Sash Trajkovski v Telstra Corp Ltd [1998] FCA 169 (6 March 1998)

Last Updated: 10 March 1998

FEDERAL COURT OF AUSTRALIA

ADMINISTRATIVE LAW - Tribunals - AAT - requirements for jurisdiction - suspension of rights under s 37(7) of Safety, Rehabilitation and Compensation Act - whether a decision is necessary for suspension - whether a decision was made in exercise of powers conferred by an enactment - whether AAT can decide questions as to its own jurisdiction - whether AAT can consider the merits of the suspension - whether an assertion of suspension should be accepted without AAT deciding on the assertion of no jurisdiction.

Administrative Appeals Tribunal Act 1975 (Cth) ss 43, 44(1)

Administrative Decisions (Judicial Review) Act 1977 (Cth)

Safety, Rehabilitation and Compensation Act 1988 (Cth), ss 37(1)(7), 57(1)(2), 60(1), 62(1)

Buck v Comcare (1996) 66 FCR 359, cited

Re Adams and the Tax Agents' Board (1976) 12 ALR 239, cited

Minister for Immigration and Ethnic Affairs v Naumovska (1989) 88 ALR 589, cited

Re Martiniello and Comcare Australia (1994) 33 ALD 774, applied

Parisienne Basket Shoes Pty Ltd v Whyte [1938] HCA 7; (1938) 59 CLR 369, cited

The King v Hickman; Ex parte Fox and Clinton [1945] HCA 53; (1945) 70 CLR 598, applied

Re Cilli's Objection (1970) 15 FLR 426, applied

Collector of Customs (NSW) v Brian Lawlor Automotive Pty Ltd [1979] FCA 21; (1979) 24 ALR 307, applied

Hospital Benefit Fund of Western Australia Inc v Minister for Health, Housing and Community Services [1992] FCA 599; (1992) 111 ALR 1, applied

Rex v Fulham, Hammersmith and Kensington Rent Tribunal; ex parte Zerek [1951] 2 KB 1, cited

Regina v Kensington and Chelsea (Royal) London Borough Rent Officer, ex parte Noel [1978] QB 1, cited

Hall AN, "Judicial Power, The Duality of Functions and the Administrative Appeals Tribunal", (1994) 22 FL Rev 13

McMillan J "Recent Themes in Judicial Review of Federal Executive Action" (1996) 24 FL Rev 347

Aronson and Dyer, Judicial Review of Administrative Action 1996

Wade, Administrative Law (6th edn) 1988,

de Smith's, Judicial Review of Administerial Action (4th edn) 1980

SASH TRAJKOVSKI v

TELSTRA CORPORATION LIMITED

NG 967 OF 1997

TAMBERLIN J

SYDNEY

6 MARCH 1998

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NG 967 of 1997

BETWEEN:	SASH TRAJKOVSKI Applicant
AND:	TELSTRA CORPORATION LIMITED Respondent
JUDGE:	TAMBERLIN J
DATE OF ORDER:	6 MARCH 1998
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1. The appeal be allowed.

2. The orders of the Administrative Appeals Tribunal be set aside.

3. The matter be remitted to the Administrative Appeals Tribunal for determination in accordance with the law.

4. The respondent pay the applicant's costs.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NG 967 of 1997

BETWEEN:	SASH TRAJKOVSKI Applicant
AND:	TELSTRA CORPORATION LIMITED Respondent

JUDGE:	TAMBERLIN J
DATE:	6 MARCH 1998
PLACE:	SYDNEY

REASONS FOR JUDGMENT

Mr Trajkovski ("the applicant") appeals from a decision of the Administrative Appeals Tribunal ("the AAT") which, on 22 October 1997, decided that it had no jurisdiction to hear an application for review of a decision made on reconsideration by a delegate of Telstra.

The review application was made on 15 August 1997.

The appeal to this Court is brought pursuant to s 44(1) of the Administrative Appeals Tribunal Act 1975 (Cth) ("the AAT Act") which provides:

"44(1) A party to a proceeding before the Tribunal may appeal to the Federal Court of Australia, on a question of law, from any decision of the Tribunal in that proceeding."

The matter arises in the following way.

