KOWALSKI ApplicantAndCHIEF EXECUTIVE OFFICER OF MEDICARE AUSTRALIA
[2009] AATA 980
•16 December 2009
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2009] AATA 980
ADMINISTRATIVE APPEALS TRIBUNAL )
) No 2009/4679
General Administrative DIVISION ) Re Kazimir Kowalski Applicant
And
Chief Executive Officer of Medicare Australia
Respondent
DECISION
Tribunal Senior Member Jill Toohey Date16 December 2009
PlaceSydney
Decision The application for an extension of time is dismissed. ................[sgd]..............................
Senior Member
CATCHWORDS
PRACTICE AND PROCEDURE - extension of time - whether there is a reviewable decision - merits of substantive application – jurisdiction - factors to be considered – application dismissed
REASONS FOR DECISION
16 December 2009 Senior Member Jill Toohey Introduction
1.On 30 September 2009 Mr Kazimir Kowalski lodged an application with the Tribunal for review of a decision said to have been made by the Chief Executive Officer of Medicare (CEO) on 30 July 2009.
2.Mr Kowalski’s application was lodged outside the time prescribed in s 29(1)(d) of the Administrative Appeals Tribunal Act 1975 (AAT Act). On 2 October 2009 he lodged a further application, seeking an extension of time in which to lodge the first.
3.For the reasons set out below, I am not satisfied that an extension of time should be granted.
Background
4.Mr Kowalski has lodged a series of applications to this tribunal and the Federal Court concerning correspondence from the CEO about the settlement of his workers compensation claim against Mitsubishi Motors Australia Ltd. Mr Kowalski maintains that statements in the CEO’s letters describing certain settlement payments as “compensation” constitute decisions under the Health and Other Services (Compensation) Act 1995 (HOSC Act) that are reviewable by this tribunal. In particular, he objects to this description because, he says, it has implications for other litigation in which he is involved.
5.Mr Kowalski’s current application seeks review of what he says is a decision contained in a letter to him from the Australian Government Solicitor, on behalf of the CEO, dated 30 July 2009, concerning proceedings instituted by Mr Kowalski in the Federal Court.
6.Previous letters from the CEO have been the subject of similar applications.
7.On 1 April 2009 Deputy President Jarvis dismissed an application by Mr Kowalski in relation to a letter from the CEO dated 17 February 2009. The application attached a copy of the letter but did not specify which part or parts constituted the relevant decision. It simply stated “The decision is wrong in fact and wrong in law”. Deputy President Jarvis determined that the Tribunal had no jurisdiction to review the matter which was the subject of the application. His oral reasons have not been transcribed.
8.Also on 1 April 2009, Mr Kowalski lodged an application for review of decisions of the CEO said to be contained in letters dated 11 March and 25 March 2009. On 2 June 2009, for reasons set out in his decision (Kazimir Kowalski and Chief Executive Officer of Medicare Australia [2009] AATA 427), Deputy President Jarvis determined that the Tribunal had no jurisdiction to review the matter which was the subject of the application because no reviewable decision had been made.
9.Mr Kowalski sought review of that decision in the Federal Court. On 23 September 2009, Mansfield J upheld the Tribunal’s decision, dismissing the appeal and ordering Mr Kowalski to pay the respondent’s costs. His judgment refers to further letters on which Mr Kowalski relied, none of which Mansfield J considered advanced Mr Kowalski’s position: Kowalski and Chief Executive Officer of Medicare Australia [2009] FCA 1072. Mr Kowalski’s current application for review rests on comments by Mansfield J in his judgment (see below).
10.Mr Kowalski sought leave to appeal Mansfield J’s decision. On 2 December 2009 Bennett J dismissed his application and ordered him to pay the respondent’s costs. Her judgment details the history of the applications and her reasons for finding that Mr Kowalski had not demonstrated any error of law by Mansfield J in relation to the Tribunal’s decision that it lacked jurisdiction: Kowalski and Chief Executive Officer of Medicare Australia [2009] FCA 1420.
