Long and Australian Postal Corporation
[2002] AATA 1333
•23 December 2002
CATCHWORDS – COMPENSATION – suspension of compensation – unreasonably failed to undertake rehabilitation program – whether Administrative Appeals Tribunal has jurisdiction and if so, the basis of the jurisdiction – Tribunal has jurisdiction.
Administrative Appeals Tribunal Act 1975 s. 3, 44
Safety, Rehabilitation and Compensation Act 1988 ss. 4, 14, 15, 16, 17, 18, 19, 20, 21, 21A, 22, 23, 24, 25, 27, 29, 30, 31, 33, 34–34S, 35, 36, 37, 38, 45, 54, 55, 56, 57 60, 61, 62, 63, 64 and 100; Part II, Part III, Part V, Part VI, Part VIII and Part VIIIA
Safety, Rehabilitation and Compensation and Other Legislation Amendment Act 2001 s. 3, Schedule 2, items 49 and 50
Social Security Act 1991
Administrative Decisions (Judicial Review) Act 1977
Federal Court of Australia Act 1976
Collector of Customs (NSW) v. Brian Lawlor Automotive Pty Ltd (1979) 24 ALR 307
Buck v Comcare (1996) 137 ALR 335
Trajkovski v Telstra Corporation Ltd (1998) 153 ALR 248
Re Martiniello and Comcare Australia (1994) 33 ALD 774
Chowdhary v Bayne (1999) 29 AAR 100
Re Gee and Director-General of Social Services (1981) 3 ALD 132
Chittick v Ackland (1984) 1 FCR 254
Australian National University v Lewins (1996) 138 ALR 1
Sassella (2001) 34 AAR 142
DECISION AND REASONS FOR DECISION [2002] AATA 1333
ADMINISTRATIVE APPEALS TRIBUNAL )
) V2002/844
GENERAL ADMINISTRATIVE DIVISION )
ReBOTTAWAN LONG
Applicant
AndAUSTRALIAN POSTAL CORPORATION
Respondent
DECISION
Tribunal: Miss S A Forgie (Deputy President)
Date: 23 December, 2002
Place: Melbourne
Decision:The Tribunal:
1. has jurisdiction to consider:
(1)whether the respondent provided a rehabilitation program to the applicant;
(2)if so, whether the applicant refused or failed to undertake it; and
(3)if so, whether his refusal or failure was without reasonable excuse; and
2.If the applicant did not refuse or fail to undertake a rehabilitation program provided to him by the respondent, the Tribunal has jurisdiction to consider the decision to refuse to pay compensation to him under the Safety, Rehabilitation and Compensation Act 1988.
S A FORGIE
Deputy President
REASONS FOR DECISION
On 7 August, 2002, the applicant, Mr Bottawan Long, applied for review of a decision dated 15 July, 2002 by a delegate of the respondent, the Australian Postal Corporation ("Australia Post"). That decision affirmed an earlier determination of another delegate of Australia Post described in the reasons for the decision as a "decision suspending benefits in respect of Mr Long's claim for compensation for not adhering to his Gradual Return to Work (GRTW) program". The letter advising him of the decision was also dated 15 July, 2002 and advised him that he might apply to the Tribunal if he chose to do so and advised him of the time limits for doing so.
A hearing was held to resolve a preliminary issue as to the Tribunal's jurisdiction to entertain Mr Long's application at all. At that hearing, Mr Long was represented by Mr Carey of counsel and Comcare by Mr Moulds of counsel. The documents required to be lodged in the Tribunal pursuant to s. 37 of the Administrative Appeals Tribunal Act 1975 ("AAT Act") have not been prepared or lodged pending the outcome of the preliminary issue for its resolution determines whether or not the application has been properly made. Copies of several documents were available: a letter dated 30 April, 2002 to Mr Long from Australia Post enclosing a return to a document headed Return to Work Agreement; a letter dated 9 May, 2002 from Australia Post to Mr Long; a letter dated 14 May, 2002 from Mr Long to Australia Post; a letter dated 20 May, 2002 from Australia Post to Mr Long; and a letter dated 7 June, 2002 from Mr Long's solicitors to Australia Post.
THE ISSUE
The issue in this case is whether the Tribunal has jurisdiction to review a decision of a delegate of Australia Post dated 15 July, 2002 suspending Mr Long's compensation for not adhering to a rehabilitation program.
BACKGROUND
For the purposes of these reasons, I will summarise the background to this application as I understand it to be.
