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

1. 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.

2. The matter was heard by way of interlocutory hearing by telephone on 18 May 2022.

   BACKGROUND

3. 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’).

4. 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.

5. This matter has had a long and somewhat complicated history before the Tribunal.

6. 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.

7. 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.

8. 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.

9. On 6 October 2021, the matter was reinstated before the Tribunal.

10. 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].

11. 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.

12. 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.

13. 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.

14. Subsequently, in the current hearing on 18 May 2022, the Applicant claimed that the Tribunal did not have jurisdiction to review the reviewable decision dated 2 August 2016, and that the appropriate way for the Tribunal to proceed was in line with the principles as expounded in Collector of Customs (NSW) v Brian Lawlor Automotive Pty Ltd (1979) 2 ALD 1; 24 ALR 307 (‘Lawlor’).The Applicant, in their written submissions prior to the most recent interlocutory hearing, requested that the Tribunal make orders regarding jurisdiction, costs and remitting the matter to the Respondent. In the alternative, the Applicant submitted that the Tribunal should make orders narrowing the access of the Respondent to the summonsed material.

    THE LAW 

15. Subsection 42A(4) of the AAT Act provides that:

    Dismissal if decision is not reviewable

    (4)  The Tribunal may dismiss an application without proceeding to review the decision if the Tribunal is satisfied that the decision is not reviewable by the Tribunal.

16. Subsection 42A(10) of the AAT Act provides that:

    Reinstatement of application

    …

    (10)  If it appears to the Tribunal that an application has been dismissed in error, the Tribunal may, on the application of a party to the proceeding made within the period referred to in subsection (11) or on its own initiative, reinstate the application and give such directions as appear to it to be appropriate in the circumstances.

17. Section 43 of the AAT Act provides that:

    Tribunal's decision on review

    (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 and:

    (i)     making a decision in substitution for the decision so set aside; or

    (ii)    remitting the matter for reconsideration in accordance with any directions or recommendations of the Tribunal.

18. Section 44 of the AAT Act provides that:

    Appeal on question of law

    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.

    …

    When and how appeal instituted

    (2A)  An appeal by a person under subsection (1) or (2) shall be instituted:

    (a)not later than the twenty-eighth day after the day on which a document setting out the terms of the decision of the Tribunal is given to the person or within such further time as the Federal Court of Australia (whether before or after the expiration of that day) allows; and

    (b)in such manner as is prescribed by rules of court made under the Federal Court of Australia Act 1976 .

    (2B)  In the interest of justice, the grounds on which the Federal Court of Australia may allow further time under paragraph (2A)(a) include, but are not limited to, the following grounds:

    (a)if the Tribunal made an oral statement as to the reasons for the decision and afterwards gave a written statement of reasons for the decision--the written statement contains reasons that were not mentioned in the oral statement;

    (b)the text of the decision or a statement of reasons for the decision has been altered under section 43AA.

    DISCUSSION

19. I note that almost all of the issues ventilated before me in this hearing were also before Senior Member Poljak at the hearing in March 2022.

20. It is important to note that Senior Member Poljak, quite properly in my opinion, proceeded on the basis that she did have jurisdiction. It is clear from what each party had said that it was accepted that the Tribunal did have jurisdiction in the matter and therefore had the power to decide the issue of whether or not the request for a summons to be issued was properly founded. The transcript records as follows:

    SENIOR MEMBER: All right. So as I understand it, so just to be clear, I understand that you are accepting that the proceedings that are currently on foot and the tribunal does have jurisdiction to review that decision. The question really is – well, your issue is how we proceed with that review, and your position is you don’t think it’s necessarily – necessary to go into a full merits review of that decision because you say that there’s defects or issues with the way that decision was made below, is that correct?

    MR DSLB: That is correct.

21. At the hearing before this Tribunal, the Applicant claimed that the Tribunal was not entitled to conduct a merits review of the reviewable decision dated 2 August 2016, and claimed that the Tribunal had misdirected itself and that it was required to proceed in accordance with the “Lawlor principles”.

22. At the hearing, I explained to the parties that, in my view, this Tribunal had no power to review a previous Tribunal decision. Such a power rests solely with the Federal Court of Australia and any review of a Tribunal decision would require an application to the Federal Court which would then determine whether the Tribunal in fact had jurisdiction or had misdirected itself.

23. Accordingly, in light of the above, the only options for the Applicant are to seek a further hearing before Senior Member Poljak in order to clarify or further explore any aspects of the proceedings and her decision on 1 March 2022, or to appeal to the Federal Court for a review of the decision made by Senior Member Poljak and to ask the Court to rule on the question of jurisdiction and the application of the “Lawlor principles”.

24. In making my decision, I have considerable sympathy for both parties as there appears to have been a great deal of confusion and cost because of a lack of clarity which dates back to the original proceedings before Senior Member McGrowdie in May 2019. In my view, the issue of the jurisdiction and submissions in relation to it should properly have been addressed at the original hearing. I note that on the occasion that issue of jurisdiction was only addressed in the context of proceedings being dismissed at the request of the Applicant and without any objection on the part of the Respondent.

25. 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

26. 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.

27. 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.

28. 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.

I certify that the preceding 28 (twenty-eight) paragraphs are a true copy of the reasons for the decision herein of The Hon. John Pascoe AC CVO, Deputy President

...........................[sgd].............................................

Associate

Dated: 27 May 2022

Date(s) of hearing:	18 May 2022
Advocate for the Applicant:	Mr. DSLB (husband of the Applicant)
Counsel for the Respondent:	Mr M. Gollan
Solicitors for the Respondent:	Sparke Helmore Lawyers