MacDonald and Australian Postal Corporation
[2003] AATA 388
•4 April 2003
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2003] AATA 388
ADMINISTRATIVE APPEALS TRIBUNAL )
) No A2003/7
GENERAL ADMINISTRATIVE DIVISION ) Re SIDNEY MACDONALD Applicant
And
AUSTRALIAN POSTAL CORPORATION
Respondent
DECISION
Tribunal Mr G A Mowbray Date4 April 2003
PlaceCanberra
Decision For reasons given orally the Tribunal decides it has jurisdiction to hear the application for review of the Respondent's decision of 31 December 2002.
....................(sgd)...................
Member
CATCHWORDS
PRACTICE AND PROCEDURE – Jurisdiction – existence of reviewable decision – whether letter contains a determination – whether second letter contains a reviewable decision
COMPENSATION – effect of “cease liability” decision
Safety, Rehabilitation and Compensation Act 1988 ss 14, 16, 19, 60, 62, 64
Administrative Appeals Tribunal Act 1975 ss 3(3), 25
Re Denison-Smith and Comcare (2000) 64 ALD 180; 31 AAR 202
Re Carson and Telstra Corporation (2001) 33 AAR 351
Re Oudyn and Australian Postal Corporation (2002) 67 ALD 152
Re Brophy and Comcare (2001) 33 AAR 491
Deputy Commissioner of Patents v Board of Control of Michigan Technological University (1979) 28 ALR 551; 2 ALD 711
Comcare v Sassella (2001) 34 AAR 142
Semunigus v Minister for Immigration and Multicultural Affairs [1999] FCA 422
Hongkong Bank of Australia Ltd v Australian Securities Commission (1992) 40 FCR 402; 108 ALR 70; 27 ALD 257; 15 AAR 429
Re Cao and Australian Postal Corporation (1999) 61 ALD 299
Re Tilley and Comcare (2002) 68 ALD 626
Buck v Comcare (1996) 66 FCR 359; 137 ALR 335; 41 ALD 281
Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321; 94 ALR 11; 21 ALD 1
REASONS FOR DECISION
29 April 2003 Mr G A Mowbray 1. On 9 January 2003 Mr Sidney MacDonald applied to the Tribunal for a review of a decision of the Australian Postal Corporation (“Australia Post”) of 31 December 2002. On 13 January 2003 Australia Post wrote to the Tribunal saying it considered the Tribunal did not have jurisdiction as there was no reviewable decision.
2. The Tribunal sought a response from Mr MacDonald. On 31 January 2003 his solicitors replied submitting the Tribunal had jurisdiction. On 24 March 2003 Australia Post’s solicitors submitted the Tribunal did not have jurisdiction and requested that the application be dismissed. Mr MacDonald’s solicitors responded to that submission with additional comments in a letter of 27 March 2003.
3. Argument on the jurisdiction question was heard on 3 April 2003. Mr Brian Hatch appeared for Mr MacDonald and Mr Geoffrey Johnson appeared for Australia Post. Reasons were given on 4 April 2003 deciding that the Tribunal had jurisdiction. On the same day the Tribunal received a request for written reasons from Australia Post’s solicitors. Accordingly these written reasons have been prepared based on the reasons given orally with appropriate minor editing.
Evidence
4. The Tribunal had before it documents which were labelled as Exhibits A1 to A7. There were a number of attachments to those documents which were exhibited separately (see paragraphs 6-7 below).
Background History
5. In about December 1987 Mr MacDonald completed a claim for compensation in relation to an injury to his right arm (tennis elbow/humeral epicondylitis) and minor left shoulder condition. By determination dated 28 March 1988 Australia Post accepted liability to pay compensation pursuant to the provisions of the Compensation (Commonwealth Government Employees) Act 1971 in respect of Mr MacDonald's “minor left shoulder, humeral epicondylitis and right arm” condition.
6. In a determination dated 8 February 1993 Australia Post “ceased” liability for compensation in relation to this claim (Exhibit A2A).