Mr Long, who was born in Cambodia on 2 December, 1967 and is now 34 years of age, commenced work with Australia Post in approximately December, 1989. At all relevant times, he has been engaged in machine setting and operation tasks as a permanent, full-time Senior Postal Officer (Grade 2).
On or about 25 July, 2000, Mr Long suffered an injury within the meaning of the SRC Act. He subsequently claimed compensation and liability was accepted in an undated determination. There is some discrepancy in the description of the injury for which liability was accepted. Mr Carey has described it as an "L5-S1 disc protrusion, L5-S1 disc posterior" (amended submissions, paragraph 11) and Mr Moulds as a "disc prolapsed lumbar sacral level on the left side" (submissions, paragraph 1). Mr Long was paid compensation pursuant to s. 19 of the SRC Act and later returned to work for seven hours each day on modified duties.
On 30 April, 2002, Australia Post determined pursuant to s. 37(1) that Mr Long should undertake duties according to a document described as a "Return to Work Program" ("RTW program"). That document was dated 29 April, 2002 and related to the period 30 April, 2002 to 27 May, 2002. It required him to work for 8.25 hours each day rather than the seven hours Mr Long had been working up to that time. Australia Post also determined that Mr Long would be entitled to weekly payments of compensation pursuant to s. 37(5) of the SRC Act.
On 9 May, 2002, Australia Post wrote to Mr Long advising him that he had not worked the hours stipulated in the RTW program and asked him for his reasons for not doing so. That letter told him "… that if (he) failed to provide satisfactory explanation for non-compliance … within 7 days …(his) rights to compensation would be suspended … under Section 37(7) of the SRC Act 1988 until (he) … commenced … the rehabilitation program".
On 14 May, 2002, Mr Long responded that he was unable to undertake full-time work according to the RTW program because of increasing pain during the working day together with the stress and anger associated with such pain. On 20 May, 2002, a delegate of Australia Post notified Mr Long that:
"… pursuant to Section 37(7) of the Safety, Rehabilitation and Compensation Act 1988, I hereby determine that Mr Long'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 21 May, 2002 until such time as Mr Long begins to undertake the rehabilitation program which was the subject of the determination dated 30 April 2002."
On 7 June, 2002, Mr Long's solicitors sought review of the determination and, on 15 July, 2002, the determination of 20 May, 2002 was affirmed.
CONSIDERATION
I will begin by first setting out a summary of the relevant provisions of the SRC Act.
Outline of provisions relating to compensation
Part II of the SRC Act is concerned with compensation. Pursuant to s. 14(1), Comcare is, subject to qualifications set out in Part II, liable to pay compensation to Mr Long "in respect of an injury suffered … if the injury results in death, incapacity for work, or impairment". Pursuant to the terms of its licence, that liability is borne by Australia Post (s. 100 and see also the repealed Part VIIIA) but I will refer in this section of my reasons to Comcare as that is the manner in which the SRC Act is drafted. Each of the terms, "injury", "incapacity for work" and "impairment" is defined in the SRC Act (ss. 4(1) and 4(9)). The expression "compensation" is not defined but the extent to which Comcare is liable to pay compensation is set out in a number of sections:
section 15:Compensation for loss of or damage to property used by employee
section 16: Compensation in respect of medical expenses etc.
section 17:Compensation for injuries resulting in death
section 18: Compensation in respect of funeral expenses
section 19: Compensation for injuries resulting in incapacity
section 20: Compensation for injuries resulting in incapacity where employee is in receipt of a superannuation pension
section 21: Compensation for injuries resulting in incapacity where employee is in receipt of a lump sum benefit
section 21A: Compensation for injuries resulting in incapacity if employee is in receipt of a superannuation pension and a lump sum benefit
section 22: Compensation where employee is maintained in a hospital
section 24: Compensation for injuries resulting in permanent impairment
section 27: Compensation for non-economic loss
section 29: Compensation for household services and attendant care services
Other sections in the SRC Act make provision for the manner in which compensation is paid and these include:
section 25: Interim payment of compensation
section 30: Redemption of compensation
section 31: Recurrent payments after payment of lump sum
As I noted earlier, there are various qualifications to Comcare's liability. The first is found in s. 14 itself and it is that compensation is not payable in respect of an injury that is intentionally self-inflicted (s. 14(2)). The second is that:
"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." (s. 14(3))
Another qualification is found in s. 23(1), which provides that compensation is not payable under ss. 19, 20, 21, 21A or 22 to an employee who has reached 65. Section 23(1A) limits the compensation payable to a person who has reached 63 years of age. If a person has been imprisoned, compensation is not payable under ss. 19, 20, 21 or 21A. Where Comcare has decided under s. 30 to redeem its liability to pay compensation, then, subject to s. 31, compensation is not payable under ss. 19, 20, 21 or 21A (s. 23(3)). Section 33 provides for the reduction in the amount of compensation payable under ss. 19, 20, 21, 21A, 22 or 31 where an amount is paid to an employee by way of salary, wages or pay.
