Consideration
33 The belated decision of Telstra to pay Mr Kotevski's claim for compensation for bilateral hearing aids could not affect the jurisdiction of the Tribunal to determine that claim, if the Tribunal was already seized of it. That is because s 26 of the AAT Act, relevantly, prohibited the reconsideration decision from being altered by Telstra. On the other hand, if the Tribunal had no jurisdiction to determine that claim, Telstra's decision will be effective to amount to a determination to compensate Mr Kotevski for the supply of the hearing aids. Thus, the issue of the Tribunal's jurisdiction, which Telstra wishes to have determined, is not moot. It agreed to pay Mr Kotevski's costs in any event, so that this issue might be determined.
34 In Lees 56 ALD 84 Wilcox, Branson and Tamberlin JJ considered the decision-making scheme provided for in the SRC Act. They observed that ordinarily the claim, and the claim form, envisaged by s 54 of the SRC Act were likely to be made and provided relatively soon after an employee suffered the injury complained of (56 ALD at 91 [31]). They held that Pt VI of the SRC Act established a three tiered decision-making process consisting of the original decision, a reconsidered decision and a decision by the Tribunal that reviewed the reconsidered decision (56 ALD at 91 [32]). Their Honours identified that part of the scheme was for determinations to be made under the various sections of the SRC Act referred to in the definition of "determination" in s 60(1). They pointed out that under s 43(1) of the AAT Act, the Tribunal exercised its powers for the purpose of reviewing the reconsideration decision made under s 62 of the SRC Act. It followed that the Tribunal was authorised to exercise only those powers and discretions that would have been available to the reconsideration decision-maker and that those might not include all the powers and discretions that were available to the original decision-maker (56 ALD at 93 [39]).
35 In that decision the Full Court dealt with appeals by two separate claimants. In Ms Lees' appeal she had originally sought review by the Tribunal of a decision under s 16 of the SRC Act to deny her compensation for the cost of taxis to attend medical examinations. She sought to expand the review to include consideration of her claim under s 24 of the SRC Act for compensation for permanent impairment that had not been determined by either of the anterior decision-makers. The other appellant, Mr O'Donohue, sought to challenge a rejection of his claim to have suffered an injury under s 14 of the SRC Act. When his claim came before the Tribunal he, too, sought to expand it to obtain a determination of a claim under s 24 that had not been determined by the original or reconsideration decision-makers. The Full Court held that the Tribunal had no jurisdiction to determine the two s 24 claims because those had not been the subject of the original decisions and, so could not have been, and were not, considered in the reconsideration decisions (56 ALD at 94-95 [48]-[50], 96 [53]-[56]). Wilcox, Branson and Tamberlin JJ said that the terms of the reconsideration decisions were revealed in the notice in writing served under s 61(1) of the SRC Act and that there had been no suggestion that the notices misrepresented that actual determination made (56 ALD at 96 [54]).
36 The SRC Act allows for progressive and evolving decision-making that allows for what are likely to be inevitable changes in circumstances in the interests of both employee and employer: Hannaford 151 FCR at 255 [10] per Heerey J, 256 [13] per Dowsett J, 273-274 [57] per Conti J. They held that the Tribunal had power to make findings of fact in decisions under, inter alia, s 16 of the SRC Act subsequent to, and different from, earlier findings made in the decision-making processes under the SRC Act, such as the determination of the entitlement to compensation in respect of an injury under s 14 (151 FCR at 273-274 [57]).
