DSLB and Comcare (Compensation) - [2022] AATA 1369

DSLB and Comcare (Compensation) [2022] AATA 1369 (27 May 2022)
Division:GENERAL DIVISION
File Number(s): 2016/6669
Re:DSLB
APPLICANT

AndComcare
RESPONDENT

DECISION
Tribunal:The Hon. John Pascoe AC CVO, Deputy President
Date:27 May 2022
Place:Sydney

The objections to summons is dismissed. The following direction is made under section 33 of the Administrative Appeals Tribunal Act 1975 (Cth):
(a)Either party may apply within 14 days to have the matter relisted before Senior Member Poljak for any clarification regarding her decision on this matter on 1 March 2022.

.............................[sgd]...........................................
The Hon. John Pascoe AC CVO, Deputy President
CATCHWORDS
PRACTICE AND PROCEDURE – objection to summons material – whether Tribunal has jurisdiction – where jurisdiction has been determined by a previous Tribunal member – where the objection to summons has been determined by a previous Tribunal member – Tribunal does not have power to review Tribunal decision – directions made - objection dismissed.
LEGISLATION
Administrative Appeals Tribunal Act 1975 (Cth)
Safety, Rehabilitation and Compensation Act 1988 (Cth)
CASES
Collector of Customs (NSW) v Brian Lawlor Automotive Pty Ltd (1979) 2 ALD 1; 24 ALR 307
REASONS FOR DECISION
The Hon. John Pascoe AC CVO, Deputy President
27 May 2022

This decision relates to an objection to the inspection of certain summonsed material by the Respondent, lodged by the Applicant in these proceedings on 18 April 2022.
The matter was heard by way of interlocutory hearing by telephone on 18 May 2022.
BACKGROUND
The decision under review in the wider proceedings is the reviewable decision of a delegated review officer of the Respondent dated 2 August 2016, which was initiated by a review of own motion under section 62 of the Safety, Rehabilitation and Compensation Act 1975 (Cth) (‘the SRC Act’).
This decision revoked the determination dated 18 July 2014, which accepted liability for the Applicant’s claimed psychiatric illness, and instead affirmed the determination of 16 July 2014 which denied liability for such claimed illness.
This matter has had a long and somewhat complicated history before the Tribunal.
The application for review was lodged by the Applicant in late 2016, and between 2016 and 2019 the parties engaged in several ADR processes and directions hearings before the Tribunal.
On 6 May 2019, the matter was heard by Senior Member McGrowdie who, on application from the Applicant and with the consent of the Respondent, made an order under s 42A(4) of the Administrative Appeals Tribunal Act 1975 (Cth) (‘the AAT Act’) in the following terms:
On the Application of the Applicant pursuant to subsection 42A(4) of the Administrative Appeals Tribunal Act 1975, this application for review is dismissed noting questions as to jurisdiction have arisen.
On 6 September 2021, the Applicant lodged an application to have the matter reinstated at the invitation of the Respondent. The Respondent advised that they did not oppose reinstatement of the matter.
On 6 October 2021, the matter was reinstated before the Tribunal.
On 16 November 2021, the Respondent requested the Tribunal approve the issue of summons to…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading DSLB and Comcare (Compensation)

Details

AGLC: DSLB and Comcare (Compensation) [2022] AATA 1369
Case: [2022] AATA 1369
Decision Date: 27 May 2022

CaseChat Overview and Summary

This matter concerned an interlocutory hearing before the Administrative Appeals Tribunal (AAT) concerning an objection to the inspection of summonsed material. The applicant, DSLB, sought review of a decision by Comcare which revoked an earlier determination accepting liability for a psychiatric illness and instead affirmed a determination denying liability. The proceedings had a complex history, including a previous dismissal of the application for review by Senior Member McGrowdie in May 2019, its subsequent reinstatement in October 2021 at the invitation of Comcare, and a subsequent request by Comcare for summonses to Services Australia for various Medicare and Pharmaceutical Benefits Scheme records.

The primary legal issues before the Tribunal were whether it had jurisdiction to proceed with the review on the merits, and whether the applicant's objection to the inspection of the summonsed material by Comcare should be upheld. These issues had previously been considered by Senior Member Poljak on 1 March 2022, who had determined that the request for summons was appropriately founded and the summons was issued. The applicant subsequently lodged a further objection to the inspection of the summonsed material.

