Rose and Comcare

CATCHWORDS – COMPENSATION – jurisdiction – two reviewable decisions – Tribunal already found claim for compensation made in time - whether merits of claim for compensation reviewable – effect of reviewable decision revoking a determination affirmed by earlier reviewable decision – whether Comcare may review a reviewable decision – whether earlier reviewable decision has any ongoing application after revocation of determination – no further jurisdiction.

Administrative Appeals Tribunal Act 1975 ss. 37 and 43AA
Compensation (Commonwealth Government Employees) Act 1971 s. 54
Commonwealth Employees’ Compensation Act 1930 s. 16
Commonwealth Workmen’s Compensation Act 1912
Social Services Act 1947 s. 24A
Safety, Rehabilitation and Compensation Act 1988 ss. 4, 14, 15-22, 23, 25, 27, 29, 30, 31, 33, 53, 54, 60, 61, 62, 64 and 124

Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321

Lees v Comcare (1999) 29 AAR 350; 56 ALD 84

Minister for Immigration and Multicultural Affairs v Bhardwaj (2002) 209 CLR 597

Moggach v Comcare (AAT 10611, 19 December 1995)
Re Bloomfield and Sub-Collector of Customs (ACT) (1981) 4 ALD 204

Re Gee and Director General of Social Services (1981) 3 ALD 132

Re Lockwood and McMurray (party joined) and Commissioner of Superannuation (1990) 22 ALD 57
Re Rebeiro and Comcare (1996) 44 ALD 632

Re Sarina and Secretary, Department of Social Security (1988) 14 ALD 437
Swartz v The Commonwealth of Australia (1959) 102 CLR 340

DECISION AND REASONS FOR DECISION [2005] AATA 349

ADMINISTRATIVE APPEALS TRIBUNAL     )
  )          S2001/367
GENERAL ADMINISTRATIVE DIVISION     )          S2002/83

Re ALFRED ROSE

Applicant

AndCOMCARE

Respondent

DECISION

Tribunal: Deputy President S A Forgie

Date: 20 April 2005

Place: Adelaide

Decision:The Tribunal:

1.decides that the Tribunal does not have jurisdiction to consider further the respondent’s reviewable decisions dated 6 September 2001 and 4 March 2002 or the determinations dated 7 June 2001 and 4 March 2002; and
2.directs that a corrigendum be issued in respect of the decision and reasons for decision given in Rose v Comcare [2003] AATA 1286 deleting the words “7 June 2001” from the decision and from paragraph 62 and substituting for them the words “4 March 2002”.
S A FORGIE
Deputy President

REASONS FOR DECISION

Mr Rose grew up in Kalgoorlie but left in 1952 when he was 15 years of age to join the Commonwealth Railways[1]. He held various positions connected with the service of food and drink. In all, he spent twelve years as a Drinks Steward or Drinks Waiter before becoming, in 1969 or 1970, the Senior Waiter in charge of a Dining Car. In that position, he was responsible for the whole service including the alcohol service on a Dining Car. He was suspended from duty on 12 September 1986 for consuming alcohol on the previous day and was ultimately retired on the grounds of invalidity. Mr Rose lodge a claim for compensation dated 14 November 2000 in relation to alcoholism.

[1] Now known as the Australian National Railways

Comcare made a determination on 7 June 2001 that Mr Rose was not entitled to compensation on the basis that his claim was out of time and that, in any event, it was without merit. It affirmed that decision on review in its first reviewable decision dated 6 September 2001 but decided that, while Mr Rose’s claim was without merit, his claim had been made within time. Later, Comcare made a second reviewable decision dated 4 March 2002 revoking the earlier determination and the first reviewable decision and substituting a determination that Mr Rose had made his claim out of time. Comcare did not consider the merits of the case in that determination. In a decision dated 16 December 2003[2], I set aside the determination dated 7 June 2001 and the two reviewable decisions and substituted a decision, in effect, that Mr Rose’s claim was not out of time. I must now decide whether the Tribunal has jurisdiction to consider the merits of Mr Rose’s claim or whether it must go back to Comcare to make a determination and so start the process afresh. I have decided that the Tribunal has no further jurisdiction to consider Comcare’s two reviewable decisions or the remaining operative determination substituted by the second. Mr Rose must go back to Comcare for a further determination on the merits of his claim.

