Fry and Military Rehabilitation and Compensation Commission (Veterans' entitlements)

[2022] AATA 720

Fry and Military Rehabilitation and Compensation Commission (Veterans' entitlements) [2022] AATA 720 (8 April 2022)

Division:VETERANS' APPEALS DIVISION

File Number:          2022/2139

Re:Danny Fry

APPLICANT

AndMilitary Rehabilitation and Compensation Commission

RESPONDENT

DECISION

Tribunal:Senior Member D. J. Morris

Date:8 April 2022

Date of written reasons:        12 April 2022

Place:Melbourne

1. The Tribunal decides that the application must be dismissed for want of jurisdiction as, because there has been no reconsideration of the determination, there is no reviewable decision under sections 60 and 62 of the Safety,Rehabilitation and Compensation (Defence-related Claims) Act 1988, and therefore the Applicant cannot seek review by the Tribunal under section 64 of that Act.

2. Therefore, the Tribunal refuses to extend time under section 29(7) of the Administrative Appeals Tribunal Act1975 in relation to the application lodged by the Applicant on 11 March 2022.

........................................................................

Senior Member D. J. Morris

Catchwords

PRACTICE AND PROCEDURE – where applicant applied to Tribunal to review determination decision of Military Rehabilitation and Compensation Commission – where applicant also lodged application for Tribunal to extend time for lodgement of application – where there was no request for Commission to reconsider determination decision – no reviewable decision for Tribunal to review – extension of time refused and application dismissed for want of jurisdiction – written reasons provided

Legislation

Administrative Appeals Tribunal Act 1975 (Cth), ss 25, 29, 33A

Safety, Rehabilitation and Compensation Act (Defence-related Claims) Act 1988 (Cth), ss 60, 62, 64

Cases

Negri v Secretary, Department of Social Services (2016) 70 AAR 103

REASONS FOR DECISION

Senior Member D. J. Morris

12 April 2022

1. The Applicant, Mr Danny Fry, seeks a review of a decision of the Military Rehabilitation and Compensation Commission (‘the Commission’) dated 6 and 21 November 2018 relating to the treatment of incapacity payments payable to him.

   HEARING

2. An interlocutory hearing was held on 8 April 2022 by telephone under section 33A of the Administrative Appeals Tribunal Act 1975 (‘the AAT Act’). Mr Fry made submissions, and was also represented by his advocate, Ms Tracey Victor. The Commission was represented by Mr Ken Rudge, an officer of the Department of Veterans’ Affairs (‘DVA’).

3. At the conclusion of the hearing, the Tribunal made a decision refusing to extend time because it decided that it did not have jurisdiction to entertain Mr Fry’s application. The Tribunal said it would provide written reasons for the decision to assist the Applicant.

4. In Negri v Secretary, Department of Social Services (2016) 70 AAR 103 (‘Negri’), Bromberg J considered a matter before the Tribunal where an oral decision had been made and a statement of written reasons had been subsequently supplied. In considering the extent to which the Tribunal could edit or elaborate its oral reasons when producing written reasons, His Honour said at [27]:

   … as long as the reasoning remains consistent, there can be no objection to the provision of a more-elaborate exposition of the same reasoning that was orally explained. What is not permissible is altered or new reasoning. The Tribunal is not permitted to substantially divert from the reasoning upon which its decision was made, but is permitted to explain that reasoning differently and, in doing so, is required to address the matters specified in s 43(2B).

5. In preparing the written reasons which follow, the Tribunal is satisfied that they reflect the oral reasons given on 8 April 2022, consistent with the approach suggested in Negri. New reasoning for the decision has not been introduced, but this written statement is a fuller explanation of the reasons given orally.

   BACKGROUND

6. The Commission made a determination on 6 and 21 November 2018 in relation to incapacity payments payable to Mr Fry. There was no dispute before the Tribunal that the Applicant was not eligible for the payments, nor that he does not continue to be so eligible.

7. The Commission sent a letter with the heading Incapacity Claim Determination and Reasons for Decision to Mr Fry at his residential address on 6 November 2018, and followed up with a further letter of 21 November 2018 relating to the same determination.

8. The letter dated 6 November 2018 included the following:

   Your right of appeal

   If you disagree with any aspect(s) of this determination (for instance the rate payable or the commencement date), email a copy of this letter to [email protected] and explain what aspect(s) of the determination you wish to have received. You can include any information to support your appeal by attaching a copy of that document and if you have an advocate, please provide their details.

   You have 12 months from the date of this letter in which to apply for a review. DVA will screen all requests for review upon receipt and will notify you (and your representative if you have one) once this has occurred. At this point you will be given an indicative timeframe for completion of the review.  Details of the appeals process, including applicable timeframes, and how to provide feedback to DVA or an external organisation can be downloaded via: >

   The letter of 21 November 2018 included the first of these paragraphs but, on the copy before the Tribunal, not the second paragraph.

   THE APPLICABLE LAW

9. Part VI of the Safety, Rehabilitation and Compensation (Defence-related Claims) Act 1988 (‘the Act’) states, at section 60, that a “reviewable decision” means a decision made under subsection 38(4) or, relevantly in this case, section 62.

10. Section 62 provides that a determining authority (in this case the Commission) may on its own motion consider a determination made by it or cause a determination to be considered by a delegate, other than the delegate who made the original determination.

11. Section 62(2) provides that a request to reconsider a determination can be made by either the claimant or, if the determination affects the Commonwealth, the Commonwealth.

