Oakey and Military Rehabilitation and Compensation Commission (Practice and procedure)
[2025] ARTA 705
•9 June 2025
Oakey and Military Rehabilitation and Compensation Commission (Practice and procedure) [2025] ARTA 705 (9 June 2025)
Applicant:Christopher Oakey
Respondent: Military Rehabilitation and Compensation Commission
Tribunal Number: 2024/7291
Tribunal:Senior Member Thomae
Place:Brisbane
Date:9 June 2025
Decision:The Tribunal dismisses the application for review pursuant to s 97 of the Administrative Review Tribunal Act 2024 (Cth) in respect to the separate grounds in the application for:
(a) Separate consideration of Mr Oakey’s osteoarthritis.
(b)Recognition of operational service under the Veterans’ Entitlement Act 1986 (Cth).
(c)An Increase in incapacity payments under the Safety, Rehabilitation and Compensation (Defence-related Claims) Act 1988 (Cth).
(d)Repayment of a debt incurred by Centrelink.
(e)The delay in decision in respect to reimbursement of medical expenses.
................................[SGD]...........................
Statement made on 04 June 2025 at 2:23pm
CATCHWORDS
PRACTICE AND PROCEDURE – application for review in part seeks relief beyond reviewable decision – whether Tribunal has jurisdiction for relief beyond reviewable decision – delay in making decision – whether delay constitutes a deemed decision - application for review dismissed in part
Legislation
Administrative Review Tribunal Act 2024 (Cth)
Safety, Rehabilitation and Compensation (Defence-related Claims) Act 1988 (Cth)
Veterans’ Entitlement Act 1986 (Cth)
Cases
Baumgarten and eSafety Commissioner (Guidance and Appeals Panel) [2025] ARTA 59
Kitoko v University of Technology Sydney [2021] FCA 360
Supplementary Material
Safety, Rehabilitation and Compensation (Defence‑related Claims) Regulations 2019
Statement of Reasons
INTRODUCTION
On 20 September 2024, the veteran, Mr Oakey, made an application for review[1] to the General Division of the Administrative Appeals Tribunal (the AAT)[2] of the decision of the respondent, the Military Rehabilitation and Compensation Commission (the Commission), dated 31 July 2024, to affirm the decision (the Reviewable Decision)[3], that Mr Oakey was not entitled to compensation for his accepted condition of ‘Chronic Pain Disorder’ (the Accepted Condition) under the Safety, Rehabilitation and Compensation (Defence-related Claims) Act 1988 (Cth) (the DRCA).
[1] T2.
[2] On 14 October 2024, the AAT became the Administrative Review Tribunal (the Tribunal). Under the transitional provisions in the Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (the Transitional Act), applications for review to the AAT that were not finalised before 14 October 2024 are taken to be an application for review to the Tribunal. The Transitional Act gives the Tribunal the authority to continue and finalise any aspect of the review not already completed by the AAT. This decision and statement of reasons is made by the Tribunal.
[3] T2.5
The application for review seeks relief across 5 identified issues not included in the Reviewable Decision: liability for osteoarthritis in Mr Oakey’s knees to be assessed separately to his Accepted Condition; recognition for operational service under the Veterans’ Entitlement Act 1986 (Cth) (VEA); an increase of his incapacity payments under the DRCA; payment by the Commission for a debt incurred to Centrelink for the back payment of entitlements by the Commission; and reimbursement of claimed medical expenses.
The Commission seeks dismissal of parts of Mr Oakey’s application for review pursuant to s 97 of the Administrative Review Tribunal Act 2024 (Cth) (ART Act) on the basis that the Tribunal has no jurisdiction as there is no reviewable decision in respect to these discrete issues before the Tribunal.
On 9 May 2025, an interlocutory hearing by telephone on jurisdiction was held. Mr Oakey was self-represented. Ms Jacky Vetter, HWL Ebsworth Lawyers, appeared for the Commission. The parties had provided written submissions and had an opportunity to make submissions.
The Tribunal admitted into evidence the documents provided by the Commission pursuant to s 23 of the ART Act and the supplementary documents filed (the T-documents).
BACKGROUND
Mr Oakey served as an infantryman in the Australian Army, as a reservist, for approximately 8 years from 1996 to 2004.[4] In 2004 he was medically discharged from service. His service record does not disclose any operational service.
[4] T11.
On 3 November 2011, the Commission accepted liability for the Accepted Condition.[5]
[5] T5.
Mr Oakey reviewed the Commission’s decision on the level of impairment of his Accepted Condition in the AAT, and on 7 March 2019, by terms of agreement in the AAT, it was decided that the Accepted Condition resulted in 10% Whole Person Impairment (WPI) under Table 5.1 of the Guide to the Assessment of the Degree of Permanent Impairment (AAT Decision).[6]
[6] T28.
On 28 November 2022, a delegate of the Commission determined that no further payment could be made for the Accepted Condition[7], such decision affirmed on 31 July 2024 in the Reviewable Decision.
On 20 September 2024, Mr Oakey brought the present application for review to the Tribunal.
ISSUES
[7] T38.
