Re Peisley and Comcare
[2001] AATA 121
•8 February 2001
ORAL DECISION AND WRITTEN REASONS FOR ORAL DECISION [2001] AATA 121
ADMINISTRATIVE APPEALS TRIBUNAL )
) No A2000/97
GENERAL ADMINISTRATIVE DIVISION )
Re JOHN PHILLIP PEISLEY
Applicant
And COMCARE
Respondent
ORAL DECISION
Tribunal Senior Member J.A. Kiosoglous MBE
Date8 February 2001
PlaceCanberra
Decision The Tribunal has no jurisdiction to review the matter of the substantive application.
(Signed)
J.A. KIOSOGLOUS
(Senior Member)
CATCHWORDS
PRACTICE AND PROCEDURE – Tribunal's jurisdiction to review sub-section 37(9) – whether reconsideration decision in substantive rehabilitation program dispute – documents considered – request for reconsideration found – no reconsideration decision as at time of suspension – no jurisdiction – whether failure to make a decision can constitute a reviewable decision – note as to costs
COMPENSATION – rehabilitation program - suspension of entitlements pursuant to sub-section 37(7) of Safety Rehabilitation and Compensation Act 1988
Safety Rehabilitation and Compensation Act 1988 ss.37, 38, 60, 62
Trajkovski v Telstra Corporation Ltd (1998) 81 FCR 459
Chowdhary v Bayne [1999] FCA 41
Alaa Saraya v Civil Aviation Safety Authority, Federal Court, 1 May 1997, 364/1997
Re Taxation Appeals No QT95/4 (1995) 95 ATC 152
Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321
Re Associated Products Pty Ltd and Australian Trade Commission (22 August 1997, AAT 12139)
WRITTEN REASONS FOR ORAL DECISION
8 February 2001 Senior Member J.A. Kiosoglous MBE
The Tribunal gave an oral decision at the conclusion of the hearing of this matter, and subsequently received a written request from the respondent for written reasons for that decision. Accordingly, the Tribunal provides the following written reasons for decision.
This matter was brought before the Tribunal prior to consideration of the substantive issues, in order for the Tribunal to consider whether or not it, in fact, has jurisdiction to consider the substantive application.
The substantial application before the Tribunal concerns a rehabilitation program that was put in place in respect of Mr John Phillip Peisley (the applicant) and, more particularly, whether or not the applicant had a reasonable excuse in failing to comply with the rehabilitation program for the purposes of sub-section 37(7) of the Safety, Rehabilitation and Compensation Act 1988 (the Act). The jurisdictional issue before the Tribunal turns upon the question of whether or not there is a reviewable decision before the Tribunal.
The Tribunal had before it the documents lodged pursuant to s.37 of the Administrative Appeals Tribunal Act 1975 (T1-T135), together with two exhibits, one lodged by the applicant (Exhibit A1) and one lodged by the respondent (Exhibit R1). The applicant was represented by Ms L. Gabriel and the respondent was represented by Mr B. Dubé, both of counsel.
The jurisdictional issues surrounding sub-section 37(7) of the Act have been argued before the Federal Court in two recent decisions, Trajkovski v Telstra Corporation Ltd (1998) 81 FCR 459 and Chowdhary v Bayne [1999] FCA 41. The parties in the present application were in agreement as to the interpretation of the law in this regard. Finn J sets out the circumstances in which the Tribunal is in a position to consider sub-section 37(7) of the Act at page 102 of Chowdhary, where he stated (inter alia):
"…
(iii) Where, but for the operation of s 37(7), a person would be entitled to appeal to the Tribunal for review of a decision made reviewable under the SRC Act: see SRC Act ss 60,62 and 64; the Tribunal can consider the applicability of s 37(7) to such an appeal for the purpose of coming to a conclusion as to whether it has jurisdiction in the matter: Trajkovski v Telstra Corporation Ltd. above; "It is not bound to decline jurisdiction simply because the jurisdictional question cannot be described as a 'reviewable decision" … "The Tribunal concurs with the parties before it, that the consequence of Trajkovski and Chowdhary is that the Tribunal requires a reviewable decision in addition to the determination made pursuant to sub-section 37(7) of the Act in order to be in a position to review the applicability of sub-section 37(7) as a preliminary point.
It falls to the Tribunal to determine in the present application, whether or not, as a matter of fact, there is indeed a reviewable decision before it. That determination involves consideration of a number of documents in order to establish whether or not there is a document which can be characterised as a reviewable decision.