On 18 September 1996, the applicant claimed compensation under the Safety, Rehabilitation and Compensation Act 1988 (Cth) ("the SRC Act") in respect of an injury to his lower back. On 27 March 1997 a delegate of Telstra made a determination denying liability for active treatment to the applicant's back. That is to say, any treatment other than the passive protection of the lower spine of the applicant by means of a brace was denied. The delegate also determined that the applicant was not liable to pay compensation in respect of leave taken by the applicant from 6 March 1997.

On 8 May 1997, Telstra wrote to the applicant in the following terms:

"...

I wish to advise you that, based on the available medical evidence, you have been assessed as capable of undertaking a Rehabilitation Programme in accordance with the attached Plan. Please note that this Plan requires you to work full hours of 7 hours 21 minutes per day, effective from 9 May 1997, and you are accordingly required to comply with this Programme under Section 37(1) of the Act.

In arriving at this decision, I have taken into consideration your recent rehabilitation assessment and all other factors required under Section 37 of the SRC Act. This decision is based on the reports of Drs Roarty of 14 March 1997 and Gerges of 19 March, 1997, which are enclosed for your perusal.

The Act requires me to inform you that failure to participate in the Programme without reasonable excuse will result in your rights to compensation being suspended under Section 37(7). Compensation benefits are not payable in respect of the period of the suspension." (Emphasis added)

The two subsections of the SRC Act referred to in the letter provide:

"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.

.....

(7) Where an employee refuses or fails, without reasonable excuse, to undertake a rehabilitation program provided for the employee under this section, the employee's rights to compensation under this Act, and to institute or continue any proceedings under this Act in relation to compensation, are suspended until the employee begins to undertake the program." (Emphasis added)

The "Plan" enclosed with the letter of 8 May is entitled "Rehabilitation Plan - Return to Work Program".

Under the heading "Tasks to be Undertaken" it is written:

"HRS 7.30am - 3.21 pm - 7.21 per DAY- NO RDO - 10 DAY F/N

FEEDING FOLDER, TRIMMING PRINTING AND PHOTOCOPYING

GENERAL DUTIES AS REQUIRED."

Under the heading "Physical Restrictions and other comments" appear the words:

"NO FIELD WORK - CLERICAL DUTIES ONLY

NO SIGNIFICANT BENDING OR LIFTING.

NO LIFTING GREATER THAN 5KG.

MAY TRAVEL BY PUBLIC TRANSPORT."

Handwritten across the face of the Plan form are the words:

"MR TRAJKOVSKI REFUSED TO SIGN OR ACCEPT on 8-5-97"

On 9 May 1997, Telstra again wrote to the applicant as follows:

"I am writing to you about your compensation claim in respect of `Temporary aggravation of spondylolisthesis of the 5th lumbar vertebra', for which liability has been accepted.

In the determination dated 8th of May 1997 and the accompanying Plan, you were advised of the details of the Rehabilitation Program you were required to undertake.

It has come to my attention that you have not participated in the Rehabilitation Program as required. Please see attached details of Rehabilitation plan.

In accordance with Section 37(7) of the SRC Act, 1988, please advise me of the reasons for your failure to participate in this Program. Your reasons must be in writing and must be received within 7 days effective 12th of May 1997.

Failure to provide a reasonable excuse for your non participation will result in suspension of your rights under the SRC Act 1988 from Friday 9 May, 1997 until such time as an approved Rehabilitation Program is recommenced." (Emphasis added)

On 5 August 1997 Telstra affirmed its decision and wrote to the applicant's solicitors as follows:

"I refer to your client above and in particular your request for a reconsideration of a determination dated 27 March 1997.

Please find enclosed my reviewable decision, reasons for same and a notice of your clients appeal rights.

Please also be advised that as your client's rights have been suspended by way of a determination issued on 19 May 1997 for failure to comply with a rehabilitation program, no delegation under the Act will be exercised to reconsider the determination of same." (Emphasis added)

On 15 August 1997 the applicant lodged an application for review of this decision.

The reasons for review notified in the Application of 15 August were:

"Decision is incorrect in that original decision denying compensation cover is incorrect and assertion that the Applicant's rights have been suspended properly at law is also incorrect."

On 1 September 1997, Telstra wrote to the Registrar of the AAT as follows:

"I refer to the attached application for Review in respect of the above named.

