//
© 2026 Zoe. All rights reserved.
Zoe is a legal information platform. Always consult the Federal Register of Legislation for authoritative text.
[2001] VCAT 1698
respondent. The application for review was dismissed, and the question of costs was reserved.
VCAT decided that the TAC's December 1999 letter was the operative decision rejecting Lindrea's benefits claim. The later internal review did not create a fresh review period because the TAC affirmed, rather than replaced, its original decision. The application was therefore outside the 12-month limit measured from the 1999 decision and was dismissed. The Tribunal noted that a different outcome could apply to the timing issue if an internal review resulted in the original decision being withdrawn and a new decision being made.
AI-generated legal information, not legal advice. Zoe can make mistakes. Check the cited source, and for advice about your situation consult a qualified Australian lawyer.
2,042 words · generated 01/10/2026
Debra Lindrea applied for dependency benefits following the death of Mark Sully, who was killed in a transport accident on 28 November 1993, aged 25 ([3]). Lindrea claimed that she was Sully's de facto wife and sought benefits under ss.57 and 58 of the Transport Accident Act 1986 (the Act) ([3]).
3 cited instruments linked from this judgment.
Her solicitors sent a claim to the Transport Accident Commission (TAC) on 17 December 1998. The TAC requested further information and, after correspondence, wrote on 10 December 1999 that it was unable to accept the claim because Lindrea did not qualify as a surviving spouse ([4]). The letter also said that the claim could be reviewed by the TAC's Review Manager or by VCAT ([4]).
Lindrea's solicitors requested an internal review on 10 January 2000, saying that referral to VCAT would be deferred until the review concluded ([5]). The TAC later received an inquiry agents' report with three witness statements ([6]). On 17 May 2000, the TAC advised that, having reviewed available information, it was unable to establish a permanent and bona fide de facto relationship or that Sully was an earner. It therefore affirmed the previous decision to deny dependency benefits ([8]).
Lindrea applied to VCAT on 19 January 2001. The application was within 12 months of the May 2000 letter, but not within 12 months of the December 1999 decision ([9]). The TAC asked VCAT to decide first whether it had jurisdiction to review the May 2000 letter ([2], [10]). The Tribunal recorded that it could not extend the time limit under the relevant transitional provision, clause 94 of Schedule 1 to the Victorian Civil and Administrative Tribunal Act 1998 ([10]).
Senior Member Jacqueline Preuss dismissed the application and reserved the question of costs ([39]). The central distinction was between a reviewable initial decision and an informal internal reconsideration that simply confirmed it.
The first question was whether the 10 December 1999 letter was itself a decision for s.77(1). Lindrea argued that it was not a proper rejection: it said that the TAC was “unable to accept” the claim, rather than expressly accepting or rejecting it under s.70(1)(a), and it contemplated that further information could be supplied ([18]). The Tribunal rejected that characterisation. It read the letter as a clear determination rejecting liability, especially because the letter expressly referred to review rights ([30]).
The Tribunal also rejected the argument that an alleged failure to comply with s.70(1), including the requirement about when a decision was to be made, meant there was no reviewable decision. Relying on the principle discussed in Brian Lawlor Automotive Pty Ltd v Collector of Customs (NSW), the Tribunal reasoned that the relevant question was whether a decision had been made in fact. Whether the decision-maker had power to produce the intended legal effect was a separate question from whether the decision could enliven review jurisdiction ([30]). The Tribunal referred to Surcik v Transport Accident Commission for the general proposition that a determination in fact may be reviewable even if made beyond power ([31]).
The second question was whether the May 2000 letter was a new decision. The Tribunal had conflicting earlier Tribunal authorities before it. In Cockayne, Judge Jones had treated a decision following an internal review as reviewable. In Ulanovsky, Deputy President Macnamara had concluded that an informal internal review was a managerial step without particular statutory standing, and that an affirmance did not restart the statutory period ([14]-[17]). Senior Member Preuss preferred Ulanovsky and declined to follow Cockayne ([32]).
The Tribunal's reasoning turned on the legal character of the internal process. The TAC's informal reconsideration was not the statutory reconsideration process that follows an application to VCAT under s.78. The internal review did not itself acquire statutory standing merely because the Commission looked again at the claim or considered additional information ([13], [32], [34]). The fact that significant material was evaluated only during the internal review did not change the status of the original decision ([34]).
