Lindrea v Transport Accident Commission [2001] VSC 463

[2001] VSC 463

Transport accident - claim for compensation - claim rejected - informal internal review by Transport Accident Commission of decision to reject claim - decision affirming initial decision - application for review by Victorian Civil and Administrative Tribunal - whether internal review decision a decision for purposes of s. 77(1) of Transport Accident Act 1986 - whether application for review by Tribunal made out of time. Appeal - appeal against decision of Tribunal that application for review of decision of Commission commenced out of time. Transport Accident Act ss. 3, 70, 77.

2. The question of law which arises on this appeal is whether a determination by the Transport Accident Commission ("the Commission") upon an informal internal review was a decision of the Commission under s. 77(1) of the Transport Accident Act 1986 ("the Act") in the circumstances of the particular case. If it was then an application for review made by Debra Lindrea to the Victorian Civil and Administrative Tribunal ("the Tribunal") was brought within the time limited by s. 77(1). If it was not, then the application was made out of time. The Tribunal, by decision dated 22 May 2001, decided the point of construction adversely to Ms Lindrea (whom I shall call "the appellant" not withstanding that she is by title plaintiff in the present proceeding).

6. The factual framework of the matter is clear. Mark Sully was killed in a transport accident on 28 November 1993. On 17 December 1998, the appellant claimed death benefits and periodical payments under ss. 57 and 58 of the Act. Sections 57(1) and 58(1) refer to a "surviving spouse". That term is defined by s. 3(1), as is "dependent spouse". "Spouse" is given an extended meaning by s. 3(6). The appellant claimed to have been the de facto wife of, and dependent upon, the late Mr Sully.

9. The appellant's claim was eventually rejected in December 1999. By letter dated 10 December the Commission wrote to the appellant's solicitors pertinently as follows:

"We refer to previous correspondence concerning your client's claim for payment of dependency benefits. We apologise for the delay in our reply. 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. ... 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."

13. Although the letter was couched in terms of inability to accept the appellant's claim, it undoubtedly communicated rejection of a claim for compensation, and it affected the appellant's interests. Hereafter, I shall refer to the rejection as "the December decision".

16. The appellant's solicitors requested internal review of the decision. That was by letter dated 10 January 2000. They did not then make application for Tribunal review of the December 1999 decision. They said in their letter that "the question of referring this matter to VCAT will be deferred pending the outcome of the review hereby requested".

19. The review sought by the appellant's solicitors is not specifically provided for by the Act. It was part of the subject matter of a "factsheet" appended to the Commission's letter of 10 December. That document referred to "two avenues for review available to TAC claimants" for review of a TAC decision. Those avenues were described as "TAC Review Manager" and "Victorian Civil and Administrative Tribunal". This is what the document said about the first of those avenues:

"TAC Review Manager An informal review process offered by the TAC to all claimants Claimants can request a review of their claim and reconsideration of any determination regarding their entitlements. The Review Manager is independent of the claims management areas and reports to a Senior Executive of the TAC. The process includes discussion with the claimant about their concerns and in some cases, a face-to-face meeting may be arranged with the claimant to discuss complex issues. There is no cost associated with the TAC review process and the majority of reviews are resolved within 4 weeks. If you would like further information about the TAC review process, please call the Claimant Relations Branch on (03) 9664 6354 or e-mail review@tac.vic.gov.au If you choose to have the decision reviewed by the Review Manager, please send a letter enclosing any additional information you may have to:

TAC Review Manager

GPO Box 2751Y

MELBOURNE 3001

Please also ensure that you include a telephone number you can be contacted on during business hours, so that we can discuss your concerns and keep you up to date on progress. If you are dissatisfied after the TAC review has been completed, you continue to have a right of review at the Victorian Civil and Administrative Tribunal (VCAT)."

At the foot of the section of the document referring to the latter avenue the following appeared:

"If you choose review by the Tribunal, you must obtain a `Notice of Application for Review' (these are available from the TAC or the Tribunal) and send it directly to the Victorian Civil and Administrative Tribunal, along with the filing fee of $170.00, within 12 months of becoming aware of the decision."

