O’Hara and Comcare (Compensation)
[2023] AATA 3814
•15 November 2023
O’Hara and Comcare (Compensation) [2023] AATA 3814 (15 November 2023)
Division:GENERAL DIVISION
File Number(s): 2023/0577
2023/4063
2023/4064
2023/8030
Re:Damon O’Hara
APPLICANT
ComcareAnd
RESPONDENT
INTERLOCUTORY DECISION
Tribunal:Mr S. Webb, Member
Date:15 November 2023
Place:Canberra
Application 2023/0577
The Tribunal directs:
1.within 14 days, the Applicant must give to the Tribunal and the Respondent:
(a)a statement with supporting materials addressing his alleged purchase of annual smartphone and language training software subscriptions for rehabilitation purposes; and
(b)written submissions; and
2.within 7 days thereafter, the Respondent must give to the Tribunal and the Applicant written submissions in reply.
Each party has liberty to apply to be further heard, orally.
Application 2023/4063
Application for grant of extension of time is refused.
Application 2023/4064
Application dismissed for want of jurisdiction.
Application 2023/8030
Application listed for an expedited directions hearing.
………………[sgd]…………………
Mr S. Webb, MemberCatchwords
PRACTICE & PROCEDURE – compensation for injury – determination Applicant should undertake a rehabilitation program – program ended in the course of proceedings – subsequent rehabilitation determinations – application for dismissal – review of past rehabilitation program – alleged purchase of rehabilitation items – potential for reimbursement of costs incurred – not presently established proceedings lack utility – application for dismissal held over – directions issued
PRACTICE AND PROCEDURE – application for extension of time to lodge application for review – decision not reviewable by the Tribunal – application refusedPRACTICE AND PROCEDURE – application for review of deemed decision of rehabilitation authority – determination Applicant should undertake a rehabilitation program – no request for reconsideration by rehabilitation authority – no deemed reviewable decision – no jurisdiction – application dismissed
Legislation
Administrative Appeals Tribunal Act 1975, ss 3, 25, 33, 38AA, 39, 41, 42A, 42B, 43
Safety, Rehabilitation and Compensation Act 1988, ss 4, 16, 34, 37, 38, 39, 40, 60, 62, 64Cases
Collector of Customs (NSW) v Brian Lawlor Automotive Pty Ltd (1979) 24 ALR 307
Comcare v Meng Chang [1996] FCA 927
Cook and Comcare [2016] AATA 371
Department of Defence v Fox [1997] FCA 3
Ferdinands v Registrar Cridland [2021] FCA 592
Filsell and Comcare [2009] AATA 90
Fogarty and Comcare [2007] AATA 1299
Fogarty and Comcare [2007] AATA 2002
Griffiths and Telstra Corporation Limited [2013] AATA 695
Scott v Judicial Registrar Ditton [2023] FCA 947
Prior v South West Aboriginal Land Corporation [2020] FCA 808
McAullay and Comcare [2014] AATA 163
MYXX and Comcare [2019] AATA 40
Secretary, Department of Social Security v Alvaro (1994) 50 FCR 213
Walton and Australian Postal Corporation [2018] AATA 4585
Williams and Australian Electoral Commission & Anor [1995] AATA 160
Singh and Administrative Appeals Tribunal [2014] AATA 701
Mr S. Webb, Member
15 November 2023
Damon O’Hara claimed compensation for work-related injuries. Comcare accepted liability and paid him compensation under the Safety, Rehabilitation and Compensation Act 1998 (SRC Act). Mr O’Hara was assessed for rehabilitation purposes and engaged in serial rehabilitation programs. The effectiveness and utility of the rehabilitation programs determined for Mr O’Hara came into question. Mr O’Hara wants meaningful rehabilitation in order to regain full capacity for work and full-time employment with a new employer.
Presently, he has lodged 4 applications for review of decisions by the Tribunal. There are interlocutory issues in each application. It is convenient to address these issues serially in a single decision as they arise from the following factual background.
Facts
There is no dispute Mr O’Hara has accepted compensation claims in respect of post-traumatic stress disorder (PTSD) and irritable bowel syndrome (IBS) under the Safety, Rehabilitation and Compensation Act 1988 (SRC Act).[1]
[1] T1.1, folio 7.