The Tribunal did recognise an important distinction: if an informal review led the TAC to withdraw its previous decision and make a different decision, that replacement decision could be reviewable under s.77 ([35]). That did not happen here. The TAC's letter expressly affirmed the earlier decision ([8]), so the Tribunal treated the December 1999 rejection as the decision from which time ran.
The Tribunal also rejected the submission that treating the initial decision as operative would reduce the applicant's 12-month period. It said the period ran from the determination of the claim, and that negotiation, further material, or informal review did not reduce or renew it ([37]). It considered that allowing affirming internal reviews to refresh time could undermine the certainty intended by the 12-month limit ([37]).
The judgment records a conflict in Tribunal decisions, rather than a settled, uniform approach. Cockayne had treated a post-review decision as reviewable, while Ulanovsky had treated an informal internal review as a managerial process that did not create a new statutory decision when it affirmed the first one ([14]-[17]). In Lindrea, the Tribunal resolved that conflict for the matter before it by following Ulanovsky and not following Cockayne ([32]).
The judgment's working distinction is between an affirmance and a replacement. An initial rejection remains the relevant decision where an internal review simply confirms it. If the Commission withdraws the initial decision and makes a different one, that new decision may itself be reviewable ([35]). This distinction is grounded in the Tribunal's reasoning about the status of the informal review, not in a conclusion that the Commission can never make more than one reviewable decision. The Tribunal expressly accepted that the Act did not indicate that only one Commission decision could be reviewed ([32]).
The Tribunal also addressed the relationship with Australian Broadcasting Tribunal v Bond. It accepted that Bond dealt with a different question, judicial review of administrative decisions, and rejected the argument that Bond established that a s.77 decision had to be a decision with statutory standing under the Transport Accident Act ([36]). The Tribunal nevertheless concluded that the May 2000 affirmance was not, on these facts, a new decision for s.77 purposes ([36]).
The judgment does not provide a survey of later cases or say how later courts or tribunals treated Lindrea. It therefore supports no conclusion here about the precedent's subsequent history. It describes the applicable Victorian statutory provisions and the Tribunal's resolution of the conflicting authorities available to it in 2001.
At [30], the Tribunal said the 1999 letter “conveyed a clear determination rejecting liability to pay compensation”, even though it did not use the precise statutory words. In plain English, a letter can communicate a decision by its substance. A decision-maker's failure to use a particular formula does not necessarily mean that no decision was made.
At [30], the Tribunal also explained that a decision may be reviewable even if it was made beyond power or without satisfying a statutory requirement. In plain English, whether a decision is legally effective and whether it can be brought before a review body are distinct questions. The Tribunal's point was about the existence of review jurisdiction, not a final ruling that the 1999 decision was legally correct.
At [32], the Tribunal stated that an informal internal review had no particular statutory standing and that it would not be proper to treat an affirmance as a new, distinct reviewable decision. In plain English, reconsidering a claim informally does not by itself reset the clock for applying to VCAT.
At [35], the Tribunal qualified that position: a different decision made after internal review would be reviewable where the Commission withdrew its previous decision and made a new one. In plain English, the effect of the later letter depends on what the Commission did, not merely on the fact that it conducted a review.
At [38], the Tribunal said it was regrettable that the TAC's internal-review letter had not made clear that the 12-month period continued to run from the initial decision. It particularly emphasised that unrepresented applicants might not know of the Tribunal decisions on this issue. This was a practical observation about clear communication, not a change to the statutory time limit.
The judgment is most directly relevant to a fact pattern where a statutory decision-maker rejects a claim, offers or conducts an informal internal review, and then sends a second letter affirming the original decision. Lindrea treats the initial rejection as the reviewable decision and does not treat an affirmance as restarting the statutory 12-month period ([32], [34], [37]).
It is also relevant where the initial letter does not use the exact wording of the statute but communicates a definite outcome. Here, the TAC said it was unable to accept the claim and referred to review rights. VCAT treated that as a clear determination ([30]). The judgment also addresses an argument that a decision was made outside the time or procedure required by statute: the Tribunal considered that a decision made in fact could still enliven review jurisdiction ([30]).