[2] Decision [2003] AATA 1286

THE ISSUES

The issue in this case is whether Comcare’s determination and first reviewable decision have any ongoing application since I gave my decision on 16 December 2003. If they do, there is a second issue: whether the application to the Tribunal in relation to the first reviewable decision has been rendered abortive by the second reviewable decision.

BACKGROUND

On 14 November 2000, Mr Rose lodged a claim for compensation in relation to “Alcoholism compounded by my work as drink waiter Redeployment refused even when recommend by Commonwealth Doc” [3]. He said that he first noticed his illness in 1979 and that it was Dr Stewart who first treated him for it.
[3] Documents lodged under s. 37 of the Administrative Appeals Tribunal Act 1975 (“T documents”) at 13

In a determination dated 7 June 2001[4], a delegate of Comcare refused Mr Rose’s claim on two bases:
Mr Rose had not provided sufficient notice of his condition to ANR as soon as practicable within the meaning of s. 53 of the Safety, Rehabilitation and Compensation Act 1988 (“1988 Act”)[5]; and
if he did provide sufficient notice, his condition was not compensable under the Compensation (Commonwealth Government Employees) Act 1971 (“1971 Act”)[6].

On 6 September 2001[7], another delegate made a reviewable decision (“first reviewable decision”) affirming that compensation was not payable to Mr Rose but:

on the basis that, while Mr Rose had provided sufficient notice of his condition[8];
his employment had not materially contributed to his disease[9].

[4] T documents at 30-35

[5] T documents at 31-32

[6] T documents at 34

[7] T documents at 74-77

[8] T documents at 74-75

[9] T documents at 75-76

On 2 October 2001, Mr Rose applied to this Tribunal for review of the reviewable decision. Before it could be resolved, Comcare reconsidered the matter on its own motion pursuant to s. 62(1)(b) of the 1988 Act. That occurred on 4 March 2002[10] when a delegate, making a further reviewable decision (‘second reviewable decision”) decided to:
revoke Comcare’s determination dated 7 June 2001 and its reviewable decision dated 6 September 2001[11]; and
substitute a determination that Mr Rose’s claim for compensation was not made within the period prescribed in s. 54(2) of the 1971 Act and, consequently, that he has no entitlement to compensation under the 1988 Act[12].
[10] Reviewable decision annexed to application in S2002/83 (“second reviewable decision”)
[11] Second reviewable decision at 5
[12] Second reviewable decision at 5

Mr Rose applied to the Tribunal for review of the second reviewable decision on 22 March 2002. On 16 December 2003, I decided to:
1.set aside the reviewable decisions dated 4 March 2002 and 6 September 2001 and the determination dated 7 June, 2001; and
2.substitute a decision that the applicant is not prevented from making a claim for compensation by reason of his failure to make a claim for compensation within the time specified in s. 16 of the Commonwealth Employees’ Compensation Act 1930 or s. 54 of the Compensation (Commonwealth Government Employees’) Act 1971.

The Commonwealth Employees’ Compensation Act 1930 (“1930 Act”) was considered as there was some question as to when Mr Rose became aware of his condition.

LEGISLATIVE BACKGROUND

Entitlement to compensation

Pursuant to s. 124(1) of the 1988 Act, that legislation applies to an injury, loss or damage suffered by an employee whether before or after 1 December 1988. That date is the date on which the 1988 Act commenced operation. A person is entitled to compensation under that legislation in respect of an injury, loss or damage suffered before 1 December 1988 if compensation was, or would have been, payable to the person in respect of the injury, loss or damage under the Commonwealth Workmen’s Compensation Act 1912 (“1912 Act”), the 1930 Act or the 1971 Act[13]. The 1930 Act came into operation on 10 November 1930 and the 1971 Act on 1 September 1971.
[13] 1988 Act, s. 124(1A) and see also s. 124(2)

Claiming compensation: 1930 Act

Section 16(1) of the 1930 Act relates to an injury and provides that:
“The Commissioner[14] shall not admit a claim for compensation under this Act for an injury … unless the claim for compensation has been made -
(a)within six months from the occurrence of the accident; or
(b)in case of death - within six months after advice of the death has been received by the claimant:
Provided always that -
(i)…
(ii)the failure to make a claim within the period above specified shall not prevent consideration of the claim by the Commissioner if he finds that the failure was occasioned by mistake, absence from Australia or other reasonable cause.”
[14] Commissioner for Employees’ Compensation

