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[2001] VCAT 1256
procedural. The Tribunal found that the application for review filed on 6 December 2000 was made within 12 months after the applicant became aware of the Commission's decision. It directed that the...
The Tribunal had to decide whether the applicant had waited too long to seek review of the Commission's refusal to pay the full cost of her inpatient treatment. It found that the Commission's letter to her doctor did not notify her, because the doctor was not her agent. It also found that the information the Clinic gave her in late 1998 concerned a position that was not final, and that she reasonably thought the account had been paid. The Tribunal treated the Clinic's 3 August 2000 letter as the first time she became aware of the Commission's decision. Since she applied on 6 December 2000, the application was within the 12-month limit and could proceed to a substantive hearing.
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2,564 words · generated 01/10/2026
In MacDonald v TAC [2001] VCAT 1256, the Victorian Civil and Administrative Tribunal considered a preliminary question: whether Deborah MacDonald had lodged her application for review within the time allowed by s 77 of the (Vic). The hearing of that preliminary issue took place on 12 April 2001 before Senior Member R J Ball. The reasons are dated May 2001, and the decision is identified as dated 30 June 2001 in the heading supplied.
1 cited instrument linked from this judgment.
The dispute arose from funding for Ms MacDonald's inpatient treatment at the Melbourne Clinic. She had been injured in a transport accident on 4 February 1990, and the Transport Accident Commission had accepted liability for medical and like expenses arising from the injuries ([1]). In August 1998, Dr Brendan Holwill wrote to the Commission seeking approval for an inpatient stay of three to four weeks ([2]). On 1 September 1998, the Commission wrote to Dr Holwill that it would fund a maximum of two weeks, subject to his supplying a detailed report at the end of the stay ([3]).
Ms MacDonald was admitted to the Clinic. She said she experienced medical complications and remained there until 1 December 1998 ([4]). Around 30 November, Clinic administration told her there was a dispute with the Commission about payment for her extended stay. She understood that Dr Holwill had sent a report and that the account was expected to be paid by the Commission. On 1 December, she signed a form accepting responsibility for the outstanding amount after being told that she might otherwise be detained as an inpatient and incur further costs ([5]).
The record included a Clinic letter dated 22 February 2000, which said the Commission had denied liability for the account after the first 14 days ([6]). However, Ms MacDonald said she had never seen that letter. She said she first became aware of an outstanding balance when the Clinic wrote to her on 3 August 2000, enclosed an invoice for $31,243.10, and said the matter needed to be addressed to avoid further action ([7]-[8]).
She applied to the Tribunal for review on 6 December 2000. The Commission argued that the application was out of time because its 1 September 1998 letter to Dr Holwill communicated the decision to Ms MacDonald through her agent ([11]). Ms MacDonald argued that she first became aware of the decision through the Clinic's 3 August 2000 letter ([12]).
The Tribunal found in her favour on the preliminary timing question. Its order stated that the application was made within 12 months after she became aware of the decision. The application was to proceed to a two-day hearing commencing 7 June 2001, and costs were reserved.
There is an apparent date inconsistency in the reasons: the background identifies the Commission's letter to Dr Holwill as dated 1 September 1998 ([3]), while the first finding at [13] refers to a letter dated 1 September 1999. The decision's account of the correspondence and the parties' arguments otherwise concerns the 1 September 1998 letter. The judgment text also records a hearing on 12 April 2001 and an order for a hearing commencing 7 June 2001. Those dates are reproduced here as stated, without resolving the chronology.
The governing time-limit provision was s 77 of the Transport Accident Act 1986. As quoted at [9], it allowed a person whose interests were affected by a Commission decision to apply to the Tribunal “within 12 months after becoming aware of the decision”. The question was therefore not simply when the Commission made or communicated its decision to someone. The Tribunal had to determine when Ms MacDonald became aware of the decision.