Please be advised that in accordance with Section 37(7) of the Safety Rehabilitation and Compensation Act 1988 the Rights of Mr Trajkovski have been suspended on and from 19 May 1997. This did not effect the request for reconsideration as it was before the suspension was initiated. The suspension still remains to date.

Accordingly, Mr Trajkovski can't lodge an application to the Tribunal for review." (Emphasis added)

The application for review to the AAT was made pursuant to s 64(1) which refers to a "reviewable decision". This expression is defined in s 60(1) of SRC Act to mean:

"... a decision made under s 38(4) or s 62"

Section 38(4) is not relevant for present purposes.

Section 62(1) of the SRC Act provides:

"A determining authority may, on its own motion:

(a) reconsider a determination made by it; or

(b) cause such a determination to be reconsidered by a person to whom its power under this section is delegated, being a person other than the person who made, or was involved in the making of, the determination;

whether or not a proceeding has been instituted or completed under this Part in respect of a reviewable decision made in relation to that determination."

"Determination" is defined to mean a determination, decision, or requirement made under specified sections of the Act and includes s 37. The expression "determining authority" is defined to mean the person who made the determination. "Decision" has the same meaning as in the AAT Act.

One other relevant provision is s 43 of the AAT Act, which confers the powers and directions on the AAT when considering an application for review. That section relevantly provides:

"43(1) For the purpose of reviewing a decision, the Tribunal may exercise all the powers and discretions that are conferred by any relevant enactment on the person who made the decision and shall make a decision in writing:

(a) affirming the decision under review;

(b) varying the decision under review; or

(c) setting aside the decision under review ..."

Although there was no appearance by Telstra at the AAT hearing, reference was made at the outset to the Telstra letter of 1 September 1997 asserting that the rights of the applicant had been suspended on and from 19 May 1997.

The AAT Reasons for Decision were delivered on 22 October 1997.

The order made by the AAT was that it did not have jurisdiction to consider the application for review because there was no reviewable decision and it directed the Registrar to take no further action with respect to listing the matter for hearing.

The matter was only dealt with at the AAT hearing on a question of jurisdiction. The AAT did not embark on any consideration of the substantive issues although some documentary evidence was tendered by the applicant to support his submission that he had not unreasonably refused to undertake a rehabilitation program and that the AAT therefore had jurisdiction.

AAT Reasons

The AAT first referred to the judgment of Finn J in Buck v Comcare (1996) 66 FCR 359. In that case his Honour held that s 57(2) of the SRC Act was self-operating and suspended the rights of a claimant.

Section 57 of the SCR Act provides:

"57(1) Where:

(a) a notice has been given to a relevant authority under section 53 in relation to an employee; or

(b) an employee has made a claim for compensation under section 54;

the relevant authority may require the employee to undergo an examination by one legally qualified medical practitioner nominated by the relevant authority.

57(2) Where an employee refuses or fails, without reasonable excuse, to undergo an examination, or in any way obstructs an examination, the employee's rights to compensation under this Act, and to institute or continue any proceedings under this Act in relation to compensation, are suspended until the examination takes place."

There was no requirement for any decision or determination of an administrative nature to be taken in order to enliven the suspension provided for in that provision. His Honour concluded that he did not, therefore, have jurisdiction under the Administrative Decisions (Judicial Review) Act 1977 (Cth) ("ADJR Act") to rule on the lawfulness or otherwise of the suspension of Ms Buck's entitlement to compensation. He did not investigate whether the requirements of s 57(2) had been made out. His Honour, however, went on to hold that this Court could determine the question of jurisdiction by way of a proceeding for a declaration of right. The hearing was then adjourned to enable such an application to be made.

The AAT considered that the terms of s 37(7) of the SRC Act were, for all practical purposes, substantially similar to s 57(2) in relation to the jurisdiction issue. It was said to follow that a determination as to whether s 37(7) came into operation did not involve a review of any "determination" or "decision". Therefore, the Tribunal had no jurisdiction to review the reasonableness or otherwise of the applicant's failure to undertake the rehabilitation program. Accordingly, the AAT decided that since the rights of the applicant were suspended by force of the Act, the application for review should be stayed.

Applicant's submissions

The applicant submits:

(1) The applicant submits that Buck's case is distinguishable because it involved a review by the AAT and was not an ADJR application. In addition, he submits that the AAT can investigate and determine issues of fact and law which, in substance, affect its authority and jurisdiction to perform its statutory duty to review the decision of Telstra.

