Ozanne and BHP Billiton Limited
[2011] AATA 112
•21 February 2011
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2011] AATA 112
ADMINISTRATIVE APPEALS TRIBUNAL )
) No 2010/0350
GENERAL ADMINISTRATIVE DIVISION ) Re MICHAEL OZANNE Applicant
And
BHP BILLITON LIMITED
Respondent
DECISION
Tribunal Senior Member S E Frost
Dr S H Toh, MemberDate21 February 2011
PlaceSydney
Decision 1. The second reconsideration by the Respondent (as described in the reasons for this decision) was undertaken on the Respondent’s own initiative.
2. The parties to provide to the Tribunal, within 21 days of delivery of these reasons, their views (either as agreed between them, or separately) as to the future conduct of the proceedings.
.................[SGD].............................
S E Frost
Senior Member
CATCHWORDS
Practice and Procedure – Proceedings – s 42D remittal – preliminary issue – whether reconsideration of a determination made by an employer – whether reconsideration was undertaken on employer’s own initiative
Administrative Appeals Tribunal Act 1975 ss 42D, 33
Safety, Rehabilitation and Compensation Act 1988
Seamen’s Compensation Act 1911
Seafarers Rehabilitation and Compensation Act 1992 ss 39, 41, 78(1), 91
Seafarers Rehabilitation and Compensation (Transitional Provisions and Consequential Amendments) Act 1992 s 7
Australian Postal Corporation v Oudyn (2003) 73 ALD 659
Excell v Comcare [2008] FCA 757
Fuad and Telstra Corporation Limited [2004] AATA 1182; 39 AAR 496
REASONS FOR DECISION
21 February 2011 Senior Member S E Frost
Dr S H Toh, Member1. In July 2009 Mr Ozanne’s former employer BHP Billiton Limited (BHP) rejected Mr Ozanne’s claim for permanent impairment compensation in relation to injuries sustained in an accident in 1972.
2. BHP has now reconsidered that original determination on two occasions. The first time was when Mr Ozanne asked, through his lawyers, for the determination to be reconsidered. BHP reconsidered the original determination and affirmed it on 9 December 2009. That affirmation became the reviewable decision which in January 2010 found its way to this Tribunal for review.
3. The second reconsideration followed a preliminary skirmish (described in more detail below) between the parties on 30 August 2010 – the first day of what was set down as a two day hearing to review the reviewable decision.
The question before us
4. The immediate question before us is whether the second reconsideration was undertaken by BHP “on [its] own initiative” in accordance with s 78(1) of the Seafarers Rehabilitation and Compensation Act 1992 (SRC Act). If BHP’s second reconsideration was undertaken “on [its] own initiative” and if, as a result of the reconsideration, the proceedings in this Tribunal have been rendered “abortive” then Mr Ozanne will be entitled under s 91 of the SRC Act to his costs of the proceedings. This question arose because the second reconsideration resulted in a more favourable outcome for Mr Ozanne than both the original determination of July 2009 and the decision dated 9 December 2009 to affirm the original determination.
5. We have to determine that question as a preliminary issue because the answer will guide the future conduct of these proceedings and may have a bearing on whether the proceedings will continue at all.
6. We have concluded in the circumstances that the second reconsideration was undertaken on BHP’s own initiative. Our reasons follow.
The claim for permanent impairment compensation
7. On 6 July 2009 Mr Ozanne lodged a claim for permanent impairment compensation against BHP for an alleged injury to his left knee as a result of an incident that occurred in 1972 during his employment with BHP.
8. On 14 July 2009 a delegate of BHP determined as follows:
On the evidence available I am not satisfied that the claimant suffers from a whole person impairment in accordance with Section 39 of the [SRC] Act as a result of the injuries sustained in 1972.
BHP Billiton Ltd has no present liability to pay compensation pursuant to section 39 and/or 41 of the Seafarer’s Rehabilitation and Compensation Act 1992.
9. Mr Ozanne requested a reconsideration of the original determination and it was affirmed by BHP on 9 December 2009. That decision dated 9 December 2009 is the “reviewable decision” under the SRC Act. Mr Ozanne applied to the Tribunal for review of that reviewable decision.