The case is distinguishable on its own reasoning where the later review results in the Commission withdrawing its earlier decision and making a different decision. The Tribunal said that, in those circumstances, the different decision would be subject to review under s.77 ([35]). The judgment does not set out a comprehensive test for identifying when a letter amounts to withdrawal and replacement, so that question remains dependent on the terms and context of the actual decision.
The case concerns the particular provisions and procedural setting described in the judgment. It should not, on this source alone, be treated as resolving time limits or internal-review processes under other statutes.
The judgment itself does not discuss any later court or tribunal treatment of Lindrea. It identifies only earlier authorities available to Senior Member Preuss: Cockayne, Ulanovsky, Surcik, Bond, Brian Lawlor Automotive, and Mobourne ([14]-[17], [29]-[31], [36]). It follows Ulanovsky, declines to follow Cockayne, distinguishes Bond on the issue being addressed, and refers to the other authorities for the propositions described in the reasons.
Accordingly, no statement about later adoption, approval, limitation, or reversal of Lindrea can be grounded in this judgment alone. A researcher using this decision for current precedent analysis would need later authorities and the relevant current legislation to assess its subsequent treatment. This deep dive does not make that external assessment.
The judgment resolves the preliminary jurisdiction issue on the facts before it, but it does not answer every question that may arise around internal review. It does not provide a detailed test for deciding whether a Commission communication is an affirmance or instead withdraws and replaces an earlier decision. It states the distinction at [35], but application to different wording, conduct, or procedural history would require examination of those materials.
The judgment also does not decide the merits of Lindrea's dependency-benefits claim. The May 2000 letter referred to the evidence about a permanent and bona fide de facto relationship and whether Sully was an earner ([8]), but VCAT's determination concerned jurisdiction and time only ([2], [10]). The dismissal therefore should not be described as a merits finding about the relationship or the underlying entitlement.
Nor does the judgment decide what consequences follow in every case where an initial decision was made contrary to a statutory requirement. Its finding was that a decision made in fact could be reviewable even if made beyond power or without compliance with s.70(1) ([30]). The decision did not determine the substantive validity of the TAC's 1999 assessment.
Finally, the Tribunal's observation about the desirability of clear notice of time limits was directed to communications offering internal review ([38]). It did not create an extension power or alter the 12-month period. The Tribunal had recorded that it could not extend time in this case ([10]), and it dismissed the application because it was outside the period measured from the initial decision ([39]).
This is general legal information, not legal advice. Zoe can make mistakes. Before acting on this, relying on it, or using any draft, have a qualified Australian lawyer check it.
Medium Neutral Citation [2001] VCAT 1698
For the Applicant: Mr T Keely of counsel instructed by Messrs Maddens
For the Respondent: Mr I Miller instructed by TAC Law
1. By application for review filed with the Tribunal on 19 January 2001, the applicant sought to review a decision of the respondent made on 17 May 2000 denying her dependency benefits.
2. In the proceedings before me, the respondent requested that I determine the preliminary issue of whether the Tribunal had jurisdiction to review the respondent's decision.
3. Mr Mark Sully ("the deceased") was killed in a transport accident on 28 November 1993 when he was aged 25 years. The applicant claimed she was the de facto wife of the deceased and that she was entitled to benefits pursuant to sections 57 and 58 of the Transport Accident Act 1986 ("the Act"). To that end, by letter dated 17 December 1998 to the respondent, Messrs Maddens, solicitors for the applicant, claimed death benefits pursuant to sections 57 and 58 of the Act.
4. By letter dated 7 January 1999, the respondent sought further information from the applicant's solicitors in order to consider the applicant's claim for dependency benefits. Subsequently, after further correspondence between the parties, the respondent by letter dated 10 December 1999 (the 1999 decision), advised Messrs Maddens in part as follows :
"We refer to previous correspondence concerning your client's claim for payment of dependency benefits.
From the information available, TAC is unable to accept your client's claim as we believe Ms Lindrea does not qualify as a surviving spouse of an earner as per the provisions of the Transport Accident Act 1986.
