Tilley and Comcare - [2002] AATA 560

DECISION AND REASONS FOR DECISION [2002] AATA 560

ADMINISTRATIVE APPEALS TRIBUNAL        Nº V2001/1112
GENERAL ADMINISTRATIVE DIVISION
  Re:         WILLIAM TILLEY
  Applicant
  And:       COMCARE
  Respondent

DECISION

Tribunal:       M.J. Carstairs, Member
Date:             9 July 2002
Place:            Melbourne

Decision:The Tribunal decides that it does not have jurisdiction to review the application of the applicant lodged on 30 August 2001.

(sgd) M.J. Carstairs
Member
COMPENSATION - jurisdiction - whether decision – whether reviewable decision – whether decision to cease compensation payments prevented claim for permanent impairment - effect of decision refusing extension of time
Administrative Appeals Tribunal act 1975 s3(3), 25, 43(1)
Administrative Decisions (Judicial Review) Act 1977
Safety, Rehabilitation and Compensation Act 1988 ss14, 19, 24, 27, 54(1), 60(1), 61, 62, 63, 64, 68, 69(a), 70, 72
Ombudsman Act 1976 s10
Case 7/95 1995 ATC 152
Comcare Australia v Grimes and Another (1994) 33 ALD 548
Lees v Comcare and Another (1999) 56 ALD 84
Comcare v Power [1998] FCA 1783
Comcare v Sassela (2001) 34 AAR 142
Re Carson and Telstra Corporation (2001) 33 AAR 351
Re Denison-Smith and Comcare (2000) 64 ALD 180
Re Brian Young v Telstra Corporation (1993) 32 ALD 307
Re Robertson and Civil Aviation Authority [1999] AATA 608

Angelo Cipriano v Australian Broadcasting Corporation and Commission for the Safety, Rehabilitation and Compensation of Commonwealth Employees (AAT 6931, 13 May 1991)

Re Hendrikus Josephus Oudyn v Australian Postal Corporation [2002] AATA 72
Re Anderson and Telstra Corporation [2000] AATA 547

Garry Nipperess and Australian Community Pharmacy Authority (AAT 10605, 18 December 1991)

Re Parke and Repatriation Commission (1985) 2 RPD 404
Re Pigram v Comcare Australia (1995) 40 ALD 365
Re Ian Colin Nicholson and Secretary, Department of Social Security (AAT 7304, 9 September 1991)
Re Tasmanian Ferry Services Ltd and Secretary, Department of Transport and Communications (1992) 29 ALD 395
Re Quinn and Australian Postal Corporation (1992) 15 AAR 519
Associated Products Pty Ltd and Australian Trade Commission (AAT 12139, 22 August 1997)
Re Ian Nicholson and Secretary Department of Social Security 9 September 1991
Semunigus v Minister for lmmigration and Multicultural Affairs (2000) 60 ALD 383
Semunigus v Minister for lmmigration and Multicultural Affairs [1999] FCA 422
William Watts and Comcare [2002] AATA 383
Woodbridge v Comcare (1994) 20 AAR 196