Since 4 December 1959, s. 16(4) has been added to provide, in so far as it is relevant:
“(4) In the application of this section, in accordance with section ten, and sub-section (2) of section four, of this Act, in relation to a claim in respect of an employee who is suffering from a disease or whose death has been caused by a disease –
(a)…
(b)a claim for compensation shall be deemed to have been made within the period required by sub-section (1) of this section if the claim was made –
(i)…
(ii)in any other case – within six months after the employee first became aware that he was suffering from the disease …
(c)…
(d)…”

Claiming compensation: 1971 Act

Since 1 July 1986, compensation has not been payable under the 1971 Act unless a written claim has been served on the Commissioner for Employees’ Compensation (“Commissioner”) by or on behalf of the person who claims it. That is the effect of s. 54 at the time the 1971 Act was repealed by the 1988 Act. For most of the time that Mr Rose was employed by ANR, however, s. 54 was differently worded. At that time, s. 54(1) provided that compensation was not payable under the Act unless a claim in writing for compensation had been served upon the Commissioner in the prescribed manner and within the prescribed period.

The prescribed period in Mr Rose’s case was:
“... the period of six months commencing on the day on which the claimant became aware of the contraction of the disease, of the commencement of the aggravation or acceleration of the disease or of the recurrence of the disease”[15]
[15] 1971 Act, s. 54(2)(b)

The effect of this provision was ameliorated by s. 54(6) which provides that:

“Where-
(a)a claim purporting to be a claim referred to in sub-section (1) of this section has been served on the Commissioner;
(b)the claim, as regards the time or manner of service, failed to comply with the requirements of that sub-section; and
(c)the Commonwealth would not, by reason of the failure, be prejudiced if the claim were treated as a sufficient claim, or the failure resulted from the death, or absence from Australia, of a person, from ignorance, from a mistake or from any other reasonable cause,

the claim shall be deemed to have been served in accordance with that sub-section.”

Claiming compensation: 1988 Act

Part II of the 1988 Act is concerned with compensation. Comcare is, subject to qualifications set out in that Part, liable to pay compensation:
“in accordance with this Act in respect of an injury suffered by an employee if the injury results in death, incapacity for work, or impairment”[16].

Each of the terms, “injury”, “incapacity for work” and “impairment” is defined in the 1988 Act[17]. The expression “compensation” is not defined but the extent to which Comcare is liable to pay compensation is set out in a number of sections relating to compensation for consequences such as damage or loss or property, incapacity, medical expenses and death[18]. Other sections in the 1988 Act provide for the manner in which compensation is paid[19] and yet others qualify Comcare’s liability[20].

[16] 1988 Act, s. 14(1)

[17] 1988 Act, ss. 4(1) and (9)

[18] 1988 Act, ss 15-22, 27 and 29

[19] 1988 Act, ss. 25, 30 and 31

[20] e.g. 1988 Act, ss. 14(2), 14(3), 23(1), 23(1A), 23(2), 23(3), 33

Part V of the 1988 Act is headed “Claims for compensation” and is concerned with both notice of the injury and the claim for compensation. In so far as an injury is concerned, s. 53(1) provides that:
“This Act does not apply in relation to an injury to an employee unless notice in writing of the injury is given to the relevant authority[21]:
[21] The “relevant authority” means the licensee if a person is employed by a licensee (currently Telstra or Australia Post) or Comcare: 1988 Act, s. 4(1)
(a)as soon as practicable after the employee becomes aware of the injury; or
(b)…”[22]

The requirement that notice has to be given is qualified by s. 53(3) which provides:

“Where:
(a)a notice purporting to be a notice referred to in this section has been given to the relevant authority;
(b)the notice, as regards the time of giving the notice or otherwise, failed to comply with the requirements of this section; and
(c)the relevant authority would not, by reason of the failure, be prejudiced if the notice were treated as sufficient notice, or the failure resulted from the death, or absence from Australia, of a person, from ignorance, from a mistake or from any other reasonable cause;
the notice shall be taken to have been given under this section.”