25. The Commission conducted an internal review. It is clear that it considered material additional to that which it possessed when the appellant's claim was rejected in December 1999. The outcome of the review was advised by letter dated 17 May 2000. The letter relevantly said this:

"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 bone fide defacto relationship with Mr Sully at the time of his death. There is also insufficient evidence to show that Mr 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."

I shall hereafter refer to the outcome of the internal review as "the May decision". Nothing is to be taken from my use of the word "decision".

30. The appellant then filed an application for review with the Tribunal. This happened on 19 November 2001. She sought a review of the May decision. She did not seek a review of the December decision. Any application to review that decision would have been out of time.

34. The relevant provisions of the Act read simply. A claim for compensation is to be made upon the commission. See ss. 67 and 68 of the Act. Liability to pay compensation must either be accepted or rejected within a quite short period of time, subject only to the possibility of further information being sought or supplied. See s. 70. It could not be doubted that a decision to accept or to reject liability is a decision affecting a claimant's interests for the purposes of s. 77(1). Consequently, such a decision will provide the foundation for an application to the Tribunal under s. 77(1). Such an application is subject to a time limit. The Tribunal has been deprived of power to extend time, by legislation following upon a decision of the Court of Appeal that such a power existed[1].

37. Once a Tribunal review has been sought there is a statutory obligation upon the Commission to reconsider its decision, or to seek particulars as a precursor to reconsideration. The Commission's obligations, and the obligations of an applicant for review, are subject to performance time limits. See s. 78. The Commission's powers on reconsideration are prescribed by s. 80. Again a performance time limit is imposed. The Tribunal is precluded by s. 77 (4) from, in substance, commencing the hearing of a review application until reconsideration is complete or deemed to be complete; or until application is made to have the proceeding struck out in the event that the applicant fails to provide requested particulars or information within a prescribed period[2].

40. The statutory framework thus described tends strongly, in my opinion, towards a conclusion that "the decision" referred to in s. 77(1) is, where a decision is required under s. 70, the decision - and only the decision - made under that section to accept or reject a claim for compensation. Thus construed, the sections, read together, create a coherent regime with recognisable time limits that can be applied in every case.

43. So to read the legislation does not open up the prospect of the time limit imposed by s. 77(1) operating differently depending upon whether a claimant does or does not seek informal internal review - assuming that the same is available. It does not open up the prospect of that time limit operating differently depending upon the time when a request for internal review is made; or upon the time when internal review is completed. It does not open up the prospect of the time limit operating differently according to whether the s. 70 decision is affirmed or varied[3]. It does not open up the prospect, were the appellant's submissions to be accepted, that the time limit might operate differently according to whether the Commission simply reconsidered existing material or rather founded its reconsideration - in part at least - on material coming to hand after the s. 70 decision was made. It does not open up the prospect, were the appellant's submissions to be accepted, that there could be factual debate whether the Commission, in a particular case, had considered and/or acted upon new material.

46. It seems to me highly improbable that the legislature should be taken to have intended that the period of time elapsing between the making of a s. 70 decision (or deemed decision) and the institution of a review application before the Tribunal could in a practical sense be susceptible of variation by reference to such disparate circumstances.

51. Mr Keely of counsel, for the appellant, advanced, however, a number of submissions in support of a conclusion that in this case the May decision did constitute a "decision" for the purposes of s. 77(1). Those submissions were thoughtfully and attractively developed, and require careful consideration. As finally expanded, they did not in every respect mirror counsel's written submissions. I deal with them in their final form.

54. Counsel submitted that the May and December decisions were each decisions for the purposes of s. 77(1). But if Parliament should be taken to have intended that there could only be one decision for s.77(1) purposes then the December decision - by contrast with the May decision - did not have the character required by the Act. It lacked that character because it did not meet the requirements of s. 70.

57. I reject the second aspect of that submission.

60. First, Mr Keely correctly submitted that the December decision was not made within the period referred to in s. 70(1). But s. 70(1)(b), (2), (3) and (4) in combination contemplate that a decision may be delayed. In the present case, it is clear from exhibit AJF7 to the affidavit of Andrew Fraatz sworn 25 June 2001 that the Commission sought and received information periodically in the period between December 1998, when the claim was made, and December 1999, when it was rejected.

