Telstra Corporation Ltd v Kotevski

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FEDERAL COURT OF AUSTRALIA

Telstra Corporation Ltd v Kotevski

[2013] FCA 27

Citation: Telstra Corporation Ltd v Kotevski [2013] FCA 27
Parties: TELSTRA CORPORATION LIMITED v DAVID KOTEVSKI and ADMINISTRATIVE APPEALS TRIBUNAL
File number: NSD 499 of 2012
Judge: RARES J
Date of judgment: 25 January 2013
Catchwords:

ADMINISTRATIVE LAW – appeal from decision of Administrative Appeals Tribunal finding that it had jurisdiction to determine claim for compensation for the cost of hearing aids, as medical expenses pursuant to s 16 of the Safety, Rehabilitation and Compensation Act 1988 (Cth) – where claimant sought compensation for permanent impairment under s 24 and for costs of hearing aids under s 16 at same time and original and reconsideration decision-makers awarded claimant compensation only for permanent impairment pursuant to s 24 of the Act, without referring to other claim under s 16 – where original and reconsideration decision-makers had claim and material relevant to claim under s 16 before them at the times of their determinations – whether decision-makers’ failures to address the s16 component of claim a “decision” under s 3(3) of the Administrative Appeals Tribunal Act 1975 (Cth)

Held: failure of original and reconsideration decision-makers to refer to s16 component of claim before them conveyed, by implication, that claim rejected as part of a final determination of all claimant’s entitlements under the Safety, Rehabilitation and Compensation Act 1988 (Cth) – implicit refusals to make determination on that component of the claim was a “decision” within the meaning of s 3(3)(a) or (g) of the Administrative Appeals Tribunal Act 1975 (Cth)

Legislation:

Administrative Appeals Tribunal Act 1975 (Cth) ss 3(3), 25, 43(1), 44
Administrative Decisions (Judicial Review) Act 1977 (Cth) s 3(2)
Commonwealth Compensation Act 1930 (Cth) s 12
Compensation (Commonwealth Government Employees) Act 1971 (Cth) s 39
Judiciary Act 1903 (Cth) s 39B
Military Rehabilitation and Compensation Act 2004 (Cth)

Ombudsman Act 1976 (Cth) s 10(1)

Safety, Rehabilitation and Compensation Act 1988 (Cth) ss 4(1), 5A(1)(b), 14, 16, 24, 27, 54, 58, 60, 61, 62, 63, 69, 108(1), 108A(1), 108C(7), 108E(a) and (b), 124
Safety Rehabilitation and Compensation and Other Legislation Amendment Act 2011   
Cases cited:

Comcare v Sassella (2001) 34 AAR 142 referred to
Corporation of the City of Enfield v Development Assessment Commission (2000) 199 CLR 135 applied
Irwin v Military Rehabilitation Commission (2009) 174 FCR 574 applied
Lees v Comcare (1999) 56 ALD 84 referred to
Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 applied
Minister for Immigration and Citizenship v SZQOY (2012) 206 FCR 25 referred to
Minister for Immigration and Multicultural Affairs v Bhardwaj (2002) 209 CLR 597 referred to
Plaintiff S157/2002 v The Commonwealth (2003) 211 CLR 476 referred to
Re Durham and TNT Australia Pty Ltd (2011) 124 ALD 136 applied
Re Slater and Telstra Corporation Ltd (2007) 45 AAR 111 referred to
Semunigus v Minister for Immigration and Multicultural Affairs (2000) 96 FCR 533 referred to
Semunigus v Minister for Immigration and Multicultural Affairs [1999] FCA 422 referred to

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Details
Case
[2013] FCA 27
Decision Date

CaseChat Overview and Summary

The case of Telstra Corporation Ltd v Kotevski involved a dispute regarding the jurisdiction of the Administrative Appeals Tribunal (AAT) to determine a claim for compensation for the cost of hearing aids as medical expenses under section 16 of the Safety, Rehabilitation and Compensation Act 1988 (Cth). Mr Kotevski, an employee of Telstra, had lodged a claim for compensation for his hearing loss, which he attributed to noise exposure during his employment. The claim included compensation for permanent impairment under section 24 and for the costs of hearing aids under section 16 of the Act. The original and reconsideration decision-makers awarded compensation only for the permanent impairment without addressing the claim for hearing aid costs.