The Tribunal proceedings
10. The application came on for hearing before us on 30 August 2010. Mr Ozanne was represented by Mr A Anforth of counsel. Mr J Wallace of counsel appeared for BHP.
11. After dealing with some preliminary issues not relevant to the current question, Mr Anforth opened his client’s case, and he sought to do so with the assistance of a written document that he had previously prepared. Mr Wallace objected to that written document, or the material in it, on the basis that Mr Anforth was now trying to raise, for the first time, the issue of whether Mr Ozanne had sustained a permanent loss of function prior to 24 June 1993: the date of commencement of the SRC Act. Mr Wallace complained, in summary, that:
· medical witnesses had not previously turned their minds to the possibility of permanent loss of function prior to 24 June 1993; and
· it was “not appropriate in these proceedings to be running that case now”.
12. After some brief discussion the following exchange took place (transcript pages 7-8; obvious inaccuracies have been corrected):
MR FROST: Gentlemen, my understanding before we walked in here this morning was that the question was, and you’ll forgive me if I cut a few corners here, but my understanding was that the issue was whether there was an entitlement to compensation for Mr Ozanne based on section 39, or 41, or perhaps both of them of the Seafarers Rehabilitation and Compensation Act by reference to tables in the Comcare guide, if I can use that shorthand. Is that what we’re about, Mr Anforth?
MR ANFORTH: That is the primary position, yes.
MR FROST: Your answer suggests that there is a fallback position?
MR ANFORTH: Yes.
MR FROST: Or a secondary position.
MR ANFORTH: Yes.
MR FROST: And what’s that secondary position?
MR ANFORTH: Well the secondary position is this: that in order for the primary position to pertain, the impairment has to be permanent. It has to be permanent for the purposes of the 1992 Act and the authorities under that say that if the impairment [is] after that date then it’s determined under that Act and the Comcare guides are the applicable instrument. But if, as a finding of fact, the tribunal finds that the impairment was in fact permanent before the date of commencement of the 1992 Act then it isn’t determined under the provisions of the 1992 Act, it’s determined under the provisions of the predecessor. That’s just a question of fact. Now, you know, and that’s why the Excell case [Excell v Comcare [2008] FCA 757] is relevant. So I can’t control what findings of fact you may make, and indeed in a case where the injury occurred in 1972 it’s at least possible, if not probable, that the issue of the date of permanency may be a live one on the facts and that’s what I’m covering. I’m covering both the possible permutations of findings of fact in this case.
So if you find that the impairment was permanent after ’92 then the primary position pertains. [We’re here] about table 9.3. If you find as a fact, and having regard to the Federal Court’s judgment in Excell that it was permanent before ’92 or ’93, June ’93, then the issue will be determined under the predecessor Act which doesn’t really raise any different issue, save for this, under the previous Act the impairment was the old table of maims where you simply assess the percentage degree of loss of movement of the joint but not by reference to any prescribed tables. It’s the same with the old New South Wales Workers Compensation Act, same as the ’71 Commonwealth Act. It’s just a question of what is the percentage degree of loss of movement of that knee.
Now all the doctors have turned their mind to that. Not only have they done it but they’ve actually given you their findings in their decisions because that is crucially what the table case turns on. See the table case turns upon whether the loss of flexion is, whether the degree of flexion is 70 per cent, 75 per cent or 80 per cent. That’s the narrow range on the table of the degree of flexion. That same finding of fact, if you’ve got 70 per cent, 75 per cent, 80 per cent is precisely the same finding of fact that is relevant to a loss of range of movement on the old table of maims.
13. Mr Anforth continued (page 9 of the transcript):
Now in terms of the other point my friend raised, the terms of the applicant’s evidence, the applicant’s evidence won’t go to the legislative issues at all. The applicant’s evidence will only go to his bodily symptoms. He’ll be questioned, for the purposes of the ’92 Act or the 1911 Act. He’ll be questioned about what happened. When did you suffer the injury to the knee? How does your knee work or not work? What operations did you have? How has it worked since the operation? None of his evidence goes to issues of law. It just goes to the issues of fact but that’s the evidence of fact to which you will have to have regard in making the initial finding of date of permanency following upon which will flow, which of the two statutory provisions, or two statutory regimes governs the matter.