Part V of the SRC Act regulates the manner in which a claim for compensation may be made. Compensation is not payable unless a claim for compensation has first been made (s. 54(1)). A claim is made by giving to Comcare:
"(a) a written claim in accordance with the form approved by Comcare for the purposes of this paragraph; and
(b)except where the claim is for compensation under section 16 or 17 - a certificate by a legally qualified medical practitioner in accordance with the form approved by Comcare for the purposes of this paragraph." (s. 54(2))
The person seeking compensation need not complete the form with precision for s. 54(5) provides that:
"Strict compliance with an approved form referred to in subsection (2) is not required and substantial compliance is sufficient."
There must, however, be strict compliance in relation to the medical certificate referred to in s. 54(2)(b) for s. 54(3) provides:
"Where a written claim, other than a claim for compensation under section 16 or 17, is given to a relevant authority under paragraph (2)(a) and the claim is not accompanied by a certificate of the kind referred to in paragraph (2)(b), the claim shall be taken not to have been made until such a certificate is given to that authority."
Sections 55 and 56 relate to the survival of claims where the person who was entitled to claim compensation has died.
Section 61 provides that a determining authority must give a claimant a notice setting out the terms of the determination, the reasons for the determination and a statement to the effect that, if dissatisfied with the determination, the claimant may seek review of the determination under s. 62(2) of the SRC Act (s. 61(1)). The only exception to this requirement arises if a determination has been made:
"… under subsection 16(1) that compensation of an amount equal to the full amount of the cost of medical treatment obtained by an employee is payable if that amount of compensation is payable to a person other than the employee." (s. 61(2))
Outline of provisions relating to rehabilitation
Part III is concerned with rehabilitation. Provision is made for the approval of rehabilitation program providers (ss. 34 – 34S). Where an employee suffers an injury resulting in an incapacity for work or an impairment, the rehabilitation authority (i.e. either Comcare or the principal officer of the employing authority – ss. 4(1) and 36) may at any time, and must if requested by the employee, arrange for an assessment of his or her capability of undertaking a rehabilitation program (s. 36). A "rehabilitation authority" means, in relation to an employee:
"(a) where the employee is employed by an exempt authority – Comcare; and
(b)where the employee is employed by a licensed authority – the principal officer of that authority; and
(ba)if the employee is employed by a licensed corporation – the principal officer of that corporation; and
(c)if the employee is employed by an Entity or a Commonwealth authority, other than an exempt authority – the principal officer of that Entity or the Commonwealth authority in which the employee is employed; and
(d)if he employee is a member of the Defence Force – the Chief of the Defence Force." (s. 4(1))
Where a rehabilitation authority determines that an employee should undertake a rehabilitation program, it may make arrangements with an approved rehabilitation program provider to provide such a program (s. 37(1)). In making that determination, it is required to have regard to the matters set out in s. 37(3). The employing authority, which must bear the costs the rehabilitation program (s. 37(4)), must not make arrangements for the provision of a rehabilitation program other than by an approved rehabilitation program provider (s. 37(2)).
Where an employee is undertaking a rehabilitation program under s. 37, compensation is not payable to the employee under either ss. 19 or 31 of the SRC Act. Instead, compensation is payable in the manner set out in s. 37(5) and, while it is payable, the employee may not receive a rehabilitation allowance under the Social Security Act 1991. Sections 37(7) and (8) are concerned with the suspension of compensation and provide:
"(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 suspension."
Reconsideration of determinations
Sections 38 and 60 to 63 provide for the review of determinations. A "determination" is defined in s. 60(1) in the following terms:
"In this Part:
'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".
The word "decision" has the same meaning as in the AAT Act (s. 60(1)). Section 3(3) of the AAT Act provides that:
"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."