(2) More specifically, it is said that the AAT has power to investigate and determine, at an administrative level, whether, objectively a factual and legal basis exists which operates to prevent it from hearing the application for review of Telstra's decision. In this submission the applicant refers to the decision of Brennan J in Re Adams and the Tax Agents' Board (1976) 12 ALR 239.

(3) It is advanced that the AAT was entitled to and should determine that in fact and law there was no proper rehabilitation program in place under the meaning of s 37(7) and that the applicant had a reasonable excuse for his refusal to undertake the rehabilitation program formulated.

Telstra's submissions

Telstra submits:

(1) Telstra submits that the only matter for review before the AAT is the refusal by Telstra to award the compensation benefits claimed by the applicant but refused. The AAT, it is submitted, is not a primary decision-maker, nor does it have a repository of powers or discretions under the SRC Act. The AAT can only determine matters which are the subject of applications for review before it. A dispute as to whether s 37(7) applies is not a reviewable decision because s 37(7) is self-operating. That is to say that it applies of its own force without the need for any decision to be made. In the absence of a "decision" or "determination" the AAT cannot have jurisdiction to determine that question.

(2) Telstra suggests that the proper course is for the applicant to first exhaust its remedies under the SRC Act with respect to the requirement that the applicant should attend a rehabilitation program and then, if dissatisfied, seek review in the AAT. In so doing Telstra says that the s 37(7) jurisdictional issue can be determined by Telstra. It submits that in deciding whether a person should attend a program under s 37(1), the underlying questions whether there is a "program" and whether there is a "reasonable excuse" for failure to attend the program, can and should be determined at an internal administrative level before proceeding to the AAT or a Court for determination.

(3) In addition, Telstra submits that there can be no error of law on the part of the AAT in the present case because the Tribunal did not have to review a decision as to whether s 37(7) was applicable. Since the question was not before it in the form of a reviewable decision it could not make an erroneous decision in respect of it.

Section 37

It is common ground that the language of s 37(7) makes it clear that the suspension of rights under s 37(7) operates directly and without the need for any antecedent decision. Nevertheless, as a practical matter, some person or body must make a decision as to its application in any specific case. To this extent the reasoning in Buck is accepted by both parties.

It is apparent from the terms of the subsection that the determination whether there has been a failure to undertake a program without reasonable excuse calls for an "objective" determination of both the law and facts. There is no reference to the opinion of any specific person or body as to whether s 37(7) applies; cf Minister for Immigration and Ethnic Affairs v Naumovska (1989) 88 ALR 589 at 602 per Lockhart J. This is also consistent with the conclusion in Buck that the question whether the suspension provisions are brought into operation could be tested by the Court on an application for a declaration.

When asked to cite previous authority on the question of whether the AAT could resolve a dispute as to its jurisdiction, counsel for the applicant referred me to a decision of a full panel of the AAT, where the members decided the question whether s 37(7) of the SCR Act had the effect of cancelling the rights to compensation under that provision. The jurisdictional issue raised before me does not appear to have been argued in that case. The panel concluded that in the circumstances there had been an effective suspension of rights. The decision referred to is Re Martiniello and Comcare Australia (1994) 33 ALD 774. In giving reasons in that matter, the members said at 776:

"We are, however, satisfied that the operation of s 37(7) of the Act applies in this case. This is not a case where the employee refused to undertake a rehabilitation program but rather a case where the employee failed, without reasonable excuse, to undertake such a program. The evidence clearly establishes that the rehabilitation program was offered to the applicant. The applicant accepted that offer but, we are satisfied, made no real attempt to complete the program. Dr Cassar expressed his disappointment as to the applicant's failure to attempt the program on a consistent basis and we have no doubt that the applicant failed to undertake the full program because she preferred to be on paid leave rather than doing paid work. It was only when her paid leave expired that the applicant made any determined effort to undertake the rehabilitation program but by that time the employer had withdrawn the program, given the long period of refusal by the applicant to participate in the program. We think the applicant's failure to undertake the program was unreasonable and did not exhibit any reasonable excuse for that failure, and we are therefore satisfied that s 37(7) applies to the facts of this case. In this respect we have taken into account Mr Grey's submission in relation to the operation of s 37(7) but, as we have already explained, we take the view that a failure without reasonable cause to undertake a rehabilitation program includes the failure to participate in that program rather than simply, as Mr Grey submitted, a failure to commence the program. The respondent was entitled to suspend the right to compensation." (Emphasis added)

It is apparent from these remarks that the AAT considered it had authority to determine whether it had jurisdiction.