63. Second, Mr Keely's submission that the December 1999 letter did not convey a s. 70 decision because it did not unequivocally reject Ms Lindrea's claim and because it lacked finality - referring only to a decision upon information available - inventively played on the language of the letter. But I cannot say that the submission was of substance.

66. Mr Keely's preferred position, as I noted a few moments ago, was that each of the December and May decisions was a decision for s. 77 1) purposes. It is not clear to me whether he contended that the May decision should be regarded as falling within s. 70 in the event that the December decision fitted that section. If he did raise that contention, I reject it. The Act does not contemplate a multiplicity of s. 70 decisions. Nor does it contemplate the possibility of successive but inconsistent s. 70 decisions.

69. Mr Keely's submission that the May decision was a decision for s. 77(1) purposes was put in part this way: "Decision" is defined inclusively by the Act, and broadly so. The word in its dictionary meaning has a broad field of operation. For a number of reasons it would be wrong to narrow down the meaning given to the word where used in s. 77(1). So, first, s. 77(1) does not specifically refer to a decision made under s. 70; or to a decision made under other sections of the Act which require decisions to be made[4]. Second, to read "decision" restrictively would compromise the objective set out in s. 8(b) of the Act. Third, neither the Second Reading Speech nor the Explanatory Memorandum suggest that a narrow meaning should be given to the word. Fourth, the Act is remedial legislation and its provisions should be construed to give the fullest relief that the fair meaning of the language will allow. Fifth, if a narrow construction had been intended, a definite trigger for the commencement of the 12 month period was likely to have been stated in the legislation.

72. I accept Mr Keely's submission that the definition of "decision" in the Act, and dictionary definitions, are expansive.

75. It is next obvious that s. 77(1) does not refer specifically to a decision under s. 70, or to a decision under other sections of the Act. It is also that fact that some legislation does state with more or less precision the trigger event for a review[5]. But that is not to say, on a proper reading of the relevant provisions, that the Act does not clearly specify an event upon whose occurrence commencement of the s. 77(1) period is triggered. If s. 77(1) be read, so far as is presently relevant, to refer to a s. 70 acceptance or rejection of a claim for compensation, there would indeed be a definite trigger in every case.

78. I next refer to the second and third reasons relied upon by Mr Keely why "decision" in s. 77(1) should be given an expansive meaning. I consider that neither of them is of substance. Section 8(b) throws no light, in my opinion, on the issue of construction here involved. It could just as easily, and with as little force, have been relied upon by the Commission. Then, so far as the Second Reading Speech and the Explanatory Memorandum are concerned, it seems to me that their silence is ambiguous.

81. I turn to Mr Keely's reliance upon the allegedly remedial character of the legislation. Perhaps, in some respects, the Act can be so characterised. In other respects such an appellation could not be given it. The well known dicta cited by Mr Keely[6] were made in cases in which the relevant legislation was unequivocally remedial. Whether those dicta ought be applied to so much of an Act as can be thus characterised despite other parts of that Act being destructive of established rights is a moot question. If that be appropriate, and I will assume that it is[7], then Parts 3 and 4 of the Act should be characterised as remedial notwithstanding that performance time limits are imposed by sections within those Parts. It has never been said that the character of traditional workers' compensation legislation was other than remedial notwithstanding the existence therein of time limits.

84. In all, then, some but by no means all of the considerations urged by Mr Keely why "decision" in s. 77(1) should be given an expansive rather than a narrow meaning, as would comprehend the Commission's internal review decision, were made good.

87. Mr Keely made other submissions why the May decision should be considered a decision comprehended by s. 77(1). He relied upon the decision of his Honour Judge Jones, sitting as President of the Administrative Appeals Tribunal, in Cockayne v Transport Accident Commission[8]. His Honour was faced with a factual situation very like the present. He rejected the Commission's apparent contention that its internal review had no legal basis. He held that Act, as remedial legislation, should be construed beneficially. He concluded that the Commission was empowered to conduct an internal review. Upon the presently critical question he held that the decision on review was subject to s. 77(1) of the Act. He said this:

"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."

