Paul Melis and Australian Postal Corporation
[2014] AATA 58
•6 February 2014
[2014] AATA 58
Division General Administrative Division File Number
2013/3681
Re
Paul Melis
APPLICANT
And
Australian Postal Corporation
RESPONDENT
DECISION
Tribunal Deputy President S D Hotop
Date 6 February 2014 Place Perth The Tribunal does not have jurisdiction in respect of the application for review lodged by the applicant with the Tribunal on 29 July 2013.
............................[sgd]...................................
S D Hotop
Deputy President
CATCHWORDS
PRACTICE AND PROCEDURE – jurisdiction – compensation – applicant suffered injury in 1994 – respondent accepted liability to pay compensation to applicant in respect of injury – respondent required applicant to undergo medical examination in 2013 – applicant failed to undergo examination – respondent made determination that applicant failed to undergo medical examination without reasonable excuse – applicant's rights to compensation suspended – applicant requested reconsideration of determination – respondent made reviewable decision affirming determination – applicant made application to Tribunal for review of reviewable decision – respondent had no power to reconsider determination and make reviewable decision – applicant not authorised by enactment to request reconsideration – applicant not authorised by enactment to make application to Tribunal for review of reviewable decision – Tribunal does not have jurisdiction in respect of applicant’s application for review
LEGISLATION
Administrative Appeals Tribunal Act 1975 (Cth), s 3 and s 25
Safety, Rehabilitation and Compensation Act 1988 (Cth), s 4(1), s 57, s 60, s 61, s 62, s 63 and s 64
CASES
Collector of Customs (WA) v Brian Lawlor Automotive Pty Ltd (1979) 24 ALR 307
Secretary, Department of Social Security v Alvaro (1994) 50 FCR 213
Woodbridge v Comcare (1994) 20 AAR 196
REASONS FOR DECISION
Deputy President S D Hotop
6 February 2014
Introduction
On 29 July 2013 Paul Melis (“the applicant”) lodged with the Tribunal a completed Application for Review of Decision form, together with a letter from a Reconsideration Officer of Australian Postal Corporation (“the respondent”), dated 18 July 2013, notifying him of a decision which was expressed to have been made under s 62 of the Safety, Rehabilitation and Compensation Act 1988 (Cth) (“SRC Act”). The contents of that letter are set out in paragraph 21 below.
Following receipt by the Tribunal, on 20 November 2013, of correspondence from the respondent’s solicitors enclosing a copy of a document headed “WRITTEN SUBMISSION WITH RESPECT TO THE QUESTION OF JURISDICTION FOR THE PURPORTED REVIEW OF A PURPORTED AUTHORISED DETERMINATION” prepared by counsel, the Tribunal held a directions hearing on 27 November 2013. At that directions hearing the Tribunal expressed the view that it was appropriate that the jurisdictional issue which had arisen in this proceeding be determined “on the papers” without holding a hearing, and the parties consented to that course.
Accordingly, on 27 November 2013 the Tribunal made directions for the filing and serving of written submissions by the parties, and thereafter for the jurisdictional issue to be determined “on the papers” without holding a hearing.
The Evidence
The evidence before the Tribunal comprised the “T Documents” (T1–T22, pp 1–56) lodged on behalf of the respondent in accordance with s 37 of the Administrative Appeals Tribunal Act 1975 (Cth) (“AAT Act”), and supplementary documents (ST1–ST4, pp 1–23) lodged on behalf of the respondent on 17 January 2014.
The Factual Background
The following relevant background facts are found by the Tribunal on the basis of the abovementioned T Documents and supplementary documents.
On 8 July 1994 the applicant claimed compensation under the SRC Act for an injury described as “ligament tear, lower back and hip (right side)”. (T4)
On 2 August 1994 an officer of the respondent made a determination accepting liability under the SRC Act to pay compensation to the applicant for an injury described as “soft tissue injury (R) hip” suffered on 6 July 1994. (T5)
On 7 April 1995 an officer of the respondent made a determination whereby the description of the injury, in respect of which liability had been accepted on 2 August 1994, was amended to “right L4/5 disc herniation” (ST2). That description of the compensable injury was itself subsequently amended, by determination dated 20 May 2010, to “right L4/5 disc herniation resulting in major depression” (ST4).
