Bell and K & S Freighters Pty Ltd [2011] AATA 840 (25 November 2011)

Last Updated: 28 November 2011

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2011] AATA 840

ADMINISTRATIVE APPEALS TRIBUNAL )

) No 2011/3526;

GENERAL ADMINISTRATIVE DIVISION		) 2011/4431
	Re		ANDREW BELL

Applicant

And

K & S FREIGHTERS PTY LTD

Respondent

DECISION

Tribunal

Deputy President P E Hack SC

Date 25 November 2011

Place Brisbane

Decision

In application 2011/3526, it is directed that the subject matter of the application is whether the respondent is liable pursuant to s 14 of the Safety, Rehabilitation & Compensation Act 1988 (Cth) to pay compensation to the applicant for the condition of umbilical hernia. The applicant’s costs, of and incidental to this hearing, are reserved. In application 2011/4431, the application is dismissed pursuant to s 42A(4) of the Administrative Appeals Tribunal Act 1975 (Cth).

...............[Sgd].........................
Deputy President

CATCHWORDS

WORKERS’ COMPENSATION – injury – claim for compensation – liability rejected – whether applicant entitled to subsequently rely on other heads of compensation – question of respondents liability restricted to that before original decision maker - refusal to make a determination – non-reviewable decision – application dismissed

Administrative Appeals Tribunal Act 1975 (Cth) s 3

Safety, Rehabilitation and Compensation Act 1988 (Cth) ss 5A, 14, 16, 19, 24, 27, 54, 57, 58, 59, 60, 61, 64, 109A

Australian Postal Corporation v Oudyn [2003] FCA 318; (2003) 73 ALD 659

Lees v Comcare [1999] FCA 753; (1999) 56 ALD 84

Re Durham and TNT Australia Pty Ltd [2011] AATA 802

Re Fuad and Telstra Corporation Limited [2004] AATA 1182; (2004) 39 AAR 496

Re Liu and Comcare [2004] AATA 617; (2004) 79 ALD 119

Rosillo v Telstra Corporation Ltd [2003] FCA 1628; (2003) 77 ALD 396

REASONS FOR DECISION

25 November 2011	Deputy President P E Hack SC
BACKGROUND

1. The applicant in these proceedings, Mr Andrew Bell, is a truck driver. He is employed by the respondent, K & S Freighters Pty Ltd (K & S). In September or October 2010 Mr Bell started to experience pain in his stomach. The symptoms progressed to the point where he required medical attention. On 20 June 2011 Mr Bell saw a surgeon, Dr Mulhearn, who diagnosed an umbilical hernia.
2. Mr Bell contends that the hernia arose out of his employment with K & S; it was caused, he says, by “lifting strain” from lifting gates and tying down loads. On 22 June 2011 Mr Bell completed, and lodged with K & S, a notice of injury and a claim for compensation. The claim form was a document made available by K & S to its employees. It did not require the claimant to identify any particular head of compensation which was being claimed, or to provide details of the claims being made or intended to be made.
3. On 11 July 2011 K & S, by its insurer, made a determination that it was not liable to pay compensation to Mr Bell pursuant to s 14 of the Safety, Rehabilitation and Compensation Act 1998 (Cth) (the SRC Act). On 2 August 2011 Mr Bell’s solicitors sought reconsideration of the determination. Explicit reference was made in that letter to Mr Bell being entitled to compensation pursuant to ss 14, 16, 19, 24 and 27 of the SRC Act. Those sections provide for compensation for medical expenses (s 16), incapacity (s 19), permanent impairment (s 24) and non-economic loss (s 27).
4. The matter was reconsidered and on 15 August 2011 the earlier determination was affirmed in this way:

“I am satisfied K & S ... is not liable to pay compensation to [Mr Bell] under Section 14 of the Safety, Rehabilitation and Compensation Act 1988 in respect of ‘umbilical hernia’. As such, I have affirmed the determination dated 11 July 2011”

The statement of reasons attached to the letter deal only with the issue of liability under s 14 of the SRC Act; there is no reference to compensation under any other of the sections referred to by Mr Bell’s solicitors.