7. On 14 October 2002 Mr Hatch, Mr MacDonald’s solicitor, wrote to Australia Post seeking to re-open this claim (Exhibit A1). On 13 November 2002 Australia Post responded (Exhibit A2). On 11 December 2002 Mr Hatch again contacted Australia Post (Exhibit A3) enclosing a claim for rehabilitation and compensation (Exhibit A3A) and a claim for time off work (Exhibit A3B), both dated 11 December 2002. Australia Post responded to that claim on 16 December 2002 (Exhibit A4). On 23 December 2002 Mr Hatch sought a reconsideration (Exhibit A5) and on 31 December 2002 Australia Post responded to the request for consideration (Exhibit A6).
8. An application for review (Exhibit A7) was then made to the Tribunal of a decision said to be contained in Australia Post’s letter of 31 December 2002. The issue for the Tribunal is whether that letter conveys a reviewable decision.
Legislation
9. The following provisions of the Safety, Rehabilitation and Compensation Act 1988 (“the SRC Act”) are relevant
“4 Interpretation
(1) In this Act, unless the contrary intention appears:
…
“injury” means:
(a) a disease suffered by an employee; or
(b) an injury (other than a disease) suffered by an employee, being a physical or mental injury arising out of, or in the course of, the employee's employment; or
(c) an aggravation of a physical or mental injury (other than a disease) suffered by an employee (whether or not that injury arose out of, or in the course of, the employee's employment), being an aggravation that arose out of, or in the course of, that employment;
but does not include any such disease, injury or aggravation suffered by an employee as a result of reasonable disciplinary action taken against the employee or failure by the employee to obtain a promotion, transfer or benefit in connection with his or her employment.
…”
“14 Compensation for injuries
(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.
…”
“16 Compensation in respect of medical expenses etc.
(1) Where an employee suffers an injury, Comcare is liable to pay, in respect of the cost of medical treatment obtained in relation to the injury (being treatment that it was reasonable for the employee to obtain in the circumstances), compensation of such amount as Comcare determines is appropriate to that medical treatment.
…”
“19 Compensation for injuries resulting in incapacity
…
(2) Subject to this Part, Comcare is liable to pay to the employee in respect of the injury, for each week that is a maximum rate compensation week during which the employee is incapacitated, an amount of compensation…
…
(3) Subject to this Part, Comcare is liable to pay compensation to the employee, in respect of the injury, for each week during which the employee is incapacitated, other than a week referred to in subsection (2),…
…”
“60 Interpretation
(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.
…”
“61 Determinations to be notified in writing
(1) As soon as practicable after a determining authority makes a determination, it shall cause to be served on the claimant a notice in writing setting out:
(a) the terms of the determination;
(b) the reasons for the determination; and
(c) a statement to the effect that the claimant may, if dissatisfied with the determination, request a reconsideration of the determination under subsection 62(2).
…”
“62 Reconsideration of determinations
…
(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.”
“63 Reviewable decision to be notified in writing
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.”
“64 Applications to the Administrative Appeals Tribunal
(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.”
10. The following provisions of the Administrative Appeals Tribunal Act 1975 (“the AAT Act”) are also relevant
“3 Interpretation
…
(3) A reference in this Act to a decision includes a reference to:
(a) making, suspending, revoking or refusing to make an order or determination;
...
…”
“25 Tribunal may review certain decisions
(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
…
(3) Where an enactment makes provision in accordance with subsection (1), that enactment:
…
(c) may specify conditions subject to which applications may be made.
…
(4)
The Tribunal has power to review any decision in respect of which application is made to it under any enactment.
…
(6)
Where an enactment provides for applications to the Tribunal:
…
(b) that enactment may also include provisions adding to, excluding or modifying the operation of any of the provisions of sections 21, 21A, 22, 27, 29, 32, 33 and 35 or of subsection 41(1) or 43(1) or (2) in relation to such applications, and those sections and subsections have effect subject to any provisions so included.
