Parsons and Telstra Corporation Limited

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2003] AATA 224

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No W2001/255, 339

GENERAL ADMINISTRATIVE  DIVISION		)
Re		MICHAEL PARSONS

Applicant

And TELSTRA CORPORATION LIMITED

Respondent

DECISION

Tribunal Dr P Staer, Member

Date7 March 2003

PlacePerth

Decision The decisions under review are affirmed.

…...........(sgd P Staer)..............

Member

That includes a "decision".  In the opinion of the Tribunal, the respondent made a decision about the reasonableness or otherwise of the applicant's excuse for not continuing the rehabilitation program.  That then, pursuant to the above definition, establishes a "determination" for the purpose of Part VI - Reconsideration and Review of Determinations of the SRC Act.  The Tribunal notes that the decision of Tamberlin J in Trajkovski v Telstra (1998) 153 ALR 248 supports this conclusion.  In that judgment his Honour said:

"It is common ground that the language of section 37(7) makes it clear that the suspension of rights under section 37(7) operated directly and without the need for any antecedent decision.  Nevertheless, as a practical matter, some person, or body, must make a decision as to its application in any specific case...  It is apparent from the terms of [subsection 37(7)] that the determination whether there has been a failure to undertake a program without reasonable excuse calls for an "objective" determination of both the law and the facts".  (253)

In that judgment his Honour made reference, with approval, to the Tribunal decision in Re Martiniello and Comcare Australia (1994) 33 ALD 774.  In that case the Tribunal concluded that in its opinion "the applicant's failure to undertake a [rehabilitation] program was unreasonable and did not exhibit any reasonable excuse for that failure and we are therefore satisfied that section 37(7) applies to the facts of this case".  (254)  His Honour then noted that "It is apparent from these remarks that the AAT considered it had authority to determine whether it had jurisdiction".  (254)

In Trajkovski, Tamblin J addresses the duty of the AAT, making reference to Collector of Customs (NSW) v Brian Lawlor Automotive Proprietary Limited (1979) 24 ALD 307 in a context clearly applicable to the present matter.  That is, an applicant will have standing if there exists a decision in fact which purports to have been made in the exercise of powers conferred by an enactment.  That obtains, whether or not as a matter of law, it was validly made and whether or not action on the basis there was power to make the decision was right or wrong.  (See: Bowen CJ at 317).

In the present matters of applications 255 and 339 the T documents for each application clearly set out what was purported to be a determination (see T114 in 255 and T8 in 339) and a reviewable decision (see T157 and T175 in 255 and T15 in 339). For those reasons the Tribunal considers that the earlier pronouncement of the Tribunal on 18 December 2001 that the Tribunal has jurisdiction in these two matters is fully supported…