Myers and Australian Postal Corporation (Compensation)

[2016] AATA 858

Myers and Australian Postal Corporation (Compensation) [2016] AATA 858 (31 October 2016) 

Division	GENERAL DIVISION
File Number	2016/0990
Re	Zita Myers
APPLICANT
And	Australian Postal Corporation
RESPONDENT

DECISION

Tribunal	Deputy President J W Constance
Date	31 October 2016
Place	Sydney

The Tribunal has jurisdiction to decide upon the application lodged in the Tribunal by Ms Myers on 25 February 2016.

.............[sgd]...........................................................

J W Constance
Deputy President

CATCHWORDS

PRACTICE AND PROCEDURE –  jurisdiction – workers compensation – whether Tribunal has jurisdiction to review – whether Respondent's decision is a reviewable decision – whether there was a determination purported to be made under enactment – Tribunal found to have jurisdiction

LEGISLATION

Administrative Appeals Tribunal Act 1975 (Cth) s 25(1)

Safety, Rehabilitation and Compensation Act 1988 (Cth) ss 54, 61, 62, 64

CASES

Cao and Australian Postal Corporation [1999] AATA 995

Collector of Customs (NSW) v Brian Lawlor Automotive Pty Ltd (1979) 24 ALR 307
Secretary, Department of Social Security v Alvaro (1994) 50 FCR 213

REASONS FOR DECISION

Deputy President J W Constance

31 October 2016

INTRODUCTION

1. On 25 February 2016 Ms Myers applied to the Tribunal to review a decision of the Australian Postal Corporation refusing to compensate her for an injury she claimed she suffered whilst employed by the Corporation. The claim was made under the Safety, Rehabilitation and Compensation Act 1988 (Cth).

2. The Corporation has applied to the Tribunal to dismiss Ms Myers’ application on the ground that it does not have jurisdiction to hear it.

3. I have decided that the Tribunal does have jurisdiction in this matter. My reasons for this decision follow.

   BACKGROUND TO THE APPLICATION FOR REVIEW

4. A reference to a document with the prefix “T” is a reference to a document contained in the documents filed by the Respondent in accordance with section 37 of the Administrative Appeals Tribunal Act 1975 (Cth).

5. In October 2011 Ms Myers lodged an Incident Form with Australia Post informing her employer of an incident which she said took place on 19 September 2011 at 8:55am. She claimed that she suffered depression and anxiety as a result of this incident.

6. At about the same time Ms Myers also lodged a Claim for Rehabilitation and Compensation dated 10 October 2011. The injury was described as “depressed & have anxiety due to continual workplace bullying by Marcus Jennette Manager Figtree PO.”[1] The injury was claimed to have occurred on 19 September 2011 at 8.55am.

   [1] T9.

7. By letter of 13 January 2012 the Respondent advised Ms Myers that liability for her claimed injury was denied.[2] In that determination the decision-maker referred to a report of Dr Gilles, Clinical Psychologist.[3] Dr Gilles refers to harassment of Ms Myers as an employee of Australia Post beginning in 1994. The determination also referred to “continual workplace bullying by Marcus Jennette ….”

   [2] T26.

   [3] T26; Dr Gilles report appears as T19.

8. Ms Myers requested that this determination be reconsidered.

9. On 21 February 2012 Australia Post wrote to Ms Myers and advised her that it had decided to affirm the determination denying liability to pay compensation in respect of the claimed injury.[4] The letter noted earlier advice from Ms Myers that there was more than one incident which had caused her condition.

   [4] T32.

10. The Solicitors for Ms Myers wrote to Australia Post on 6 February 2013 and advised:

    Our client wishes to dispute your finding on the basis that medical and psychological evidence provided to you from her treating medical and psychological practitioners indicates that she has suffered from a post-traumatic stress disorder which, in turn, arose as a consequence of incidents occurring within her employment with your organisation.

    We understand and acknowledge that we are outside of the time provided for the commencement of proceedings……. we would ask you to exercise the existing protocol, and either once more reconsider the matter, or provide your consent to our referring the matter immediately to the Administrative Appeals Tribunal.[5]

    [5] T41.

11. On 15 February 2013 Australia Post advised Ms Myers that it would not overturn the reconsideration dated 21 February 2012.[6] The writer suggested that an application for an extension of time in which to apply to the Tribunal be made.

    [6] T42.

12. By letter of 15 April 2013[7] Ms Myers provided Australia Post with further details of alleged bullying by her of other staff members, commencing in the early 1990s. Ms Myers alleged that this bullying caused her to suffer post-traumatic stress syndrome. This letter was written after Ms Myers had been retired on the grounds of incapacity.