REASONS FOR DECISION

9 July 2002 M.J. Carstairs, Member

This is a hearing of jurisdiction in relation to an application by William Tilley (the applicant). The applicant seeks review by this Tribunal on the basis that Comcare has made a determination and a reviewable decision that allows the Tribunal to review the question of permanent impairment.
At the hearing Mr I Fehring of counsel, instructed by Nevin Lenne & Gross, represented the applicant. Mr J Lenczner of counsel, instructed by Blake Dawson Waldron, represented the respondent.
The Tribunal had before it the material (the T documents) prepared pursuant to s37 of the Administrative Appeals Tribunal Act1975 (the AAT Act). The applicant and respondent lodged Statements of Contentions and Lists of Authorities, dated 7 November 2001 and 4 January 2002 respectively. After the hearing the respondent conducted a search of departmental files for any additional documents relating to the claim. After locating an exchange of e-mail dated 29 March 2001, between Stuart Marris of the Department of Veterans' Affairs and Con Lolis of the respondent's solicitors' firm, Phillips Fox, the parties lodged further submissions on 2 April 2002 and 19 April2002.
BACKGROUND
The applicant is aged thirty-nine. He was injured in a motor cycle accident on 18 June 1986 while in the Australian Army. He sustained an injury to the left inguino-scrotal area and was diagnosed at the time as having a large left scrotal haematoma.
On 15 May 1994 the applicant was discharged from the army. Immediately prior to discharge, on 11 May 1994, the applicant lodged a compensation claim for the injury sustained in 1986. A Comcare delegate accepted liability on 18 June 1994 for large left scrotal haematoma. While the letter advising of the decision (T8) stated that a payment of a lump sum to the applicant was possible while he was still serving, when he telephoned subsequently, he was told that there was no lump sum available, as his case fell under the "old Act".This was a reference to the fact that the injury had been sustained in 1986 when earlier legislation, the Compensation (Commonwealth Government Employees) Act 1971, did not provide for lump sums. After the telephone call, it was noted on the respondent's file that the effects of the scrotal haematoma would have ceased. A Comcare delegate then advised the applicant on 14 September 1994 (T11) that while liability had been admitted in the decision dated 18 June 1994, the condition was considered temporary and was considered to have ceased by 31 December 1986.
On 7 June 1999 the applicant lodged a request for reconsideration of the decision dated 14 September 1994. This request was made outside the time limit of 30 days allowed under the Safety Rehabilitation and Compensation Act 1988 (the Act). His solicitors stated that the applicant had not appreciated that he needed to request reconsideration within the time limit. The delegate said that the applicant had chosen to rest on his rights and so refused the request for extension of time (T14 of the T documents).
The applicant sought review of that refusal with this Tribunal on 30 June 1999 (File V99/706). Additionally, on 11 February 2000, the applicant lodged a claim for lump sum compensation for permanent impairment (T17). The claim was made in the alternative under the Act. The letter of claim stated that it was the applicant's intention to ask that the Tribunal hearing the application for extension of time deal also with the claim for permanent impairment. However, the respondent did not agree to that course, and on 3 November 2000 Miss E.A. Shanahan (Member), made a decision refusing the extension of time in regard to the 1994 decision.
No written decision on the question of permanent impairment appears in the documents. However, a letter from the respondent's solicitors dated 14 March 2001 stated as follows:
…I have advised the Department that your client's permanent impairment claim should be rejected. I have done so on the basis of the Tribunal decision of Member Shanahan dated 3 November 2000. It is my view that this decision effectively means that the termination of 14 September 1994 would cease liability.
It is my expectation that a determination will be served upon you within the next fourteen days.
On 15 August 2001 there was a telephone discussion between the applicant's and respondent's solicitors, during which, the applicant says, the position taken by the respondent was that no decision would be made. On 22 August 2001 the applicant's solicitors wrote to the Director, Military Compensation and Rehabilitation, Department of Veterans' Affairs, stating that the decision of Member Shanahan did not prevent the applicant proceeding with a claim for permanent impairment, and asking that a reviewable decision be made within seven days.
After seven days, the applicant lodged an application with the Tribunal. The application stated that a reviewable decision was made on 29 August 2001 by Paul Ontong, Military Compensation and Rehabilitation Service, Department of Defence and was said to be evidenced by the failure to reply to a request for reconsideration made on 22 August 2001.
CONSIDERATION OF ISSUES
The primary issue for the Tribunal was the question of whether a reviewable decision had been made. The parties submitted that the answer to that question turned several other issues. These included the effect of the 14 September 1994 decision (T11) that the applicant's condition was temporary, its effects having ceased by the end of December 1986; and the effect of Member Shanahan's decision to refuse to extend time in regard to the decision at of 14 September 1994.