On 24 March 2022, Dr Lewis Ryan, Mr O’Hara’s treating general practitioner, issued a Certificate of capacity for work in which he stated:
Mr O’Hara’s condition, PTSD [relating to events in 2008], is triggered by exposure to his workplace. Exposure to these triggers in an uncontrolled environment is hindering his recovery. I recommend that it may be beneficial for [Mr O’Hara] to transition to a new workplace and a new department…[2]
[2] ST4, folio 19.
On 30 March 2022, a rehabilitation assessor, Darcy Scalon, produced a Compensation Rehabilitation Assessment Report[3] in which she found Mr O’Hara was capable of undertaking a rehabilitation program.[4]
[3] ST5.
[4] Ibid, folio 29.
A rehabilitation program was determined for Mr O’Hara, which commenced on 12 April 2022, and it was expected to be completed by 1 October 2022.[5]
[5] ST6.
On 22 July 2022, the rehabilitation program was altered.[6] The expected end date of the program remained unchanged.
[6] ST8.
Subsequently, a further rehabilitation program was determined for Mr O’Hara. The rehabilitation program commenced on 26 September 2022, the day on which it was signed by the delegate,[7] Karen Baldwin, and it was expected to end on 1 April 2023.[8] I note in passing, on 23 September 2022, Ms Baldwin signed a document stating she had made the determination that a rehabilitation program amendment will be implemented for Mr O’Hara and setting out the matters she considered under subsection 37(3) of the SRC Act, including:
…
d) … The final goal of the program is for Mr O’Hara to obtain new employment with a new employer at his current level and at fulltime hours, however the program may be modified should circumstances change and will be in consultation with all relevant parties.
e) … The final goal will be modified if/when required based on progress and medical advice/capacity.
…
h) … The program is able to be varied and amended should the goal change during implementation. Regular reviews will determine if the program is on track or needs to be modified based on medical advice and capacity.[9]
[7] Ibid, folio 43.
[8] Ibid, folio 34.
[9] Ibid, folio 45.
I also note, on 28 June 2023, Ms Baldwin referred to the 26 September 2022 rehabilitation program as a ‘program alteration’.[10] The basis of this description is not clear on the present materials.
[10] ST13, folio 71.
The ‘interim goal’ and the ‘final goal’ were specified.[11] The ‘final goal’ was expressed in the following terms: “Employer and WRP will arrange work in another suitable location”.[12] The ‘Expected final goal commencement date’ was 1 April 2023.[13] Mr O’Hara’s responsibilities in respect of ‘Treatment participation’, ‘Medical case reviews’, ‘Engagement with workplace during redeployment’, ‘Communication’, ‘Documentation’ and ‘Job seeking’ were set out in tabular form.[14] The Rehabilitation Case Manager’s responsibilities in respect of ‘Communication’, ‘Engagement with workplace during redeployment’ and ‘Documentation’ were also set out in tabular form.[15] The Workplace Rehabilitation Provider’s responsibilities were also tabulated with specific budget allocations, namely:
Medical case conference reviews … $1,587.84
Communication … $4,962.00
Reporting … $793.92
Job seeking/Vocational counselling … $1,190.88
Travel … $1190.88[16]
[11] T5, folio 35.
[12] Ibid.
[13] Ibid.
[14] Ibid, folios 35-38.
[15] Ibid, folios 39-40.
[16] Ibid, folios 41-42.
The rehabilitation program included a work trial.[17] The total cost of the rehabilitation program was $9,725.52.[18]
[17] Ibid, folio 42.
[18] Ibid.
On 26 September 2022, Mr O’Hara signed the rehabilitation program determination document[19] and his comments on the rehabilitation program were included.[20]
[19] Ibid, folio 43; T6 refers.
[20] Ibid, folio 44.
Arrangements for a suitable work trial for Mr O’Hara were considered in the context of a course of study Mr O’Hara applied to undertake. These considerations continued over an extended period, until 3 August 2023, at least.[21]
[21] See ST13.6, ST15-ST25.
On 26 October 2022, Mr O’Hara addressed a letter to the Principal Officer of the Rehabilitation Authority and the Comcare Reconsiderations Officer.[22] In the letter he made the following 2 requests:
11. I request Comcare reconsider whether this s 37 determination was made appropriately…
12. I request the Rehabilitation Authority consider whether the current delegate has the appropriate experience, training and aptitude to exercise the delegation.[23]
[22] T8.
[23] Ibid, folio 53.