By letter dated 24 January 2013 an officer of the respondent notified the applicant that, pursuant to s 57 of the SRC Act, he had arranged for the applicant to undergo a medical examination by Mr Michael Alexeeff, Orthopaedic Surgeon, at a specified location on 24 April 2013. (T6)
The applicant signed an Appointment Acknowledgement Form, dated 21 February 2013, whereby he confirmed that he would be attending the abovementioned medical appointment. (T8)
By letter dated 23 April 2013 an officer of the respondent informed the applicant that she had received a telephone call from Mr Alexeeff’s rooms advising that the applicant had cancelled the abovementioned appointment with Mr Alexeeff because of ill health, and requested the applicant to provide, within 14 days, medical evidence substantiating his incapacity to attend that appointment. (T9)
By letter dated 16 May 2013 to the applicant, an officer of the respondent noted that they had not received a response to the abovementioned letter of 23 April 2013, and notified the applicant that, pursuant to s 57 of the SRC Act, a further arrangement had been made for him to undergo a medical examination by Mr Alexeeff on “Wednesday [sic] 24th June 2013 at 11.00 am”. (T10)
The applicant signed an Appointment Acknowledgement Form, dated 18 May 2013, whereby he confirmed that he would be attending the abovementioned medical appointment. He added, however, that, although he wished to attend that appointment, he could not guarantee that he would be well on the day of the appointment. (T11)
A file note, dated 20 June 2013, by an officer of the respondent records that he had received a telephone call from the applicant advising that he had been “throwing up” and would not be able to attend the appointment with Mr Alexeeff on 24 June 2013. (T12)
A file note, dated 24 June 2013, by an officer of the respondent records that he had received a telephone call from the applicant advising that he had not attended the appointment with Mr Alexeeff as he was sick. (T13)
By letter dated 24 June 2013 an officer of the respondent wrote to the applicant as follows:
“ We refer to our previous communications in respect to this matter and 2nd medical appointment missed with Dr Michael Alexeeff.
You have advised Australia Post you did not attend this appointment.
Please provide, in writing, your excuse or reason for not attending this appointment within 7 days from the date of this letter, therefore by 1 July 2013.
In the absence of a reasonable excuse, Australia Post has the option to refuse to deal with your claim until such time as the examination has been conducted.
We look forward to hearing from you.” (T14)
By letter dated 26 June 2013 the applicant responded to the abovementioned letter of 24 June 2013. (T16)
By letter dated 28 June 2013 an officer of the respondent notified the applicant as follows:
“ SUSPENSION OF ENTITLEMENT TO COMPENSATION UNDER SECTION 57(2), SAFETY, REHABILITATION & COMPENSATION ACT 1988 (‘THE ACT’)
Reference is made to your claim for compensation in respect of ‘Right L4/5 disc herniation’ arising from an incident on 6th July 1994. We also acknowledge receipt of your letter dated 26/6/2013.
Determination of Section 57(2), SRC Act 1988
Pursuant to Section 57(2) of the Safety, Rehabilitation and Compensation Act 1988, I hereby determine that your rights to compensation under this Act, and to institute or continue any proceedings under this Act in relation to compensation, are suspended on and from 4th July 2013, until such time as you attend for a medical examination with Dr Alexeeff.
Reasons for Determination
I have ascertained that you have refused/failed to undergo an examination on the 24th June 2013 without reasonable excuse.
The specific reasons are as follows –
a)On 23.4.2013 we received a call from Dr Alexeeff’s rooms highlighting you failed to attend the appointment with him on 23.4.2013.
b)Subsequently we sent a letter on the same date requesting you advise us of the reasons why you failed to attend that appointment. It was not until the 20th May 2013 that you advised in writing on our 2nd appointment confirmation acknowledgement form, that you left a message prior to the appointment date that you simply could not attend that appointment. We are concerned that you forecasted that you could not attend that appointment, without any specific reason. Kindly note a missed appointment fee was charged to us, and we have now paid this missed appointment fee.
c)On the 2nd acknowledgement form, received on 20th May 2013, you advised you wished to attend the 2nd appointment on 24th June 2013, however highlighted that you could not guarantee that you would be well on that day.
