Harris and Military Rehabilitation and Compensation Commission (Compensation)
[2023] AATA 483
•24 February 2023
Harris and Military Rehabilitation and Compensation Commission (Compensation) [2023] AATA 483 (24 February 2023)
Division:GENERAL DIVISION
File Number: 2016/1265
Re:Matthew Harris
APPLICANT
AndMilitary Rehabilitation and Compensation Commission
RESPONDENT
INTERLOCUTORY DECISION
Tribunal:The Hon. Matthew Groom, Senior Member
Date:24 February 2023
Date of written reasons: 24 March 2023
Place:Melbourne
The Tribunal decides that:
(a)the deeming decision of actual earnings is within the scope of the Tribunal’s review;
(b)the jurisdiction of the Tribunal extends to consideration of facts and circumstances up to the date of the Tribunal’s decision; and
(c)leave to be granted to the respondent to inspect and rely on the summons materials identified as relevant in the schedule to Appendix A annexed to the Respondent’s written submissions dated 18 October 2022.
....................[sgd]....................................................
The Hon. Matthew Groom, Senior Member
Catchwords
DEFENCE-RELATED CLAIMS – suitable employment – whether deeming decision of actual earnings is within the scope of the Tribunal’s review – extent of Tribunal’s jurisdiction to consider facts and circumstances – inspection of summons material – leave granted.
Legislation
Military Rehabilitation and Compensation Act 2004 (Cth)
Safety Rehabilitation and Compensation Act 1988 (Cth)
Cases
Comcare v Davies [2008] FCA 393
Shi v Migration Agents Registration Authority (2008) 235 CLR 286
Warnock and Comcare [2008] AATA 567
Woodbridge v Comcare [1994] FCA 1249
Secondary Materials
Explanatory Memoranda to the Military Rehabilitation Compensation Bill 2003
Department of Veterans Affairs Incapacity Policy Manual (13 September 2017)
MRCA Rehabilitation Principles & Protocols (18 May 2016)
REASONS FOR DECISION
The Hon. Matthew Groom, Senior Member
24 March 2023INTRODUCTION
The substantive matter in this application involves a review of a decision of the respondent dated 9 December 2015. That decision affirmed an earlier decision of the respondent dated 19 June 2015 that determined the applicant’s rehabilitation program was closed and that deemed the applicant to be able to earn an amount of $748.80 per week pursuant to the provisions of the Military Rehabilitation and Compensation Act 2004 (MRC Act).
In the course of the substantive matter the respondent has sought access to inspect various clinical records produced under summons which it claims are relevant to the matters before the Tribunal. More specifically, the documents the respondent seeks to access are those identified as relevant in the schedule to Appendix A annexed to the respondent’s written submissions dated 18 October 2022 (summonsed materials).
The applicant requested an interlocutory hearing in respect to three preliminary matters he sought a determination by the Tribunal on prior to proceeding to a final hearing. Those preliminary matters involved a statutory interpretation question, a jurisdictional question and also a question in relation to the respondent’s access to the summonsed material. More specifically, the preliminary issues raised by the applicant were whether:
(a)the deeming decision of actual earnings is within the scope of the Tribunal’s review;
(b)the jurisdiction of the Tribunal extends to consideration of facts and circumstances up to the date of the Tribunal’s decision; and
(c)leave is granted to the respondent to inspect and rely on the summonsed materials.
An interlocutory hearing was held on 24 February 2023. At the conclusion of the hearing the Tribunal made the decision as set out above and gave oral reasons. A request was subsequently made for written reasons which are set out below.
CONTENTIONS
The applicant contends that the Tribunal’s jurisdiction with respect to the substantive matter is limited in two ways.
First, the applicant contends that as, at the date of the decision, the applicant was working in “suitable employment” and that the weekly amount he was earning in that work was nil, there is no discretion within section 181 of the MRC Act to enable the Tribunal to deem the applicant as able to earn an amount other than nil. The applicant contends that, as a matter of statutory construction, it is not open to the Tribunal to reach any other conclusion in respect of the applicant’s actual earnings for the purpose of section 181 of the MRC Act. The applicant also contends that his reading of the section is consistent with the broader objectives of the legislation including as referenced in the policy and explanatory memoranda relevant to the section.
Secondly, the applicant contends that the Tribunal’s jurisdiction is limited to the facts and circumstances as they existed at the date of the original decision, namely, 19 June 2015. The applicant contends the Tribunal has no power to consider facts and circumstances after that date and to do so would be procedurally unfair to the applicant.
Consistent with this latter contention, the applicant also contends that the summonsed material is not relevant and that, therefore, leave should not be granted to the respondent to inspect the documents.
The respondent disputes the applicant’s interpretation of section 181 of the MRC Act and maintains that it is within the jurisdiction of the Tribunal to consider applying a deemed weekly earning capacity and that it can only make that determination appraised of all of the facts at a final hearing.
The respondent also disputes that the Tribunal’s jurisdiction is constrained in the manner put by the applicant and seeks access to the summonsed material on the basis that the material is relevant to the issues in dispute.
CONSIDERATION
The Tribunal has carefully considered the parties submissions and has also reviewed the MRC Act together with the relevant policy and explanatory memoranda referred to in the submissions. The Tribunal has also considered the stated purpose of the legislative scheme as well as the relevant Tribunal documents.
Having done so, the Tribunal accepts the respondent’s contention that the deeming decision of actual earnings is within the scope of the Tribunal’s review as it clearly formed part of the decision and was within the power of the delegate to make.