5. Proceedings were commenced in the Tribunal on 29 August 2011 (application 2011/3526).
6. On 30 August 2011 Mr Bell’s solicitors wrote to the insurer pointing out the absence of reference in the decision to the claims under ss 16, 19, 24 and 27 of the SRC Act. Confirmation was sought that the decision that had been made included those claims. The response, by letter dated 1 September 2011, noted that an adverse determination had been made on the question of liability under s 14 of the SRC Act. The letter continued,

“It logically follows that no determinations can be made pursuant to sections 16, 19, 24 and 27 as there is no liability pursuant to section 14 of the SRC Act.”

The letter, it was said, was not a determination under s 60(1) of the SRC Act and the decision made was only reviewable pursuant to the Administrative Decisions (Judicial Review) Act 1977 (Cth).

7. Mr Bell’s solicitors wrote again on 8 September 2011, noting the refusal to consider Mr Bell’s “entitlement to benefits for his hernia condition under sections 16, 19, 24 and 27” of the SRC Act. Reconsideration of the determination of 1 September 2011 was sought. K & S responded by letter dated 13 September 2011 asserting that “it would therefore seem redundant to make determinations for benefits where there has been no acceptance of any liability under section 14.”
8. That response prompted Mr Bell to make a further application to the Tribunal (application 2011/4431) by which he sought a review of the refusal to make decisions under ss 16, 19, 24 and 27. On 7 November 2011 the solicitors for K & S put in issue the Tribunal’s jurisdiction to deal with the claims made under s 16 and s 19. A favourable decision under s 14, it is said, is a pre-condition to a consideration of claims under either s 16 or s 19. That issue was the subject of a hearing on 18 November 2011.

THE LEGISLATION

9. Reference needs now to be made to the statutory scheme in the SRC Act. At the outset it needs to be noted that K & S is a “licensee” under the Act and is authorised to accept liability to pay compensation under the SRC Act. Thus, by operation of s 108A of the SRC Act, references in the Act to “Comcare” are read as references to K & S. Section 14 of the SRC Act plays a central role. It provides:

“(1) Subject to this Part, Comcare is liable to pay compensation in accordance with this Act in respect of an injury suffered by an employee if the injury results in death, incapacity for work, or impairment.”

Section 16 deals with the costs of medical treatment. It provides:

“(1) Where an employee suffers an injury, Comcare is liable to pay, in respect of the cost of medical treatment obtained in relation to the injury (being treatment that it was reasonable for the employee to obtain in the circumstances), compensation of such amount as Comcare determines is appropriate to that medical treatment.

(2) Subsection (1) applies whether or not the injury results in death, incapacity for work, or impairment.”

10. The term “injury” is defined by s 5A of the SRC Act as meaning:

“(a) a disease suffered by an employee; or

(b) an injury (other than a disease) suffered by an employee, that is a physical or mental injury arising out of, or in the course of, the employee’s employment; or

(c) an aggravation of a physical or mental injury (other than a disease) suffered by an employee (whether or not that injury arose out of, or in the course of, the employee’s employment), that is an aggravation that arose out of, or in the course of, that employment;

but does not include a disease, injury or aggravation suffered as a result of reasonable administrative action taken in a reasonable manner in respect of the employee’s employment.”

It is unnecessary to consider the definition of “disease”; in the injury/disease dichotomy of the SRC Act an umbilical hernia is an injury properly so called rather than a disease.

11. Section 19 of the SRC Act applies to an employee who is incapacitated for work as a result of an injury. It is a sufficient explanation to say that it makes, in this case K & S, liable to pay compensation to such an employee in respect of the injury for the period that the employee is incapacitated. The SRC Act contains complex provisions for the determination of compensation for incapacity. Section 24 creates liability to pay compensation to an employee where an injury results in permanent impairment provided, generally, that the degree of permanent impairment is at least 10%. Section 27 creates a liability to pay compensation for non-economic loss where there is a liability to pay compensation under s 24.
12. Provision is made in s 54 for the making of a claim in these terms:

“(1) Compensation is not payable to a person under this Act unless a claim for compensation is made by or on behalf of the person under this section.

