Buck v Comcare

REASONS FOR JUDGMENT Mr Trajkovski ("the applicant") appeals from a decision of the Administrative Appeals Tribunal ("the AAT") which, on 22 October 1997, decided that it had no jurisdiction to hear an application for review of a decision made on reconsideration by a delegate of Telstra. The review application was made on 15 August 1997. The appeal to this Court is brought pursuant to s 44(1) of the Administrative Appeals Tribunal Act 1975 (Cth) ("the AAT Act") which provides: "44(1) A party to a proceeding before the Tribunal may appeal to the Federal Court of Australia, on a question of law, from any decision of the Tribunal in that proceeding." The matter arises in the following way. On 18 September 1996, the applicant claimed compensation under the Safety, Rehabilitation and Compensation Act 1988 (Cth) ("the SRC Act") in respect of an injury to his lower back. On 27 March 1997 a delegate of Telstra made a determination denying liability for active treatment to the applicant's back. That is to say, any treatment other than the passive protection of the lower spine of the applicant by means of a brace was denied. The delegate also determined that the applicant was not liable to pay compensation in respect of leave taken by the applicant from 6 March 1997. On 8 May 1997, Telstra wrote to the applicant in the following terms: "... I wish to advise you that, based on the available medical evidence, you have been assessed as capable of undertaking a Rehabilitation Programme in accordance with the attached Plan. Please note that this Plan requires you to work full hours of 7 hours 21 minutes per day, effective from 9 May 1997, and you are accordingly required to comply with this Programme under Section 37(1) of the Act. In arriving at this decision, I have taken into consideration your recent rehabilitation assessment and all other factors required under Section 37 of the SRC Act. This decision is based on the reports of Drs Roarty of 14 March 1997 and Gerges of 19 March, 1997, which are enclosed for your perusal. The Act requires me to inform you that failure to participate in the Programme without reasonable excuse will result in your rights to compensation being suspended under Section 37(7). Compensation benefits are not payable in respect of the period of the suspension." (Emphasis added) The two subsections of the SRC Act referred to in the letter provide: "37(1) A rehabilitation authority may make a determination that an employee who has suffered an injury resulting in an incapacity for work or an impairment should undertake a rehabilitation program and, where the authority so determines, it may make arrangements with an approved program provider for the provision of a rehabilitation program for the employee. ..... (7) Where an employee refuses or fails, without reasonable excuse, to undertake a rehabilitation program provided for the employee under this section, the employee's rights to compensation under this Act, and to institute or continue any proceedings under this Act in relation to compensation, are suspended until the employee begins to undertake the program." (Emphasis added) The "Plan" enclosed with the letter of 8 May is entitled "Rehabilitation Plan - Return to Work Program". Under the heading "Tasks to be Undertaken" it is written: "HRS 7.30am - 3.21 pm - 7.21 per DAY- NO RDO - 10 DAY F/N FEEDING FOLDER, TRIMMING PRINTING AND PHOTOCOPYING GENERAL DUTIES AS REQUIRED." Under the heading "Physical Restrictions and other comments" appear the words: "NO FIELD WORK - CLERICAL DUTIES ONLY NO SIGNIFICANT BENDING OR LIFTING. NO LIFTING GREATER THAN 5KG. MAY TRAVEL BY PUBLIC TRANSPORT." Handwritten across the face of the Plan form are the words: "MR TRAJKOVSKI REFUSED TO SIGN OR ACCEPT on 8-5-97" On 9 May 1997, Telstra again wrote to the applicant as follows: "I am writing to you about your compensation claim in respect of 'Temporary aggravation of spondylolisthesis of the 5th lumbar vertebra', for which liability has been accepted. In the determination dated 8th of May 1997 and the accompanying Plan, you were advised of the details of the Rehabilitation Program you were required to undertake. It has come to my attention that you have not participated in the Rehabilitation Program as required. Please see attached details of Rehabilitation plan. In accordance with Section 37(7) of the SRC Act, 1988, please advise me of the reasons for your failure to participate in this Program. Your reasons must be in writing and must be received within 7 days effective 12th of May 1997. Failure to provide a reasonable excuse for your non participation will result in suspension of your rights under the SRC Act 1988 from Friday 9 May, 1997 until such time as an approved Rehabilitation Program is recommenced." (Emphasis added) On 5 August 1997 Telstra affirmed its decision and wrote to the applicant's solicitors as follows: "I refer to your client above and in particular your request for a reconsideration of a determination dated 27 March 1997. Please find