Please contact the TAC on (03) 9664 6567 or toll-free 1800 332 556 if you have any queries or require further explanation regarding your client's entitlements or the basis for this decision.
If you are still dissatisfied with this decision or believe that relevant information has been overlooked, you can have your client's claim reviewed by the TAC's Review Manager or the Victorian Civil and Administrative Tribunal. Information about both of these options, including the relevant time limit, is enclosed".
5. By letter dated 10 January 2000 to the respondent, Maddens requested that the applicant's claim be reviewed and stated that "the question of referring this matter to VCAT will be deferred pending the outcome of the review hereby requested".
6. On 9 March 2000, the respondent received a report from Laurie Simmons & Associates, inquiry agents, containing three statements from witnesses relating to the applicant's claim
7. By letter dated 3 May 2000, Maddens requested information regarding the process of the review.
8. By letter dated 17 May 2000 (the 2000 decision), the respondent advised Maddens as follows :
"I refer to previous correspondence regarding the TAC decision to deny payment of dependency benefits to Ms Lindrea.
Having reviewed all available information, I am unable to show that Ms Lindrea was in a permanent and bona fide defacto relationship with Mr Sully at the time of his death. There is also insufficient evidence to show that Ms Sully was an earner at that time.
As a result, the TAC affirms the previous decision to deny Ms Lindrea access to dependency benefits.
In the event that Ms Lindrea remains dissatisfied with the outcome of this review, she can still seek a further review via the Victorian Civil and Administrative Tribunal as outlined in previous correspondence.
If you have any general concerns, please contact the TAC's Customer Service Centre on (03) 9663 7500 or STD toll free 1800 332 556. Please do not hesitate to call me directly if you have any further queries regarding this matter on (03) 644 6697".
9. As previously indicated, by application for review filed with this Tribunal on 19 January 2001, Maddens sought a review of the 2000 decision. It is not in issue between the parties that the application for review was filed within twelve months of the applicant 2000 decision of the 2000 but not within twelve months of the 1999 decision.
10. The preliminary issue before me is whether the 2000 decision is a reviewable decision within the meaning of s.77(1) of the Act. If it is not, the applicant's application for review is out of time. It is not in issue that by virtue of clause 94 of Schedule 1 of the Victorian Civil and Administrative Tribunal Act 1998 ("VCAT Act") the Tribunal does not have the power to extend time pursuant to s.126 of that Act.
11. Section 77(1) of the Act provides :
"(1) A person whose interests are affected by a decision of the Commission may, within 12 months after becoming aware of the decision, apply to the Tribunal for review of the decision".
12. Section 3 of the Act defines "decision" as including "declaration, determination, direction or order".
13. Section 78(1) requires the Commission to reconsider the decision within 28 days after receiving a copy of an application under s.77. Section 80(1) states that if, after reconsidering its decision, the respondent determines that the decision should be varied or revoked, it may do so.
14. There are conflicting authorities of the Tribunal as to whether a decision made by the respondent following an internal review of this nature is capable of review by the Tribunal. In Cockayne v Transport Accident Commission (No 880983 AAT of Vic 5 April 1989 unreported), his Honour Judge Jones, who was at that time President of the Administrative Appeals Tribunal, the predecessor of this Tribunal, ruled that such a decision was capable of review. In that case, the applicant's solicitors submitted a claim for compensation on behalf of the applicant arising from an accident on 23 September 1983. On 26 June 1987, the respondent forwarded a letter to the applicant's solicitors which stated in effect that it was the respondent's opinion that the accident in which the injuries were sustained could not be described as arising out of the use of a motor vehicle and that the claim could not be accepted. The applicant's solicitors were advised that if the applicant was dissatisfied with the decision she could seek a review of the decision by the review officer of the respondent or, alternatively, appeal directly to the Administrative Appeals Tribunal.