Martiniello was not referred to in the reasons in the present case, nor does it appear to have been referred to by counsel at the hearing. It was not referred to in Buck, but this is perhaps because the court in that case was not concerned with review of an AAT decision.

Jurisdictional facts

Jurisdictional facts have been described as those jurisdictional elements which must be satisfied before a decision can be validly made.

A useful starting point for present purposes is the well-known passage in the judgment of Dixon J in Parisienne Basket Shoes Pty Ltd v Whyte [1938] HCA 7; (1938) 59 CLR 369 at 391, speaking about inferior courts, which reads:

"It cannot be denied that, if the legislature see fit to do it, any event or fact or circumstance whatever may be made a condition upon the occurrence or existence of which the jurisdiction of a court shall depend. But, if the legislature does make the jurisdiction of a court contingent upon the actual existence of a state of facts, as distinguished from the court's opinion or determination that the facts do exist, then the validity of the proceedings and orders must always remain an outstanding question until some other court or tribunal, possessing power to determine that question, decides that the requisite state of facts in truth existed and the proceedings of the court were valid..."

In the present case, Telstra asserts that the AAT does not have jurisdiction to hear the review application because s 37(7) applies to suspend the applicant's entitlement to institute or continue proceedings under the Act in relation to the substantive question of compensation. In this matter, the substantive practical effect of s 37(7) is that it operates by way of suspension to deprive the applicant of his rights to have the AAT exercise its jurisdiction in relation to a question which would otherwise be within its jurisdiction, in circumstances where an applicant has failed, without reasonable excuse, to undertake a relevant rehabilitation program. The AAT simply accepted the assertion that there was a suspension of rights, without considering the merits or substance of the assertion, namely: whether the elements of the s 37(7) suspension were present. In other words, the AAT declined to hear and determine questions of fact and law which have to be considered in determining whether it had jurisdiction.

The applicant's primary submission is that the AAT erred in deciding that it could not proceed to consider or review the question as a preliminary matter; whether the circumstances attracted the operation of s 37(7). Accordingly, it erred in law because it declined to investigate the question of whether a "program" had been properly formulated within the meaning of s 37(7) and if so, whether the applicant had any reasonable excuse for not undertaking the program.

The issue raised is whether the AAT can hear and determine the question as to whether s 37(7) applies.

In The King v Hickman; Ex parte Fox and Clinton [1945] HCA 53; (1945) 70 CLR 598, the Court held that the jurisdiction of a Board to settle disputes in the "coal mining industry" was limited to disputes in that industry. At 618 Dixon J said:

"... it is plain that the ... Regulations do not mean to give to the Board any power whatever to determine the ambit of the expression `Coal Mining Industry' or the extent of their own jurisdiction as governed by that expression.

....

I do not mean to say that the Board may not, for the purpose of determining its own action, `decide' in the sense of forming an opinion upon the meaning and application of the words `Coal Mining Industry'. It must make up its mind whether this or that particular function on the borders of the Coal Mining Industry does or does not fall within the conception. But it is not able to make a decision binding on the parties within the meaning of reg. 9, because that is the very matter which governs the extent of the operation of reg. 9, among other regulations." (Emphasis added)

Emphasis is placed on the obligation of the Board to make an "administrative determination" as to the extent of its own jurisdiction to settle the dispute. A similar approach was taken by Blackburn J in Re Cilli's Objection (1970) 15 FLR 426 at 428, where his Honour observed in the course of considering the functions of a Land and Valuation Review Tribunal:

"What the Tribunal is being asked to do, in this instance, is to apply existing law to the determination of the disputed rights of the parties by deciding the question whether the notice of forfeiture was valid. In my opinion, the Tribunal has no power to do such a thing. That is not to say, of course, that the Tribunal can never make a decision of law. It must satisfy itself that all its proceedings are in accordance with the law. It must, therefore, receive and consider, whenever the point is taken, an argument that it has no jurisdiction." (Emphasis added)

Again, the emphasis is on the duty of the tribunal to examine and determine the jurisdictional question.

