Re Ralph and Telstra Corporation
[2006] AATA 106
•2 February 2006
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR ORAL DECISION [2005] AATA 106
ADMINISTRATIVE APPEALS TRIBUNAL )
) No S2005/292
GENERAL ADMINISTRATIVE DIVISION ) Re ANDREW HENRY RALPH Applicant
And
TELSTRA CORPORATION LIMITED
Respondent
DECISION
Tribunal Deputy President D G Jarvis Date2 February 2006
PlaceAdelaide
Decision For the reasons given orally, the tribunal decides that it has no jurisdiction to review the matter which is the subject of the applicant’s application to this tribunal, and will not proceed further with the application.
..............................................
Deputy President
CATCHWORDS
JURISDICTION – Commonwealth employees’ compensation – application to review refusal of respondent to deal with employee’s claim because of non-compliance with notice requesting information or a copy of specified documents – respondent’s claims manager lost employee’s file – tribunal has no jurisdiction to review validity of notice – tribunal has no jurisdiction to review refusal to deal with claim for compensation.
Safety, Rehabilitation and Compensation Act 1998 (Cth), ss 58, 60(1), 62 and 64
Australian Postal Corporation v Forgie & Anor (2003) 130 FCR 279
Re PG Laird and Australian Broadcasting Tribunal, President Davies J, 10 May 1979
REASONS FOR ORAL DECISION
2 February 2006 Deputy President D G Jarvis 1. On 28 October 2005 the applicant, Andrew Ralph, applied to review matters raised by a letter to him dated 17 October 2005 from Allianz Australia Insurance Limited (“Allianz”). This company manages the respondent’s workers compensation claims. The letter advised Mr Ralph that pursuant to s 58 of the Safety, Rehabilitation and Compensation Act 1988 (the “SRC Act”) Allianz was refusing to deal with his claim because he had not complied with a notice issued under that section on 13 May 2004. The letter advised that in particular he had not supplied, as requested by that notice:
“(a)ll documents that relate to your claim for compensation for injury sustained on 15 May 1996 including but not limited to claim forms, determinations, medical certificates, medical reports, radiological reports (x-ray, CT, MRI) letters, file notes, and any other correspondence.”
2. The respondent applied to strike out the application on the grounds that this tribunal has no jurisdiction to review the action of the respondent in refusing to deal with Mr Ralph’s claim.
3. When the matter first came before me on 12 January 2006, Mr Ralph told me that his claim was previously being managed by the Adelaide office of the GIO insurance company (“GIO”), that there was a change in the person who was handling his claim, and that later the handling of his claim was transferred to GIO’s Parramatta office, and that his file had apparently been lost by GIO in the course of that transfer. I understand that later still, Allianz took over the management of workers compensation claims for the respondent. Mr Ralph said that he had supplied various documents to GIO on two occasions because they had lost his file. Ms R Passmore, who appeared for the respondent, acknowledged that the file had been lost. She also said that both GIO and Allianz have attempted to locate the missing file, but without success.
4. Mr Ralph further told me that after the file had been lost, appointments were made for him to be examined by specialists nominated by Allianz. He said that he submitted to these examinations, and also provided to GIO certain financial information which GIO had requested.
5. At the hearing on 12 January 2006, Mr Ralph indicated that he had not brought with him to the tribunal hearing all of the documents relevant to his claim which he still possessed. I accordingly adjourned the hearing until today, and suggested to Mr Ralph that he should, prior to today’s adjourned hearing, liaise with Ms Passmore to see whether the remaining documents in his possession would meet the requirements of Allianz and enable the respondent to deal with his outstanding claim. I understand that this did not happen.
6. On the adjourned hearing this morning Mr Ralph brought copies of certain emails with him, and provided copies to Ms Passmore. Those emails do not provide the information sought by the notice issued under s 58 of the SRC Act.
7. I then suggested to the parties that it might be appropriate for there to be a further adjournment of the application by the respondent to strike out Mr Ralph’s applicant for want of jurisdiction. However, I was advised by Ms Passmore that she had instructions to firmly oppose a further adjournment of the proceedings, or any further involvement of the tribunal. In view of this, and as I consider that this tribunal has no jurisdiction to deal with the application, I decided not to further adjourn the application. This will not, of course, prevent Mr Ralph from approaching Ms Passmore after this hearing in order to provide her with any other information which he might have relevant to his outstanding claims.
