Rzepecki and John Holland Group Pty Ltd (Compensation)
[2015] AATA 876
•13 November 2015
Rzepecki and John Holland Group Pty Ltd (Compensation) [2015] AATA 876 (13 November 2015)
Division
GENERAL DIVISION
File Number(s)
2015/5032
Re
Andrew Rzepecki
APPLICANT
And
John Holland Group Pty Ltd
RESPONDENT
DECISION
Tribunal Senior Member J F Toohey
Date 13 November 2015 Place Sydney The Tribunal has no jurisdiction to review the respondent’s refusal under subsection 58(3) of the Safety, Rehabilitation and Compensation Act1988 to deal with Mr Rzepecki’s claim.
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Senior Member J F Toohey
CATCHWORDS – practice and procedure – jurisdiction – notice under s 58 of the Safety Rehabilitation and Compensation Act 1988 requiring the applicant to provide information – information not provided – refusal to deal with applicant’s claim – whether Tribunal has jurisdiction to review refusal to deal with claim – no jurisdiction
Legislation
Administrative Appeals Tribunal Act 1975 ss 2A, 3, 25(1)
Safety Rehabilitation and Compensation Act 1988 ss 4, 58, 38(4), 60(1), 62, 64
Cases
Ralph and Telstra Corporation Limited [2006] AATA 106
Buck and Comcare (1996) 66 FCR 359
Secondary Materials
Peter Hanks QC, Safety Rehabilitation and Compensation Act Review Report – February 2013
REASONS FOR DECISION
Senior Member J F Toohey
Background
This matter concerns a decision by the respondent to refuse to deal with a claim by Andrew Rzepecki for compensation under the Safety Rehabilitation and Compensation Act 1988 (SRC Act) on the ground that he had failed to comply with a notice under s 58 of the Act. The question in these proceedings is whether the Tribunal has jurisdiction to review that decision.
On 7 November 2011, Mr Rzepecki tripped at work and sustained an injury to his lower back. On 16 November 2011, the respondent accepted liability to compensate him for “musculoskeletal strain”.
On 29 May 2015, the respondent wrote to Mr Rzepecki advising that, following a review of information relating to his claim, further information was required “to assist in the ongoing management” of his claim. The respondent attached a document purporting to be a notice under s 58 of the SRC Act requiring Mr Rzepecki to provide information in the following terms by 26 June 2015:
(1) Review the Collection, use and disclosure of personal and health information Form.
(2)Sign and return in the reply paid envelope your completed Authorisation, Acknowledgment and Declaration Form
The notice advised that, if Mr Rzepecki refused or failed to comply, without reasonable excuse, with the notice, the respondent might refuse to deal with his claim until such time as he had.
On 5 August 2015, Mr Rzepecki’s solicitors wrote to the respondent advising that, in their view, the document referred to in the notice did not constitute a request for information pursuant to s 58 of the SRC Act. Rather, it was said, it was “merely a release form seeking concessions from our client which she (sic) is under no obligation to provide, and which are onerous, oppressive and prejudicial”. Accordingly, it was said, “any ‘refusal to deal’ with our client is similarly invalid and unlawful”.
By letter dated 12 August 2015, the respondent advised Mr Rzepecki’s solicitors that “under s 58 of the SRC Act”, it refused to deal with his claim until such time as the document requested was received.
On 24 August 2015, Mr Rzepecki’s solicitors wrote to the respondent reiterating their view that the document it had issued was not a proper s 58 notice and, consequently, the refusal to deal with his claim was itself unlawful. Further, that they regarded the respondent’s letter of 12 August 2015 as “a reconsideration” in light of which they were “now in a position to issue proceedings before the Administrative Appeals Tribunal”.
On 28 September 2015, the Tribunal received Mr Rzepecki’s application for review of the decision made on 12 August 2015 “or, in the alternative, no reviewable decision has been made, but should have been made”.
Power to request the provision of information
Section 58 of the SRC Act relevantly provides:
(1) Where a relevant authority has received a claim and is satisfied that the claimant:
(a) has information or a document that is relevant to the claim; or
(b)may obtain such information or a copy of such a document without unreasonable expense or inconvenience;
the relevant authority may, by notice in writing given to the claimant, request the claimant to give that information or a copy of that document to the relevant authority within 28 days after the date of the notice or within such further period (if any) as the relevant authority, on the request of the claimant, allows.
…
(3)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 licensee under the SRC Act and a relevant authority for the purposes of the Act: s 4.
The applicant’s submissions
For Mr Rzepecki it is contended that the respondent’s letter of 12 August 2015 constitutes a decision reviewable by the Tribunal. Alternatively, “if it does not, then there has been no reviewable decision notwithstanding a request for same, so the matter comes within the jurisdiction of the Tribunal by effect of the decision in Burt (sic) and Comcare [1993] AATA 609”.
As I understand them, the submissions for Mr Rzepecki are as follows:
i.the purported notice under subsection 58(1) was invalid because it was issued after the respondent had determined to accept liability for his claim;
ii.because the notice was invalid, the refusal to deal with his claim was unlawful;
iii.because, from the date of the refusal, Mr Rzepecki’s compensation payments have ceased, the refusal to deal with his claim was, in effect, a decision that the respondent was not presently liable to compensate him, and the Tribunal should construe it as such;
iv.a decision that a respondent is not presently liable to compensate an employee is reviewable by the Tribunal;
v.it would be too expensive and impracticable to force Mr Rzepecki to seek relief from his predicament in a higher court;
vi.it is “inconceivable” that Parliament would have intended such an outcome, particularly in light of s 2A of the Administrative Appeals Tribunal Act 1975 (AAT Act).