The hearing proceeded by way of oral and written submissions. In regard to whether a decision had been made, Mr Fehring initially submitted that the telephone conversation on 15 August 2001 between the parties' solicitors was the original decision. He submitted that the telephone call was a determination pursuant to s60 of the Act susceptible to a request for review pursuant to s62(2) of the Act. On 22 August 2001 the applicant requested a reconsideration of the original decision and requested that a response be made within 7 days (T18). Relying on the definitions of decision and determination in s60(1) of the Act Mr Fehring submitted that the respondent's failure to respond within 7 days or at all, meant that a reviewable decision could be inferred. This meant that an application to this Tribunal could be made under s64 of the Act.
Mr Fehring submitted that s3(3) of the AAT Act defines "a decision" to include refusing to make an order or determination. He submitted that the respondent was refusing to make an order or determination because of the respondent's held belief about the effect of certain Federal Court and Tribunal decisions. The respondent was not permitted to refuse to make a decision, he said, as it has obligations under the Act to respond to claims.
On the question of what decisions, if any, had been made, the further file searches conducted by the respondent after the hearing produced an e-mail exchange between Stuart Marris, Department of Veterans' Affairs, and Con Lolis, solicitor, Phillips Fox (the respondent's solicitors) on 29 March 2001. The correspondence read :
As per the Department's policy, we do not think it is appropriate to issue a Determination (or even consider) the Pl issue, in the absence of liability for a compensable condition. Accordingly, we do not propose to issue the Determination at this time.
Our position has been summarised as follows:
The only issue in dispute in the present proceedings is primary liability, as confirmed by the statement of issues. The task of the Tribunal in that matter will involve the investigation of facts surrounding the injury and the application of legal principals to those facts as found.
In these circumstances it would be premature and indeed inappropriate to consider the applicant's claim for permanent impairment at this stage, particularly in light of the decisions in Lees and Denison-Smith. Section 24 is not to be considered as a second source of liability. We consider that it is an artificial exercise to assess liability for permanent impairment in a situation where primary liability has been declined. We are also disinclined to simply deny liability for permanent impairment on the basis that there exists no primary liability. This Ultimately involves no consideration of the merits of the applicant's claim.
If liability is determined in the applicant's favour, then the matter ought to be remitted to the Department for consideration of all heads of liability available to the applicant flowing from that decision, including permanent impairment. This will allow time for a more contemplative assessment of entitlement in a context which is less onerous cost wise (to the Department and to the applicant) than in the context of litigation. If permanent impairment is explored for the first time in any real sense at Tribunal level, this will involve unnecessary inflation of legal costs for all involved.
If, on the other hand, the applicant is unsuccessful on the primary question of liability, and the permanent impairment claim had been joined to the present application, there will have been considerable cost and effort thrown away in obtaining evidence in support of a permanent impairment claim which has no logical prospect of success.
Accordingly, we do not intend to consider the permanent impairment claim until the Tribunal has delivered its decision, or the matter has otherwise resolved in a manner which would be consistent with the existence of a permanent impairment.
In written submissions the applicant said that the e-mail communication reflected a clear and unequivocal decision by the respondent to refuse to make a decision. He submitted that the e-mail exchange represented the translation of a concluded position into an overt act and was consistent with the analysis in Comcare v Sassella (2001) 34 AAR 142. There Finn J reiterated his view of what constitutes a decision as set out in Semunigus v Minister for lmmigration and Multicultural Affairs [1999] FCA 422 (14 April 1999) and approved on appeal in Semunigus v Minister for Immigration and Multicultural Affairs (2000) 96 FCR 533. In Semunigus (1999 case) Finn J said:
… It is not in any event profitable to attempt to define in any exhaustive way when it properly is to be said that a decision is made. Context can have real bearing on the question as this case illustrates.
19 For present purposes I am prepared to hold that the making of a decision involves both reaching a conclusion on a matter as a result of a mental process having been engaged in and translating that conclusion into a decision by an overt act of such character as, in the circumstances, gives finality to the conclusion - as precludes the conclusion being revisited by the decision-maker at his or her option before the decision is to be regarded as final.

