient notice, or the failure resulted from the death, or absence from Australia, of a person, from ignorance, from a mistake or from any other reasonable cause;

    the notice shall be taken to have been given under this section.
    …

    PART VI – RECONSIDERATION AND REVIEW OF DETERMINATIONS

    Interpretation

    60.      (1)       In this Part:

    "claimant" means a person in respect of whom a determination is made;
    "decision" has the same meaning as in the Administrative Appeals Tribunal Act 1975;
    "determination" means a determination, decision or requirement made under section 8, 14, 15, 16, 17, 18, 19, 20, 21, 21A, 22, 24, 25, 27, 29, 30, 31, 34, 36, 37 or 39, under paragraph 114B (5) (a) or under Division 3 of Part X;
    "determining authority", in relation to a determination, means the person who made the determination;
    "reviewable decision" means a decision made under subsection 38(4) or section 62.
    …
    Reconsideration of determinations

    62.      (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.

    (2)       A request to a determining authority to reconsider a determination made by it may be made by:
    (a)       the claimant; or
    …

    (3)       A request for reconsideration of a determination shall:
    (a)       set out the reasons for the request; and

    (b)be given to the determining authority within 30 days after the day on which the determination first came to the notice of the person making the request, or within such further period (if any) as the determining authority, either before or after the expiration of that period, allows.

    (4)       On receipt of a request, the determining authority shall reconsider the determination or cause the determination to be reconsidered by a person to whom its power under this section is delegated, being a person other than a person who made, or was involved in the making of, the determination.

    (5)       Where a person reconsiders a determination, the person may make a decision affirming or revoking the determination or varying the determination in such manner as the person thinks fit.

    …
    Applications to the Administrative Appeals Tribunal

    64.      (1)       Application to the Administrative Appeals Tribunal for review of a reviewable decision may be made by:

    (a)       the claimant; or
    …

    (3)       Despite section 27 of the Administrative Appeals Tribunal Act 1975, a person may not make an application to the Administrative Appeals Tribunal for a review of a reviewable decision except as provided by subsection (1) of this section.

    …"

submissions of the respondent

  1. The respondent provided both oral and written submissions.

  2. Mr Dubé submitted that Part VI of the Act established a strict regime of a three tiered decision-making process – a determination by the respondent (defined in section 60(1)); a reconsideration of the determination by the respondent (the "reviewable decision" – section 62); and a decision of the Tribunal reviewing the reviewable decision (section 64).  Mr Dubé submitted that for the Tribunal to have jurisdiction to review a decision there must have been a reviewable decision made under section 38(4) or section 62 of the Act.  Mr Dubé referred to the Full Federal Court's decision of Lees v Comcare (1999) 29 AAR 350 at 360 to support this proposition.

  3. Mr Dubé submitted that there was no 'reviewable decision' before the Tribunal because a decision under section 53 was not a 'determination' for the purposes of section 60(1) of the Act.  Therefore, there was no 'determination' that was amenable to reconsideration under section 62 of the Act and no reviewable decision upon which an application to the Tribunal could be made pursuant to section 64 of the Act.  Mr Dubé submitted that in the absence of a 'reviewable decision' under the Act, the Tribunal had no jurisdiction to review the purported 'reviewable decision' and accordingly, the application should be dismissed.

  4. Mr Dubé submitted that section 53 operated to exclude the Act from applying in any respect to a claim for compensation that did not meet its requirements, and an applicant who wished to challenge a section 53 decision had to do so by application to the Federal Court under section 39B of the Judiciary Act 1901.

  5. It was further submitted that in reviewing a 'reviewable decision' the Tribunal would not be authorised to exercise any powers and discretions which would not have been available to the determining authority at the reconsideration stage.

  6. Mr Dubé submitted that the ambit of the review powers in Part VI needed to be considered having regard to the omission by Parliament of section 53 from the definition of 'determination' in section 60(1) of the Act.  It was submitted that as a decision which was not a 'determination', reconsideration under section 62 of the Act was not available in relation to the operation of section 53 of the Act.

