Gunn and Commonwealth Superannuation Corporation

[2024] AATA 3435

Gunn and Commonwealth Superannuation Corporation [2024] AATA 3435 (27 September 2024)

Division:GENERAL DIVISION

File Number:          2024/2768

Re:Peter Gunn

APPLICANT

AndCommonwealth Superannuation Corporation

RESPONDENT

DECISION

Tribunal:Senior Member D. J. Morris

Date:27 September 2024

Place:Hobart

The Tribunal notes that the Applicant has withdrawn his application to the Tribunal for a declaration under s 28(5) of the Administrative Appeals Tribunal Act 1975. The effect of that withdrawal is that the application for a declaration is taken to have been dismissed.

..................................[signed]......................................

Senior Member D. J. Morris

Catchwords

PRACTICE AND PROCEDURE – decision made in respect of which an application may be made to Tribunal for review – applicant requested statement of reasons – statement of reasons provided – applicant applies to Tribunal for declaration that statement is inadequate – discussions between the parties – matter resolved – applicant and respondent seek dismissal of application by consent – power of the Tribunal to dismiss – as no application for review of a decision, then power in s 42A of AAT Act not available – Tribunal determines that withdrawal of request for declaration is taken to be dismissal of the application for a declaration – matter therefore dismissed

Legislation

Administrative Appeals Tribunal Act 1975 (Cth)

Defence Force Retirement and Death Benefits Act 1973 (Cth)

Secondary material

Annotated Administrative Appeals Legislation; 4^th Ed. Nathan Moshinsky and Damien Cremean; LexisNexis; 2020, p 284

REASONS FOR DECISION

Senior Member D. J. Morris

27 September 2024

1. When the Administrative Appeals Tribunal was established, the Parliament of Australia decided to include in the governing statute, the Administrative Appeals Tribunal Act 1975 (‘AAT Act’), a provision enforcing an entitlement for a person who is able to apply for review of a decision to be able to request from the decision-maker a statement of reasons. This entitlement is set out in s 28(1) of the AAT Act, and is subject to certain exclusions in s 28(2) which are not relevant to these reasons.

2. Mr Peter Gunn applied through his legal representatives for a statement of reasons from the Commonwealth Superannuation Corporation (‘CSC’), in relation to a decision affecting him. For the purposes of these reasons, Mr Gunn is described as the Applicant and the CSC is described as the Respondent.

   BACKGROUND

3. Mr Gunn served in the Royal Australian Navy from 1976 to 1980 when he was administratively discharged.

4. On 14 December 2020, a delegate of the Respondent made a decision in relation to the Applicant under s 30 of the Defence Force Retirement and Death Benefits Act 1973. That decision determined that the Applicant should be treated as if he had been retired on the ground of invalidity as at 4 December 1980.

5. On 3 May 2022, the solicitors for the Applicant notified the Respondent of the intent to proceed with a request for reconsideration of the delegate’s decision, dated 4 April 2022. On 5 May 2022, the solicitors submitted an application for reconsideration on the basis that the delegate failed to take into consideration all relevant material, and advised that further details were to be provided in due course.

6. The matter was considered by the Defence Force Case Assessment Panel (‘Panel’) which, at its meeting on 22 March 2023, resolved as follows (Statement of Reasons…N120601 – Defence Force Retirement and Death Benefits (DFRDB) – Initial Invalidity Classification):

   (a)that the relevant kind of civilian employment a person with Mr Gunn’s vocational, trade and professional skills, qualifications and experience might reasonably be undertaken be amended to Deck Hand;

   (b)that Mr Gunn’s retiring impairments was to be amended to Fractured 7^th Cervical Vertebra, Post-Traumatic Stress Disorder; Major Depressive Disorder; Somatic Symptom Disorder and Alcohol Use Disorder;

   (c)that Mr Gunn’s retiring impairments diminished his capacity to undertake the civilian employment listed in (a) by an overall moderate degree; and

   (d)to set aside the decision, made by a Delegate of the Commonwealth Superannuation Corporation on 4 April 2022, that Mr Gunn be classified 10%, Class C, and substitute for it, a decision that Mr Gunn be classified 50%, Class B, with effect from 5 December 1980.

   (Emboldening in the original)

   APPLICATION FOR DECLARATION

7. On 1 May 2024, the solicitors for the Applicant lodged an application with the Tribunal for a declaration under s 28(5) of the AAT Act.

8. The Applicant requested a declaration that the Statement of Reasons of the Panel dated 22 March 2024 does not contain one or more of the following:

   (a)Adequate particulars of findings on the material questions of fact;

   (b)An adequate reference to the evidence or other material on which those findings were based;

   (c)Adequate particulars of the reasons for the decision.

9. In this respect, the application for a declaration almost mirrors the provisions of s 28(5) of the AAT Act (except for the definite article in (a)).

10. The application relevantly went on to submit:

    …the reasons provided by the decision maker to date provide no information to the Applicant that would properly inform him as to how the Respondent attributed a 50% incapacity to him at the point of his retirement. No explanation is provided by the Respondent as the impact that the applicant[‘]s retiring psychiatric impairments would have on the applicant[‘]s opportunities for engaging in various kinds of employment.