91. Counsel submitted that Cockayne had stood unimpeached for some eight years in which period the Act had remained unamended. He acknowledged that the decision of Deputy President McNamara in Ulanovsky v Transport Accident Commission[9] relied upon by the Tribunal in the present case, was at odds with the ruling in Cockayne. But he contended that the reasoning in Ulanovsky was unsound.

94. Mr Keely's reliance upon Cockayne threw into relief a further submission which he made - that is, that the May decision was a s. 77(1) decision because it was a discrete adjudication founded in part upon new material. He argued that it was strongly arguable, if no new material comes to light, that there is no fresh evaluation or assessment of material resulting in determination of an issue. There is then no decision. But it is otherwise if new material is present and is considered. This was such a case.

97. In Cockayne, Judge Jones emphasised at several points the receipt by the Commission of further information and the carrying out by it of further investigations as steps in the review. Looked at narrowly, his Honour's decision could possibly be said to rest on those circumstances. But there is nothing to indicate that his Honour would have distinguished between such circumstances and a case in which the review reconsidered extant material. I do not think, in short, that Cockayne supports the proposition that such a distinction should be drawn. However, it certainly provides support for the appellant's case otherwise.

100. Focussing, for the moment, upon the appellant's contention that the May decision was a decision for s. 77(1) purposes because, inter alia, it involved the consideration of fresh material, I should briefly refer to Ulanovsky. There, the Deputy President declined to distinguish Cockayne on the footing that in the one case consideration of fresh material had been involved, in the other case not[10].

103. In my respectful opinion the Deputy President was right to reject the supposed distinction. I see no reason why the conclusion of a second person, founded on fresh consideration of material previously considered by another, should not lead to that conclusion being accounted a decision - at least if the second decision does not affirm the first, as to the possible significance of which see later in these Reasons. I add that in my opinion the Deputy President adverted to a second relevant consideration when he observed that:

"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 the 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."[11]

107. If Mr Keely's submission, contrary to the view I have expressed, was correct, then as I said earlier it would open up the prospect of the time limit operating differently according to whether the Commission's decision on review was based upon wholly old or partly new material; and it would potentially open up room for factual debate whether new material had been accessed, and whether it had been considered by the Commission. Such matters would tend to show an improbable uncertainty in the working of s. 77(1). But if Mr Keely's submission was not correct that consequence would disappear, to be replaced by the prospect of a presumably larger group of prospective Tribunal applicants whose temporal rights of application would be affected by other uncertainties to which I earlier referred.

110. I come back to the competing opinions expressed otherwise in Cockayne and Ulanovsky. In my respectful opinion Judge Jones was certainly correct in concluding that it was within the power of the Commission to conduct an informal internal review. As at present advised I think that he was also correct in concluding - as a matter of ordinary parlance - that a decision on such a review is a decision with respect to a claim for compensation. But it does not follow, in my opinion, that the decision falls within s. 77(1). Whether it does depends upon the particular provision, considered in context; and upon authorities which give guidance as to what is comprehended by a decision in respect of which there is statutory right of review.

113. His Honour considered that it would be contrary to the scheme and purpose of the Act if an informal review decision was not subject to review by the then Administrative Appeals Tribunal. One can also agree in general with that proposition. But it does not follow that for the purposes of s. 77(1), as it relates to time, the reconsideration decision is to be taken to be "the decision" there referred to.

116. In the event, I consider that whilst Cockayne gives support for the appellant's argument, it left certain issues not fully explored.

119. What then of Ulanovsky? Mr Keely, referred me to the following passage in the Reasons:

"If the present application was determined in the manner suggested by the applicant, this procedure would result in the 12 month period being freshened up, thereby destroying the security and the advantages which the 12 months time limit bestows on the Commission."

124. The particular submission can be shortly dismissed. The passage cited was no more than a recitation of the argument of counsel for the Commission.