The applicant submitted that the e-mail exchange was action on behalf of the respondent and the respondent's agent, which amounted to a refusal to act with respect to the applicant's claim. On this submission, the decision was made on 29 March 2001.

In making the above submissions the applicant relied on Re BrianYoung v Telstra Corporation (1993) 32 ALD 307; Angelo Cipriano v Australian Broadcasting Corporation and Commission for the Safety, Rehabilitation and Compensation of Commonwealth Employees (AAT 6931, 13 May 1991); Woodbridge v Comcare (1994) 20 AAR 196; and Re Pigram v Comcare Australia (1995) 40 ALD 365.
Mr Fehring submitted that the decision of Member Shanahan refusing to extend time for review of the September 1994 decision did not preclude the making of a claim for lump sum compensation for permanent impairment. He submitted that the applicant had never needed to have that decision reviewed in order to proceed with a claim for permanent impairment and the application made to the tribunal for an extension of time had been unnecessary. The submissions by both parties on the effect of refusal to extend time in regard to the 14 September 1994 decision was related to submissions made about the effect of the Federal Court decision, Lees v Comcare and Another (1999) 56 ALD 84 (Lees case).
Mr Fehring said that a line of Tribunal authorities (including Re Denison-Smith and Comcare (2000) 64 ALD 180 and Re Anderson and Telstra Corporation [2000] AATA 547) supported the view pressed by the respondent in regard to the applicant's claim for permanent impairment. On that view, Lees' case was authority for the proposition that making a decision to "cease effects", brings to an end an applicant's rights to have a subsequent claim for impairment examined on the merits unless the applicant has successfully challenged the decision to "cease effects". However, Mr Fehring submitted that other decisions took a different approach to the interpretation of Lees case and were to be preferred. These included ReCarson and Telstra Corporation (2001) 33 AAR 351 and in Re Hendrikus JosephusOudyn and Australian Postal Corporation [2002] AATA 72. The applicant submitted that Oudyn was similar to the applicant's case as reliance was placed on the existence of a decision that there were no ongoing effects of an injury in order to refuse to make a decision on permanent impairment. In Oudyn the Tribunal decided that it had jurisdiction to proceed to review the permanent impairment claim. It should be noted that Oudyn is on appeal to the Federal Court.
Mr Fehring submitted that Carson correctly decides that where liability is accepted for an injury or disease, it is thereafter possible for a person to reopen issues relating to that injury or disease - no matter how many years later they arise. Relying on Carson, he submitted that unless the respondent had made a subsequent decision that no injury had occurred to the applicant in 1986, or that if it occurred it was not related to work, then it matters not under the legislative scheme that there has been a decision to terminate incapacity payments. Mr Fehring submitted that the determination in 1994 that the effects of the injury in 1986 had ceased was not a denial that the applicant had had an injury, and because it was not of that character, the applicant may come back at any time seeking other benefits under the Act.
On the question of a decision, Mr Leczner submitted that the telephone conversation on 15 August 2001 was not a primary determination because it was not made under the Act. He also placed reliance on Comcare v Sassella and Semunigus, for the proposition that making a decision involves reaching a conclusion after a mental process, and translating that conclusion into an overt act of such character as gives finality. He submitted that such was not the case here. On his submission, neither the telephone communication merely between solicitors on 15 August 2001 nor the e-mail communication on 29 March 2001 had that character.
Mr Lenczner submitted that even if either was to be viewed as a determination or a decision under the Act, no reviewable decision had been made in regard to them (Lees case). He submitted that Lees case was authority for the point that s24(1) of the Act was not a second source of liability to pay compensation (p95 of Lee's case), the liability being created by s.14 of the Act.
Mr Lenczner submitted that the decision dated 14 September 1994 determined that from 31 December 1986 the applicant no longer suffered injury. As that determination had not been set aside, varied or revoked, and time was not extended for review of it, Member Shanahan's decision effectively put it at an end. He submitted, relying on Re Quinn and Australian Postal Corporation (1992) 15 AAR 519 that the applicant was precluded from re-arguing continuing liability, and relying on Lees case that the applicant was precluded from claiming permanent impairment.
In written submissions on the e-mail communication in March 2001 the respondent stated that Mr Marris did not refuse to make an order or determination under s.24 of the Act. Section 60(1) of the Act defines "determination" to mean a determination, decision or requirement, and, the submission continued, this would be made under s. 24 of the Act. To make a decision under s. 24 of the Act, the respondent would investigate the merits of the applicant's claim and to do so on the hypothetical basis of a liability that had in fact cease had no justification. It was submitted that as Lees case decides that s24 of the Act does not provide an alternate basis of liability to that provided in s14 of the Act, Mr Marris had been correct to say that no issue existed under s24 of the Act unless and until a decision was made as to primary liability.
Reference was made in submissions to Lees case for the distinction referred to by the Court between the three tiers of primary, reconsideration and external review. The Court said at para 39:
…
The AAT will not be authorised on review of a reviewable decision to exercise any powers and discretions which would not have been available to the determining authority at the second tier decision-making stage, albeit that such powers and discretions may have been available to the determining authority at the first tier decision-making stage.
In written submissions it was stated that Oudyn was wrongly decided as the Tribunal had failed to consider the question of the need for an extension of time and it was distinguishable as there was not, as in the applicant's case, a Tribunal decision foreclosing liability by refusing to extend time.