Legislation
11.Section 29 of the AAT Act deals with the time within which an application is to be lodged with the Tribunal. Section 29(1)(d) and s 29(2) provide, in effect, that an application for review must be lodged within 28 days after written notice of a decision was given to the applicant.
12.The Acts Interpretation Act1901 and the Evidence Act1995 (Cth) deal with the question of when documents posted to a person are presumed to be received. The effect of s 160 of the Evidence Act1995 (Cth) is that, unless evidence raises sufficient doubt otherwise, Mr Kowalski is taken to have received the CEO’s letter of 30 July 2009 on the fourth working day after it was posted.
13.It is not necessary to determine the precise day on which Mr Kowalski received the CEO’s letter. He makes no issue of the matter and agreed at the hearing of his application for an extension of time that he would have received the letter around the first week of August 2009 and that 28 days later was some time around the first week of September 2009. By any calculation, 28 days had expired before he lodged his application for review.
14.The Tribunal may extend the time for the making of an application if it is satisfied that it is reasonable in all the circumstances to do so: s 29 (7) of the AAT Act.
15.The respondent submits that CEO’s letter of 30 July 2009 does not contain a decision that is capable of review by the Tribunal. If the respondent is correct, and no such decision was given to Mr Kowalski, then strictly speaking, s 29 (1)(d) is not engaged.
16.Whether there is a reviewable decision is a relevant consideration in determining whether to grant the extension of time but it is not necessary to determine that question at this point. I think the sensible way to proceed is on the basis that the application for review is out of time by approximately four weeks, and to decide whether there are circumstances that make it reasonable to allow it to proceed.
Mr Kowalski’s contentions
17.The CEO’s letter dated 30 July 2009 was not the subject of Mr Kowalski’s earlier applications. Again, he does not specify what part or parts of it in particular constitute a decision by the CEO; he has simply attached a copy to his application for review, stating “The decision is wrong in fact and wrong in law”.
18.It was apparent at the hearing of his application for an extension of time that Mr Kowalski remains aggrieved by any suggestion by the CEO that certain settlement payments amounted to compensation. His argument, should his current application be allowed to proceed, would be essentially the same argument as that already dealt with twice by the Tribunal and twice by the Federal Court.
19.Mr Kowalski maintains that it was only when he read Mansfield J’s judgment, handed down on 23 September 2009, that he became aware that he could lodge his present application for review. He maintains that justice requires that he be given an extension of time, that the merits of his substantive application are in effect settled by Mansfield J’s judgment, and that no prejudice would flow to the respondent from an extension.
20.Mr Kowalski’s relies on a passage in which Mansfield J refers (at [19]) to the CEO’s letter of 30 July 2009, and states:
Whilst that letter of 30 July 2009 might indicate that, now, Medicare has made a decision by giving notice under s 23B(1) of the HOSC Act that Medicare considers [Mr Kowalski’s] statement to Medicare under s 23A is not substantially correct (because it asserted that no compensation had been paid pursuant to [the settlement] agreement), that was not the state of affairs at the time of the Tribunal’s decision.
21.Mr Kowalski maintains that, in this passage, Mansfield J determined that the CEO’s letter of 30 July 2009 contained a decision which the Tribunal now has jurisdiction to review. Indeed, he claims he has spoken directly to Mansfield J who has confirmed that this is just what he meant. I do not accept either of these assertions.
The respondent’s contentions
22.The respondent contends that the “decision” that certain settlement payments to Mr Kowalski amounted to compensation was no more than a finding of fact.
23.The respondent further contends that, even if the letter of 30 July 2009 could be said to contain a “decision”, it is not one reviewable by the Tribunal. The respondent says the substantive application is bound to fail and the extension of time should be refused. Further, that finality of government decision-making is an important consideration.
24.The written reasons of Deputy President Jarvis, and the judgments of Mansfield J and Bennet J have dealt at length with the provisions by which the Tribunal has power to review a decision under the HOSC Act. It is only necessary to say that nothing in the letter of 30 July 2009 discloses a decision under s18, s23A or s23B of the HOSC Act, those being the only provisions in the Act which give rise to a right of review by the Tribunal. Even if a decision could be discerned from the CEO’s letter, it would not be one reviewable by the Tribunal. I accept the respondent’s contentions in this regard.