"Offers of alternative dispute resolution or some form of compromise... do not start the clock ticking again for (L)imitation (A)ct purposes and... they ought not be regarded as affecting the running of the time limits under Section 77 of the... 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."

131. I do not consider that an analogy can be drawn between the type of situation now under consideration and the operation of a Limitation of Actions Act provision in the context of an accrued cause of action and later settlement discussions concerning that cause of action. But it is certainly true to say that informal internal reviews have no particular standing under the Act; and there are reasons, although the Deputy President did not adumbrate them, why decision upon such a review should not be accounted a decision for s. 77(1) purposes.

134. All in all, I am unable to treat either Cockayne or Ulanovsky as satisfactorily resolving the issue which I must decide. That is not to say, as I have attempted to make clear, that each of those cases does not provide some insight into resolution of the problem.

137. I turn to a matter relied upon by the Commission, and disputed by the appellant. According to the submission of Mr Uren, senior counsel for the respondent, the decision for Tribunal review purposes is the decision first made in the event that it is affirmed on reconsideration. That was said to be the import of authorities in the Federal jurisdiction. Counsel submitted that they should be applied in the present context. In consequence, the appeal should be rejected upon a narrow ground.

140. Pressed by me, Mr Uren submitted that it would not matter whether the reconsideration led to affirmation or variation of the decision first made. But he cited no authority in support of that submission, and it was contrary to a concession made by the Commission's counsel before the Tribunal - a concession withdrawn before me.

143. For his part, Mr Keely submitted that the real question is whether the result involves an administrative adjudication, whether it determines or settles a question or controversy between the parties, whether it settles a question in dispute or brings a matter to a conclusion. That is equally the case, he submitted, whether the decision under review is affirmed or varied.

146. I have examined the cases cited by Mr Uren in support of his key proposition. They were, in chronological order, Re X and Defence Force Retirement and Death Benefits Authority[12]; Gee v Director General of Social Services [13]; Yolbir v Administrative Appeals Tribunal and Anor [14]; Pirelli Tyres (Aust) Pty Ltd v Collector of Customs[15]; Re Uniway Pty Ltd and Chief Executive Officer of Customs[16] and Ulanovsky.

45 Re X, Gee, Pirelli Tyres and Uniway were all decisions of the Commonwealth Administrative Appeals Tribunal. The presiding member in Gee was the President of the Tribunal, Davies J. Yolbir was a decision of a Full Court of the Federal Court.

46 Re X does not support Mr Uren's contention. As can be seen from paragraph 19 of the decision, everything turned on s. 99(6) of the relevant legislation. It provided that applications might be made to the Tribunal for review of decisions of the Authority, being decisions that have been confirmed or varied under sub-section (4).

151. In Gee, the Director General of Social Services raised a raft of arguments why an appeal brought by the applicant was incompetent. One of the arguments was that an original decision of an officer of the Department concerning the applicant, as thereafter varied, had been affirmed. It was contended that the effect of the affirmation was to extinguish the original decision. The Tribunal rejected that contention[17]. It did so on general principles and also having regard to the form of the particular legislation. It left open the question of the effect of variation of an initial decision[18]. In all, Gee supports Mr Uren's key submission.

154. In Yolbir, what was in issue were provisions of the Administrative Appeals Tribunal Act 1975 (Cth) and the Social Security Act 1991 (Cth). The former Act empowered the Tribunal, by s. 41(2), to make orders staying or otherwise affecting the operation or implementation of the decision to which the Tribunal proceeding related. The latter Act provided that where a decision of the Department had been reviewed by the Social Security Appeals Tribunal, and had been "affirmed, varied or set aside", application could be made to the Administrative Appeals Tribunal for a review of the decision. The decision under review was described by that Act in this way: "Where the SSAT affirms a decision - the decision as affirmed". The Administrative Appeals Tribunal concluded that it did not have power under the Administrative Appeals Tribunal Act to stay an initial decision concerning a man's pension because that decision had been reviewed by a Social Security Appeals Tribunal; and it was the review decision which was in turn to be reviewed. In so concluding the Administrative Appeals Tribunal relied on the provision in the Social Security Act to which I referred a moment ago.

