PRACTICE and PROCEDURE - jurisdiction - applications for review - no reviewable decisions made - jurisdiction not established - applications dismissed

Safety, Rehabilitation and Compensation Act 1988 ss 19, 60(1), 61(1), 62, 64

Administrative Appeals Tribunal Act 1975 ss 3(2)(g), 25, 29, 33(1)(b), 42A(4), 42B(1)(a)

Lilienthal v Migration Agents Registration Board [2001] FCA 2; (2001) 65 ALD 437

Minister for Immigration and Multicultural Affairs v Bhardwaj (2002) 187 ALR 117

Re Quinn and Australia Postal Corporation (1992) 15 AAR 519

Re Young and Telstra Corporation Ltd [1993] AATA 376; (1993) 32 ALD 307

Slater v Telstra Corporation Limited [2002] AATA 597

Slater v Telstra [2004] FCA 476

Gordon Slater worked for Telstra Corporation Ltd (Telstra) for periods during 1995 and 1996. He was injured at work on 11 July 1996 and has since pursued a compensation claim against Telstra under the Safety, Rehabilitation and Compensation Act 1988 (the Compensation Act). After a hearing before the Administrative Appeals Tribunal (the Tribunal) on 31 May 2002, the Tribunal determined, on 19 July 2002, that, for the period from 1 October 1997 until June 2002, compensation was payable to Mr Slater only in the period from 1 October 1997 until 31 August 1998. It was also determined that the rate of such payment was $19.82 per week. (Slater v Telstra Corporation Limited [2002] AATA 597).

In making that determination, the Tribunal applied the formula in section 19 of the Compensation Act. This required calculations, in Mr Slater's circumstances, of normal weekly earnings (NWE) and of the amount that he was able to earn in suitable employment (AE). That process also involved a consideration of whether overtime payments were applicable to his situation. On that matter, the Tribunal determined that Mr Slater had not been required to work overtime on a regular basis and that, therefore, the calculation of his compensation payments did not require an overtime component to be included.

Mr Slater appealed from the Tribunal's decision to the Federal Court. On 23 April 2004, Spender J dismissed the application on the basis that no error of law was demonstrated in the Tribunal's decision (Slater v Telstra [2004] FCA 476).

Mr Slater has made further applications to the Tribunal for review of decisions by Telstra. These relate to documents dated 1 May 2002 and 30 May 2002. On 1 May 2002, Kevin Standish, solicitor for Telstra, wrote to Mr Slater and enclosed a table of NWE calculations which he declared were applicable to Mr Slater. On 20 May 2002, Mr Slater's solicitors, Mahoney and Hersford, replied to Mr Standish and requested that the NWE calculations be re-determined because they had not included an overtime component. On 30 May 2002, Mr Standish again prepared a document of NWE for Mr Slater which reproduced the same figures as were included in the earlier table of 1 May 2002. Mr Slater's further applications to the Tribunal for review include:

•

an application dated 13 May 2004 (Q2004/395) where he sought review of a "deemed refusal" by Telstra to re-determine the decision dated 1 May 2002; and

•

an application dated 29 May 2004 (Q2004/409) where he sought review of the "decision" by Telstra of 30 May 2002 relating to NWE.

Both of these applications were dismissed by Deputy President Muller on 28 June 2004 under section 42B(1)(a) of the Administrative Appeals Tribunal Act 1975 (the AAT Act) on the basis that they were frivolous and vexatious because they sought to re-litigate the same matters that were the subject of the proceedings before the Tribunal and the Federal Court.

On 28 July 2004, Mr Slater completed a further application for review of the decision dated 1 May 2002 (Q2004/603). Again, this was on the basis that it did not include references to overtime payments. On 8 August 2004, he completed another application for review (Q2004/630). This was in relation to the "decision" of 30 May 2002. Although he conceded that these applications reproduced those that had been dismissed by Mr Muller (Q2004/395 and Q2004/409), Mr Slater submitted that he was able to do this because those earlier applications were not properly before the Tribunal. He submitted that this was because they were out of time and no extension of time had been granted by the Tribunal.

On 13 August 2004, the District Registrar of the Tribunal wrote to Mr Slater in relation to applications Q2004/603 and Q2004/630 advising him that the decisions which he nominated for review did not appear to be reviewable. Mr Slater was required, pursuant to subsection 42A(4) of the AAT Act, to show that the decisions were reviewable. It is that issue which the Tribunal must now determine.

The matter was heard by telephone. Mr Slater was not represented. Mr R Dickson, of counsel, appeared on behalf of Telstra.

Pursuant to section 25 of the AAT Act, the Tribunal may review decisions where the power to do so is conferred by other Commonwealth legislation. Section 64 of the Compensation Act makes provision for applications to be made by a claimant, in this case Mr Slater, to the Tribunal for review of a reviewable decision. Insofar as relevant in this matter and pursuant to subsection 60(1) of the Compensation Act, a reviewable decision means a decision made under section 62 of the Compensation Act. The scheme of the Compensation Act is for a determination in relation to a claim to be made by a determining authority, in this case Telstra. That determination may then be the subject of reconsideration by the determining authority. This can be on the determining authority's own motion or on request by the claimant. That reconsideration is then the reviewable decision under section 62 of the Compensation Act.

