David Kalman and Military Rehabilitation and Compensation Commission

[2015] AATA 278

[2015] AATA 278  

Division

Veterans' Appeals Division

File Numbers

2015/0327

2015/0333
2015/0335
2015/0337
2015/0338

2015/0339

Re

David Kalman

APPLICANT

And

Military Rehabilitation and Compensation Commission

RESPONDENT

DECISION

Tribunal	Deputy President P E Hack SC
Date	17 April 2015
Date of written reasons	30 April 2015
Place	Brisbane

In each application, the application is dismissed for want of jurisdiction.

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

Deputy President P E Hack SC

CATCHWORDS

JURISDICTION – first application – Freedom of Information – no IC reviewable decision – no jurisdiction – application dismissed

JURISDICTION – second application – Freedom of Information – no deemed refusal – FOI application taken to be withdrawn – no decision capable of review – application dismissed

JURISDICTION – third application – Freedom of Information – no IC reviewable decision – no jurisdiction – application dismissed

JURISDICTION – fourth application – consent decision of 1993 – amounts subject to order – whether deductions for amounts authorised – not a decision – remedy in common law. Freedom of Information – no deemed refusal – no decision on reconsideration – no IC reviewable decision – no jurisdiction – application dismissed

JURISDICTION – fifth application – claim for cervical spine condition – claim not yet determined by original decision-maker – no decision to be reviewed – no jurisdiction – application dismissed  

JURISDICTION – sixth application – claim for depression condition – claim not yet determined by original decision-maker – no decision to be reviewed – no jurisdiction – application dismissed

LEGISLATION

Freedom of Information Act 1982 (Cth), s 57A

REASONS FOR DECISION

Deputy President P E Hack SC

30 April 2015

1. The applicant, Mr David Kalman, served in the Australian Regular Army between January 1955 and February 1959 when he was discharged as medically unfit.  Following decisions of the Tribunal in 1986[1] Comcare determined that, in 1955, Mr Kalman sustained a crush fracture to a vertebra which arose out of, or in the course of his employment. He was held entitled to compensation pursuant to the Commonwealth Employees Compensation Act 1930 (Cth) (the 1930 Act).

   [1]See Re David W Kalman and Commonwealth of Australia [1986] AATA 66. The second decision of 29 November 1986 appears not to have been a published decision.

2. Mr Kalman claimed compensation for headaches, blurred vision and depression, all of which he attributed to his spinal injury and the stress associated with his claim.  His claim was initially refused but on reconsideration it was determined that Comcare was liable to pay compensation for headaches and blurred vision.  Despite that, on 20 September 1993, in determining Mr Kalman’s claim for permanent impairment, a delegate of Comcare decided that Mr Kalman’s blurred vision and headaches were not linked to his 1955 spinal injury.

3. Mr Kalman sought a review of that decision.  On 28 February 1990 the Tribunal, differently constituted, affirmed the decision to deny Mr Kalman’s claim for permanent impairment for headaches and blurred vision,[2] holding, on the basis of a report by Dr J Peters, an ophthalmic surgeon, that the blurred vision from which Mr Kalman suffered did not result from the 1955 injury and, as to the headaches, on the basis that there was no liability under the transitional provisions of the Safety, Rehabilitation and Compensation Act 1988 (Cth) (the SRC Act) because there was no entitlement to compensation for that permanent impairment under the 1930 Act.

   [2]See Re Kalman & Comcare [1997] AATA 666.

4. Since that time Mr Kalman has made numerous claims for compensation from the present respondent, the Military Rehabilitation and Compensation Commission.  It is not necessary to recite those claims, nor the applications that Mr Kalman has lodged in the Tribunal.

5. I am presently concerned with six applications lodged by Mr Kalman in January 2015. There was a further application lodged at the same time, 2015/0330, but that was dismissed with the consent of the parties earlier today. As to the remaining applications the Commission puts in issue the jurisdiction of the Tribunal to deal with any of the matters subject of those applications. 

