FEDERAL COURT OF AUSTRALIA Comcare v Sassella [2001] FCA 1514 COMCARE v MICHAEL J SASSELLA, JOY BROPHY A53 of 2001 FINN J CANBERRA 8 NOVEMBER 2001 IN THE FEDERAL COURT OF AUSTRALIA AUSTRALIAN CAPITAL TERRITORY DISTRICT REGISTRY A53 OF 2001 BETWEEN: COMCARE APPLICANT AND: MICHAEL J SASSELLA FIRST RESPONDENT JOY BROPHY SECOND RESPONDENT JUDGE: FINN J DATE OF ORDER: 8 NOVEMBER 2001 WHERE MADE: CANBERRA THE COURT ORDERS THAT: 1. The application be allowed. 2. The decision of the Administrative Appeals Tribunal dated 11 July 2001 be set aside. THE COURT DECLARES: 1. The Administrative Appeals Tribunal did not have jurisdiction to review the decision found by it to have been made by Comcare. 2. The Administrative Appeals Tribunal did not have jurisdiction to hear and determine the application for review lodged by Ms Brophy on 15 March 2001. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. IN THE FEDERAL COURT OF AUSTRALIA AUSTRALIAN CAPITAL TERRITORY DISTRICT REGISTRY A53 OF 2001 BETWEEN: COMCARE APPLICANT AND: MICHAEL J SASSELLA FIRST RESPONDENT JOY BROPHY SECOND RESPONDENT JUDGE: FINN J DATE: 8 NOVEMBER 2001 PLACE: CANBERRA REASONS FOR JUDGMENT 1 An object of Comcare's application under s 39B(1) and s 39B(1A) of the Judiciary Act 1903 for a review of a decision of the Administrative Appeals Tribunal ("the Tribunal") is to ensure that the Tribunal had jurisdiction to hear and determine the application made to it by the second respondent, Joy Brophy, under the Safety, Rehabilitation and Compensation Act 1988 (Cth) ("the SRC Act"). The application had the potential to expose difficulties of no little complexity with this less than happily draughted statute. In the event, it can be dealt with in relatively simple fashion. 2 At issue is whether, at the time at which Ms Brophy's application to the Tribunal was made, a primary decision had been made by Ms Brophy's previous employer (Qantas) under s 37 of the SRC Act which could be, and was, reviewed by Comare under s 38(4) of that Act, so providing a reviewable decision (see s 60(1)) that could enliven the Tribunal's jurisdiction under s 64(1) of the Act. Background 3 The factual background can be stated shortly. 4 (1) Ms Brophy sustained a back injury in a work related accident in 1993 in the course of her employment with Qantas. After a report from the Commonwealth Rehabilitation Service, a return to work plan was formulated and Ms Brophy returned to work. On 1 April 1997, Qantas terminated her employment. 5 (2) On 9 September 1997, Ms Brophy's solicitors requested that Qantas make a rehabilitation assessment under s 36 of the SRC Act. Qantas declined to do so, indicating by letter of 26 September 1997 that Ms Brophy had previously been assessed for rehabilitation; had completed the rehabilitation program; and, in consequence, her s 36 request had already been undertaken and completed. 6 (3) On 27 October 1997, Ms Brophy sought reconsideration by Comcare of Qantas's determination under s 38 of the SRC Act. Comcare in turn determined that Ms Brophy should undergo a s 36 rehabilitation assessment. That assessment was undertaken by the Commonwealth Rehabilitation Service and was completed on 19 January 1999. 7 (4) On 12 November 1999, Ms Brophy's solicitors wrote to Qantas complaining of inaction by it on the assessment, a complaint reiterated on 12 April 2000. On 19 April 2000 Qantas replied, somewhat delphically, that it would be in a position to make its decision on whether a s 37 determination should be made. Further requests on Ms Brophy's behalf made on 14 August 2000 and 31 October 2000 were met with like inaction by way of response from Qantas. 8 (5) On 29 November 2000 Ms Brophy's solicitors made a request to Comare under s 38(2) of the SRC Act requesting its review of the determination by Qantas not to implement the rehabilitation program recommended by the Commonwealth Rehabilitation Service. Comcare responded on 1 February in terms that (inter alia): "With respect to your contention, I do not consider that a determination has been made by QANTAS for the purposes of section 37 of the SRC Act. A refusal to make a decision requires an overt act to make a decision to refuse a request or application; not a mere failure to take any action. The full definition of "decision" in the AAT Act refers to such overt acts, that is, the actual decision to refuse to make a decision. It is that specific act of refusal that is required. In this matter QANTAS has merely not complied with requests to make a decision, or by definition, a determination under section 37 of the ARC [sic] Act. Until QANTAS makes such an overt determination, Comcare has no jurisdiction to undertake a review under section 38 of the SRC Act. Section 37 specifically states that QANTAS may make a determination that an employee should undertake a rehabilitation program. As a matter of statutory interpretation the making of a determination by the rehabilitation authority is discretionary. If the word "shall" had been used the requirement would have been obligatory. Accordingly, the request made on behalf of Ms Brophy cannot be complied with. It is up to QANTAS to make a determination." 