Re Phoebe Ruth Hawkins and Commonwealth of Australia and Commission of the Safety Rehabilitation and Compensation of Commonwealth Employees [1989] AATA 89 (14 April 1989)

ADMINISTRATIVE APPEALS TRIBUNAL

Re: PHOEBE RUTH HAWKINS
And: COMMONWEALTH OF AUSTRALIA and COMMISSION FOR THE
SAFETY
REHABILITATION AND COMPENSATION OF COMMONWEALTH
EMPLOYEES
No. V88/738
AAT No. 5067
Compensation

COURT

ADMINISTRATIVE APPEALS TRIBUNAL
GENERAL ADMINISTRATIVE DIVISION
I.R. Thompson(1) (Deputy President)

CATCHWORDS

Compensation - 1971 Act - request to Commissioner for Employees' Compensation to reconsider determination already affirmed by Administrative Appeals Tribunal - Commissioner declining to reconsider - whether application for review of his decision not to reconsider could be made to Administrative Appeals Tribunal

Re Bell and Australian Telecommunications Commission (1983) 5 ALN N186

Re Cooper and Commonwealth of Australia (No. 4735: 11 November 1988)

Compensation (Commonwealth Government Employees) Act 1971 ss. 20(1), (2), (3), (4); 63(1)

Commonwealth Employees' Rehabilitation and Compensation Act 1988 s. 129(2)

HEARING

MELBOURNE
14:4:1989

ORDER

Tribunal finds that it has no power to hear and determine the application in these proceedings and accordingly it directs that the application be removed from the hearing list.

DECISION

In 1986 the applicant applied to the Administrative Appeals Tribunal for review of a determination of a delegate of the Commissioner for Employees' Compensation. That application was made pursuant to section 63 of the Compensation (Commonwealth Government Employees) Act 1971 ("the 1971 Act"). The application was heard and determined by the Tribunal. Its decision was made on 22 January 1988. The Tribunal affirmed the delegate's determination. On 3 August 1988 the applicant's solicitor, Mr M. Hawkins, who is also her husband, wrote to the delegate seeking to place before him further evidence in the form of an affidavit sworn by the applicant, together with five documents exhibited to it. On 12 September 1988 a delegate of the Commissioner wrote to the applicant's solicitor stating that it was doubtful whether the Commissioner could "legally use the statutory reconsideration power to re-decide the same issue as decided by the AAT". The delegate did not reconsider the determination.

2. On 3 October 1988 the applicant's solicitor lodged with the Tribunal an application for review of "the decision expressed in (that) letter . . . wherein the delegate of the Commissioner for Employees' Compensation doubted that the Commissioner could reconsider a determination made previously which had been the subject of review by the AAT". On 1 December 1988 the 1971 Act was repealed and replaced by the Commonwealth Employees' Rehabilitation and Compensation Act 1988 ("the 1988 Act"). The effect of section 129(2) of that Act is that proceedings instituted under the 1971 Act but not completed before 1 December 1988 may be continued on and after that day. If, therefore, the application in these proceedings was properly instituted, they may be continued notwithstanding the repeal of the 1971 Act. However, the respondent contends that the proceedings were not properly instituted under that Act.

3. At the request of the parties, the matter was set down for decision of a preliminary issue, whether the Tribunal has power to hear and determine the application. At the hearing of argument in respect of that preliminary issue Mr Hawkins represented the applicant; the respondent was represented by Mr G. Maguire, of Counsel. The Commission for the Safety, Rehabilitation and Compensation of Commonwealth Employees ("Comcare") was notified of the hearing but took no part in it and was not represented. In addition to the documents lodged with the Tribunal by the respondent pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 ("the AAT Act"), the respondent tendered in evidence a transcript of the hearing of the applicant's previous application to the Tribunal. No oral evidence was adduced.