  7. Mr Dubé submitted that in the Federal Court decision of Trajkovski v Telstra Corporation (1998) 81 FCR 459, the Court determined that section 37(7) of the Act was a self-executing provision and had effect by operation of law and not as a result of a 'decision of an administrative character' or a 'determination'. The Court concluded that such a decision did not in itself amount to a 'reviewable decision' for the purposes of the Act. Mr Dubé submitted that there was an analogy between section 37(7) and section 53 in that someone needs to turn their mind to the issues in section 53 in the same way that someone needs to turn their mind as to a reasonable excuse in section 37(7) and that once a person has formed that opinion both of the sections operated automatically.

  8. It was further submitted that Trajkovski was authority for the proposition that where section 37(7) suspended an entitlement to compensation or a right to institute or continue proceedings under the Act (including under section 64), the Tribunal could in determining whether it had jurisdiction to review a 'reviewable decision' form a view about the reasonableness or otherwise of the refusal or failure to undertake the rehabilitation program.

  9. It was submitted that in Trajkovski and Tribunal decisions applying that authority, such as Chowdhary v Bayne (1999) 29 AAR 100 at 102-103, the application of section 37(7) had only been considered for the purpose of the Tribunal forming a view whether it had jurisdiction to review an actual 'reviewable decision' before it. Where there was no actual reviewable decision under challenge the Tribunal could not consider the section 53 question.

  10. Mr Dubé submitted that the principles outlined in Trajkovski were considered by the Tribunal in the decision of Deveson and Comcare (1999) 53 ALD 794, where the Tribunal determined that it must be satisfied that the applicant had complied with the requirements of section 53 of the Act before it could be satisfied that it had jurisdiction to review the 'reviewable decision'. It was submitted that the decisions of Trajkovski and Deveson could be distinguished on the basis in the current matter, that there was no 'reviewable decision' before the Tribunal.  Unlike Trajkovski and the other Tribunal decisions the decision on 11 May 2000 was not contained within a determination denying liability for an injury (section 14) or refusing compensation for medical expenses (section 16) or incapacity (section 19), which could have been the subject of the 'reviewable decision' of 1 June 2000. It was submitted that the present circumstances were similar to those in the recent decisions of the Tribunal regarding section 37(7) which determined that the Tribunal had no jurisdiction because there was no 'reviewable decision' behind the operation of section 37(7) of the Act: Quis and Comcare [2001] AATA 263 and Peisley and Comcare [2001] AATA 121.

  11. It was submitted that if there was no 'reviewable decision' then the Tribunal and the parties could not artificially construct a reviewable decision to enable the Tribunal to have jurisdiction to proceed to review that 'decision': Alaa Saraya v Civil Aviation Safety Authority, Federal Court, 1 May 1997, 364/1997 at paras 21-22.

  12. It was submitted that without a reviewable decision 'alongside' the section 53 decision, there was no purpose for which the Tribunal was required to form a view on the operation of section 53 of the Act.  It was submitted that in the event that the Tribunal was satisfied that there was no 'reviewable decision', the application for review must be dismissed.  Mr Dubé submitted that in the event that the Tribunal formed the opinion that the applicant had complied with section 53, the Tribunal was not authorised to exercise any power or discretion under the Act.

  13. Mr Dubé submitted that whilst the officer or delegate framed it in the wording as if it were a determination, this was just clumsy wording and looking at the letter as a whole, the decision-maker had formed the view that there were no rights of review under the normal reconsideration provisions.

  14. Mr Dubé submitted that a comparison between section 53 and sections 4 and 14 of the Act revealed a difference in respect of the drafting and whilst there were requirements that needed to be satisfied in sections 14, 16, 19 and 24, they were not phrased in the same way as section 53.  Furthermore, those other sections were all referred to in the definition of 'determination' in subsection 60(1) of the Act.  Section 53 was like the gateway to the Act and the heads of power under the Act (the other sections dealing with the various types of compensation to be payable - incapacity, permanent impairment, medical expenses).