d)On 20 June 2013, you phoned this office advising that you were throwing up, and indicated to us that you could not make the appointment in 4 days. I enquired why you believed you would still be sick on Monday and you advised that you couldn’t get in to see a doctor and your next appointment would be on Thursday of that week. I advised you that you could use the taxi vouchers supplied and Dr Alexeeff could assist with the diagnosis, given the adverse medication reaction. You then advised that you were concerned who Dr Alexeeff was. I then advised you that if you did not attend the appointment then this office would take that as you refusing to attend the appointment without reasonable excuse.
e)On the 24 June 2013, we received a call from you advising that you couldn’t attend Dr Alexeeff’s rooms as you were too sick to attend, however, you were able to attend you [sic] own doctors rooms on that day supplying an unfitness certificate for work. We note that you spoke in a clear manner.
f)When we wrote to you on 24th June 2013, asking for your reasons in writing and these were supplied to us on 26th June 2013. In that letter you advised us that you had been given the incorrect date. We advise that our letters confirm the same date, so we do not find that statement correct. You were also aware of the date and time having confirmed the appointment the previous week. In addition you advised that your sickness had continued for more than 3 weeks. We note you saw Dr Naylor on 10 June 2013; however, there was no mention of this particular sickness.
Rights of Reconsideration
If you are dissatisfied with this determination, you may request a reconsideration of the determination in writing under Section 62 of the SRC Act which shall set out the reasons for the request and such request shall be given within thirty (30) days of receipt of this determination, or within such further period (if any) as Australia Post, either before or after the expiration of that period, allows.
…” (T17)
By letter dated 8 July 2013 the applicant responded to the abovementioned letter of 28 June 2013. (T18)
By letter dated 10 July 2013 an officer of the respondent acknowledged receipt of the applicant’s letter of 8 July 2013 and informed the applicant that his file had been “forwarded to the reconsideration section at Australia Post”. (T19)
By letter dated 18 July 2013 a Reconsideration Officer of the respondent notified the applicant as follows:
“ Re: SAFETY REHABILTATION AND COMPENSATION ACT 1988
SECTION 62: RECONSIDERATION REQUEST
I refer to your request for a reconsideration of the determination dated 28 June 2013 which suspended your rights to compensation in respect of ‘right L4/5 disc herniation’ due to non-attendance of medical appointments.
I note you have failed to attend the appointments made with Dr Michael Alexeef [sic] in respect of your claim for ‘right L4/5 disc herniation.’
I have reviewed your reasons for non attendance in your letter dated 8 July 2013. Having reviewed the evidence, I am not satisfied you have provided sufficient medical evidence to support your reasons for non attendance.
Accordingly, I have decided to AFFIRM the determination dated 28 June 2013 which suspended your rights to compensation as you have not provided a reasonable excuse for non attendance.
If you are dissatisfied with my reconsiderations [sic] you will need to lodge an application with the Administrative Appeals Tribunal to review the decision. Please note that you will be liable to pay your legal costs, if any, if you ask for a review and the AAT’s decision is not in your favour. If you succeed, costs or part costs may be payable. Full details including the address of the AAT are outlined in the enclosed form: ‘Employees’ Rights and Responsibilities’.” (T21)
On 29 July 2013 the applicant lodged with the Tribunal a completed Application for Review of Decision form, together with the abovementioned letter of 18 July 2013.
The Relevant Legislation
The AAT Act
The AAT Act relevantly provides:
“ 3 Interpretation
(1) In this Act, unless the contrary intention appears:
…
enactment means:
(a)an Act;
(b)an Ordinance of a Territory other than the Northern Territory, the Australian Capital Territory or Norfolk Island; or
(c)an instrument (including rules, regulations or by‑laws) made under an Act or under such an Ordinance;
and includes an enactment as amended by another enactment
…
Tribunal:
(a)means the Administrative Appeals Tribunal established by this Act; and
(b)in relation to a proceeding, means the Administrative Appeals Tribunal so established as constituted for the purposes of the proceeding; and
(c)includes a member, or an officer of the Tribunal, exercising powers of the Tribunal.
…
(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.”
“ 25 Tribunal may review certain decisions
Enactment may provide for applications for review of decisions
(1) An enactment may provide that applications may be made to the Tribunal:
(a)for review of decisions made in the exercise of powers conferred by that enactment; or
(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.