On 15 November 2022, a DFAT Senior Advisor provided information to Comcare, including in respect of items removed from ‘the plan’.[24] It appears a Graduate Diploma in Cybersecurity was removed and addressed through email or by agreement with the appropriate delegate, outside the process.[25] Mr O’Hara was accepted into this course, which was scheduled to begin on 6 March 2023,[26] and DFAT agreed to fund the training outside usual processes for training.[27]
[24] T9.
[25] Ibid, folio 55.
[26] ST10, folio 64, ST16.
[27] Ibid.
On 23 November 2022, Comcare issued a reconsideration decision to affirm the original determination on 26 September 2022.
On 5 January 2023, Dr Ryan issued a medical certificate in which he set out treatment recommendations and plans.[28] I note in passing the second page of this medical certificate is missing from the ST documents filed under s 38AA of the Administrative Appeals Tribunal Act 1975 (AAT Act).
[28] ST11.
On 28 January 2023, Mr O’Hara lodged an application for review of Comcare’s 23 November 2022 reconsideration decision by the Tribunal.
On 7 March 2023, Mr O’Hara responded to a proposed alteration to the rehabilitation program and stated:
I object to the Rehab Plan on the basis that I believe it is not necessary. There is no requirement in the [SRC] Act for a RP to exist. An injured worker can have periods when they are not covered by an RP. This RP does not have any measurable rehabilitation outcomes relevant to my case and is therefore, in my opinion, a burden on me that exceeds any (ie. nil) benefit.
It is also an unnecessary cost to the taxpayer for no relevant benefit.[29]
[29] ST12, folios 68-69.
On 17 March 2023, Ms Baldwin replied, stating:
Your current rehabilitation program is due to end on 1 April 2023. As delegate for the Rehabilitation Authority under the [SRC Act] I have taken your concerns into consideration, have considered s 37(3)(a)-(h) of the SRC Act and have determined that a rehabilitation program will not be provided post 1 April 2023. This decision will be reconsidered should the work trial commence, or there is a change in circumstances, or a medical assessment is conducted in accordance with s36 of the SRC Act recommending that a rehabilitation program be provided.[30]
[30] Ibid, folio 68.
Even though the ‘final goal’ of the rehabilitation program had not been achieved, and consideration of a work trial was then ongoing, the rehabilitation program determined on 26 September 2022 for Mr O’Hara came to an end on 1 April 2023.
On 3 August 2023, Ms Baldwin stated she had determined a further rehabilitation program would be implemented for Mr O’Hara.[31] Ms Baldwin signed the rehabilitation program on 2 August 2023 when then came into effect with an ‘Expected final goal commencement date’, in other words the ‘Target end date’, of 1 December 2023. The ‘final goal’ of the program was stated in the following terms:
Mr O to consult with IPAR, DFAT and Comcare to develop long-term Rehabilitation Plan in line with any Medical Advice and Mr O’s Rehabilitation Goals.
[31] Documents filed with application 2023/8030.
Mr O’Hara requested reconsideration of this determination by Comcare.
On 26 October 2023, Comcare issued a reconsideration decision to affirm the determination.
On 31 October 2023, Mr O’Hara lodged an application for review of Comcare’s 26 October 2023 reconsideration decision by the Tribunal. In so doing, he requested an expedited review to ensure the utility of the Tribunal proceedings.
Application 2023/0577
This application is for review of a Comcare reconsideration decision[32] to affirm a determination of the rehabilitation authority, the Department of Foreign Affairs and Trade (Department), on 26 September 2022.[33] These decisions required Mr O’Hara to undertake a rehabilitation program determined for the purposes of s 37(1) of the SRC Act following an assessment under s 36 of that Act.
[32] T1.1.
[33] T5.
Comcare applied for the application to be dismissed on grounds the rehabilitation program determined on 26 September 2022 ended on 1 April 2023, and there is no utility in the proceedings. Relying on Scott v Judicial Registrar Ditton[34], Ferdinands v Registrar Cridland[35] and Prior v South West Aboriginal Land Corporation[36], Comcare argues retrospective review of the rehabilitation program cannot put Mr O’Hara in any better position and his application may, therefore, be seen as an abuse of process or frivolous for the purposes of s 42B(1)(a) or (c) of the AAT Act. Where the proceedings can have no practical effect, so the argument goes, the power conferred to dismiss the application should be exercised, as was done in MXYY and Comcare[37] and Cook and Comcare[38].