…”
Consideration of Issues
What is the effect of Australia Post’s determination of 8 February 1993?
11. The determination made by Australia Post on 8 February 1993 (Exhibit A2A) says in part
“I am writing to advise you that your entitlement to continuing compensation in respect of right lateral epicondylitis has been reviewed.
As the available evidence does not satisfy me that there is liability to pay ongoing compensation, I have determined that on and from 6/7/88 Australia Post will no longer be liable to pay compensation for your claim.
On 18/9/92 I forwarded correspondence to you which advised that up-to-date medical evidence had not been received, and this was required to support your ongoing entitlement to compensation.
The letter stated the reply should be made within 28 days…
To date, no reply has been received…”
12. Although Mr Johnson for Australia Post said it was not necessary for his argument, he contended that the effect of this determination is that Australia Post has no longer any liability for the injury, that is, it is a determination under section 14 of the SRC Act that the injury had ceased. Mr Hatch for Mr MacDonald said the determination merely says that Mr MacDonald is no longer entitled to continuing benefits under sections 16 and 19 of the Act.
13. These submissions throw into stark contrast the competing lines of authority in Re Denison-Smithand Comcare (2000) 64 ALD 180; 31 AAR 202 on the one hand and Re Carson and Telstra Corporation (2001) 33 AAR 351 and Re Oudyn and Australian Postal Corporation (2002) 67 ALD 152 on the other. I have expressed my view on this before. I agree with the view of Deputy President Estcourt in Carson and I refer especially to the following paragraphs
“49. It would only be a rare case where a reconsideration of the substantive determination under s.14 that Comcare was liable to pay compensation in accordance with the Act would be warranted. Such a case might arise, for example, if it was subsequently discovered that the injury had never in fact occurred or that the person claiming was never in fact an employee.
50. In such a case a reconsideration of the s.14 determination under s.62 resulting in a revocation would surely carry with it the result that no future claims in respect of that incident could properly be made, but in other cases, the revocation of a determination under relevant sections would not have the effect of preventing altogether further or other claims for compensation.
…
55. Telstra by its determination of 21 February 1995 was not, properly understood, denying those findings implicit in the original determination, it was merely determining that, on the available medical evidence, it was no longer liable for payment of medical expenses or incapacity payments.
56. That is to say, the effect of the determination that “liability in respect of this injury ceased on and from 5 February 1995” was not a decision to “cease liability” altogether or to “cease liability” under s.14, but rather a purported determination to cease the payment of compensation under s.16 and s.19 of the Act.
…
58. The conclusion I have reached, namely, that at its highest, Telstra’s determination only ceased payments of compensation under s.16 and s.19 of the Act and did not effectively revoke the earlier determination to accept liability under s.14, thereby preventing further claims for compensation being made at a later time, is also consistent with the reasoning of the Full Court in Plumb v Comcare (1992) 39 FCR 236.”
14. In the current matter it seems to me that this approach also gains some support from the determination in question (see paragraph 11 above). The first paragraph refers to "your entitlement to continuing compensation". The second paragraph makes the statement that the writer is not satisfied "that there is liability to pay ongoing compensation", although I note that he also says, "Australia Post will no longer be liable to pay compensation for your claim".
15. In my view a proper understanding of the document and the law as elucidated in Carson means that the determination does not cease liability altogether. It is a determination to cease payment of compensation under the relevant heads, such as sections 16 and 19, from 6 July 1988. I so find.
Has a determination as defined in section 60 been made for the purposes of the SRC Act?
16. On 11 December 2002 Mr MacDonald lodged a claim for compensation and rehabilitation with Australia Post and a claim for time off work for a new period of incapacity commencing on 31 January 2000. In the claim for compensation and rehabilitation (Exhibit A3A) question 37 asks "Have you returned to work?”. Mr MacDonald has ticked “No” and in response to the supplementary question “What date do you expect to return?” wrote “Totally incapacitated since 31 January 2000". In the claim for time off work (Exhibit A3B) the period of absence claimed is from “5pm 31/1/00” to “indefinite”.