…
Delegations, acting appointments and authorisations
(3A) Where an enactment makes provision in accordance with this section for the making of applications to the Tribunal for the review of decisions of a person made in the exercise of a power conferred on that person, that provision of that enactment applies also in relation to decisions made in the exercise of that power:
(a)by any person to whom that power has been delegated;
(b)in the case where the provision specifies the person by reference to his or her being the holder of a particular office or appointment—by any person for the time being acting in, or performing any of the duties of, that office or appointment; or
(c)by any other person lawfully authorized to exercise that power.
Tribunal’s power to review decisions
(4) The Tribunal has power to review any decision in respect of which application is made to it under any enactment.
…”
The SRC Act
The SRC Act relevantly provides:
“ 4 Interpretation
(1) In this Act, unless the contrary intention appears:
…
licensed corporation means a corporation that is the holder of a licence that is in force under Part VIII.
licensee means a Commonwealth authority or a corporation that is licensed, or that is taken to be licensed, under Part VIII.
…
relevant authority means:
(a)in relation to an employee who is employed by a licensee—the licensee; and
(b in relation to any other employee—Comcare.”
…”
“57 Power to require medical examination
(1) Where:
(a)a notice has been given to a relevant authority under section 53 in relation to an employee; or
(b)an employee has made a claim for compensation under section 54;
the relevant authority may require the employee to undergo an examination by one legally qualified medical practitioner nominated by the relevant authority.
(2) Where an employee refuses or fails, without reasonable excuse, to undergo an examination, or in any way obstructs an examination, the employee’s rights to compensation under this Act, and to institute or continue any proceedings under this Act in relation to compensation, are suspended until the examination takes place.
…
(5) Where an employee’s right to compensation is suspended under subsection (2), compensation is not payable in respect of the period of the suspension.
…”
“
60 Interpretation
(1) In this Part:
claimant means a person in respect of whom a determination is made.
decision has the same meaning as in the Administrative Appeals Tribunal Act 1975.
determination means a determination, decision or requirement made under section 8, 14, 15, 16, 17, 18, 19, 20, 21, 21A, 22, 24, 25, 27, 29, 30, 31, 34, 36, 37 or 39, under paragraph 114B(5)(a) or under Division 3 of Part X.
determining authority, in relation to a determination, means the person who made the determination.
reviewable decision means a decision made under subsection 38(4) or section 62.
…
61 Determinations to be notified in writing
(1) As soon as practicable after a determining authority makes a determination, it shall cause to be served on the claimant a notice in writing setting out:
(a)the terms of the determination;
(b)the reasons for the determination; and
(c)a statement to the effect that the claimant may, if dissatisfied with the determination, request a reconsideration of the determination under subsection 62(2).
…
62Reconsideration of determinations
(1) A determining authority may, on its own motion:
(a)reconsider a determination made by it; or
(b)cause such a determination to be reconsidered by a person to whom its power under this section is delegated, being a person other than the person who made, or was involved in the making of, the determination;
whether or not a proceeding has been instituted or completed under this Part in respect of a reviewable decision made in relation to that determination.
(2) A request to a determining authority to reconsider a determination made by it may be made by:
(a)the claimant; or
(b)if the determination affects the Commonwealth – the Commonwealth; or
(c)if the determination affects a Commonwealth authority – that Commonwealth authority.
…
(3) A request for reconsideration of a determination shall:
(a)set out the reasons for the request; and
(b)be given to the determining authority within 30 days after the day on which the determination first came to the notice of the person making the request, or within such further period (if any) as the determining authority, either before or after the expiration of that period, allows.
(4) On receipt of a request, the determining authority shall reconsider the determination or cause the determination to be reconsidered by a person to whom its power under this section is delegated, being a person other than a person who made, or was involved in the making of, the determination.
(5) Where a person reconsiders a determination, the person may make a decision affirming or revoking the determination or varying the determination in such manner as the person thinks fit.
63 Reviewable decision to be notified in writing
As soon as practicable after a person makes a reviewable decision, the person shall cause to be served on the claimant a notice in writing setting out:
(a) the terms of the decision;
(b) the reasons for the decision; and
(c) a statement to the effect that, subject to the Administrative Appeals Tribunal Act 1975, application may be made to the Administrative Appeals Tribunal for review of the decision to which the notice relates.
64 Applications to the Administrative Appeals Tribunal
(1) Application to the Administrative Appeals Tribunal for review of a reviewable decision may be made by:
(a)the claimant; or
(b)if the decision affects the Commonwealth—the Commonwealth; or
(c)if the decision affects a Commonwealth authority—the Commonwealth authority; or
(d)if the decision affects a corporation that holds a licence under Part VIII—the licensed corporation.
