Kuchlmayr and Australian Capital Territory (Compensation) - [2022] AATA 1527

Kuchlmayr and Australian Capital Territory (Compensation) [2022] AATA 1527 (8 June 2022)
Division:GENERAL DIVISION
File Number(s): 2022/1269
Re:Nicole Kuchlmayr
APPLICANT

Australian Capital TerritoryAnd
RESPONDENT

INTERLOCUTORY DECISION
Tribunal:Mr S. Webb, Member
Date:8 June 2022
Place:Canberra

Application dismissed.
……….[sgd]……….
Mr S. Webb, Member
Catchwords
PRACTICE AND PROCEDURE – jurisdiction – reconsideration decision to refuse claim for compensation affirmed by consent decision – request for further review of consent decision refused – request for further reconsideration of reconsideration decision by own motion – decision to decline invitation to reconsider a reconsideration decision by own motion not a reviewable decision – no jurisdiction – application dismissed
Legislation
Administrative Appeals Tribunal Act 1975, ss 3, 25, 29, 42A, 42C, 43
Safety Rehabilitation and Compensation Act 1988, ss 4, 5A, 5B, 14, 60, 62, 64, 65
Cases
Cheung v Administrative Appeals Tribunal [2009] FCA 241
Commonwealth of Australia v Snell [2019] FCAFC 57
Director-General of Social Security v Hales [1983] FCA 81
Kuchlmayr and ACT [2020] AATA 5072
Re Burt and Commission for the Safety, Rehabilitation and Compensation of Commonwealth Employees [1991] AATA 302
Telstra Corporation Ltd v Hannaford [2006] FCAFC 87
REASONS FOR INTERLOCUTORY DECISION
Mr S. Webb, Member
8 June 2022

Nicole Kuchlmayr claimed compensation for an alleged injury in her employment by the Australian Capital Territory (ACT) Department of Health (employer). Initially, her claim was accepted and she was paid compensation. On reconsideration, however, her claim was found to lack merit. Ms Kuchlmayr applied for review of that decision by the Tribunal. In the course of the resulting proceedings, Ms Kuchlmayr and the ACT agreed to resolve the application in terms which resulted in the decision being affirmed by consent (consent decision).
Subsequently, Ms Kuchlmayr asked the Tribunal to revisit the consent decision on grounds she had additional information relevant to her claim. This application was dismissed for reasons explained in Kuchlmayr and ACT (dismissal decision).[1]
[1] [2020] AATA 5072.
Several months later, Ms Kuchlmayr asked the ACT to reconsider again, by its own motion, the previous reconsideration decision refusing her claim for compensation. The ACT declined to do so. Ms Kuchlmayr’s present application for review is in respect of this decision of the ACT.
Her application raises three questions for determination:
(a)does the Tribunal have jurisdiction to review the ACT’s refusal to reconsider the 12 October 2017 by its own motion; and if so
(b)is Ms Kuchlmayr’s application out of time; and if so
(c)is it reasonable in the circumstances to grant additional time for the making of the application?
Facts
The short facts are as follows.
Ms Kuchlmayr alleged in 2016 she was bullied in her employment and this resulted in a psychological ailment she first noticed on 27 May 2016. Ms Kuchlmayr claimed compensation for this ailment as an injury.
On 17 July 2017, Comcare (the relevant authority at the time) issued a determination accepting liability for Ms Kuchlmayr’s adjustment reaction with mixed emotional features as an injury under ss 4, 5A and 5Bb of the Safety Rehabilitation and Compensation Act 1988 (SRC Act) in respect of which compensation was payable under s 14 of that Act.
Ms Kuchlmayr’s employer requested reconsideration of this determination.
On 12 October 2017, Comcare issued a reconsideration decision overturning its earlier determination to accept liability for the injury claimed by Ms Kuchlmayr, finding there was no injury pursuant to her claim and Ms Kuchlmayr was not entitled to compensation.
Ms Kuchlmayr applied to the Tribunal for review: application 2017/6255.
In the course of the proceedings, Ms Kuchlmayr and Comcare agreed to terms that were reduced to writing and given to the Tribunal on 18 June 2018. The agreed terms were signed by Ms Kuchlmayr’s then solicitor.
In consequence, on 21 June 2018, the Tribunal issued a consent decision under s 42C of the Administrative Appeals Tribunal Act 1975 (AAT Act), affirming the reconsideration decision which refused Ms Kuchlmayr’s compensation claim.
There matters rested for some time.
On 26 October 2020, Ms Kuchlmayr applied to the Tribunal for further review of the consent decision on grounds her employer had provided false and misleading information. The application was dismissed on grounds the consent decision was final and the Tribunal had exercised its powers of review: it was functus officio.
