Solomons and GIO Australia (for Telstra Corporation Ltd)
[2004] AATA 1020
•30 September 2004
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2004] AATA 1020
ADMINISTRATIVE APPEALS TRIBUNAL )
) No N2004/746
General Administrative Division ) Re PAUL SOLOMONS Applicant
And
GIO AUSTRALIA (for TELSTRA CORPORATION LTD)
Respondent
DECISION
Tribunal Robin Hunt, Senior Member Date30 September 2004
PlaceSydney
Decision Direction that the Tribunal has no jurisdiction to hear and determine the application. ..............................................
R. Hunt
Senior Member
CATCHWORDS
Jurisdiction – No deemed reconsideration – No time for making reconsideration specified in the enactment – No reviewable decision
Section 62 of the Safety, Rehabilitation and Compensation Act 1988
Section 29 of the Acts Interpretation Act 1901
Section 160 of the Evidence Act 1995
Administrative Appeals Tribunal Act 1975
Tilley and Comcare [2002] AATA 560
Gary Nipperess and Australian Community Pharmacy Authority (AAT 10605, 18 December 1991)
Associated Products Pty Ltd and Australian Trade Commission (AAT 12139, 22 August 1997)
Case 7/95 1995 ATC 152
REASONS FOR DECISION
30 September 2004 ADMINISTRATIVE APPEALS TRIBUNAL background
1. These reasons are the result of a directions hearing held before me on 27 July 2004 to consider whether the Administrative Appeals Tribunal (the Tribunal) had jurisdiction to hear and determine the application made in this matter dated 21 June 2004 and received by the Tribunal on 22 June 2004. By that application Mr Solomons (the Applicant), sought review of a decision of Telstra Corporation Ltd (the Respondent) not to meet medical expenses which Mr Solomons claims were incurred in connection with the case resolved in his favour by the Tribunal, decision number T0065207.
2. Mr Solomons submitted to the Tribunal that the Respondent made a deemed decision and a deemed reconsideration decision at some time between 17 September 2003 and the date of this application, 21 June 2004. He submitted that the Tribunal should find a deemed refusal of the claim and deemed reconsideration affirming the refusal decision. Mr Solomons argued this position by virtue of the passage of over 7 months since his solicitor had made requests to the Respondent for reimbursement of the medical expenses. After failure to obtain advice or response as to any decision about the medical expenses claim, Mr Solomons’ solicitor had written subsequent letters to the Respondent on several occasions seeking a decision and then reconsideration of a deemed decision. Mr Solomons contended that by a letter dated 28 April 2004, he requested the Respondent for a reconsideration of a determination and had specified a date on which he would consider a reconsideration decision made. Mr Solomons stated in the letter that having passed the period specified, he was entitled to deem that the reconsideration had been made as set out in the letter.
3. At the directions hearing, both parties were represented by their respective legal advisers. The Tribunal had before it Mr Solomon’s application to the Tribunal and copies of correspondence between the representatives. The Tribunal also heard oral submissions from both parties. The representative for the Respondent denied receiving certain vital correspondence on which Mr Solomons sought to rely in his application. The Respondent further submitted, after sighting a copy of the letter dated 28 April 2004, which was before the Tribunal, that it was incapable of converting Respondent’s delay into a reviewable decision leading to jurisdiction for review by the Tribunal.
evidence and contentions
4. Mr Solomons argued before the Tribunal that there was a presumption that the letter sent had been received unless the contrary were shown. The Tribunal ordered the parties to lodge further evidence concerning the procedures followed in their correspondence handling and allowed further submissions. On 2 August 2004, the Tribunal received the affidavit dated 30 July 2004 made by Craig Robert Stewart, a solicitor who had the conduct of the claim by Mr Solomons. On 12 August 2004, the Tribunal received the affidavit dated 10 August 2004 made by Natalie Jane Fisher, the solicitor who had the conduct of the matter for the Respondent.
5. Mr Stewart in his affidavit has detailed several letters which he had sent to the Respondent, the firm of solicitors acting for the Respondent, and to Ms Fisher concerning the present application. Copies of these letters are attached to the affidavit. Mr Stewart also refers to unsuccessful efforts to contact Ms Fisher by telephone and to the procedure followed by him and his employer in mailing letters. Mr Stewart explains that he sent all the letters through the document exchange service (DX). He makes no mention of any system or register kept in his office which records letters received and despatched or times and dates of mailing of correspondence.
6. On evidence before me Mr Stewart wrote to the Respondent on 17 September 2003 seeking reimbursement of certain medical expenses. In reply, on 27 October 2003, Ms Fisher sought clarification from the Applicant about one of the expenses. An exchange of correspondence took place and, on 2 March 2004, Mr Stewart wrote to the Respondent that, if he did not hear within 7 days about the claim, he would assume that the claim had been rejected and would request reconsideration. When Mr Stewart received no response in the specified time, he wrote again on 28 April 2004 asking the Respondent to proceed to reconsideration or that he would deem a reconsideration decision had been made if no response were received within 7 days. Copies of these letters are before the Tribunal and Mr Stewart refers to them in his affidavit.