Mr Lenczner submitted that if the decision in Oudyn were right then there would be no point in the legislative scheme in the Act in Part Vl of the Act providing for a scheme of review within time limits. On the approach in Oudyn irrespective of when a decision is made or when a reviewable decision is made, a fresh application might give rise to the requirement for a reconsideration and review of other issues raised and rejected by a prior decision of a delegate. He submitted that this would defy the legislative scheme. Mr Lenczner in oral submissions stated that the where a person, having received a decision terminating payments under the Act, finds themselves needing to apply later in respect of the original injury, the necessary course is to make an application for extension of time. He said that such a person inevitably gets it (transcript p29).
The Tribunal has considered the submissions, documents and the case law takes them into account in reaching its decision. The system of provisions in the Act that allows for decision making and review of decisions has been set out comprehensively in a number of Federal Court decisions including Comcare Australia v Grimes and Another (1994) 33 ALD 548. The Federal Court there stated that the functions of Comcare under the Act include making determinations accurately and quickly in relation to claims and requests made to Comcare under this Act: s69(a). Comcare has a general power to do all things necessary or convenient to be done for, or in connection with, the performance of its function (s70). Section 72 addresses the manner in which claims are to be determined as follows:
…
In performing the function referred to in paragraph 69(a), Comcare:
(a)shall be guided by equity, good conscience and the substantial merits of the case, without regard to technicalities;
(b)is not required to conduct a hearing; and
(c)is not bound by the rules of evidence."

Part II of the Act provides for compensation to employees and s14(1) provides that:

14(1) 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.