37 Telstra relied on the reasoning of Finn J in Semunigus [1999] FCA 422 at [19] and the Full Court, on appeal, in Semunigus v Minister for Immigration and Multicultural Affairs (2000) 96 FCR 533 at 536 [11] per Spender J 540 [55], 542-543 [71]-[75] per Higgins J, 546-547 [101] per Madgwick J. It contended that in order for a decision to be made, the decision-maker had first, to reach a conclusion on a matter as a result of engaging in a mental process and, secondly, to translate that decision into an overt act that gave it, in the circumstances, the character of finality, so as to preclude the decision-maker revisiting the decision at his or her option. That case was concerned with whether the decision-maker was functus officio at a particular stage in the decision-making process so that it was precluded from considering a submission that had been lodged with it after that time. Buchanan J, with whom Logan J and Barker agreed in separate reasons, in Minister for Immigration and Citizenship v SZQOY (2012) 206 FCR 25 at 31 [29] (see too at 32 [34], 35-36 [50]-[55]) pointed out that for that purpose, what is critical is that the decision-maker must be precluded, as a matter of law, from revisiting the decision at his or her or its option before it is regarded as final in the relevant sense.
38 Finn J noted in Sassella 34 AAR at 148 [23] that concept of a decision, and particularly the requirement that it be manifest, is one that has been contrived for the purposes of the administrative decision-making context in which it does its practical work. He went on to note that no provision in the SRC Act (as it was then, or I would add up to 7 December 2011) prescribed a time for a decision to be made under s 37 (dealing with rehabilitation) so as to attract a deeming provision that equated a failure to decide with a negative determination: 34 AAR at 149 [26]. The same position relevantly obtained in respect of Mr Kotevski's claims under ss 24, 27 and 16.
39 In Irwin 174 FCR at 580 [26] Downes, Greenwood and Tracey JJ in the course of giving reasons for making a consent order allowing an appeal, observed that under the Military Rehabilitation and Compensation Act 2004 (Cth) a claim could be made that simultaneously sought acceptance of liability and a payment of compensation. They held that the decision-maker could consider such a joint claim. There, the original and reconsideration decision-makers determined that the Commission was not liable. The Full Court continued:
"That finding made it unnecessary for it to deal with the compensation aspect of the claim. This did not mean that the compensation determination could not have been made contemporaneously had the Commission made a positive finding on the liability issue. Indeed, in such circumstances, it would have been required, by s 333, to do so. It can, therefore, be said that the rejection determination involved both an explicit rejection of the liability claim and an implicit rejection of the compensation claim. This conjoint determination was reviewable."
(original italic emphasis, bold emphasis added)
40 Their Honours noted that in Lees 56 ALD 84 there had been no implicit rejection of the compensation claim. They observed that the difference in outcomes of the appeal before them and Lees 56 ALD 84 was explicable because of the different statutory regimes that applied to each case: 174 FCR at 579-580 [24]-[28].
41 The statutory scheme of the SRC Act requires the decision-maker to make particular determinations under individual sections, as the definition of "determination" in s 60(1) demonstrates. Here, Mr Kotevski required Telstra to make determinations of his entitlements under each of ss 14, 24, 27 and 16 of the SRC Act. Those determinations were in respect of whether:
(1) he had suffered an injury that resulted in impairment pursuant to s 14(1). Telstra so decided on 4 May 2011: see [17] above;
(2) that injury had resulted in permanent impairment and, if so, the percentage degree of permanent impairment and amount of compensation payable pursuant to s 24 and whether he should be compensated for non-economic loss under s 27. Clearly enough that determination was made on 25 July 2011 and affirmed on 9 September 2011: see [19]-[21] and [24] above;
(3) he was entitled to compensation for the cost of the supply of hearing aids pursuant to s 16. He had made this claim on 2 December 2010. Dr Gillam confirmed that Mr Kotevski should have a trial with BTE hearing aids on 12 April 2011: see [15]-[16] and [22] above.
