Milde and Commonwealth Superannuation Corporation
[2018] AATA 763
•29 March 2018
Milde and Commonwealth Superannuation Corporation [2018] AATA 763 (29 March 2018)
Division:GENERAL DIVISION
File Number: 2017/2907
Re:Desmond Milde
APPLICANT
Commonwealth Superannuation CorporationAnd
RESPONDENT
DECISION
Tribunal:Senior Member Britten-Jones
Date:29 March 2018
Place:Adelaide
The decision of the Tribunal is to extend the time for the applicant to make his review application until 19 May 2017.
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Senior Member Britten-Jones
CATCHWORDS
PRACTICE AND PROCEEDURE - extension of time - application for review is discontinued under s 42A(1A) - deemed dismissal under s 42A(1B) - second application for review brought - is Tribunal functus officio - effect of a notice of discontinuance - Tribunal has jurisdiction to hear second application for review - extension of time granted.
LEGISLATION
Administrative Appeals Tribunal Act 1975 (Cth), s 29 and s 42A
CASES
Jayasinghe v Minister for Immigration and Ethnic Affairs (1997) 76 FCR 301
SZFOG v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 88 ALD 138; [2005] FCA 1374
Re Mulheron and Australian Telecommunications Corporation (1991) 23 ALD 309
Brehoi v Minister for Immigration and Multicultural Affairs (1999) 58 ALD 385
Minister for Immigration and Multicultural Affairs v Bhardwaj (2002) 209 CLR 597
Lower v Comcare [2002] FCA 1394
Re Hunter and Secretary, Department of Families, Community Services and Indigenous Affairs (2006) 100 ALD 140, [2006] AATA 1062Hunter Valley Developments Pty Ltd v Minister for Home Affairs (1984) 3 FCR 344
REASONS FOR DECISION
Senior Member Britten-Jones
29 March 2018
INTRODUCTION
The applicant was conscripted to serve in operational duties in Vietnam in 1969. Whilst serving in Vietnam he was severely injured when an armoured personnel carrier struck a mine on 20 April 1970. He applied for and received certain benefits.
On 2 December 2014 the applicant was assessed at a Class C level of invalidity from date of discharge which meant that an invalidity pension was payable to him by the respondent. This classification was then reconsidered by a decision of the Defence Force Case Assessment Panel (the Panel) made on 15 April 2016 by which he was classified 40 percent Class B.
The applicant now seeks an extension of time under s 29(7) of the Administrative Appeals Tribunal Act 1975 (Cth) (the Act) to apply to review the decision of the Panel dated 15 April 2016.
This is not the first application for review brought by the applicant with respect to the decision of the Panel. The first application was brought on 20 May 2016 within the time period prescribed by s 29(2) of the Act.
The applicant then decided to not pursue the review and on 5 September 2016 filed a notice of discontinuance under s 42A(1A) of the Act which provides as follows:
(1A) A person who has made an application to the Tribunal for a review of a decision may, in writing lodged with the Tribunal, at any time notify the Tribunal to the effect that the application is discontinued or withdrawn.
Eight months later the applicant filed a second application for review. This application is out of time so the applicant has sought an extension of time in which to file the application under s 29(7) of the Act.
Before considering the extension of time application I must consider the respondent’s contention that the Tribunal is functus officio because the first application was withdrawn. The respondent contends that the Tribunal has no power to embark upon a second review process in these circumstances. This issue must self evidently be determined before considering whether an extension of time for the second review application should be granted.
IS THE TRIBUNAL FUNCTUS OFFICIO?
The doctrine of functus officio was summarised by Goldberg J in Jayasinghe v Minister for Immigration and Ethnic Affairs: [1]
“…I do not consider it a correct characterisation of the doctrine of functus officio to call it a "legal technicality". Rather it is a description or consequence of the performance of a function having regard to the statutory power or obligation to perform that function. The effect of the application of the doctrine is that once the statutory function is performed there is no further function or act for the person authorised under the statute to perform…”
[1] (1997) 76 FCR 301 at 311.
By discontinuing the first application for review it is deemed to have been dismissed by operation of s 42A(1B) which provides:
“(1B) If notification is given in accordance with subsection (1A) or (1AA), the Tribunal is taken to have dismissed the application without proceeding to review the decision.”