The Commission's position depended on treating Dr Holwill as Ms MacDonald's agent for receiving the Commission's decision. The Tribunal rejected that factual premise. It found there was no agency relationship, even though Dr Holwill had asked the Commission to fund the treatment ([13], finding 1). It also explained that treating doctors and other health professionals commonly apply directly to the Commission for approval of treatment expenses, and that the Commission would not approve payment without medical or similar evidence. On that basis, the Tribunal considered that the letter addressed to Dr Holwill could not be regarded as notification to Ms MacDonald ([13], finding 1).
That reasoning is specific to the findings made in this case. The judgment does not set out a general legal test for agency, nor does it hold that a treating doctor can never act as a patient's agent. Its finding was that no agency relationship existed between these parties in these circumstances.
The Tribunal separately considered what Ms MacDonald learned in late 1998. It found that the Clinic told her the Commission had, at that stage, accepted liability for only two weeks. But it also found that this was not a final decision and that she expected the Commission would pay the full amount ([13], finding 2). The Tribunal accepted that, between December 1998 and August 2000, she not unreasonably assumed that the account had been paid and that there was no outstanding liability ([13], finding 3).
The decisive factual finding was that Ms MacDonald first became aware of the decision refusing payment beyond two weeks when she received the Clinic's letter dated 3 August 2000 ([13], finding 4). The application of 6 December 2000 was therefore within the statutory 12-month period ([13], finding 5).
The Tribunal also addressed whether it could extend the time limit. It stated that s 126 of the Victorian Civil and Administrative Tribunal Act 1998 generally conferred a power to extend certain time limits, but that Schedule 1 Part 20 clause 94 excluded s 126(1) and (2)(a) from proceedings under the Transport Accident Act. The Tribunal concluded it had no power to extend the s 77 period ([10]). Since it found the application timely, it did not need to extend time.
The judgment does not describe a change in the law before and after the decision. It applies the text of s 77 as quoted at [9] and the statutory provisions concerning the Tribunal's extension power as summarised at [10]. It does not cite or analyse earlier judicial decisions, and it does not state that it is creating a new legal test.
The practical clarification supplied by the decision is how the statutory phrase “after becoming aware of the decision” was applied to this particular sequence of events. The Tribunal distinguished three matters: the Commission's communication to the doctor, information from the Clinic about a limited payment position, and later notice to Ms MacDonald of an outstanding debt attributed to the Commission's refusal. It found that the first did not notify her, the second did not establish awareness of a final decision, and the third did.
That is a fact-sensitive application rather than a broad ruling that a particular type of communication will always start, or will never start, a statutory review period. The reasons do not specify what level of detail or formality is required for awareness in other cases. They also do not determine how the provision would apply where an applicant actually receives an earlier letter, where an agent relationship is established, or where the applicant understands that a Commission position is final.
The decision's statement about extensions is also limited to the statutory scheme it considered. The Tribunal read s 126 of the VCAT Act together with the exclusion in Schedule 1 Part 20 clause 94 and stated that it had no extension power for the s 77 period ([10]). The reasons do not discuss other statutory time limits or other proceedings.
Accordingly, the “before and after” account available from this judgment is modest: before the Tribunal could resolve the application, the parties disputed the trigger date and whether an extension was possible; after its factual findings, the Tribunal treated the application as timely and directed it to proceed. The judgment does not establish a broader statutory amendment or doctrinal shift.
At [9], s 77 is quoted as allowing an application “within 12 months after becoming aware of the decision”. In plain English, the time limit is linked to the affected person's awareness of the Commission's decision. The Tribunal's task was to identify when that awareness occurred for Ms MacDonald.
At [10], the Tribunal says there was “no power” to extend the 12-month period because the VCAT Act's extension provisions were excluded for proceedings under the Transport Accident Act. In plain English, the Tribunal considered that it could not excuse a late application by extending the deadline. That issue did not decide the outcome because the Tribunal found the application was already within time.
