Koutroumanis and Decision Maker
[2024] AATA 803
•5 March 2024
Koutroumanis and Decision Maker [2024] AATA 803 (5 March 2024)
Division:GENERAL DIVISION
File Number: 2024/0285
Re:Eleftherios Koutroumanis
APPLICANT
AndDecision Maker
RESPONDENT
DECISION
Tribunal:Senior Member D. J. Morris
Date:5 March 2024
Date of written reasons: 28 March 2024
Place:Melbourne
The application is dismissed under s 42A(4) of the Administrative Appeals Tribunal Act 1975 because the Tribunal is satisfied that the decision is not reviewable
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Senior Member D. J. Morris
Catchwords
PRACTICE AND PROCEDURE – applicant has brought decision to Tribunal for review – applications out of time – applicant also misled by fact that documents advised him to seek review by Administrative Appeals Tribunal – that tribunal was in fact a state tribunal – state tribunal since abolished – no power to review decisions of which applicant aggrieved because made under Victorian statutes – pathway for applicant may be to seek review by replacement state administrative decisions tribunal – application dismissed for want of jurisdiction – written reasons provided
Legislation
Administrative Appeals Tribunal Act 1975 (Cth)
Administrative Appeals Tribunal Act 1984 (Vic)
Tribunals and Licensing Authorities (Miscellaneous Amendments) Act 1998 (Vic)
Victorian Civil and Administrative Tribunal Act 1998 (Vic)
Cases
Negri v Secretary, Department of Social Services [2016] FCA 879
REASONS FOR DECISION
Senior Member D. J. Morris
28 March 2024
Mr Eleftherios Koutroumanis lodged an application with this Tribunal on 11 January 2024 in which he stated, in the part of the form where an applicant can set out why he or she claims a decision is wrong, as follows:
Workers’ compensation matter, file closed without being informed, found this out 10 years ago. Applicant believes it has been through courts, but isn’t sure, but thinks they used incorrect medical records due to incorrect spelling of name.
HEARING
On 5 March 2024, the Tribunal held an interlocutory hearing at the Melbourne registry. The Applicant appeared in person, assisted by Mr Stephen Mason, an advocate from the Australian Patients Association. The Tribunal, at the Applicant’s request, engaged an interpreter in the Greek language, who appeared by video link.
In his application, Mr Koutroumanis stated that he has poor hearing and people need to speak loudly. In the event, he could not hear the interpreter. Mr Mason advised the Tribunal that he had known the Applicant for six years and could make himself understood to Mr Koutroumanis, who was able to speak some English. The Tribunal noted that the Applicant is of advanced age (83) and the language barrier contributes to difficulties he has making himself understood. The Tribunal considers that, because of this, he is in the category of a vulnerable applicant.
At the conclusion of the hearing, the Tribunal made a decision that it did not have jurisdiction over the decision or decisions of which the Applicant is aggrieved, because they were made under Acts of the Parliament of Victoria.
Because of the vulnerability of the Applicant, the Tribunal told Mr Koutroumanis and Mr Mason that it would provide written reasons to provide a more detailed explanation for its decision. These written reasons explain in more detail the decision that the Tribunal conveyed orally but, consistent with the reasoning of Bromberg J in Negri v Secretary, Department of Social Services [2016] FCA 879 (at [27]), new reasoning has not been introduced.
The Tribunal formally records its thanks to Mr Mason for his assistance as a patient advocate during the interlocutory hearing. The Tribunal also thanks the interpreter.
APPLICANT’S CONTENTIONS
The Applicant conveyed to the Tribunal that he is aggrieved by a decision of the Transport Accident Commission of Victoria (‘the Commission’) in relation to acceptance of certain injuries he sustained in a motor vehicle accident on 31 October 1976.
The Tribunal notes in the material the Applicant provided that he was driving a taxi along the Tullamarine Freeway when a person unknown threw a beer bottle from an overhead walkway which struck the taxi’s windscreen. This caused him to brake sharply, and several following vehicles then crashed into the rear of his vehicle, causing a severe collision. Mr Koutroumanis suffered several injuries including the loss of vision in his right eye. A letter from his then solicitors written in 1979 states that he had been unable to return to work owing to the aftermath of the collision, and was now in receipt of an invalid pension.
From the material, it would appear that in the 1980s and subsequently there were proceedings before the Workers’ Compensation Board (Victoria) and separate proceedings before the Victorian Guardianship and Administration Board where that Board appointed the Public Guardian as Mr Koutroumanis’s guardian. The documents record that Mr Koutroumanis appealed to the ‘Administrative Appeals Tribunal’ but for reasons not relevant to these reasons, that appeal was struck out.