The applicant discontinued the application for review about three and a half months after filing his application. The background facts to the discontinuance are as follows:
(a)The applicant was informed of the Panel’s decision by letter dated 18 April 2016 which advised:
“I refer to your request for reconsideration of the decision made by a Delegate of the Commonwealth Superannuation Corporation, (CSC) on 7 August 2015, to classify you 25% Class C with effect from 24 April 1971.
The DFCAP considered your case in its meeting on 15 April 2016 and decided to SET ASIDE the decision to classify you 25% Class C, with effect from 24 April 1971 and SUBSTITUTE for it, a decision to classify you 40% Class B, with effect from that date. A copy of the Committee’s statement of reasons is enclosed, together with a list of all evidence considered.”
(b)On 19 May 2016 the applicant filed with the Tribunal an application for review of the Panel’s decision.
(c)On 23 May 2016 the applicant’s lawyer wrote to the respondent advising that the applicant “is a waiting the recalculation and back payment of the Class B pension …” and requested advice as to when this would be undertaken.
(d)On 29 June 2016 the applicant’s lawyer requested an update with respect to the calculation of the Class B pension.
(e)On 5 September 2016 the applicant’s lawyer wrote to the Australian Government Solicitor as follows:
“We refer to the Application and note your client has not calculated the Class B pension rate in accordance with the decision. As discussed with you previously your client’s repeated failure to respond as to why it has not calculated the pension has never been addressed other than to your oblique reference in your Statement of Issues as to whether the Class B rate was appropriate.
We note our client’s profound and unrelenting psychiatric condition for over 4 decades was at least, partially recognised with the Class B decision that has now, for reasons beyond our client’s control or knowledge, not been implemented.
This has had a debilitating effect and impact on his mental health and relationship. In particular there is absolutely no evidence or basis for your client to deny the payment of the Class B pension.
…
Accordingly we have no option but to withdraw the AAT application and request that your client make the Class B decision.”
(f)The notice of discontinuance was filed on 5 September 2016.
(g)On 27 September 2016 the applicant received his Class B pension.
(h)On 20 March 2017 the applicant’s lawyer wrote to the respondent as follows:
“As you are aware, our client had filed an application for review regarding the Class B decision (AAT Application 2656/2016). Additionally, we had corresponded with your office after the Class B determination was made with respect to the implementation of the decision.
In particular, there had been no Application made to the AAT for a stay of the Class B decision that would ordinarily be open to you to make pursuant to section 41 of the AAT Act 1975. We note that even after your office was legally represented by AGS before the AAT, we had made repeated requests for the implementation of the Class B decision but these requests were ignored…
…
Accordingly, the Application was withdrawn on the 5th of September 2016 pursuant to s 42A(1A) of the AAT Act 1995. We attach the withdrawal and the letter to AGS noting why it was done given the circumstances in which it occurred.
Ultimately, our client did receive his Class B pension pursuant to your letter dated 27 of September 2016…
Accordingly, we will be filing an AAT application pursuant to a Form 1 and Form 2 application seeking a review of your reviewable decision dated 18th of April 2016. The basis of the Form 2 Application i.e. the extension of time, is largely based on, but not limited to your unconscionable conduct with respect to the implementation of the Class B decision in the absence of a Stay application before the AAT when you were aware that in the circumstances, the refusal to make the decision caused an escalation of and heightened our client’s anxiety state. Please advise our office in writing and within 7 days as at the date of this letter whether you consent to the extension of time or refuse and if so on what basis. …”
(i)By email dated 27 March 2017 the respondent refused to consent to an extension of time being granted.
I find that the applicant discontinued the review application for the purpose of obtaining payment of the Class B pension to which he was entitled as at 15 April 2016 but which, for reasons unknown to the applicant, had not been implemented. The applicant took the view that if the review application was discontinued then there would be no impediment to the respondent implementing the decision of the Panel to award a Class B pension. Indeed, this is what happened. Three weeks after discontinuing the review application the Class B pension was implemented.
The position of the applicant was explained by his lawyer in his letter of 20 March 2017. The applicant considered it unconscionable for the respondent to fail to implement the Class B pension in the absence of any stay application. The applicant felt that he had no option but to withdraw so as to bring about the implementation of the Panel’s earlier decision.