MR FROST: So you say that if we were to determine that the impairment was permanent prior to 24 June, 1993 then this Act won’t apply but a different Act will and that different Act is ‑ ‑ ‑
MR ANFORTH: The Seamen’s Compensation Act 1911.
14. After some further discussion we adjourned the hearing to consider how the matter should proceed. We returned to the hearing room and explained the following to the parties’ representatives (page 17):
The only thing that has been – on the face of it, at least, the only thing that has been claimed is permanent impairment in terms of the 1992 Act, the answer that’s been given is no entitlement, no liability under sections 39 and 41 of that Act. And it seems to us that if there is an argument on behalf of the applicant that there is an entitlement under the 1911 Act, then it’s not clear to us that a decision has been made under the 1911 Act and it becomes very difficult then to establish that any review entitlement arises in those circumstances. Where we’re left is that as far as we can tell, the only thing that’s in issue is entitlement or non-entitlement under sections 39 and 41 of the ’92 Act.
15. While that statement was only intended as a preliminary view, it is fair to say that it was not as helpful as we had intended it to be. On reflection, we had not given proper consideration to the provisions of the Seafarers Rehabilitation and Compensation (Transitional Provisions and Consequential Amendments) Act 1992 (the Transition Act), which dealt with, among other things, the transition to the SRC Act from the earlier regime under the Seamen’s Compensation Act 1911 (the 1911 Act).
16. Mr Anforth then pointed out (page 18):
…these applications give rise to accrued rights and … the law that is to be applicable is the law that applied at the time the application was made. Now you might prima facie say well that’s the 1992 Act but it isn’t, because the 1992 Act only applied in respect of impairments that were permanent after the date of commencement of that Act and so we say that, you know, if it’s permanent before that date the 1992 Act does not apply on the law as it stood at the time the application was lodged.
…
[There are authorities] that make the point that the ambit of your jurisdiction is absolutely not limited by the manner in which the delegates chose to approach their task, their choice to look narrowly at an application and look only at the 1992 entitlements and not to consider the second alternative is a choice, a choice made by a delegate to limit themself in that manner has no jurisdictional implications and the authorities are to the contrary ‑ ‑ ‑
17. The Tribunal responded and the following discussion took place (page 19):
MR FROST: You may be absolutely correct, Mr Anforth and no matter what the true position so far as jurisdiction is concerned you were drawing a distinction earlier between jurisdiction and procedural issues, well, as I said to you earlier in our discussion, this is a matter that – the reason that we’ve come to the view that we have is because we think the only proper basis on which this matter can proceed today is on the narrow way that we’ve outlined it to you.
MR ANFORTH: Very well.
MR FROST: If it’s going to proceed, if you’re right on the jurisdiction question, and Mr Wallace may or may not agree with that, but if you’re right on the jurisdiction question it may be that the broader application can proceed but it can’t proceed today. Now that ‑ ‑ ‑
MR ANFORTH: Which raises two alternatives that [we proceed today] on the narrow basis ‑ ‑ ‑
MR FROST: Yes.
MR ANFORTH: Or we adjourn today, they assess it on the full basis and the matter then comes back on the full basis.
MR FROST: There may be some utility in having the parties spend some time now talking for five or ten minutes to see whether there can be an agreed position going forward. If you’re on common ground as to how we ought to approach things now then we might be amenable to that. I don’t think it’s proper for you to be answering that question on the run with us in the room. We’re happy to retire for a few minutes to give you the opportunity to talk to each other if that’s what you want to do and come to an agreed position as to how we proceed. If there’s no agreed position on how we’re going to proceed then we’ll have to make the decision on how we’re going to proceed today, if at all. Are you content for us to give you a few minutes to have a discussion? If you can come back with something that you agree on then we’ll proceed.
MR WALLACE: I don’t have any difficulty with that proposal, sir.
18. We adjourned again, and resumed a little over an hour later, and the following was said (page 20-21):
MR FROST: Just before we start, can I supplement what we said before, what I said before on behalf of us? During the break we’ve had a chance to have a closer look at the transitional Act, the Seafarers Rehabilitation and Compensation Transitional Provisions and Consequential Amendments Act, No 233 of 1992 and that certainly throws some light on some of the issues that we were talking about this morning, in particular section 7. It seems, Mr Anforth, that there may well be some good force in what you were saying. In any event I just wanted to clarify…Where are we, gentlemen?
