Bain and Military Rehabilitation and Compensation Commission
[2008] AATA 884
•3 October 2008
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2008] AATA 884
ADMINISTRATIVE APPEALS TRIBUNAL )
) No S 200600120
VETERANS' APPEALS DIVISION ) Re OWEN BAIN Applicant
And
MILITARY REHABILITATION AND COMPENSATION COMMISSION
Respondent
DECISION
Tribunal Deputy President D G Jarvis Date3 October 2008
PlaceAdelaide
Decision 1. The tribunal affirms the decision under review insofar as it relates to the determination of 26 November 1975.
2. The tribunal sets aside the decision under review insofar as it relates to the determination of 19 April 1971, and in place of that determination decides that the period within which the applicant can request reconsideration of the primary decision refusing the claim for compensation be extended until the date of receipt by the respondent of the letter dated 23 February 1999 from the applicant’s then solicitors to the Defence Centre, Adelaide.
3. Upon noting that:
(a) the letter referred to in paragraph 2 sought reconsideration of the determination made on 19 April 1971; and
(b) the applicant also seeks review of the deemed decision of the respondent arising from the refusal to consider his application for re-consideration of that determination
the tribunal decides that it has jurisdiction to review the deemed decision referred to in paragraph 3(b) above.
4. The question of costs is reserved for further consideration.
D G Jarvis
(Signed)
Deputy President
CATCHWORDS
COMPENSATION – request in 1999 for reconsideration of determinations in 1971 and 1975 rejecting claims for compensation - refusal of request – decision to refuse request for reconsideration of 1975 determination affirmed – decision under review re 1971 determination set aside and request for extension of time for reconsideration granted – tribunal has jurisdiction to hear application for review notwithstanding absence of reconsideration by respondent – meaning of “determination” and “decision”.
JURISDICTION – compensation – reviewable decision – request in 1999 for reconsideration of determinations in 1971 and 1975 rejecting claims for compensation – refusal of request – – deemed decision arising from refusal of request for reconsideration – tribunal has jurisdiction to review deemed decision notwithstanding absence of reconsideration by respondent – meaning of "determination" and "decision”.
Safety, Rehabilitation and Compensation Act 1988 (Cth), ss 60, 62, 64 and 129
Administrative Appeals Tribunal Act 1975 (Cth), ss 3(3) and 24
Australian Postal Corporation v Mowbray (2003) 134 FCR 179
Australian Postal Corporation v Oudyn (2003) 73 ALD 659
Re PG Laird and Australian Broadcasting Commission (AAT 78/122, 10 May 1979)
REASONS FOR DECISION
3 October 2008 Deputy President D G Jarvis 1. The decision I have made today, and these brief reasons for it, supplement and complete my interim decision in this matter dated 21 August 2008.
2. In that decision, I indicated that:
(a)I would affirm the decision made by a predecessor of the respondent on 26 November 1975 not to grant a request for reconsideration of a determination to reject the applicant’s claim for compensation; and
(b)I would set aside a decision made by a predecessor of the respondent on 19 April 1971 not to grant a request for reconsideration of a determination to reject the applicant’s claim for compensation, and that I would substitute a decision to allow an extension of time in which the applicant would be allowed to request reconsideration.
Issue for determination
3. I had understood that the parties wished to make further submissions as to whether I should remit the matter to the respondent for reconsideration pursuant to s 42D of the Administrative Appeals Tribunal Act 1975 (Cth) (AAT Act). However, the parties did not request that course; instead, counsel for the Commission suggested that in the unusual circumstances of the present matter, the Commission wanted the tribunal to proceed with the substantive application for review, and did not itself wish to reconsider the decision of 19 April 1971. Counsel further submitted that this tribunal had jurisdiction to proceed to do so, on the basis that in 1999, the Commission had in effect refused Mr Bain’s request for reconsideration. Counsel for Mr Bain agreed with this proposed course of action. For the following reasons, I am satisfied that I have jurisdiction to proceed accordingly, notwithstanding that the Commission has not reconsidered the primary decision on the merits.