The Deputy President, John Pascoe AC CVO, reasoned that the AAT does not have the power to review a decision made by a previous Tribunal member. He noted that the time for the applicant to seek review of Senior Member Poljak's decision in the Federal Court had expired, but acknowledged the Federal Court's power to extend time and the potential for confusion in the proceedings. The Deputy President dismissed the applicant's objection to the inspection of the summonsed material, finding that these objections had already been dealt with by Senior Member Poljak.

The Deputy President made directions allowing either party to apply within 14 days to have the matter relisted before Senior Member Poljak for any clarification regarding her decision of 1 March 2022. He also noted that this direction did not preclude the applicant from seeking to appeal to the Federal Court regarding the issues raised.

Orders

Orders of the court

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Background

Background to the litigation

The matter was heard by way of interlocutory hearing by telephone on 18 May 2022. BACKGROUND The decision under review in the wider proceedings is the reviewable decision of a delegated review officer of the Respondent dated 2 August 2016, which was initiated by a review of own motion under section 62 of the Safety, Rehabilitation and Compensation Act 1975 (Cth) (‘the SRC Act’). This decision revoked the determination dated 18 July 2014, which accepted liability for the Applicant’s claimed psychiatric illness, and instead affirmed the determination of 16 July 2014 which denied liability for such claimed illness. This matter has had a long and somewhat complicated history before the Tribunal. The application for review was lodged by the Applicant in late 2016, and between 2016 and 2019 the parties engaged in several ADR processes and directions hearings before the Tribunal. On 6 May 2019, the matter was heard by Senior Member McGrowdie who, on application from the Applicant and with the consent of the Respondent, made an order under s 42A(4) of the Administrative Appeals Tribunal Act 1975 (Cth) (‘the AAT Act’) in the following terms:On the Application of the Applicant pursuant to subsection 42A(4) of the Administrative Appeals Tribunal Act 1975, this application for review is dismissed noting questions as to jurisdiction have arisen. On 6 September 2021, the Applicant lodged an application to have the matter reinstated at the invitation of the Respondent. The Respondent advised that they did not oppose reinstatement of the matter. On 6 October 2021, the matter was reinstated before the Tribunal. On 16 November 2021, the Respondent requested the Tribunal approve the issue of summons to Services Australia for:The Medicare Benefits Scheme and the Pharmaceutical Benefits Scheme summaries, and all accounts, receipts, Medicare and PBS claim forms, Medicare and PBS receipts, health fund claim forms, and health fund receipts which relate to medical or hospital treatment, for any condition, in the period from 1 January 1991 to the present date, relating to [DLSB]. On 5 December 2021, the Applicant lodged an objection to summons, and provided written submissions on the matter, which also raised questions regarding the jurisdiction of the Tribunal to proceed to a review on the merits. On 23 December 2021, the directions hearing by telephone was held before Senior Member Poljak, who made directions for the filing of written submissions in the matter, and a further interlocutory hearing was listed for 1 March 2022. At the interlocutory hearing on 1 March 2022, having received written submissions by both parties in relation to the issue of jurisdiction and on the objection to summons, Senior Member Poljak determined that the request for summons was appropriately founded and the summons was issued. Following the return of the summonsed material and inspections orders having been made, the Applicant lodged a further objection to the inspection of the summonsed material by the Respondent.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

I note that the time for the Applicant to apply to the Federal Court (namely, 28 days) for review of Senior Member Poljak’s decision has expired, but the Federal Court has power to extend this period and in the circumstances of this case, given that the Applicant is self-represented and that there has been considerable confusion, it would seem likely that such an extension of time would be granted. To the extent that the confusion has arisen from the original hearing before Senior Member McGrowdie, it may be that the only appropriate way to ensure a determinative resolution on the question of jurisdiction and the manner in which the Tribunal should proceed must come from the Federal Court. However this is a matter for the parties to decide. DECISION I dismiss the objection to the inspection of the summons material by the Respondent, as those objections were dealt with by Senior Member Poljak in March 2022. The submissions and issues raised before this Tribunal are, in substance, largely the same. I also make the following direction under s 33 of the AAT Act:(b)Either party may apply within 14 days to have the matter relisted before Senior Member Poljak for any clarification regarding her decision on this matter on 1 March 2022. I note that the above order does not preclude in any way the Applicant seeking to appeal to the Federal Court in relation to the issues raised above.

Ratio Decidendi

Legal Principle Established

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