42 Importantly, after receiving Allianz's determination dated 4 May 2011 that Telstra was liable to pay compensation for Mr Kotevski's injury under s 14, Mr Kotevski's solicitors responded immediately on 10 May 2011, asking that compensation for permanent impairment be paid in accordance with Dr Gillam's assessment of 12.8%. Mr Kotevski's solicitors' letter of 2 August 2011 sought to update, and increase, his claim for the supply of hearing aids. That letter was written in ignorance of Telstra's letter of 25 July 2011. Mr Kotevski's claim increased from the quote submitted with his original claim on 2 December 2010 of $5,115.00 to the claim on 2 August 2011 of $10,000.00, supported by Mr Kotevski's general practitioner's recommendation of the supplier who gave the latter quote in the "detail of aids, appliances modifications" form. However, since he had not purchased any hearing aids, his claim at that stage could only be for the supplier of the hearing aids to be paid for the cost of supply under s 16(4) of the SRC Act.
43 Mr Kotevski's claim for compensation made on 2 December 2010 included claims under each of ss 14, 24, 27 and 16. The "details of aids, appliances modifications" form appears to be the form approved for, or in connection with, a claim under s 16. That form was only sent to Allianz on 2 August 2011. Importantly, s 54(5) provided that strict compliance with an approved form was not required and substantial compliance would suffice. Mr Kotevski's original claim of 2 December 2010 contained all relevant information, then known to him, in support of the claim for supply of hearing aids under s 16 including a quote of the cost. The information he provided in the letter of 2 August 2011 updated the earlier claim but did not alter its fundamental character. And that update was provided in light of Dr Gillam's lower estimate of the cost of supply of hearing aids in his report of 12 April 2011.
44 An administrative decision-maker is required to make is, her or its decision on the basis of material available to him, her or it at the time of the decision: Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 at 45 per Mason J (with whom Gibbs CJ at 30 and Dawson J at 71 agreed on this issue); see too my reasons in SZJTQ v Minister for Immigration (2008) 172 FCR 563 at 571-573 [27]-[37]. Updated information on a claim is not a new claim.
45 Here, Ms Kelly's determination of 25 July 2011 was stated to have been made under ss 24, 27 and 124 of the SRC Act (s 124 being relevant to the period of Mr Kotevski's employment prior to the commencement of the SRC Act). It noted that the reports of both Dr Howison and Dr Gillam but did not mention the supply of hearing aids that both doctors had recommended and for which Mr Kotevski had claimed compensation.
46 Telstra argued that the original decision was simply a decision on compensation for permanent impairment under s 24 of the SRC Act, as well as its statutory predecessors pursuant to s 124 and for non-economic loss under s 27. However, there was no evidence that after Ms Kelly's letter was sent, Telstra was still considering the s 16 claim. Telstra relied on the Tribunal's finding that that claim had been overlooked as being equivalent to a finding that it had not been rejected.
47 The Tribunal had jurisdiction to decide the issue of whether it had jurisdiction to determine the s 16 claim. However, its power to decide the facts relevant to that claim could not supplant the power of the Court to determine authoritatively the jurisdictional facts on which the Tribunal's jurisdiction depended: Corporation of the City of Enfield v Development Assessment Commission (2000) 199 CLR 135 at 146 [23], 151 [38], 155 [48] per Gleeson CJ, Gummow, Kirby and Hayne JJ.
48 I am of opinion that Ms Kelly's decision of 25 July 2011 conveyed an appearance of finality. It dealt with his claims for permanent impairment and non-economic loss and, by omission of any reference to the contemporaneous claim for hearing aids, gave rise to the inference that all decision-making on Mr Kotevski's claim of 2 December 2010 had then come to an end. The letter conveyed in its natural and ordinary meaning that $2,993.81 was all the compensation that Telstra was prepared to pay to Mr Kotevski in respect of his injury that resulted in his permanent impairment.
49 Importantly, Mr Kotevski's solicitors' letter of 2 August 2011 was before Ms Blanchard. She too wrote the letter of 9 September 2011 that ignored the up-to-date information in the letter of 2 August 2011 despite saying that she had considered all the available evidence.