Part V of the Act deals with Claims for Compensation. Compensation is not payable to a person under the Act unless a claim is made by or on behalf of the person, in accordance with the statutory requirements: s54(1). Part V does not provide for Comcare to make a determination on applications but s69(a) in Part VII of the Act (headed Administration and Finance) provides for Comcare to make determinations on claims.
The Federal Court in Comcare v Power [1998] FCA 1783 stated that questions of quantum of periodic compensation payable in respect of injuries resulting in incapacity are dealt with under other provisions in Part II of the Act, notably s19. Section 24(1) of the Act provides that Comcare is liable to pay compensation to an employee who has sustained an injury resulting in a permanent impairment.
Part VI of the Act is headed Reconsideration and Review of Determinations and sets out that, as soon as practicable after a determination is made, the person making the determination must serve on the claimant a notice specifying the terms of the determination and the reasons (s61(1)). A determination is defined in s 60(1) to mean a determination or decision or a requirement under any one of a number of sections, including ss 14, 16, 19, 24 and 27, but not, as noted in Power, s69(a). Section 62(1) provides as follows:
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 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.
Section 62(2) provides that an applicant may make a request for reconsideration, providing the request is made within 30 days after the first determination came to the notice of the person (s62(3)). When requested, Comcare must cause the determination to be reconsidered by another decision-maker (s62(4)). The person reconsidering the determination may make a decision affirming, revoking or varying the determination (s64(5)) and s63 then requires that the decision-maker must serve a written decision upon the applicant. A decision made under s 62 is termed a reviewable decision s60(1).
Section 64(1)(a) provides that application to the AAT for review of a reviewable decision may be made by (among others) the claimant. The AAT Act provides at s25:
25(1)       An enactment may provide that applications may be made to the Tribunal:
(a)for review of decisions made in the exercise of powers conferred by that enactment;or
(b)       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.
…
(4)          The Tribunal has power to review any decision in respect of which application is made to it under any enactment.
(5)          For the purposes of an enactment that makes provision in accordance with this section for the making of applications to the Tribunal for review of decisions, a failure by a person to do an act or thing within the period prescribed by that enactment, or by another enactment having effect under that enactment, as the period within which that person is required or permitted to do that act or thing shall be deemed to constitute the making of a decision by that person at the expiration of that period not to do that act or thing. …
Section 43(1) of the AAT Act provides that for the purposes of reviewing a decision, the Tribunal may exercise all the powers that are conferred by any relevant enactment on the person who made the decision and shall make a decision in writing:
43(1)
(a)affirming the decision under review;
(b)varying the decision under review; or
(c)setting aside the decision under review and:
(i)making a decision in substitution for the decision so set aside; or
(ii)remitting the matter for reconsideration in accordance with any directions or recommendations of the Tribunal.
Section 3(3) of the AAT Act provides:
(3) A reference in this Act to a decision includes a reference to:
(a)making, suspending, revoking or refusing to make an order or determination;
. or
(g)doing or refusing to do any other act or thing.
In this case the applicant has not had the benefit of either a written decision at the primary level of decision making (under s69 of the Act) or a reviewable decision under s62. In these circumstances can he come to this Tribunal?
The decision of Gary Nipperess and Australian Community Pharmacy Authority (AAT 10605, 18 December 1991) dealt with the question of the Tribunal's jurisdiction, and with the notion of constructive refusal as being a decision. The applicant was seeking to have accepted that the pharmacy approval recommendation for another pharmacist could be taken as a recommendation that his own application had been disapproved – disapprovals being the only matter under the relevant legislation that allowed appeal to be made to the Tribunal. The Tribunal said that the answer lies in an analysis of s25 of the AAT Act. Subsection 25(1)(a) provides that application may be made for review of a decision made in the exercise of powers conferred by enactment and ss25(4) gives the Tribunal power to review any decision in respect of which application is made to it under any enactment. The Tribunal pointed out that in the scheme of the AAT Act s25(3) was of particular importance. It provides that:
25(3) Where an enactment makes provision in accordance with subsection (1), that enactment:
(a)shall specify the person or persons to whose decisions the provision applies;
(b)may be expressed to apply to all decisions of a person, or to a class of such decisions; and
(c)may specify conditions subject to which applications may be made.