MR WALLACE: Can I just respond to that, Senior Member? I agree entirely but we hadn’t had the opportunity to respond when we adjourned but I think inevitably the tribunal is going to, in making an assessment under section 39, will find its way back at some point to what impairment, if any, was permanent before the commencement date of the Seacare Act. I think it’s inevitable. If my friend has no objections, we’ve had some discussions. We have not been able to resolve it, [in] these proceedings. However, in light of that and having heard from yourself and by implication Dr Toh, the respondent’s view is that by dint of that then the matter really needs to be adjourned for assessments to be done dealing with that statutory issue on the facts provided ultimately by Mr Ozanne and the clinical records, etcetera, that are in play.
Then the only question then is, and I foreshadow this, that if the assessment is 50 per cent of loss of function prior to the commencement date then the respondent will make a decision about that as it’s in power to do, and will want the file clearly endorsed that should you adopt what I’m proposing that there will be a significant argument as to costs in relation to the proceedings as they are today and thereafter should the respondent determine the amount of compensation payable on the process identified by my learned [friend] and which I accept then there will be another argument as to what costs, if any, are payable should we find ourselves back here. …
I’m sure my friend will have something to respond to that.
MR ANFORTH: Well costs are discretionary obviously. Once the assessment is done on the Table of Maims, that will nevertheless still form only our secondary position. Our primary position is and remains a determination under the tables on the premise of permanency after the commencement of the Seafarers Acts. That’s an issue of fact. The date of permanency is an issue of fact. Our primary position remains as it is here today, and our secondary position remains as it is here today so we will have the assessment done, although we think the assessment is already there but nevertheless we’ll do them.
But what we will then say, coming back, if the respondent issues a determination offering under the Table of Maims and if that’s accepted we will nevertheless say that that was a live issue here today that should have been done on the Fuad principle [Fuad and Telstra Corporation Limited [2004] AATA 1182], should have been done from day one. It could be done today actually and therefore the discount, if you like, on the costs should reflect the fact that it’s the role of the respondent to make the correct or preferable decision and it could do it right here today if it wished to do so.
19. After some further discussion we continued (pages 21-22):
MR FROST: …[W]ell there is at least agreement between you, is there, that that question as to whether there was a permanent impairment prior to the commencement of the ’92 Act, that’s going to go back to the respondent, is that right?
MR WALLACE: Yes.
MR FROST: For determination. In a procedural sense how is that going to happen?
MR WALLACE: That’s a good question, Senior Member, my instructor being, writing me posted notes on that point as you’ve been speaking. The process would mean, as I understand it, the respondent would just be going to Mr Dalton, he being the rehabilitation physician to get this done. I’m assuming that my learned friend would get instructions for Mr Ozanne to go and see Mr Bodel, orthopaedic surgeon, again. Assuming that, and I don’t know how long Mr Ozanne is proposing to stay in the United Kingdom for but I thought a directions hearing before yourself might be appropriate in, say, eight weeks and wherein in the interim the parties could get the assessments done and then we’ll know exactly where we’re heading.
20. Mr Anforth made some further comments, and then this was said (pages 22-23):
MR FROST: …Although there may be some disagreement between you, it seems that there’s acceptance that the determination of that question [of permanent impairment prior to 24 June 1993] should go back to the respondent and the suggestion is that there ought to be a directions hearing in eight weeks time. Mr Wallace, procedurally, as far as the tribunal is concerned, how is the matter going back to the respondent? Do you think there should be a formal remission under section 42D?
MR WALLACE: Yes, I do and I think it’s very important, I think, that you and Dr Toh are engaged in the process going forward because you’ve had the benefit of the arguments that have been put before you this morning and for you then to have, as the presiding Senior Member, the opportunity in eight weeks time to give directions if need be. So if the order contained words to the effect that the matter be adjourned with a direction to the respondent upon the availability of the applicant for assessment as to the degree of loss of function, if any, that was permanent before 24 June, 1993, would ensure that the issues were confined to the matters that have been additionally raised today, leaving open, as my friend I’m sure would want, the question of then whether there is any assessment available under table 9.3. That ought to cover the matters I think the tribunal would seek to ensure. The parties come back before you and Dr Toh ultimately with the case that’s been suggested today is in issue.