9 (6) On 15 March 2001, Ms Brophy applied to the Tribunal for review of Comcare's decision of 1 February 2001. 10 (7) On 20 March 2001, Qantas wrote to Ms Brophy's solicitors in the following terms: "We refer to your previous correspondence in relation to the above matter. We wish to advise that Qantas have complied with the requirements under the Safety, Rehabilitation and Compensation Act 1988 ("the Act"). In this regard we confirm that Ms Brophy was made redundant in April 1997. On 7 January 1999, at the request of the worker, a rehabilitation assessment was arranged through CRS pursuant to s 36(1) of the Act. As you are aware, Qantas are not compelled to make a determination under s 37(1) of the Act. We request that you provide the section in the legislation that make [sic] it mandatory for Qantas to make a determination under s 37(1)." The Statutory Setting 11 I refer to the provisions of s 36(1) and (8), first, to note the contrast in subsection (1) between the right of an employee to require an assessment and the power of a rehabilitation authority otherwise to arrange an assessment of an employee; and secondly, to indicate that in subsection (8) the assessment is required to be provided to the rehabilitation authority: "36(1)Where an employee suffers an injury resulting in an incapacity for work or an impairment, the rehabilitation authority may at any time, and shall on the written request of the employee, arrange for the assessment of the employee's capability of undertaking a rehabilitation program. … (8) Where an examination is carried out, the person or persons who carried out the examination shall give to the rehabilitation authority a written assessment of the employee's capability of undertaking a rehabilitation program, specifying, where appropriate, the kind of program which he or she is capable of undertaking and containing any other information relating to the provision of a rehabilitation program for the employee that the rehabilitation authority may require." 12 Section 37, insofar as presently relevant, provides: "37(1)A rehabilitation authority may make a determination that an employee who has suffered an injury resulting in an incapacity for work or an impairment should undertake a rehabilitation program and, where the authority so determines, it may make arrangements with an approved program provider for the provision of a rehabilitation program for the employee. … (3) In making a determination under subsection (1), a rehabilitation authority shall have regard to: (a) any written assessment given under subsection 36(8); (b) any reduction in the future liability to pay compensation if the program is undertaken; (c) the cost of the program; (d) any improvement in the employee's opportunity to be employed after completing the program; (e) the likely psychological effect on the employee of not providing the program; (f) the employee's attitude to the program; (g) the relative merits of any alternative and appropriate rehabilitation program; and (h) any other relevant matter." 13 Section 38 provides: "38(1)As soon as practicable after a rehabilitation authority (other than a relevant authority) makes a determination under section 36 or 37, the authority shall cause to be served on the employee to whom the determination relates 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 employee may, if dissatisfied with the determination, request Comcare for a review of the determination under this section. (2) An employee in respect of whom a determination under section 36 or 37 is made by a rehabilitation authority (other than a relevant authority) may, by notice in writing given to Comcare, request Comcare to review the determination. (3) A request shall: (a) set out the reasons for the request; and (b) be given to Comcare within 30 days after the day on which the determination first came to the notice of the employee, or within such further period (if any) as Comcare, either before or after the expiration of that period, allows. (4) On receipt of a request, Comcare shall review the determination and may make a decision affirming or revoking the determination or varying the determination in such manner as Comcare