Consideration
4. Mr Bain’s application for reconsideration of the decisions made in 1971 and in 1975 was made in a letter dated 23 February 1999 by his then solicitors (exhibit R13, page 45). In response, a delegate of the respondent decided as follows:
“It is my decision that I do not further consider your client’s appeal in regard to the decisions about his knee.”
Later in his letter, the delegate described his decision as a decision “not to conduct a reconsideration” (see exhibit R13, pages 59 and 60).
5. Section 25(1) of the AAT Act provides in effect that an enactment may provide that applications may be made to this tribunal for review of decisions made in the exercise of powers conferred by that enactment. Section 25(4) provides in effect that this tribunal has power to review any “decision” in respect of which application is made to it under any enactment. The power to review referred to in that subsection only arises where some enactment other than the AAT Act empowers the making of an application for review to this tribunal: Re PG Laird and Australian Broadcasting Commission (AAT 78/122, 10 May 1979).
6. The Safety, Rehabilitation and Compensation Act 1988 (Cth) (SRC Act) applies to this matter by virtue of the transitional provisions in Part X. Section 26 of the SRC Act provides in effect that a determining authority (in this case the respondent) may reconsider a determination made by it, and that a request for reconsideration may be made by (amongst others) the claimant for compensation. Under s 62(3), requests for reconsideration must be made within thirty days after the day on which the determination first came to the notice of the person requesting reconsideration, or within such further period (if any) as the determining authority allows.
7. Under s 64 of the SRC Act, a claimant for compensation may apply to this tribunal for review of a “reviewable decision”. That expression is defined in s 60(1) in terms that include a determination under s 62 with respect to liability for compensation by virtue of the definition of “determination” in s 60(1) and the transitional provisions of s 129.
8. Under s 3(3) of the AAT Act, a reference in the AAT Act to a decision includes a reference to (amongst other things) refusing to make a determination, or refusing to do any other act or thing.
9. It has been held that a refusal by a decision-maker to deal with a claim for compensation falls within the definition of “decision” in s 60 of the SRC Act, having regard to provisions of s 3(3)(a) and (g) of the AAT Act: Australian Postal Corporation v Mowbray (2003) 134 FCR 179, at [29], and Australian Postal Corporation v Oudyn (2003) 73 ALD 659, at [48].
10. In the application form that initiated the within proceedings in this tribunal, namely the Application for Review of Decision dated 16 May 2006, as now amended, Mr Bain refers to the decision of 6 May 1999 “(r)efusing an extension of time and thereby refusing to consider my application for reconsideration”. That description summarises the effect of the action of the delegate of the respondent, as evidenced by his letter dated 16 May 1999, and I am satisfied that the action of refusing to consider the request for reconsideration constitutes a deemed decision that is reviewable by this tribunal.
Decision
11. I make the following formal decision:
1.The tribunal affirms the decision under review insofar as it relates to the determination of 26 November 1975.
2.The tribunal sets aside the decision under review insofar as it relates to the determination of 19 April 1971, and in place of that determination decides that the period within which the applicant can request reconsideration of the primary decision refusing the claim for compensation be extended until the date of receipt by the respondent of the letter dated 23 February 1999 from the applicant’s then solicitors to the Defence Centre, Adelaide.
3. Upon noting that:
(a)the letter referred to in paragraph 2 sought reconsideration of the determination made on 19 April 1971; and
(b)the applicant also seeks review of the deemed decision of the respondent arising from the refusal to consider his application for re-consideration of that determination
the tribunal decides that it has jurisdiction to review the deemed decision referred to in paragraph 3(b) above.
4.The question of costs is reserved for further consideration.
I certify that the 11 preceding paragraphs are a
true copy of the reasons for the decision herein
of Deputy President D G JarvisSigned: .....................................................................................
L. Wunderer AssociateDate/s of Hearing 18 September 2008
Date of Decision 3 October 2008
Counsel for the Applicant Mr T Bourne
Solicitor for the Applicant Bourne Lawyers
Counsel for the Respondent Ms K Bean
Solicitor for the Respondent Australian Government Solicitor
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