15. The applicant's solicitors requested the respondent to review its decision and provided further information including medical reports and witness statements. On 20 September 1988, the respondent wrote to the applicant's solicitors advising that it would not vary or revoke this decision. The issue before his Honour was whether the application for review was competent. The respondent contended that it was not on the basis that the application to review the decision of 26 June 1987 was out of time and the determination of 20 September 1988 was not reviewable. At pages 8 and 9 of his ruling, his Honour stated :
"What the Respondent has done here is to offer to review a decision that has been made about a claim upon additional information being provided. Upon being requested to do so it has received further information, carried out further investigations and made a review of the decision. In my view that procedure is consistent with the functions and objectives of the Respondent. Such a review may mean that the matter can be resolved more speedily and without the need for the matter to be referred to the Tribunal. I am satisfied that the Respondent has the power under the Act to conduct such a review of a decision. The question then is whether the decision made on the review is subject to Section 77(1) of the Act. In my view it is. It is a decision with respect to the Applicant's claim for compensation. The Respondent has, of its own volition, further considered in the light of additional material and investigations whether the Applicant's claim for compensation should be accepted or rejected and has determined that its earlier decision not to accept the claim should not be varied or revoked. In effect the Respondent, after review, has again decided that the claim should not be accepted. In my view, it would be contrary to the scheme and purpose of the Act if such a decision was not subject to review by the Tribunal. It is the intention of the legislature that a person aggrieved by a decision of the Respondent with respect to a claim for compensation under Part 3 or Part 10 of the Act be entitled to have that decision reviewed by the Tribunal. The determination of 20 September 1988 is, in my view, such a decision and is reviewable by the Tribunal. It would be unjust if it were not.
Thus, I conclude that the application for review is competent as the Tribunal is empowered to review the decision of the Respondent of 20 September 1988".
16. In Ulanovsky v Transport Accident Commission (1996/27642 AAT of Victoria 18 July 1997 unreported), Macnamara DP, came to the opposite conclusion. In that case by letter of 30 May 1995, the respondent provided advice to the applicant to the effect that it intended ceasing to pay the costs of a number of treatment modalities. He was offered a review by the respondent's review officer and advised of his appeal rights to the Administrative Appeals Tribunal. Subsequently, Mr Crossett, an officer with the respondent conducted a review. By letter of 8 August 1995, Mr Crossett advised the applicant that the respondent was not prepared to vary or revoke its previous decision.
17. Two issues arose in the proceedings before Macnamara DP, first whether the application for review subsequently filed by the applicant after receipt of the 8 August 1995 letter was out of time and secondly, whether the time for filing the notice of application for review should be extended. It was common ground that the application for review was within time only if the letter of 8 August 1995 was a decision capable of review. At page 5 of the decision, Macnamara DP stated :
"Returning to the facts of the particular case, it will be obvious that the reconsideration or review process carried out by Mr Crossett, whatever its other characteristics might be, was not one carried out pursuant to Section 78. Section 78 operates only when an application for review has already been filed.
Mr Jewell on behalf of the applicant, submitted that this was not a case where the Commission had merely reiterated a determination previously made, stating in effect, look, we've already told you the answer and it is `x'. Rather, this was a situation in which the Commission, according to its own description of the steps which it took, revisited the matter and reconsidered it. The result of that revisit and reconsideration is, in his submission, a new and distinct determination which is susceptible of review by this Tribunal, so long as the notice of application for review is lodged within 12 months of that new decision. He relied in support of that proposition upon a decision of his Honour Judge Jones, who was then Presidential of this Tribunal, Cockayne v Transport Accident Commission (1989) Transport Accident Cases 72, 163.
The matter before his Honour on that occasion exhibited many similar characteristics to the one before me. The two fact situations diverge in at least these respects, that what was in dispute there was an initial determination as to whether compensation should be payable at all, at the stage of Section 35 of the statute. Secondly, that the material furnished to the Commission upon the initial reconsideration process, included a fairly full set of documents constituted by witness statements and medical reports. Here the letter from the applicant might be thought to amount to little more than a cri de coeur".
"The offer of internal review in the present instance and in Cockayne's case, was in my view, not an offer of a procedure which has any particular statutory standing pursuant to the Transport Accident Act 1986. It was a managerial step aimed at attempting to resolve matters".
"Uninstructed by Cockayne's case, I would have thought that the analogy with the Limitation of Actions Act to which I have already referred is the correct one. Offers of alternative dispute resolution or some form of compromise which I think is the correct characterisation to place upon the offer of internal review, do not start the clock ticking again for limitations act purposes and in my view, they ought not to be regarded as affecting the running of the time limits under Section 77 of the Transport Accident Act. This form of internal review has no particular standing under the statute and in my view it would not be proper to give it a form of standing as a new and distinct and reviewable decision.