[34] [2023] FCA 947 at [34].
[35] [2021] FCA 592 at [29].
[36] [2020] FCA 808 at [37(c)].
[37] [2019] AATA 40.
[38] [2016] AATA 371.
In Comcare’s submission, the items in the draft rehabilitation plan Mr O’Hara allegedly purchased were not included in the program determined on 26 September 2022 on grounds they were not part of rehabilitation, or they were considered medical treatment. The Respondent notes the course of study Mr O’Hara refers to in the draft rehabilitation program was not included in the program, but it was provided to him by his employer.
Comcare asserts the relative success or failure of a rehabilitation program does not affect the validity of the original determination under s 37(1) of the SRC Act, and it does not affect the end date of the program in the context of assessing the utility of Tribunal review proceedings. Comcare argues, furthermore, the Tribunal cannot exercise power at large and its jurisdiction is confined to the period of the rehabilitation program as originally determined and affirmed on reconsideration.
Mr O’Hara asserts this is not correct. He argues, in part, the draft rehabilitation program in T4 includes items which he purchased and should have been included in the program subsequently determined on 26 September 2022. Should the Tribunal’s review decide these items should be included in the rehabilitation program, so the argument goes, it would then be possible for Mr O’Hara to obtain reimbursement of the costs he allegedly incurred.
Mr O’Hara contends previous rehabilitation programs determined for him have failed and these have been attended by procedural failings of various kinds, including failure to have adequate or sufficient regard to the matters set out in s 37(3) of the SRC Act, applying the threshold set out in Department of Defence v Fox (Fox)[39]. Such considerations, including in respect of the cost of the program and the decision-maker’s obligations in the Public Governance, Performance and Accountability Act 2013, he argues, should be addressed by the Tribunal on review, as an ineffective rehabilitation program is a detriment to an injured worker which may be expressed in terms of reduced health or lost capacity to work in the finite span of their working life. In Mr O’Hara’s submission, there is utility in the Tribunal reviewing the rehabilitation program as rehabilitation is an ongoing or progressive process intended to rehabilitate the person into suitable employment, in which a specific rehabilitation program is but one element. Furthermore, Mr O’Hara asserts review of a rehabilitation program by the Tribunal may serve to improve rehabilitation decision-making by the rehabilitation authority.
[39] [1997] FCA 3.
Drawing authority from Re Williams and Australian Electoral Commission (Williams)[40], Mr O’Hara asserts the Tribunal’s power to dismiss an application under s 42B of the AAT Act should be used cautiously and sparingly. He argues the purposes of the statutory review mechanisms which apply to rehabilitation determinations are not served by dismissing applications on lack of utility grounds where time has passed and the program has ended, as such an approach would have the perverse effect of rendering rehabilitation determinations immune from Tribunal review.
[40] [1995] AATA 160.
The Tribunal’s jurisdiction and power to review a rehabilitation program determination hinge on a reconsideration decision under s 62 of the SRC Act. Once enlivened by a valid application, the Tribunal review is specific to the particular rehabilitation program originally determined under s 37(1) of the SRC Act.[41] I do not interpret the comments made in Walton and Australian Postal Corporation[42] to suggest the Tribunal has any broader power. Nevertheless, reading s 37 with s 34, s 36, s 38, s 39 and s 40, it is clear enough the section is a part of what the legislation envisages may be an ongoing process that seeks to secure an injured employee's rehabilitation with a view to securing a return to work in suitable employment.[43]
[41] Cook and Comcare [2016] AATA 371 at [23], citing Re Griffiths and Telstra Corporation Limited [2013] AATA 695.
[42] [2018] AATA 4585 at [97].
[43] Comcare v Meng Chang [1996] FCA 927.
I accept the general proposition advanced by Comcare that retrospective review of a rehabilitation program after completion may have no practical effect and related proceedings in the Tribunal may lack utility. In such circumstances, where questions of utility arise it is necessary to consider whether it is appropriate to exercise the discretion conferred by s 42B(1)(a) or (c) of the AAT Act. The applicable principles have been discussed in previous cases to which the parties have drawn attention, including Williams, Fox, Filsell and Comcare[44] and Singh and Administrative Appeals Tribunal[45]. No doubt, even though the power to dismiss an application should be used sparingly and cautiously, it may be appropriately exercised where no proper purpose is served by allowing the proceedings to continue or where the applicant cannot achieve any practical effect, greater benefit or better position that was obtained from the decision under review.