50 There was no evidence before the Tribunal or the Court that any further decision-making process in relation to the s 16 claim was underway within Telstra at any time after 25 July 2011 except to the extent that Ms Blanchard's letter of 9 September 2011 conveyed the same appearance of finally disposing of all Mr Kotevski's claims as Ms Kelly's letter had conveyed. Indeed, only during a pre-hearing conference in the Tribunal some time after 2 November 2011 (when Mr Kotevski had filed his application for review) did Telstra indicate that it had not made a decision under s 16. And it took until 20 February 2012, the day of the hearing before the Tribunal to announce that it had made a decision accepting Mr Kotevski's claim for hearing aids although, even then, it did not reveal what the terms of that decision was. Thus, there was no evidence, that between 25 July 2011 and the pre-hearing conference, Telstra was doing anything further in relation to the claim for hearing aids, despite its function to determine and pay claims accurately and quickly under s 108E(a) and (b). The delay was unexplained.
51 Mr Kotevski's claims were not complicated, once Telstra accepted liability and worked out the apportionment of the compensation payable for permanent impairment under ss 24 and 124 of the SRC Act. No decision-maker acting according to law could have ignored the concurring opinions of Dr Howison and Dr Gillam that Mr Kotevski should try hearing aids. But to all appearances, both decision-makers seemed to have made a decision not to pay compensation for the supply of hearing aids under s 16 as part of the original and reconsideration decisions. Apart from those decisions, Telstra remained silent on that topic for several months after receiving Mr Kotevski's solicitors' letter of 2 August 2011. Of course, the change in the estimated cost of the hearing aids may have been a matter that Telstra needed to address. Had it done so, sensible, efficient administrative decisions should have been made, if that were the case, to inform Mr Kotevski that Telstra was considering the s 16 claim.
52 I am of opinion that the s 16 claim was before both Ms Kelly and Ms Blanchard and that each of them implicitly rejected it: Irwin 174 FCR at 580 [26]. Thus, the Tribunal did have jurisdiction to determine the s 16 claim. The conclusion of implicit rejection in that case was one of fact, as is mine. There is no question that under the SRC Act different determinations can be, and often are, made for claims under provisions such as ss 14, 24 and 16. That is because such claims ordinarily are made sequentially not, as here, contemporaneously: see Lees 56 ALD at 91 [31]-[32]. Here, once Telstra had made its decision to accept liability under s 14 on 4 May 2011, Mr Kotevski had a straightforward claim for compensation for both permanent impairment and the supply of hearing aids to assist him in dealing with that impairment that was at all times before Telstra for determination under the SRC Act.
53 The criterion of a decision-maker's preclusion from revisiting a decision before it is relevantly final in the sense asserted by Telstra cannot be absolute. That is because an administrative decision that involves jurisdictional error is regarded in law as no decision at all: Plaintiff S157/2002 v The Commonwealth (2003) 211 CLR 476 at 506 [76] per Gaudron, McHugh, Gummow, Kirby and Hayne JJ who applied Minister for Immigration and Multicultural Affairs v Bhardwaj (2002) 209 CLR 597 at 614-615 [51] per Gaudron and Gummow JJ, 618 [63] per McHugh J and 646-647 [152] per Hayne J. And as Bhardwaj 209 CLR 597 held, where the decision-maker became aware, after making a decision, that it had done so erroneously (in that case by overlooking a written application for adjournment where the applicant had not attended the hearing) it could re-open the proceedings and make the decision afresh. Thus, any administrative decision involving jurisdictional error will never have the legal effect of precluding the decision-maker from revisiting that decision in the sense discussed in Semunigus [1999] FCA 422 and 96 FCR 533, and SZQOY 206 FCR 25 as explained in [37] above.