At [13], finding 1, the Tribunal states there was “no agency relationship between Dr Holwill and the Applicant”. In plain English, the Tribunal did not treat the doctor as someone authorised to receive the Commission's decision on Ms MacDonald's behalf. It therefore did not treat the Commission's letter to him as notice to her.
At [13], finding 2, the Tribunal says the advice given by the Clinic in late November and early December 1998 was “not a final decision”. In plain English, the Tribunal accepted a distinction between being told there was a limited payment position or dispute at that stage and knowing that the Commission had finally refused payment beyond two weeks.
At [13], finding 3, the Tribunal found Ms MacDonald “not unreasonably assumed that the account had been paid”. In plain English, the Tribunal accepted her account of why she did not understand there to be an unresolved debt during the period between her discharge and the August 2000 letter.
At [13], finding 4, the Tribunal identifies receipt of the Clinic's letter of 3 August 2000 as the point when she first became aware of the refusal. This is the key application of s 77 to her circumstances. Finding 5 then connects that date to the application lodged on 6 December 2000 and concludes it was within 12 months.
The order records the procedural consequence: the review application was to proceed to a hearing of two days, with costs reserved. The Tribunal did not decide the underlying merits of the Commission's refusal to fund the full inpatient stay.
The decision is most directly relevant to a timing dispute with these features: a statutory review period runs from awareness of an administrative decision; the decision-maker communicated with a treating professional rather than directly with the affected person; the affected person disputes that the professional was their agent; and there is an issue about whether later information conveyed the final decision or only a provisional position.
It may also be relevant where the person says they did not receive an earlier letter sent to a third party, and later learns of the decision through a demand for payment or another communication identifying the decision's practical effect. In this case, the Tribunal considered the 3 August 2000 Clinic letter, which enclosed the outstanding invoice and attributed the unpaid amount to the Commission's refusal after the first 14 days ([7]-[8], [13], finding 4).
The decision does not establish that every letter demanding payment will trigger the review period, or that every communication to a medical professional is insufficient notice. Its reasoning depends on the Tribunal's findings about the actual communications, the absence of agency, Ms MacDonald's understanding, and her reasonable assumption that the account had been paid. It is therefore important to distinguish the case's specific findings from any broader proposition.
A further boundary is that the decision concerns the time limit in s 77 of the Transport Accident Act. The Tribunal's conclusion about its lack of power to extend time was tied to the interaction between s 126 and Schedule 1 Part 20 clause 94 of the VCAT Act as described at [10]. The judgment does not determine time limits under other legislation.
For professionals examining a comparable issue, the factual matters highlighted by the reasons include: the date and recipient of the decision letter; whether the recipient was acting as an agent; what the affected person was told and when; whether the communication conveyed a final decision or an interim position; whether the affected person received later correspondence; and the date the review application was lodged. This identifies the matters the Tribunal relied on, not a prescribed checklist or a guaranteed outcome.
The supplied judgment contains no discussion of later decisions and cites no other judgments. On the material available here, it is not possible to say how later courts or tribunals have applied, followed, distinguished, or otherwise treated MacDonald v TAC. No later authorities should be inferred from this decision alone.
The judgment itself also does not identify any earlier precedent as the source of its reasoning. Its analysis is based on the statutory wording in s 77, the VCAT Act provisions described at [10], and its findings about the parties' communications. The precedent relationships field is therefore empty: the reasons provide no cited case relationships to extract.
For research purposes, the decision's contribution in the text supplied is its fact-specific treatment of awareness of a Commission decision for s 77. Any assessment of its present authority, subsequent treatment, or interaction with later statutory amendments would require sources beyond this judgment.
The reasons leave several matters unresolved because they were not necessary to decide the preliminary issue. First, the Tribunal did not state a general test for when a person's awareness of a decision begins. It decided that question on the specific communications and circumstances before it. Questions such as whether actual knowledge of the outcome is necessary, what content a notice must convey, or how indirect knowledge is assessed are not answered in the reasons.