  15. Mr Dubé conceded that there were a number of issues a decision-maker would need to look at when making a determination under section 14 but submitted that the Federal Court did not go so far as to say that a decision under section 53 was then part of the section 14 determination.
    submissions of the applicant

  16. The applicant provided both oral and written submissions.

  17. Mr Erskine submitted on behalf of the applicant that the matter had been put beyond argument by the Full Federal Court decision in Leesv Comcare (1999) 29 AAR 350. Mr Erskine submitted that there was express reference in the decision of Lees to the fact that a finding under section 53 was part of a determination under section 14 of the Act.

  18. Mr Erskine submitted that the way that the original decision maker worded her decision (T10) was correct because she was making a determination under section 14 of the Act.  The first matter that she was required to consider was whether an appropriate notice of injury had been given to the relevant authority as required by section 53 and she had made that finding.  Mr Erskine submitted that a determination had been made under section 14 which was the central provision of the Act, and the definition of "determination" in the Act included a determination made under section 14 of the Act.

  19. Mr Erskine submitted that the original decision-maker was making a determination under section 14 and the first step in her making that determination was to make a finding under section 53 of the Act.  The original decision maker correctly used the language of section 14 to make her determination so that having made her finding under section 53 as part of the determination of section 14 she was then correct in concluding that Comcare was not liable to pay compensation.

  20. The applicant submitted that there was no analogy between Trajkovski and subsequent decisions with respect to section 37(7) and the operation of section 53 of the Act. Mr Erskine submitted that section 37(7) of the Act had been described by the Federal Court in Trajkovski as 'self-executing', in that if the pre-condition applied, the consequence followed.  Someone had to turn their mind to whether the pre-condition arose but if, having turned their mind to whether it arose, they came to the conclusion that it did, then the section operated of its own force, suspending the compensation payable.

  21. Mr Erskine submitted that section 53 started in an entirely different way in that it stated: "This Act does not apply to …" and went on to list certain conditions, and the way that the Full Federal Court approached section 53 in Lees was to indicate that that was one of the matters that the determining officer in Comcare had to make a finding about when she made the determination under section 14 of the Act.  Mr Erskine submitted that section 53 was no more than a provision within the Act upon which a claim for compensation might fail and that analogous sections of the Act were the definition of 'injury' in section 4 of the Act where compensation may be denied because the injury arose as a result of a reasonable disciplinary action and section 14 which excluded compensation in respect to self-inflicted wounds or injuries arising from serious and wilful misconduct.

  1. Mr Erskine submitted that since section 53 was like a gateway provision, it was the first logical thing that a determining officer had to look at in making a determination under section 14 of the Act.  It was submitted that the consequence was that if a determining officer starts their decision-making process under section 14 by considering whether section 53 has been complied with and made a finding that it had not been, then the determining officer did not have to go any further – that was sufficient for the determining officer to make a determination under section 14 that there was no liability to pay.  Even though there had been no discussion, for example, of the medical evidence, once the determining officer had made that finding that section 53 had not been complied with then it was unnecessary to go further and make other findings because that initial section 53 finding was sufficient for the determining officer to conclude that Comcare was not liable to pay compensation.

  2. Mr Erskine submitted that there was a determination under section 14 which involved a finding under section 53 and it was a "determination" for the purposes of section 60(1).  Consequently, because section 14 was one of the sections referred to in section 60 as being a determination, it was a reviewable decision under section 62 and when the reviewing officer in section 62 has made a decision adverse to the applicant, the applicant is then entitled to appeal to this Tribunal under section 64 of the Act.