54 Nonetheless, most administrative decisions, including those that do involve jurisdictional error, are regarded by the persons affected by the decisions as binding, until a Court determines otherwise. It cannot be the law that those decisions are unreviewable by the AAT, or similar tribunals or bodies, because they are not decisions at all. Indeed, in Zubair v Minister for Immigration (2004) 139 FCR 344 at 352-354 [28]-[32] Finn, Mansfield and Gyles JJ rejected an argument that the Migration Review Tribunal had no jurisdiction to review a decision of a Minister's delegate that failed to comply with a procedural requirement or involved an error of law. They said (139 FCR at 353 [28]):
"There is no reason why the Act, which provides for a full merits review by the Tribunal of decisions which may be brought to it, should impose upon the Tribunal the task of culling out those decisions which may involve jurisdictional error on the part of the original decision-maker. That would impose an unnecessary additional complexity upon the merits review process. Moreover, it may expose the Tribunal's decision as to the existence of a valid delegate's decision (a jurisdictional fact on the appellant's argument) to review by a court even where (as here) the Tribunal has fully reviewed the decision on the merits. Administrative convenience strongly points to an alternative conclusion to that urged by senior counsel for the appellant. The review process applicable to the Tribunal is a full merits review. As with review under the Administrative Appeals Tribunal Act 1975 (Cth) (the AAT Act), the Tribunal is given powers under s 349 to exercise all the powers and discretions that are conferred by the Act on the person who made the decision. It may affirm the decision, vary it, or remit the matter for reconsideration with directions or recommendations, or may set aside the decision and substitute a new decision. The only limit upon its power is that it may not, by varying or setting aside a decision and substituting a new decision, make a decision that is not authorised by the Act or the Regulations (s 349(4)). That is similar to the review powers of the Administrative Appeals Tribunal (the AAT): see AAT Act, s 43. In that context it has been held that the review by the AAT is available even though the decision-maker at first instance may have made a decision which is legally ineffective: see eg, Clements v Independent Indigenous Advisory Committee (2003) 131 FCR 28 at [38]-[39]."
55 Here, the reconsideration decision had all the appearance of finality. Mr Kotevski and the Tribunal had proceeded on that basis until Telstra raised the jurisdictional objection during the Tribunal's pre-hearing conference. As Jagot J observed in Durham 124 ALD at 145 [51] the Tribunal had to assess for itself the true scope of a claim under the SRC Act when exercising its power to review a decision. That involves a consideration of what decision, the subject of the review, was made in fact and not its legal effect: Zubair 139 FCR at 353 [29], 354 [32]; Twist v Randwick Municipal Council (1976) 136 CLR 106 at 116 per Mason J. As Mason J observed a party affected can elect to treat an administrative decision as a valid, though erroneous, decision by appealing from it to a body that can review the decision on its merits, in preference to asserting his or her right to proper performance by the decision-maker of its duty. He also said that in some cases the Court can take account of the public interest in the efficiency of the administrative process and the necessity for reasonably prompt despatch of public business balancing that against the countervailing interest of the individual in securing a fair hearing (136 CLR at 116).
56 Here, of course, Telstra had statutory functions to determine claims and pay compensation accurately and quickly and to take all necessary action in respect of management of those claims (s 108E(a) and (b)). By failing to state expressly that the claim for compensation for the supply of hearing aids under s 16 of the SRC Act remained unresolved and under consideration at any time prior to Mr Kotevski beginning his proceedings in the Tribunal, Telstra, in the circumstances, conveyed to Mr Kotevski and the tribunal that that claim had been implicitly rejected in Ms Kelly's and Ms Blanchard's decisions. Mr Kotevski had asked each of them to make a decision on that claim.
57 Because each made no reference to the s 16 component of Mr Kotevski's claims that were before them, each of Ms Kelly and Ms Blanchard conveyed in her decision, by implication in all the circumstances, that it had been rejected by her. Those circumstances included the lack of evidence that Telstra was still considering the claim for supply of hearing aids. That was indicative that Telstra had finalised its determination of all Mr Kotevski's entitlements under the SRC Act. The implicit refusals of the original and reconsideration decision-makers to make a determination of compensation under s 16 was a "decision" within the meaning of s 3(3)(a) or (g) of the AAT Act.