thinks fit." Matters of Concession 14 Comcare has made a number of important concessions in this matter that have altered considerably the case as foreshadowed. These concessions are that: (i) a "decision" by Qantas refusing to make a determination that Ms Brophy should undertake a rehabilitation program is itself a decision that can be reviewed by Comcare under s 38(4) - this concession being made, consistent with the beneficial purpose of the SRC Act, to accord equal treatment to employees whether or not the rehabilitation authority is a "relevant authority": s 38(1) and (2); by extending by implication to s 38 the meaning of a "decision" contained in s 3(3) of the Administrative Appeals Tribunal Act 1975 (Cth): s 60(1) "decision"; (ii) Comcare would not challenge the finding that by the letter of 20 March 2001, Qantas communicated a decision to refuse to make a determination under s 37: Transcript, p 25. 15 The first concession has resulted in Comcare not prosecuting its contention that s 38 of the SRC Act does not permit Comcare to review a decision refusing to make a determination. The second concession is, in substance, that Qantas by so refusing to make a determination has made a decision reviewable by Comcare under s 38(4). The First Matter of Contention 16 Comcare's principal contention in this matter is that the decision it concedes was made by Qantas (ie on 20 March 2000) was made after Ms Brophy applied to Comcare to review a "decision" of Qantas (ie on 29 November 2000) with the consequence that, there being no decision to review at the relevant time, Comcare lacked jurisdiction under s 38(4) of the SRC Act. As a result there was no "reviewable decision" of Comcare (see SRC Act s 60 "reviewable decision") such as could enliven the Tribunal's jurisdiction. The premise of this submission is that, prior to the 20 March 2001 refusal, Qantas had done no more than to fail to consider whether it would exercise its discretion under s 37 of the SRC Act either favourably or unfavourably to Ms Brophy and it had no duty to do so. 17 The initial question raised by this submission involves an examination of an aspect of the Tribunal's fact finding, not for the purpose of determining the correctness of a finding, but for the purpose of determining what was the finding made. The relevant finding is whether the decision the Tribunal found was made by Qantas both predated and was the subject matter of the s 38 request to Comcare such that on Comcare's refusal to review that decision there was a "reviewable decision" capable of sustaining Ms Brophy's 15 March 2001 application to the Tribunal. The Tribunal's Finding 18 The Tribunal recognised that the "crucial issue" was whether Qantas had "made a decision". In light of Ms Brophy's submissions to it, it considered first at some length the contention that the circumstances evidenced a "constructive refusal" by Qantas to make a decision favourable to Ms Brophy. After consideration of such decisions as might be said to lend support for a constructive refusal doctrine, the Tribunal went on: "52. The Tribunal could … decide that a doctrine of constructive refusal is applicable in relation to s 37 of the Act. The question is whether it should do so. In favour of determining that it does apply is the highly dubious conduct of Qantas in this scenario. It is doubtful that any reader of the chronology in this matter would applaud the behaviour of Qantas. Its behaviour might be regarded as high-handed, unprofessional or devious. The Respondent tried in vain to have Qantas abide by the spirit of the legislation (T86). 53. However, the Tribunal considers that it may be foolhardy and unnecessary to apply a concept foreign to the Act, the concept of constructive refusal, in this case. In the Tribunal's view it is not actually necessary to resort to constructive refusal to find a decision by Qantas in this scenario. An employee of Qantas with apparent authority wrote on 20 March 2001 as follows (formal sections omitted) (T87): "We wish to advise that Qantas have complied with the requirements under the Safety, Rehabilitation and Compensation Act 1988 ("the Act"). In this regard we confirm that Ms Brophy was made redundant in April 1997. On 7 January 1999, at the request of the worker, a rehabilitation assessment was arranged through CRS pursuant to s 36(1) of the Act. As you are aware, Qantas are not compelled to make a determination under s 37(1) of the Act. We request that you provide the section in the legislation that make [sic] it mandatory for Qantas to make a determination under s 37(1)." 