7. Ms Fisher, in her affidavit of 10 August 2004, denies ever having received the letter of 28 April 2004. She notes that it was referred to by Mr Stewart in his letter of 9 July 2004 but that no copy was attached to the later letter. Ms Fisher also gives an account of mail handling in her office. She makes no mention of any record of receipt of mail being kept in her office. Incoming mail is sorted, handed to a partner and passed on to the appropriate solicitor.
8.The Respondent contended at the hearing that no decision and no reconsideration of a decision has ever been made in the Applicant’s matter and as the Respondent did not receive the Applicant’s letter of 28 April 2004 it was not possible to respond to the alleged claim of a deemed reconsideration having occurred.9. The Tribunal notes that Ms Fisher does not deny receiving the letter from Mr Stewart dated 2 March 2004, where he sets out that he will assume the claim has been rejected and apply for reconsideration preparatory to proceeding to the Tribunal. Her response to that letter was to request a copy of previous correspondence dated 8 December 2003. Mr Stewart duly forwarded this on 10 March 2004. Ms Fisher also acknowledges receiving that correspondence.
legislative provisions and case law
10. Section 62 of the Safety, Rehabilitation and Compensation Act 1988 (SRC Act) states that a person must first ask an authority, such as Telstra in this matter, for reconsideration of a determination before it can be deemed to have occurred. See section, in part, below:
62 (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.
(2)A request to a determining authority to reconsider a determination made by it may be made by:
(a) the claimant; or
(b) if the determination affects the Commonwealth—the Commonwealth; or
(c) if the determination affects a Commonwealth authority—that Commonwealth authority.
…
(3) A request for reconsideration of a determination shall:
(a) set out the reasons for the request; and
(b) be given to the determining authority within 30 days after the day on which the determination first came to the notice of the person making the request, or within such further period (if any) as the determining authority, either before or after the expiration of that period, allows.
(4) On receipt of a request, the determining authority shall reconsider the determination or cause the determination to be reconsidered by a person to whom its power under this section is delegated, being a person other than a person who made, or was involved in the making of, the determination.
(5) Where a person reconsiders a determination, the person may make a decision affirming or revoking the determination or varying the determination in such manner as the person thinks fit.
11. Under subsection 62(3) and (4), above, a request for reconsideration must be given to the authority and the authority must reconsider its determination after receipt of the request. It is therefore crucial that Mr Solomons demonstrate that he did make a request for a reconsideration by the Respondent and that the Respondent did receive it. In any other circumstances the SRC Act would not apply to the request and no reconsideration would be deemed to have occurred.
12. Section 29 of the Acts Interpretation Act 1901 (Interpretation Act) makes provision as to the service of documents. Subsection 29(1) provides that, where documents are to be served by post, whether the expression "serve", "give" or "send" or any other expression is used, then, unless the contrary intention appears, the service shall be deemed effected by properly addressing, prepaying and posting the document as a letter. Unless the contrary is proved, the section deems service to have been effected at the time at which it would be delivered in the ordinary course of post. Subsection 29(2) provides that the section does not affect operation of section 160 of the Evidence Act 1995 (the Evidence Act) which provides a presumption that a postal article is received on the fourth working day after being posted where it is sent by prepaid post. However, in the present situation, the letter in dispute was not sent by prepaid post but through a DX service.
13. Section 62 of the SRC Act relies on the request being “given” and in my view the appropriate method of making the request is provided by section 29 of the Acts Interpretation Act and section 160 of the Evidence Act. There is no evidence that the request was delivered personally and no presumption operates that it was delivered by prepaid post within the fourth working day after posting or in the ordinary course of post. Further, it was not sent by prepaid post. On the evidence before the Tribunal delivery through the DX service is not established as neither party has kept any record of the sending or receiving of their mail. As there is inconclusive evidence that Mr Solomons succeeded in giving the request for reconsideration to the Respondent as contained in the letter of 28 April 2004, I find that no reconsideration decision has been made. It follows that the Tribunal does not have jurisdiction as there is no reviewable decision for the Tribunal to consider. My reasoning to reach this conclusion is also supported by decisions such as, Tilley and Comcare [2002] AATA 560, Gary Nipperess and Australian Community Pharmacy Authority (AAT 10605, 18 December 1991, and Associated Products Pty Ltd and Australian Trade Commission (AAT 12139, 22 August 1997). In these cases, the Tribunal found that it had no jurisdiction where there had been a failure to make a decision. The particular terms of the enactment conferring jurisdiction must be examined together with section 25 of the Administrative Appeals Tribunal Act 1975 (AAT Act). Since no time for a reconsideration decision has been provided in section 62(4) of the SRC Act, it may be that the Ombudsman is the appropriate avenue for relief in this case. See Case 7/95 1995 ATC 152 and Associated Products above.
14. The Tribunal finds it has no jurisdiction to hear and determine this application.
I certify that the 14 preceding paragraphs are a true copy of the reasons for the decision herein of Ms Robin Hunt, Senior Member.
Signed: Z. Khan
AssociateDate/s of Hearing 27 July 2004
Date of Decision 30September 2004
Counsel for the Applicant Mr Craig Stewart
Counsel for the Respondent Ms Natalie Fisher
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