4. The following provisions of the 1971 Act need to be considered in these proceedings:-
20. (1) Subject to this Act, the function of the

Commissioner under this Act is to determine all
matters and questions arising under this Act and the
Commissioner is empowered to do all things necessary
for the carrying out of that function.
(2) In determining any matter or question under
this Act, the Commissioner -
(a) shall be guided by equity, good conscience
and the substantial merits of the case
without regard to technicalities; and
(b) is not required to hold a formal or oral
hearing and is not bound by the rules of
evidence but shall give to any person who
will be directly affected by the
determination a fair opportunity of
presenting his case.
(3) A determination by the Commissioner shall
be in writing.
(4) Where a determination has been made under
this Act -
(a) the Commissioner may, of his own motion,
whether or not a proceeding has been
instituted or completed under Part V in
respect of the determination, reconsider
the determination and may, if he thinks
fit, make a determination varying or
revoking the first-mentioned determination;
and
(b) the Commissioner shall, at the request of
the Commonwealth or of the claimant or,
where there is more than one claimant whose
claim was dealt with by the determination,
of any of the claimants, if a proceeding
has not been instituted under Part V in
respect of the determination, reconsider
the determination and may, if he thinks
fit, make a determination varying or
revoking the first-mentioned determination.
. . . . .
63. (1) Where a determination by the Commissioner
is made under this Act, an application may be made to
the Administrative Appeals Tribunal for a review of
the determination by or on behalf of a party to the
determination but, notwithstanding section 27 of the
Administrative Appeals Tribunal Act 1975, no other
person may make such an application."

5. Most of the arguments presented to the Tribunal by Mr Maguire and Mr Hawkins were addressed to the question whether under section 20(4)(a) of the 1971 Act the Commissioner had power to reconsider a determination of one of his delegates which had been the subject of an application to the Tribunal and had been affirmed by the Tribunal pursuant to section 43(1)(a) of the AAT Act. However, after I had drawn to the attention of the parties the decision of the Tribunal in Re Bell and Australian Telecommunications Commission (1983) 5 ALN N186, Mr Maguire sought also to rely on that decision. He submitted that the letter which the Commissioner's delegate sent to Mr Hawkins on 12 September 1988 contained no determination and that consequently no application could be made for review of whatever he might have decided. Mr Hawkins in reply argued that the Commissioner had power to reconsider the determination which the Tribunal had affirmed and that, because the applicant had placed additional evidence before him, he should have reconsidered it. As to the decision in Re Bell he said that it did "not entirely dismiss my submission that the power of reconsideration ought to be exercised".

6. Before I turn to Re Bell, it should be noted that no argument was presented that paragraph (b) of section 20(4) was applicable in the present case. As no determination has been made since that which was the subject of the application for review made in 1986, that application was "a proceeding . . . instituted under Part V in respect of (that) determination". There were two important differences between paragraphs (a) and (b) of section 20(4); under paragraph (a) the Commissioner had a discretion which he exercised of his own motion and he might exercise it whether or not a proceeding had been instituted or completed under Part V, whereas under paragraph (b) he was obliged to reconsider the determination if he was requested to do so by the Commonwealth or the claimant and if a proceeding had not been instituted under Part V. A decision by the Commissioner or his delegate whether or not to exercise the discretion conferred by paragraph (a) may well have been a decision which the Tribunal could review, if it were empowered to review any decision of the Commissioner (cf. Hales v Director-General of Social Security [1983] FCA 81; (1982) 47 ALR 281). However, whether the Tribunal has power to review a decision depends on whether application for review of it can be made to the Tribunal under any enactment (sections 25 and 26, AAT Act). In the present case the only enactment under which the application could have been made was the 1971 Act and in particular section 63 of that Act.

7. In Re Bell the Tribunal considered precisely the question which has to be addressed in the present case, namely in respect of what decisions of the Commissioner may an application be made to the Tribunal for review. After setting out details of the submissions made by the parties in that case Deputy President Todd said:-