(2) A claim shall be made by giving the relevant authority:

(a) a written claim in accordance with the form approved by Comcare for the purposes of this paragraph; and

(b) except where the claim is for compensation under section 16 or 17—a certificate by a legally qualified medical practitioner in accordance with the form approved by Comcare for the purposes of this paragraph.”

13. Once a claim has been made the authority may require the employee to attend a medical examination (s 57), provide further information (s 58) or documents (s 59).
14. Part VI of the SRC Act, headed “Reconsideration and review of determinations”, establishes what has been described as “a three tiered decisionmaking process”^[1] – the original decision or determination made by an authorised person within Comcare or the licensed authority, a reconsideration determination, also made within Comcare or the licenced authority, and a decision of the Tribunal reviewing the reconsidered decision. Within s 60, contained in that Part, are these definitions,

“decision has the same meaning as in the Administrative Appeals Tribunal Act 1975.

determination means a determination, decision or requirement made under section 8, 14, 15, 16, 17, 18, 19, 20, 21, 21A, 22, 24, 25, 27, 29, 30, 31, 34, 36, 37 or 39, under paragraph 114B(5)(a) or under Division 3 of Part X.

determining authority, in relation to a determination, means the person who made the determination.

reviewable decision means a decision made under subsection 38(4) or section 62.”

Section 61 contemplates that the determining authority will make a determination, and then notify the claimant of the terms of, and reasons for, the determination. A claimant may, thereafter, request a determining authority to reconsider a determination made by it. Where such a request is made s 62 of the SRC Act provides, so far as is material,

“(4) On receipt of a request, the determining authority shall reconsider the determination or cause the determination to be reconsidered by a person to whom its power under this section is delegated, being a person other than a person who made, or was involved in the making of, the determination.

(5) Where a person reconsiders a determination, the person may make a decision affirming or revoking the determination or varying the determination in such manner as the person thinks fit.”

15. A claimant dissatisfied with a decision on reconsideration may then seek a review in the Tribunal in accordance with s 64. It provides,

“(1) Application to the Administrative Appeals Tribunal for review of a reviewable decision may be made by:

(a) the claimant; or

(b) if the decision affects the Commonwealth—the Commonwealth; or

(c) if the decision affects a Commonwealth authority—the Commonwealth authority; or

(d) if the decision affects a corporation that holds a licence under Part VIII—the licensed corporation.”

THE SUBMISSIONS

16. The argument for K & S is that only the issue of liability under s 14 of the SRC Act has been considered by the primary decision-maker and on reconsideration. Mr Bell’s position is indistinguishable from that of Mr O’Donohue determined by the Full Federal Court sub nom Lees v Comcare^[2]. Because questions of compensation under ss 16, 19, 24 and 27 of the SRC Act have not been determined at the first tier decision-making stage there has been no reconsideration under s 62 of the SRC Act and thus no reviewable decision touching on those questions to found an application to the Tribunal under s 64 of the SRC Act.
17. Mr Anforth, counsel for Mr Bell, relies on the decision of Jagot J, sitting as a judicial presidential member of the Tribunal, in Re Durham & TNT Australia Pty Ltd^[3], for the proposition that the Tribunal’s jurisdiction does not depend on a respondent’s characterisation of an applicant’s claim. Mr Bell, by lodging a claim for compensation, was not seeking a declaration about his injury, he was seeking compensation. And his claim, in the form promulgated by K & S, made it plain that he was seeking compensation for medical expenses (s 16) and incapacity (s 19). Given that the Tribunal has jurisdiction to review not only that which was actually decided but that which was put before the decision-maker as part of a claim^[4], the Tribunal has jurisdiction to hear and determine the claims under s 16 and s 19 of the SRC Act.
18. Alternatively, the refusal to make a decision, evidenced by the letter of 1 September 2011, comes within the scope of “decision”, which is defined in s 3(3) of the Administrative Appeals Tribunal Act as including “refusing to make ... [a] determination”. The further refusal, evidenced by the letter of 13 September 2011, by the same logic, is the decision on reconsideration.
19. Finally, it is said, that to require Mr Bell to split his s 14 case from the s 16 and s 19 case will put him to the expense of duplicated costs of obtaining medico legal reports and medical witnesses for two separate hearings, it will put him to two sets of legal costs and will hold him out of his entitlement to compensation until the second hearing.