  3. Mr Erskine submitted that sections such as 4, 14 and 53 did not provide the respondent with the ability to simply ignore a claim for compensation.  The proper way for dealing with these sections was for the respondent to receive the claim and determine whether the person making the claim was entitled to compensation.  In so doing the respondent was entitled to apply the exclusionary provisions provided for by the sections ie, the injury being self-inflicted or arising from reasonable disciplinary action or the claim was put in too late.  Mr Erskine submitted that the decisions made under all of these sections, including the application of the exclusionary factors, were reviewable decisions.

  4. Mr Erskine submitted that the letter in which the respondent stated "I therefore determine that Comcare is not liable to pay compensation under the Safety Rehabilitation and Compensation Act 1988" was a determination.  The applicant further submitted that the reply to the applicant's request for reconsideration received on 1 June 2000, where the independent review officer stated that she was "unable to take a reconsideration as requested" was in fact a reconsideration.  Mr Erskine referred the Tribunal to the decision in Girgis and Australian Postal Commission (AAT 6847, 19 April 1991) where the Tribunal decided that a letter informing the applicant that the determination would not be revoked or varied was a reconsideration.

  5. Mr Erskine submitted that the letter dated 11 May 2000 (T10/19) constituted a determination under the Act and the reply to the applicant dated 1 June 2000 (T12/22-23) was a reconsideration of that determination.  Mr Erskine submitted that that reconsideration was a reviewable decision which the Tribunal had jurisdiction to review.
    discussion and findings

  6. The Tribunal is given jurisdiction to hear matters by section 64 of the Act, which states that the Tribunal may review a "reviewable decision". Section 60(1) of the Act defines a "reviewable decision" to mean a decision made under section 38(4) or section 62 of the Act. As section 38(4) is concerned with a determination by a rehabilitation authority in respect of a section 36 or section 37 determination, it is not of relevance in the instant case. Section 62 of the Act refers to reconsiderations of determinations and section 62(2) relevantly provides that a request to a determining authority to reconsider a determination made by it may be made by the claimant and on receipt of a request, the determining authority shall reconsider the determination. The "determination" referred to in section 62 is defined in section 60(1) of the Act to mean a determination, decision or requirement under various sections.

  7. The Full Federal Court decision in Lees v Comcare sums up the process (at paragraphs 32-33):

    "32.     Part VI of the Act is headed 'Reconsideration and Review of Determinations'.  It establishes a three tiered decision-making process: the original decision or determination to be made by an authorised person within Comcare or a licensed authority, a reconsidered determination to be made within the same authority as the original decision – but ordinarily by a fresh decision-maker, and a decision of the AAT reviewing the reconsidered determination."

  1. In order for the Tribunal to have jurisdiction, therefore, the decision or determination must be a reviewable decision, or, in other words, a reconsideration of a determination, decision or requirement made under sections 8, 14, 15, 16, 17, 18, 19, 20, 21, 21A, 22, 24, 25, 27, 29, 30, 31, 34, 36, 37 or 39, under paragraph 114B(5)(a) or under Division 3 of Part X.

  2. For present purposes, it is clear that a decision made under section 53 that the Act did not apply in relation to an injury to an employee because notice in writing of the injury was not given as soon as practicable after the employee became aware of the injury is not in itself a "determination" for the purposes of the Act and a reconsideration of such a decision could not amount to a "reviewable decision", and the Tribunal so finds.

  3. Therefore, the only way for the Tribunal to have jurisdiction in such a case is if a decision under section 53 was considered to be part of a decision made under one of the sections mentioned in the section 60(1) definition of "determination".  This is what the applicant submits – that a decision made under section 53 is part of the determination made under section 14 in particular.  This matter therefore involves consideration of the scope of section 14.