For the respondent it is contended that the Tribunal has no jurisdiction to review the respondent’s refusal to deal with Mr Rzepecki’s claim for compensation.
As to the first submission, reference is made to the review of the SRC Act undertaken in 2012 by Mr Peter Hanks QC. In respect of information-gathering powers, Mr Hanks states (at 9.915) that s 58 of the SRC Act can be used to gather information in relation to undetermined claims and those that are subject to requests for consideration; it only applies up to the time when liability is determined in favour of accepting a claim. For Mr Rzepecki it is submitted that, having been issued after liability had been determined in his favour, the notice is invalid.
Whether or not the use of the power in s 58 is limited in the way suggested – and the respondent submits that nothing in the SRC Act so limits it – is not to the point. Firstly, with great respect to Mr Hanks, the report does not have the force of statute. More importantly, whatever any limits on the use by a relevant authority of s 58, the provisions of the SRC Act and the AAT Act make clear that the Tribunal has no jurisdiction to review a refusal under that provision to deal with a claim.
The Tribunal’s jurisdiction to review decisions under the SRC Act
By s 25(1) of the AAT Act, 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, or 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.
An enactment means an Act, an Ordinance of a Territory other than the Northern Territory, Australian Capital Territory, Norfolk Island, or an instrument (including rules, regulations or by-laws) made under an Act or such an Ordinance, including an enactment amended by another enactment: s 3.
The Tribunal’s power is not “at large”: it may only review those decisions in relation to which jurisdiction has been conferred by an enactment.
By s 64 of the SRC Act, application may be made to the AAT for review of a reviewable decision. Reviewable decision means a decision made under ss 38(4) or 62: s 60(1). Subsection 38(4) is not relevant to these proceedings.
Section 62 concerns reconsideration of determinations, whether of the relevant authority’s own motion or on an application by a person, the Commonwealth, or a Commonwealth authority, affected by a determination.
By s 60(1), 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.
A decision by a relevant authority under s 58(3) refusing to deal with a claim is not a determination for the purposes of s 60(1). Nothing in the SRC Act confers on the Tribunal jurisdiction to review such a decision.
Subsection 58(3) in effect authorises a relevant authority to cease compensation payments where the provision is satisfied. The fact that Mr Rzepecki’s compensation payments have ceased does not permit the Tribunal to characterise that decision in some way more favourable to him so as to be able to review a decision that is not otherwise reviewable.
The Tribunal, differently constituted, came to the same conclusion in Ralph and Telstra Corporation Limited [2006] AATA 106. Deputy President Jarvis stated at [23]:
… 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 court to raise issues of this sort.
Buck and Comcare (1996) 66 FCR 359, referred to in the letter of 12 August 2015 from Mr Rzepecki’s solicitors to the respondent, was the first in a line of authority concerning s 37(2) and s 57(2), both of which are “self executing” provisions like s 58(3).
I do not think it necessary to consider individual decisions in that line of authority. The position was clearly stated by the Full Federal Court in Australian Postal Corporation v Forgie [2003] FCAFC 223 at [73]:
… there is no policy or principle to justify a distinction being drawn between s 37(7) and s 57(2), so that it would not be expected that merits review was intended in one case and not in the other. The short answer to this submission is that s 37 is specified in the s 60(1) definition of `determination' as one of the sections under which there can be a determination. Section 57, however, is not listed in this way. It is excluded from the definition in s 60(1). Accordingly, although both sections have a similar structure, the presence of one and the absence of the other from the definition of `determination' is a clear indication that the legislature intended them to be treated differently for the purposes of the availability of merits review before the Tribunal.
The same applies to a decision by a respondent under s 58(3). It is not a determination for the purposes of the SRC Act and not a matter reviewable by the AAT.
Section 2A of the AAT Act
The remaining submissions for Mr Rzepecki rely on s 2A of the AAT Act which provides:
In carrying out its functions, the Tribunal must pursue the objective of providing a mechanism of review that:
(a) is accessible; and
(b) is fair, just, economical, informal and quick; and
(c) is proportionate to the importance and complexity of the matter; and
(d) promotes public trust and confidence in the decision-making of the Tribunal.
Section 2A concerns the Tribunal’s objective and the manner in which it must provide a mechanism of review. It concerns how the Tribunal deals with the matters that it has jurisdiction to review. Nothing in s 2A confers on the Tribunal jurisdiction to deal with matters that it does not otherwise have. That is so no matter how onerous or inaccessible the proper avenue for relief may be, or even if there is no avenue at all.
Conclusion
The Tribunal has no jurisdiction to review the respondent’s refusal under subsection 58(3) of the SRC Act to deal with Mr Rzepecki’s claim.
31. I certify that the preceding 30 (thirty) paragraphs are a true copy of the reasons for the decision herein of Senior Member J F Toohey.
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AssociateDated 13 November 2015
Date(s) of hearing
22 October 2015
Representatives for the Applicant
John Mrsic, Counsel
Peter Hansen, Carroll & O’Dea Solicitors
Representatives for the Respondent
Mr Brendan Kelly, Counsel
Ms Anella Bortone, Sparke Helmore
Key Legal Topics
Areas of Law
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Administrative Law
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Statutory Interpretation
Legal Concepts
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Jurisdiction
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Statutory Construction
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Procedural Fairness
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