Section 38 of the SRC Act provides for the review of determinations made under ss. 36 or 37 by a rehabilitation authority other than a relevant authority. A written notice of a determination under ss. 36 or 37 must be given to the employee to whom the determination relates and the notice must satisfy the requirements of s. 38(1). The employee may request Comcare to review the determination and, if he or she does so in accordance with s. 38(3), Comcare must make a decision affirming or revoking the determination or varying the determination (s. 38(4)).
Unlike s. 62, s. 38 does not refer to decisions of a determining authority, which is the person who made the determination (s. 60(1)) . Instead, it is more narrowly drafted and refers only to determinations made by a rehabilitation authority other than a relevant authority. I note that if the determination had been made by a relevant authority, it was open for it to be reviewed under s. 62. There is no question that the principal officer of Australia Post is a rehabilitation authority as that term is defined in s. 4(1) of the SRC Act.
A "relevant authority" is also defined in s. 4(1) and it is defined to mean:
"(a) in relation to an employee who is employed by a licensee – the licensee; and
(b)in relation to any other employee – Comcare."
A "licensee" is "… a Commonwealth authority or a corporation that is licensed, or that is taken to be licensed, under Part VIII" of the SRC Act and a "licence" is a licence under Part VIII (s. 4(1)). Part VIII of the SRC Act was added with effect from 1 April, 2002 by the Safety, Rehabilitation and Compensation and Other Legislation Amendment Act 2001 (s. 3, Schedule 2, item 49) ("Amendment Act"). Prior to Part VIII's inclusion, Australia Post had been licensed under Part VIIIA with effect from 31 March, 2002 and it continues to be licensed under that Part. Subject to sub-items 50(2) and (3), which are not relevant, sub-item 50(1) of Schedule 2 of the Amendment Act provides that:
"… 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."
No mention is made of a Commonwealth authority's or a corporation's being "taken to be licensed, under Part VIII" of the SRC Act in either the Amendment Act or the SRC Act.
As a Commonwealth authority, Australia Post is licensed under Part VIIIA but, although entitled to apply to be licensed under Part VIII, was not so licensed at the time of the decision on 15 July, 2002. Therefore, it was not a licensee and so was not a relevant authority. Therefore, a request could be made to Comcare to review the determination made by a delegate of the principal officer of Australia Post. I have assumed that the decision under s. 36 was made according to a proper delegation. Although not appearing on the face of the decision made under s. 38, I have assumed that the decision was made under a delegation from Comcare for s. 38 is clear in its terms that the decision of a rehabilitation authority (other than a relevant authority) is reviewed by Comcare.
Even if the Australia Post delegate who made that decision did not hold a delegation from Comcare, the Tribunal has jurisdiction to review it. I base that conclusion upon the judgement of the Full Court of the Federal Court in Collector of Customs (NSW) v. Brian Lawlor Automotive Pty Ltd (1979) 24 ALR 307, Bowen CJ, Smithers and Deane JJ. The Full Court considered a case in which a decision had been made to cancel a warehouse licence but there was no statutory power to make such a decision. The majority of the Full Court (Bowen CJ and Smithers J) held that the Tribunal had the power to entertain an application made to it to review such a decision. Bowen CJ said at pages 314-316:
"In the Administrative Appeals Tribunal Act a wide meaning is given to the word 'decision' by s3(3). In s25 it appears to me that the word simply refers to a decision in fact made, regardless of whether or not it is a legally effective decision. The difficulty lies in interpreting the words 'made in the exercise of powers conferred by that enactment'. This may mean that it must be shown there was a decision made:-
(a)in pursuance of a legally effective exercise of powers conferred by the enactment; or
(b)in the honest belief that it was in the exercise of powers conferred by the enactment; or,
(c)in purported exercise of powers conferred by the enactment.
The words 'purported exercise' in (c) are used as including the notion that the official may be making his decision on the basis that he is exercising powers conferred by the enactment, whether or not on a proper interpretation of the enactment such powers are conferred.
The context of the Act appears to me to point against the adoption of interpretation (a). The Act 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: see ss 25, 27, 28, 31, 33, 42 and 44. The adoption of interpretation (a) would remove the most significant area involving questions of law from the jurisdiction of the Tribunal. It would render the appeal in may cases useless. Whenever it appeared in proceedings before the Tribunal that there was an error of law by reason of which the decision was legally ineffective and that the applicant certainly needed relief, the tribunal would at that point be obliged to refuse relief on the ground that it had no jurisdiction to entertain the application. It is a feature of administrative decisions that once made, even if unlawful, they have consequences which may adversely affect citizens, until such time as they are withdrawn due to a change of mind on the part of the administrative official himself or are set aside by the determination of a court or tribunal. It appears to me that the Act is designed to give a simple remedy in all such cases. I would reject interpretation (a).