Second, the Tribunal found no agency relationship between Ms MacDonald and Dr Holwill, but did not set out a general agency test. It did not address what evidence would establish an agency relationship in another case, or whether a different kind of communication from a representative would amount to awareness by the affected person.
Third, the judgment does not determine how to assess cases where an affected person receives a letter but disputes understanding its significance, or where the decision-maker communicates directly with the affected person while an outstanding invoice is still being discussed. The Tribunal's reasoning distinguishes a non-final payment position from awareness of a decision, but does not define the boundary in general terms.
Fourth, the underlying merits were not decided. The order directed the review application to proceed to a two-day hearing. The reasons do not determine whether the Commission was liable for the full inpatient account, whether the treatment was reasonably related to the transport accident, or what the ultimate result of the substantive review was.
Finally, the judgment's date inconsistencies should be kept in view when using it as a record: the letter is dated 1 September 1998 in the background, but 1 September 1999 in one finding; the reasons are dated May 2001, while the case heading gives 30 June 2001. The supplied text does not resolve those discrepancies.
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Preliminary issue - whether Application for review lodged out of time - Section 77 of the Transport Accident Act 1986
1. The application for review filed by the Applicant with the Tribunal on 6 December 2000 was made within 12 months of the Applicant becoming aware of the decision the subject matter of the application.
2. The application for review is to proceed to a hearing of 2 days duration commencing on Thursday 7 June 2001.
For the Applicant Ms A MacTiernan, Barrister instructed by
For the Respondent Mr D Masel, Barrister instructed by TAC Law
1. The Applicant was involved in a Transport Accident on 4 February 1990 and the Respondent subsequently accepted liability for medical and like expenses arising from the Applicant's injuries.
2. The Respondent received two letters from Dr Brendan Holwill dated 27 August and 31 August 1998 requesting the Respondent to accept liability for the Applicant to be admitted as an in-patient at the Melbourne Clinic 3 to 4 weeks.
3. On 1 September 1998 the Respondent wrote to Dr Holwill advising him that while it did not believe that all of the Applicant's then physical and psychiatric symptoms related to the transport accident it was prepared to fund a maximum of 2 weeks in-patient stay at the Melbourne Clinic on the proviso that Dr Holwill supplied a detailed report at the end of the in-patient stay.
4. In her sworn statement and evidence to the Tribunal the Applicant stated that she was contacted by the Melbourne Clinic and advised that, as a result of Dr Holwill's request to the Respondent, she was to be admitted as an in-patient. She stated:
"The intention was that I be admitted to the Melbourne Clinic for a four week duration. Unfortunately I developed major medical complications to the medication I was given for my treatment and I required considerable extra treatment and extended hospitalisation. I was eventually discharged from the Melbourne Clinic on 1 December."
5. Ms MacDonald said that on or about 30 November 1998 she was advised by administration at the Melbourne Clinic that there was some dispute between the Clinic and the Respondent in relation to the payment of the account for her extended hospitalisation. She stated that she was very concerned about payment of the account but did not have the money to pay and was advised by the Melbourne Clinic that Dr Holwill had written a detailed letter to the Respondent evidencing the need for her continued care and that it was expected that the account would eventually be paid by the Respondent. She refused to go to her bank to obtain a cheque for the outstanding amount of the account and on 1 December 1998 she was called down to the administration office at the Clinic and was asked to sign a form stating that she would be responsible for payment of the outstanding account although the Clinic stated that they would pursue payment of the account from the Respondent. She was asked to sign the form in case the Respondent did not pay the account. The Applicant said she finally signed the form because she was told that she would be detained as an in-patient if she did not sign and that the cost of her treatment would therefore increase.