CONSIDERATION

20. Whilst claims under s 24 of the SRC Act for permanent impairment and s 27 of the SRC Act for non-economic loss are referred to in the solicitors’ letter of 2 August 2011 I did not understand Mr Anforth to contend that those claims were being pursued in these proceedings. The written submissions make no reference to such claims; they are confined to the claims under ss 16 and 19 of the SRC Act. There was, in any event, nothing in any of the material provided by Mr Bell to K & S that even remotely hinted at the possibility of claims under ss 24 or 27 of the SRC Act.
21. I am not satisfied that Mr Bell has made a claim for compensation under either of s 24 or s 27 such that it could be said that K & S ought to have considered, but did not consider, those claims.
22. It may assist to start by examining what was decided in Lees v Comcare. The case concerned two claimants – Ms Lees and Mr O’Donohue. In the case of Ms Lees, Comcare had made a decision accepting liability pursuant to s 14 of the SRC Act to pay Ms Lees compensation in accordance with the Act. Subsequently Ms Lees made a claim for compensation by way of payment of the costs of taxi fares to medical appointments with treating practitioners. That claim was rejected by the primary decision-maker and on reconsideration. After proceedings had been commenced in the Tribunal for a review of that decision Ms Lees asserted an entitlement to make a claim in those proceedings for compensation for permanent impairment under s 24 of the SRC Act. The Tribunal held that it did have jurisdiction to decide the claim for permanent impairment.
23. Mr O’Donohue made a claim for compensation for a condition described as major depression. It was rejected on the basis that the condition resulted from reasonable disciplinary action taken by his employer with the result that he had not suffered an injury, that term being defined in s 4(1) of the Act in a way that excluded a condition occasioned by the taking of reasonable disciplinary action. The decision was affirmed on reconsideration and Mr O’Donohue commenced proceedings in the Tribunal. In the course of the normal pre-hearing processes of the Tribunal Mr O’Donohue indicated that he proposed to raise the issue of his entitlement to compensation for permanent impairment. Again, the Tribunal held that there was jurisdiction to hear that claim.
24. The Full Court held that in each case the Tribunal lacked jurisdiction. In the case of Ms Lees their Honours said^[5]:

“50 The only issues under s 24 of the Act which required determination in Ms Lees' case were the issues of whether she had a permanent impairment and, if she did, the amount of compensation payable under the section in respect of that impairment. Neither of these issues had been determined at the first tier decision-making stage. Necessarily in the circumstances, there had been no reconsideration under s 62 of the Act of a determination on these issues. Consequently there was no reviewable decision touching on these issues to found an application to the AAT under s 64 of the Act. The reviewable decision which founded Ms Lees' application to the AAT was the determination of the Independent Review Officer concerning Ms Lees' entitlement under s 16 of the Act for compensation in respect of taxi fares incurred, or to be incurred, for the purpose of obtaining medical treatment. It was that determination, and that determination only, that s 64 of the Act authorised the AAT to review. The powers of the AAT under s 43 of the AAT Act were powers which it was authorised to exercise for the purpose of reviewing only that determination.”

Mr O’Donohue’s claim was dealt with in this way:

“54 The only application which s 64 of the Act entitled Mr O'Donohue to make to the AAT was an application for review of the reviewable decision made by the Independent Review Officer. The terms of that decision are revealed by the notice in writing served on Mr O'Donohue. No suggestion has been made that the notice in writing misrepresents the actual determination made by the Independent Review Officer.