…”
The Issues
The Tribunal notes that, although the Application for Review of Decision form lodged by the applicant appears to refer both to the decision of 28 June 2013 (see paragraph 18 above) and to the decision of 18 July 2013 (see paragraph 21 above), it has treated that application as an application for review of the latter decision (the respondent’s letter notifying the applicant of which was enclosed with his application for review).
Accordingly, the issues for the Tribunal’s determination relate to the legal status of the abovementioned decision of 18 July 2013, being the decision of which the applicant has applied for review in this proceeding, and the Tribunal’s jurisdiction to review that decision.
The Submissions
The respondent’s submissions, filed on 20 November 2013, state as follows:
“1. The matter arises with respect to the application and construction of ss 57(2), 60(1), 62 and 64 of the SRC Act in conjunction with ss 3(3) and 33 of the Administrative Appeals Tribunal Act.
2.The presently named Respondent in the matter said to be before the Tribunal purported to determine rights to compensation by letter dated 28 June 2013 and then by an affirmation dated 18 July 2013.
3. The Administrative Appeals Tribunal’s power to review a decision is said to be broad and should not unnecessarily be constrained. However, when determining the meaning of the word ‘decision’, it must take its colour and content from the enactment which is the source of the decision itself. See Director-General Social Services v Hale [1983] FCA 81.
4.Justice Lockhart went on to say in Hale:
‘ It is necessary to examine the Act which confers jurisdiction on the Administrative Appeals Tribunal and the administrative framework in which it operates to determine whether there is a “decision” susceptible to review under the Administrative Appeals Act.’
5.The point of reciting the reference is to draw attention to the need to recognise that administrative decisions come in various forms but the starting point is to examine the language of the Act that is said to engage the terms and power of review.
6.Before returning to the SRC Act, it is also instructive to consider the procedure before the Tribunal as set out in s 33 of the Administrative Appeals Tribunal Act. Subsection (1AA) is headed ‘Decision-maker must assist Tribunal’. In no uncertain terms, the administrative process susceptible to review obliges a decision and that the decision-maker be exercising powers vested in them.
7.It need not matter whether or not a party purports to do an act and/or make a decision if in circumstances that decision is neither authorised or required to be taken by those who purport to do so: see Buck v Comcare [1996] FCA 1485.
8.Moreover, where the language of an Act, said to be utilised, on its proper construction is in terms neither inviting nor requiring, therefore not authorising, the exercise of an administrative function, then there can be no right of review, ie jurisdiction: see Buck (supra): - neither by representation or consent.
9.Turning now to the interpretation of s 57(2), it is apparent on its face that it does not afford the exercise of an administrative function, but rather by force of the legislation it is self-executing: see Minister for Immigration and Ethnic Affairs v Naumovska (1983) 88 ALR 589 at 601, and Buck (supra).
10.Where there is no power in the authority (the Postal Corporation) to exercise an administrative power with respect to s 57(2), there cannot be a determination susceptible to review. This proposition is put beyond doubt when one considers the dicta of Australian Postal Corporation v Forgie [2003] FCAFC 223 at [73] and [74].
11.Having come to that conclusion, it is probably unnecessary to consider the matter further, but for abundant caution and to put the matter beyond any further doubt, the terms of s 60(1), as is s 62, and ultimately their cumulative effect upon s 64, are apt for consideration.
12.Section 60(1) does not admit of a ‘determination’ under s 57(2). In the circumstances, s 62 does not admit of a ‘reconsideration’ of that that does not exist within the framework of the Act. In those circumstances, it is impermissible and without jurisdiction to deal with that that does not exist and proceed to exercise a power said to emanate out of s 64 without giving meaning to words defined fundamental to the grant of power.
13.By reason of the foregoing, the Respondent respectfully submits that, the jurisdiction of the AAT not being capable of a consensual grant, there is no jurisdiction to deal with the application as proposed.” [sic]
The respondent’s further submissions, filed on 16 December 2013, state as follows:
“1. These submissions are intended to be read in conjunction with previous submissions delivered to the Tribunal in November 2013.
2.The question at the height of the controversy is, as I understand it:
Given the Respondent purported to make a reviewable decision, whether it be ultra vires, void, voidable or such other description, does the Tribunal still have jurisdiction to determine that defect?