Brennan J in Re Adams and The Tax Agents' Board (supra) considered the competence of an Administrative Tribunal to consider its own authority. In his judgment he said at 242:

"An administrative body cannot therefore lawfully exercise authority merely because it is of the opinion that it has the authority. Its opinion is not the charter of its powers and discretions. It derives its powers and discretions from and in accordance with the law. It is the Court's judgment and not the administrative body's opinion which defines the extent of ... its statutory authority.

.....

An administrative body with limited authority is bound, of course, to observe those limits. Although it cannot judicially pronounce upon the limits, its duty not to exceed the authority conferred by law on it implies a competence to consider the legal limits of that authority, in order that it may appropriately mould its conduct. In discharging its duty, the administrative body will as part of its function, form an opinion as to the limits of its own authority. The function of forming such an opinion for the purpose of moulding its conduct is not denied to it merely because the opinion produces no legal effect." (Emphasis added)

The duty is here seen as one not to go beyond authority. The duty must carry with it an obligation to form an opinion based on a consideration of the relevant circumstances and applicable legal principles. By the expression "legal effect" his Honour is, of course, emphasising that the administrative body cannot make a binding or conclusive determination of its own jurisdiction.

There is a line of authority in this Court to the effect that where the AAT has jurisdiction to entertain an appeal from a decision which purports to be made under an enactment, then the AAT can determine whether such a decision is properly made under the enactment in question. In Collector of Customs (NSW) v Brian Lawlor Automotive Pty Ltd [1979] FCA 21; (1979) 24 ALR 307, a decision of the Full Court, in the course of considering whether a decision is properly made "in the exercise of powers conferred by an enactment" within the meaning of s 25 of the AAT Act, Bowen CJ said at 317:

"... As I have said, in my opinion an applicant to the Tribunal has standing and the Tribunal has jurisdiction provided there is a decision in fact and provided further that the decision purports to have been made in exercise of powers conferred by an enactment whether or not as a matter of law it was validly made and whether or not action on the basis there was power to make the decision was right or wrong.

It may be that the nature of the legal question raised will be such that the Tribunal, although it has jurisdiction, may consider it proper that the applicant should first approach a court for decision of the question. ... An appeal involving a constitutional question might well be such a case. However, this would not be because the Tribunal lacked jurisdiction." (Emphasis added)

Smithers J expressed a similar view. He said at 339:

"The decisions in respect of which the object of the Administrative Appeals Tribunal Act requires review are essentially those whose relationship to the relevant act ... is that the administrator who made the decision actually made it in purported or assumed pursuance of it or made it in purported pursuance thereof."

His Honour concluded that the AAT was entitled to review a decision on the ground that it was a decision the Administrator was not authorised to make.

This approach was taken by the Full Court in Hospital Benefit Fund of Western Australia Inc v Minister for Health, Housing and Community Services [1992] FCA 599; (1992) 111 ALR 1 at 8-10. After referring to the views of Bowen CJ and Smithers J above, the Court said at 9:

"It follows that, in the present case, the Administrative Appeals Tribunal should have entertained the applicant's point that the minister lacked power to make a declaration under s 78."

The decision in that case was that the failure of the AAT to deal with the primary question was an error of law.

The approach adopted in these cases lends support to the proposition that the AAT, in the present case, has the competence and authority to determine whether it has jurisdiction. It is not bound to decline jurisdiction simply because the jurisdictional question cannot be described as a "reviewable decision" and it must consider antecedent matters going to its jurisdiction in order to enable it to perform its primary function. See also Aronson and Dyer "Judicial Review of Administrative Action", 1996 at 263 ff; A N Hall, Judicial Power, The Duality of Functions and the Administrative Appeals Tribunal, (1994) 22 FL Rev 13 at 38 ff and J McMillan "Recent Themes in Judicial Review of Federal Executive Action" (1996) 24 FL Rev 347 at 382 ff.