Should the extension of time be granted
25.In Hunter Valley Developments v Cohen (1984) 3 FCR 344, Wilcox J considered the factors guiding the discretion to extend time to include:
(a) whether there is an acceptable explanation for the delay;
(b) whether the applicant rested on their rights or made the decision-maker aware they contest the finality of the decision;
(c) any prejudice to the respondent;
(d)public considerations including the unsettling of others and established practices;
(e) the merits of the substantive application;
(f) fairness between the applicant and others in a like position; and
(g) whether it is fair and equitable in all the circumstances to extend time.
26.These factors are not exhaustive; no single factor is determinative; all may be relevant and the weight given to each is a matter for the Tribunal: Zizza v Federal Commissioner of Taxation (1999) 55 ALD 451 .
27.In Kathleen Gallo v The Honourable Justice Dawson (1990) 93 ALR 479, McHugh J considered an application for extension of time which relied upon the Rules of the High Court. The Rules vary in terms from s 29(7) of the AAT Act but the principles are still relevant. In particular, McHugh J said (at [2]) that, in such an application, “it is always necessary to consider the prospects of the applicant succeeding in the appeal”. See also Riverside Nursing Care Pty Ltd and Secretary, Department of Health and Aged Care [2003] FCA 1065 in which Merkel J noted the parties’ agreement that the merits of the application was a primary consideration in an application to extend time.
28.It is not necessary, or appropriate, to consider the merits of the substantive application in detail. Only “the most cursory examination of the merits to the proposed proceedings” is appropriate: Culley v Australian Securities and Investments Commission [2008] FCA 1784 at [6].
29.In this case, the most cursory examination makes clear that Mr Kowalski’s claim has no reasonable prospect of success because there is no decision capable of review by the Tribunal. For that reason alone, I would dismiss his application for extension of time.
30.I have also taken into account that I can find no acceptable reason for Mr Kowalski’s delay in making his application. Mansfield J’s comments cannot give the Tribunal jurisdiction. There is nothing new in the letter of 30 July 2009 insofar as “compensation” is concerned. It seems that Mr Kowalski has decided to treat any letter from the CEO that touches on that subject as a decision to be reviewed by the Tribunal.
31.I have also taken into account that, even if the CEO’s letter disclosed a reviewable decision, a review would serve no practical purpose. The letter of 30 July 2009 restated Medicare’s view that moneys paid to Mr Kowalski amounted to compensation, reimbursement of which “may” be sought under the HOSC Act. However, as Mansfield J noted, the letter confirms advice in an earlier letter, dated 27 July 2009, that Medicare did not intend to take any further action to recover moneys paid to Mr Kowalski under the terms of the settlement agreement. In making the costs order against Mr Kowalski, Mansfield J noted (at [20]) that he had pursued his claim “even though it is apparent that, for whatever reason, there is now no requirement upon him to repay moneys payable under the Heads of Agreement”.
32.At the conclusion of the extension of time hearing, I stated that I proposed to dismiss Mr Kowalski’s application. His interjections made it impossible to state my reasons. He made clear he intends appealing this decision and that he requires written reasons for that purpose. He also made clear that he requires the Tribunal to determine his substantive application because it has implications for other litigation in which he is involved. In all the circumstances, had the substantive application have been made within time, I would have considered dismissing it under s 42B(1) of the AAT Act as frivolous or vexatious.
33.Mr Kowalski’s application for extension of time is dismissed.
I certify that the 33 preceding paragraphs are a
true copy of the reasons for the decision
herein of Senior Member Jill TooheySigned: .................[sgd]..............................................................
Diana Weston AssociateDate of Hearing 16 December 2009
Date of Decision 16 December 2009
Date of Written Reasons 19 December 2009
Applicant Kazimir Kowalski
Solicitor for the Respondent Nim Sathianathan, Office of Legal Counsel
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