3.It has been brought to my attention that authority in support of the presence of jurisdiction exists. His Honour Justice Brennan held, sitting as President, on 21 July 1978, in the case of Re Brian Lawlor Automotive Pty Ltd v Collector of Customs (NSW) 1 ALD at 167:
‘ It is manifestly inconvenient to deny a person affected by a decision which is found to be defective on a ground that would enable it to be challenged in a court of law, the right to seek review of that decision before the Tribunal; and the manifest inconvenience confirms the Tribunal’s jurisdiction to deal with such cases.’
4.The Respondent accepts the presence of jurisdiction in circumstances where a person (the Applicant) is affected by a decision which, of itself, is found to be defective, including defective by reason of the decision-maker purporting to do something that they are not empowered to do. The Tribunal has jurisdiction to hear the matter and determine that the affecting decision was ultra vires or, as his Honour Justice Windeyer said in Brookes v Burns Philp Trustee Company Limited (1969) 121 CLR 432, void, unenforceable, ineffectual, nugatory or whatever label one might give an act deduced from its result in law.
5.In Lawlor (supra) his Honour was confronted with an administrative decision that purported to be made in the proper exercise of the conferred power, having the effect of a licence being cancelled. Support for the construction that his Honour placed upon s 25(1) of the Administrative Appeals Tribunal Act was drawn from precedent based upon circumstance where determinations or legislation ‘affected’ a person; that is to say, that the need to engage a remedy was a direct consequence of the person seeking relief being affected by the decision and/or the event despite the power to make that decision being absent.
6.Despite purporting to be a decision, the ‘reviewable decision’ is not a decision susceptible to review. That conclusion is supported by:
(i)the purported decision has no legal effect of any nature, whether in excess of power or otherwise;
(ii)the enabling Act, does not provide for a decision in the present circumstances, given s 57 of the Safety Rehabilitation and Compensation Act 1988 (‘the SRC Act’).
(iii)it does not invite a decision of any sort, including a decision to do nothing, but rather the statute stipulates the circumstances in which an employee’s rights will be suspended.
(iv)No decision is required to bring about the result: see Buck v ComCare [1996] FCA 1485 and Telstra Corporation Limited v Administrative Appeals Tribunal (2003) FCA 102 (21 February 2003).
7.What occurred in the present circumstances was not the making of a decision in the intended exercise of the power conferred by an enactment. Rather, rights are suspended in particular circumstances by force of the subsection not by a purported decision made in circumstances where there is no power, however exercised, to make a decision at all.
8.As we are reminded throughout all of the authorities that have been referred to, one must have regard to the enabling legislation and its colouring content, to appreciate the source of the decision. This is not a case where a decision to do nothing, or indeed something inappropriately, can be said to derive from the colouring content of the enactment, given the terms of s 57 of the SRC Act.
9.There is no decision, there can never be a decision, and any ‘affect upon the person’ is by reason of the circumstances stipulated by the statute having been met, not by a decision.
10.Moreover, it must have been with some intent that his Honour Justice Brennan, in Lawlor, when interpreting the jurisdiction for review, said, at page 178:
‘ It is manifestly inconvenient to deny the Tribunal’s remedies to correct an error affecting an administrative decision merely because the error would lead a Court, if the matter were litigated, to hold that the decision was invalid.’
11.In the present circumstances, the error does not affect an administrative decision. There is no affecting administrative decision. And any error or otherwise intention to exercise a purported power could not be said to affect an administrative decision where, in present circumstances, the source legislation (relevantly) does not provide for a decision at all.
12.Importantly, his Honour went on to say, at page 178, when speaking of remedies:
‘ Then the Tribunal, perceiving the injustice done by the excess of power, will be constrained to send the applicant away without remedy, …’
13.In the present circumstances, there is no injustice done; and, as a matter of fact, other than the production of a piece of paper, with words upon it, there is nothing done thereby the position is, that the Tribunal is not without remedy, but rather, is without ailment to remedy.
14.The final observation that I make is that, in observance of s 43(1) of the Administrative Appeals Tribunal Act, that when the Tribunal seeks to set aside the decision, they must make a decision in substitution for the decision to set aside, or remit the matter.