55. For the AAT to reach a decision as to Mr O'Donohue's entitlement, if any, to receive compensation under s 24 of the Act in respect of a permanent impairment it would have to become involved in a process extending beyond review of the reviewable decision made under s 62 of the Act. It would require the AAT to consider issues not determined at either the first or the second tier of the decision-making process established by the Act.
56. In view of the structured decision-making process established by the Act, and the plain language of s 64 of the Act, the powers of the AAT under s 64 do not, in our view, on an application to review a decision under s 14 of the Act, extend to allowing it to reach a decision as to Mr O'Donohue's entitlement, if any, to receive compensation under s 24 of the Act. In this regard it is immaterial in our view, whether the reviewable decision was one which determined that Comcare was liable to pay compensation in respect of an injury or one which determined that Comcare had no such liability.”
25. It is material to a consideration of the issues in the present case to set out some of the reasoning from the case. The essence of the reasoning appears from the following extracts:

“30 It is clear that Part V of the Act envisages first, the giving of notice of an injury and separately, and in most cases it may be assumed subsequently, the making of a claim for compensation in accordance with an approved form. The claim for compensation envisaged by s 54 is not, it would seem, necessarily a claim for compensation under a particular section, or particular sections, of the Act. The form approved by Comcare as required by s 54(2)(a) reflects the generic nature of a claim under the section. It is headed ‘Claim for Rehabilitation and Compensation’. It requires the provision of detailed information concerning the injury and time taken off work because of the injury, but it does not provide for the provision of information of the kind that would be necessary before a determination could be made under, for example, ss 16, 17, 18, 20, 21, 24 and 25 of the Act.

31. The claim, and the claim form, envisaged by s 54 of the Act reflects the practical reality that a claim for compensation is likely to be made relatively soon after the suffering of an injury, particularly if incapacity for work or significant medical expenses result from the injury. At the time that this initial claim is made it may be quite impossible for the employee to provide details of, for example, the fact or extent of any permanent impairment. For the reasons expressed below, the determination which is made on a claim, as required by s 54 of the Act, will ordinarily be a determination under s 14 of the Act.

...

34. The definition of ‘determination’ makes it plain that it is part of the scheme of the Act for determinations to be made under the various sections referred to therein. In particular, the definition reveals that a determination may be made under s 14 of the Act. A determination under s 14 cannot amount to more than a determination that Comcare ‘is liable to pay compensation in accordance with this Act’ in respect of a particular injury. The amount of compensation which Comcare will be liable to pay, the person or persons to whom the compensation will be payable and the time or times at which Comcare's liability will give rise to a present obligation to make payments are, as the above examination of the structure of the Act reveals, all matters to be determined under other provisions of the Act.
35. This is not to say that a determination under s 14 is without real significance. Such a determination will involve findings on the following matters. First, that an appropriate notice of injury has been given to the relevant authority as required by s 53 of the Act; secondly, that a claim for compensation has been made as required by s 54 of the Act; thirdly, that the person who made the claim or on whose behalf the claim was made was an ‘employee’ at the time of the alleged injury (ss 4 and 5); fourthly, that the employee suffered an injury (s 4); and finally, that the injury has resulted in death, incapacity for work or impairment.

...

39. In considering the extent of the power of the AAT when reviewing decisions under the Act, it is to be noted, first, that the AAT is authorised by s 64 of the Act to review only reviewable decisions - that is, for present purposes, second tier or reconsideration decisions made under s 62 of the Act. Decisions under s 62 of the Act are the result of the reconsideration by Comcare or a licensed authority of a determination, as defined by s 60 of the Act, concerning which a claimant will have received a notice in writing setting out the terms of the determination and the reasons for the determination: (s 61(1)). Secondly, it is to be noted that the powers of the AAT under s 43(1) of the AAT Act are powers ‘[f]or the purpose of reviewing’ the reviewable decision, not powers that may be exercised at large. Further, the powers and discretions that the AAT may exercise under s 43(1) are the powers and discretions conferred by the Act on the determining authority for the purposes of reconsidering a determination under s 62 of the Act. The AAT will not be authorised on review of a reviewable decision to exercise any powers and discretions which would not have been available to the determining authority at the second tier decision-making stage, albeit that such powers and discretions might have been available to the determining authority at the first tier decision-making stage.”
26. The decision in Re Durham and TNT Australia Pty Ltd^[6] on which Mr Anforth places reliance does not assist in the determination of the present issue. In that case, which concerned characterisation of the nature of the injury underlying a claim, her Honour said^[7]:

“It will be apparent from the discussion above that, in conducting a review under s 64 of the Act, the Tribunal’s jurisdiction does not depend on the respondent’s characterisation of the applicant’s claim. Rather, the Tribunal must assess for itself the true scope of the claim and is empowered to conduct its review on that basis.”

27. In undertaking that review it is important to note that nowhere did Mr Bell articulate his claims for medical expenses nor did he specify what his claims for incapacity payments were. Even if it be assumed that he was making a claim for compensation under ss 16 or 19, the information that would have been required by K & S to determine the particular claims, had it accepted liability under s 14 of the SRC Act, was not provided to it. It is not an answer to say, as Mr Anforth says, that it did not use its statutory powers to require the provision of information or otherwise investigate the claim. The SRC Act does not require either the claimant or the authority to undertake an exercise in futility. Once K & S had determined that it was not liable, it would have been entirely unproductive (for both it and Mr Bell) to have sought from Mr Bell, and for Mr Bell to have provided, details and costs of medical treatment and dates of absences from work so that K & S could determine what its attitude to those claims might have been had it been satisfied that it was liable to pay Mr Bell compensation in accordance with the SRC Act in respect of an injury as defined by that Act. The statute imposes on K & S an obligation “to make determinations accurately and quickly”^[8]; undertaking the processes that Mr Bell submits ought to have been undertaken here would impede the performance of that obligation.
28. In Re Fuad and Telstra Corporation Limited^[9] Downes J, sitting as the President of the Tribunal, was concerned with a claimant whose claim for compensation had been accepted i.e. a favourable decision under s 14 of the SRC Act had been made. Subsequently, when Mr Fuad made a particular claim for compensation, a determination was made that Telstra had ceased to be liable under s 14 of the SRC Act. It appeared to be common ground that that decision was contrary to the SRC Act and that the effect of the decisions of the Federal Court in Australian Postal Corporation v Oudyn^[10] and Rosillo v Telstra Corporation Ltd^[11] and the Tribunal in Re Liu and Comcare^[12] was that once liability has been established under s 14 of the SRC Act, an employee cannot be deprived of the entitlement to claim further compensation relating to the established injury if the injury again causes some incapacity. Mr Fuad wished to pursue claims for compensation for incapacity which were before the decision-maker but which were not dealt with because of the erroneous view taken by the decision-maker about the liability under s 14. Justice Downes said:

“4 The application for review before the Tribunal in this matter differs from the application in Kelleher because Mr Fuad does wish to pursue claims which were before the decision-maker and which relate to incapacity not upheld in the decision under review. These matters are not dealt with in the determination because of the decision that liability had ceased but, in my opinion, the effect of the decision in Oudyn is that even though an application for compensation is refused pursuant to s 14 or s 16, with the consequence that the decision-maker does not address fully the actual applications under s 19, s 21 or such other section as is appropriate, nevertheless, the decision adverse to the applicant is a decision adverse on all matters put before the decision-maker by the applicant.