"5. Although these submissions have an initial
appeal, having given the matter a great deal of
consideration I have come to the conclusion that they
should not be accepted. The reasons why this is so
are derived from the general concept of s.20 and of
the Act as a whole and from particular indications
given in the wording of the section. The 1971 Act
sets up a system governing the making of claims and
for the making of what are referred to as
'determinations'. Those determinations are then
liable to be subjected to a process of review, now by
the Administrative Appeals Tribunal, but formerly by
the Compensation Tribunal by way of reconsideration
or before a prescribed Court by way of judicial
review. As with the making of claims, a time limit
is laid down for the commencement of the process of
review. Before the AAT, that time may be extended
(see s.29(7) of the Administrative Appeals Tribunal
Act 1975). Likewise before the Compensation Tribunal
the time for lodgment of a request for
reconsideration (see s.77(1) of the 1971 Act as it
stood prior to its repeal) could be extended.
6. It might have been thought that these
processes of review might be enough, but s.20(4) has
been included so as to add a further method by which
the possibility of error may be corrected. Under
s.20(4)(a), the Commissioner may reconsider a
determination of his own motion 'whether or not a
proceeding has been instituted or completed under
Part V' (being the provisions providing for review).
If that reconsideration results in a new
determination, it will be subject to the process of
review. If it does not, then the situation remains
as before. Under s.20(4)(b) the Commissioner may be
required to reconsider a determination, by the
Commonwealth or by a claimant, 'if a proceeding has
not been instituted under Part V in respect of the
determination'. Again, if that reconsideration
results in a new determination that will be subject
to the process of review, but I find it difficult to
conceive that the whole process of review was
intended to be capable of being set in motion again
simply by the making of a request for
reconsideration. In saying this, I am much impressed
by the requirement in s.20(4)(b), already mentioned,
that a proceeding not have been instituted under Part
V in respect of the determination. This process of
reconsideration is thus independent of the review
process. It only comes to be capable of being
involved in that process where the status quo is
disturbed and a fresh determination made.
7. As a further particular indication, I was
referred to the provisions of s.20(6)(c) wherein a
clear distinction is drawn between the making of a
determination varying or revoking a previously made
determination and a decision not to vary or revoke
the same. This sharpness of terminology, it was
pointed out, is carried through in s.20(4) whereunder
the discretionary power conferred upon the
Commissioner is limited to making a determination
varying or revoking and does not include a power,
still less a requirement, to make a determination
confirming the existing determination. That is
unnecessary, for that determination subsists.
8. This clarity of definition is also carried
through into the particular provisions relating to
the review process. As to this, the respondent made
the following submission, with which I agree and the
terms of which I adopt:
'Section 3(3) of the AAT Act 1975
(Administrative Appeals Tribunal Act 1975)
provides (emphasis added):
' (3)A reference in this Act to a
decision includes a reference to -
(a) making, suspending, revoking or
refusing to make an order or
determination;
. . . . .
or
(g) doing or refusing to do any
other act or thing.'
37. The jurisdiction of the AAT in
compensation matters derives from Part V of
the Compensation (Commonwealth Government
Employees) Act, which was given its present
form by S149 of the Commonwealth Functions
(Statutes Review) Act 1981 (the CF(SR) Act),
per medium of Schedule 2 of that Act. S149
depends upon S25 of the AAT Act. The effect
was to amend the C(CGE) Act by substituting
for the former provisions enabling
reconsideration by a Compensation Tribunal
of matters or questions arising under a
determination of the Commissioner referred
for that purpose, or judicial review of a
determination of the Commission, a new
provision which provides:
'63(1) Where a determination by the
Commissioner is made under this Act, an
application may be made to the
Administrative Appeals Tribunal for a
review of the determination by or on
behalf of a party to the determination
but, notwithstanding S27 of the AAT Act
1975, no other person may make such an
application.'
But, the C(CGE) Act in its amended form does
not apply to every determination made by the
Commissioner under that Act before the date
of commencement of the relevant Part (VI) of
the CF(SR) Act. The provisions enabling
review of determinations made before 1.7.81
are set out in the CF(SR) Act, not in the
C(CGE) Act. The relevant provision is that
the C(CGE) Act applies in its amended form
where before 1.7.81 a party to a
determination had not sought reconsideration
of a matter or question or judicial review
of the determination, or applied for an
extension of time for seeking judicial
review but there must first have been 'a
determination . . . made by the
Commissioner', and the review which is
available is a review of that determination.
38. S25(3) of the AAT Act enables an
enactment that provides for review of
decisions made under that enactment to 'be
expressed to apply to all decisions of a
person, or to a class of such decisions'.
S63(1) of the Compensation Act does that.
It limits the jurisdiction of the AAT to a
class of decisions made by the Commissioner,
viz. determinations. S3(3) of the AAT Act
must be read in that light. S27 of the AAT
Act enables an application for review of a
decision to be made 'by or on behalf of any
person . . . whose interests are affected by
the decision'. The Compensation Act
provisions are narrower. Only 'a party to
the determination' may apply,
'notwithstanding Section 27 of the AAT Act
1975'. S62(1) of the Compensation Act
limits the parties to a determination to
'the Commonwealth or . . . the claimant or,
if there is more than one claimant whose
claim was dealt with by the determination,
to any of those claimants'. That is much
narrower than 'any person . . . whose
interests are affected'.'
Reference was then made to Roidoulis v Australian
Postal Commission (Federal Court of Australia,
unreported decision of Keely J, 16 April 1981) and to
Commonwealth v Portelli (1982) 39 ALR 161.
9. As was said by Lockhart J in Director-General
of Social Security v Hales (Federal Court of
Australia, 5 May 1983, unreported):
'No narrow or pendantic approach is called
for in determining whether a decision falls
within the scope of review by the
Administrative Appeals Tribunal. The
multiplicity of statutes which continue to
grow and to confer jurisdiction on the
Administrative Appeals Tribunal, and the
manifold and diverse circumstances which
attract the power of the decision maker,
all call for a liberal approach to the
definition of the word 'decision'.'
Fitzgerald J also considered the concept of a
reviewable dcision (sic) in Director-General of
Social Services v Hangan [1982] FCA 262; (1983) 45 ALR 23 and after
referring to a number of recent authorities, referred
(at p 46) to the tendency of the courts to construe
the word 'decision' widely. Nevertheless, the
jurisdiction of the Administrative Appeals Tribunal
in Commonwealth Employees Compensation has a number
of special features. Notably, I am not concerned in
the present case with a situation in which to deny
jurisdiction to review would be to deny any process
of review. The question is whether there may be
repeated reviews, and to answer that question it is
necessary to concentrate closely on the particular
legislative provisions involved. I have come to the
conclusion that for the purposes of deciding that
question there is a distinction between a 'decision'
and a 'determination', whereas for other purposes,
such as the ambit of a review of a determination
properly before the Tribunal, the position can be
otherwise: See Re Karadis and Australian
Telecommunications Commission (No. V81/578, Mrs R.A.
Balmford, Senior Member). A reference should be
added to the decision of the Federal Court in
Bannister v See [1983] FCA 344; (1982) 45 ALR 146, but the
legislative provisions there in question are so
different that I have not been able to find guidance
in the present context.
10. In the present case, the requested
reconsideration was not preceded by any external
review of the 1977 determination. Yet if the
applicant's contentions are correct, it would be
open, in a case where such an external review had
taken place, to seek reconsideration of the already
reviewed determination, in its original or
substituted form, and to then seek further review of
a decision not to vary or revoke the same. This
cannot in my opinion have been the intended
consequence of the legislation."

