Section 62 of the SRC Act does not confer power to reconsider a primary determination that has been revoked
104 Comcare submitted that the text, context and purpose of the statutory scheme supported its construction of s 62(1) of the SRC Act as permitting reconsideration of a primary determination at any time, regardless of what stage has been reached in the decision-making process.
(a) In relation to the statutory text, Comcare relied on the concluding words in s 62(1), which provide that a determining authority may reconsider a determination "whether or not a proceeding has been instituted or completed under [Pt VI] in respect of a reviewable decision made in relation to that determination". Comcare submitted that this language makes it clear that Comcare has power to reconsider an original determination even if it has previously been reconsidered under s 62.
(b) In relation to statutory context, Comcare referred to s 67(2), which contemplates that a review proceeding before the Tribunal may be "rendered abortive because a decision has been made, following a reconsideration under subsection 62(1), varying or revoking that determination", and deals with the potential costs consequences in such a situation. Comcare submitted that this was consistent with an ongoing power to reconsider a determination, even if an application had been made for review of a reviewable decision relating to that determination.
(c) In relation to statutory purpose, Comcare submitted that the power to reconsider a determination at any time is consistent with its function of making determinations "accurately and quickly in relation to claims and requests" made to it under the SRC Act: see s 69(a). More generally, Comcare submitted that the statutory scheme envisages "progressive and evolving" decision-making processes which allow Comcare to reconsider previous determinations that are no longer considered to be correct or preferable in the light of new information that may subsequently come to light: see e.g. Hannaford at [10] (Heerey J), [57] (Conti J). Comcare submitted that it would otherwise be "stuck" with a decision accepting liability under s 14 of the SRC Act to pay compensation in respect of an injury, particularly if it were not open to Comcare to apply to the Tribunal for review of a previous reconsideration decision. Accordingly, Comcare argued that it should be allowed to make corrections or changes to determinations (including those in favour of employees) "swiftly, easily and without requiring costs to be incurred by the employee".
105 In my view, the power conferred by s 62(1) to reconsider a "determination" is properly construed as referring to an extant or operative determination, and does not include a determination that has been administratively revoked by a previous exercise of power under s 62(5) of the SRC Act.
106 Dealing first with the text of s 62(1), the concept of "a proceeding … instituted … under [Pt IV] in respect of a reviewable decision" must be read in the light of the following definition in s 4(12):
A reference in this Act to the institution of a proceeding under Part VI in respect of a reviewable decision is a reference to the making of an application to the Administrative Appeals Tribunal for review of that decision.
With this in mind, the concluding words in the "tail" of s 62(1) refer to the institution or completion of a proceeding for review by the Tribunal of a reviewable decision, which is relevantly defined as a second-tier reconsideration decision made under s 62.
107 One consequence of these words in s 62(1) of the SRC Act is to displace the provisions in the AAT Act that would otherwise prevent the decision from being altered while review proceedings are on foot before the Tribunal: see s 26(1) of the AAT Act (cf. s 31 of the Administrative Review Tribunal Act 2024 (Cth)); see also Re Rebeiro at [47]-[48]. Section 62(1) thereby ensures that the determining authority may exercise its power to reconsider a determination, even if a reviewable decision has been made in relation to that determination and an application for review has been made for review of that decision. In so far as any such reconsideration renders a review proceeding that is pending before the Tribunal "abortive", s 67(2) imposes liability on the "responsible authority" to reimburse the claimant for costs reasonably incurred in connection with that proceeding, subject to exceptions in s 67(2)-(5) in circumstances where the claimant belatedly provides relevant information which leads to a more favourable determination being made.
