Hood and Comcare

[2011] AATA 595

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2011] AATA 595

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No 2010/4159

GENERAL ADMINISTRATIVE DIVISION		)
Re		STEVEN HOOD

Applicant

And COMCARE

Respondent

DECISION

Tribunal Senior Member K Bean

Date26 August 2011

PlaceAdelaide

Decision Pursuant to s 42B(1) of the Administrative Appeals Tribunal Act 1975, the application is dismissed.

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

K BEAN
  (Senior Member)

CATCHWORDS

PRACTICE AND PROCEDURE – Dismissal of application – Applicant does not dispute the correctness of the decision under review but seeks to ventilate other grievances – Application futile and therefore “frivolous” within the meaning of s 42B of the AAT Act – Application dismissed.

REASONS FOR DECISION

26 August 2011   Senior Member K Bean   

introduction

1.The applicant in this matter, Mr Hood, has applied for review of a decision of the respondent in relation to the amount payable to him under the Safety, Rehabilitation and Compensation Act 1988 (the SRC Act) for permanent impairment flowing from his compensable condition of “adjustment disorder with anxiety and depressed mood”.  However the respondent contends that he no longer disputes the correctness of that decision, but seeks to maintain the proceedings in order to ventilate other grievances.  Accordingly, on 6 May 2011, the respondent applied to have the application dismissed on the grounds that it was “frivolous and vexatious” within the meaning of s 42B(1) of the Administrative Appeals Act 1975 (the AAT Act) and on 23 June 2011 a preliminary hearing was held in relation to that issue.

legislation and issue

2.Section 42B of the AAT Act relevantly provides as follows:

42B     Power of Tribunal where a proceeding is frivolous or vexatious

(1)Where an application is made to the Tribunal for the review of a decision, the Tribunal may, at any stage of the proceeding, if it is satisfied that the application is frivolous or vexatious:

(a)   dismiss the application; and

(b)if the Tribunal considers it appropriate, on the application of a party to the proceedings, direct that the person who made the application must not, without leave of the Tribunal, make a subsequent application to the Tribunal of a kind or kinds specified in the direction.”

3.Therefore the issue currently before me is whether this application should be dismissed pursuant to ss 42B(1) of the AAT Act on the grounds that it is “frivolous or vexatious” within the meaning of that provision.

background

4.There is no dispute between the parties that the respondent is liable under s 14 of the SRC Act for the conditions of “adjustment disorder with anxiety and depressed mood” and “transient ischaemic attack” (TIA). As a result of an agreement reached between the parties in a related application, No. 2010/3777, the respondent has also accepted liability to pay compensation to Mr Hood under section 14 of the SRC Act in relation to the condition “migraine with aura”.

5.However the subject of this application is a decision made by the respondent in relation to a far more specific issue, that being the non-economic loss amount payable to Mr Hood in relation to permanent impairment flowing from his accepted psychiatric condition.  In the decision of which Mr Hood seeks review, the delegate concluded that as a result of a reduction in the “non-economic loss” scores allocated to him, from “2” to “0”’ in relation to “pain” the amount payable to Mr Hood in respect of non-economic loss should be reduced from $14,816.29 to $12,866.78.

6.As was explained in the respondent’s written submissions, the reduction in the allowance for “pain” was the result of a realisation by the delegate that the score of 2 which had been included in the original calculation in fact related to the TIA injury suffered by Mr Hood and not to the psychological injury.  As the respondent pointed out in its written submissions “‘it was the latter injury only which was the subject of the claim for permanent impairment and non-economic loss and of the determination dated 21 July 2010”, containing the assessment of Mr Hood’s entitlement to compensation for permanent impairment.

mr hood’s contentions

7.Significantly, as he confirmed at the hearing before me, Mr Hood does not now dispute that the score for “pain” reflected in the reviewable decision is correct and that it was appropriate to reduce his score for “pain” in relation to his psychological injury from 2 to 0.

8.Nevertheless, Mr Hood contends that this application should not be dismissed as he has other grievances against the respondent, with whom he said he has been in a “constant battle” since approximately February 2009.  He referred to the fact that in the related matter, 2010/3777, the respondent had rejected liability for “migraine (focal)” and said that as a result of that decision, he had been forced to seek advice and incur costs in the vicinity of $5000.  He also said that since then, the respondent had disputed his entitlement to the cost of pharmaceuticals which had caused him significant stress and difficulty.

9.In part, his grievance appeared to be that in his view there was no proper basis for the respondent to reject liability for “migraine” as well as disputing its liability to meet the cost of medical expenses associated with that condition, and that he was put to unnecessary expense and subjected to unwarranted stress and inconvenience as a result of the respondent’s approach to his claims.  As noted above, these issues now appear to have been resolved as a result of a consent decision pursuant to which the respondent has accepted liability for “migraine with aura” as well as treatment expenses associated with that condition up to 2 July 2007.

consideration

10.In the circumstances, it is not difficult to understand Mr Hood’s desire to ventilate his grievances and have them adjudicated upon.  As the respondent has correctly pointed out however, the jurisdiction of this Tribunal is very specifically defined and entirely limited to considering the correctness of the decision under review.  Put simply, I have no authority to adjudicate upon issues which do not relate to the correctness of the decision under review.  That being the case, whilst I understand what appeared to be Mr Hood’s genuine frustration, I do not have authority to rule upon or take any action in relation to his grievances and his desire to ventilate those grievances is not a sufficient reason for this application to remain on foot if he does not dispute the correctness of the decision under review. 

11.As I have noted above, Mr Hood confirmed at the hearing that he did not dispute the correctness of the decision under review and having considered the material I am satisfied that the reviewable decision which changed his “pain” score from 2 to 0 was correct.  Given that my function is limited to reviewing the decision the subject of the application, it is therefore clear that there is no utility in the application remaining on foot.  It is clear in my view that the application cannot succeed and further that the only reason why Mr Hood seeks to have the application remain on foot is to ventilate matters which are not within my jurisdiction to consider.

12.In relation to costs, in the context of this matter Mr Hood could only establish an entitlement to costs if he achieved an outcome which was more favourable to him than the decision under review[1].  However as I have noted above, he no longer disputes the correctness of that decision and I am satisfied that the decision is correct.

[1] Safety, Rehabilitation and Compensation Act 1988, s 67(8)

13.For these reasons, although I do not consider the application to have been “frivolous” at the time it was made or in the ordinary lay meaning of that term, it has become clear that the application is futile and I therefore consider that it has also become “frivolous” in the technical sense of that word, and within the meaning of section 42B of the AAT Act.

14.As the application is futile and is being maintained for reasons which do not relate to the correctness of the decision under review, I have therefore decided that it is appropriate for me to dismiss the application pursuant to section 42B(1) of the AAT Act.

decision

15.Pursuant to s 42B(1) of the AAT Act, the application is dismissed.

I certify that the 15 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member K Bean

Signed:         .....................................................................................
           J Scobie        Associate

Date/s of Hearing  23 June 2011
Date of Decision  26 August 2011
Counsel for the Applicant         Self Represented
Counsel for the Respondent     Mr A D MacGregor
Solicitor for the Respondent     Sparke Helmore