17. On 16 December 2002 Australia Post responded as follows (Exhibit A4)
“The claim for compensation which you have forwarded merely repeats the compensation claim for right-sided epicondylitis made by Mr MacDonald in 1987. The original claim has been dealt with (see our letter of 13/11/02) and no action is proposed in relation to the duplicate claim.”
18. Mr Johnson for Australia Post submitted this is not a determination. No action is proposed. No consideration has been made on the merits and it merely refers to advice to Mr MacDonald contained in a letter of 13 November 2002. That letter (Exhibit A2) said
“In a determination dated 8 February 2002 (sic: 1993) liability in respect of right lateral epicondylitis was ceased. Copy attached.
You are over nine years outside the statutory time frame for requesting reconsideration and have failed to supply reasons for the delay in your request.
Should you wish to provide reasons for the delay I will further consider your request at that time. However on the information supplied with your correspondence of 14 October 2002 a reconsideration will not be entertained.”
Mr Johnson asserted that the correct approach was for Mr MacDonald to seek an extension of time within which to review the determination of February 1993.
19. Section 60(1) of the SRC Act relevantly provides
““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.”
20. Section 3(3) of the AAT Act provides in paragraph (a)
“A reference in this Act to a decision includes a reference to making, suspending, revoking or refusing to make an order or determination.”
21. In Re Brophy and Comcare (2001) 33 AAR 491 Senior Member Sassella said (at 502) that for his purposes the critical issue was whether the rehabilitation authority had made a decision. He then summarised the effect of the decision of the Full Federal Court in Deputy Commissioner of Patents v Board of Control of Michigan Technological University (1979) 28 ALR 551; 2 ALD 711 as follows (at 502-3)
“The facts in Deputy Commissioner of Patents v Board of Control of Michigan Technological University are somewhat complex. The University applied for letters patent in respect of an invention, a method for agglomerating steel plant waste dusts. The application was deficient. Under a regulation the Commissioner issued a direction requiring the submission of a proper application by a certain date. The University failed to do this. The University's patent application lapsed. The University could have requested to have the application restored within three months of publication of a notice that the application had lapsed. It did not do this. The University about one year and nine months later sought an extension of time in which to challenge the lapse. The Commissioner reasoned that the legislative provision permitting an extension of time did not apply to a step related to a lapsed patent application. It was not possible to restore the lapsed patent application at the time of the application for an extension of time. The University appealed to the Tribunal. The Tribunal decided that it had jurisdiction to hear the appeal despite an argument that the Commissioner had not made a decision of the relevant type in relation to the application for an extension of time. He had decided that he could not reopen the question of the extension. It was further said that he had made no decision about revoking the decision that the patent application had lapsed. Smithers J held that in deciding that he could not review the decision to treat the application as lapsed, the Commissioner had decided to reject the application.
Franki J in the Michigan University case held that a decision had been made where the Commissioner decided he had no power to exercise the power conferred on him, in some circumstances, to treat a lapsed application for a patent as not lapsed. Keely J agreed with his brother judges.”
22. In the Michigan University case itself Justice Smithers said (at 559-60; 717)
“It is said that what was actually decided was that the Commissioner could not entertain the applications. It is suggested that if the matter is properly expressed in that form it is clear that the Commissioner did not enter upon the business of considering and disposing of the application pursuant to the Act. But it is manifest that he did. He could not decide that he had no power to give relief under s 160 in the application made under that section until he had acquainted himself with its contents and ascertained that the extension of time sought therein related to a lapsed application for a patent. It was only for the purpose of deciding whether on the facts disclosed in the applications he could or should give the relief sought therein that the Commissioner had cause to refer to s 160(2). It was in the course of deciding what to do with the application, in the course of performing his function under the Act, that he necessarily consulted and construed s 160(2). Having done that and made his decision that the provisions of s 160(2) did not apply to an application concerning a lapsed application and that the application for restoration under sub-reg 7B (8) must therefore necessarily fail, and having informed the defendant thereof he officially disposed of the applications. In effect he rejected them. It is impossible to regard the Commissioner’s intimation that s 160(2) did not empower him to grant the relief sought as an exercise independent altogether of the performance of his functions in relation to the applications, or to say that he made the decision merely “in gross” so to speak. When what actually was done is examined it is clear that the applications were dealt with and disposed of by reference to what was regarded as the proper construction of s 160(2).