  4. The scope of section 14 was considered by the Full Federal Court in the decision of Lees and Comcare (at paragraph 27):

    "27      As Finn J noted, s 14 is the central provision of the Act so far as the liability of Comcare to pay compensation is concerned.  Section 14 creates a liability in Comcare in respect of injuries suffered by employees which result in death, incapacity for work or impairment.  However, the liability in Comcare created by s 14 is qualified in two ways.  First, such liability is a liability '[s]ubject to' Part II of the Act.  That is, it is a liability limited in its extent by other provisions of Part II of the Act (see, for example, s 17(2)).  Secondly, the liability is a liability to pay compensation 'in accordance with' the Act.  That is, it is a liability to pay the compensation for which the statute provides, as required by the Act (see, for example, ss 17(3)(4) and (5), 19, 20, 24 and 25).
    …"

  5. It is clear from this analysis of section 14 that the Full Federal Court considers section 14 to be the central or gateway provision of the Act, through which all claims must pass and succeed in order to get to the specific heads of compensation.

  6. Mr Erskine for the applicant made reference to Lees v Comcare as support for the proposition that a determination under section 14 includes a decision under section 53 (at paragraphs 34-35):

    "34      The definition of 'determination' makes it plain that it is part of the scheme of the Act for determinations to be made under the various sections referred to therein.  In particular, the definition reveals that a determination may be made under s 14 of the Act.  A determination under s 14 cannot amount to more than a determination that Comcare 'is liable to pay compensation in accordance with this Act' in respect of a particular injury. The amount of compensation which Comcare will be liable to pay, the person or persons to whom the compensation will be payable and the time or times at which Comcare's liability will give rise to a present obligation to make payments are, as the above examination of the structure of the Act reveals, all matters to be determined under other provisions of the Act.

    35       This is not to say that a determination under s 14 is without real significance.  Such a determination will involve findings on the following matters.  First, that an appropriate notice of injury has been given to the relevant authority as required by s53 of the Act; secondly, that a claim for compensation has been made as required by s 54 of the Act; thirdly, that the person who made the claim or on whose behalf the claim was made was an 'employee' at the time of the alleged injury (ss 4 and 5); fourthly, that the employee suffered an injury (s 4); and finally, that the injury has resulted in death, incapacity for work or impairment."

  1. It appears from the Full Federal Court's analysis of section 14 that the role of section 14 within the Act is to determine all of the preliminary issues in relation to a claim for compensation, as there is little else to do in such a determination apart from preliminary issues - there are many other sections in the Act which specify amount and types of compensation.  The Full Federal Court makes specific mention of section 53 as being one of the findings made under section 14 of the Act.  Whilst the wording of section 14 does not utilise the wording of section 53 or section 54, unlike, for example, whether the person who made the claim was an "employee" at the time of the injury (sections 4 and 5), or whether the employee suffered an "injury" as defined in section 4, or whether the injury has resulted in death, incapacity for work or impairment, it appears that the Full Federal Court consider that a finding in relation to section 53 is implicitly a part of a determination under section 14 of the Act.

  2. The Full Federal Court appears to be saying that in making a determination under section 14, the decision-maker in every case must look first to ascertain whether an appropriate notice of injury has been given to the relevant authority as required by section 53 of the Act.  If, as in most cases, appropriate notice has been given, then the decision-maker will proceed to consider and make findings on the other relevant preliminary matters, for example, whether an appropriate claim for compensation has been made as required by section 54; whether the person who made the claim or on whose behalf the claim was made was an "employee" at the time of the alleged injury in accordance with sections 4 and 5; whether the employee suffered an injury (section 4); and whether that injury has resulted in death, incapacity for work or impairment.

  3. On the other hand, if section 53 has not been complied with, then the decision-maker has to look no further and can make a determination under section 14 that Comcare is not liable to pay compensation under the Act, which is what the original decision-maker did in this case.