By these provisions, the Tribunal said, Parliament made clear that the powers of review should be defined and circumscribed by the enactment making provision for that review. As stated by the Tribunal in Re Parke and Repatriation Commission (1985) 2 RPD 404:
The Tribunal derives its jurisdiction from Commonwealth legislation and its powers are conferred in specific terms. Unless it has power so conferred on it, it can do nothing. It has no roving commission to investigate governmental decisions generally.
The effect of s25 is that the particular terms of the enactment conferring the jurisdiction must be looked at. In Associated Products Pty Ltd and Australian Trade Commission (AAT 12139, 22 August 1997), the Tribunal considered a request for review in circumstances where the respondent was delaying making a decision. The Tribunal pointed out that nothing in the particular legislation under which review was sought, provided that the respondent must make a decision within a specified time. The Tribunal said:
Therefore although the respondent has in fact failed to make a decision that fact of itself does not enliven the jurisdiction of the Tribunal.
Associated Products applied the conclusion reached in ReTasmanian Ferry Services Ltd and Secretary, Department of Transport and Communications (1992) 29 ALD 395 that the extension of the meaning of decision in s3(3) does not extend to include a failure to make a decision, as distinct from a refusal to make an order or determination. The Tribunal also followed Case 7/95 1995 ATC 152 which decided that if a refusal to make a decision were to be reviewable under the AAT Act, specific provision would have to be made for it, just as provision is made for a failure to make a decision within period prescribed by an enactment under s25(5) of the AAT Act. The Tribunal in Case 7/95 pointed out that the AAT Act is only part of the Commonwealth's administrative law package and that s10 of Ombudsman Act (1976) may be the correct source of relief where there has been a refusal to make a decision where there is no time limit under a particular enactment. Likewise the Administrative Decisions (Judicial Review) Act 1977.
Section 10 of the Ombudsman Act provides:
(1) Where:
(a)under an enactment, a person has a power to do an act or thing in the exercise of a discretion or otherwise;
(b)there is no enactment that prescribes a period within which the person is required to do or refuse to do the act or thing;
(c)an enactment provides that application may be made to a prescribed tribunal for the review of decisions made in the exercise of that power; and
(d)a complaint has been made to the Ombudsman concerning a failure to do the act or thing in the exercise of that power;
the Ombudsman, after having investigated the complaint, may, if he or she is of the opinion that there has been unreasonable delay in deciding whether to do the act or thing, grant to the complainant a certificate certifying, that, in the opinion of the Ombudsman, there has been unreasonable delay in deciding whether to do the act or thing and, if the Ombudsman does so, the person required or permitted to exercise the power, shall, for the purpose of enabling application to be made under the enactment referred to in paragraph (c) to the prescribed tribunal concerned, be deemed to have made, on the date on which the certificate is granted, a decision, in the exercise of that power, not to do the act or thing.
Having considered all issues, the Tribunal finds as follows in regard to the matters raised by the parties:
(a)The e-mail correspondence of 29 March 2001 between Stuart Marris and Con Lolis is sufficient evidence of a primary decision on the applicant's claim for permanent impairment. It meets the definition of determination in s60 of the Act and it deals with the applicant's claim for permanent impairment. It is a determination because it reflects a decision having the necessary character of being an overt act that gives finality to a conclusion reached (Semunigus).
It appears from the e-mail, that Stewart Marris is quoting from an earlier unidentified document. That document is likely to also reflect a decision in the sense set out in Semunigus, and therefore a decision appears to have been made at some time in 2000, after the claim for permanent impairment in February 2000 and prior to the extension of time hearing before Member Shanahan in November 2000. As the Tribunal does not have the source document it is unable to ascertain that date.
(b)Applying Young, it is not a necessary requirement that the decision be one in the usual form, following the statutory requirements of writing and notification. As set out by the President in Young the provision in s3(3) of the AAT Act is a catch all provision meant to cover a refusal to reconsider.
(c)The decision of Member Shanahan declining to extend time for review of the 1994 decision was neither a bar to the applicant making a claim for permanent impairment nor to bringing the matter of permanent impairment to the Tribunal. It is consistent with the nature of administrative review that the decision of Member Shanahan itself would not be a bar to a further application for an extension of time in regard to the same decision. Tribunal decisions (for example Nicholson and Secretary Department of Social Security 9 September 1991) make that point plainly. The Tribunal accepts the applicant's submission, applying Carson and Oudyn that there was no need to seek an extension of time on the 1994 decision in order to bring a permanent impairment claim to the Tribunal. Subject, that is, to all jurisdictional requirements for a reviewable decision under s64 being met.