[22] 1988 Act, s. 53(2) makes a similar provision in relation to loss or damage to property.

Even if notice has been given, compensation is not payable unless a claim for compensation has first been made[23]. A claim must comply with the requirements set out in s. 54 of the 1988 Act.
[23] 1988 Act, s. 54(1)

Determining compensation

Section 61 of the 1988 Act provides that the relevant authority, in this case Comcare, must give a person claiming compensation a notice once it has made a determination. That notice must set out the terms of its determination, the reasons for the determination and a statement to the effect that, if dissatisfied with the determination, the claimant may seek review of the determination under s. 62(2) of the 1988 Act (s. 61(1)). The only exception to this requirement arises if a determination has been made:
“… under subsection 16(1) that compensation of an amount equal to the full amount of the cost of medical treatment obtained by an employee is payable if that amount of compensation is payable to a person other than the employee.”[24]
[24] 1988 Act, s. 61(2)

Reviewing the determination

An application may be made to the Tribunal for review of a reviewable decision[25]. Section 62(1) of the 1988 Act provides that:
[25] 1988 Act, s. 64(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.”

The word “determination” is defined 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.”[26]

A “reviewable decision” is defined to mean “… a decision made under subsection 38(4) or section 62”[27].

CONSIDERATION

[26] 1988 Act, s. 60(1)

[27] 1988 Act, s. 60(1)

The Tribunal’s jurisdiction

On behalf of Mr Rose, Mr Bulloch submitted that Comcare may only reconsider a primary determination; it may not review, let alone revoke, an earlier reviewable decision. The practical consequence in this case is, Mr Bulloch continued, that the second reviewable decision dated 4 March 2002 reconsidered the determination dated 7 June 2001 but not the first reviewable decision dated 6 September 2001. He referred to a passage from the Tribunal’s decision in Re Rebeiro and Comcare[28]. The Tribunal had been concerned with a determination made on 23 August 1995. That determination was to the effect that Comcare had no liability for the cost of Mrs Rebeiro’s surgery. It was followed by a reviewable decision dated 26 September 1995 affirming that determination. On 15 October 1996, Comcare made a further reviewable decision revoking, “… to the extent that Comcare has the power to revoke (and has not already validly revoked or replaced) are so revoked…”[29] and determined that Comcare was liable to pay the costs of her surgery. The Tribunal concluded:
“49. As regards the ‘reviewable decision’ of 26 September 1995 itself, however, the respondent, in the absence of express legislative authority to vary or set aside that decision and in the absence of the Tribunal’s consent to such a variation or setting aside, was not authorised to vary or set aside that ‘reviewable decision’ and make a decision in substitution therefore: see s. 26 of the AAT Act. Nor did the respondent have authority to revoke or otherwise ‘tamper with’ the ‘reviewable decision of 26 September 1995: Bloomfield[30]; Sarina[31]…
50.    Accordingly, the decision, dated 15 October 1996, of the delegate of the respondent, …was effective to revoke the ‘determination’ of 23 August 1995. However, the purported revocation of the ‘reviewable decision’ of 26 September 1995, in the decision dated 15 October 1996, was invalid and ineffectual.
51.    It follows that the jurisdiction of the Tribunal to review the ‘reviewable decision’ of 26 September 1995 remains unaffected by the delegate’s further reconsideration and decision of 15 October 1996: Re Moggach and Comcare Unreported, Decision No. 10611, 19 December 1995. Indeed, even if the decision of 15 October 1996 had been effective to revoke the ‘reviewable decision’ of 26 September 1995, the jurisdiction of the Tribunal to review that ‘reviewable decision’ would have remained unaffected, although the subject of the review (namely, the ‘reviewable decision’) would have been affected: Swartz v Commonwealth of Australia (1959) 102 CLR 340 at 345.
52.    Accordingly, the Tribunal has jurisdiction to review the ‘reviewable decision’ of 26 September 1995, notwithstanding the later reconsideration of the decision of 15 October 1996. …”
[28] Re Rebeiro and Comcare (1996) 44 ALD 632 (Senior Member Hotop and Dr Billings and Dr Staer, Members)
[29] Re Rebeiro and Comcare (1996) 44 ALD 632 at 638 at [30]
[30] Re Bloomfield and Sub-Collector of Customs (ACT) (1981) 4 ALD 204
[31] Re Sarina and Secretary, Department of Social Security (1988) 14 ALD 437

Mr Bulloch also submitted that Comcare’s second reviewable decision varied, rather than replaced, the determination of 7 June 2001. The subject matter of the first reviewable decision has not been addressed. Consequently, Mr Bulloch continued, the Tribunal’s jurisdiction to review the reviewable decision dated 7 September 2001 is unaffected.