The Commission does not dispute Mr Oakey’s application for review of the Reviewable Decision insofar as it contends that the physical component of his Accepted Condition should be assessed at 60% under s 9.13.3 of the Guide to the Assessment of the Degree of Permanent Impairment – Edition 3.0 (the Guide) is within the jurisdiction of the Tribunal.
The Commission contends that there are 5 matters within the application for review that are not within the jurisdiction of the Tribunal:[8]
(a)That the determination regarding the osteoarthritis in both of Mr Oakey’s knees ought to be assessed separately and in isolation, and for him to be paid according to the doctor's assessment.
(b)That Mr Oakey’s operational service be recognised under the VEA.
(c)That the Commission increase Mr Oakey’s incapacity payments under the DRCA.
(d)That the Commission pay Mr Oakey’s Centrelink debt.
(e)That the invoice for a report in relation to Mr Oakey’s dental occlusion be paid by the Commission.
[8] Respondent’s Statement of Issues, dated 21 March 2025.
CONSIDERATION
Legislative Framework
Sub-section 12(1) of the ART Act relevantly provides that a decision is a ‘reviewable decision’ if an Act or a legislative instrument provides for an application to be made to the Tribunal for review of the decision.
Section 16 of the ART Act provides where an Act or an instrument provides for ‘a quantified period within which the person is required or permitted to do the thing’ (decision) and if not done within that period, then it is taken that the decision is refused.
Section 54 of the ART Act provides, for the purposes of reviewing a reviewable decision, the Tribunal ‘may exercise all the powers and discretions that are conferred on the decision-maker by an Act or an instrument made under an Act’.
The Commission contends that pursuant to the DRCA, that reviewable decisions, subject to the jurisdiction of the Tribunal, are limited to specific sections and that the only ‘reviewable decision’ before the Tribunal is the Reviewable Decision concerning the Accepted Condition.
The Commission contends, citing Baumgarten and eSafety Commissioner (Guidance and Appeals Panel) [2025] ARTA 59 (Baumgarten), that the jurisdiction and powers of the Tribunal are not ‘at large’ as provide at [36]:
Whether a reviewable decision has been made must be assessed objectively. One must look at the objective features of the decision or action that the relevant enactment specifies is a reviewable decision and compare them to the objective features of the decision made or the action taken by the decision-maker in a particular case, and then objectively determine whether the latter decision or action amounts, as a matter of fact, to a reviewable decision.
Respectfully, the Tribunal agrees and is bound by the decision in Baumgarten.
As to dismissal of the application for review, s 97 of the ART Act provides:
The Tribunal must dismiss an application if:
(a) The application is made for review of a decision; and
(b) The Tribunal is satisfied that the decision is not reviewable by the Tribunal.
As to the dismissal power, the decision of Kitoko v University of Technology Sydney [2021] FCA 360 is instructive, per Griffiths J:
(a) The effect of s 31A is to lower the bar below that fixed by previous authorities for obtaining summary judgment. It is not necessary to demonstrate that a claim/defence be “hopeless” or “bound to fail” for it to have no reasonable prospects of success (s 31A(3) of the FCA Act; Spencer v Commonwealth of Australia [2010] HCA 28; 241 CLR 118 at [17]-[26] per French CJ and Gummow J).
(b) The Court must make a practical judgment as to whether the opposing party has reasonable prospects of success, one which is “real, not fanciful or merely arguable” (Spencer at [25] per French CJ and Gummow J);
(c) Where the moving party establishes a prima facie case in support of summary judgment, the onus shifts to the opposing party to point to factual or evidentiary issues making a trial necessary (Jefferson Ford Pty Ltd v Ford Motor Company of Australia Ltd [2008] FCAFC 60; 167 FCR 372 at [127] per Gordon J). Page 6
(d) Determination of an application for summary dismissal is a value judgment to be made in the particular circumstances of the case, in the absence of a full and complete factual matrix; in other words requiring a “practical judgment” of the case at hand. It does not require a “mini trial”, but rather a “critical examination of the available material to determine whether there is a real question of law or fact that should be decided at trial” (Australian Securities and Investment Commission v Cassimatis [2013] FCA 641; 220 FCR 556 at [46] per Reeves J).
(e) The Court retains a discretion whether or not to determine proceedings summarily or to refer them to trial, albeit that this discretion must be exercised judicially (Cassimatis at [50] per Reeves J).
(f) Notwithstanding that s 31A of the FCA Act sets a lower bar than previously stated for the summary determination of a proceeding, the power to enter summary judgment is not to be exercised lightly (Spencer at [60] per Hayne, Crennan, Kiefel and Bell JJ).
With the legislative framework in mind, and consideration of the discretion to dismiss, the Tribunal must consider each of the heads of relief sought by Mr Oakey in his application for review to determine if the Tribunal has jurisdiction.
Separate consideration of Mr Oakey’s osteoarthritis
Mr Oakey includes in his application for review a ‘re-write determination’ that was provided on 29 November 2022 under the cover of an email, concerning his bilateral osteoarthritis of his knees[9].
[9] T39.