...
Interpretation (c) appears to me to be consistent with the context in the Administrative Appeals Tribunal Act. The Acts committed to the administration of each Minister and his Department are set forth in the Administrative Arrangements Orders published from time to time in the Gazette. There might be a rare case where a decision appeared to have no relationship to one of the Acts committed to the administration of the Minister or Department concerned. However, in the ordinary course, it would be reasonably clear from the objective facts under which enactment or in the exercise of which statutory powers an official had purported to act. The adoption of this view would mean that the appeal from a decision in fact made, which purported to be made in the exercise of powers under an enactment. It could then proceed to determine whether the decision was properly made in fact and in law. There is nothing unusual in holding that an administrative decision which is legally ineffective or void is susceptible of appeal: see Calvin v. Carr (1979) 22 ALR 417. I would adopt interpretation (c).
...
Turning to the application of interpretation (c) to the present case, it appears to me that there was a decision to revoke the warehouse licence and this decision did purport to be made in the exercise of powers conferred by the Customs Act. Accordingly, in my view, the Administrative Appeals Tribunal did not lack jurisdiction to entertain the application and deal with it."
Applying the principles expressed in the Brian Lawlor case, the delegate's decision purports to have been made under s. 38 to which it referred. It purports to affirm the earlier decision "… suspending benefits in respect of Mr Long's claim for compensation …" (letter 15 July, 2002) and so has the practical consequence that Mr Long is denied any compensation under the SRC Act.
Section 62 provides for reconsideration of a determination by a determining authority i.e. the person who made the determination (s. 60(1)). It may do so of its own volition (s. 62(1)). If a claimant, among other interested parties, makes a request in accordance with s. 62(3) that it be reconsidered, the determining authority is obliged to arrange for another delegate to reconsider the determination (ss. 62(2) and 62(4)). The person reconsidering the determination may make a decision affirming or revoking the determination or varying it in the manner he or she thinks fit (s. 62(5)).
A "reviewable decision" means a decision made under ss. 38(4) or 62 (s. 60(1)). Section 64 provides that, among others, a claimant may apply to the Tribunal for review of a reviewable decision.
The authorities
The earliest of the three authorities in the Federal Court was Buck v Comcare (1996) 137 ALR 335. It was a judgement of Finn J and concerned s. 57(2) of the SRC Act. On the advice of her doctors, Ms Buck had refused to attend a medical examination that she had been required by Comcare to attend pursuant to s. 57(1). When she did not do so, Comcare suspended her payments of compensation pursuant to s. 57(2). Ms Buck brought an application under the Administrative Decisions (Judicial Review) Act 1977 ("ADJR Act") and, at the suggestion of Finn J, a claim for a declaration of right under the Federal Court of Australia Act 1976 should her application under the ADJR Act be unsuccessful.
His Honour concluded that:
"… s 57(2) does not, relevantly, authorise or require a decision of an administrative character to be taken by Comcare. To use the language of Lockhart J in Minister for Immigration and Ethnic Affairs v Naumovska [(1983) 88 ALR 589] … at 601, '[t]he 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.'" (page 339)
The consequence of his decision, Finn J continued, was that he did not have jurisdiction under the ADJR Act to consider the lawfulness or otherwise of the suspension of Ms Buck's entitlement to compensation.
Finn J briefly outlined aspects that he would have explored if s. 57(2) did require a decision to be made:
"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." (pages 339-340)
The second case, considering s. 37(2) of the SRC Act, was a judgement of Tamberlin J; Trajkovski v Telstra Corporation Ltd (1998) 153 ALR 248. His Honour was concerned with an appeal under s. 44 of the AAT Act from a decision of the Tribunal that it had no jurisdiction to hear an application for review of a decision made on reconsideration by a delegate of Telstra. Sometime earlier, a delegate of Telstra had written to Mr Trajkovski asking him why he had failed to participate in a rehabilitation program as he had been required by Telstra to do. That letter had told him that "Failure to provide a reasonable excuse for your non participation will result in suspension of rights under the SRC Act 1988 from Friday 9 May 1997 until such time as an approved rehabilitation program is recommenced." (page 250). When asked to review that decision, another delegate wrote to Mr Trajkovski's solicitors advising them "… that as your client's rights have been suspended by way of a determination issued on 19 May 1997 for failure to comply with a rehabilitation program, no delegation under the Act will be exercised to reconsider the determination of same." (page 250). The Tribunal accepted the assertion that Mr Trajkovski's rights had been suspended by virtue of the operation of s. 37(7) of the SRC Act and declined to determine questions of fact and law relevant to its determining whether it had jurisdiction.
