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[2003] FCA 318
Federal Court of Australia
2003-04-10
Cooper J
Original judgment source is linked above.
the application for assessment under s 24 of the act 38 Until the determination of 18 May 2000, the existing determination under s 14 established that APC would be liable to pay compensation to Mr Oudyn if the injury of 2 August 1999 resulted in permanent impairment. The only issues which required determination under s 24 of the Act were whether or not Mr Oudyn had a permanent impairment and, if he did, the amount payable under s 24 in respect of that impairment: Lees pars [48], [50]. The determination made on 18 May 2000 purported to determine this issue against Mr Oudyn by deciding that he had no entitlement thereafter on any basis, including under s 24 of the Act, to compensation from APC. The basis of that determination was the factual finding based on the medical evidence that Mr Oudyn was not then suffering an incapacity for work or impairment as a result of the injury suffered on 2 August 1999. It was against this background that Mr Oudyn's claim under s 24 of the Act for compensation for permanent impairment was made under cover of his solicitor's letter dated 12 February 2001. 39 The claim for compensation for permanent impairment made under cover of the letter dated 12 February 2001 necessarily sought and required reconsideration of the determination made on 18 May 2000 to the extent that it purported to determine that he had no entitlement to compensation for permanent impairment as a result of the injury sustained on 2 August 1999. Accordingly, the claim was referred to a Reconsiderations Delegate. This reference was made under s 62 of the Act. 40 The issue before the Reconsiderations Delegate was whether or not Mr Oudyn had a permanent impairment as a result of the injury sustained on 2 August 1999, and if so, an entitlement to compensation payable in an amount to be assessed in accordance with s 24 of the Act. 41 In the reviewable decision of the Reconsiderations Delegate of APC given on 27 February 2001, he said: "The applicant's lawyers indicated on 7 June 2000 they would be applying for reconsideration of the Claim's Manager's decision and this was duly submitted on 13 February 2001. In support of his request, the Applicant submitted a report from Dr Peter Mulholland, Psychiatrist. Dr Mulholland's report is comprehensive but his opinion and diagnosis is very much left up in the air. He readily admits that there doesn't seem to be anything tangibly wrong with the Applicant, 'Any discussion about what is exactly wrong with Mr Hendrikus Oudyn from the physical and psychological aspects is bound to be contentious and controversial because of the multiple complex factors involved and because of ongoing doubt as to exactly what his problems objectively are.' Dr Mulholland relates that the Applicant is in chronic pain but there is nothing that objectively shows any cause for the pain. There is mention of reflex sympathetic dystrophy and regional pain syndrome but again there are no objective signs of either. If I were to accept liability for this claim I wouldn't know what to accept it for. I presume the Applicant would like me to accept a general liability rather than bother with specifics. On reading through the history of this claim, the word that sprang to mind was 'bizarre' and it was no surprise to me that Dr Reddan used the same word in her report. In physical terms, the Applicant suffered relatively minor injuries that Dr Martin maintains would have only necessitated a short absence from duty. I think any physical aspects of the claim can be discounted. This leaves the psychological aspects. Dr Reddan clearly states that the Applicant does not suffer from a mental illness which incapacitates him for work. Dr Mulholland seems to be of the opinion that he is totally incapacitated. I am of the opinion that the Applicant suffered minor physical injuries in the accident and these have long healed. With regard to his psychological state, I think the accident may have exacerbated pre-existing personality traits for a short period of time but his condition is now caused by other factors which are not related to the accident or his period of employment with Australia Post. In view of the above, I have decided that the determination of 18 May 2000 by the Claims Manager to deny liability for compensation be AFFIRMED on reconsideration." (Emphasis added) 42 As appears from the reasons of the Reconsiderations Delegate set out above, the issue before him was the acceptance or rejection of the claim made by Mr Oudyn supported by the medical opinion of Dr Mulholland as contained in his reports which were before the delegate. The delegate determined the claim on its merits and rejected it. He accepted the opposing medical evidence that on 18 May 2000 there was no longer any incapacity for work or impairment resulting from the injury suffered by Mr Oudyn on 2 August 1999. He rejected the evidence that Mr Oudyn had permanent impairment as at February 2001 as a result of the injury suffered on 2 August 1999. He found that any medical condition Mr Oudyn was then suffering from was not as a result of the injury on 2 August 1999. In those circumstances, he determined on reconsideration to affirm the determination of 18 May 2000 to deny compensation for liability under the Act. If the delegate had determined otherwise and found that permanent impairment had resulted from the injury, all that would have remained would have been determination of the amount payable under s 24 of the Act in respect of that impairment: Lees [50]. 43 In affirming the decision of 18 May 2000, the Reconsiderations Delegate affirmed that Mr Oudyn was not then, nor at 27 February 2001, entitled to further compensation under any section of the Act, including s 24, in respect of the injury suffered on 2 August 1999.