I agree with Mr Bulloch that s. 62 of the 1988 Act gives Comcare jurisdiction to review a determination. It does not give jurisdiction to review a reviewable decision and so Comcare may not revoke a reviewable decision; only a determination[32]. Given that s. 64 gives the Tribunal jurisdiction to review a reviewable decision, it follows that a person may seek review of more than one reviewable decision if Comcare chooses to make more than one reviewable decision.
[32] See Re Rebeiro and Comcare (1996) 44 ALD 632 at 638 at 646 and also Moggach v Comcare (AAT 10611, 19 December 1995) at [13] per Deputy President Barnett

It is one thing to say that the Tribunal may review more than one reviewable decision and another to work out precisely what it is reviewing when it does so. To work that out, it is necessary to apply the principles in Re Gee and Director General of Social Services[33]. Section 24A(1) of the Social Services Act 1947 provided:
“Where the Director-General of Social Services -
(a)has, in pursuance of section 14 or 15 of the Social Services Act 1947, affirmed, varied or annulled a determination, direction, decision or approval of an officer under that Act, being a determination, direction, decision or approval that has been reviewed by a Social Security Appeals Tribunal; and
(b) has so affirmed, varied or annulled that determination, direction, decision or approval otherwise than in accordance with the decision of the Social Security Appeals Tribunal in relation to that determination, direction, decision or approval, an application may be made to the Administrative Appeals Tribunal for a review of the decision of the Director-General so as to affirm, vary or annul that determination, direction, decision or approval.”
[33] (1981) 3 ALD 132 at 141 (Davies J, President, Mr Cusack and Mr Prowse, Members)

The facts considered by the Tribunal were:
“The sequence of events relating to G was that the original decision to recover overpaid benefit was taken in February 1979 by M. This decision was varied by M in July 1979 following on an appeal to the Director-General pursuant to s.15 of the Social Services Act. G then appealed to an SSAT against the decision as varied and in September that Tribunal recommended that the appeal be upheld. This recommendation was considered but rejected in March 1980 by W. The form of rejection constituted the endorsement by W of the word ‘Approved’ on a document recommending dismissal of the appeal. Following intervention on G's behalf by a Member of Parliament the matter was again considered by W in September 1980 who varied the amount to be recovered by reducing it by $100. The decision to seek recovery of the benefit affecting G was that of W in March 1980 and no appeal could be brought to the Administrative Appeals Tribunal against this as it had not been appealed against to an SSAT.”[34]
[34] (1981) 3 ALD 132 at 132

The Tribunal said that the first step is to identify the decision which
affected Mrs Gee’s rights. It identified that decision by looking at the effect of each of the decisions taken in the process. It found that a decision had been taken affecting Mrs Gee’s rights to have a social services benefit. That decision was varied by reducing the amount of benefit that she received for the purpose of recovering
[35] (1981) 3 ALD 132 at 139
[36] (1981) 3 ALD 132 at 138-9
an overpayment. That decision as varied remained operative unless and until it was set aside by a court of law or affected by a further decision of the Director-General or on review by the Tribunal. “Clearly, if an earlier decision is set aside, that is the end of that decision, it no longer operates. …”[35], the Tribunal concluded. The Tribunal turned to the decision when it was again reconsidered and confirmed, or more properly in that context, affirmed[36].

The Tribunal then went on to consider what is meant by an “affirmation”[37]. It concluded that:
“… We see nothing in the Social Services Act from which an inference should be drawn that a decision, once reconsidered on appeal or review, ceases to have effect and is replaced by the decision taken on appeal or review affirming it. Nor is there anything in the general law which suggests that a decision ceases to have effect once it is affirmed and that its place is taken by the decision of affirmation. …”[38]

The Tribunal in Re Gee decided, therefore, that the affirmation of a decision simply leaves the original decision in place. It is that original decision which remains operative and which is under review rather than the affirmation itself.