108 The concluding words of s 62(1) also have a broader operation in relation to situations in which a review proceeding before the Tribunal has been completed, as well as situations where no such review proceeding is instituted in respect of a reviewable decision made in relation to the determination in question. This suggests that a determining authority retains power to reconsider a determination even if a second-tier reconsideration decision has been made under s 62 in relation to the determination, whether or not there are or have been any proceedings before the Tribunal for review of that reconsideration decision. Thus, for example, a determination that has been affirmed or varied under s 62(5) might still be reconsidered by the determining authority on its own motion under s 62(1).
109 Nevertheless, the terms of s 62(1) do not necessitate a conclusion that a determination made by a determining authority can be reconsidered by that authority even after it has been revoked, whether on a previous reconsideration by the determining authority or on review by the Tribunal. The revocation of a determination under s 62(5) is an administrative decision to remove, cancel or take back the effect of that determination, so that it ceases to have any operative consequences under the SRC Act. The notion of reconsidering a revoked determination is counterintuitive. Such a reconsideration would have no practical utility, as any affirmation or variation of a determination that has previously been revoked is incapable of breathing new life into that determination. Further, a reconsideration of the revoked determination would not itself address the status or effect of the reviewable decision that was made on a past reconsideration of that determination under s 62, or potentially any decision made by the Tribunal on a review of that decision under s 64.
110 On the facts of the present case, the primary determination was revoked by the first reconsideration decision, which accepted liability to pay compensation to the respondent under s 14 of the SRC Act. A purported reconsideration of the primary determination under s 62, by which the determination disallowing the claim for compensation was purportedly affirmed or varied, does not adequately explain what happened to the first reconsideration decision that was made by Ms Mohr. The upshot of Comcare's submissions was that the Mohr decision is simply overtaken or superseded by the subsequent reconsideration of the primary determination. However, Comcare's submissions proceeded on the basis that Ms Le did not have power under s 62 to set aside or vary the Mohr decision, and Ms Le did not in fact purport to reconsider that decision under s 62. In such circumstances, unless and until the Mohr decision is itself validly revoked or set aside, it is difficult to see why it does not continue to operate according to its terms. As discussed below, this does not prevent the underlying factual findings from being revisited in the context of subsequent determinations that might be made in relation to the respondent's compensation entitlements. But in so far as the Mohr decision was a decision under s 14 to accept liability to pay compensation in accordance with the Act, that decision remains in effect unless and until it is itself varied or set aside.
111 The power conferred by s 62 therefore provides a means for the reconsideration of extant and operative determinations. A historic determination that has previously been revoked and has no current force or effect does not provide a foothold for the determining authority on its own motion to reconsider and make a fresh determination in its place, whether in the same terms as the past determination or in different terms. As discussed below, it may remain open to a determining authority to reconsider a determination as affirmed or varied following a reconsideration under s 62, or a decision made under s 14 (or another provision specified in the definition of "determination") as a result of a reconsideration under s 62. But the better view is that, in doing so, the determining authority is not reconsidering the original determination, particularly where it has been revoked. Rather, the determining authority is reconsidering an extant determination that results from the reviewable decision made under s 62.