MR FROST: It would be my suggestion then that, Mr Wallace, your side draft an appropriate order under section 42D, run it past the other side … but if you can come to an agreed position on what the order ought to be under 42D, I would be inclined to guard against the possibility of an extension of time down the track. Without overdoing it, I would like to – if we don’t impose a timeframe on that it defaults to 28 days, so we need to put a timeframe on it which we can be reasonably comfortable is capable of being met. If that’s eight weeks, then that’s fine. Can I leave it up to you to do the best you can to work out what that period should be? We’ll make the order if you’re in agreement with it and then I would think rather than listing it for directions now, several weeks or two months in advance, we might wait until the response comes back and then we’ll list it very quickly for further directions.
21. At that point we adjourned the proceedings to allow the parties to draft an agreed order under s 42D of the Administrative Appeals Tribunal Act 1975 (AAT Act).
22. The s 42D order, dated 2 September 2010, is in the following terms:
Pursuant to section 42D of the Administrative Appeals Tribunal Act 1975, and with the consent of the parties, the Tribunal remits the decision dated 9 December 2009 to the respondent for reconsideration for a period ending 15 November 2010.
The Tribunal makes the following Directions in relation to this Order:
1. The respondent to reconsider the issue as to whether or not the applicant sustained a permanent impairment to his left knee before 24 June 1993, and if so, to what degree in accordance with the Seamen’s Compensation Act 1911.
23. For completeness, and in relation to paragraph 19 of these reasons (and in particular the Senior Member’s comments quoted there), we note that s 7 of the Transition Act provides in subsection (3) as follows:
The amount of compensation (if any) that a person is entitled to receive under section 39 or 40 of the Principal Act in respect of a permanent impairment, or under section 29 of the Principal Act in respect of the death of an employee, being an impairment or death that occurred before the commencing day, is the same as the amount of compensation that would have been payable to that person under the repealed Act, if the Principal Act had not been enacted.
24. For the purposes of the Transition Act, the “Principal Act” is the SRC Act, and the “repealed Act” is the 1911 Act.
25. Again for completeness, and also in relation to paragraph 19 of these reasons (and in particular the second paragraph of Mr Anforth’s comments), we note that in Fuad [2004] AATA 1182, the President of this Tribunal, in dealing with the effect of determinations made by an employer under the Safety, Rehabilitation and Compensation Act 1988, said at [4]-[5]:
[T]he effect of the decision in Oudyn [Australian Postal Corporationv Oudyn (2003) 73 ALD 659] is that even though an application for compensation is refused pursuant to s 14 or s 16, with the consequence that the decision-maker does not address fully the actual applications under s 19, s 21 or such other section as is appropriate, nevertheless, the decision adverse to the applicant is a decision adverse on all matters put before the decision-maker by the applicant.
It follows that all matters put before the decision-maker as part of a claim under the Act are before this Tribunal for review when an application for review is made, even though the decision may not address them in any particular way. That leaves a problem of identifying exactly what was before the decision-maker but that is a practical problem and not a jurisdictional problem. (Emphasis added.)
The second reconsideration
26. BHP provided to the Tribunal a copy of the decision arising from the second reconsideration. The document is headed “Reconsideration of own motion” and it is in the following terms:
In pursuance of the provisions of the Seafarers Rehabilitation & Compensation Act 1992, I hereby determine:
1.That the determination dated 14 July 2009 is hereby set aside and varied in accordance with the following:
(a)On the evidence available I am not satisfied that the claimant suffers from a whole person impairment in accordance with Section 39 of the Act as a result of the injuries sustained in 1972.
(b)BHP Billiton Ltd has no present liability to pay compensation pursuant to section 39 and/or 41 of the Seafarer’s Rehabilitation and Compensation Act 1992.
(c)The claimant does however suffer from a 22.5% loss of the leg at or above the knee pursuant to the Seamen’s Compensation Act 1911 as a result of the injuries sustained in 1972.