Once again, matters rested for some time, although I understand Ms Kuchlmayr sought legal advice and requested information from her employer under the Freedom of Information Act 1982.
On 26 August 2021, Ms Kuchlmayr’s present lawyer, Mr Dean Prail of Prail Lawyers, wrote to EML, the compensation claims manager for the ACT (the relevant authority for the claim at the time), and stated:
This letter is to request a reconsideration of the decision [on 12 October 2017] by way of own motion as a result of information now available and material to the evidence provided by Ms Bettiens for and on behalf of the employment agency. [2]
[2] Applicant’s request for reconsideration, 26 August 2021 at [10].
On 29 November 2021, the ACT responded in the following terms:
I refer to your request for EML to complete a reconsideration on own motion under the Safety, Rehabilitation and Compensation Act 1988 (SRC Act).
This claim was determined and reviewed by Comcare. An appeal at the AAT affirmed the reviewable decision and lastly the appeal to review the AAT was dismissed.
I have considered this request and the new information provided and will not be completing a reconsideration on own motion.
On 23 December 2021, I understand Mr Prail asked EML to provide reasons for the decision.
On 11 February 2022, EML replied to Mr Prail’s request and reiterated that it would not be undertaking a reconsideration on its own motion, setting out the reasons given in its 29 November 2021 letter.
On 14 February 2022, acting for Ms Kuchlmayr, Mr Prail lodged an application for review of the ACT’s 29 November 2021 response in which he stated the decision had been received on 29 November 2021.
On 21 March 2022, the Tribunal informed Mr Prail the application for review was lodged out of time and an application for extension of the 60-day period would be required. Mr Prail disagreed, stating that the reasons for the decision were received on 11 February 2022 and the application for review was not, therefore, out of time.
Three issues arise for determination, namely the Tribunal’s jurisdiction to hear Ms Kuchlmayr’s application, whether the application is within the prescribed time and, if not, whether additional time should be granted. The parties have provided written submissions and each has been provided an opportunity to be heard orally.
Jurisdiction
Ms Kuchlmayr asserts the ACT made a reviewable decision on 29 November 2021 when it refused to reconsider the 12 October 2017 decision to reject her compensation claim. In her submission, the refusal is a reviewable decision for the purposes of s 60 and s 62 of the SRC Act, and it is a decision for the purposes of s 3(3) of the AAT Act. Authority for these propositions is drawn from Re Burt and Commission for the Safety, Rehabilitation and Compensation of Commonwealth Employees (Burt).[3] Ms Kuchlmayr argues the ACT has unfettered discretion to consider a claim under the SRC Act in an evolving landscape. She relies on Commonwealth of Australia v Snell (Snell)[4] when arguing the statute allows for evolving, progressive decision-making where further relevant materials are brought forward. It would be wrong, so the argument goes, relying on Director-General of Social Security v Hales (Hales)[5] to adopt a narrow or pedantic meaning of decision when considering the ACT’s obligations under the SRC Act, and an error of this kind should not prevent proper reconsideration of the substantial merits of Ms Kuchlmayr’s claim.
[3] [1991] AATA 302 at [3].
[4] [2019] FCAFC 57 at [4].
[5] [1983] FCA 81, per Lockhart J.
The ACT asserts the letter of 29 November 2021 is not a reviewable decision for the purposes of s 62 of the SRC Act and it cannot, therefore, be a decision that is capable of review by the Tribunal.
There is some force to this submission.
The Tribunal’s jurisdiction is conferred by s 64 of the SRC Act:
(1) Application to the Administrative Appeals Tribunal for review of a reviewable decision may be made by:
(a) the claimant; or
(b) if the decision affects the Commonwealth—the Commonwealth; or
(c) if the decision affects a Commonwealth authority—the
Commonwealth authority; or
(d) if the decision affects a corporation that holds a licence under Part VIII—the licensed corporation.
(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.
This section is to be read with s 25 (1) of the AAT Act:
(1) An enactment may provide that applications may be made to the Tribunal:
(a) for review of decisions made in the exercise of powers conferred
by that enactment; or
(b) for the review of decisions made in the exercise of powers
conferred, or that may be conferred, by another enactment having effect under that enactment.
As can be seen, the conferral of jurisdiction on the Tribunal to review a reviewable decision is not at large. The ambit of the Tribunal’s jurisdiction is not enlarged by the conferral of powers under s 43(1) of the AAT Act. Under this section, the Tribunal may exercise all of the powers available to the person who made the reviewable decision for the purposes of reviewing the decision. In order to properly comprehend the ambit of the jurisdiction, it is necessary to consider the meaning given to the phrase reviewable decision in s 60(1) of the SRC Act:
reviewable decision means a decision made under subsection 38(4) or section 62
As s 38(4) is not presently relevant, it is the second limb of the definition, a decision made under s 60, that applies in a case of this kind, namely the reconsideration of a determination by a determining authority on its own motion under s 62(1) or on request under s 62(2). Important procedural matters are dealt with in ss 62(3), (4), (5) and (6):
(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.