Tamberlin J said that the issue was whether the Tribunal could hear and determine the question as to whether s. 37(7) applies. He said that:
"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." (page 253)
Tamberlin J then reviewed a number of authorities and concluded:
"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.
…
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 s 37(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 any evidence or submissions in relation to the s 37 applications." (page 257)
Tamberlin J went on to consider whether there were other collateral or independent remedies potentially available to Mr Trajkovski. Even if such remedies were available, however, that did not require a conclusion that the Tribunal did not have power to make an administrative determination. His Honour said that there:
"… is much to be said for the practical approach taken by the AAT in Martiniello [Re Martiniello and Comcare Australia (1994) 33 ALD 774] 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." (page 258)
Tamberlin J did not express a conclude view on that aspect and he reiterated that the Tribunal had made an error of law by refusing to enter into the question whether it had jurisdiction.
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.
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)
He then summarised the manner in which s. 37(7) operates and its application to the case he was considering:
"…
(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; Buck v Comcare (1996) 66 FCR 359.
(ii) A s 37(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 s 37(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 ss 60, 62 and 64; the Tribunal can consider the applicability of s 37(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'.
(iv) A Tribunal decision that, because of s 37(7), it does or does not have jurisdiction can be the subject of an application to this court under s 44 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.
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;
(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)." (pages 102-3)
Finn J then considered the matters that would be raised for the Court's consideration by virtue of the appeal under s. 44 of the AAT Act:
"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." (page 103)
His Honour then went on to consider alternative remedies sought on behalf of Mrs Chowdhary.
Does the Tribunal have jurisdiction to review the decision by Australia Post?
Having regard to the three authorities in the Federal Court, it seems to me that they establish the following five propositions:
a suspension of an employee's right to compensation and to institute or continue proceedings under the SRC Act, whether occurring by force of s. 37(7) or 57(2) of the SRC Act, is not a "decision" which is reviewable under the ADJR Act; it is not a decision that anybody is required to make (Buck v Comcare at 339, Trajkovski v Telstra Corporation Ltd at page 253 and Chowdhary v Bayne at pages 102-3);
the Tribunal is obliged to consider whether it has jurisdiction to review a decision and to consider the limits of its authority (Trajkovski v Telstra Corporation Ltd at pages 254-7);
in considering whether it has jurisdiction, the Tribunal must consider the law and facts that are relevant to that consideration Trajkovski v Telstra Corporation Ltd at pages 254-5);
the Tribunal may not accept an assertion that it does not have jurisdiction to review a decision that is otherwise a reviewable decision because s. 37(7) applies to suspend an applicant's rights but must consider whether the elements of the s. 37(7) suspension were present (Trajkovski v Telstra Corporation Ltd at pages 254-5 and Chowdhary v Bayne at pages 102-3); and
the fact that there are other or collateral remedies available to an employee does not lead to the conclusion that the Tribunal does not have jurisdiction (Trajkovski v Telstra Corporation at page 258).
Applying those principles in this case, I am bound to consider whether or not I have jurisdiction to review the decision of which Mr Long seeks review. Tamberlin J in Trajkovski v Telstra Corporation does not decide whether or not the Tribunal has jurisdiction but seems to suggest that it does when he thinks that there is much to be said for the Tribunal's approach in Martiniello and Comcare Australia. Finn J in Chowdhary v Bayne goes further and says that the Tribunal has jurisdiction to consider whether the Tribunal's right to consider reviewable decisions relating to physiotherapy and home services had been suspended. In neither of these cases has consideration been given to whether the Tribunal has jurisdiction to consider a suspension of payments of compensation in reliance on s. 37(7). It was not given in Buck v Comcare for that concerned s. 57(2) and Finn J had no need to do so. Although that provision is worded in very similar terms to 37(7), I do not consider that his Honour's finding that s. 57(2) does not authorise or require a decision of an administrative character to be taken by Comcare in the context of the ADJR Act determines that issue I must consider.