[44] [2009] AATA 90.
[45] [2014] AATA 701.
Nevertheless, the generality of the proposition must give way to the particular circumstances of relevance in any case. In Fogarty and Comcare,[46] the Tribunal (differently constituted) found Ms Fogarty’s application for review of a decision to alter a rehabilitation plan in the past would have been futile, and therefore frivolous and vexatious, but for the ongoing adverse effect of the alteration on her health. This, the Tribunal concluded, was a ‘real issue’ which entitled her to ‘her day in the Tribunal’.[47] When the matter came on for hearing, for reasons I explained in Fogarty and Comcare,[48] I set aside the determination to alter Ms Fogarty’s rehabilitation program, but there was no substitute decision which could then be made as the rehabilitation program had been overtaken by subsequent events. This exemplifies the lack of practical effect of such a review in those circumstances, albeit a person might conceivably obtain a health benefit from having her day in the Tribunal or from the Tribunal setting aside the impugned determination. I adhere to that view presently.
[46] [2007] AATA 1299.
[47] Ibid at [14]-[15].
[48] [2007] AATA 2002.
To the extent Mr O’Hara alleges his health and his rehabilitation has been adversely affected by the rehabilitation programs determined for him, subject only to the exception which follows below, I am not persuaded a positive decision in these proceedings, should he succeed on all grounds, or giving Mr O’Hara his ‘day in the Tribunal’ would be likely to produce any practical health or rehabilitation benefit to him. The present materials do not suggest a retrospective change in the content of the rehabilitation program determined on 26 September 2022, which ended on 1 April 2023, is likely to have a positive effect on Mr O’Hara’s health or on his rehabilitation. While such a possibility might exist, it is speculative. Subsequent rehabilitation program determinations have been made under s 37(1) of the SRC Act. A Tribunal decision in respect of a past program cannot bind a rehabilitation authority when determining a future rehabilitation program under that subsection.
Nevertheless, there is a further circumstance which diverts from the general propositions advanced in respect of utility, Mr O’Hara’s assertion he incurred costs obtaining rehabilitation services or activities which were not included in the program determined under s 37(1) of the SRC Act. Where such services or activities are capable of being retrospectively included in the rehabilitation program under review, whereupon Mr O’Hara might then be entitled to claim reimbursement for the costs incurred, in prospect at least, this might give practical effect to the review and, to that extent, may underpin the utility of such Tribunal proceedings. These are factual questions to be determined with reference to the definition of rehabilitation program in s 4(1) of the SRC Act:
rehabilitation program includes medical, dental, psychiatric and hospital services (whether on an in‑patient or out‑patient basis), physical training and exercise, physiotherapy, occupational therapy and vocational training.
It is necessary to note separate provision is made in s 39(1) of the SRC Act for payment of compensation in respect of alterations, modifications or aids or appliances reasonably required by the employee in the context of rehabilitation, having regard to the employee’s impairment and the requirements of the rehabilitation program.
Mr O’Hara’s asserts he purchased items set out in a draft rehabilitation program proposed by Ms Scanlon on 20 September 2022 which were not included in the program determined on 26 September 2022. Mr O’Hara’s assertion is not presently supported by probative material. The particular items are:
(c)annual subscription to smartphone sleep application;
(d)annual subscription to smartphone health applications including exercise tracker and diet tracker;
(e)annual subscription to language training software.[49]
[49] T4, folio 27.
Mr O’Hara also asserts the Graduate Diploma in Cybersecurity course was also included in the draft rehabilitation program, but this was not included in the program determined on 26 September 2022.
As notes to the draft rehabilitation program reveal, the annual subscriptions to smartphone applications were considered to be medical treatment or services, not part of Mr O’Hara’s rehabilitation, and the language training subscription was considered to be outside the goals of the rehabilitation plan for Mr O’Hara.[50]
[50] Ibid.
In an email to Ms Scanlon and Ms Baldwin on 18 November 2022, Mr O’Hara referred to a medical certificate issued by Dr Ryan from today until 5 January 2023 (which does not appear in the documents given to the Tribunal):
- Action: Note medical support for iPhone apps discussed with RCM and WRP.
I will claim these from Comcare.[51]
[51] ST13.5, folio 76.