In expressing those views I am conscious that I am differing from a considered decision of the then President of the Tribunal and one that has stood for a considerable period of time. I differ from his Honour with diffidence and with the utmost respect but in the conviction that the view that I have taken is the correct one and further in the knowledge that as Mr Gorton has observed, the consequences of an adverse decision on this point for an applicant now, not as dire as they were at the time that Cockayne's case was decided.
Accordingly I determine that the reviewable decision here is the one communicated by letter of the 30th of May 1995".
18. Counsel for the applicant, Mr Keely, first contended that the 1999 decision was not reviewable for the purposes of s.77 of the Act. He argued that by virtue of s.70(1)(a) of the Act, the respondent was required to accept or reject a claim. However, the 1999 decision stated that the respondent was unable to accept the claim and the writer was contemplating that further information might come to light. He argued further, that the decision was not made within 28 days after receiving the claim for compensation (see s.70(1) of the Act).
19. Mr Keely argued in the alternative, that whether or not the 1999 decision was a decision for the purposes of s.77, the 2000 decision was such a decision. In support of that contention he argued that "decision" is broadly defined in the Act and in the VCAT Act and applies to a situation where an independent review officer makes a new decision after receiving additional information. He argued that the 2000 decision involved an administrative adjudication upon the merits of the applicant's claim under sections 57 and 58 of the Act. This was the first such adjudication from the materials that were available at that time, and the first time significant material had been weighed and evaluated by the decision-maker. He submitted that Ulanovsky could be distinguished as in that case, unlike in Cockayne, significant additional material had been received by the review manager following the initial decision.
20. It was further argued by Mr Keely that any suggestion by the respondent that applicants would "drag their feet" if a decision on internal review was capable of review by this Tribunal did not withstand analysis. The respondent was not obliged to offer internal review. Further, if the respondent considered an applicant was delaying matters, a time limit could be imposed on the review process. Presumably the purpose of the internal review was to achieve a settlement and save costs. The opposite side of the coin was that when the respondent made a decision on internal review, it had to accept that a new decision had been made and that there were new rights of review.
21. Mr Keely contended that Parliament had indicated the twelve month period was the appropriate time to obtain legal advice and make further investigations prior to lodging an application for review with the Tribunal. If the respondent's contentions were accepted this twelve month period would be reduced by the time taken by the internal review process. In the present case, five months elapsed. In Cockayne's case, the review process took in excess of twelve months. This had the effect of diminishing the length of time in which an applicant was entitled to seek a review.
22. He contended further that as the legislation was remedial, the provisions of the Act should be construed to give the fullest relief which the fair meaning of its language would allow. The construction of the Act contended by the respondent would not achieve one of the objects of the Act, namely, "to provide, in the most socially and economically appropriate manner, suitable and just compensation in respect of persons injured or who die as a result of transport accidents". (see s.8(b) of the Act).
23. Mr Keely referred to a decision of the High Court in Australian Broadcasting Tribunal v Bond [1990] HCA 33; (1990) 170 CLR 321. At p.337, Mason CJ stated :
"The answer is that a reviewable `decision' is one for which provision is made by or under a statute. That will generally, but not always, entail a decision which is final or operative and determinative, at least in a practical sense, of the issue of fact falling for consideration".
He argued that if a decision had to made as to whether the 1999 decision or the 2000 decision contained the final and operative decision it must be the 2000 decision. This was particularly so having regard to the fact that the 1999 decision fell short of an outright rejection of the claim and contemplated receipt of further information. He contended further that Bond's case could be distinguished from the present case. He argued that the Administrative Decisions (Judicial Review) Act 1977 (Cth) dealt with in that case applied to "a decision of an administrative character made, or proposed to be made, or required to be made .... under an enactment". Under the Transport Accident Act a decision was not related to that Act in any direct sense. To attract s.77 it was only necessary to have a decision of the Commission.
24. Mr Keely referred to the fact that there was no provision in the Act which stated that the respondent could not make more than one decision for the purposes of s.79. It was not uncommon for there to be an initial rejection and then acceptance of a claim. When this occurred there was by definition more than one decision.