[37] (1981) 3 ALD 132 at 139

[38] (1981) 3 ALD 132 at 139

If a decision has been varied, the result is a little different. This is a situation that was not considered by Re Gee. The root of the word “varied” is self explanatory:
“verb trans. 1 Cause to change or alter; introduce changes or alterations into (something); modify. …”[39]
[39] 2002, Shorter Oxford English Dictionary, 5^th edition

That leaves the revocation of a decision or determination. The word “revoke”, from which the word is derived, means, in so far as it is relevant:
“… 3 Annul, repeal, cancel, (a decree, promise, etc.); rescind. …
4 Retract, withdraw, recant. …
5 …
6 Take (something) back to oneself …
b Withdraw, draw back, (something). …”[40]

An entry for the word “revocation” appears in Words and Phrases Legally Defined[41]:

“‘The word revocation has two meanings - the one, if I may use such an expression, in the probate sense, that is where one instrument revokes another originally entitled to probate, - the other I will call the chancery sense, that is, where a subsequent paper renders an earlier paper inoperative wholly or partly, though both parties may have received probate’ Brenchley v. Lynn (1852) 2 Rob Eccl 441, per Dr Lushington, at p. 462.”

There are occasions on which an act of revocation may not take immediate effect but that does not affect its essential meaning of drawing something back, cancelling or repealing[42]. It has, therefore, the same meaning as “set aside” that was considered in Re Gee to mean that the decision no longer operates[43].

[40] 2002, Shorter Oxford English Dictionary, 5^th edition

[41] 2^nd edition

[42] Unless there is a contractual term to the contrary, revocation of an offer, for example, will not take effect until notice of the revocation reaches the offeree: Carter, J & Harland, D 2002 Contract Law in Australia, 4^th edn, Butterworths, Sydney at 66

[43] at [23] above

Although Re Gee was concerned with a social security benefit, its principles are equally applicable to other decisions reviewed by the Tribunal[44]. In this case, the first reviewable decision affirmed the determination of 7 June 2001. What did that mean precisely? The answer to that question depends on what precisely is the determination that was affirmed. Was it the determination that compensation was not payable to Mr Rose or was it the specific grounds on which it made the determination? The two grounds are that Mr Rose did not give notice of his injury under s. 53 of the 1988 Act and that his employment had not materially contributed to his injury. Both could be said to be determinations or decisions. Arguably, the former is not a “determination” as defined in s. 60(1) above[45] because it was not made under any of the sections specified in the definition. Arguably, the latter is not a determination because it amounts to a finding that Mr Rose’s condition does not meet all the elements of an “injury” in the definition of the term in s. 4(1) of the 1988 Act. Again, that is not a section specified in the definition of “determination”. For the reasons given below, I do not consider that either of those conclusions is correct.
[44] applied, for example, in Re Lockwood and McMurray (party joined) and Commissioner of Superannuation (1990) 22 ALD 57
[45] at [17] above

The two determinations or decisions can, and I think should, be viewed more broadly against the background of s. 14(1). That section provides:
“Subject to this Part, Comcare is liable to pay compensation in accordance with this Act in respect of an injury suffered by an employee if the injury results in death, incapacity for work, or impairment.”

The determination of 7 June 2001 considered the issue of notice of Mr Rose’s injury in the context of the 1988 Act and the issue of whether his injury arose out of or in the course of his employment in the context of the 1971 Act. Assuming for the moment that it was correct to consider the issue of notice in the context of the 1988 Act, both are directed to determining Comcare’s liability to pay compensation under s. 14 of the 1988 Act. The decision made in relation to notice under s. 53 is directed to the requirement that Comcare “… is liable to pay compensation in accordance with this Act …”. Compensation is only payable in respect of an injury as defined in s. 4(1).