In October 2022, Mr Koutroumanis made a request under the Freedom of Information Act1982 (Vic) to the Commission for the following:
All copies of all accident claims, medical records, psychiatric reports, impairment assessments, impairment decisions, order and judgments pertaining to:
Eleftheros Koytroymanis
Eleftherious Koutroumanis
Mr E. Koutramanis
Elefthirios Koutroumanis
E. Koutroomanis
Elefterios Kourroumanis
Mr E. Koutroumais
Mr E. Koytoymanis.
The Commission interpreted the Applicant’s request as relating to different variations on the spelling of his own name. In its response dated 17 November 2022, the Commission advised Mr Koutroumanis as follows:
The TAC has located two claim files relating to your request – 94/11319 & 93/07291.
Collectively, these contain 600 electronic documents (numbering 3000 pages), 19 volumes of hard file legal documents & three volumes of no fault hard files.
I am writing to advise that the TAC intends to refuse to process your request under section 25A(1) of the FOI Act because processing the request would substantially and unreasonably divert the resources of the TAC from its other operations.
The Applicant did not provide the second page of this letter, so it is not clear whether the Commission went on to advise of any entitlement he had for the refusal decision to be reviewed.
Mr Koutroumanis considered that part of the reason some of his injuries were not accepted as compensable was because some of his medical records were not taken into account. The reason that was so is that that he contends the hospital misspelt his name, so when his records were called for, an incomplete picture was conveyed to the Commission decision-maker.
Another document Mr Koutroumanis provided was a letter to him from the Commission dated 18 March 1994 in relation to an FOI request he had made. The FOI Review Officer wrote the following:
I have examined the remaining exempt documents and have reached the conclusion for the reasons previously stated, that the original decision should not be varied.
If you are dissatisfied with my decision you may within 60 days of receipt of this letter apply to the Administrative Appeals Tribunal for review.
(Emphasis added.)
CONSIDERATION
The Tribunal does not have an inherent power of review. Section 25(1) of the Administrative Appeals Tribunal Act 1975 (Cth)(‘the AAT Act’) provides:
Tribunal may review certain decisions
Enactment may provide for applications for review of decisions
(1) An enactment may provide that applications may be made to the Tribunal:
(a) For review of decisions made in the exercise of powers conferred by that enactment; or
(b) For the review of decisions made in the exercise of powers conferred, or that may be conferred, by another enactment having effect under that enactment.
Importantly, s 3 of the AAT Act provides, relevantly, that “enactment” means an Act, i.e. an Act of the Parliament of the Commonwealth of Australia.
It would appear that Mr Koutroumanis has two grievances. The first is that he believes the Commission did not find some of the injuries he sustained in the 1976 crash were compensable as the medical records examined showed an incomplete picture of his medical history because some were stored under different variations of his name.
The second grievance he has is the 2022 refusal by the Commission to provide certain documents to him as a result of his freedom of information request.
The insurmountable obstacle for the Applicant in relation to these two grievances is that they are decisions made, or apparently made, by Victorian State agencies acting under State legislation.
State tribunal with same name
On review of the documents, the Tribunal understands why Mr Koutroumanis has brought his application to this Tribunal. That is because, as set out above, several pieces of correspondence he received advised him to seek review by the ‘Administrative Appeals Tribunal.’ It is most unfortunate that the writers of those letters did not make explicit that the tribunal to which they were referring was the Victorian State tribunal which (at the time) had the same name as this Tribunal.
The (Victorian) Administrative Appeals Tribunal was established under the AdministrativeAppeals Tribunal Act 1984 (Vic). That Act was repealed on 1 July 1998 by s 310(a) of the Tribunals and Licensing Authorities (Miscellaneous Amendments) Act 1998.
It was explained to the Applicant and his advocate during the hearing that the consolidated administrative review tribunal for decisions under Victorian Acts of Parliament is now the Victorian Civil and Administrative Tribunal (VCAT). VCAT was established under the Victorian Civil and Administrative Tribunal Act 1998 (Vic) and came into operation on 1 July 1998 (Victorian Government Gazette, 18 June 1998, p 1511).
The Tribunal did not express a view as to whether the decisions Mr Koutroumanis seeks to be reviewed are, in fact, reviewable by VCAT. That is not within the competence of this Tribunal. However, I did note that owing to the date of the apparent decisions, it would be likely that, if they are, or either of them is, an extension of time would probably be necessary.
In summary, the pathway for the Applicant if he wishes to pursue potential review of the workers’ compensation or freedom of information decisions is through VCAT or, failing that, through the Courts of Victoria. This Tribunal does not have power to review decisions under State law. Mr Mason said he understood, and he and the Applicant would make an approach to VCAT in relation to the matters Mr Koutroumanis wishes to pursue.
This pathway was explained to the Applicant and Mr Mason at the conclusion of the hearing.
DECISION
The application is dismissed under s 42A(4) of the Administrative Appeals Tribunal Act 1975 because the Tribunal is satisfied that the decision is not reviewable.
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
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Associate
Dated: 28 March 2024
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