The Notice Of Discontinuance
The real issue for the Tribunal is to determine the effect of filing a notice of discontinuance and in particular whether it prevents a further application for review being made.
The effect of a discontinuance in the Federal Court was considered in SZFOG v Minister for Immigration and Multicultural and Indigenous Affairs.[2] Edmunds J at [17] found that a discontinuance does not of itself bar further proceedings being issued.
[2] (2005) 88 ALD 138; [2005] FCA 1374.
The respondent contends that the applicant’s review application is deemed to have been dismissed and therefore a subsequent application of the same nature cannot be filed. The application having been brought and then dismissed is final. The statutory function of the Tribunal has been performed and there is no further function authorised by the Act. The respondent points to the only two powers to reinstate a dismissed application, namely s 42A(9) and (10).
Section 42(9) of the Act complements s 42A(8).[3] It empowers the Tribunal to reinstate the application and give such directions as appear to it to be appropriate in the circumstances. Section 42(10) affords the Tribunal power to reinstate an application that has been dismissed through administrative error.
[3] Brehoi v Minister for Immigration and Multicultural Affairs (1999) 58 ALD 385 at [22]-[29].
I find that there is no express or implied prohibition in the Act with respect to a second application. The provisions in the Act relate to reinstatement of the application already brought. They do not apply to a second application. The applicant is not seeking to reinstate the first application but rather to extend the time for his second application.[4] The existence of a statutory regime for reinstatement does not impliedly prohibit a second application being brought. If Parliament intended to prohibit a second application once a first application was withdrawn or discontinued then it could have done so by express legislation. Instead, Parliament expressly included in s 42A(1B) the words “without proceeding to review the decision”. Section 42A(1B) can be contrasted with the Federal Court Rule 36.73 dealing with the discontinuance of an appeal at (2) which does not contain any qualifying words but simply says:
“(2) A notice of discontinuance has the effect of an order of the Court dismissing the appellant’s appeal.”[5]
[4] See Hunter and Secretary, Department of Families, Community Services and Indigenous Affairs [2006] AATA 1062.
[5] See Chen v Monash University (2016) 337 ALR 525.
The inclusion of the qualifying phrase distinguishes the deemed dismissal arising under s 42A(1B) from a dismissal after a hearing. This distinction was referred to by Justice O’Connor in Re Mulheron and Australian Telecommunications Corporation.[6] If an application is dismissed on its merits after a hearing then the Tribunal will be functus officio and the same application could not be brought again. Section 42A(1B) of the Act makes it clear that a dismissal arising from a discontinuance is not to be treated in the same way.
[6] (1991) 23 ALD 309.
Gleeson CJ in Minister for Immigration and Multicultural Affairs v Bhardwaj[7] said that circumstances can arise where the rigid approach to the principle of functus officio is inconsistent with good administration and fairness. Gleeson CJ went on to say at [8]:
“… The question is whether the statute pursuant to which the decision-maker was acting manifests an intention to permit or prohibit reconsideration in the circumstances that have arisen. That requires examination of two questions. Has the tribunal discharged the functions committed to it by statute? What does the statute provide, expressly or by implication, as to whether, and in what circumstances, a failure to discharge its functions means that the tribunal may revisit the exercise of its powers or, to use the language of Lord Reid, reconsider the whole matter afresh?”
[7] (2002) 209 CLR 597 at [7].
Has The Tribunal Discharged The Functions Committed To It By Statute?
Section 25 of the Act states that applications may be made to the Tribunal for review of decisions made in the exercise of powers conferred by an enactment. Section 43(1) of the Act provides that for the purpose of reviewing a decision, the Tribunal may exercise all the powers and discretions that are conferred by any relevant enactment on the person who made the decision and shall make a decision in writing affirming, varying or setting aside the decision under review.
The application brought by the applicant did not proceed to a review. That is self evident but s 42A(1B) of the Act reinforces this by deeming the application to have been dismissed “without proceeding to review the decision.”
I find that the tribunal has not discharged the functions committed to it by the Act.
What Does The Statute Provide As To Whether The Tribunal May Revisit The Exercise Of Its Powers?