It seems to me that the two determinations or decisions should be seen as determination made decisions made on the way to the final decision[46]. The final determination or decision made by Comcare on 7 June 2001 was to disallow Mr Rose’s claim under s. 14 even though no reference was made to that section and might not need to have been made. That is the ultimate decision whereas the decisions on notice and the relationship of his injury to his employment were simply decisions that were thought necessary to make to reach that decision.
[46] Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 337 per Mason CJ

It is clear that Comcare considered there to be only one determination when it made its reviewable decision on 6 September 2001. It affirmed the determination even though it also made decisions on the two issues of notice and relationship of his injury to his employment before making its reviewable decision. On the view that I have taken, the effect of Comcare’s affirming the determination was that the determination continued in operation as it had since 7 June 2001. It made no difference that Comcare had reached a different decision on one of the issues leading to its making its reviewable decision to affirm the determination.

When Comcare reviewed the determination on 4 March 2002, it first revoked the determination of 7 June 2001. That determination immediately ceased to have any effect. Its purported revocation of the reviewable decision of 6 September 2001 was of no effect but I have already dealt with that[47]. Comcare substituted a determination that Mr Rose’s claim for compensation was not made within the period prescribed in s. 54(2) of the 1971 Act and that, as a consequence, Mr Rose was not entitled to compensation under the 1988 Act. The reasons for the second reviewable decision show that the delegate understood that the 1971 Act was applicable. It was a determination or decision made under the transitional provisions of Part X of the 1988 Act and so is reviewable. It could also be reviewed as a determination or decision made under s. 14 in the sense that compensation is only payable in accordance with the 1988 Act and it cannot be in accordance if it was not payable under the earlier 1971 Act[48].
[47] see [20] above
[48] see Lees v Comcare (1999) 29 AAR 350; 56 ALD 84 at 359; 92 per Wilcox, Branson and Tamberlin JJ

The upshot is that the determination of 7 June 2001 reviewed by the reviewable decision of 6 September 2001 no longer had any effect having been revoked. Until my decision of 16 December 2003, the reviewable decision of 6 September 2001 continued to be reviewable by the Tribunal. It had jurisdiction but nothing to review[49].
[49] See a similar result in Swartz v The Commonwealth of Australia (1959) 102 CLR 340 at 345 per Dixon CJ, Kitto and Windeyer JJ

The only determination that continued to have effect was that determination substituted for the determination of 7 June 2001 when Comcare made its reviewable decision on 4 March 2002. That determination was substituted after Comcare had concluded on its review that Mr Rose had not made his claim for compensation in accordance with the 1971 Act. Therefore, it focused on Part X of the 1988 Act. That substituted determination was the operative decision that the Tribunal could review when it reviewed Comcare’s reviewable decision of 4 March 2002. I have considered whether the Tribunal has jurisdiction to review the decision to revoke the determination of 7 June 2001 and to substitute a new determination as opposed to just the new determination that has been substituted. It seems to me that the principles in Re Gee require me to look to the decision that affects a person’s rights and liabilities. That decision is the operative decision and it is the determination that is substituted for the determination of 7 June 2001. The reviewable decision to substitute one determination for the other affects Mr Rose in that there has been a change in the grounds on which he has been denied compensation to date. For all that, the decision that affects his rights and liabilities and so is the operative decision reviewable by the Tribunal is the determination substituted on 4 March 2002; it is not the second reviewable decision to decide to revoke the determination of 7 June 2001 and to substitute another. This interpretation is supported by the fact that Parliament has clearly provided that Comcare may review its determinations even when an application for review has been made to this Tribunal.

What remains for the Tribunal to review?

That brings me to what is reviewable by the Tribunal in view of my decision on 16 December 2003. I should say at the outset that I think that my decision is incorrect in so far as it revoked the determination dated 7 June 2001. That had already been revoked by Comcare itself and another substituted on 4 March 2002. I should have referred to that later determination made on 4 March 2002. I will return to this later in my reasons.

In my previous decision, I reviewed both of Comcare’s reviewable decisions. There was only one operative determination left as a result of Comcare’s second reviewable decision. That determination related only to Mr Rose’s claim being out of time. Unlike the first determination on 7 June 2001, which is no longer an operative determination, it did not consider the merits of Mr Rose’s claim. There is no substantive issue relating to whether or not Mr Rose is entitled to compensation left to me to review. I cannot review those merits without such a determination having been made and reviewed by a reviewable decision[50]. My conclusion might have been different had the determination of 7 June 2001 not been revoked but it was revoked before I heard the previous matter. As it is, there is no operative determination that is left to me that decides the substantive merits of Mr Rose’s claim for compensation. The only matter left for me to review by Comcare’s series of determinations and reviewable decisions was whether or not Mr Rose had made his claim within the time specified in the 1971 Act or even in the 1930 Act. I reviewed that question in the previous decision and there is nothing left to review.
[50] Lees v Comcare (1999) 29 AAR 350; 56 ALD 84 at 362; 94-5 per Wilcox, Branson and Tamberlin JJ

May I correct my error in my earlier decision?