In the course of argument counsel for the plaintiff speaking of the Commissioner’s decision said:—
“… but we say that in form and in substance and in every other way what it was was a decision saying that he had no power to extend the time and therefore did not embark on other questions.
“… As we understand it, what the Commissioner said was that he had no power under s 160 and that was the end of the story.”
But it was not really the end of the story. To end the story there must be added by implication the words “and therefore I will not further consider your applications”. In other words the applications having been thoroughly considered were refused.”
23. In Comcare v Sassella (2001) 34 AAR 142 (an application for review of the decision in Re Brophy) Justice Finn referred to a number of important concessions made by Comcare, the first being
“14. …(i) a “decision” by Qantas refusing to make a determination that Ms Brophy should undertake a rehabilitation program is in itself a decision that can be reviewed by Comcare under section 38(4)…”
He noted that
“21. The concession made by Comcare was that, for the purposes of s 37(1) of the SRC Act, a decision by Qantas that qualified as a “decision” under s 3(3) of the Administrative Appeals Tribunal Act, could be reviewed by Comcare under s 38(4) of the SRC Act.”
24. Justice Finn then referred to his own decision in Semunigus
“22. In Semunigus v Minister for Immigration and Multicultural Affairs [1999] FCA 422 I indicated, in passages approved on appeal (see Semunigus v Minister for Immigration and Multicultural Affairs (2000) 96 FCR 533 at 536 and 546-547) that in a setting such as the present (at [19]-[20]):
“the making of a decision involves both reaching a conclusion on a matter as a result of a mental process having been engaged in and translating that conclusion into a decision by an overt act of such character as, in the circumstances, gives finality to the conclusion – as precludes the conclusion being revisited by the decision-maker at his or her option, before the decision is to be regarded as final.
What constitutes such an act can obviously vary with the setting in which the decision is made: it may be no more than a written notation of a conclusion on a departmental file; it may be publication of the conclusion in a particular forum, or communication of it to another; it may be performing a consequential or collateral act that presupposes the decision’s having been made, etc.”
23. This conception of a decision – and particularly the requirement that it be manifest – can properly be said to be one contrived for the purposes of the administrative decision-making context in which it does its practical work: Director-General of Social Services v Chaney (1980) 47 FLR 80 at 100.”
25. Having regard to these authorities I am satisfied that the letter of 16 December 2002 manifests a determination as defined in section 60(1) of the SRC Act. It demonstrates that
· a mental process has been engaged in
· this has been translated into an overt act
· this overt act gives finality to the conclusion.
26. If not in form, it is in my view in substance a refusal to make a determination to grant compensation as requested, that is, for a new period of incapacity commencing on 31 January 2000. I therefore find that it is a determination as defined in section 60(1) of the SRC Act.
27. In his submissions Mr Johnson referred to what he called a “substantive” mental process going to the merits being required before there was a refusal to make a decision. He was in effect arguing that to constitute a refusal to make a decision, a decision-maker must first look at the merits and then refuse to reach a decision. In some respects this submission is quite extraordinary when examined more closely. The whole point of refusal to make a decision is that the decision-maker has chosen not to go through the process of investigation and weighing up that “looking at the merits” would involve. A decision-maker who begins looking at the merits is half way to making their decision, whether in favour or against.
28. In my view Mr Hatch's analysis in his submissions is preferable. One of the steps in deciding to “look at the merits” is to ascertain whether there is some overriding legal reason that makes it unnecessary to do so. Australia Post considered that question, came to a final conclusion that it was unnecessary to go further, and expressed that conclusion in writing. As indicated already it is my view that this was a refusal to make a determination under the relevant provision of the Act.