The history of this matter is somewhat convoluted and, as conceded by the parties, there is a lack of clarity as to what they have both been attempting to do through various documents. The Tribunal does not propose to canvas the history of this matter at length for the purposes of this decision, but notes the following.
The applicant was employed as a legal clerk, and subsequently as a legal officer by the Department of Immigration and Multicultural Affairs in Canberra. On 22 February 1999, liability was accepted by the respondent in respect of a claimed neck sprain injury arising out of an incident at work on 22 January 1999 (T12). The applicant had various periods of time off work subsequent to this, and left Canberra to live and study in Sydney sometime in mid-1999. The circumstances of this leave would be a matter requiring attention in the event of a substantive hearing in this matter.
10. In any event, on 6 September 1999 the applicant signed a return to work plan (T47) which apparently included a notification of rights and obligations (although such is not contained in the documents before the Tribunal). It is agreed between the parties, and the Tribunal so finds, that this was a determination pursuant to sub-section 37(1) of the Act.
11. Difficulties ensued in instituting the return to work program however, and on 17 November 1999 a delegate of the respondent wrote to the applicant (T89) detailing several areas of concern, bringing sub-section 37(7) of the Act to the attention of the applicant and requiring him to either participate in the program or provide reasons as to his refusal or failure to do so.
12. The applicant wrote a letter to the respondent dated 25 November 1999 (T96) in which he stated (inter alia):
"Thank you for your letter dated 17 November 1999 outlining certain aspects of my "Return to Work Plan" (RTWP) with the Department of Immigration.
…
In relation to the points you have raised in my participation in the implementation of the RTWP, I have supplied further information to these points. I trust that you will consider this information in determining whether I have refused or failed to undertake the agreed rehabilitation program. I have detailed the circumstances surrounding my absence on the dates specified and I have also attached further documents supporting my case in relation to these matters.
…"
13. The applicant proceeds in that letter to detail his responses to the areas of concern. Significantly, for the purposes of the present issue under consideration, the applicant continues on page three of that letter in the following terms:
"Consideration of Determination
As stated in the information supplied above I now seek a reconsideration of your earlier determination of my participation of the RTWP.
…"
14. On 4 January 2000 a delegate of the respondent wrote to the applicant (T111) stating, (among other things):
"…
I refer to my letter to you dated 17 November 1999 (copy attached).
I confirm that on 6 September 1999 a rehabilitation program was provided for you.
…"
15. The delegate went on to discuss the issues raised in the applicant's letter dated 25 November 1999 (T96) in response to the delegate's earlier letter dated 17 November 1999 (T89) and continued:
"…
As you have not provided me with a reasonable excuse for refusing or failing to undertake the rehabilitation program, your compensation entitlements are suspended. Your rights to institute or continue proceedings under the Act are suspended except as outlined below. No compensation can be paid to you during the period of the suspension.
If you subsequently undertake a rehabilitation program your compensation entitlements will be commenced from the date that you begin the rehabilitation program.
Your rights of review of the decision that your excuse was not reasonable are outlined in the attached Notice of Rights. If you wish to have the issue of suspension of compensation reconsidered you will need to make an application to the Federal Court under section 39B of the Judiciary Act.
…
Please also note that my letter of 17 November 1999 is not a determination, therefore, you do not have the right to request a reconsideration in respect of the matters incorporated in that letter.
…"
16. The attached Notice of Rights (Exhibit A1) advised the applicant that he could "ask for reconsideration of a determination (decision) on your claim", and indicated in the event that he was not happy with the reconsideration, he could make application to the Tribunal. The applicant did in fact seek reconsideration of that part of the 4 January 2000 decision (T111) relating to suspension and such was reconsidered on 2 March 2000 (T131). t is now asserted by Mr Dubé that such reconsideration was in fact performed in error by the respondent.
17. The essential question before the Tribunal is whether or not the letter of 4 January 2000 (T111) can be characterised as a reconsideration of the determination of 6 September 1999 (T47) which resulted in the institution of the specified rehabilitation program. Mr Dubé submitted to the Tribunal that the letter of 4 January 2000 (T111) is only concerned with the issue of suspension and further argues that the applicant never in fact sought reconsideration of the rehabilitation program, characterising the request in the applicant's letter dated 25 November 1999 (T96) as a response to the letter sent to him on 17 November 1999 (T89). Ms Gabriel submitted that the applicant's letter of 25 November 1999 (T96) can be characterised as a request for reconsideration of the return to work program, and that the letter of 4 January 2000 (T111) is confusing and open to several interpretations. She further submitted that the applicant was clearly not happy with the return to work program and now seeks to have that matter looked at by the Tribunal.
