Bryan and Military Rehabilitation and Compensation Commission

[2006] AATA 334

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2006] AATA 334

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No Q2006/103

VETERANS’ APPEALS DIVISION		)
Re		TRACEY BRYAN

Applicant

And MILITARY REHABILITATION AND COMPENSATION COMMISSION

Respondent

DECISION

Tribunal Senior Member B J McCabe

Date10 April 2006

PlaceBrisbane

Decision The application for an extension of time is refused.

...................[Sgd].................

SENIOR MEMBER

CATCHWORDS

COMPENSATION – application for extension of time to lodge Tribunal proceedings – previous application before the Tribunal dismissed on jurisdictional grounds – whether the Tribunal can review previous decision – no immediate jurisdictional error – Tribunal not an appropriate forum for this dispute

Administrative Appeals Tribunal Act 1975 s 42A, s 44

Clements v Independent Indigenous Advisory Committee (2003) 131 FCR 28

Minister for Immigration and Multicultural Affairs v Bhardwaj (2002) 187 ALR 117

Semunigus v Minister for Immigration and Multicultural Affairs (2000) 60 ALD 383

REASONS FOR DECISION

10 April 2006 Senior Member B J McCabe         

1.      Ms Tracey Bryan disputes a decision made by the Military Rehabilitation and Compensation Commission (the MRCC) with respect to her capacity to earn for the purposes of the Safety Rehabilitation and Compensation Act 1988. She lodged an application for review with the Tribunal in 2002 (AAT file Q2002/1029). Deputy President Muller dismissed the application on 8 January 2003 pursuant to s 42A(4) of the Administrative Appeals Tribunal Act 1975. The direction says the applicant failed to identify a reviewable decision. That means the Tribunal formed the view it did not have jurisdiction to hear the applicant’s claim. The deputy president did not give any written reasons for his decision. The Tribunal’s file has since been destroyed.

2.      Ms Bryan says her solicitor at the time may have cited the wrong decision to the Tribunal. After the application was dismissed, she says her solicitor did not pursue her rights diligently. She wants the opportunity to have her appeal against the reviewable decision dealt with now. She has asked for an extension of time to bring her application. Although her request is described as a request for an extension of time, it might alternatively be viewed as a request for reinstatement of her earlier application.

3.      The applicant identified the reviewable decision during the hearing. It is contained in a letter from the Department of Veterans’ Affairs (DVA) dated 14 August 2001. That letter follows the original determination dated 6 April 2001. There is a further letter from the DVA dated 31 May 2002 which appears to enlarge on the reasons contained in the reviewable decision, although it also purports to affirm the original decision. There is yet another letter dated 24 September 2002 which suggests there was a miscalculation in the figures which resulted in a liability to pay arrears to Ms Bryan.

4.      Although the Tribunal’s original file has been destroyed, there is no reason to doubt all of these documents were before Deputy President Muller when he made his decision to dismiss the application. That decision was communicated to the parties. The applicant was advised of her appeal rights. As far as the Tribunal was concerned at the time, the matter was closed and its role in relation to the application was at an end: see, for example, Semunigus v Minister for Immigration and Multicultural Affairs (2000) 60 ALD 383 at 386 per Spender J.

5.      Professor Pearce points out in Administrative Appeals Tribunal (LexisNexis Butterworths, Sydney 2003) at 161-162 that a decision which is void for jurisdictional error is not a decision at all, and thus of no legal effect. The learned author referred to the decision of the High Court in Minister for Immigration and Multicultural Affairsv Bhardwaj (2002) 187 ALR 117. In that case, the Court concluded the decision-maker had not effectively exercised its powers and remained free to do so (indeed, as Callinan J observed at paragraph 163, it was obliged to do so). It follows that if I formed the view Deputy President Muller’s decision were tainted by jurisdictional error, it would be open to me to ignore it and treat the original application as if it were still on foot. But Professor Pearce suggested (at 162):

The wiser course would seem to be to allow the matter to go forward to review on appeal by a court unless the defect is obvious and is drawn to attention very soon after the decision has been made.

6.      In this case, it is unclear whether the Tribunal’s decision of 8 January 2003 is tainted by error. In any event, whatever questions that arise about the decision were not brought to the attention of the Tribunal until some time later, after the file was destroyed.

7.       There is no barrier to the decision being reviewed by the Federal Court if a jurisdictional error is identified, assuming the Court grants the applicant an extension of time. Even if the Tribunal’s earlier decision was void, the Full Federal Court recognised in Clements v Independent Indigenous Advisory Committee (2003) 131 FCR 28 at 41 per Gray ACJ and North J that it had the power to hear an appeal with respect to the decision under s 44 of the Administrative Appeals Tribunal Act 1975.

8. In all the circumstances, I do not think I should treat the original application as if it were still on foot. I do not think it is appropriate to grant an extension of time to file a fresh application to reconsider the reviewable decision since the Tribunal has already dismissed an earlier application in respect of that same decision. Nor do I think it is appropriate to reinstate the application pursuant to s 42A(10) of the Administrative Appeals Tribunal Act 1975 which deals with administrative errors and misunderstandings rather than substantive errors of law. These are better dealt with on appeal by a court.

conclusion

9.      The application for an extension of time is refused.

I certify that the 9 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member B J McCabe

Signed:         Adam Ryan

Associate      Adam Ryan       

Date of Hearing  5 April 2006
Date of Decision  10 April 2006
The applicant appeared in person.
The respondent was represented by Mr McIntyre.