5. It follows that all matters put before the decision-maker as part of a claim under the Act are before this Tribunal for review when an application for review is made, even though the decision may not address them in any particular way. That leaves a problem of identifying exactly what was before the decision-maker but that is a practical problem and not a jurisdictional problem.”
29. In the present case the task of identifying exactly what was before the decision-maker is relatively simple. There was an incident report and a claim for compensation which did not articulate any particular head of compensation and did not provide any of the information that K & S would have required to make a determination of entitlements under any particular head of compensation. The subsequent reference in the solicitors’ letter of 30 August 2011 to claims under those sections (and ss 24 and 27) was not capable of changing the nature of what was before the decision-maker. It may be accepted that a respondent cannot determine the Tribunal’s jurisdiction by wrongly characterising an applicant’s claim. By the same token, an applicant cannot confer jurisdiction by a mere mention of all of the possible heads of compensation that might conceivably be payable without at least making some attempt to provide the information needed to make a sensible determination of the claim.
30. I am then of the view that Mr Bell did not put claims under ss 16 and 19 of the SRC Act before the decision-maker as part of his claim and that there was neither an express nor an implicit rejection of such a claim. It follows that claims under ss 16 and 19 were not subject to any reconsideration, either expressly or impliedly, and that those claims are not before the Tribunal as part of the decision sought to be reviewed in application 2011/3526. I will make a direction to give effect to that conclusion.
31. I can deal briefly with Mr Bell’s “utility” argument. The Tribunal either has jurisdiction or it has not. It cannot acquire jurisdiction merely because it might be more convenient, even to both parties, to hear matters in a particular way.
32. It remains to consider the “deemed decision” argument, that is, that there is taken to be a decision on reconsideration constituting a reviewable decision because K & S refused to make a decision on Mr Bell’s claims for compensation under ss 16 and 19. Again the answer lies in the content of the claim actually made. Unless K & S were aware that Mr Bell had made a claim under ss 16 or 19 of the SRC Act it could not refuse to make a determination on that claim; it might fail to make a determination but a failure to make a determination does not constitute a refusal.
33. The original claim made on 22 June 2011 was not a claim for compensation under ss 16 or 19 of the SRC Act; it was a claim for the acceptance of liability under s 14 of that Act. A determination was made on 11 July 2011 in those terms, that is, that there was no liability under s 14 of the SRC Act. It may be doubted whether the scope of a claim may be enlarged at the stage of reconsideration but I am satisfied that, even if it be permissible to do so, it cannot be achieved by a mere recitation of sections of the SRC Act and without providing any of the information required to consider the merits of a claim under those sections. The consideration of the merits of those claims at the first two tiers of the three-tiered decision-making process cannot so easily be disregarded.
34. There is then no reviewable decision and accordingly the Tribunal has no jurisdiction to determine the second application made by Mr Bell. I will give effect to that conclusion by dismissing application 2011/4431 pursuant to s 42A(4) of the Administrative Appeals Tribunal Act.
35. Given that Mr Bell may ultimately become entitled to his costs of the proceedings I will make an order reserving his costs incurred in application 2011/3526.

I certify that the 35 preceding paragraphs are a true copy of the reasons for the decision herein of Deputy President P E Hack SC

Signed: ..........[Sgd].............................................................

Associate

Date/s of Hearing 18 November 2011

Date of Decision 25 November 2011

Counsel for the Applicant Mr A Anforth

Solicitor for the Applicant Maurice Blackburn Lawyers

Counsel for the Respondent Mr M Seymour

Solicitor for the Respondent Clark Legal Lawyers

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^[1] Lees v Comcare [1999] FCA 753; (1999) 56 ALD 84 at [32].

^[2] Ibid.

^[3] [2011] AATA 802.

^[4] Re Fuad & Telstra Corporation Ltd [2004] AATA 1182; (2004) 39 AAR 496.
^[5] Lees v Comcare [1999] FCA 753; (1999) 56 ALD 84.

^[6] [2011] AATA 802.

^[7] At [51].

^[8] See s 69(a), SRC Act.

^[9] [2004] AATA 1182; (2004) 39 AAR 496.

^[10] [2003] FCA 318; (2003) 73 ALD 659.

^[11] [2003] FCA 1628; (2003) 77 ALD 396.

^[12] [2004] AATA 617; (2004) 79 ALD 119.