enclosed my reviewable decision, reasons for same and a notice of your clients appeal rights. Please also be advised that as your client's rights have been suspended by way of a determination issued on 19 May 1997 for failure to comply with a rehabilitation program, no delegation under the Act will be exercised to reconsider the determination of same." (Emphasis added) On 15 August 1997 the applicant lodged an application for review of this decision. The reasons for review notified in the Application of 15 August were: "Decision is incorrect in that original decision denying compensation cover is incorrect and assertion that the Applicant's rights have been suspended properly at law is also incorrect." On 1 September 1997, Telstra wrote to the Registrar of the AAT as follows: "I refer to the attached application for Review in respect of the above named. Please be advised that in accordance with Section 37(7) of the Safety Rehabilitation and Compensation Act 1988 the Rights of Mr Trajkovski have been suspended on and from 19 May 1997. This did not effect the request for reconsideration as it was before the suspension was initiated. The suspension still remains to date. Accordingly, Mr Trajkovski can't lodge an application to the Tribunal for review." (Emphasis added) The application for review to the AAT was made pursuant to s 64(1) which refers to a "reviewable decision". This expression is defined in s 60(1) of SRC Act to mean: "... a decision made under s 38(4) or s 62" Section 38(4) is not relevant for present purposes. Section 62(1) of the SRC Act provides: "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." "Determination" is defined to mean a determination, decision, or requirement made under specified sections of the Act and includes s 37. The expression "determining authority" is defined to mean the person who made the determination. "Decision" has the same meaning as in the AAT Act. One other relevant provision is s 43 of the AAT Act, which confers the powers and directions on the AAT when considering an application for review. That section relevantly provides: "43(1) For the purpose of reviewing a decision, the Tribunal may exercise all the powers and discretions that are conferred by any relevant enactment on the person who made the decision and shall make a decision in writing: (a) affirming the decision under review; (b) varying the decision under review; or (c) setting aside the decision under review ..." Although there was no appearance by Telstra at the AAT hearing, reference was made at the outset to the Telstra letter of 1 September 1997 asserting that the rights of the applicant had been suspended on and from 19 May 1997. The AAT Reasons for Decision were delivered on 22 October 1997. The order made by the AAT was that it did not have jurisdiction to consider the application for review because there was no reviewable decision and it directed the Registrar to take no further action with respect to listing the matter for hearing. The matter was only dealt with at the AAT hearing on a question of jurisdiction. The AAT did not embark on any consideration of the substantive issues although some documentary evidence was tendered by the applicant to support his submission that he had not unreasonably refused to undertake a rehabilitation program and that the AAT therefore had jurisdiction. AAT Reasons The AAT first referred to the judgment of Finn J in Buck v Comcare (1996) 66 FCR 359. In that case his Honour held that s 57(2) of the SRC Act was self-operating and suspended the rights of a claimant. Section 57 of the SCR Act provides: "57(1) Where: (a) a notice has been given to a relevant authority under section 53 in relation to an employee; or (b) an employee has made a claim for compensation under section 54; the relevant authority may require the employee to undergo an examination by one legally qualified medical practitioner nominated by the relevant authority. 57(2) Where an employee refuses or fails, without reasonable excuse, to undergo an examination, or in any way obstructs an examination, the employee's rights to compensation under this Act, and to institute or continue any proceedings under this Act in relation to compensation, are suspended until the examination takes place." There was no requirement for any decision or determination of an administrative nature to be taken in order to enliven the suspension provided for in that provision. His Honour concluded that he did not, therefore, have jurisdiction under the Administrative Decisions (Judicial Review) Act 1977 (Cth) ("ADJR Act") to rule on the lawfulness or otherwise of the suspension of Ms Buck's entitlement to compensation. He did not investigate whether the requirements of s 57(2) had been made out. His Honour, however, went on to hold that this Court could determine the question of jurisdiction by way of a proceeding for a declaration of right. The hearing was then adjourned to enable such an application to be made. The AAT considered that the terms of s 37(7) of the SRC Act