6. In the first of them (2015/0327) Mr Kalman identifies the decision he seeks to have reviewed in these terms (punctuation and grammar in the original),

   AAT Q93/138 David W. Kalman V Department of Defence  13^th June 1986 Para (19) to (33) These paragraphs refer to dubious report by Opthalmology Dr James Peters who provided a report 16^th March when the Applicant never saw Dr Peters until 16^th April. Para 19 shows 9 examinations but none refer to Dr Peters 6/18 – 6/18 On one occasion the Respondent was successful in convincing the Tribunal to accept Dr Peters Fraudulent report. Under FOI, I requested copies of documents sent to Dr Peters telling him what to write, with no success:- I submit refusal is:- DEEMED REFUSAL

7. Despite the errors in his description[3] it is obvious, and Mr Kalman confirmed in the course of the hearing, that his application refers to the letter of instruction sent by Comcare to Dr Peters which resulted in the report by that doctor, relied upon by the Tribunal in Re Kalman & Comcare[4] to conclude that the 1955 injury did not result in the blurred vision from which Mr Kalman then suffered.

   [3]The Tribunal’s file reference was Q94/138 not Q93/138 and the respondent was Comcare not the Department of Defence.

   [4][1997] AATA 666.

8. The documents tendered by the Commission establish that on 27 June 2014 Mr Kalman made a request pursuant to the Freedom of Information Act 1982 (Cth) (the FOI Act) for access to “file notes or letters on your file written to or about the following medical practitioners: 1. Dr Boyce (Neurologist) 2. Dr Atkinson (Eye Specialist), 3. Dr Peters (Eye Specialist)”. A decision was made in relation to that request on 28 July 2014. Thereafter, on 31 July 2014, Mr Kalman sought internal review of the 28 July 2014 decision. A decision on internal review was made on 1 September 2014. I interpolate to say that the making of the decision on internal review on 1 September 2014 crystallised Mr Kalman’s right to seek a review by the Information Commissioner of the Department’s decision on internal review. Mr Kalman did not seek that review; instead, some two months later, on 3 December 2014, he sought further reconsideration by the Department of the decision on internal review. On 19 December 2014 Mr Kalman was informed in writing that the Department had no authority to further consider the decision on internal review.

9. That prompted him to seek a review by the Information Commissioner however he did not seek a review by the Commissioner of the decision of 1 September 2014. His request to the Information Commissioner was to review the decision of 19 December 2014 refusing to reconsider further the decision on internal review.  The result was that on 15 January 2015 the Information Commissioner refused the request on the basis that the decision of 19 December 2014 was not an “IC reviewable decision”.

10. The Tribunal’s jurisdiction to review decisions of the Information Commissioner is set out in s 57A of the FOI Act in these terms:

    (1)An application may be made to the Tribunal for review of the following decisions:

    (a)a decision of the Information Commissioner under section 55K on an IC review;

    (b)if the Information Commissioner makes a decision under paragraph 54W(b) (matters inappropriate for IC review)—the IC reviewable decision in relation to which the Information Commissioner makes the decision.

    The Information Commissioner did not make a decision under either s 55K or s 54W(b) of the FOI Act. It follows that there is no jurisdiction in this Tribunal to review the Information Commissioner’s decision of 15 January 2015. Application 2015/0327 will be dismissed. That is not to say that Mr Kalman cannot make a further request. I suggest that he make a more precisely worded request and, if he is dissatisfied with the responses to those requests, comply in a timely way with advice given about seeking further review of the decision made.

11. Application 2015/0333 concerns what Mr Kalman says was the Department’s deemed refusal to provide access pursuant to the FOI Act. He made a request on 30 October 2014 for a copy of the compensation file relating to his neck injury also described as his diving injury. On 9 December 2014 the Department gave Mr Kalman a “practical refusal” notice; that is, a notice sent pursuant to s 24AB of the FOI Act stating that a “practical refusal reason” existed on the basis that the request was too broad. Mr Kalman was invited to consult with the Department, as the Act requires, but made no written response within the period of 14 days after the giving of notice. He says that he responded by telephone and communicated a revised request within time but there is no evidence of that and certainly no evidence that it was acted upon. He did not withdraw the request or indicate that he wished otherwise to proceed with the matter in written form and as a result of that, and by operation of s 24AB(7) of the FOI Act, he was taken to have withdrawn his request.

12. There is thus no deemed refusal; Mr Kalman’s application is taken to have been withdrawn. It follows there is no decision capable of review by the Tribunal. Application 2015/0333 will be dismissed. Again, that is not to say that Mr Kalman ought not make a properly targeted and more narrowly focussed request for documents. The particular subsection relied upon here requires the respondent to consult with Mr Kalman, for the purposes of narrowing it.  I would encourage him to do so.

13. Application 2015/0335 concerns a request for access pursuant to the FOI Act to a report of Dr A Lim, said by Mr Kalman to be a heart specialist. He says that the Department’s failure to provide access to the document creates a deemed refusal capable of being reviewed by this Tribunal.