  4. The Tribunal has considered the various authorities put forward by the respondent with the aim of drawing an analogy between section 53 and section 37(7) of the Act. However, the Tribunal finds that section 37(7) in its wording is fundamentally different from section 53 and section 37 is from a completely different context. Issues surrounding section 37(7) concern the situation where a determination under section 14 has already been made that the employee has suffered an injury resulting in an incapacity for work or an impairment and a further determination has been made that such an employee should undertake a rehabilitation program. Section 37(7) arises where an employee has refused or failed, without reasonable excuse, to undertake a rehabilitation program and as a result, the employee's rights to compensation under this Act and to institute or continue any proceedings under this Act in relation to compensation have been suspended until the employee begins to undertake the program. Cases such as Trajkowski have determined that section 37(7) is an automatic provision. The Tribunal considers that the wording of this provision is fundamentally different from the wording of section 53 of the Act and that therefore, there is no comparison. In addition, such cases start from the premise that the section 60(1) definition of "determination" includes determinations, decisions or requirements made under section 37, unlike in the present case, where the legislation is silent as to section 53 of the Act. The cases put forward by the respondent focus on the need for there to be a "reviewable decision" behind the determination in relation to section 37(7). In the current case, there is no such need for another reviewable decision, as this decision as to notice is part of the section 14 determination, a "reviewable decision" in accordance with section 60(1) of the Act.

  5. The Tribunal finds that a decision as to the operation of section 53 is contained within a section 14 determination.  Section 53 is but one way that an application might fail to satisfy section 14 of the Act.  Similarly, a claim might fail under section 14 because the claim requirements of section 54 are not met, or that the person making a claim was not an "employee" as defined in the Act at sections 4 and 5, or that a person's claimed injury did not meet the section 4 definition of "injury", or a finding that the injury did not result in death, incapacity for work or impairment.

  6. The Tribunal now turns to consider whether or not there has been a valid reconsideration of the section 14 determination.  The applicant submitted that the decision of Girgis stands as authority for the proposition that a refusal to reconsider itself constitutes a reconsideration.  The Tribunal cannot respectfully agree with this submission.  In the case of Girgis, after the applicant requested a reconsideration of the respondent's decision to terminate the liability of Australia Post to pay compensation under the Act, another officer of Australia Post wrote to the applicant referring to the application for reconsideration and notifying him that the officer did not intend to revoke or vary the relevant determination.  The Tribunal found that having regard to the previous correspondence, it could be regarded as a reconsideration under section 38 of the Act and proceeded on that basis.  In the instant case, however, what has occurred is that the respondent has refused to reconsider its original decision, citing that it did not have authority to reconsider a decision made under that particular section.  A reconsideration has not in effect taken place, although, as is evident from the Tribunal's earlier reasoning, since it was a section 14 determination, it is the Tribunal's view that the respondent did in fact have power to carry out a reconsideration in accordance with section 62 of the Act.

  7. As there has been no effective reconsideration of the determination, the Tribunal finds that it does not have jurisdiction to consider the substantive issues arising from the section 14 determination that notice was not adequately given in accordance with section 53 of the Act. However, in light of the Tribunal's findings in relation to the relationship between sections 14 and 53 of the Act, the Tribunal considers it appropriate to exercise its discretion under section 42D(1) of the Administrative Appeals Tribunal Act 1975 to remit the decision for reconsideration by the respondent in accordance with section 62 of the Act.
    decision

  8. Pursuant to section 42D(1) of the Administrative Appeals Tribunal Act 1975, the Tribunal remits the decision to the respondent for reconsideration of the decision under review.

I certify that the 51 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member J.A. Kiosoglous MBE

Signed:         

………………(Signed)………………
Barbara Armstrong, Associate

Date/s of Hearing  13 July 2001
Date of Decision  5 September 2001
Counsel for the Applicant        Mr C. Erskine
Solicitor for the Applicant         Pamela Coward & Associates
Counsel for the Respondent    Mr B. Dubé
Solicitor for the Respondent    Australian Government Solicitor

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Commissioner of Taxation v Apted [2021] FCAFC 45
Commissioner of Taxation v Apted [2021] FCAFC 45
Quis and Comcare [2001] AATA 263