8. With respect, I consider the reasoning in that passage from Re Bell to be sound and I adopt it as the basis of the reason for my finding in the present case that there was no determination by the Commissioner in respect of which the application in these proceedings could properly be made. For that reason the Tribunal does not have power to hear and determine that application and it must be removed from the hearing list.

9. In view of that finding, it is neither necessary nor appropriate for me to decide the question whether the Commissioner had power to reconsider his delegate's determination which had been affirmed by the Tribunal. Nevertheless, in deference to Mr Maguire and Mr Hawkins, who addressed almost all of their arguments to that question, I would have stated my views in respect of it briefly. However, the answer to the question depends essentially on whether the Commissioner was estopped from reconsidering the determination; Mr Maguire asserted that either the principle of estoppel by cause of action (res judicata) applied or the principle of issue estoppel. In Re Cooper and Commonwealth of Australia (No. 4735: 11 November 1988) the Tribunal had to consider whether the principle of issue estoppel applied to it. An appeal against the decision in that case has been lodged with the Federal Court. In the course of the hearing and determination of that appeal the Court is likely, I believe, to have to consider the question of the application of the principle to the Commissioner. In those circumstances it is preferable, I consider, that I do not state my views on the question of estoppel raised in these proceedings.

10. Accordingly, I simply make a finding that the Tribunal does not have power to review the decision in respect of which the applicant has applied to it for review. A direction must be given that the application be removed from the hearing list.