In order to clarify the issues, I have first considered what would be the position were Mr Long applying for review of a reviewable decision under s. 64 regarding, for example, his right to compensation in respect of medical expenses pursuant to s. 16 or in respect of loss of, or damage to, property pursuant to s. 15. I appreciate that he is not applying for such compensation. Were it the case, I would first be required to consider whether his right to compensation had been suspended pursuant to s. 37(7). That consideration would require me to have regard both to the facts and the law. The law is that Mr Long's rights to, among other matters, compensation are suspended where he has failed, without reasonable excuse, to undertake a rehabilitation program. The fact that must exist for the law to have its self-executing effect is that Mr Long has so failed. The Tribunal, therefore, may ascertain whether or not that fact exists. That necessarily entails its considering whether or not Mr Long was provided with a rehabilitation program, whether he refused or failed to comply with that rehabilitation program and, if so, he did so without reasonable excuse. If he did so refuse or fail, the self-executing effect of s. 37(7) is that the Tribunal does not have jurisdiction to review the decision regarding his compensation for medical expenses or for loss of, or damage to, property. If he has not refused or failed or has a reasonable excuse for doing so, the facts that bring s. 37(7) into play do not exist and so the Tribunal may proceed to review the reviewable decisions in accordance with s. 64.
Turning to the decision that I do have to review, it is a decision that Australia Post states is made in accordance with s. 38(4) of the SRC Act. A decision under s. 38(4) is a reviewable decision (s. 60(1)) and so, on its face, is reviewable by the Tribunal. But what is the decision that is actually under review? In affirming the earlier decision "… suspending benefits in respect of Mr Long's claim for compensation for not adhering to his Gradual Return to Work (GRWT) program …" (letter dated 15 July, 2002), it is, for all practical purposes, that earlier decision that is under review (Re Gee and Director-General of Social Services (1981) 3 ALD 132, Davies J, President, Mr Cusack and Mr Prowse, Members). That was the decision notified to Mr Long in Australia Post's letter of 20 May, 2002.
Although expressed in terms of a determination and purporting to be a determination, suspension of Mr Long's rights under s. 37(7) was not a matter on which Australia Post could make a determination. As both Finn J and Tamberlin J have said, it is a self-executing provision. It does not require anybody to make a decision or a determination to come into effect. What does require a decision from Australia Post once it considers that s. 37(7) has come into play concerns the action it must take regarding Mr Long's right to compensation and regarding proceedings in relation to compensation. That is to say, in the circumstances of his case, once Australia Post decided that the facts were that Mr Long had refused or failed to comply with a rehabilitation program and that his refusal or failure had been without reasonable excuse, it was required to suspend payment of compensation to him.
There are two ways of looking at what Australia Post has done. Behind each way is an assumption that Australia Post cannot refuse to pay Mr Long compensation to which he is otherwise entitled unless that refusal is authorised by the SRC Act. Section 37(7) is a self-executing section but stoppage of Mr Long's compensation payments required human intervention, however described, to implement the self-executing provision. Each way is also based on the assumption that the Tribunal does not have jurisdiction unless there is a reviewable decision made under either s. 38(4) or 62(2).
The first way of looking at what has happened in this case is that there was a decision under s. 37(7) as asserted by Australia Post but not a decision in quite the same terms as Australia Post stated. Instead, it was a decision to take an action and that action was to implement the suspension of Mr Long's compensation payments as decreed by the self-executing nature of s. 37(7). It was an action that amounted to "doing or refusing to do any other act or thing" within the meaning of paragraph (g) of the definition of "decision" in s. 4(3) of the AAT Act. The refusal was taken "under" s. 37(7) in the sense that it was taken under the authority of that provision (see Chittick v Ackland (1984) 1 FCR 254, Lockhart, Morling and Jenkinson JJ at page 263 and Australian National University v Lewins (1996) 138 ALR 1, Davies, Kiefel and Lehane JJ at page 15 per Lehane J).
As a decision and so a determination within the meaning of s. 60(1), Australia Post's refusal was reviewable under s. 62(2). It was not reviewable under s. 38(4) as it provides only for the review of determinations made under ss. 36 and 37. The word "determination" is used quite deliberately in the SRC Act. The SRC Act presumes that Comcare or a licensee such as Australia Post will have to take other steps, such as requiring information and paying compensation, but it does not identify the decisions that must be made regarding those steps as determinations. Recognition of those other steps is given in the extended definition of "determination" in s. 60(1) but that extended definition is given only for the purposes of Part VI of the SRC Act. Sections 36, 37 and 38 fall within Part III and not Part VI.