8. I understand from what the parties have said today, that Mr Ralph made a claim for incapacity payments and that this claim was refused by the respondent on 18 March 1998. I further understand that the claim arose out of his employment by the respondent as an installation technician on a fixed contract from 22 January 1996 to 22 January 1997. I further understand that Mr Ralph sustained a lumbar strain-lumbar disc lesion for which he had claimed compensation, and that initially liability was accepted and compensation was paid.
9. According to helpful written submissions provided by the respondent’s solicitors, it appears that Mr Ralph requested a reconsideration of the determination of 18 March 1998, and that this request was made on or about 18 March 2003. That request was followed by further communications between the parties but, as I say, the relevant file cannot be located. It appears that both GIO and Allianz have taken some steps to rebuild the missing file, but the file is still incomplete.
10. According to the written submissions from the respondent’s solicitors, on 18 March 2004 Mr Ralph faxed to GIO a single page from the determination made on 18 March 1998. The submissions continue:
“It was GIO’s standard practice that the letter sent to the applicant on 18 March 1998 would have included a covering letter, the formal determination, a statement of reasons, a notice of rights to request reconsideration and potentially copies of any medical reports considered in the making of the decision.”
11. GIO then requested Mr Ralph to provide the rest of the determination correspondence issued by GIO on 18 March 1998, but because by 13 May 2004 he had not done so GIO issued the further notice under s 58 dated 13 May 2004, to which I have referred above.
12. I understand that a similar s 58 notice was forwarded to Mr Ralph dated 21 July 2004, and that by letter dated 17 October 2005 Allianz advised Mr Ralph that they were refusing to deal with his claim on the basis that he had not complied with the s 58 notice dated 13 May 2004. The letter further advised that all other components of the s 58 notice were waived, other than paragraph 1 of Schedule B. I assume that Schedule B was in the same terms as the extract from the letter referred to in paragraph 1, although this is not clear.
13. Section 58(3) of the SRC Act provides:
“Where a claimant refuses or fails, without reasonable excuse, to comply with a notice under subsection (1), the relevant authority may refuse to deal with the claim until the claimant gives the relevant authority the information, or a copy of the document, specified in the notice.”
The respondent is a “relevant authority” for the purposes of the SRC Act: Australian Postal Corporation v Forgie & Anor (2003) 130 FCR 279.
14. In Re PG Laird and Australian Broadcasting Tribunal (10 May 1979) President Davies J considered an application relating to the jurisdiction of this tribunal to review a decision of the Australian Broadcasting Tribunal. His Honour said:
“An application for review may not be made to the Administrative Appeals Tribunal unless an enactment specifically empowers the making of that application. An application so authorised is an application made under that enactment and thus an application to which s 25(4) of the Administrative Appeals Tribunal Act empowers the Administrative Appeals Tribunal to adjudge.”
It is therefore necessary to consider whether the SRC Act confers jurisdiction on this tribunal to consider the respondent’s conduct in refusing to deal with Mr Ralph’s claim (which conduct must implicitly have entailed a decision by an officer of the respondent or its manager to adopt that course of action).
15. Section 64 of the SRC Act confers jurisdiction on this tribunal to review a “reviewable decision”. That expression is defined in s 60(1) of the SRC Act to mean a decision made under s 38(4) or s 62 of the SRC Act. Section 38(4) is not relevant to the present proceedings. Section 62 of the SRC Act refers to the reconsideration of a determination made by a determining authority.
16. In the present matter there has been no reconsideration of the decision to reject the claim lodged by Mr Ralph. Further, the word “determination” in s 62(2) is defined in s 60 to mean a determination, decision or requirement made under certain specified sections of the SRC Act. Because s 58 is not one of those sections, and because there has not been any reconsideration of the decision to reject Mr Ralph’s claim, this tribunal has no jurisdiction to deal with Mr Ralph’s application.
17. As Mr Ralph is unrepresented, I think it appropriate to make the following further comments.
18. It appears from information provided to me this morning that Mr Ralph, in addition to his claim for incapacity payments, has other claims outstanding. These comprise:
(a)claims for medical expenses relating to the asserted low back injury;
(b)claims for medical expenses relating to an alleged psychological consequence of his injury;
(c)reconsideration of a determination of 8 April 2005 relating to permanent impairment; and
(d)a claim for approval for hydrotherapy (and it appears that a determination rejecting this claim was made on 16 April 2004).