18. As the Tribunal noted at the outset, this matter is certainly lacking in clarity and suffers from the fact that both the respondent and applicant have laboured under several misapprehensions as to how the law is to be applied and interpreted.
19. In matters of construction, there is an expectation that this Tribunal does not get bogged down in legal technicalities. There is further an expectation that in administrative proceedings, procedural fairness will be observed and afforded both parties. It is with these paramount considerations in mind that the Tribunal turns to the characterisation of the documents before it. It goes without saying however, that the Tribunal is to proceed on an assessment of fact, not according to assumption of artificial facts (as noted by Merkel J in Alaa Saraya v Civil Aviation Safety Authority, Federal Court, 21 May 1997, 364/1997 at paragraph 22).
20. Whilst the bulk of the applicant's letter dated 25 November 1999 (T96) was in response to the delegate's letter dated 17 November 1999 (T89), it is significant to note that the applicant refers to that letter of 17 November 1999 (T89) as addressing "certain aspects" of the return to work program. As well as addressing the concerns of the delegate, as raised in the letter dated 17 November 1999 (T89), the applicant also addresses his concern as to the "organisation of a suitable and safe work station to work from" noting "to date I have not been provided with the correct ergonomic settings for a chair or a work station". In the Tribunal's opinion, these complaints fall outside the scope of the 17 November 1999 letter (T89), and are addressed more particularly to concerns with the rehabilitation program. It is in this light that the seeking of a reconsideration of the earlier determination of participation in the return to work program must be considered. Indeed the heading "Consideration of Determination" must be taken to refer to the determination which instituted the return to work program, for as at 25 November 1999 there was no determination in respect of sub-section 37(7), only the warning letter of 17 November 1999 (T89) which required reasons from the applicant or his return to the rehabilitation program.
21. The Tribunal considers that in the above context, by his letter dated 25 November 1999 (T96), the applicant sought reconsideration of the determination dated 6 September 1999 (T47) which resulted in the instigation of the rehabilitation program and the Tribunal so finds as a matter of fact. In this regard, it is unrealistic to expect an applicant to specify the section of the Act under which they seek review, even if the applicant is legally qualified. Procedural fairness dictates that in such administrative proceedings, such a technicality should not act as a prohibition to seeking review. The words "I now seek a reconsideration of your earlier determination of my participation of the RTWP" are such that it is reasonable in the circumstances to construe such a request as one made pursuant to section 38 of the Act.
22. The difficulty for the applicant is that such a request was made outside of the time required by sub-paragraph 38(3)(b) of the Act. One would anticipate therefore, that any reconsideration decision would canvas the issue of extension of time. It is significant that the letter dated 4 January 2000 (T111) does not address the issue of extension of time. In the Tribunal's opinion, the content of that letter is clearly directed at the issue of whether or not the applicant had a reasonable excuse for failing to undertake the rehabilitation. This is clear from the discussion in the letter of the reasons that the applicant had provided in his letter dated 25 November 1999 (T96). The letter dated 4 January 2000 (T111) does not consider section 38 in any shape or form, and does not provide any reasons that could be said, in the Tribunal's assessment, to relate to the issue of the rehabilitation program itself. Whilst the Notice of Rights (Exhibit A1) that was attached to the letter erroneously informed the applicant as to his rights of appeal, the inclusion of the Notice of Rights was clearly not done with the intention that it should indicate that a reconsideration decision had been made on the rehabilitation program. Rather, the inclusion of the Notice of Rights resulted from error on the part of the respondent. The import of that 4 January 2000 letter (T111) is made particularly clear by virtue of the sentence in the fourth to last paragraph, which identified the nature of the decision being conveyed by the letter:
"Your rights of review of the decision that your excuse was not reasonable are outlined in the attached Notice of Rights."
23. The Tribunal concludes that, on its assessment of the letter dated 4 January 2000 (T111), it cannot be said that that letter constitutes a reconsideration decision in response to the applicant's request of 25 November 1999 (T96) and so finds. As noted in Alaa Saraya the Tribunal must not proceed on assumption, and too many assumptions as to the meaning of the letter dated 4 January 2000 (T111) would need to be made in order for it to be characterised as a reconsideration decision in relation to the rehabilitation program.