157. The issue was one of construction. It was dealt with by the Full Federal Court notwithstanding that in fact the dispute between the parties had been settled before the matter came on for hearing. The costs question provided a vehicle for considering the matter. The Court followed Gee, and later cases, in holding that a review under s. 41 of the Administrative Appeals Tribunal Act was a review on the merits of the decision which affected the rights of the applicant, not a review of a decision affirming such an earlier decision. The Court did not refer to that part of the Social Security Act relied upon by the Administrative Appeals Tribunal. Had it done so, I think that the outcome could have been no different.

50 Pirelli Tyres turned upon the meaning given by the Tribunal to the word "decision"[19]. The Tribunal did say that the informal administrative review upon which the applicant relied was no more than "an affirmation of the earlier rejection"[20]. Not too much can be drawn from that case.

51 Uniway, like Pirelli Tyres, was a customs case. The circumstances also were very similar. The Tribunal apparently adopted the reasoning in Pirelli Tyres[21]. But I think that it was influenced by its view that once a Collector of Customs had made a pertinent decision the relevant legislation conferred no power of reconsideration.

162. In the event, most of the cases cited by Mr Uren given some support for the key submission that he made. But all of them were affected, to greater or lesser extent, by the particular legislative framework in which the problem was considered. The strongest position for the present respondent was that expressed by the Tribunal in Gee[22]. Further, although the matter was only mentioned in passing in Gee[23], it may be that no distinction ought in principle be drawn between affirmation and variation.

165. It is convenient next to refer to a slightly different argument put by Mr Uren which focussed both on affirmation of a decision and upon the language of s. 77(1). He submitted that a decision affirming an earlier decision did not affect the appellant's interests. In the present case the consequence of the December decision was that the appellant's claim for compensation was rejected and she was not paid compensation. That decision affected her interests. But the May decision had no impact upon the situation. An applicant under s. 77(1) must be "(a) person whose interests are affected by a decision".

168. In my opinion, whatever may be said about the affirmation argument more generally advanced, there is force to the particular argument just noted. I do not think that it was rebutted by Mr Keely.

171. I turn to another submission made by Mr Uren. He contended that the policy of the Act is that a strict time limit applies for the bringing of applications for Tribunal review. The effect of Bell was overcome by Clause 94 of Schedule 1 of the Victorian Civil and Administration Tribunal Act. It would be inconsistent with that policy to permit a claimant to enlarge the period from statutory decision to institution of an application for Tribunal review by making a delayed request for internal review.

174. Mr Keely's response to the submission just noted was twofold. First, it was entirely within the Commission's province to decide if it would entertain an internal review; and, if it would, then what time limits if any it would set upon the making of an application for review and for its disposition. Second, the insertion of clause 94 cast no light on the meaning of "decision" in s. 77(1).

177. The first point made by Mr Keely in response is true. But it really leads nowhere. The question is what triggers the 12 month period in s. 77(1). If it can be something other than the statutory decision then its end point may, but will not necessarily, be later than 12 months after the statutory decision. All will depend upon whether or not the particular claimant seeks internal review.

180. The second point in response was not, I think, substantial. It is true that the legislative overturning of Bell did not directly bear upon the meaning of "decision" in s. 77(1). But it powerfully underlined concern of the legislature that the process culminating in Tribunal review should operate within confined and immoveable time limits. It would, I think, not be readily consistent with that for the commencement of the 12 month period to be variable according to whether a claimant did or did not seek informal internal review.

184. In my opinion this appeal was commenced outside the time permitted by s. 77(1) of the Act. That was so for at least two reasons.

187. First, I consider that where a claim for compensation is made which requires a decision under s. 70, it is that decision (or deemed decision) and no other which is the decision for s. 77(1) purposes. I do not deny the power of the Commission to invite and undertake an informal review of its statutory decision. But in my opinion the structure of the Act, which is pertinently replete with time limits, strongly suggests that in every case involving s. 70 there is to be a common starting point - that is, the s. 70 decision itself.