    [7] T43.

13. On 30 April 2013 Ms Myers’ Solicitors wrote to Australia Post and advised that they intended to issue proceedings in the Tribunal seeking leave to make an application for review out of time.[8] Australia Post replied that it would neither support nor oppose such an application.[9]

    [8] T44.

    [9] T45.

14. Ms Myers did not make the application foreshadowed. Instead, on 20 October 2014, her Solicitors lodged with Australia Post on her behalf a claim for compensation dated 16 September 2014.[10]  An examination of the claim form discloses:

    ·the claim is for an injury described as “anxiety & depression”;

    ·the date and time of the injury was left blank;

    ·no details of the reporting of the injury to a supervisor were provided.

    [10] T47.

15. An annexure to the claim form stated:

    1.    I was subjected to continued work-lace [sic] bullying, abuse, and inappropriate conduct during the periods I was forced to work with, firstly, from Mr. Garrie Moss, and thereafter, from Mr. Marcus Jenette.

    2.    I worked with Mr. Garrie Moss at Bulli Post Office from his arrival in approximately 1991 until the closure of that Post Office. I was then compelled to work with him again at the Corrimal Post Office, and again at Fairy Meadow Post Office. I was subject to Mr. Moss throughout the entire period of my employment at Fair Meadow PO, from 1993 until 2002. I first had time off work as a result of the conduct of Mr Moss towards me in May 2001.

    3.    I then worked with Mr. Marcus Jennett at Figtree Post Office; I first had time off work on September 5, 2011.

16. The claim form was accompanied by a letter from Ms Myers' Solicitors which included the following:

    Please find attached a workers compensation claim. You will note that parts 8, 9 and 10 of the form, reserved for completion by management, have not been completed. This is because the claim refers to a number of positions which Mrs Ms Myers [sic] fulfilled over a range of different Post offices. We suggest you make your own internal arrangements to get the management section completed by the appropriate management staff.

17. This claim was rejected on 10 September 2015. The ground given was that it was not supported by any medical evidence.[11]

    [11] T48.

18. By letter of 15 September 2015 Ms Myers' Solicitors provided further information to Australia Post and sought a reconsideration of the determination of 10 September 2015.[12]  The documents provided with the letter included a copy of the claim form dated 10 October 2011 and noted that that claim was “subsumed” by the later claim.

    [12] T49.

19. On 16 February 2016 Australia Post wrote to Ms Myers.[13] The letter included the following advice:

    I refer to your claim for compensation in respect of anxiety and depression.

    In light of further investigations I have decided to exercise my discretionary powers under Section 62(1) of the Safety Rehabilitation and Compensation Act, 1988, and reconsider the determination of 10 September 2015 in which liability to pay you compensation for anxiety and depression was denied.

    The evidence indicates the claim from anxiety and depression was denied and affirmed in 2012. Accordingly, a new determination cannot be made.

    [13] T51.

20. It is this decision in respect of which Ms Myers has applied to the Tribunal for review. Australia Post contends that the Tribunal does not have jurisdiction to review the decision.

    LEGISLATION

21. PART VI of the Safety, Rehabilitation and Compensation Act 1988 (Cth) provides for “Reconsideration and review of determinations”.

22. Section 61 provides that the “determining authority” (in this case, Australia Post) must consider and determine each claim made under the Act.

23. Section 62 provides for reconsideration of a determination made under section 62.  Relevantly to this matter, a request for a reconsideration may be made by the claimant. 

24. Subsection 62(5) sets out the types of decision which may be made on reconsideration :

    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.

25. Section 64 provides, in part:

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

    (a)the claimant;…

26. “Reviewable decision” is defined to include a reconsideration decision made under section 62.[14]

    [14] See subsection 60(1).

27. Subsection 25(1) of the Administrative Appeals Tribunal Act 1975 (Cth), gives the Tribunal power to review those decisions for which provision for such review is made in another Commonwealth enactment. It provides:

    (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.

    THE ARGUMENT ON BEHALF OF AUSTRALIA POST

28. Counsel for Australia Post summarized the argument as follows:

    There is no jurisdiction in the Tribunal to entertain the present “Appeal”.

    That is because firstly, there was no compliance with section 54 of the SRC Act, which was a basic foundation for the pursuit of any claim for compensation.

    If, however, the Tribunal were to find that the Respondent waived any failure to comply with the section, then what, in effect, is being sought of the Tribunal, is a review of the Reconsideration of 21 February 2012, without complying with the requirements of section 29(7) of the Administrative Appeals Tribunal Act. Such an approach is impermissible.

