Luttrell and Military Rehabilitation and Compensation Commission

[2013] AATA 884

[2013] AATA 884  

Division	GENERAL ADMINISTRATIVE DIVISION
File Number	2013/2108
Re	Trevor Luttrell
APPLICANT
And	Military Rehabilitation and Compensation Commission
RESPONDENT

DECISION

Tribunal	Senior Member Bernard J McCabe
Date	12 December 2013
Place	Brisbane

The application for an extension of time to lodge an application for review is refused.

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Senior Member Bernard J McCabe

CATCHWORDS

PRACTICE & PROCEDURE – Application for review – Extension of time to lodge an application for review – Consent decision – Relitigation of issues – Extension of time refused.

LEGISLATION

Administrative Appeals Tribunal Act 1975 (Cth) ss 29(7), 42A

REASONS FOR DECISION

Senior Member Bernard J McCabe

12 December 2013

1. On 2 May 2013, Mr Trevor Luttrell lodged an application for review of a reviewable decision made by the Military Rehabilitation and Compensation Commission (the MRCC) on 6 November 2009. He needs an extension of time under s 29(7) of the Administrative Appeals Tribunal Act 1975 before he can proceed.

2. This is not the first occasion on which Mr Luttrell has been before the Tribunal. He sought review of the decision of 6 November 2009 but the proceedings were disposed of by way of a consent decision that affirmed the original determination. The respondent says the applicant is effectively seeking to re-litigate proceedings that have already been dealt with by the Tribunal. The Commission says I should not exercise the discretion to extend time for the current application in those circumstances.

3. Mr Luttrell says he wants to bring a claim for obesity, which he says is caused by his service. He claims he did not have the opportunity to present evidence directed precisely to this claim in his earlier application because he was steered away from the issue by the respondent’s legal advisers. Indeed, he said in his written and oral submissions that his original claim in 2009 did not even list obesity as one of the conditions in respect of which he was making a claim although he said the officials from the respondent insisted on referring to it. Mr Luttrell said there is sound medical evidence which now establishes there may be a link between his service and his obesity condition, and he wants to contest that issue.

4. The reviewable decision is reproduced at pp 173ff of the s 37 documents. It affirms an earlier decision made on 13 February 2006 rejecting liability for obesity. There was a discussion of some medical evidence that had been presented in relation to that question. The applicant subsequently settled the review proceedings commenced in relation to the 2009 reviewable decision when he signed consent orders affirming the decision.

5. The applicant says he did not present evidence in relation to the question of obesity, but the respondent appeared to deal with it anyway. That was inappropriate, the applicant now says – although that begs the question of why he agreed to an order settling the proceedings on the basis that he accepted that decision.

6. I allowed Mr Luttrell an adjournment so he could obtain additional medical evidence which might shed some light on the issue. He returned with a summary of a number of reports, most of which were available at the time the reviewable decision was made. Two of them were not but it is not clear whether they established anything new.

   SHOULD THE DISCRETION TO EXTEND TIME BE EXERCISED?

7. A variety of matters are relevant when considering whether an extension of time should be allowed under s 29(7). One of those matters is the excuse for the delay. In this case, the applicant said the delay must be seen in the context of a long-running dispute he has been carrying on with the Department of Veterans’ Affairs. But that is not a particularly illuminating explanation. The applicant commenced proceedings and then settled them. He had a chance to contest the decision and he gave it up. While he says he did not refer specifically to the obesity condition in that application, he clearly made a wide-ranging claim in respect of matters connected with his weight and weight-related issues. He was aware the respondent proceeded on that basis. He has not offered an adequate explanation for what occurred.

8. The Tribunal must also look to the prejudice that might accrue if the application is allowed to proceed, and if it is not. The respondent is likely to have a more difficult time in dealing with the claim given the delay if it proceeds, whereas the applicant may not be able to satisfy a claim he wants to make if an extension of time is not granted (albeit that he already effectively declined an opportunity to do so when he settled the earlier proceedings).

9. I must also consider the merits of the case. I cannot go so far as to say there is no prospect of success in this case, although it is unclear whether there are good prospects.

10. I think in all the circumstances, when I consider the justice of the case, it would not be appropriate to grant an extension of time. Mr Luttrell claims the question of obesity should not have been resolved in the earlier proceedings, but the fact is the question was addressed in the reviewable decision that he appealed and he had the opportunity to contest the conclusions reached therein. He chose not to do so: indeed, he accepted the decision in the consent orders. He may have been unwise to do so; I do not know. But I do not think it is now appropriate to revisit the matter. And that is the point: Mr Luttrell is effectively asking the Tribunal to reinstate the earlier proceedings. But the power to reinstate under s 42A(9) would not be available. It is not clear why it would be appropriate to achieve through s 29 what the applicant would not be permitted to achieve under s 42A.

11. The MRCC scheme and the machinery of review are expensive to operate. The Commonwealth makes the review process available as tangible evidence of its commitment to good government and administrative justice. The machinery is there to be used, but it is incumbent on applicants to help themselves and engage fully with the process. If they do not do so, or do not see the process through to a conclusion, they cannot assume they will be afforded a second chance.

I certify that the preceding 11 (eleven) paragraphs are a true copy of the reasons for the decision herein of Senior Member Bernard J McCabe

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Associate

Dated 12 December 2013

Dates of hearing	28 August 2013 and 28 October 2013
Applicant	In person
Solicitors for the Respondent	Sparke Helmore