Also, there is a line of English authority to the effect that, if a certain state of facts has to exist before a tribunal has jurisdiction, it can inquire into the facts in order to decide whether it has jurisdiction but it cannot give itself jurisdiction by wrong decision upon those facts. The Courts may, by means of proceeding by way of prerogative writ such as certiorari, for example, inquire into the correctness of that decision. The AAT's decision as to the existence of the state of facts is regarded as collateral because, although the exercise of jurisdiction depends on it, it is not the main question which the tribunal must determine. See Rex v Fulham, Hammersmith and Kensington Rent Tribunal; ex parte Zerek [1951] 2 KB 1 at 6; Regina v Kensington and Chelsea (Royal) London Borough Rent Officer, ex parte Noel [1978] QB 1 at 9; "Administrative Law" Wade, 6th edn, 1988, at 283-288; de Smith's "Judicial Review of Administerial Action" 4th edn (1980) at 110 ff.

The present case

In the present case, in my view, the AAT had the competence to consider the limits of its authority and the existence of its jurisdiction. In order to perform its statutory duty to review the decision pursuant to the SRC Act, it was essential that the AAT come to a conclusion on the existence and limits of its jurisdiction. This necessarily involves a consideration of the applicability of s 37(7) and its effect. Thus it requires an examination of pertinent questions of fact and law which arise in making this determination. This is not a question of "reviewing" any decision as to jurisdiction but of properly considering the threshold question of whether it has jurisdiction. The AAT has declined, in this case, to examine and determine the factual and legal questions necessary to decide whether it had jurisdiction. The effect of the AAT's failure to look at the jurisdictional issue was to preclude itself from considering the substantial question because it was not considered to be one which involved a review of a decision made by Telstra. Such an approach is erroneous and unduly restrictive.

This approach was wrong in law. The AAT had the competence to form an opinion, albeit not a conclusively binding one, for the purpose of exercising its jurisdiction on the substantive question as to the merits of the determination and should have done so.

One consequence of the AAT determination that it had no jurisdiction to consider the question whether s 37(7) applied was that the applicant, who disputed the application of this provision, lost the benefit of a hearing on the jurisdictional issue. The result was that the mere assertion by Telstra that s 37(7) applied was, in effect, adopted without any factual determination or consideration of legal argument and was taken as being conclusive on the question of whether s37(7) operated. This is an odd result to say the least. Such an approach enables an Authority to simply assert that s 37(7) applies. The consequence of such an assertion of the Authority's view is to suspend all rights and deny any jurisdiction without evidence or submissions in relation to the s 37 applications.

The submission is made that an alternative remedy may be available in the form of a separate proceeding for a declaration from the court. However, this does not mean that the AAT lacks jurisdiction to decide the question. As an alternative in this case it is said that an application for review could have been taken to challenge the s 37(1) determination by Telstra requiring the applicant to undertake the program. On such a review, as Telstra points out, questions might be ventilated as to whether there was a properly formulated program as required by s 37(7) and whether the applicant had a reasonable excuse for not undertaking it.

In my opinion, the fact that there are other collateral or independent remedies potentially available does not require a conclusion that the AAT did not have power to make an administrative determination. There is much to be said for the practical approach taken by the AAT in Martiniello, whereby the AAT entertained and resolved questions as to both jurisdiction and the merits. If the AAT finds that it has jurisdiction it can proceed to hear the substantive, compensation question. If either party is then dissatisfied an appeal can be taken to this Court.

My conclusion, for the above reasons, is that there has been an error of law in this matter arising from the AAT's refusal to enter into the question as to whether it had jurisdiction.

The question of whether the elements of s 37(7) have been made out has not been ventilated before me and it is not, therefore, appropriate, on the limited material presently available, to enter upon or express any view in relation to the application of that provision. This is a question which should be considered after evidence has been presented and full submissions made to the AAT.

Accordingly, I allow the appeal. I set aside the orders of the AAT and I remit the matter for determination in accordance with law. I order that the respondent pay the costs of the applicant.

I certify that this and the preceding sixteen (16) pages are a true copy of the Reasons for Judgment herein of the Honourable Justice Tamberlin

Associate:

Dated: 6 March 1998

Counsel for the Applicant:	Mr D Marr
Solicitor for the Applicant:	Caroll & O'Dea
Counsel for the Respondent:	Mr J Wallace
Solicitor for the Respondent:	Sparke Helmore
Date of Hearing:	19 February 1998
Date of Judgment:	6 March 1998