25. During the course of his submissions, Mr Miller, counsel for the respondent agreed that following the review process, if the respondent made a different decision, that decision would be reviewable under s.77. Mr Keely submitted that having regard to that concession, it did not stand analysis to argue that a decision affirming the previous decision was not reviewable.
26. It was submitted by Mr Miller that it was important to recognize that at all relevant times, including at the time of lodgment of a claim with the respondent, the applicant was represented by her solicitors. Further, there was no evidence to indicate that she considered there was any ambiguity in the letter containing the 1999 decision causing her to think a decision had not been made. He submitted that such matters were relevant to the submission made on behalf of the applicant that the legislation was remedial in nature and should be construed in favour of the applicant. He submitted further that bearing in mind the deceased died in 1993, a claim was not lodged on behalf of the applicant until December 1998 and the applicant had failed to file an application for review until 19 January 2001, it could hardly be said that she had pursued the claim in a timely fashion.
27. Mr Miller submitted that the 1999 decision was a clear rejection of the applicant's claim for dependency benefits. However, if there was any doubt in relation to the matter, the next paragraph in the letter of 10 December 1999 advising the applicant that if she was dissatisfied with the decision she could have her claim reviewed by the respondent's review manager or the Tribunal made it clear that a decision had been made.
28. Mr Miller submitted further that the fact that Parliament had removed the power of the Tribunal to permit an extension of time by virtue of s.94 of the Schedule indicated that the time limit of 12 months must be strictly adhered to. He contended that if Mr Keely's submission that the 2000 decision was reviewable was accepted, the time limit imposed in the statute would be rendered meaningless. He contended that the 1999 decision was a decision in respect of the applicant's claim for compensation and therefore was a decision reviewable under s.77. As such, the 12 month period of time in which the applicant was entitled to lodge an application for review started to run.
29. Mr Miller submitted that the 2000 decision was not a decision made for the purposes of s.77 because the internal review process was not part of the statutory process. In this regard, he relied on Bond's case in which Mason CJ stated that a reviewable decision was one for which provision was made by or under a statute. Mr Miller also relied on a decision of Mr Davis PM in Mobourne v Transport Accident Commission (2000/90309 unreported). In that case Mr Davis PM followed Ulanovsky and found that the result of an internal review did not constitute a reviewable decision.
30. I turn first to Mr Keely's contention that the 1999 decision was not reviewable for the purposes of s.77 of the Act. In my view, the 10 December 1999 letter conveyed a clear determination rejecting liability to pay compensation, notwithstanding the precise words in s.70(1)(a) were not used. As Mr Miller contended, any possible doubt that a decision was made should have been dispelled by the paragraph in the respondent's letter referring to the applicant's right to have the "decision" reviewed by the respondent's Review Manager or this Tribunal. Further, in my view, the decision is reviewable even if it was made beyond power or without complying with s.70(1) (requiring that it be made within 28 days after receipt of the applicant's claim). In Brian Lawlor Automotive Pty Ltd v Collector of Customs (NSW) (1978) 1 ALD 167 a decision of the Commonwealth Administrative Appeals Tribunal, Justice Brennan (as he then was) later Chief Justice of the High Court of Australia, stated at p.180 :
"Where a decision is made beyond power, the legal effect which the decision-maker seeks to achieve is denied; but that says nothing as to whether the decision may be reviewed, quashed or otherwise affected by order of a court or of an appeal tribunal. The denial of the legal effect desired does not itself prevent the decision from having the effect of enlivening a jurisdiction conferred by law upon a court or appeal tribunal to review, quash or otherwise affect the decision. The right to invoke the jurisdiction depends upon the terms of the law creating that right in conferring jurisdiction to grant relief against the decision in question. Where `decision' is used in the provisions of the Administrative Appeals Tribunal relating to a right to reply for review, it is referring to a decision made in fact, and not to the effect which the decision may have under the power in the intended exercise of which it was made".
31. Deputy President Macnamara observed in Surcik v Transport Accident Commission (1996/15783 AAT of Vic unreported) at p.9:
"In my view as a general proposition therefore, a decision or determination which is a determination in fact is reviewable by this Tribunal and can enliven this Tribunal's jurisdiction even if it is made beyond power".