    The applicant seeks an order that the Respondent provide a statement of reasons which provides analysis to properly inform the applicant how the Respondent arrived at the total percentage of incapacity and the weight the Respondent placed on each of the retiring impairments to arrange at the overall percentage of incapacity.

11. The solicitors for the Applicant also provided a letter from the Respondent dated 24 March 2024 which enclosed a copy of the Panel’s Statement of Reasons and a list of the evidence considered by the Panel, and advice that the substantive decision was reviewable by the Tribunal. This was accepted by the Tribunal as satisfying s 28(1) of the AAT Act.

    Hearing convened, then vacated

12. The matter was listed for hearing on 26 August 2024 so that the Tribunal could hear submissions from the Applicant on why he considered the Statement of Reasons was inadequate, and any response from the Respondent.

13. On 19 August 2024 the Respondent, with the agreement of the Applicant, requested that the hearing be adjourned for four weeks so that the parties could continue to engage in discussions with a view to resolving the matter. The Tribunal acceded to the request and relisted the matter to be heard on 16 September 2024 in person, in Hobart.

14. On 13 September 2024, the Applicant’s solicitor advised the Tribunal that the parties had reached an agreement in principle that would result in Mr Gunn withdrawing his application for a declaration, and requested one further adjournment.

15. The Tribunal agreed to the request but noted this was the second request for an adjournment, and relisted the matter to be heard on 30 September 2024. The Tribunal advised the parties that, in the absence of any agreement being reached, it would entertain a request for the matter to be heard on the papers after written submissions, without the need for a hearing, if the parties were amenable to that proposal.

    Parties reach agreement

16. On 24 September 2024, the Tribunal received a document signed by the solicitors for the parties described as a ‘Consent Memorandum’. It stated:

    We refer to the above mentioned matter and advise that the parties seek [that] the Application be dismissed by the Tribunal with no order as to costs.

    CONSIDERATION

17. In the usual course, if parties to a reviewable decision reach agreement and advise the Tribunal, and the Tribunal is satisfied that the terms of the agreement are consistent with the powers of the Tribunal, a consent agreement can be made under s 42C of the AAT Act, in the terms (or substantially in the terms) submitted by the parties.

18. Section 42A of the AAT Act also provides that where all parties to an application before the Tribunal for review of a decision consent, the Tribunal may dismiss the application without proceeding to review the decision or, if the Tribunal has commenced to review the decision, without completing the review.

19. Section 42A(1A) of the AAT Act provides:

    A person who has made an application to the Tribunal for a review of a decision may, in writing lodged with the Tribunal, at any time notify the Tribunal to the effect that the application is discontinued or withdrawn.

20. The difficulty with the provisions of ss 42A and 42C in this case is that they are conditioned by a person having made an application to the Tribunal for a review of a decision. Mr Gunn has not done that. What he has done, through his legal representatives, is – having received a statement of reasons for a reviewable decision – sought a declaration from the Tribunal that the statement of reasons is inadequate.

21. If the Tribunal decided that the statement of reasons was inadequate, it would make a declaration under s 28(5) of the AAT Act specifying what elements of the reasons it considered inadequate. Then, under s 28(6), the Respondent must, as soon as practicable and, in any case, no later than 28 days after the declaration was made, give to the Applicant an additional statement containing further and better particulars in relation to the matters set out in the declaration.

22. But this is a preliminary process. If such a declaration had been made and an additional statement of reasons provided, it would still be open to an applicant, Mr Gunn in this case, to seek review of the decision in a substantive sense before the Tribunal.

23. Because the application before me is not an application for review, but an application for a s 28(5) declaration, I consider that the usual dismissal provisions in the AAT Act where the parties have reached agreement are not available.

24. However, it would be risible for the Tribunal, having been furnished with a written statement signed by the solicitors for both the Applicant and the Respondent, advising that the Applicant seeks to withdraw the request for a declaration because they have resolved matters between themselves, to block that.

25. I find, therefore, that there is a general power available to me in this circumstance, to accept the joint advice of the parties that they have resolved the matter, and that this should constitute a withdrawal of the application for a declaration under s 28(5) that Mr Gunn made on 1 May 2024. The practical effect of that withdrawal is that the matter is taken to have been dismissed.

    DECISION

26. The Tribunal notes that the Applicant has withdrawn his application to the Tribunal for a declaration under s 28(5) of the AAT Act. The effect of that withdrawal is that the application for a declaration is taken to have been dismissed.

I certify that the preceding 26 (twenty-six) paragraphs are a true copy of the reasons for the decision herein of Senior Member D. J. Morris

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

Associate

Dated: 27 September 2024

Applicant’s solicitor:  Mr Adam Sheehan

Applicant’s solicitors:  Ogilvie Jennings

Respondent’s solicitor:                  Mr Damien Kelly

Respondent’s solicitors:                King & Wood Mallesons