On the available materials, I am unable to determine if he did so under s 16 or s 39 of the SRC Act. I note Dr Ryan’s 5 January 2023 medical certificate (which is incomplete) refers to the medical value of smartphone applications the doctor identified.[52]
[52] ST11, folio 66.
Nevertheless, the utility of the Tribunal proceedings hinges on this point if it is established by evidence:
(a)Mr O’Hara purchased the subscriptions set out in paragraph 33; and
(b)he did not claim compensation for these purchases under s 16 or s 39 of the SRC Act.
In those circumstances, having regard to the defined meaning of ‘rehabilitation program’ in s 4(1) of the SRC Act, the question whether the subscriptions are capable of inclusion and should be included in the rehabilitation program determined on 26 September 2022 would be capable of being decided by the Tribunal on review. Should the question be positively decided, this would have the practical effect of enabling Mr O’Hara to claim reimbursement of the costs he incurred purchasing the subscriptions. Thus, if the facts on which these matters turn are made out by probative materials, within this limited frame, these would be relevant considerations when deciding if the Tribunal proceedings in this application lack a proper purpose, practical effect or utility.
The factual basis on which these considerations turn is yet to be established by evidence. For this purpose, Mr O’Hara will be directed, within 14 days, to give to the Tribunal and the Respondent a statement and supporting materials addressing the matters set out in paragraphs 38 and 39. The Respondent will be given opportunity to respond to any further materials Mr O’Hara provides within 7 days thereafter.
Mr O’Hara’s submissions in respect of the course and study and the work trial are not persuasive. For the following reasons, I do not accept these considerations establish any practical effect or utility in the proceedings.
Firstly, the rehabilitation program determination included an expected end date, namely 1 April 2023. It was on this basis the funding in the program was determined. In the circumstances of this case, the relative success or failure of the program to meet specified goals is not a determinant of the practical effect or utility of these proceedings. The practical effect and utility of the proceedings must be considered in context of other rehabilitation decisions which have subsequently been made. A decision was made on 17 March 2023 not to extend the program beyond 1 April 2023, whereupon, at Mr O’Hara’s request, subject to relevant change in circumstances, a rehabilitation program would not be determined as of 2 April 2023.[53] As will appear, the Tribunal has no jurisdiction to review this decision and, consequently, the jurisdiction in application 2023/0577 is confined to the period of the rehabilitation program which commenced on 26 September 2022 and ended on 1 April 2023.
[53] ST 12, folio 68.
Secondly, while the course of study and the work trial were considerations in the preparation of the rehabilitation program determined on 26 September 2023, and each could have been included in the program, only the work trial was included in the rehabilitation program.[54] The work trial is a key plank of the ‘final goal’ specified in the program. Documentation of discussions about the work trial balanced with Mr O’Hara’s anticipated study load reinforce the point. It is not to the point the work trial was not achieved before the rehabilitation program ended, or that discussions about a work trial persisted thereafter.
[54] T5, folio 42.
The course of study was not included but it was separately approved and funded by the Department. The relevant materials in ST13.6 demonstrate efforts were made to accommodate Mr O’Hara’s anticipated study load within the rehabilitation program and in respect of his obligations under the program. Mr O’Hara’s assertion that consideration was given to a variation of the rehabilitation program does not advance the matter for present purposes. I am not persuaded the possibility of retrospective inclusion of the course of study in the rehabilitation program determined on 26 September 2022 would have a practical or utile effect, presently, in the context of these proceedings.
With regard to Mr O’Hara’s submissions addressing the Tribunal’s role in improving administrative decision-making and the provision of an advisory opinion, the following points should be understood.
The Tribunal is a creature of statute. The Tribunal’s role in improving administrative decision-making in government can be accepted, but this must be viewed through the lens of the legislation which governs the Tribunal’s functions and operations, and the enactments conferring jurisdiction on the Tribunal.
The Tribunal does not exercise power at large. However desirable it may be for Tribunal decisions to have a normative effect on administrative decision-making, this does not and cannot authorise the Tribunal to proceed in excess of the powers conferred upon it by enactments and under s 43 of the AAT Act for the purposes of review, or its procedural powers under the AAT Act.
The Tribunal is not an advisory body. In some circumstances it may be appropriate for the Tribunal to comment on matters of relevance in a review, as occurred in McAullay and Comcare[55]. Doing so is ancillary to the purposes of the particular review and it is not capable of lending utility to proceedings without practical effect. The proposition the utility of the proceedings turns on improving the original decision-making of the rehabilitation authority in this case is tenuous, remote and cannot be accepted.