15.Section 43(1) grants the original powers and discretions of the enabling enactment to the Tribunal. It does not require the Tribunal to exercise those grants, unless the Tribunal is making a fresh order. The Tribunal, when setting aside the decision under review, is making a fresh order, because they are obliged to make a decision in substitution, or remit the matter for reconsideration, whereby there would have to be an alternate decision available to either the Tribunal or those on the remittance. If the enactment, which is the subject of decision, does not provide for a decision, including a decision with affect to do nothing, then the Tribunal is prohibited from acting under s 43(1)(c). Such a conclusion makes good sense, given that the contrary view in the present case would give the legal process nothing to do and of no ‘affect’.” [sic]
The applicant filed submissions on 23 December 2013. Those submissions, however, do not address the legal and jurisdictional issues referred to in paragraph 26 – not surprisingly, perhaps, given the applicant’s lack of legal representation – and it is unnecessary to set them out in these reasons.
Analysis
The legal status of the decision of 18 July 2013
It is clear on the face of the decision of 18 July 2013 (see paragraph 21 above) that the Reconsideration Officer, in making that decision, was purporting to exercise the power conferred by s 62 of the SRC Act.
The power conferred by s 62 of the SRC Act on a “determining authority” is the power to reconsider a “determination” made by it or to cause such a “determination” to be reconsidered by an appropriate delegate. Plainly, the power conferred by s 62 of the SRC Act relates only to the reconsideration of a “determination”.
The term “determination” is defined exhaustively in s 60(1) of the SRC Act to mean:
“ a determination, decision or requirement made under section 8, 14, 15, 16, 17, 18, 19, 20, 21, 21A, 22, 24, 25, 27, 29, 30, 31, 34, 36, 37, or 39, under paragraph 114B(5)(a) or under Division 3 of Part X.”
It is to be noted that that definition does not include “a determination, decision or requirement made under” section 57.
In the present case a determination was made (expressly) under s 57(2) of the SRC Act by an officer of the respondent on 28 June 2013 (see paragraph 18 above). That determination, however, was not a “determination” as defined in s 60(1) of the SRC Act, within the meaning of s 62 of the SRC Act.
Section 62(2) of the SRC Act relevantly provides that a “request to a determining authority to reconsider determination made by it may be made by … the claimant”. The term “claimant” is defined in s 60(1) of the SRC Act to mean “a person in respect of whom a determination is made” – that is, a “determination” as defined in s 60(1). Because the determination of 28 June 2013 was not a “determination” as defined in s 60(1) of the SRC Act, within the meaning of s 62 of the SRC Act, the applicant was not a “claimant” as defined in s 60(1) of the SRC Act, within the meaning of s 62(2) of the SRC Act, in respect of that determination and, accordingly, was not authorised by s 62(2) to request the respondent to reconsider that determination. The information regarding “Rights of Reconsideration” which appeared at the conclusion of the officer’s letter of 28 June 2013 to the applicant notifying him of that determination, whereby the applicant was advised that he “may request a reconsideration of the determination in writing under Section 62 of the SRC Act …” (see paragraph 18 above), was, therefore, incorrect.
It necessarily follows that the decision of the Reconsideration Officer, dated 18 July 2013, affirming the abovementioned determination, although expressly purporting to be made under s 62 of the SRC Act, was not authorised by that section. Accordingly, that decision is not a decision that was validly made under s 62 of the SRC Act.
Does the Tribunal have jurisdiction to review the decision of 18 July 2013?
Section 25(1) of the AAT Act relevantly provides:
“ An enactment may provide that applications may be made to the Tribunal … for review of decisions made in the exercise of powers conferred by that enactment.”
Section 25(4) of the AAT Act provides:
“ The Tribunal has power to review any decision in respect of which application is made to it under any enactment.”
Section 64(1) of the SRC Act relevantly provides:
“ Application to the Administrative Appeals Tribunal for review of a reviewable decision may be made by:
(a) the claimant; or
…”
The phrase “reviewable decision” is defined in s 60(1) of the SRC Act to mean (relevantly):
“ a decision made under … section 62”.
In the present case an application has been made by the applicant to the Tribunal for review of the decision of 18 July 2013.
Although the decision of 18 July 2013 was purportedly made in exercise of the power conferred by s 62 of the SRC Act, that decision (for the reasons explained in paragraphs 33–35 above) was not authorised by s 62 and, accordingly, was not validly made in exercise of the power conferred by that section. That conclusion, however, does not, of itself, necessarily lead to the result that the Tribunal does not have jurisdiction to review the decision of 18 July 2013.