(6) The determining authority or person must decide a request made by a claimant to reconsider a determination within the period prescribed by the regulations.
The words decision and determination are given meaning in s 60(1):
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, 29A, 30, 31, 34, 36, 37 or 39, under paragraph 114B(5)(a) or under Division 3 of Part X.
The word decision is defined in s 3(3) of the AAT Act:
(3) Unless the contrary intention appears, a reference in this Act to a decision includes a reference to:
(a) making, suspending, revoking or refusing to make an order or
determination;
(b) giving, suspending, revoking or refusing to give a certificate,
direction, approval, consent or permission;
(c) issuing, suspending, revoking or refusing to issue a licence,
authority or other instrument;
(d) imposing a condition or restriction;
(e) making a declaration, demand or requirement;
(f) retaining, or refusing to deliver up, an article; or
(g) doing or refusing to do any other act or thing.
It will be immediately apparent, determining the particular decision in question is not greatly assisted by this rather ambulatory definition. One must look to the terms of the SRC Act and the administrative framework in which it operates to determine if there is a decision capable of review under the AAT Act. That capability is expressly confined to a reviewable decision. Nevertheless, refusing to make a decision under s 62 is within the broad meaning of reviewable decision.
Once a reviewable decision has been made, under s 63 of the SRC Act, the decision-maker must notify the claimant:
As soon as practicable after a person makes a reviewable decision, the person shall cause to be served on the claimant a notice in writing setting out:
(a) the terms of the decision;
(b) the reasons for the decision; and
(c) a statement to the effect that, subject to the Administrative Appeals
Tribunal Act 1975, application may be made to the Administrative Appeals Tribunal for review of the decision to which the notice relates.
It is within this framework the facts in Ms Kuchlmayr’s case must be examined. While some latitude may be appropriate, especially where a person proceeds without the benefit of legal advice and representation, one would expect a lawyer with experience in this jurisdiction to adopt a more precise and accurate approach.
Ms Kuchlmayr’s request for reconsideration of Comcare’s 12 October 2017 decision was lodged on 26 August 2021. The request has 3 significant features.
Firstly, it is a request for the ACT to undertake a reconsideration by its own motion. No reference is made to the request being made under s 62(2) of the SRC Act. The request for reconsideration was made by Mr Prail, acting on Ms Kuchlmayr’s behalf, and one would expect the request for the ACT to undertake a reconsideration by its own motion was entirely deliberate (although the purpose of framing it in this way has not been explained).
Secondly, the request is for reconsideration of the decision made on 12 October 2017 which was, itself, a reconsideration decision under s 62 of the SRC Act: a reviewable decision which was susceptible to review by the Tribunal. Moreover, Ms Kuchlmayr had previously applied to the Tribunal under s 64 for review of this reviewable decision and she subsequently agreed, on 18 June 2018, to it being affirmed in a consent decision of the Tribunal under s 42C of the AAT Act. Ms Kuchlmayr later sought to reopen the Tribunal’s consent decision, without success – the Tribunal decided this should not be allowed and dismissed her application. While it may be possible for Ms Kuchlmayr to request reconsideration of the primary determination of her claim, it was not open to her to request further reconsideration of the reviewable decision that was made on 12 October 2017 under s 62 of the SRC Act.
Once again, while some latitude may be allowed when construing Ms Kuchlmayr’s request for reconsideration, one would expect a lawyer with relevant experience would be alive to the contents of Part VI of the SRC Act and would proceed with appropriate precision when framing such a request. The 26 August 2021 request Mr Prail made on Ms Kuchlmayr’s behalf was expressly framed in reference to Comcare’s 12 October 2017 reconsideration decision. This was incorrectly referred to as a determination, which has particular meaning under s 60(1) of the SRC Act. Comcare’s 12 October 2017 reconsideration decision is not a determination and it is not susceptible to further reconsideration under s 62.
Nevertheless, in consideration of Ms Kuchlmayr’s assertion new material has come to light which is relevant to her claim, the 17 July 2017 primary determination (which was set aside by the 12 October 2017 reconsideration decision) may be susceptible to further reconsideration. It is now well-settled the scheme of the SRC Act allows for progressive decision-making and the ongoing review of entitlements.[6] No principle of issue estoppel or some cognate rule of procedure bars reconsideration of an earlier determination where new relevant material is produced by a claimant which may be probative.[7] As Bennett J observed in Cheung v Administrative Appeals Tribunal,[8] reconsideration is untrammelled by any previous determination and, on reconsideration under s 62, it is for the decision-maker to make the correct or preferable decision on the available material. I make no findings about the merit of Ms Kuchlmayr’s assertions in respect of the new materials she has obtained.