The parties’ submissions on costs
27. The parties were invited to make written submissions on costs. The written submissions on behalf of Mr Ozanne included the following:
17. The Applicant accepts [the 22.5%] assessment of his permanent impairment.
…
21. The Applicant submits that his legal costs of the proceedings before the AAT which were rendered abortive by the Respondent’s reconsideration of own motion should be paid by the Respondent on a party / party basis in accordance with section 91(2) of the Seafarer’s Rehabilitation and Compensation Act 1992 (Cth) and the AAT’s Workers Compensation Jurisdiction Practice Note.
22. If the Respondent refuses to agree to pay the Applicant’s legal costs in accordance with section 91(2) of the Seafarer’s Rehabilitation and Compensation Act 1992 (Cth), then the Applicant has no alternative other than to continue with the application for review.
22. [sic] In the Applicant’s submission, the fact that the matter was remitted to the Respondent pursuant to section 42D of the AAT Act does not alter the fact that the subsequent reconsideration issued by the Respondent was a reconsideration of own motion and that that reconsideration rendered the present proceedings abortive, except for the issue of costs. Therefore, the Applicant submits that section 91(2) is obviously applicable to the present case with the result being that the Respondent is liable to pay the Applicant’s costs of the proceedings.
28. BHP’s written submissions traced the history of Mr Ozanne’s various claims for compensation under the SRC Act, not only the current one but also two prior claims in 2007; neither of the prior claims was for permanent impairment.
29. The submissions included the following:
19. A determination and reviewable decision were issued declining liability pursuant to s 39 of the [SRC Act] on the basis that no evidence had been provided by the seafarer to establish a degree of permanent impairment of 10% or greater. It was not until after those documents had been issued by the respondent, that the seafarer’s solicitor provided a report which included an assessment in respect of 10% whole person impairment under the [SRC Act].
20. No reference was made by the seafarer’s solicitor to any purported entitlement under the 1911 Act until the hearing date on 30 August 2010; notwithstanding the fact that Statements of Issues and Statements of Facts and Contentions had been provided by both parties and despite the matter having been the subject of telephone conferences and a directions hearing.
21.The first occasion on which the permanent impairment claim under the 1911 Act was raised was the date of hearing. At the time it was raised there were no assessments available to substantiate any claim under the 1911 Act. The Tribunal directed the parties to subsequently obtain evidence in relation to permanent impairment assessments under the 1911 Act and remitted the matter to the respondent pursuant to s 42D of the AAT Act to issue a further decision.
22. No medical evidence was provided by the applicant to support a claim under the 1911 Act until 26 October 2010 – the assessment provided on that date was the assessment accepted in the subsequent s 42D decision.
23.It is submitted that the respondent is prejudiced by the manner in which the claim has been conducted by the applicant’s solicitor. The permanent impairment assessment, upon which the permanent impairment claim was originally founded, was available during the course of previous proceedings. However, the seafarer’s solicitor chose not to lodge the claim with the respondent at that time, despite indicating an initial intention to do so. The seafarer was paid costs in relation to the previous proceedings.
24. It is further submitted that in the event that a claim under the 1911 Act had ever been made by the seafarer’s solicitor, prior to the date of hearing, the matter may well have been resolved without the need for litigation. This is evidenced by the fact [that] once an assessment under the 1911 Act was provided in October 2010, the subsequent s 42D decision accepted liability on the basis of that assessment.
25. Section 42D of the AAT Act provides that if a decision is varied or set aside, the new decision is taken to be the decision the subject of the proceedings before the AAT and that the person who made the application may either proceed with the application for review of the decision as varied/set aside or may withdraw the application.
26. Section 42D of the AAT Act does not prescribe for payment of costs where a decision is issued pursuant to that section.
27. It is the respondent’s submission that any acceptance of the s. 42D decision must result in withdrawal of the proceedings. An applicant is not entitled to costs where proceedings are withdrawn.
