Milde and Commonwealth Superannuation Corporation - [2018] AATA 763

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.
.....................[Sgd]...................................................
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 1062
Hunter 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.…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2018] AATA 763
Decision Date: 29 March 2018

CaseChat Overview and Summary

The Administrative Appeals Tribunal considered an application by Mr. Milde for an extension of time to lodge a review application concerning a decision by the Commonwealth Superannuation Corporation. Mr. Milde's initial application for review had been discontinued under section 42A(1A) of the relevant legislation, which resulted in a deemed dismissal of the application under section 42A(1B). Mr. Milde subsequently sought to bring a second application for review.

The primary legal issue before the Tribunal was whether it retained jurisdiction to hear Mr. Milde's second application for review, given the prior discontinuance and deemed dismissal of his first application. This required the Tribunal to determine the legal effect of a notice of discontinuance under section 42A(1A) and whether the Tribunal was *functus officio* in relation to the matter.

The Tribunal reasoned that a notice of discontinuance under section 42A(1A) did not operate as a final determination on the merits of the underlying dispute. Instead, it was a procedural step that brought the existing application to an end. Consequently, the Tribunal concluded that it was not *functus officio* and retained jurisdiction to consider a new application for review, provided that an extension of time was granted. The Tribunal found that there were sufficient merits to grant the application for an extension of time.

The Tribunal ordered that time be extended for Mr. Milde to make his review application until 19 May 2017.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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.

Ratio Decidendi

Legal Principle Established

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