24. This means that, as at the time of the suspension of the applicant's compensation entitlements on 4 January 2000, no reconsideration decision had been made in relation to the applicant's rehabilitation program. As a matter of procedural fairness, one might expect that such a reconsideration might occur prior to the implementation of a sub-section 37(7) suspension, given that there is certainly some form of relationship between the two issues. On the other hand, there is a separation in so far as the Act is concerned between the operation of sub-section 37(7) and reconsiderations occurring pursuant to section 38 or indeed under sections 60 and 62. On its reading of the Act, the Tribunal finds there is no provision which would require the respondent to make a reconsideration decision prior to the enactment of sub-section 37(7). Sub-section 37(7) simply operates in the event of a failure or refusal to undertake a rehabilitation program without reasonable excuse. As a matter of procedure therefore, all that the sub-section would require is for the person to be given an opportunity to give reasons that may constitute a reasonable excuse, and in the event that such reasons are deemed unreasonable, the sub-section comes into being.
25. On the evidence before the Tribunal however, there is no reconsideration decision in relation to the rehabilitation program. It seems somewhat unfair to the applicant that such a decision was not made prior to the suspension of his entitlements on 4 January 2000 as per his request for reconsideration. The Tribunal has taken the opportunity to consider the issue of failure to make a decision, but concludes, however, that this is of no assistance to the applicant in the present circumstances. This issue was considered by Deputy President Forgie in Re Taxation Appeals No QT95/4 (1995) 95 ATC 152, wherein it was noted by the Deputy President that the Tribunal must consider whether or not the particular Act in question makes provision for failure to make a decision to be regarded itself as a "decision". The Deputy President stated (among other things) in paragraph 40:
"… It would seem to follow from sub-section 25(5) of the AAT Act, that it is not contemplated that the Tribunal will have power to review a refusal to make a decision unless specific time limits are imposed for the making of a decision and sub-section 25(5) comes into operation or unless specific provision is made in the specific enactment conferring jurisdiction. …"
26. That decision also considered the nature and meaning of the word "decision", citing Mason CJ in Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321, and this Tribunal has been mindful of those considerations in forming its reasons herein.
27. In Re Associated Products Pty Ltd and Australian Trade Commission (22 August 1997, AAT 12139) Senior Member Allen applied the reasoning of Deputy President Forgie in relation to the Export Market Development Grants Act 1974, and the particular provision of that Act bear some resemblance to the provisions concerning reconsideration in the Safety, Rehabilitation and Compensation Act 1988. On its assessment of the Act, the Tribunal cannot find any provision by virtue of which the failure to make a decision in the present circumstances could be said to constitute a reviewable decision and the Tribunal so finds.
28. In these circumstances, as at the time of suspension of the applicant's entitlements on 4 January 2000, there was no reviewable decision. Accordingly, in the absence of such a reviewable decision, the Tribunal lacks jurisdiction to consider the threshold question of sub-section 37(7) of the Act.
29. The Tribunal must therefore dismiss the application currently before it for want of jurisdiction.
30. In conclusion the Tribunal would note its concern that the applicant be left with the costs of his application to this Tribunal to date. However innocent it may have been, he received erroneous advice from the respondent as to his appeal rights. Notwithstanding that there was legitimately an argument before the Tribunal as to the characterisation of the decision dated 4 January 2000, there is obviously an issue which needs to be addressed by the officers of the respondent as to the provision of appeal rights information. Compounding this, is the fact that the applicant never received a reconsideration of the rehabilitation program as requested in his letter dated 25 November 1999. It is not within the bounds of the Tribunal to consider such issues however, and for present purposes, it is sufficient to note that the Tribunal has no jurisdiction to review the matter of the substantive application.
I certify that the 30 preceding paragraphs are a true copy of the written reasons for the oral decision herein of Senior Member J.A. Kiosoglous MBE
Signed: .....................................................................................
Personal AssistantDate/s of Hearing 8 February 2001
Date of Decision 8 February 2001
Counsel for the Applicant Ms L. Gabriel
Solicitor for the Applicant Alliance Legal
Counsel for the Respondent Mr B. Dubé
Solicitor for the Respondent Blake Dawson Waldron
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