[55] [2014] AATA 163 at [62].
The Tribunal’s discretionary power to give an advisory opinion is conferred by s 59(1) of the AAT Act. The discretion is not at large. It is preconditioned by legislative provision. No relevant legislative provision has been raised in this case and s 59(1) is not engaged.
Mr O’Hara’s extensive submissions in respect of procedural considerations, disputation about allegations of time wasting and alleged unnecessarily delays in the proceedings indicate a level of consternation and frustration with the rehabilitation processes in which he has been required to engage. Such considerations are not relevant to the question of utility or practical effect of the present proceedings.
In conclusion, it is possible the proceedings may have practical effect, subject to further consideration of the matters set out in paragraphs 44 and 45 (above). Consequently, it is premature to dismiss the application on grounds of utility under s 42B of the AAT Act. Once further materials have been provided by the parties addressing relevant matters and in compliance with the following directions, I will then decide the Respondent’s application for dismissal.
Decision
The Tribunal directs:
(c)within 14 days, the Applicant must give to the Tribunal and the Respondent:
(i)a statement with supporting materials addressing his alleged purchase of annual smartphone and language training software subscriptions for rehabilitation purposes; and
(ii)written submissions; and
(d)within 7 days thereafter, the Respondent must give to the Tribunal and the Applicant written submissions in reply.
Each party has liberty to apply to be further heard, orally.
Application 2023/4063
This application is for review of a decision on 17 March 2023 not to determine or provide a rehabilitation program after 1 April 2023 and for grant of an extension of time in which to apply. Mr O’Hara asserts the decision is contrary to s 26 of the AAT Act which may be reviewable by the Tribunal. The Respondent disagrees and maintains the Tribunal has no jurisdiction to review it.
Mr O’Hara queries whether the 17 March 2023 decision is a ‘determination’ for the purposes of the SRC Act as the Respondent asserts.
The word ‘determination’ is given meaning in s 60(1) of the SRC Act:
determination means a determination, decision or requirement made under section 8, 14, 15, 16, 17, 18, 19, 20, 21, 21A, 22, 24, 25, 27, 29, 29A, 30, 31, 34, 36, 37 or 39, under paragraph 114B(5)(a) or under Division 3 of Part X.
Having regard to the text of the 17 March 2023 email in ST12 and the context in which it arose, I am satisfied it is a decision not to require Mr O’Hara to undergo a rehabilitation program as of 2 April 2023. The decision is not a reconsideration of the 26 September 2022 determination, and it is not a ‘reviewable decision’ as defined in s 60(1) of the SRC Act:
reviewable decision means a decision made under subsection 38(4) or section 62.
That being so, the email of 17 March 2023 is a ‘determination’ for the purposes of s 37(1) and s 38 or s 62 of the SRC Act.
In consideration of the mandatory requirements of s 61(1) of the SRC Act, the decision-maker failed to set out information about Mr O’Hara’s entitlement to request reconsideration under s 38(4) or s 62(2) of the SRC Act. This is potentially problematic. It is conceivable the failure to provide the information required by s 38(1)(c) or s 61(1)(c) might affect the validity of the decision. Even if that is correct, the decision was in fact made and any material defect is capable of being addressed on reconsideration, including in the context of the discretion conferred on the determining authority under s 38(3)(b) or s 62(3)(b) to extend the time for reconsideration.[56]
[56] Secretary, Department of Social Security v Alvaro (1994) 50 FCR 213 at 219-220; Collector of Customs (NSW) v Brian Lawlor Automotive Pty Ltd (1979) 24 ALR 307.
Even if I am wrong on this point, no different result would be obtained. The Tribunal has no jurisdiction under s 64 of the SRC Act to review the decision or the determination on 17 March 2023 as it has not been reconsidered under s 38(4) or s 62 of the SRC Act.
That being so, the application would fail for want of jurisdiction under s 42A(4) of the AAT Act and, in those circumstances, it is not reasonable to grant additional time under s 29(7) of the AAT Act.
Decision
The application for an extension of time is refused.
Application 2023/4064
This is for review of a failure or refusal by the rehabilitation authority to reconsider the rehabilitation program determination on 26 September 2022.