The primary legal issue before the court was whether the failure of the original and reconsideration decision-makers to address the section 16 component of Mr Kotevski's claim constituted a "decision" within the meaning of section 3(3) of the Administrative Appeals Tribunal Act 1975 (Cth). The court had to determine whether these implicit refusals to make a determination on the hearing aid cost component of the claim constituted a decision that the AAT could review.

The court held that the failure of the original and reconsideration decision-makers to refer to the section 16 component of Mr Kotevski's claim conveyed, by implication, that the claim was rejected as part of the final determination of all his entitlements under the Safety, Rehabilitation and Compensation Act 1988 (Cth). The implicit refusals to make a determination on that component of the claim were considered a "decision" within the meaning of section 3(3)(a) or (g) of the Administrative Appeals Tribunal Act 1975 (Cth). Consequently, the AAT had jurisdiction to review this aspect of the claim.

The court dismissed the application, with Telstra agreeing to pay Mr Kotevski's costs. The court's decision clarified the scope of the AAT's jurisdiction in reviewing decisions under the Safety, Rehabilitation and Compensation Act 1988 (Cth), emphasizing the importance of addressing all components of a claim in the initial decision-making process.

Orders

Orders of the court

1. The application be dismissed.

2. By consent, the applicant pay the respondent’s costs as agreed or taxed.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

Background

Background to the litigation

No such provision was made in the SRC Act at the time Mr Kotevski applied to the Tribunal. Once an application for review of a decision had been made to the Tribunal, s 26 of the AAT Act prohibited the decision from being altered otherwise than by the Tribunal on the review unless, relevantly, the parties and the Tribunal consented to that alteration. For the purpose of reviewing a decision, the Tribunal could exercise all the powers and discretions that were conferred on the decision-maker (s 43(1)).Background Mr Kotevski worked for Telstra and its predecessors from 4 June 1970 to 22 November 2001. During his employment he suffered noise exposure from jack hammers and other equipment that Telstra accepted resulted in him having ultimately suffered a binaural hearing loss. On 2 December 2010, Mr Kotevski’s solicitors, on his behalf, lodged a claim with Telstra’s then insurer, Allianz Australia Insurance Limited. The claim was in three parts, consisting of a Comcare claim for workers compensation form, supported by a report of Dr Kenneth Howison dated 26 October 2010, together with audiology results and a quote of $5,115.00 for the supply of hearing aids dated 16 November 2010. In Dr Howison’s report, he opined that the only means of improving Mr Kotevski’s hearing loss was the use of the bilateral hearing aids and he recommended that Mr Kotevski obtain those. On 7 December 2010, Allianz responded to the claim form noting that it was unable to process the claim at that time because Mr Kotevski had not completed a hearing loss questionnaire, which the insurer enclosed with its letter. The completed questionnaire was returned by Mr Kotevski’s solicitors on 10 January 2011. Allianz also arranged for Mr Kotevski to be assessed by its own ear, nose and throat specialist, Dr Leon Gillam. Dr Gillam’s report of 12 April 2011 recommended that Mr Kotevski undergo a trial of BTE (behind the ear) bilateral digital hearing aids, which, he said, were required as a result of Mr Kotevski having suffered from noise exposure whilst employed by Telstra. He estimated the cost of those hearing aids at between $3,500 and $4,500. Dr Gillam concluded that Mr Kotevski had suffered a total binaural hearing impairment of 12.8%. On 4 May 2011, Allianz made a determination under s 14 of the SRC Act that Telstra was liable to pay compensation in respect of Mr Kotevski’s injury resulting in his hearing loss impairment. In its letter of 4 May 2011 to Mr Kotevski’s solicitors, Allianz acknowledged that it had received Mr Kotevski’s claim form, his completed questionnaire, Dr Howison’s report and Dr Gillam’s report. As noted above, both doctors had recommended that Mr Kotevski use hearing aids as the means of enabling him to deal with his hearing loss. The letter stated that the claims manager was satisfied based on, inter alia, the assessments of Dr Howison and Dr Gillam, that Mr Kotevski had suffered hearing loss attributable, in part, to his employment by Telstra.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Part VI of the SRC Act dealt with the reconsideration and review of determinations. Section 60(1) provided for definitions of a number of terms of Pt VI of the SRC Act. The definition of “decision” in s 60(1) provided that it had the same meaning as in, relevantly, s 3(3) of the Administrative Appeals Tribunal Act 1975 (Cth) (the AAT Act). The latter definition provided that, unless the contrary intention appeared, a reference to a decision included:“(a)making, suspending, revoking or refusing the make an order or determination …(g)doing or refusing to do any other act or thing.” Under s 60(1) of the SRC Act:“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.”Also s 60(1) provided that “reviewable decision” meant a decision under, relevantly, s 62. Importantly, ss 61-63 relevantly provided:“61 Determinations to be notified in writing(1)As soon as practicable after a determining authority makes a determination, it shall cause to be served on the claimant a notice in writing setting out:(a) the terms of the determination;(b) the reasons for the determination; and(c)a statement to the effect that the claimant may, if dissatisfied with the determination, request a reconsideration of the determination under subsection 62(2).(2)This section does not apply in relation to a determination 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.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.(2)A request to a determining authority to reconsider a determination made by it may be made by:(a) the claimant; or…(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.63 Reviewable decision to be notified in writingAs soon as practicable after a person makes a reviewable decision, the person shall cause to be served on the claimant a notice in writing setting out:(a) the terms of the decision;(b) the reasons for the decision; and(c)a statement to the effect that, subject to the Administrative Appeals Tribunal Act 1975, application may be made to the Administrative Appeals Tribunal for review of the decision to which the notice relates.”