19. Mr Ralph said he was uncertain whether the respondent’s refusal to deal with his claim related only to his claim for incapacity payments, or whether this refusal extended to his other outstanding claims. The above letter from Allianz includes the following paragraph:
“(Our refusing to deal with your claim) means:
·We will not reply to letters or emails;
·We will not accept telephone calls from you;
·We will not complete any outstanding reconsiderations, including those concerning your permanent impairment claim, your claim for psychological treatment, physiotherapy/hydrotherapy treatment or your claim for incapacity benefits; and
·We will not process any accounts or receipts for the cost of medical treatment.”
It appears clear from this paragraph of Allianz’s letter that the respondent’s refusal extends to all of Mr Ralph’s outstanding claims.
20. When s 58 of the SRC Act was enacted, and the respondent was thereby empowered to refuse to deal with claims because of non-compliance with a notice, it is most unlikely, having regard to provisions such as s 72 of the SRC Act, that Parliament contemplated that s 58 would be used in circumstances where a relevant authority had misplaced its file. It would seem most inappropriate that an applicant’s claim for compensation should be suspended in those circumstances, and where the employee concerned is unable to provide information sought by the relevant notice (although in the present matter I am unaware of what further documents (if any) Mr Ralph still retains in his possession).
21. A notice issued under s 58 in circumstances where a relevant authority has lost its file raises issues as to whether the notice is a valid exercise of the authority’s powers under s 58 of the SRC Act.
22. Under s 58(3), the respondent’s entitlement to refuse to deal with Mr Ralph’s claims only applies where he has refused or failed “without reasonable cause” to comply with the notice. If the notice relates to documents which Mr Ralph has previously provided, and the respondent or its claims managers have lost that information, it would seem on the face of it that the claimant could not be said to have failed “without reasonable cause” to comply with the notice, and in that event, the respondent would not be entitled to refuse to deal with the claim.
23. However, as I have explained to Mr Ralph during the hearing this morning, this tribunal has no jurisdiction to review the respondent’s action under s 58 of the SRC Act, or to decide whether the notice issued under s 58 is a valid notice. It would be necessary for Mr Ralph to take proceedings in a court to raise issues of this sort.
24. During this morning’s hearing I also made certain suggestions as to further inquiries which the respondent might make in an attempt to complete the rebuilding of its file. The further inquiries to which I referred include approaching the applicant’s general practitioner(s) to ascertain the identity of specialists who may have provided earlier medical reports in the period before the relevant file was lost, and making inquiries of a former employee of GIO who was apparently involved in dealing with the claim before the file was lost. It may be that some inquiries of these sources have already been made. This was not clear from the information provided this morning. However, these are also matters which are not within this tribunal’s jurisdiction.
25. I confirm my suggestion that Mr Ralph should do everything possible to find and provide to the respondent’s solicitors the enclosures referred to in the letter which he previously produced, being the letter advising him of the decision in March 1998 to reject his claim. This may then mean that the respondent would be able to proceed to determine the current claims.
26. No doubt the respondent, in accordance with its statutory obligations under the SRC Act, will also review the information which it has already been able to re-assemble, together with further information (if any) which Mr Ralph can provide to it, to determine whether it is then in a position to deal with any of the current outstanding claims being made by Mr Ralph. If it is not, I think that the respondent should undertake further appropriate investigations to enable it to do so. However, unlike a court, this tribunal has no jurisdiction to compel it to undertake any such investigations, or to deal with the applicant’s outstanding claims.
Decision
27. My formal decision is that I have no jurisdiction to review the matter which is the subject of the applicant’s application to this tribunal, and I will not proceed further with that application.
I certify that the 27 preceding paragraphs are a true
copy of the reasons for the decision
herein of Deputy President D G JarvisSigned: .....................................................................................
J MacIntyre AssociateDate/s of Hearing 2 February 2006
Date of Decision 2 February 2006
Counsel for the Applicant In Person
Solicitor for the Applicant -
Advocate for the Respondent Ms R Passmore
Solicitor for the Respondent Sparke Helmore
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