190. Second, I consider that the May decision, which affirmed rejection of the claimed entitlement to compensation, should not be considered a decision affecting the interests of the plaintiff. The decision of that character was the decision which rejected the claimed entitlement.

193. Concerning those conclusions I should make the following points: First, the consequence of the first of my conclusions is I differ from the decision of the Tribunal in one respect. The Tribunal concluded that a decision on internal review varying a s. 70 decision (though this was not such a case) would be a decision for s. 77 purposes. In light of my first conclusion there is no room for an informal review decision having that character. It matters not - particularly it is the case if the review decision varies the original decision - that the review decision has the determinative character of a decision. No doubt the fact of the re-determination in such a case will be relevant in the event that an application has been made for Tribunal review. It might be the case that the Tribunal application becomes irrelevant, or that the issue for consideration by the Tribunal will in substance be narrowed; just as might occur in consequence of a s. 78 review. But those considerations do not bear upon what is "the decision" for s. 77(1) purposes.

196. Second, I have not acted upon what I have called the general argument concerning affirmation. But my first conclusion renders that argument superfluous.

199. Third, to make the matter crystal clear, I have given full account, in the statutory construction exercise, to those parts of Mr Keely's submissions which I have accepted in the course of these Reasons. I have simply not been persuaded that they overcome the impact of s. 77(1) read in its statutory context.

202. Fourth, as I indicated earlier in these Reasons, I was unable to regard either Cockayne or Ulanovsky as satisfactorily resolving the constructional issue raised by this appeal.

205. A final point needs to be made, and underlined. It was made by the Tribunal in its Reasons.[24] If the Commission intends to continue to offer claimants the opportunity of internal review, which might be much to its economic advantage as well as to the advantage of individual claimants, a fact sheet such as was provided to the claimant in this case should leave absolutely no room for doubt that s. 77(1) time begins to run when a s. 70 decision is made or is deemed to have been made. It cannot be said that the fact sheet here provided was suitably unambiguous. It can be expected that many claimants will be unrepresented. In no real sense can such persons be expected to know the law. Such persons should not be faced with the risk that their statutory review rights could unknowingly be lost to them.

[1] See Bell v Transport Accident Commission [1998] 3 VR 288; and Clause 94 of Schedule 1 of the Victorian Civil and Administrative Tribunal Act 1998, operative from 1 July 1998.

[2] As in the last mentioned situation, see ss. 77(4)(c) and 78(5).

[3] Senior counsel for the Commission submitted, see later in these Reasons, that at least a review affirming a s. 70 decision was not a s. 77(1) decision. He argued also that a review which varied a s. 70 decision would not be a s. 77(1) decision; but he did not develop that submission, and the cases which he cited do not lead to that conclusion.

[4] For example, ss. 46, 46A, 47(7) and 55.

[5] See, for example, the definition of "reviewable decision" in the Safety, Rehabilitation and Compensation Act 1988 (Cth). See also the regime for conciliation antecedent to commencement of proceedings which operates in many instances under the Accident Compensation Act 1985.

[6] And see also Wilson v Wilsons Tile Works Pty Ltd (1960) 104 CLR 328 at 335 per Fullagar J and Dodd v Executive Air Services Pty Ltd [1975] VicRp 66; [1975] VR 668 at 679 per Newton J and at 682 per Norris J.

[7] Though see the observations of Brooking J, doubting, in Transport Accident Commission v Treloar [1992] VicRp 31; [1992] 1 VR 447 at 462; and note observations in connection with similar problems in Mayne Nickless Ltd v Mackintosh [1989] VicRp 79; [1989] VR 878 at 883 and 887 per Murphy J, and by the Full Court in Wellbridge v Jackson [1990] VicRp 59; [1990] VR 689 at 696.

[13] (1981) 58 FLR 347.

[14] [1994] FCA 910; (1994) 48 FCR 246.

[15] Deputy President McMahon, Administrative Appeals Tribunal (Cth), 16 February 1994, unreported.

[16] (1998) 29 AAR 289.

[18] See at 358-359, referring to Federal Commissioner of Taxation v Finn [1960] HCA 69; (1960) 103 CLR 165.