Kowalski and Chief Executive Officer of Medicare Australia

[2009] AATA 427

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2009] AATA 427

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No 2009/1325

GENERAL ADMINISTRATIVE DIVISION		)
Re		KAZIMIR KOWALSKI

Applicant

And CHIEF EXECUTIVE OFFICER OF MEDICARE AUSTRALIA

Respondent

DECISION

Tribunal Deputy President D G Jarvis

Date2 June 2009

PlaceAdelaide

Decision For reasons given orally, the tribunal decides that it has no jurisdiction to review the matter which is the subject of the applicant’s application to this tribunal, and will not proceed further with the application.

D G Jarvis
  (Signed)
  Deputy President

CATCHWORDS

JURISDICTION – Medicare – statement by claimant of past benefits not provided to Medicare – no decision by Medicare Australia CEO as to correctness of statement – held that tribunal has no jurisdiction.

Health and Other Services (Compensation) Act 1995 (Cth), ss 18 and 23

Re PG Laird and Australian Broadcasting Tribunal (AAT 78/122; 10 May 1979)

WRITTEN REASONS FOR ORAL DECISION

2 June 2009   Deputy President D G Jarvis

1.      In this matter I decided that I had no jurisdiction in these proceedings, and I gave oral reasons for my decision.  The applicant, Mr Kazimir Kowalski, then indicated that he regarded my decision as incorrect and that he would lodge an appeal to the Federal Court, and he requested a copy of my reasons.  The following is an edited version of my oral reasons.

2.      Mr Kowalski, lodged an application with the tribunal on 1 April 2009 whereby he seeks a review of a decision which he described as “copy of decision dated 11 March 2009 & 25 March 2009 is attached & a copy of my letter dated 17.3.09 is also attached.”

3.      The letters of 11 and 25 March 2009 were from Medicare Australia to Mr Kowalski.  The first letter advised Mr Kowalski that unless it was otherwise “legally determined”, Medicare was “entitled to accept the Heads of Agreement” (being a document that evidenced the terms of settlement of a claim by Mr Kowalski against Mitsubishi Motors Australia Limited (MMAL)) “as a declaration of the agreed terms of settlement between the parties.”  To that extent, that letter evidences a decision by Medicare.  The letter then refers to an earlier letter dated 17 February 2009.  This related to the provision of information to Medicare by MMAL.  The letter of 11 March 2009 goes on to refer to Medicare’s request for Mr Kowalski to return to it a completed history statement (“Statement”) and statutory declaration by 18 March 2009, to enable Medicare to determine whether he might be required to reimburse the Commonwealth for any past paid Medicare and other benefits received in the course of treatment of his compensable injuries.

4.      The second letter referred to in the application for review, namely the letter of 25 March 2009 from Medicare, reiterates that Medicare was entitled to accept the Heads of Agreement as a declaration of the agreed terms of settlement between Mr Kowalski and MMAL until it was otherwise legally determined.  It evidences no further decision by Medicare, and repeats the request for Mr Kowalski to return the Statement to it, which it had first sent to Mr Kowalski under cover of a letter dated 19 January 2009.  I understand from the argument of the parties that that request is still outstanding and that the Statement has still not been returned to Medicare.

5. The letter from Mr Kowalski to Medicare of 17 March 2009, which Mr Kowalski also enclosed with his application for review, did not constitute or evidence a decision by the Medicare Australia CEO. The thrust of the letter appears to be to complain that MMAL had failed to provide information to Medicare as required by s 23 of the Health and Other Services (Compensation) Act 1995 (Cth) (Medicare Act).