First, there is no express statement in the Act prohibiting a second application once the first is discontinued. Second, and contrary to the respondent’s submissions, no implied prohibition arises from s 42A(8) to s 42A(10) dealing with reinstatement. Third, the inclusion of the words “without proceeding to review the decision” distinguishes a dismissal arising from a discontinuance from a dismissal on the merits after a hearing. A withdrawal of a proceeding is not the same as a determination of a proceeding.[8] The applicant had the right to discontinue his application and there is nothing in the Act to prevent him from bringing a second application.
[8] See Lower v Comcare [2002] FCA 1394.
Further, I note that unless a contrary intention is to be discerned from the Act, s 33(1) of the Acts Interpretation Act 1901 displaces the common law doctrine that a power is spent once it is exercised.[9]
[9] See Minister for Immigration v Bhardwaj (2002) 209 CLR 597 at [35].
I find that the Tribunal is not functus officio and that it has jurisdiction to hear the second application for review.
Respondents Further Argument As To Lack Of Jurisdiction
There was a further argument faintly put by the respondent that the Tribunal lacked jurisdiction because the Defence Force Retirement and Death Benefits Act 1973 (Cth) (DFRDB Act) only confers jurisdiction on the Tribunal in relation to “a decision … that has been confirmed or varied by the Panel”. It was submitted by the respondent that the Panel’s decision to set aside and substitute did not fall within the jurisdictional confines of the DFRDB Act. I reject this argument because a decision to set aside and substitute amounts in substance to a decision to vary. Therefor jurisdiction is established.
EXTENSION OF TIME
Having dealt with the issues relating to jurisdiction, the application for review will stand or fall depending on whether the applicant can satisfy the Tribunal that it is reasonable in all the circumstances to extend the time for the making of the application.
The principles to be applied in considering an application for extension of time under s 29(7) of the Act are well established.[10] Where the extension relates to a second application, the circumstances in which the first application was dismissed will be relevant particularly as to whether the applicant rested on its rights or took action to make aware that the decision was being contested.[11]
[10] Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344.
[11] Re Mulheron and Australian Telecommunications Corporation (1991) 23 ALD 309 at [18].
In this case the circumstances following the decision and leading up to the discontinuance were unusual. The Panel’s decision was made on 15 April 2016 but the awarded pension was not implemented. The applicant filed his review application and then made numerous requests for the pension to be implemented. Eventually on 5 September 2016 the applicant’s lawyer wrote to the Australian Government Solicitor complaining further about the failure to calculate the pension and the effect that it was having on the applicant. The applicant felt that he had no option but to withdraw the review application so as to bring about the implementation of the Panel’s decision. The letter had the desired effect and three weeks after the notice of discontinuance the pension was implemented.
There is no explanation for the delay between implementation of the decision on 27 September 2016 and the second application, notification of which was given by letter dated 20 March 2017 but which was not actually filed until 19 May 2017. It may be inferred that the delay was caused by the applicant’s ongoing health issues.
Whilst there is no explanation by the applicant for the delay between September 2016 and March 2017 there is also no prejudice shown by the respondent arising from that delay. The respondent was aware that the applicant disagreed with the decision and was aware that the reason for the discontinuance was not because he accepted the decision but rather was because he wanted the awarded pension to be implemented.
As for the merits of the substantive application the applicant points to the medical records, the contemporaneous statements from his spouse and his own employment history as the evidence available to challenge the decision to award a Class B pension. The applicant was qualified as a fitter and turner and his injuries prevented him from doing this. It was submitted by the applicant that on the Panel’s own findings he should have been awarded an A Class pension. If the challenge is successful the applicant will be entitled to additional benefits of a significant sum.
I consider that in all of the circumstances that there are sufficient merits for the application for an extension of time to be granted.
DECISION
The decision of the Tribunal is to extend the time for the applicant to make his review application until 19 May 2017.
I certify that the preceding 34 (thirty -four) paragraphs are a true copy of the reasons for the decision herein of Senior Member Britten-Jones
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Administrative Assistant
Dated: 29 March 2018
Date(s) of hearing: 8 November 2017 Counsel for the Applicant: Mr A Anforth Advocate for the Applicant: Mr G Isolani Solicitors for the Applicant: KCI Lawyers Advocate for the Respondent: Mr P d'Assumpcao Solicitors for the Respondent: Australian Government Solicitor
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