Shayne Abbott as administrator of the estate of J. Rae (deceased) and Australian Postal Corporation

[2012] AATA 629

[2012] AATA  629

Division	GENERAL ADMINISTRATIVE DIVISION
File Number	2007/2780
Re	Shayne Abbott as administrator of the estate of J. Rae (deceased)
APPLICANT
And	Australian Postal Corporation
RESPONDENT

DECISION

Tribunal	Ms N Bell, Senior Member
Date	20 September 2012
Place	Sydney

The Tribunal remains seized of its jurisdiction in application 2007/2780. In accordance with section 42D and the direction of the Tribunal on 28 October 2010, the application for review of 2007/2780 will proceed and the matter will be listed for a directions hearing to discuss the resumption of the hearing.

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Ms N Bell, Senior Member

CATCHWORDS

PRACTICE AND PROCEDURE - JURISDICTION - extent of remittal - parties conduct post remittal - what is the decision after a remittal

LEGISLATION

Administrative Appeals Tribunal Act 1975 (Cth), ss 26, 42D

Law and Justice Legislation Amendment Act (No.1) 1995 (Cth) (No.175 of 1995)

Safety, Rehabilitation & Compensation Act 1988 (Cth)

CASES

Brearley and Repatriation Commission (No 2) (1986) 9 ALD 291

Re Lavery v Registrar, Supreme Court of Queensland (1996) 23 AAR 52

Thiele v The Commonwealth (1990) 22 ALD 635

REASONS

Ms N Bell, Senior Member

20 September 2012

1. This interlocutory application raises the issue of whether the Tribunal has jurisdiction to proceed with application for review of 2007/2780.

2. The background to this matter is as follows:

   ·In proceedings 2007/2780, the Applicant sought review by the Tribunal of a denial of liability to pay compensation under section 19 Safety, Rehabilitation & Compensation Act 1988 (SRC Act).

   ·On 13 October 2010 the Tribunal commenced hearing proceedings 2007/2780. The hearing resumed on 14 October and then 28 October 2010.

   ·By letter to the Applicant’s solicitors dated 27 October 2010 (the day before the last hearing date), the Respondent purported to exercise powers pursuant to section 62(1) SRC Act to “determine that liability is accepted pursuant to section 19 of the …[SRC Act] for payment of partial incapacity in relation to the Applicant’s right knee. The matter will now be remitted to the Compensation Delegate to determine the amount of compensation payable.”

   ·On 28 October 2010 the Tribunal exercised its power under section 42D of the Administrative Appeals Tribunal Act 1975 (the AAT Act) to remit the proceedings to the Respondent with a direction to determine the amount of compensation. The Tribunal also made directions providing a timetable for a decision to be made and for the Applicant to subsequently advise whether he wished to continue or withdraw the proceedings.

   ·On 8 February 2011 the Respondent wrote to the Applicant’s solicitors advising its determination of the amount of section 19 compensation, and that if dissatisfied, the Applicant could seek review under section 62(2) SRC Act. Later this determination was described as a “draft” and reference was made to an unsigned file note of 8 February 2011, but no such description appears on the face of the letter.

   ·On 16 August 2011 the Applicant’s solicitors sought review of the determination of 8 February 2011.

   ·On 18 August 2011 the Respondent wrote to the Applicant’s solicitors stating the determination of 8 February 2011 was a “draft” determination.

   ·On 31 October 2011 the Respondent again wrote stating the determination of the amount of compensation pursuant to section 19 SRC Act. This appeared to determine an amount that was identical to the amount determined on 8 February 2011.

   ·On 8 November 2011 the Applicant sought a reconsideration of the determination of 31 October 2011.

   ·On 13 February 2012 the Respondent wrote to the Applicant’s solicitors advising that it was unable to find any determination of 31 October 2011, but noted the determination of 8 February 2011. Nevertheless, the Respondent affirmed the determination of 31 October 2011.

   ·On 22 March 2012 the Applicant sought review by the Tribunal of the decision of 13 February 2012.

3. The Applicant submits that the proceedings in application 2007/2780 should be resumed and are the only proceedings properly before the Tribunal.  The Respondent submits that the application 2007/2780 should be withdrawn by the Applicant and dismissed by the Tribunal and that the Applicant may then pursue his application to review the decision of 13 February 2012 concerning the amount of compensation.

4. Section 42D of the AAT Act provides relevantly:

   42D  Power to remit matters to decision‑maker for further consideration

   (1)  At any stage of a proceeding for review of a decision, the Tribunal may remit the decision to the person who made it for reconsideration of the decision by the person.

   Powers of person to whom a decision is remitted

   (2)  If a decision is so remitted to a person, the person may reconsider the decision and may:

   (a)  affirm the decision; or

   (b)  vary the decision; or

   (c)  set aside the decision and make a new decision in substitution for the decision set aside.

   Note:          For time limits, see subsection (5).

   (3)  If the person varies the decision:

   (a)  the application is taken to be an application for review of the decision as varied; and

   (b)  the person who made the application may either:

   (i)  proceed with the application for review of the decision as varied; or

   (ii)  withdraw the application.