6.      It is well established that this tribunal, unlike a court, has no inherent jurisdiction to review administrative decisions, and that its jurisdiction must be derived from legislation other than the provisions of the Administrative Appeals Tribunal Act 1975 (Cth) : see for example Re PG Laird v Australian Broadcasting Tribunal (AAT 78/122; 10 May 1979). In the present case the relevant legislation is the Medicare Act. Under s 23D(1) of that Act, jurisdiction is conferred on this tribunal to review certain decisions made by the Medicare Australia CEO. This section provides in effect that application may be made to this tribunal for review of a decision by that person that a statement under ss 18 or 23A or an amended statement under s 23B is not substantially correct.

7. The two letters identified by Mr Kowalski in his application to this tribunal do not refer to any decision by the Medicare Australia CEO that a statement made by him under ss 18 or 23A, or an amended statement under s 23B, is not substantially correct. Indeed, Medicare contends that Mr Kowalski has not made any statement under s 18. The documents that I have before me indicate to me that that submission is correct. Mr Kowalski contended that a letter from him to Medicare of 23 January 2009 does constitute a statement that would comply with s 18 of the Medicare Act. I do not accept that contention. Mr Kowalski did provide Medicare with an extract of a judgment by Justice Bleby in certain proceedings in the Supreme Court of South Australia and asserted that his Honour had found that the only compensation that MMAL had paid to him was found in that extract. On my reading, the extract merely refers to MMAL’s outstanding liability to Mr Kowalski for certain damages, loss, medical expenses and costs. However that may be, the letter from Mr Kowalski of 23 January 2009 does not constitute a statement pursuant to s 18 of the Medicare Act.

8. There is no evidence before me that the Medicare Australia CEO has ever received a statement from Mr Kowalski under ss 18 or 23A of the Medicare Act, or an amended statement under s 23B, or that the Medicare Australia CEO has made a decision of the kind referred to in s 23D(1). On the contrary, I am informed by the respondent’s solicitor, Mr Sathianathan, that at this stage the Medicare Australia CEO has not made any decision as to whether all or part of the services set out in a Medicare history statement listing medical services previously received by Mr Kowalski were provided for the treatment of compensable injuries or illnesses that he sustained or suffered.

9.      In these circumstances there is no decision that has been made by the Medicare Australia CEO that is reviewable by this tribunal.  If and when the Medicare Australia CEO makes such a decision, it may be open to Mr Kowalski to apply to this tribunal for review.

10. This matter has now, however, been complicated by the fact that Mr Kowalski did not return the Statement within the time originally fixed, and so the deeming provisions of s 18(5) of the Medicare Act have come into play. Mr Sathianathan has explained that Medicare’s policy is nevertheless to give compensable persons an opportunity to check and identify those expenses or services which have been rendered in the course of treatment as a result of compensable injuries or illnesses, and then to make a further decision in the light of further information provided. In accordance with this policy I assume that Medicare will still invite Mr Kowalski to identify the relevant services. If Medicare does so, and if the Medicare Australia CEO makes a decision on the basis of the information he provides, this will have occurred in accordance with the Medicare policy. That may not result in a decision of the kind that is contemplated by s 23D(1) of the Medicare Act, and therefore any such decision may not be reviewable by this tribunal.

11.     However, it is not necessary for me to decide at this stage whether a decision made in pursuance of Medicare’s policy would give rise to a reviewable decision under s 23D.  All I need to do is to decide whether the present application before this tribunal confers jurisdiction on the tribunal.  For reasons I have already explained, the tribunal does not have jurisdiction to review the decision referred to in the application for review lodged on 1 April 2009.

Decision

12.     For the reasons given orally, the tribunal decides that it has no jurisdiction to review the matter which is the subject of the applicant’s application to this tribunal, and will not proceed further with the application.

I certify that the 12 preceding paragraphs are a
true copy of the reasons for the decision
herein of Deputy President D G Jarvis

Signed:         .....................................................................................
           L. Staker  Associate

Date/s of Hearing  2 June 2009
Date of Decision  2 June 2009
Applicant  In Person
Counsel for the Respondent     Mr N Sathianathan

Solicitor for the Respondent     Office of Legal Counsel,

Medicare Australia