    If the Tribunal were to find that the Applicant was not seeking a review of the Reconsideration of 21 February 2012, then any such fresh claim would be non-compliant with section 53(1)(a) of the SRC Act.[15]

    At the hearing Counsel argued further that the purported reconsideration of 16 February 2016 was a “nullity” as the claim had been determined and reconsidered previously.

    [15] Respondent’s Statement of Facts, Issues and Contentions, p. 8.

    CONSIDERATION

29. The sections of the Safety, Rehabilitation and Compensation Act to which I have referred provide for a review of a reconsideration decision made by Australia Post. The maker of the decision of 16 February 2016 clearly stated that he was exercising the power to reconsider the determination of 10 September 2015, given to him by subsection 62(1) of the Act.  Australia Post could have declined to reconsider the determination on the ground that it had previously dealt with the claim, but this it did not do. Instead, it exercised the power in subsection 62(1) and in so doing made a “reviewable decision”.  There is nothing in either the Administrative Appeals Tribunal Act or the Safety, Rehabilitation and Compensation Act that requires that there be a valid decision before the Tribunal can exercise its power of review. Nor is it required that an applicant for review must have met all statutory requirements, such as the giving of the appropriate notice of an injury, before seeking a review. What is required is that there be a “reviewable decision”.  This in turn requires that there has been a “determination” under section 61 of the Act. In this matter these requirements have been met and the Tribunal has jurisdiction to deal with the application.

30. In reaching this conclusion I have followed what was said by Bowen CJ in Collector of Customs (NSW) v Brian Lawlor Automotive Pty Ltd [16]:

    In the present case the applicant established the necessary elements that there was a decision in fact and that it purported to be under an enactment or in exercise of powers conferred by an enactment, so the applicant had standing and the Tribunal had jurisdiction. When the applicant asserted the decision was legally invalid due to absence of power, he was mistaken in describing this as a “Jurisdictional point”. The Tribunal had jurisdiction and was entitled to determine the legal question raised before it.

    In that matter the Collector of Customs made a decision to revoke the applicant’s warehouse licence when it appeared that it did not have the authority to do so. It was argued on behalf of the Collector that if the decision was taken without legal authority the decision was a nullity and therefore not a reviewable decision within the jurisdiction of the Tribunal.

    [16] (1979) 24 ALR 307 at 317.

31. In Secretary, Department of Social Security v Alvaro[17] the Full Court applied its judgement referred to in the preceding paragraph.  Von Doussa J. said:

    The right of review by the AAT of a decision of the [Social Security Appeals Tribunal] …… arises where an administrative decision made in purported exercise of powers conferred by the Act has, as a matter of fact, been reviewed by the SSAT. That right exists whether or not the decision reviewed by the SSAT, or the decision of the SSAT itself, was legally effective.[18]

    [17] (1994) 50 FCR 213.

    [18] At p.19.

32. Counsel for Australia Post referred me to the decision of the Tribunal in Cao and Australian Postal Corporation[19] and in particular to the following:

    Section 54 of the Act, in prescribing how a claim for compensation is to be made, cannot be used in lieu of, or in substitution for the formal requirements demanded of a person wishing to make an application for a review of a decision, let alone as a backdoor way of reviewing a reviewable decision by a party which is otherwise out of time ……[20]

    [19] [1999] AATA 995.

    [20] At para. 10.

33. In Cao, as in this matter, the applicant did not seek a review of an initial determination refusing compensation but opted to lodge a second claim which on the face of it, referred to similar, if not the same, circumstances as the first. However, there was a significant difference in the situation before the Tribunal in that matter. Rather than purporting to exercise the power to reconsider the initial determination, as Australia Post did in the matter before me, it refused to reconsider the decision denying liability. This was done on the basis that it had already dealt with the claim. As a result there was no reviewable decision.  

34. A decision that the Tribunal has jurisdiction to review the decision made by Australia Post on 16 February 2016 does not mean that it cannot raise issues relating to the requirements of section 54 and/or other sections of the Safety, Rehabilitation and Compensation Act as the matter progresses. These matters will be determined by the Tribunal in the normal way should the matter proceed to be determined after a final hearing.

    CONCLUSION

35. The Tribunal has jurisdiction to decide upon the application lodged in the Tribunal by Ms Myers on 25 February 2016.

I certify that the preceding 35 (thirty -five) paragraphs are a true copy of the reasons for the decision herein of Deputy President J W Constance.

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Associate

Dated 31 October 2016

Date of hearing	9 August 2016
Solicitors for the Applicant	Dr P Hansen; CommComp Lawyers
Counsel for the Respondent	Mr P Jones
Solicitors for the Respondent	Ms D Hatton; Australian Postal Corporation