As I said, I made an error in my previous decision when I revoked not only the two reviewable decisions but also the determination of 7 June 2001. I should have revoked not the determination of 7 June 2001 but the determination substituted for that determination on 4 March 2002. May I now correct my mistake?

Section 43AA of the Administrative Appeals Tribunal Act 1975 (“AAT Act”) provides that:
“(1)      If, after the making of a decision by the Tribunal, the Tribunal is satisfied that there is an obvious error in the text of the decision or in a written statement of reasons for the decision, the Tribunal may direct the Registrar to alter the text of the decision or statement in accordance with the directions of the Tribunal.
(2)       If the text of a decision or statement is so altered, the altered text is taken to be the decision of the Tribunal or the reasons for the decision, as the case may be.
(3)       Examples of obvious errors in the text of a decision or statement of reasons are where:
(a)there is an obvious clerical or typographical error in the text of the decision or statement of reasons; or
(b)there is an inconsistency between the decision and the statement of reasons.”

I consider that I may rely on s. 43AA(1) to amend my decision and my statement reasons on the basis that there is an obvious error in the text of both when taken in the context of my reasons for my previous decision. In the first paragraph of those reasons, I stated that:
“ On 2 October, 2001, the applicant, Mr Alfred Rose, applied for review of a reviewable decision of a delegate of the respondent, Comcare, dated 6 September, 2001. The delegate affirmed a determination dated 7 June, 2001 that compensation was not payable to Mr Rose under the Safety Rehabilitation and Compensation Act 1988 (“1988 Act”) in respect of alcoholism. On 4 March, 2002, a delegate of Comcare revoked both the reviewable decision and the determination. In place of the determination, she substituted a determination that Mr Rose’s claim for compensation was not made within the period prescribed in s. 54(2) of the Compensation (Commonwealth Government Employees) Act 1971 (“1971 Act”) and that, consequently, Mr Rose was not entitled to compensation under the 1988 Act. Mr Rose applied for review of that decision on 22 March, 2002.”

I referred to the second determination substituted on 4 March 2001 for the first determination made on 7 June 2001. My review was limited to the substance of the second determination for it was limited to whether Mr Rose’s claim was within time. I did not address the merits of his claim at all as had the first determination and so did not consider one of the substantive grounds on which the first determination was made. Therefore, I have decided that the error I have made is one that may be corrected using the powers given by s. 43AA and will arrange for the Registrar to issue a corrigendum.

This is not a case in which I need to resort to the principles enunciated by the High Court in Minister for Immigration and Multicultural Affairs v Bhardwaj[51] to look at the matter afresh on the basis that I have made a jurisdictional error. Unfortunately, Mr Rose must seek a determination from Comcare regarding the merits of his claim for compensation.
[51] (2002) 209 CLR 597

For the reasons I have given, I have:
1.decided that the Tribunal does not have jurisdiction to consider further the respondent’s reviewable decisions dated 6 September 2001 and 4 March 2002 or the determinations dated 7 June 2001 and 4 March 2002; and
2.direct that a corrigendum be issued in respect of the decision and reasons for decision given in Rose v Comcare [2003] AATA 1286 deleting the words “7 June 2001” from the decision and from paragraph 62 and substituting for them the words “4 March 2002”.

I certify that the forty preceding paragraphs are a true copy of the reasons for the decision herein of
Deputy President S A Forgie

Signed: …sgd. N. Willis…………...............…..

Nathaniel Wills Associate

Date of Jurisdiction Hearing         13 August 2004
Date of Decision  20 April 2005
For the Applicant  Mr D. Bulloch
Solicitor for the Applicant            Westside Community Lawyers Inc
For the Respondent  Mr S. Cole
Solicitor for the Respondent         Sparke Helmore

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established