This issue arose was touched upon in Comcare v Sassella (2001) 34 AAR 142 (Finn J). Comcare conceded that a decision to refuse to make a determination was a decision that could be reviewed under s. 38(4). As the claimant, Ms Brophy, had requested review of Qantas's refusal to provide a rehabilitation program for her before there was any action by Qantas that would support a finding that it had so refused, Finn J found that there was no "… antecedent decision that could give jurisdictional life, first, to Comcare's s 38(4) review and then to the s 64 application to the Tribunal" (page 149). His Honour had no need to, and did not, consider whether the word "determination" as used in s. 38(4) should be given the extended meaning given to it in Part VI of the SRC Act.
Although it would follow that Australia Post's reliance on s. 38(4) to review its refusal to pay Mr Long compensation was, in my view, mistaken, that mistake cannot be used to deny Mr Long his right to review a decision that was in fact made and has affected his compensation payments. This is in accordance with the principles set out in Collector of Customs (NSW) v. Brian Lawlor Automotive Pty Ltd (see paragraph 26 above). If I am incorrect and the extended definition of a "determination" can be used in the context of s. 38(4), Australia Post would have correctly relied on s. 38(4) and the same result is reached. There is a reviewable decision that may be reviewed by the Tribunal.
On this view of events, there is a reviewable decision affirming a decision under s. 37(7). The scope of the Tribunal's jurisdiction in the first instance is the same as that referred to in paragraph 43 above. It may consider whether or not Mr Long was provided with a rehabilitation program, whether he refused or failed to undertake it and, if so, whether his refusal or failure was without reasonable excuse. If the Tribunal concludes that the fact is that Mr Long did refuse or fail to comply with a rehabilitation program without reasonable excuse, it is prevented by the operation of s. 37(7) from considering the matter any further. If it finds that the fact supporting the self-executing effect of s. 37(7) does not exist, it can move to consider whether or not Australia Post is liable to pay Mr Long compensation pursuant to the SRC Act.
The second way of looking at Australia Post's determination is a variation of the first. It is that, despite Australia Post's assertion to the contrary in both its letters to Mr Long of 20 May, 2002 and 15 July, 2002, it did not suspend payment of compensation under s. 37(7). What it effectively did was to decline to fulfil its obligation under s. 19 of the SRC Act to pay Mr Long compensation for an injury resulting in incapacity and justified its declining to do so on the basis of s. 37(7). The letter from Mr Long's solicitors seeking review of the determination of 7 June, 2002 sought reinstatement of the payments of compensation. It made no mention of ss. 37 or 38. It was treated as an application to have the determination reviewed under s. 38 but could equally have been an application for review under s. 62. In substance, therefore, the determination under review is a determination purporting to be made under s. 37(7) but in fact made under s. 19 refusing to pay compensation to Mr Long for his incapacity. Its decision on review was a reviewable decision within the meaning of s. 60(1) and so a decision that this Tribunal may review. The fact that Australia Post chose to assert, on a mistaken basis, that it was making a determination under s. 37(7) and then to review the decision under s. 38 cannot be used to deny Mr Long his right to review a decision that was in fact made even if not expressed to be made according to the proper section of the SRC Act. This is in accordance with the principles set out in Collector of Customs (NSW) v. Brian Lawlor Automotive Pty Ltd (see paragraph 26 above). The scope of the Tribunal's jurisdiction in the first instance is the same as that referred to in paragraphs 43 and 51 above.
On either view, I have concluded that I have jurisdiction to consider whether or not a rehabilitation program was provided to Mr Long and, if so, whether he refused or failed to undertake it and, if so, whether his refusal or failure was without reasonable excuse. That is a preliminary matter that must be resolved in Mr Long's favour before I may proceed to any review of the operative decision to refuse to pay compensation to him.
I certify that the fifty-three preceding paragraphs are a true copy of the reasons for the decision herein of
Miss S A Forgie (Deputy President)Signed: ...............................................................
P. Paczkowski AssociateDate/s of Hearing 20 November, 2002
Date of Decision 23 December, 2002
Counsel for the Applicant Mr M. Carey
Solicitor for the Applicant Ryan Carlisle Thomas
Counsel for the Respondent Mr A. Moulds
Solicitor for the Respondent Sparke Helmore
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