In this case, there has been no reconsideration by Telstra under section 62 of the Compensation Act. That, in itself, does not mean that the Tribunal does not have jurisdiction because a refusal to make a decision can be construed as a decision: see paragraph 3(2)(g) of the AAT Act and Re Young and Telstra Corporation Ltd [1993] AATA 376; (1993) 32 ALD 307. However, more significantly in this case, I am satisfied that the documents nominated by Mr Slater, and on which he bases his applications for review, do not constitute determinations under the Compensation Act. In that regard, subsection 61(1) of the Compensation Act sets out the formal requirements of a determination. It reads:

"(1) As soon as practicable after a determining authority makes a determination, it shall cause to be served on the claimant a notice in writing setting out:

(a) the terms of the determination;

(b) the reasons for the determination; and

(c) a statement to the effect that the claimant may, if dissatisfied with the determination, request a reconsideration of the determination under subsection 62(2)."

The letter of 1 May 2002 by Kevin Standish was merely an advice to Mr Slater of a table of calculations of NWE. The same table was contained in the document dated 30 May 2002. That table was tendered as evidence of NWE by Telstra at the Tribunal hearing on 31 May 2002. It was relied on in the decision for the determination of the NWE applicable to Mr Slater's situation. I am satisfied that the documents nominated by Mr Slater as constituting the original decisions in these matters are not "determinations", as provided for in sections 60 and 61 of the Compensation Act, by Telstra. This means that a necessary pre-condition to the making of a reviewable decision under section 62 of the Compensation Act is not met. It follows that any failure by Telstra to review the content of the NWE tables in the documents dated 1 May 2002 and 30 May 2002 does not constitute a deemed refusal to reconsider any original determination. As there are no reviewable decisions, the Tribunal does not have jurisdiction to deal with Mr Slater's applications.

Even if the Tribunal was not deprived of jurisdiction in the manner noted above, there are other grounds for not dealing with these matters. The applications which were dismissed by Mr Muller on 28 June 2004 (Q2004/395 and Q2004/409) sought to raise again the matters that had been determined by the Tribunal at the hearing on 31 May 2002. The Tribunal's decision was affirmed by the Federal Court. Mr Slater has not appealed that decision to the Full Court of the Federal Court. The present applications are identical to those which were dismissed by Mr Muller on 28 June 2004. Mr Slater has not appealed those decisions of Mr Muller.

In effect, Mr Slater is seeking to have the Tribunal review its decision of 19 July 2002. It is not clear whether or not the doctrines of cause of action or issue estoppel apply to proceedings of the Tribunal: see, for example, Lilienthal v Migration Agents Registration Board [2001] FCA 2; (2001) 65 ALD 437 at 442. Nevertheless, paragraph 33(1)(b) of the AAT Act provides that the Tribunal's proceedings are to be conducted with as little formality and technicality, and with as much expedition, as the requirements of relevant enactments and a proper consideration of the matters before the Tribunal permit. That provision gives the degree of flexibility needed for the Tribunal to refuse to allow a matter to be re-litigated unless there is reason to do so: see Re Quinn and Australia Postal Corporation (1992) 15 AAR 519 at 526.

One factor referred to by Mr Slater in justification for reopening the matters dealt with by the Tribunal in 2002 is the refusal of Telstra to act on his request for a review of the "decision" of 1 May 2002. This has been dealt with above. Another factor on which he relied is his belief that Telstra withheld from him, prior to the Tribunal's hearing on 31 May 2002, information in relation to his suitability for employment and overtime payments. However, Mr Slater was legally represented at that hearing and submissions were made in relation to both NWE and his entitlement to overtime payments. Those matters were considered and determined by the Tribunal on the basis of those submissions and I am satisfied that these issues do not provide a basis which would justify re-litigation of those same matters.

In relation to the decision of Deputy President Muller on 28 June 2004 in which applications Q2004/395 and Q2004/409 were dismissed, Mr Slater submitted that these were not properly before the Tribunal because they were out of time and no extension of time had been granted by the Tribunal on that occasion. A decision involving jurisdictional error has no legal foundation and may be regarded as no decision at all: see Minister for Immigration and Multicultural Affairs v Bhardwaj (2002) 187 ALR 117 at 129. However, that is not the situation here. The matters about which Mr Slater sought review in the applications dealt with by Mr Muller were the same as those raised for consideration in the matters before me. The time-limits for making an application are provided for in section 29 of the AAT Act. Those periods have, as their starting point, a reviewable decision. As set out above, there were no reviewable decisions made by Telstra on which to base an application and, therefore, there is no merit in Mr Slater's submission that the decisions of Deputy President Muller should be disregarded.

(a) a person makes an application to the Tribunal for a review of a decision; and

(b) the person is unable to show, within such time as is prescribed after being notified in writing by the Registrar or a Deputy Registrar that the decision does not appear to be reviewable by the Tribunal, that the decision is so reviewable;

the Tribunal may dismiss the application without proceeding to review the decision."

For the reasons given above, I am satisfied that there is no reviewable decision before the Tribunal. Therefore, Mr Slater's applications are dismissed pursuant to subsection 42A(4) of the AAT Act.

I certify that the 17 preceding paragraphs are a true copy of the reasons for the decision herein of Mr RG Kenny, Member

Signed: Denise Burton

Administrative Assistant

Date/s of Hearing 13 September 2004

Date of Decision 28 September 2004

The Applicant appeared by telephone

Counsel for the Respondent Mr R Dickson

Solicitor for the Respondent Sparke Helmore