6. Included in the Applicant's Tribunal Book was a copy of a letter dated 22 February 2000 from the Melbourne Clinic addressed to Ms MacDonald in which it stated that the Respondent had denied liability for payment of her account after the first 14 days of her stay and that it was now her responsibility to pay the outstanding amount due to the Clinic.
7. Ms MacDonald stated that she had never seen this letter and the first occasion when she became aware that there was an outstanding amount due to the Clinic was when she received a letter from the Clinic dated 3 August 2000 which enclosed an invoice for an outstanding balance of $31,243.10 and stated that "it is crucial that this matter is addressed properly in order to avoid further action."
8. Ms MacDonald stated that because she had not heard from the Clinic or from the Respondent between the time of her discharge from hospital in December 1998 until receipt of the letter from the Clinic in August of 2000 she presumed that the outstanding account had been paid by the Respondent. She reiterated that on receipt of the letter of 3 August 2000 she, for the first time, became aware that monies were due to the Clinic for her treatment because of the decision of the Respondent to deny liability for the payment after the first fourteen days of her in-patient stay.
9. Section 77 of the Transport Accident Act provides that:
"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.
10. Section 126 of the Victorian Civil and Administrative Tribunal Act 1998 gives the power to this Tribunal to extend any time limit fixed by an enabling enactment for the commencement of a proceeding at the Tribunal. However Schedule 1 Part 20, Clause 94 of that Act provides that Section 126(1) and (2)(a) of the Act do not apply to a proceeding under the Transport Accident Act 1986. This means that there is no power in the Tribunal to extend the 12 month period referred to in Section 77 of the Transport Accident Act.
11. The Respondent asserts that the Applicant was informed of its decision to fund a maximum of 2 weeks in-patient stay at the Melbourne Clinic by its letter dated 1 September 1998 to Dr Holwill and in the circumstances that the application for review filed with this Tribunal on 6 December 2000 was out of time. The Respondent asserts that Dr Holwill who made the original request to the Respondent on the Applicant's behalf was acting as her agent and the decision contained in the letter addressed to him represented advice by the Respondent to the Applicant's agent.
12. On the other hand the Applicant asserts that she first became aware of the Respondent's decision when she received the letter from the Clinic of 3 August 2000 demanding payment of an outstanding balance of $31,243.10.
13. Having considered the evidence and submissions made on behalf of the respective parties the Tribunal concludes and makes the following findings of fact:-
1. There was no agency relationship between Dr Holwill and the Applicant notwithstanding that the original request for payment for her hospitalisation was made by the doctor. In the Tribunal's experience it is common for a treating doctor or other health professional to apply direct to the Respondent commission for approval for payment of the expense of medical or like treatment and that in similar circumstances to this the Respondent would not approve payment without production of medical or like evidence. The Tribunal finds that the letter of 1 September 1999 addressed to Dr Holwill could not be regarded as notification to the Applicant of the Respondent's decision.
2. That the advice given to the Applicant by the Melbourne Clinic on 30 November and 1 December 1998 that the Respondent had at that stage accepted liability for payment of only 2 weeks in-patient was not a final decision and that she expected the Respondent would accept liability for the full amount.
3. That in the lapse of time from December 1998 until August of 2000 she not unreasonably assumed that the account had been paid and that there was no outstanding liability.
4. That the Applicant first became aware of the decision of the Respondent refusing payment beyond 2 weeks in-patient stay on receipt of the letter from the Melbourne Clinic dated 3 August 2000.
5. That the application for review filed by her with the Tribunal on 6 December 2000 is within 12 months from the date upon which she became aware of the decision of the Respondent Commission and an order will be made to this affect.
14. The issue of costs was not raised during the course of the hearing. This issue will be reserved.
MacDonald
TAC [2001] VCAT 1256
The Tribunal found that the application for review filed on 6 December 2000 was made within 12 months after the applicant became aware of the Commission's decision. It directed that the application proceed to a two-day hearing commencing 7 June 2001 and reserved costs.