32. Mr Keely's contention that the 2000 decision was capable of review requires me to follow Cockayne's case. Overall, however, I found the reasoning of Macnamara DP in Ulanovsky to be more convincing, and the authority which should be followed in the present case. In particular, I was persuaded by the view expressed by Mr Macnamara that the form of internal review offered by the respondent in Ulanovsky and in Cockayne had no particular standing under statute but rather was a managerial step aimed at attempting to resolve matters. On that basis, it would not be proper to give it a form of standing as a new, distinct and reviewable decision. Whilst I accept Mr Keely's contention that the Act does not indicate that only one decision of the respondent is reviewable for the purposes of s.77, this does not persuade me that a decision of this nature is reviewable.
33. I also accept Mr Keely's contention that the Act (at least in part) can be regarded as beneficial legislation and should be given a construction which advances its legislative intent of providing benefits to applicants or their dependents injured in transport accidents. Ultimately, however, the Tribunal is required to give a true construction to the meaning of the words in s.77, without distorting the words in any way. Further, as Mr Miller contended, the inclusion of clause 94 in the Schedule to the VCAT Act indicates a clear intention of Parliament to restrict the time limits by which applicants can seek a review of a decision of the respondent.
34. In my view, the fact that it was not until the time of the internal review that significant material had been evaluated does not alter the status of the 1999 decision. What is relevant is that the 1999 decision was competent and the applicant was entitled to seek a review of it under s.77. Further, as Macnamara DP observed in Ulanovsky, "it would seem to me on so important a jurisdictional issue as this, surprising, if in determining when time ran, one had to descend to a minute consideration of the form of correspondence seeking reconsideration and determining whether genuine additional information had been given on the one hand or on the other hand, there was no more than a cri de coeur". On that basis, Mr Macnamara rejected the submission on behalf of the respondent that Cockayne's case was distinguishable as it involved receipt of substantial additional material received and considered by the respondent, unlike in Ulanovsky where no genuine additional information had been forthcoming.
35. I accept that if a decision is made on an informal review of this nature different to the initial decision that decision would be subject to a review under s.77. In those circumstances however the respondent has withdrawn its previous decision and made a new decision.
36. I also accept Mr Keely's contention that Bond's case is not authority for the proposition that a reviewable decision for the purposes of s.77 means a decision having standing under the Transport Accident Act. Bond's case deals with a fundamentally different point, judicial review of administrative decisions. However, I reject his contention that the 2000 decision was the "final or operative and determinative, at least in a practical sense, of the issue of fact falling for consideration". In my view, it is not to the point that the 2000 letter was made after a more detailed consideration of the applicant's claim.
37. I do not accept Mr Keely's submission that the 12 month period in which an applicant can seek a review will be diminished if the review decision is not subject to review under s.77. That period does not elapse until 12 months after the determination of the respondent's determination of the applicant's claim. The fact that there may have been negotiations between the parties, submission of new material or an informal review does not reduce this period. It merely provides an opportunity for the parties to try and reach a settlement whilst keeping in mind the that there is a 12 month cut off point for the seeking of a review by the Tribunal. Further, as Macnamara DP observed at p.8 of Ulanovsky, if the review application is subject to review, "this procedure would result in the twelve month period being freshened up, thereby destroying the certainty and advantages which the 12 month time limit bestows upon the Commission".
38. Some uncertainty has existed as to the status of a decision made by the respondent following an informal internal review having regard to the decision in Cockayne and the conflicting decision in Ulanovsky. It is regrettable in those circumstances that the respondent did not state in its letter to the applicant's solicitors offering an internal review that the 12 month time limit to file an application for review with the Tribunal nonetheless commenced from the date of the initial decision. It is particularly important that such information be provided to applicants who are not represented and who are unlikely to be aware of any decisions of the Tribunal in relation to this point. In my view a clear statement of the correct position should be included in any letters from the respondent to applicants or their solicitors when offering an internal review .
39. In view of my findings, the application for review is dismissed. I reserve the question of costs.
Lindrea
TAC [2001] VCAT 1698
(1990) 170 CLR 321
The application for review was dismissed, and the question of costs was reserved.