54. Applying the approach in the Michigan University case (supra) the Tribunal considers that the employer's attitude to its decision-making power, ie that it refuses to make a decision unless it can be told under what authority it is compelled to make a decision, has the necessary effect of refusing a rehabilitation program to the Applicant. Qantas made a decision. A negative decision, that was communicated in [the 20 March 2001 letter]. 55. The Respondent has made a decision, a reviewable decision, effectively affirming that decision by Qantas." Submissions 19 It is Comcare's contention that the decision of Qantas found by the Tribunal – ie that communicated on 20 March 2001 – post-dated the application and could not in consequence be the primary decision founding what is alleged to be Comcare's reviewable decision of 1 February 2000. I am asked to infer from the Tribunal's finding that Qantas' decision was communicated in the 20 March 2000 letter, that the decision itself, and not only the letter, post-dated Comcare's alleged reviewable decision of 1 February 2001. I equally am asked to treat the observation in para 55 of the Tribunal's reasons that Comcare "effectively affirmed" Qantas' decision as (a) evidencing an appreciation by the Tribunal that it needed, not merely a primary decision, but also a reviewable decision if it was to have jurisdiction; and (b) as attributing to Comcare an "in effect" review of the 20 March decision on account of the decision it took on 1 February. 20 For Ms Brophy it is submitted I should (a) draw the contrary inferences: the date of communication of the decision provided no basis in the circumstances for the inference proposed by Comcare and the history of the matter would suggest to the contrary; and (b) the para 55 observation means what it says, the word "effectively" merely signifying that Comcare's 1 February refusal to review in effect affirmed the decision Qantas had made. Conclusion 21 The concession made by Comcare was that, for the purposes of s 37(1) of the SRC Act, a decision by Qantas that qualified as a "decision" under s 3(3) of the Administrative Appeals Tribunal Act 1975, could be reviewed by Comcare under s 38(4) of the SRC Act. The Tribunal has found that such a decision was both made and communicated, the latter event occurring on 20 March 2001. The misfortune is that the Tribunal made no express finding that the decision was made earlier than by the communication of 20 March. In this matter, as Comcare rightly emphasises, the time of making of Qantas' decision is all important. The review process set in train by Ms Brophy on 15 March 2001 presupposed a decision of Qantas made earlier both than 1 February 2001 (which was the date of Comcare's allegedly reviewable decision) and 29 November 2000 (which was the date of Ms Brophy's s 38(2) review request to Comcare). 22 In Semunigus v Minister for Immigration and Multicultural Affairs [1999] FCA 422 I indicated, in passages approved on appeal: see Semunigus v Minister for Immigration and Multicultural Affairs (2000) 96 FCR 533 at 536 and 546-547; that in a setting such as the present (at paras 19-20): "the making of a decision involves both reaching a conclusion on a matter as a result of a mental process having been engaged in and translating that conclusion into a decision by an overt act of such character as, in the circumstances, gives finality to the conclusion – as precludes the conclusion being revisited by the decision-maker at his or her option before the decision is to be regarded as final. What constitutes such an act can obviously vary with the setting in which the decision is made: it may be no more than a written notation of a conclusion on a departmental file; it may be publication of the conclusion in a particular forum, or communication of it to another; it may be performing a consequential or collateral act that presupposes the decision's having been made, etc." 23 This conception of a decision - and particularly the requirement that it be manifest – can properly be said to be one contrived for the purposes of the administrative decision-making context in which it does its practical work: Director-General of Social Services v Chaney (1980) 31 ALR 571 at 590. I should add that, by indicating when a decision is taken to have been made, I am not expressing any view on the related but distinct question of reopening a decision that has been made: cf Minister for Immigration and Multicultural Affairs v Bhardwaj (2000) 99 FCR 251; Beech-Jones, "Reopening Tribunal Decisions: Recent Developments (2001) 21 Aust Bar Rev 75. 