14. The respondent accepts that a request was made and dealt with by decision in September 2014.  Internal review of that decision was sought on 6 September 2014, withdrawn by Mr Kalman on 10 September 2014 and remade on 15 September 2014.  On 15 October 2014 the Department’s decision on internal review affirmed the original decision.  Again, Mr Kalman did not then seek review by the Information Commissioner of the decision on internal review. Instead, on 3 December 2014 he requested reconsideration of the internal review decision by the Department.  He was notified on 19 December 2014 that the Department considered that it had no authority to reconsider its decision on internal review.

15. On 29 December 2014 Mr Kalman sought review by the Information Commissioner, not of the decision on internal review, but the decision of 19 December 2014 advising that the Department had no authority to reconsider further the decision on internal review.  On 15 January 2015 the Information Commissioner wrote to Mr Kalman refusing his request for review on the grounds that it was not an “IC reviewable decision”. 

16. The decision of the Information Commissioner of 15 January 2015 is not a decision capable of being reviewed by the Tribunal.  There is, accordingly, no jurisdiction.  Application 2015/0335 will be dismissed.

17. Application 2015/0337 concerns the manner in which the Tribunal’s consent decision of 1993 was given effect. Mr Kalman’s concern is that he has not been paid amounts subject of an order of Deputy President Forgie giving effect to the parties’ consent. There appear to be deductions from the amount paid by way of income tax. Mr Kalman points to the terms of the order that referred to “without deduction” and says that deductions for amounts of income tax were not authorised by the order.

18. I doubt whether that is correct but in any event there is no decision of the respondent capable of being the subject matter of proceedings in this Tribunal concerning that deduction. If it be the case that the respondent wrongly deducted monies from an amount to which Mr Kalman was entitled, whether by agreement or by operation of the order of the Tribunal, Mr Kalman’s remedy I would have thought, and subject to questions of timeliness, is to pursue that as a common law claim in one of the courts of the State. I should not, however, be thought to be encouraging Mr Kalman to do so. It seems to me to seek to recover now, an entitlement arising from a deduction made some 30 years ago, would be to invite limitation problems.

19. Mr Kalman also complained that he had been provided with two documents, one photocopied over the other and that the respondent’s failure to give him separate copies of each document amounted to a deemed refusal of his application for access under Freedom of Information. As I have explained in the course of discussion with Mr Kalman there is no deemed refusal, no decision on reconsideration and no decision by the Information Commissioner of a reviewable decision.

20. The result is that neither of the matters that concern Mr Kalman in this application gives rise to jurisdiction in this Tribunal. Application 2015/0337 will be dismissed.

21. Application 2015/3338 concerns a claim for liability to pay compensation for Mr Kalman’s spine.  As he explains it in his application, an officer of the respondent made a decision, while giving evidence in the Tribunal in September 1995, to accept liability for Mr Kalman’s “whole spine”.  In September 2014 he made a claim to the respondent for acceptance of liability for a cervical spine condition.

22. According to the Commission, no decision on that claim has yet been made.  Thus the Tribunal lacks jurisdiction, that jurisdiction being founded on the existence of a reviewable decision; that is, a decision made following a request for reconsideration of an original decision. Application 2015/3338 will be dismissed.

23. I should add though it does seem to me an extraordinarily long time that the Commission has taken to consider a claim lodged in September 2014. I will ask those who instruct Mr Clark to convey to the Commission my concern that the determination of the claim has taken so long and my encouragement to the Commission to determine the claim at the earliest opportunity.

24. The final application, 2015/0339, concerns a claim for acceptance of depression as a secondary condition to the already accepted condition. As Mr Kalman explained in the course of the hearing this claim is separate to one already made in December 2013 which is the subject of application 2014/6133. This claim is a separate claim arising in January 2015 and again, as Mr Kalman seems to have accepted in the course of argument, it has not yet been the subject of an original determination or a determination on reconsideration. Accordingly, there is no jurisdiction to hear that claim at this point in time. Application 2015/0339 will be dismissed.

I certify that the preceding 24 (twenty -four) paragraphs are a true copy of the reasons for the decision herein of Deputy President P E Hack SC

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

Associate

Dated 30 April 2015

Date of hearing	17 April 2015
Applicant	In person
Counsel for the Respondent	Mr CJ Clark
Solicitors for the Respondent	Australian Government Solicitor