29. Most of the cases to which Mr Johnson referred the Tribunal are in my view readily distinguishable
· Hongkong Bank of Australia Ltd v Australian Securities Commission (1992) 40 FCR 402; 108 ALR 70; 27 ALD 257; 15 AAR 429 is about a specific explanatory or definitional provision in the Corporations Law and whether it was a relevant enactment for the purposes of section 25 of the AAT Act. The Court expressly declined to consider whether a decision as defined in section 3(3) of the AAT Act had been made. In my view this case is not relevant
· in Re Cao and Australian Postal Corporation (1999) 61 ALD 299 the first decision under consideration was a denial of liability, not a “cease liability” decision. Furthermore in my view Cao is inconsistent with other authority in both the Tribunal and the courts
· in Re Tilley and Comcare (2002) 68 ALD 626 there had been no response by Comcare to an ultimatum by the applicant before the applicant sought review in the Tribunal. That is, there had been a total failure by the determining authority to respond to the claimant
· the cases on section 57 of the SRC Act that Mr Johnson relied on by analogy are readily distinguishable because that section is not listed in the definition of “determination” in section 60 of the Act, in contrast to sections 16 and 19 among others. In fact half the point of cases such as Buck v Comcare (1996) 66 FCR 359; 137 ALR 335; 41 ALD 281, to which Mr Johnson referred, is that there is no determination to be made under section 57 and therefore nothing to be reviewed.
30. The decision that I have reached on this matter is quite consistent with the High Court's decision in Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321; 94 ALR 11; 21 ALD 1, to which Mr Johnson also referred, and it is on all fours with the Michigan University decision to which I have referred at paragraph 22 above.
Has there been a reviewable decision for the purposes of section 62 of the SRC Act?
31. On 23 December 2002 Mr Hatch wrote to Australia Post on behalf of Mr MacDonald (Exhibit A5) requesting that it reconsider its determination conveyed in the letter of 16 December 2002. On 31 December 2002 Australia Post responded (Exhibit A6)
“The only correspondence on file dated 16th December 2002 is from Mr David Viquerat advising that the claim lodged by your client had previously dealt with (sic) and that no action was proposed.
Accordingly, as that is not a reviewable decision (sic) under the Act, I am unable to reconsider that correspondence.”
Mr Johnson conceded during discussion that “reviewable decision” should have read "determination".
32. Mr Johnson's contentions in relation to this letter were the same as those for the letter of 16 December 2002. For the same reasons I reject them. In my view the letter of 31 December 2002 letter is in substance, if not in form, a refusal to make a decision under section 62 of the SRC Act. As such it is a reviewable decision for the purposes of sections 60 and 62.
Conclusions
33. In summary I conclude
· the letter of 8 February 1993 conveyed a cease liability determination which had the effect of ceasing ongoing liability for payment under provisions of the SRC Act such as sections 16 and 19
· the letter of 16 December 2002 conveyed a determination as defined in section 60(1) of the SRC Act
· the letter of 31 December 2002 conveyed a reviewable decision for the purposes of sections 60 and 62 of the SRC Act.
34. Therefore, the Tribunal has jurisdiction under section 64 of the SRC Act as the three tiered decision-making process set out in Lees v Comcare (1999) 29 AAR 350; 56 ALD 84 – involving a determination followed by a reviewable decision with scope for application to the Tribunal – has clearly been met.
I certify that the 34 preceding paragraphs are a true copy of the reasons for the decision herein of Mr G A Mowbray
Signed:
...........(Trevor Mobbs).............................................
Associate
Date of Hearing 3 April 2003
Date of Decision 4 April 2003
Date of Written Reasons 29 April 2003
Solicitor for the Applicant Mr B Hatch, Pamela Coward & Associates
Counsel for the Respondent Mr G Johnson
Solicitor for the Respondent Mr S Marris, Sparke Helmore
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