Ratio Decidendi

Legal Principle Established

Mr Kotevski argued that, alternatively, the Tribunal had jurisdiction to review a failure of Telstra to make a decision where the circumstances warranted the conclusion that the failure amounted to a decision. Mr Kotevski submitted that neither of Telstra’s letters communicating the original and reconsideration decisions referred to or reserved for further consideration his claim for compensation for hearing aids or limited the decisions to determinations only of a claim in respect of or under ss 24 and 27. He argued that because everything necessary to make a decision in respect of the supply of hearing aids was before each decision-maker, each of them could have made a determination of his entitlement then and there. Accordingly, he contended, because neither decision-maker awarded compensation for hearing aids, in the context of Telstra’s function to determine that aspect accurately and quickly under s 108E(a) and (b) of the SRC Act, the Tribunal had jurisdiction, in the review of the reconsideration decision, to consider that aspect of his claim.Consideration The belated decision of Telstra to pay Mr Kotevski’s claim for compensation for bilateral hearing aids could not affect the jurisdiction of the Tribunal to determine that claim, if the Tribunal was already seized of it. That is because s 26 of the AAT Act, relevantly, prohibited the reconsideration decision from being altered by Telstra. On the other hand, if the Tribunal had no jurisdiction to determine that claim, Telstra’s decision will be effective to amount to a determination to compensate Mr Kotevski for the supply of the hearing aids. Thus, the issue of the Tribunal’s jurisdiction, which Telstra wishes to have determined, is not moot. It agreed to pay Mr Kotevski’s costs in any event, so that this issue might be determined. In Lees 56 ALD 84 Wilcox, Branson and Tamberlin JJ considered the decision-making scheme provided for in the SRC Act. They observed that ordinarily the claim, and the claim form, envisaged by s 54 of the SRC Act were likely to be made and provided relatively soon after an employee suffered the injury complained of (56 ALD at 91 [31]). They held that Pt VI of the SRC Act established a three tiered decision-making process consisting of the original decision, a reconsidered decision and a decision by the Tribunal that reviewed the reconsidered decision (56 ALD at 91 [32]). Their Honours identified that part of the scheme was for determinations to be made under the various sections of the SRC Act referred to in the definition of “determination” in s 60(1). They pointed out that under s 43(1) of the AAT Act, the Tribunal exercised its powers for the purpose of reviewing the reconsideration decision made under s 62 of the SRC Act. It followed that the Tribunal was authorised to exercise only those powers and discretions that would have been available to the reconsideration decision-maker and that those might not include all the powers and discretions that were available to the original decision-maker (56 ALD at 93 [39]).