(d)Lees case is authority only for the two circumstances before the Court in the two appeals dealt with together in that case. Lees case dealt firstly with the situation where there was no claim for permanent impairment made. Therefore the matter of permanent impairment had not been determined at any level of review before the application was made to the Tribunal. Lees had a valid application for review before the Tribunal merely on the matter of taxi fares. Secondly Lees case dealt the situation where the respondent had not accepted liability for an injury. The applicant's case is neither of those circumstances. Liability has been accepted for the injury in 1986 (T10) and this has never been revoked (Carson); and the applicant by claiming in February 2000 (T18) asked for a decision be made on permanent impairment. In reaching this conclusion the Tribunal accepts that the decisions of Carson and of Oudyn correctly interpret Lees case. The Tribunal notes that the decision in William Watts and Comcare [2002] AATA 383, decided after final submissions, follows Denison-Smith.
(e)The Tribunal accepts the applicant's submission that the respondent failed in its statutory responsibility under the Act by refusing to make a decision on the claim for permanent impairment. The responsibility arises under s69 of the Act and a determination should have been made, regardless of the respondent's views based on its interpretation of case law.
An obligation to provide reasons for administrative decisions generally promotes openness and accountability in government. In individual cases, it also permits an applicant, or intending applicant, to be informed of the basis for a decision. Such a person may find a statement of reasons valuable in framing an application, determining whether to make an application for review at all or proceeding with an application that has already been made. The applicant has not been accorded the usual benefits of review, in circumstances similar to those arising in ReBrophy andComcare (2001) 33 AAR 491 and equally worthy of the criticism of such behaviour made by the Tribunal in that case.
(f)The Tribunal however accepts the submission of the respondent that no reviewable decision has been made. The inaction by the respondent is not sufficient to be construed as a doing or refusing to do any other act or thing. The respondent has done nothing, after request was made for review of a decision after the telephone conversation between solicitors in August 2001.
Whilst the legislative scheme has been frustrated in this case by the respondent's refusal to deal with the applicant's claim, the proper course for the applicant was to utilise the remedies available under the Acts mentioned above. It also would be undesirable from a policy or practice perspective for the Tribunal to endorse the letter of demand made by the applicant's solicitors for the respondent to make a decision within 7 days, by making the failure to meet that demand a reviewable decision. There are no time limits set under the Act for the making of the reviewable decision, and imposing them has the prospect of defeating the proper merits review of a claim.
The Tribunal in Re Robertson and Civil Aviation Authority [1999] AATA 608 stated that the definition of a decision in the AAT Act extending as it does to the "doing or refusing to do any other act or thing" may well enable this Tribunal, in an appropriate situation, to regard a constructive refusal as a refusal to do an act or thing. The Tribunal does not consider this is a case where such a course is appropriate. As the Tribunal in Niperess pointed out, the AAT Act is but one part in the scheme of Commonwealth administrative legislation. There are other remedies provided through the Ombudsman's Act and the Administrative Decisions (Judicial Review) Act.
The Tribunal considered whether the finding (from the reference to it in the e-mail exchange in March 2001) that a decision was likely made in 2000, enabled the Tribunal to identify the March 2001 decision as the reviewable decision, thus allowing review by this Tribunal. However the Tribunal considers it would not be appropriate to do so. Good administrative practice suggests otherwise. There is a scheme for review in the legislation and it should be followed. It would be artificial in the circumstances here to deal with the March 2001 decision as a reviewable decision when the applicant did not know of it or seek review of it. Furthermore, as stated in Re Cipriano and Australian Broadcasting Corporation & Comcare (1991) AATA 6931 13 May 1991, it will be rare that a reviewable decision will be inferred..
For these reasons, the Tribunal finds that there is no jurisdiction to review the decision made to reject a claim for permanent impairment as there has been no reviewable decision under s62 as is necessary to enable review by this Tribunal under s64 of the Act.
DECISION
The Tribunal decides that it does not have jurisdiction to review the application of the applicant lodged on 30 August 2001.
I certify that the forty-three [43] preceding paragraphs are a true copy of the reasons for the decision herein of
M.J. Carstairs, Member
(sgd)       Olympia Sarrinikolaou
              Clerk
Date of Hearing:  23 January 2002
Date of Decision:  9 July 2002
Counsel for the applicant:           Mr I. Fehring
Solicitor for the applicant:           Messrs Nevin Lenne and Gross
Counsel for the respondent:        Mr J. Lenczner
Solicitor for the respondent:        Messrs Blake Dawson Waldron