112 The conclusion that it is not open under s 62 of the SRC Act to reconsider a determination that has been revoked is consistent with Swartz v Commonwealth (1959) 102 CLR 340. In that case, the Commissioner for Employees' Compensation made a determination under the Commonwealth Employees' Compensation Act 1930 (Cth) that the appellant had sustained a particular injury arising out of or in the course of his employment by the Commonwealth, but that his incapacity had ceased shortly prior to the date of the determination. Under the statutory scheme, an appeal from such a determination could be made to the "County Court" (which was defined to include the Magistrates Court of Queensland), with such an appeal to be in the nature of a rehearing. After the appellant had appealed to the Magistrates Court, and before the appeal was heard, the Commissioner exercised a statutory power to reconsider the determination, which was in analogous terms to s 62 of the SRC Act, and decided to revoke the previous determination that was subject of the pending appeal and in its place make a new determination. As a result of the revocation of the original determination, the Magistrates Court concluded that the appeal had "lapsed". On appeal, the High Court held that, while the jurisdiction of the Magistrates Court was not affected, the revocation of the original determination operated to remove the subject matter of the appeal to that Court: Swartz at 345 (Dixon CJ, Kitto and Windeyer JJ). The High Court stated:
It seems clear enough that a determination is open to revocation notwithstanding that an appeal has been instituted. In other words the pendency of the appeal does not deprive the Commissioner of any of the powers which s 6(2) gives him. It may not be quite right to say that the appeal "lapses" if the Commissioner exercises his power under s 6(2) or any of them with respect to the determination. The power given by s 20 to the court in respect of a determination appealed against could not for example, be lost by an alteration or amendment, much less by a reconsideration resulting in a confirmation. The better view is that the "jurisdiction" of the court under s 20 is not affected by the exercise while the appeal is pending of powers given by subs (2) of s 6: what is affected is the subject matter of the appeal, the determination. Here the whole subject matter was revoked: the appellant complained of it all and it had all gone. Nothing existed for the magistrate to review.
(Emphasis added.)
113 Although Comcare sought to distinguish the decision in Swartz as having addressed a previous statutory regime with a different decision-making structure, the central point in that case was that the appeal by way of rehearing ceased to have any effect or utility once the determination the subject of the appeal was revoked. The appeal to the "County Court" considered in Swartz was equivalent to review by the Tribunal under the current SRC Act. The circumstances were therefore analogous to a situation in which a review proceeding before the Tribunal might be rendered abortive by a reconsideration decision that varies or revokes the determination to which the reviewable decision relates, a situation that is now addressed by s 67(2) of the SRC Act.
114 The Tribunal reached a similar conclusion in Re Coyne in which, after an application had been made for review of an earlier reconsideration decision, Comcare conducted a further reconsideration and made a decision that ostensibly "supersede[d]" the first reconsideration decision and "replaced" the primary determination with a new determination. The Senior Member accepted that Comcare had power to conduct the second reconsideration, notwithstanding that an application had been made to the Tribunal for review of the earlier reconsideration decision. The Senior Member (at [17]) characterised the second reconsideration as having "revoked" the decision that had been made by Comcare on its earlier reconsideration, which was "up till then the latest operable decision" and which had itself revoked (i.e. annulled or cancelled) the primary determination. In such circumstances, the Senior Member concluded (at [18]) that the Tribunal's jurisdiction in relation to the earlier reconsideration decision had "failed" because the decision "was no longer in existence, and no longer able to be reviewed". The Senior Member relevantly stated (at [21]-[22]):
Hence, in this matter, where a reviewable decision is cancelled, annulled or revoked by a further reconsideration, the applicant is entitled to costs because the review is aborted and comes to a premature and fruitless end, and the appeal therefore fails, there being nothing to review.
Hence, I would find that the first reconsideration is no longer a "reviewable decision" because it no longer exists, and there is nothing for the tribunal to review, and hence no jurisdiction for the tribunal to proceed with that review. The decision has been revoked, and the proceedings aborted.
115 As Comcare submitted, the circumstances in Re Coyne are not on all fours with those in the present case. In Re Coyne, Comcare had purported to reconsider and revoke a previous decision made on a reconsideration under s 62 of the SRC Act, which had accepted liability to pay compensation for permanent impairment under ss 24 and 27 of the SRC Act, as opposed to reconsidering the original determination. The applicant was dissatisfied with that decision and applied for review by the Tribunal, seeking a recalculation of compensation for non-economic loss under s 27 and an interim payment of compensation under s 25 of the SRC Act. The second reconsideration decision was made while the review application was pending before the Tribunal. In so far as the Senior Member stated (at [22]) that the jurisdiction of the Tribunal had "failed" and that there was "no jurisdiction … to proceed" with the review, this should perhaps be qualified in the light of the observations made in cases such as Swartz and Re Rebeiro that the revocation of a decision does not itself affect jurisdiction on an appeal or application for review of that decision. Nevertheless, the revocation removes the subject matter of such an appeal or review. This is consistent with a construction of s 62 of the SRC Act that there is nothing to reconsider once a determination has been administratively revoked.
116 Comcare argued that the decision in Re Coyne proceeded on an erroneous basis that there was power under s 62 to reconsider a reviewable decision that was made on a previous reconsideration under that section, which was said to be inconsistent with the construction of s 62 that was later adopted by the Tribunal in Re Rebeiro. It will be necessary to return to this argument below. It suffices to note that nothing in Re Rebeiro suggests that there is power under s 62 to reconsider an original determination that has previously been reconsidered and revoked.
117 The issues in the present case are not informed by the line of authority under which the fact of an invalidly made administrative decision can continue to have legal consequences for some purposes, such as founding an application for administrative review: see Brian Lawlor at 314-315 (Bowen CJ), 335-337 (Smithers J); Secretary, Department of Social Security v Alvaro (1994) 50 FCR 213 at 219 (von Doussa J, with whom Spender and French JJ agreed); see also New South Wales v Kable (2013) 252 CLR 118 at [52] (Gageler J). The primary determination in the present case has not been set aside by reason of jurisdictional error, but rather has been revoked (that is, annulled or cancelled) by a subsequent exercise of administrative power.
118 There is nothing in the broader statutory context which supports a construction under which s 62 confers power to reconsider a first-tier determination at any time, even if that determination was revoked at a subsequent stage in the decision-making processes. In so far as Comcare relied on s 67(2) as recognising that a determination may be reconsidered by the determining authority while review proceedings are on foot in respect of a reviewable decision relating to that determination, this simply reflects what is made explicit in s 62(1) - namely, that a determining authority can reconsider, and vary or revoke, a determination even if it has been the subject of a reviewable decision in respect of which an application has been made to the Tribunal. This does not necessitate a conclusion that there is power to affirm, vary or revoke a determination that has previously been revoked.
119 Comcare submitted that the statutory purpose or object is best achieved by its preferred construction of s 62(1), relying on the decision in Hannaford in which this Court recognised that the SRC Act allows for "progressive and evolving decision-making". Thus, Comcare submitted that the SRC Act establishes a flexible decision-making regime which allows decisions with respect to liability and entitlements to be revisited in circumstances where new or additional information becomes available, or where an error or oversight is discovered, or where there are changes in the understanding of the law.
120 Hannaford concerned a decision made by a Commonwealth authority that it was not liable to pay any further compensation to an employee under ss 16, 19, 24 and 27 of the SRC Act in the light of medical evidence establishing that he was not suffering from the relevant disease. However, the Commonwealth authority in that case did not reconsider or revoke the original determination by which it had accepted liability under s 14 to pay compensation to the employee in respect of the disease, based on which it had made past payments for medical expenses and incapacity under ss 16 and 19. The Court held that, on a review of the Commonwealth authority's decision, the Tribunal could make findings which departed from the underlying factual basis of previous decisions to accept liability and pay compensation to the employee - in particular, it was open to the Tribunal to make a finding that the employee did not suffer from the relevant disease. Each of Heerey J and Conti J, with whom Dowsett J agreed, concluded that the SRC Act allowed for "progressive and evolving decision-making allowing for the changes in circumstances which are inevitably likely to happen" (Heerey J at [10]) or "giving effect to the provisions of ongoing review of relief or entitlements in the nature of course of workers compensation, being review which allows for adjustment or change in the light of events and circumstances which may subsequently happen" (Conti J at [57]). In that sense, while the determination under s 14 had not itself been reversed on reconsideration or review, that determination did not permanently enshrine every finding of fact on which it was based: Hannaford at [8] (Heerey J).
121 The references to "progressive and evolving decision-making" in Hannaford were primarily concerned with subsequent events or circumstances which necessitate an adjustment or change to an employee's ongoing entitlements to compensation. The observations were not directed to the revocation of a past decision to accept liability to pay compensation under s 14 of the SRC Act on the basis that it should never have been found that there was a compensable injury, let alone a purported reconsideration of a determination to disallow a claim for compensation which was later revoked and replaced by a decision to accept liability. While Heerey J (at [8]) appeared to accept the premise that a decision to accept or deny liability under s 14 of the SRC Act, including any findings of fact, could be reconsidered under s 62 at any time, there is nothing to suggest that this was intended to encompass the reconsideration of a decision under s 14 that has since been revoked.
122 It is not correct to say that Comcare is "stuck" with a decision made under s 62 accepting liability under s 14 in respect of an injury, irrespective of any additional information that might subsequently come to light. First, it is not in doubt that Comcare can make determinations in relation to ongoing liability and compensation entitlements in accordance with the provisions of Pt II of the SRC Act, and that such determinations or decisions are not constrained by factual findings made in previous determinations or decisions under the SRC Act: Hannaford at [10] (Heerey J), [57] (Conti J); see also Plumb v Comcare (1992) 39 FCR 236 at 240-241 (Lockhart J, with whom Black CJ and Gummow J agreed); Power v Comcare (1988) 89 FCR 514 at 526-527 (Sackville J); Comcare v Hill (1999) 56 ALD 487 at [8]-[10] (Spender J); Commonwealth v Snell (2019) 269 FCR 18 at [70]-[71] (Allsop CJ, Reeves and Derrington JJ). Secondly, as discussed below, while s 62 does not confer power to reconsider the reviewable decision itself, it remains open to reconsider an extant "determination" within the meaning of s 60(1), including a determination as affirmed or varied on reconsideration or any decision on reconsideration that is made under s 14 (or any of the other specified provisions).
123 The respondent also contended that it was open to Comcare, as a "Commonwealth authority", to apply to the Tribunal for review of a reviewable decision under s 64 of the SRC Act. However, this was disputed by Comcare, and it is unnecessary to resolve that question for the purposes of the present appeal.
124 It follows that a construction of s 62(1) under which a determining authority does not have power to reconsider an original determination that has been revoked is not inconsistent with the purposes or objects of the statutory scheme established by the SRC Act.
125 The letter preceding the second reconsideration decision contained conflicting statements as to whether Ms Le was proposing to undertake a reconsideration "in relation to the decision which accepted liability for your claim" (which can only mean the first reconsideration decision) or "in relation to the determination dated 16 January 2014" (which can only mean the primary determination). In her statement of reasons for the second reconsideration decision, Ms Le stated that she was reconsidering the primary determination denying liability under s 14, and not the first reconsideration decision which accepted liability for the claimed injury. Nevertheless, the terms of the second reconsideration decision referred to Ms Le having decided that the respondent was not entitled to compensation for her claimed mental illness pursuant to s 7(7) of the SRC Act and that, "[b]y conducting a reconsideration of own motion and revoking liability" (emphasis added), the second reconsideration decision had raised an overpayment.
126 In such circumstances, it was not surprising that the primary judge concluded at J [67] that, "[w]hile Ms Le did not purport to review the [first reconsideration decision], that is precisely what she did", because "[o]therwise she could not have revoked liability for the claim and substituted a new determination". However, putting to one side the question whether Ms Le had power under s 62 of the SRC Act to reconsider the decision made by Ms Mohr to accept liability to pay compensation under s 14, it is clear that Ms Le proceeded on a misconception of s 62 as permitting reconsideration of the primary determination notwithstanding that it had been revoked.
127 For the reasons set out above, the primary judge was correct in concluding that the primary determination, having been revoked by the first reconsideration decision, was not open to be reviewed. As this was the focus of Comcare's arguments in support of grounds 1 and 2 of the appeal, those grounds must be dismissed.