Mr O’Hara asserts, under s 38(4) of the SRC Act, he requested the rehabilitation authority to reconsider the 26 September 2022 determination. He argues the failure of the rehabilitation authority to reconsider the determination is a failure or a refusal to make a decision, which is within the meaning of decision under s 3(3) of the AAT Act. The decision is reviewable by the Tribunal, so the argument goes, as s 25(5) of the AAT Act provides that the failure by a person to do an act or thing within the period prescribed is deemed to constitute the making of a decision by that person.
The Respondent asserts Mr O’Hara has not identified any reviewable decision.
Subsections 3(3) and 25(5) of the AAT Act are in the following terms:
(3) Unless the contrary intention appears, a reference in this Act to a decision includes a reference to:
(a) making, suspending, revoking or refusing to make an order or determination;
(b) giving, suspending, revoking or refusing to give a certificate, direction, approval, consent or permission;
(c) issuing, suspending, revoking or refusing to issue a licence, authority or other instrument;
(d) imposing a condition or restriction;
(e) making a declaration, demand or requirement;
(f) retaining, or refusing to deliver up, an article; or
(g) doing or refusing to do any other act or thing.
(5) For the purposes of an enactment that makes provision in accordance with this section for the making of applications to the Tribunal for review of decisions, a failure by a person to do an act or thing within the period prescribed by that enactment, or by another enactment having effect under that enactment, as the period within which that person is required or permitted to do that act or thing shall be deemed to constitute the making of a decision by that person at the expiration of that period not to do that act or thing.
There are two difficulties with Mr O’Hara’s submissions on this issue.
Firstly, the 26 October 2022 document in which he asserts to have requested reconsideration of the 26 September 2022 determination is a letter addressed to the Principal Officer of the Rehabilitation Authority and the Reconsiderations Officer of Comcare. Mr O’Hara makes clear and precise requests to each addressee in paragraphs 11 and 12 of the document. He requests Comcare to reconsider whether this s 37 determination was made appropriately and he requests the rehabilitation authority to consider whether the current delegate has the appropriate experience, training and aptitude to exercise the delegation.[57]
[57] T8, folio 53.
It is quite clear, Mr O’Hara’s request for reconsideration of the 26 September 2022 determination was squarely directed to Comcare, and not to the rehabilitation authority.
In such circumstances, secondly, there is no material basis on which to find the rehabilitation authority failed or refused to make a reconsideration decision within the period prescribed under s 62(6) of the SRC Act.
That being so, no reconsideration decision is deemed to have been made by the rehabilitation authority within the terms of s 25(5) of the AAT Act. It follows there is no ‘reviewable decision’, as defined under s 60(1) of the SRC Act, which is capable of review by the Tribunal. For this reason, this application must be dismissed for want of jurisdiction under s 42A(4) of the AAT Act.
Decision
The application is dismissed under s 42A(4) of the AAT Act.
Application 2023/8030
This application is for review of a reconsideration decision to affirm a determination on 2 August 2023 Mr O’Hara should undertake a rehabilitation program. Mr O’Hara has requested an expedited review as the program is slated to end on 1 December 2023. Comcare has not yet responded to this request.
That notwithstanding, it is appropriate to make some brief observations about the application.
I accept there may be real questions about the utility of the proceedings in the event the rehabilitation program ends on 1 December 2023.
Presently, no application has been made for grant of an order under s 41(2) of the AAT Act staying operation of Comcare’s 26 October 2023 reconsideration decision, and hence the 2 August 2023 determination, in order to preserve the utility of the proceedings. This is a matter for Mr O’Hara and Comcare.
Whether or not it is possible or necessary to hear the application before 1 December 2023 remains to be decided. This is a matter for consideration having regard to the Tribunal’s power to regulate its procedure under s 33 and the obligation to ensure each party has a reasonable opportunity to present their case under s 39(1) of the AAT Act.
The preferable procedure will be decided once the parties have been given an opportunity to be heard on the procedural point. For this purpose, the application is set down for an expedited directions hearing on 17 November 2023.
I certify that the preceding 84 (eighty-four) paragraphs are a true copy of the reasons for the decision herein of Mr S. Webb, Member.
....................................[sgd].................................
Associate
Dated: 15 November 2023
Date of Interlocutory Hearing 11 August 2023 Date final submissions received: 22 September 2023 Applicant: Self-Represented
Counsel for the Respondent Mr Peter Woulfe Solicitors for the Respondent: Australian Government Solicitor
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