[6] Telstra Corporation Ltd v Hannaford [2006] FCAFC 87, per Heerey J at [10] and Conti J, with whom Dowsett J agreed, at [57]; Snell at [71]-[72].
[7] Snell at [4].
[8] [2009] FCA 241 at [43].
Thirdly, while there is no bar in principle on requesting reconsideration of a determination, under s 62(3)(b), such a request must be made within 30 days after the person became aware of the determination. Provision is made to extend the time in which a request for reconsideration may be made.
The request Mr Prail lodged on Ms Kuchlmayr’s behalf on 26 August 2021 was more than 3 years out of time. Despite this, no request was made for additional time in which to make the reconsideration request. This may explain why Mr Prail invited the ACT to reconsider the 12 October 2017 by its own motion. A reconsideration by own motion under s 62(1) is not subject to any time limit. I am satisfied Ms Kuchlmayr’s request was deliberately framed as a request for the ACT to reconsider the 12 October 2017 reconsideration decision by its own motion.
The better and proper course is to follow the statutory procedure set out in ss 62(2), (3), (4) and (5) of the SRC Act, under which a claimant may request a determining authority to reconsider a determination, and in response the authority must decide, where the 30 day period mentioned in s 62(3)(b) has elapsed, if additional time should be allowed and, if so, then proceed to reconsider the determination under s 62(4) and make a decision under s 62(5).
This has not been done in this case.
The ACT’s response on 29 November 2021 amounts to no more than the ACT declining the invitation to undertake a reconsideration on own motion. The author states:
I have considered this request and the new information provided and will not be completing a reconsideration on own motion.
I am not persuaded the ACT’s response to Mr Prail, or the ACT declining to reconsider the 12 October 2017 reconsideration decision on its own motion, amounts to the making of a decision for the purposes of s 62 of the SRC Act or a reviewable decision for the purposes of s 64 of the SRC Act.
The request Mr Prail made on Ms Kuchlmayr’s behalf for the ACT to reconsider the 12 October 2017 reconsideration decision by its own motion does not adhere to the statutory procedure. It does not adhere to the requirements of s 62(3)(b) of the SRC Act in respect of a request for reconsideration. In consequence, it does not engage the decision-making powers set out in s 62(3)(b) and s 62(5) of the SRC Act, exercise of which results in a reviewable decision. Where, as here, a determining authority declines to reconsider a determination by its own motion, it is open to the claimant to formally request it to do so under s 62(2), thereby engaging the statutory procedure for reconsideration of a determination and the making of a reviewable decision under s 62(3)(b) and s 62(5).
For the ACT’s response to Mr Prail’s 26 August 2021 request to amount to a decision for the purposes of s 62 of the SRC Act, it must relate to a power that is available for exercise by the prospective decision-maker. In this case, while it may have been open for the ACT to reconsider Comcare’s determination on 17 July 2017, it had no authority under s 62 of the SRC Act to reconsider Comcare’s reconsideration decision which was affirmed by the Tribunal on 21 June 2018. Declining to do so does not amount to a decision that is reviewable by the Tribunal.

I am satisfied Ms Kuchlmayr has not yet made a request under s 62(2) of the SRC Act for the ACT to reconsider the determination on 17 July 2017, and to request the allowance of additional time in which to make such a request. It is open for her to do so.
Should such a request be made, it will then be for the ACT to decide if additional time should be allowed under s 62(3)(b) and, if so, to proceed to make a reconsideration decision under s 62(4) and (5). Decisions of that kind are reviewable decisions susceptible to review by the Tribunal.
For these reasons, I am not persuaded the Tribunal has jurisdiction to review the ACT’s decision to decline to reconsider the 12 October 2017 reconsideration decision by its own motion.
That being so, the application must be dismissed under s 42A(4) of the AAT Act.
It is not necessary to proceed further to consider if the application for review was made within the 60 day period prescribed in s 65(4) of the SRC Act. On this point, it is appropriate to observe that the prescribed period commences on the day the decision was made and it ends on the sixtieth day worked out under the terms of s 29(2) of the AAT Act. Where the decision does not set out findings on material questions of fact and the reasons for the decision, the sixtieth day is to be determined under s 29(2)(b). For these provisions to be engaged, there must be a decision that is susceptible to review by the Tribunal.
Decision
Application dismissed.
I certify that the preceding 53 (fifty-three) paragraphs are a true copy of the reasons for the decision herein of Member S Webb.
……………………..[sgd]……………………
Associate
Dated: 8 June 2022
Date final submissions received:                  5 May 2022
Representative for the Applicant:                 Mr Dean Prail, Prail Lawyers
Representative for the Respondent:             Mr Abe Ghaleb, McInnes Wilson Lawyers