In Collector of Customs (NSW) v Brian Lawlor Automotive Pty Ltd (1979) 24 ALR 307 a majority of the Full Court of the Federal Court of Australia held that the phrase “decisions made in the exercise of powers conferred by that enactment” in s 25(1) of the AAT Act includes, not only a decision which has validly been made in the exercise of power conferred by the relevant enactment, but also a decision which has in fact been made in the purported exercise of power conferred by the relevant enactment, although not validly made. Likewise, the phrase “reviewable decision” in s 64(1) of the SRC Act includes, not only a decision which has validly been made under s 62 of that Act, but also a decision which has in fact been made in the purported exercise of the power conferred by s 62, although not validly made under s 62: see Secretary, Department of Social Security v Alvaro (1994) 50 FCR 213 at 218–219; Woodbridge v Comcare (1994) 20 AAR 196 at 207–209.
Accordingly, the decision of 18 July 2013 constitutes a decision in respect of which, pursuant to s 25(1) of the AAT Act, an enactment may provide that application may be made to the Tribunal for review. That decision, furthermore, constitutes a “reviewable decision” in respect of which s 64(1) of the SRC Act provides that application may be made to the Tribunal for review.
Pursuant to s 25(4) of the AAT Act, the Tribunal has “power to review any decision in respect of which application is made to it under any enactment”. Section 64(1) of the SRC Act relevantly provides that application to the Tribunal for review of a “reviewable decision” may be made by “the claimant”. The term “claimant” is defined exhaustively in s 60(1) of the SRC Act to mean:
“ a person in respect of whom a determination is made”.
As previously noted (see paragraph 32 above), the exhaustive definition of the term “determination” in s 60(1) of the SRC Act does not include a determination made under s 57 of the SRC Act. Because the determination of 28 June 2013 was not, and did not purport to be, a “determination” as defined in s 60(1), it follows that the applicant does not fall within the definition of “claimant” in s 60(1) in respect of that determination. That being the case, it also follows that the applicant’s application to the Tribunal for review of the purported “reviewable decision” of 18 July 2013 was not authorised by, or made in accordance with, s 64(1) of the SRC Act because it was not made by “the claimant” as relevantly required by that subsection.
The Tribunal determines, therefore, that the applicant’s application to the Tribunal for review of the decision of 18 July 2013 was not made under s 64(1) of the SRC and that, accordingly, the Tribunal is not empowered, pursuant to s 25(4) of the AAT Act and s 64(1) of the SRC Act, to review that decision.
Conclusion
Although the Tribunal has accepted the respondent’s submission that it does not have jurisdiction to review the decision of 18 July 2013, it will be apparent from the analysis set out in paragraphs 36–42 above that the Tribunal does not agree with the reasoning contained in the respondent’s submissions set out in paragraphs 27–28 above. In the Tribunal’s opinion that reasoning is, in substance, inconsistent with the authorities referred to in paragraph 40 above.
Finally, the Tribunal notes that, had it determined that it does have jurisdiction to review the decision of 18 July 2013, such determination would not ultimately have availed the applicant. That is because the Tribunal, in exercise of that jurisdiction, would, having set that decision aside, have decided (consistently with paragraphs 33–35 above) that s 62 of the SRC Act does not confer power to reconsider a determination or decision made under s 57 of the SRC Act. The consequence of that decision would have been that the determination of 28 June 2013, as a result of which the applicant’s “rights to compensation under [the SRC] Act, and to institute or continue any proceedings under [that] Act in relation to compensation”, were suspended on and from 4 July 2013, continued in effect.
Decision
For the above reasons the Tribunal decides that it does not have jurisdiction in respect of the application for review lodged by the applicant with the Tribunal on 29 July 2013.
I certify that the preceding 46 (forty -six) paragraphs are a true copy of the reasons for the decision herein of Deputy President S D Hotop
.............[sgd D Brodie]...........................................................
Administrative Assistant
Dated 6 February 2014
Date of hearing
21 January 2014 (on the papers)
Representative of the Applicant
In person (unrepresented)
Counsel for the Respondent
Mr M Gollan
Solicitors for the Respondent
Sparke Helmore
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