24 In the present matter Qantas may well have reached a conclusion (or had an "attitude") about whether Ms Brophy should be provided with a rehabilitation program, at some time well prior not only to its letter of 20 March 2001 but also to the date on which Ms Brophy requested Comcare to review Qantas' decision (ie 29 November 2000). 25 The only overt manifestation of that conclusion adverted to by the Tribunal was, though, the 20 March letter. Assuming that the decision in question was one that could be made otherwise than by communicating it to Ms Brophy or by taking irrevocable steps to have that done: see Semunigus (2000) 96 FCR 533 at [103]; the Tribunal did not identify any action by Qantas that would support a finding that Qantas' decision was made prior to 20 March 2001 let alone prior to 29 November 2000. All that there was was inaction on Qantas' part – inaction which the Tribunal properly condemned but which did not of itself manifest such conclusion (or "attitude") as Qantas may previously have formed: cf Attorney-General of the Commonwealth v Queensland (1990) 25 FCR 125 at 142. It was only the 20 March 2001 letter that could have had this operative effect, given the findings of the Tribunal. 26 The SRC Act does not prescribe a time within which a s 37(1) decision is to be made such as might attract a deeming provision equating a failure to decide with a negative determination: cf Administrative Appeals Tribunal Act, 1975, s 25(5); see also Ombudsman Act, 1976 (Cth), s 10. It has not been suggested in submissions that s 37(1) is subject to an implied limitation that any determination made by the rehabilitation authority is to be made within "a reasonable time" of its receipt of a rehabilitation assessment or of an employee request for such a program consequent upon an assessment: cf Hospital Benefit Fund of Western Australia Inc v Minister for Health, Housing and Community Services (1992) 111 ALR 1 at 6. And the application has not been framed so as to attract the jurisdiction of this Court under the Administrative Decisions Judicial Review Act 1977 (Cth) s 7 to review a failure to make a decision where there is a duty to make that decision. 27 In the end what one is left with is not some antecedent decision (either made or deemed to have been made in consequence of some statutory prescription) which could have given jurisdictional life, first, to Comcare's s 38(4) review and then to the s 64 application to the Tribunal. Rather, the decision relied upon by the Tribunal can, on the evidence to which it referred, only be ascribed to a period later than both Ms Brophy's request to Comcare and the application to the Tribunal. The Tribunal lacked jurisdiction to review that decision. Comcare had not made any reviewable decision in relation to it: Lees v Comcare [1999] FCA 753. Comcare's 1 February 2001 decision on Ms Brophy's request for a s 38 review could not, given the scheme of the SRC Act, be said to have effectively affirmed Qantas' decision. 28 In consequence, the application must be allowed, the decision of the Tribunal must be set aside and it should be declared that the Administrative Appeals Tribunal did not have jurisdiction (a) to review the decision found by it to have been made by Comcare; and (b) to hear and determine the application for review lodged by Ms Brophy on 15 March 2001. A Postscript 29 In the course of its submissions Comcare contended that Qantas had no obligation under the SRC Act to consider whether or not it would provide a rehabilitation program to Ms Brophy and that only as a matter of good administration was there any requirement that it even consider whether it should turn its mind to the question at all. 30 I do not in the circumstances have to express a concluded view on this submission and refrain from doing so. I would merely say that powerful arguments can be mustered against it, regard being had to the right given an employee under s 36(1) to request a rehabilitation assessment and to the manifest purpose of rehabilitation in the scheme of the SRC Act. In saying this I am not suggesting that an employee has a right to be provided with a rehabilitation program. I am merely indicating that where an assessment has been required, a rehabilitation authority may well be positively obliged, in light of the assessment made (s 38(6)), to consider whether to provide a rehabilitation program: see Telstra Corporation Ltd v Slater [2001] FCA 149 at para 58. I certify that the preceding thirty (30) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Finn. Associate: Dated: 7 November 2001 Counsel for the Applicant: Mr P Hanks QC Solicitor for the Applicant: Australian Government Solicitor Counsel for the Respondent: Mr A Anforth Solicitor for the Respondent: Canberra Lawyers Date of Hearing: 17 October 2001 Date of Judgment: 8 November 2001