28. Paragraph 20 of the applicant’s Submissions states that in the event the applicant had to bear his own costs for these proceedings it would be unfair and prejudice the applicant in circumstances where the respondent “consistently denied his claim” until it was before the AAT. It is noted however that the applicant had not brought a claim for permanent impairment proceedings under the 1911 Act.The applicant brought a claim for permanent impairment benefits under the [SRC Act] to be assessed in accordance with s. 39 of that Act etc. Liability was declined in respect of that claim, initially on the basis that no evidence had been provided. The submission that the respondent consistently denied the applicant’s claim until it was before the AAT, in our view, is unfounded having regard to the fact that the permanent impairment claim under the 1911 Act was not raised by the applicant until the hearing date on 30 August 2010. (Emphasis added.)
Consideration
30. We make the observation that the way this application has progressed is less than optimal. It is unfortunate, for example, that Mr Ozanne’s statement of facts and contentions did not address the question whether his permanent impairment dated from prior to 24 June 1993. There is arguably some prejudice to BHP as a result of that omission. It is similarly unfortunate that BHP, well aware that the event leading to Mr Ozanne’s incapacity occurred in 1972, did not ask that very question when Mr Ozanne lodged the claim for permanent impairment compensation in 2009.
31. We also observe that some of the contentions made in BHP’s written submissions cannot be sustained.
32. The suggestion that Mr Ozanne had not made a claim under the 1911 Act until the date of hearing must be rejected. It is true that Mr Ozanne’s claim, lodged on a pre-printed Australian Government form, is styled as a “Claim for Permanent Impairment and Non-Economic Loss and/or Related Aids – Seafarers Rehabilitation and Compensation Act 1992”, but nowadays, of course, there is no form identified as a form on which to make a claim under the 1911 Act. Nevertheless, s 7 of the Transition Act provides that any entitlement Mr Ozanne may have to compensation under s 39 of the SRC Act is the same as his entitlement would have been under the 1911 Act. In the circumstances, Mr Ozanne’s claim must be seen as imposing an obligation on BHP to examine whether he had such an entitlement under the 1911 Act.
33. But those observations are really beside the point. The question for us at the moment is a narrow one – was BHP’s second reconsideration undertaken “on its own initiative”? We think it is clear from the way the events of 30 August 2010 unfolded, as outlined above, that it was. Mr Anforth representing Mr Ozanne wanted the hearing to proceed; it was Mr Wallace on behalf of BHP who wanted BHP to undertake a reconsideration (see paragraph 19 of these reasons). Specifically, Mr Wallace said:
… the respondent’s view is that by dint of that then the matter really needs to be adjourned for assessments to be done dealing with that statutory issue on the facts provided ultimately by Mr Ozanne and the clinical records, etcetera, that are in play.
Then the only question then is, and I foreshadow this, that if the assessment is 50 per cent of loss of function prior to the commencement date then the respondent will make a decision about that as it’s in power to do.
34. It was only after those comments were made that the remittal mechanism of s 42D of the AAT Act was decided upon (after the Tribunal suggested it). An alternative would have been simply to adjourn the proceedings to allow the reconsideration to be undertaken. BHP accepts that a reconsideration in that event would have been “on BHP’s own initiative”. We cannot see, in the circumstances, that there is any reason why the particular procedural mechanism decided upon should determine the characterisation of the reconsideration, although that is precisely the proposition put to the Tribunal by Mr Wallace in a directions hearing on 24 January 2011 (Transcript page 9, line 27 to page 10, line 13).
35. We also note, of course, that BHP itself described the second reconsideration as a “Reconsideration of own motion”. Although the language is slightly different from that used in the SRC Act, that characterisation is consistent with our conclusion that the reconsideration was undertaken by BHP “on its own initiative”.
Future conduct of the proceedings
36. It is appropriate that we allow both parties some time to consider the conclusion we have reached and the possible ramifications of it.
37. We direct the parties to provide to the Tribunal, within 21 days of delivery of these reasons, their views (either as agreed between them, or separately) as to the future conduct of the proceedings.
I certify that the 37 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member S E Frost and Dr S H Toh, Member
Signed: ..................................[SGD]...........................................
N. Olson, AssociateDates of Hearing 30 August, 22 November 2010, 24 January 2011
Date of Decision 21 February 2011
Counsel for the Applicant Mr A Anforth
Solicitor for the Applicant Capital Lawyers
Counsel for the Respondent Mr J Wallace
Solicitor for the Respondent Curwoods Lawyers
0
3
5