Peter Goodricke and Comcare

[2015] AATA 323

[2015] AATA 323

Division	GENERAL ADMINISTRATIVE DIVISION
File Number	2015/1965
Re	Peter Goodricke
APPLICANT
And	Comcare
RESPONDENT

DECISION

Tribunal	Dr James Popple, Senior Member
Date	13 May 2015
Date of written reasons	14 May 2015
Place	Canberra

The application for review is dismissed under s 42A(4) of the Administrative Appeals Tribunal Act 1975.

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

James Popple, Senior Member

CATCHWORDS

COMPENSATION — Commonwealth employees — jurisdiction — whether reviewable decision — whether second determination a reconsideration — application dismissed

LEGISLATION

Administrative Appeals Tribunal Act 1975, ss 25(4), 42A(4)

Safety, Rehabilitation and Compensation Act 1988, ss 16, 19, 60, 64

CASES

Telstra Corporation Ltd v Hannaford (2006) 151 FCR 253

REASONS FOR DECISION

James Popple, Senior Member

14 May 2015

Summary

1. The applicant seeks review of a decision by Comcare that is not a “reviewable decision” under the Safety, Rehabilitation and Compensation Act 1988 (the SRC Act).  I dismiss the application for review because the Tribunal does not have jurisdiction to review that decision.

   Background

2. Mr Peter Goodricke was being paid compensation by Comcare.  On 3 June 2013, Comcare wrote to him to advise that the medical evidence suggested that his then current condition did not relate to his Commonwealth employment.  Mr Goodricke provided Comcare with further medical evidence.

3. On 18 December 2013, Comcare wrote to Mr Goodricke to advise him that, on the basis of that further evidence, it had determined that compensation for incapacity for work would continue to be payable under s 16 of the SRC Act. I will call this the first determination.

4. On 31 March 2015, Comcare wrote to Mr Goodricke to advise him that it had assessed the evidence, including evidence of his condition in November 2014, and decided that he did not suffer from the effects of the compensable condition. Comcare determined that Mr Goodricke was not entitled to compensation in respect of medical expenses under s 16, and had no entitlement for incapacity payments under s 19 of the SRC Act. I will call this the second determination.

5. On 27 April 2015, Mr Goodricke applied to the Tribunal, relying on s 64 of the SRC Act and s 29(1) of the Administrative Appeals Tribunal Act 1975 (the AAT Act), for review of the first and second determinations.

6. On 28 April 2015, the Deputy Registrar of the Tribunal wrote to Mr Goodricke asking him to explain why he thought that the Tribunal had jurisdiction to review these determinations.  Mr Goodricke replied by e-mail later that day.  From his reply, it appears that he seeks review only of the second determination which, he says, is a reconsideration of the first determination.

7. On 13 May 2015, I conducted a hearing in this matter. I dismissed Mr Goodricke’s application and gave my reasons orally. On 14 May 2015, Mr Goodricke requested written reasons for my decision under s 43(2A) of the AAT Act. These are those reasons.

   The jurisdiction question

8. Section 25(4) of the AAT Act provides that “[t]he 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 provides that a claimant can apply to the Tribunal for review of a “reviewable decision”. Section 60(1) of the SRC Act provides that “reviewable decision” means a decision made under s 38(4) or s 62. Section 38 is about decisions relating to rehabilitation programs, and is not relevant to this matter. Section 62 provides for Comcare to reconsider its determinations. Comcare can reconsider a determination on its own motion (s 62(1)), or at the request of a claimant or the Commonwealth or a Commonwealth authority (s 62(2)).

9. Comcare says that each of the first and second determinations was a primary determination.  Mr Goodricke says that the second determination was an own-motion reconsideration of the first determination.  At the hearing, Mr Goodricke cited authority on the principles of res judicata and functus officio in support of his argument.  His argument is misconceived.

10. There is no doubt that Comcare has the power to make separate primary determinations, even if they are inconsistent with each other.  As the Federal Court explained in Telstra Corporation Ltd v Hannaford:

    The statutory scheme [of the SRC Act] allows for progressive and evolving decision-making giving effect to the provisions of ongoing review of relief or entitlements in the nature of course of workers compensation, being review which allows for adjustment or change in the light of events and circumstances which may subsequently happen.[1]

    [1] (2006) 151 FCR 253 at [57] per Conti J, with whom Heerey and Dowsett JJ agreed.

11. The first determination is stated to be a determination under s 16 of the SRC Act. The second determination is stated to be a determination under ss 16 and 19. Mr Goodricke says that Comcare could not have made two primary determinations because the second determination was made on the same material as the first. I am not convinced that Comcare could not have done so. But, in any event, it did not: as noted above, the second determination took account of evidence of Mr Goodricke’s condition in November 2014, 11 months after the first determination.

12. I do not have to form a view about the correctness or validity of the two determinations—in fact, I cannot form such a view. In lay terms, the second determination is a reconsideration of the first determination. But it is not a reconsideration for the purposes of s 62 of the SRC Act. Neither of the determinations is a reviewable decision. The Tribunal does not have the power to review either of them.

13. I note that Comcare has advised Mr Goodricke that it has taken an e-mail that he sent Comcare on 29 April 2015 as being a request to reconsider the second determination.  This means that Comcare is now required to reconsider the second determination (s 62(4)).  If Mr Goodricke is unsatisfied with that reconsideration, he can apply to this Tribunal for review of that reviewable decision.

    Conclusion

14. Neither the first nor the second determination is a “reviewable decision” under the SRC Act. The Tribunal does not have jurisdiction to review either determination. I dismiss Mr Goodricke’s application for review under s 42A(4) of the AAT Act.

I certify that the preceding 14 (fourteen) paragraphs are a true copy of the reasons for the decision herein of Senior Member Popple

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

Associate

Dated 14 May 2015

Date of hearing	13 May 2015
Applicant	In person
Counsel for the Respondent	Ms Kate Watson
Solicitors for the Respondent	Claims and Liability Management, Comcare