The Tribunal is also satisfied the clear wording of section 181(1) enables the Tribunal in determining actual earnings to “have regard to any other matter it considers relevant”. The Tribunal accepts the respondent’s contention that the section includes a residual discretion which, while not unfettered, is very broad and which would allow, in appropriate circumstances, a finding of actual earnings of an amount different to that which a person may have “earned” while in suitable work. More specifically, having regard to the purpose of the MRC legislative scheme including as reflected in the explanatory memoranda and relevant Department policies, the Tribunal is satisfied that there is no basis for concluding that the discretion should be read narrowly as contended by the applicant. The Tribunal is satisfied that it is clear from the plain reading of section 181 of the MRC Act that the discretion is broad and intended to be so. While section 181(2) requires the decision maker to have regard to the weekly amount the person is earning in suitable work, section 181(1) includes an overarching discretion for the decision maker to also have regard to any other matter the decision maker considers relevant in determining the weekly amount a person is able to earn in suitable work. The Tribunal is satisfied that in the context of self-employment there maybe circumstances where it is appropriate to have regard to broader considerations when determining actual earnings, for example, where a business profit may not be reflective of an applicant’s actual ability to earn. See for example the Federal Court decision in Comcare v Davies [2008] FCA 393 which has been applied by a number of AAT decisions including Warnock and Comcare [2008] AATA 567. This is not to suggest that the decision maker can ignore the applicant’s “earnings”. They cannot. Rather, the residual discretion enables broader considerations to be taken into account when determining the weekly amount a person is able to earn.
The Tribunal accepts the applicant’s contention that the legislation is intended to be beneficial and should be read in that context. However, in the Tribunal’s view, the broad discretion in section 181(1) is consistent with such a reading. In the Tribunal’s view, it enables a broad discretion to address a case such as the present which involves a very specific set of circumstances in a flexible manner consistent with an appropriate application of beneficial legislation. There is nothing in the wording of the discretion to suggest that it can only be applied to the detriment of the applicant and not in a manner beneficial to the applicant. See for example, Woodbridge v Comcare [1994] FCA 1249 at [46] to [48]. The Tribunal acknowledges that the authorities cited are not in the context of the MRC Act but, rather, in the context of section 19 of the Safety Rehabilitation and Compensation Act 1988. The Tribunal acknowledges that there are some differences in the structure and wording of the two legislative schemes. In the MRC legislative scheme the residual discretion sits within subclause 1 of section 181 which is then followed by a number of more specific subclauses. The Tribunal is satisfied that nothing material turns on that. The Tribunal rejects the applicant’s contention that to read subclause 1 as giving broad application leaves the more specific provisions in sections 181(3) to (5) with no work to do. In the Tribunal’s view, it is clear from the structure of the section that the residual discretion to have regard to other matters considered relevant is intended to have broad application in applying the section as a whole, and that the remaining subclauses address more specific circumstances in which regard must be had to particular matters. The Tribunal also acknowledges that the MRC legislative scheme places an increased focus on rehabilitation and facilitating veterans back into suitable work. The wording of the MRC Act reflects this purpose. However, the Tribunal is satisfied that there is nothing in the wording or purpose of MRC Act which would cause the Tribunal to not accept the application of the reasoning of the authorities cited in support of an interpretation of section 181(1) of the MRC Act that recognises the existence of broad residual discretion to have regard to other matters considered relevant.
The Tribunal accepts the applicant’s contention that a determination with respect to suitable work is required to be undertaken before applying section 181. However, this does not alter the Tribunal’s view on the existence of a broad residual discretion as already described. In the Tribunal’s view, these are matters that are appropriately determined by the Tribunal at the final hearing. The Tribunal also does not accept that the more specific provisions in sections 181(3) to (5) should cause the Tribunal to apply a narrower reading of the residual discretion in section 181(1) as contended by the applicant. Ultimately, the Tribunal’s conclusion with respect to actual earnings for the purpose of the MRC Act and the appropriate application of section 181 is, again, a matter that can only be determined having had regard to all the relevant circumstances of the case at a final hearing.
The Tribunal is also satisfied, consistent with the principles espoused in Shi v Migration Agents Registration Authority (2008) 235 CLR 286, that unless there is a specific statutory basis for confining the consideration of further material, in reviewing the decision the Tribunal should have regard to all information available up to the date of the Tribunal’s decision. Having reviewed the MRC Act and considered its broader purpose, the Tribunal is satisfied that there is no basis for concluding that the Tribunal’s review should be limited to the facts and circumstances that existed as at the date of the decision under review. Nor does the Tribunal accept that the manner in which the respondent has conducted its case should cause the scope of the review to be limited in the manner claimed by the applicant. The task for the Tribunal is to make the decision afresh and in doing so it should have regard to all relevant evidence up until the date of that decision.
For these reasons, the Tribunal is satisfied that the further summons materials are relevant to the questions to be determined by the Tribunal and, accordingly, leave is granted to the respondent to inspect and rely on the summons materials as set out in Appendix A to its 18 October 2022 submissions.
DECISION
The Tribunal decides that:
(a)the deeming decision of actual earnings is within the scope of the Tribunal’s review;
(b)the jurisdiction of the Tribunal extends to consideration of facts and circumstances up to the date of the Tribunal’s decision; and
(c)leave to be granted to the respondent to inspect and rely on the summons materials identified as relevant in the schedule to Appendix A annexed to the Respondent’s written submissions dated 18 October 2022.
I certify that the preceding nineteen (nineteen) paragraphs are a true copy of the reasons for the decision herein of The Hon. Matthew Groom, Senior Member
....................[sgd]....................................................
Associate
Dated: 24 March 2023
Date of hearing:
24 February 2023
Applicant:
In person
Respondent’s Representative:
Mr Ben Dubé
Solicitors for the Respondent:
Sparke Helmore
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