   (4)  If the person sets the decision aside and makes a new decision in substitution for the decision set aside:

   (a)  the application is taken to be an application for review of the new decision; and

   (b)  the person who made the application may either:

   (i)  proceed with the application for review of the new decision; or

   (ii)  withdraw the application.

   …

5. The terms of the  Tribunal’s direction on 28 October 2010 were:

   1The respondent in these proceedings having made a concession in a letter dated 27 October 2010 accepting liability for payment of compensation for partial incapacity in respect of Ms Rae’s right knee pursuant to s 19 of the Safety, Rehabilitation and Compensation Act 1988 (Cth) (the SRC Act);

   2The Tribunal remits the matter to the respondent pursuant to s 42D of the Administrative Appeals Tribunal Act 1975 (Cth) to determine the amount of compensation payable pursuant to s 19 of the SRC Act and in respect of reasonable medical expenses pursuant to s 14 of the SRC Act; and

   3The Tribunal DIRECTS:

   (a)The applicant to provide relevant information to the respondent to enable it to make this determination within 14 days of this order;

   (b)The respondent to issue its determination within 42 days of the receipt of information from the applicant;

   (c)The applicant to notify the respondent and the Tribunal within 14 days of receipt of the respondent’s determination as to whether the applicant intends to withdraw its review application or proceed with that application.  In the case of the latter, the Tribunal will arrange a directions hearing to discuss the resumption of the hearing.

6. The terms of the direction are clear.  The matter was remitted to the Respondent to determine a monetary amount and to issue a determination accordingly; following that determination the Applicant was to either withdraw his current application or proceed with it; and, if the latter, the hearing was to resume and directions were to be made as to that resumption.

7. It is not clear why, in the period between the Tribunal’s direction under section 42D and the present submissions – a period of approximately 22 months – the Respondent advised the Applicant of a right to seek a reconsideration of the determination it made on remittal and the Applicant not only did so but also made an additional application to the Tribunal in respect of the purportedly reconsidered decision.

8. However, those actions by the parties do not affect the direction made by the Tribunal on 28 October 2010 pursuant to section 42D.

9. The Respondent submitted that on 27 October 2010 it carried out a reconsideration of its own motion pursuant to section 62 of the Safety, Rehabilitation and Compensation Act and accepted liability for partial incapacity. I note the terms of the Respondent’s letter to the Applicant on 27 October 2010. The Applicant has drawn my attention to section 26 of the AAT Act which provides that, subject to section 42D of the AAT Act, after an application for review of a decision has been made to the Tribunal, the decision under review may not be altered otherwise than by the Tribunal on review, unless the enactment that authorised the making of the application expressly permits the decision to be altered.

10. However, I note the provisions of section 62(1) of the SRC Act as follows:

    62  Reconsideration of determinations

    (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.[My emphasis]

11. Whether the conduct of the Respondent on 27 October 2010 amounted to an allowable reconsideration of own motion or whether it was, as characterised by the Tribunal, a concession, what was before the Tribunal on 28 October 2010 was remitted to the Respondent with directions to determine the amount of compensation payable. The resulting determination was, in the words of section 42D, the “new” decision in respect of which the application for review could then proceed.

12. The Respondent submitted that the “new decision” decision referred to in section 42D was the decision purported to have been made by the Respondent on 27 October, one day before the Tribunal’s decision to remit. This is not possible. The new decision is the decision made by the Respondent after the remittal.

13. The Respondent referred me to two decisions of the Tribunal: Brearley and Repatriation Commission (No 2) (1986) 9 ALD 291 and Thiele v The Commonwealth (1990) 22 ALD 635. Neither decision concerns the exercise by the Tribunal of the powers conferred on it by section 42D of the AAT Act. Indeed section 42D was introduced by the Law and Justice Legislation Amendment Act (No.1) 1995 (Cth) – some years after the decisions in Thiele and Brearley.

14. Section 42D anticipates review by the tribunal of a “new” decision (or a varied one). The “new” decision becomes the reviewable decision.  As the Tribunal noted in Re Lavery v Registrar, Supreme Court of Queensland (1996) 23 AAR 52, “case management issues” appear to lie at the heart of the provisions of section 42D.

15. In spite of the actions taken by the parties following the Tribunal’s direction, the Tribunal’s jurisdiction continues, in accordance with section 42D, to be grounded in the new decision, that is the decision made on 8 February 2011, being the decision made by the Respondent following remittal. If, notwithstanding its terms the 8 February 2011 letter is properly characterised as a draft, then the “new decision” within the terms of section 42D is the determination made on 31 October 2011. The two “determinations” are identical in any event.

    DECISION

16. The Tribunal remains seized of its jurisdiction in application 2007/2780. In accordance with section 42D and the direction of the Tribunal on 28 October 2010, the application for review of 2007/2780 will proceed and the matter will be listed for a directions hearing to discuss the resumption of the hearing.

I certify that the preceding 16 (sixteen) paragraphs are a true copy of the reasons for the decision herein of

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Associate

Dated  20 September 2012

Date of hearing	31 July 2012
Counsel for the Applicant	Mr M Vincent
Solicitors for the Applicant	Bale Boshev Lawyers
Counsel for the Respondent	Mr P Jones
Solicitors for the Respondent	Australian Postal Corporation - Litigation Section