apc's letter of 8 march 2001 44 The letter was not merely the communication of advice. If anything remained to be done with respect to Mr Oudyn's application for compensation for permanent impairment, it was to formally determine that he was not entitled to compensation for permanent impairment to be assessed under s 24 of the Act and to advise him of that determination. That is what the letter of 8 March 2001 did. The determination of the Claims Manager was made under s 24 of the Act. The reason for making the determination, as the letter stated, was the decision of the Reconsiderations Delegate made on 27 February 2001. 45 Mr Oudyn had a right to request reconsideration under s 62(2) of the Act of the Claim Manager's rejection of his claim for stated reason. As the relevant determining authority by virtue of s 60, Mr Hoffman was obliged to reconsider his determination refusing liability for the claim or cause it to be reconsidered by a person to whom its power of reconsideration was delegated: s 62(4). 46 The request for review of the determination contained in, or evidenced by, the letter of 8 March 2001, was made by Mr Oudyn. There has been a refusal by the determining authority to reconsider the determination or to refer it for reconsideration by a delegate. This refusal is evidenced by the letter of APC's solicitor dated 27 July 2001.
conclusion 47 The issue of whether Mr Oudyn had permanent impairment as a result of the injury suffered on 2 August 1999, and was in consequence, entitled to compensation assessed in accordance with s 24 of the Act, has been considered by the requisite two tiers within APC. This occurred in May 2000 and February 2001. The decision affirming the earlier decision of 18 May 2000 was a reviewable decision within the meaning of s 60 of the Act. It was reviewable by the AAT pursuant to s 64(1) of the Act. 48 It is common ground in these proceedings that a refusal to make a decision is, for the purposes of the Act, a decision itself: see s 60 of the Act and s 3(3)(a) of the AAT Act. A refusal to make a decision on reconsideration under s 62 of the Act on a claim for compensation to be assessed pursuant to s 24 of the Act is by the extended definition a determination made under s 62 of the Act. It was a reviewable decision within the meaning of s 60 and reviewable by the AAT pursuant to s 64(1) of the Act. 49 The AAT had jurisdiction in proceedings Q2001/316 to review the determination of the Reconsiderations Delegate given on 17 February 2001 that Mr Oudyn had no permanent impairment and thus no entitlement to compensation under the Act. That necessarily involves a review of the claim of Mr Oudyn to entitlement to compensation to be assessed under s 24 of the Act. 50 The AAT had jurisdiction in proceedings Q2001/753 to review the refusal of the claim made under cover of the letter dated 12 February 2001 for compensation for permanent impairment, such refusal being contained in or evidenced by the letters of 8 March 2001 and 27 July 2001. 51 APC has failed to make out a want of jurisdiction on the part of the AAT to review each of the reviewable decisions the subject of the two proceedings in the AAT. 52 The application in Q30 of 2002 and the application in Q120 of 2002 will be dismissed. 53 In accordance with the normal practice, costs will follow the event.
I certify that the preceding fifty-three (53) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Cooper.
Counsel for the Applicant: Mr T. Howes Solicitor for the Applicant: Mr M. Snell Sparke Helmore Solicitors
Counsel for the Respondent: Mr D. Rangiah Solicitor for the Respondent: Mr R Hodgson Maurice Blackburn Cashman
Date of Hearing: 2 August 2002 Date of Judgment: 10 April 2003
Australian Postal Corporation
Oudyn
the proceedings in the aat 9 The two proceedings in the AAT were heard together. 10 APC denied the jurisdiction of the AAT to review the matters complained of in proceedings Q2001/753 for want of a reviewable decision as required by s 64 of the Act. It also contended that the claim of Mr Oudyn for compensation for permanent impairment was not an issue properly before the AAT in proceedings Q2001/316 because it was brought under s 24 of the Act and was not the subject of any determination by APC. 11 APC submitted that : (a) the decision of the claims manager made on 18 May 2000 that there was no further entitlement to compensation under s 14(1) of the Act necessarily included a determination that the injury did not result in permanent impairment; (b) while there existed a determination that no permanent impairment arose in consequence of a compensable injury under s 14(1) of the Act, no occasion arose to assess a claim for lump sum compensation in accordance with s 24 of the Act; (c) the Act did not contemplate or provide for a lawful claim under s 24 of the Act, in the absence of a determination of liability to pay compensation under s 14(1) of the Act; (d) not being under any statutory duty to determine the claim made under cover of the letter dated 12 February 2001, the failure to process the claim does not amount to a reviewable decision; and (d) the contentions relied upon followed from the decision of a Full Court of this Court in Lees v Comcare [1999] FCA 753; (1999) 56 ALD 84.
(1992) 39 FCR 236