were, for all practical purposes, substantially similar to s 57(2) in relation to the jurisdiction issue. It was said to follow that a determination as to whether s 37(7) came into operation did not involve a review of any "determination" or "decision". Therefore, the Tribunal had no jurisdiction to review the reasonableness or otherwise of the applicant's failure to undertake the rehabilitation program. Accordingly, the AAT decided that since the rights of the applicant were suspended by force of the Act, the application for review should be stayed. Applicant's submissions The applicant submits: (1) The applicant submits that Buck's case is distinguishable because it involved a review by the AAT and was not an ADJR application. In addition, he submits that the AAT can investigate and determine issues of fact and law which, in substance, affect its authority and jurisdiction to perform its statutory duty to review the decision of Telstra. (2) More specifically, it is said that the AAT has power to investigate and determine, at an administrative level, whether, objectively a factual and legal basis exists which operates to prevent it from hearing the application for review of Telstra's decision. In this submission the applicant refers to the decision of Brennan J in Re Adams and the Tax Agents' Board (1976) 12 ALR 239. (3) It is advanced that the AAT was entitled to and should determine that in fact and law there was no proper rehabilitation program in place under the meaning of s 37(7) and that the applicant had a reasonable excuse for his refusal to undertake the rehabilitation program formulated. Telstra's submissions Telstra submits: (1) Telstra submits that the only matter for review before the AAT is the refusal by Telstra to award the compensation benefits claimed by the applicant but refused. The AAT, it is submitted, is not a primary decision-maker, nor does it have a repository of powers or discretions under the SRC Act. The AAT can only determine matters which are the subject of applications for review before it. A dispute as to whether s 37(7) applies is not a reviewable decision because s 37(7) is self-operating. That is to say that it applies of its own force without the need for any decision to be made. In the absence of a "decision" or "determination" the AAT cannot have jurisdiction to determine that question. (2) Telstra suggests that the proper course is for the applicant to first exhaust its remedies under the SRC Act with respect to the requirement that the applicant should attend a rehabilitation program and then, if dissatisfied, seek review in the AAT. In so doing Telstra says that the s 37(7) jurisdictional issue can be determined by Telstra. It submits that in deciding whether a person should attend a program under s 37(1), the underlying questions whether there is a "program" and whether there is a "reasonable excuse" for failure to attend the program, can and should be determined at an internal administrative level before proceeding to the AAT or a Court for determination. (3) In addition, Telstra submits that there can be no error of law on the part of the AAT in the present case because the Tribunal did not have to review a decision as to whether s 37(7) was applicable. Since the question was not before it in the form of a reviewable decision it could not make an erroneous decision in respect of it. Section 37 It is common ground that the language of s 37(7) makes it clear that the suspension of rights under s 37(7) operates directly and without the need for any antecedent decision. Nevertheless, as a practical matter, some person or body must make a decision as to its application in any specific case. To this extent the reasoning in Buck is accepted by both parties. It is apparent from the terms of the subsection that the determination whether there has been a failure to undertake a program without reasonable excuse calls for an "objective" determination of both the law and facts. There is no reference to the opinion of any specific person or body as to whether s 37(7) applies; cf Minister for Immigration and Ethnic Affairs v Naumovska (1989) 88 ALR 589 at 602 per Lockhart J. This is also consistent with the conclusion in Buck that the question whether the suspension provisions are brought into operation could be tested by the Court on an application for a declaration. When asked to cite previous authority on the question of whether the AAT could resolve a dispute as to its jurisdiction, counsel for the applicant referred me to a decision of a full panel of the AAT, where the members decided the question whether s 37(7) of the SCR Act had the effect of cancelling the rights to compensation under that provision. The jurisdictional issue raised before me does not appear to have been argued in that case. The panel concluded that in the circumstances there had been an effective suspension of rights. The decision referred to is Re Martiniello and Comcare Australia (1994) 33 ALD 774. In giving reasons in that matter, the members said at 776: