ADMINISTRATIVE LAW - compensation of Commonwealth government employees - acceptance of liability to pay compensation - review of liability undertaken - cessation of liability determination not permissible - respondent consents to decision being set aside - request for remittal to original decision-maker - Tribunal to dispose of matter - Administrative Appeals Tribunal Act 1975 (Cth) s 42C

Administrative Appeals Tribunal Act 1975 (Cth) ss 33, 42C, 42D, 43

Safety, Rehabilitation and Compensation Act 1988 (Cth) ss 14, 16, 62

Australian Postal Corporation v Oudyn [2003] FCA 318; (2003) 73 ALD 659

Liu and Comcare [2004] AATA 617; (2004) 79 ALD 119

Rosillo v Telstra Corporation Limited [2003] FCA 1628; (2003) 77 ALD 396

John Kelleher was an employee of Telstra Corporation. He was injured at work and made a claim under the Safety, Rehabilitation and Compensation Act 1988 for compensation for his injury. Telstra accepted liability for the compensation and Mr Kelleher received compensation under the Act. It seems that Mr Kelleher's injuries resolved largely and for some time no claim for compensation was made by him. A little time ago Mr Kelleher wrote to Telstra indicating that he wished to seek a medical report relating to his injury and to do this pursuant to s 16 of the Act. This caused Telstra to review his position and in the result an authorised officer of the Government Insurance Office made a decision on behalf of Telstra that Mr Kelleher was no longer entitled to compensation or any other benefit pursuant to either s 14 or s 16 of the Act. This decision was confirmed on review. Mr Kelleher applied to the Tribunal for review of the reviewable decision. Telstra accepts that as a result of the combined effects of the decisions of the Federal Court in Australian Postal Corporation v Oudyn [2003] FCA 318; (2003) 73 ALD 659 and Rosillo v Telstra Corporation Limited [2003] FCA 1628; (2003) 77 ALD 396, and this Tribunal in Liu and Comcare [2004] AATA 617; (2004) 79 ALD 119, the reviewable decision cannot stand and is contrary to the provisions of the Act. Accordingly, Telstra accepts the decision must be set aside.

In the meantime it seems that Mr Kelleher no longer wishes to make any particular claim under the legislation but he does not wish to leave in place the adverse and incorrect decision that is presently before the Tribunal. In those circumstances, the question which arises is how this matter should be dealt with. There is no substantive matter to continue before the Tribunal apart from the issues relating to the decision that Mr Kelleher no longer has any entitlement.

One possibility would be for the matter to be remitted to the decision-maker for further decision pursuant to s 42D of the Administrative Appeals Tribunal Act 1975. An alternative possibility might be for the decision to be reconsidered pursuant to s 62 of the Act and be set aside. A third possibility is for the matter to be simply dealt with before the Tribunal now. Section 33 of the Administrative Appeals Tribunal Act 1975 requires proceedings before it to "...be conducted with as little formality and technicality, and with as much expedition, as the requirements of this Act and of every other relevant enactment and a proper consideration of the matters before the Tribunal permit."

It seems to me that consistently with the legislative requirement, the most convenient way for this matter to be dealt with is for the Tribunal to dispose of it here and now and that is both what I propose to do and what the parties now ask me to do. The appropriate course for the Tribunal is simply to set aside the decision under review and to substitute no decision in its place because there is no active application by Mr Kelleher for further compensation. This will have the effect of removing any suggestion that his entitlements have ceased altogether and leaving him free to make a further application if he should suffer the misfortune of a recurrence of any of the symptoms associated with his injury.

The order I propose then, with the consent of the parties, is a decision under s 42C of the Tribunal Act which simply sets aside the decision under review. I accordingly make the following decision: the parties having reached agreement as to the terms of the decision of the Tribunal in these proceedings and the Tribunal being satisfied of the necessary two preconditions set out in subs 42C(1) of the Tribunal Act the reviewable decision dated 26 March 2003 is set aside. By agreement of the parties the respondent is to pay the applicant's reasonable party and party costs up to and including the date of this decision in accordance with the Administrative Appeal Tribunal General Practice Direction dated 18 May 1998.

The course I have followed in this case seems to me to be the appropriate course to be followed for similar cases in the future. Once a matter is before the Tribunal the most expeditious way for it to be dealt with is within the Tribunal. Where no decision is sought under s 42C the matter can be dealt with under s 43. However, the provisions of subs 43(1) may require the substitution of a decision after the decision under review has been set aside. A decision that no other decision need be made should suffice.

I certify that the 6 preceding paragraphs are a true copy of the reasons for the decision herein of Justice Garry Downes, President

Signed: .........[sgd Shamus Toomey].........

Associate

Date of Hearing 3 November 2004

Date of Decision 3 November 2004

Counsel for the Applicant Ms Henderson

Solicitor for the Applicant Graham Jones Lawyers

Counsel for the Respondent Mr B S Kelly