12. Section 62(3) of the Act says:

    A request for reconsideration of a determination shall:

    (a) set out the reasons for the request; and

    (b) be given to the determining authority within 30 days after the day on which the determination first came to the notice of the person making the request, or within such further period (if any) as the determining authority, either before or after the expiration of that period, allows.

13. Section 64 of the Act provides:

    Applications to the Administrative Appeals Tribunal

    (1)       Application to the Administrative Appeals Tribunal for review of a reviewable decision may be made by:

    the claimant; or

    if the decision affects the Commonwealth – the Commonwealth.

    …

    THE RESPONDENT’S CONTENTIONS

14. Mr Rudge, for the Commission, contended that, because there has been no reconsideration decision, there is consequently no reviewable decision which could be the subject of an application for review by the Tribunal under section 64 of the Act, and therefore the request for an extension of time should be refused.

    THE APPLICANT’S CONTENTIONS

15. Mr Fry and Ms Victor both made submissions to the Tribunal. Mr Fry said that he had engaged a lay advocate at the RSL Tasmania Branch at Anzac House, New Town, to assist him in his dealings with the DVA. He said that he had been let down by this lay advocate, who he thought was pursuing various matters on his instructions. Mr Fry told the Tribunal that this lay advocate had not been doing so.

16. Mr Fry said he had since disengaged the lay advocate and engaged with Ms Victor, who is now assisting him but who lives in another State. Mr Fry said that he had had a recent discussion with Mr Rudge and now understood he could not ask the Tribunal to review the Incapacity Claim Determination because there had not been a reconsideration decision. He asked whether it would be likely that, if he asked the Commission, it would agree to reconsider the determination. Mr Rudge submitted that he could not say, as he was not a delegate of the Commission and had no instructions on what attitude the Commission might adopt. Mr Rudge said that if Mr Fry wrote to the Commission, he would be assured of a response.

    CONSIDERATION

    Is there a decision that is reviewable by the Tribunal?

17. The Tribunal is sympathetic to the situation Mr Fry has described, and understands the frustration he has felt, holding a belief that this matter was being pursued on his behalf by his then lay advocate, but more recently discovering that this was not happening.

18. Under section 62 of the Act, a claimant such as Mr Fry can request a determining authority to reconsider its determination. Such a request must be given to the determining authority within 30 days of the person receiving notice of the decision, or within such further period as the determining authority may allow. That additional time can be allowed either before or after the expiration of the 30-day period. If a person requests reconsideration, a different delegate who made the first determination in the determining authority must reconsider the determination. Unfortunately for Mr Fry, that reconsideration has not taken place.

19. The Act provides that a person can bring a “reviewable decision” to the Tribunal for a merits review to be conducted. A “reviewable decision” is defined in section 60 of the Act, inter alia, as a decision made under section 62.

20. What this means, in plain language, is that where a person is not satisfied with a determination made by the Commission, the person must first have asked for that determination to be reconsidered by the Commission by a fresh delegate. If the person is not satisfied with the reconsideration, he or she can then bring that reconsideration decision to the Tribunal for review. But Mr Fry has not requested reconsideration of the determination made on 6 and 21 November 2018.

21. It is open to Mr Fry to seek reconsideration by the Commission, notwithstanding the 30-day statutory period has well and truly passed. It will be up to the Commission whether it agrees to reconsider the Incapacity Claim Determination. The Tribunal notes that, although the Act specifies a 30-day period, the 6 November 2018 letter to Mr Fry refers to a person having 12 months to apply for a review. Presumably, this is an internal DVA policy that is beneficial to a veteran and may not be directly inconsistent with section 62(3)(b) of the Act, though of course where any internal policy is inconsistent with a statute, the latter must prevail to the extent of any inconsistency. This passage in the 6 November 2018 letter does, however, indicate that having 12 months (at least) in which to ask for reconsideration of a determination would be a reasonable expectation of the person to whom the letter is addressed.

    Should time be extended?

22. Section 29(7) of the AAT Act provides:

    Tribunal may extend time for making application

    The Tribunal may, on application by a person, extend the time for the making by that person of an application to the Tribunal for a review of a decision (including a decision made before the commencement of this section) if the Tribunal is satisfied that it is reasonable in all the circumstances to do so.

23. Theoretically, had there been a reconsideration decision, given the background Mr Fry has provided about the apparent dereliction of duty of his former lay advocate, the Tribunal may have concluded it was “reasonable in all the circumstances” to extend time under section 29(7). However, with no reconsideration decision, there is no enactment providing for review of the decision, a precondition required by section 25 of the AAT Act. It would be futile in such a case to extend time, when the application itself must be dismissed because there is no power for the Tribunal to review the decision Mr Fry wants done over again.

24. Therefore, in summary, there is no decision for the Tribunal to review, so time will not be extended, and the application Mr Fry lodged on 11 March 2022 will be dismissed.

    DECISION

25. The Tribunal decides that the application must be dismissed for want of jurisdiction as, because there has been no reconsideration of the determination, there is no reviewable decision under sections 60 and 62 of the Act, and therefore the Applicant cannot seek review by the Tribunal under section 64 of that Act.

26. Therefore, the Tribunal refuses to extend time under section 29(7) of the AAT Act in relation to the application lodged by the Applicant on 11 March 2022.

28.     I certify that the preceding 27 (twenty-seven) paragraphs are a true copy of the written reasons for the decision of Senior Member D. J. Morris

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

Associate

Dated: 12 April 2022

Date of Interlocutory hearing:	8 April 2022
Applicant:	Mr Danny Fry
Advocate for the Applicant:	Ms Tracey Victor
Advocate for the Respondent:	Mr Ken Rudge
Solicitors for the Respondent:	Department of Veterans’ Affairs