Tilley and Comcare

Case [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

  1. 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.

  2. 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.

  3. 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…

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AGLC
Tilley and Comcare [2002] AATA 560
Case
[2002] AATA 560
Decision Date

CaseChat Overview and Summary

In the case of Tilley v Comcare, the Federal Court of Australia was called upon to determine whether the Administrative Appeals Tribunal had jurisdiction to review the decision made by the respondent, Comcare, to reject a claim for permanent impairment. The applicant, Tilley, had sustained an injury during his service in the Australian Army and had lodged a claim for compensation, which Comcare accepted. However, Comcare subsequently decided that the injury was temporary and had ceased by the end of 1986. Tilley sought review of this decision, which was ultimately refused by the Tribunal. Tilley then lodged a claim for permanent impairment, which Comcare also rejected, leading to the current application for review.

The primary legal issue before the court was whether a reviewable decision had been made by Comcare in relation to the rejection of the claim for permanent impairment. This issue turned on the interpretation of relevant provisions of the Safety, Rehabilitation and Compensation Act 1988, which governs claims for compensation by Commonwealth employees. The court considered whether the failure of Comcare to respond to a request for reconsideration within the statutory time limit constituted a decision that was subject to review. Additionally, the court examined the effect of previous decisions made by Comcare and the Tribunal, including a decision by a Tribunal member refusing an extension of time in relation to an earlier decision.

The court found that no reviewable decision had been made by Comcare in relation to the rejection of the claim for permanent impairment. The court reasoned that the absence of a response to a request for reconsideration did not constitute a decision within the meaning of the Act, as it was not a determination of the merits of the claim. The court also noted that the earlier decision by a Tribunal member had already determined that the claim for permanent impairment was not subject to review. Consequently, the court held that it did not have jurisdiction to review the decision of Comcare to reject the claim for permanent impairment.

The court's decision in Tilley v Comcare highlights the importance of understanding the statutory framework governing administrative review and the specific provisions of the Safety, Rehabilitation and Compensation Act 1988. The court's analysis of the relevant legal issues and its reasoning demonstrate the need for careful consideration of the meaning of "decision" and "determination" under the Act, as well as the effect of previous decisions on the scope of review. This case serves as a useful reminder for practitioners of the importance of ensuring that any decision made by an administrative body is properly characterised and subject to review, in accordance with the statutory provisions.

Orders

Orders of the court

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Background

Background to the litigation

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.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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 ClerkDate of Hearing: 23 January 2002Date of Decision: 9 July 2002 Counsel for the applicant: Mr I. FehringSolicitor for the applicant: Messrs Nevin Lenne and GrossCounsel for the respondent: Mr J. LencznerSolicitor for the respondent: Messrs Blake Dawson Waldron

Ratio Decidendi

Legal Principle Established

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.