The Commission accepts that the ‘re-write determination’ is a reviewable decision under DRCA but contends that Mr Oakey has never sought review of that decision to the Tribunal.
Mr Oakey considers this all part of the same decision subject of the present application for review.
Unfortunately, that cannot be right. The ‘re-write determination’ states it is a determination subject to appeal to the AAT and provides 60 days to do so. That time has long passed.
For Mr Oakey to pursue a review of his bilateral osteoarthritis determination he is required to bring an application for review to the Tribunal, requesting an extension of time to bring such an application.
The Tribunal has no power to deal with this part of the application for review and dismisses it pursuant to s 97 of the ART Act.
Recognition of operational service under the VEA
Mr Oakey’s service records do not disclose any operational service. Mr Oakey contends that he was assigned to Operation Gold (OP GOLD), the Australian Defence Force (ADF) joint task force established to support the Sydney Olympics in 2000.
There are three parts to this.
First, Mr Oakey needs to obtain recognition from the ADF for his service on OP GOLD. The Commission has provided in its submissions the link to the form for submission for that purpose.
Second, s 5C of the VEA specifies for non-warlike service that it means ‘service in the Defence Force of a kind determined in writing by the Defence Minister to be non-warlike service’.
There is no evidence before the Tribunal that OP GOLD was so designated as non-warlike service. Rather, Mr Oakey has provided a letter, dated 31 August 2004, from then Minister of Defence, the Honourable Senator Robert Hill, that OP GOLD ‘was assessed as not meeting the definition of warlike or non-warlike service and was, therefore, peacetime service’.
On its face, the letter from the Minister of Defence, provides a clear answer that OP GOLD was not non-warlike service for the purposes of the VEA.
Third, as stated above, the Tribunal does not have jurisdiction at large. The present application for review is a reviewable decision under the DRCA and not the VEA. The Tribunal is not seized of any reviewable decision in respect to whether Mr Oakey has operational service for the purposes of the VEA.
The Tribunal is not satisfied that it has jurisdiction in respect of Mr Oakey’s contentions about operational service and that part of the application for review is dismissed pursuant to s 97 of the ART Act.
Increase in incapacity payments under the DRCA
The Commission contends that Mr Oakey is seeking his incapacity payments to be assessed by reference to s 8(8)(b) of the DRCA that provides
(8) Subject to this section, where:
(a) the employment of an employee is of a kind referred to in subsection 5(4) or subsection (3) of this section; and
(b) the employee is not receiving earnings from any other employment at the date of the injury;
the normal weekly earnings of the employee before the injury shall be an amount determined by the MRCC to be the amount per week that the employee would have been able to earn at the date of the injury (including any amount in respect of overtime worked on a regular basis) if he or she had engaged in suitable paid employment.
Mr Oakey described this part of his application as being linked to his claim for recognition of operational service under the VEA.
The Commission contends that no reviewable decision is identified that would fall within the jurisdiction of the Tribunal.
On its review of the T-Documents, the Tribunal has identified a decision of the Commission dated 17 October 2016[10] in respect to the calculation of incapacity entitlements by reference to a number of grounds. That decision does not refer to operational service. It is not clear whether it is a primary decision or a reviewable decision.
[10] SuppTDocs 3 of 5– oakey–T4QB99-20250106
There is no evidence that Mr Oakey has sought reconsideration of that decision by the Commission.
The Tribunal is not reasonably satisfied that there is a reviewable decision in respect of Mr Oakey’s ground to increase his incapacity payments under the DRCA, and if he is relying on 17 October 2016 determination of the Commission, Mr Oakey will need to apply to the Tribunal referencing that decision with an application for an extension of time.
The Tribunal is reasonably satisfied that it has no power to deal with this part of the application for review and dismisses it pursuant to s 97 of the ART Act.
Repayment of Centrelink Debt by the Commission
Mr Oakey contends the maladministration of the Commission in the calculation of his entitlements meant that a back payment as a lump sum[11] after the proper calculation incurred a debt with Centrelink (the Centrelink Debt).
[11] SuppTDocs 4 of 5-oakey-T4QB99-20250106
Mr Oakey seeks reimbursement from the Commission for the Centrelink Debt.
As stated above, the Tribunal does not have jurisdiction at large and has no statutory power to order that the Commission repay a debt incurred to Centrelink.
The Tribunal understands Mr Oakey has not made an application for review to the Tribunal of the Centrelink Debt.
The Tribunal observes that if Mr Oakey considers there has been defective administration on the part of DVA he is at liberty to make a claim for compensation under the Scheme for Compensation for Detriment caused by Defective Administration (the CDDA scheme).
The Tribunal has no role or jurisdiction in respect of the CDDA scheme.
The Tribunal is not satisfied that it has jurisdiction in respect of Mr Oakey’s contentions about the reimbursement of the Centrelink Debt and that part of the application for review is dismissed pursuant to s 97 of the ART Act.
Reimbursement of invoice for medical expenses
Mr Oakey contends that his application for reimbursement of medical expenses has been with the Commission for over 12 months and that the failure to make a decision should be reviewable decision.
The Tribunal has reviewed the T-Documents and the only relevant documents it can find are:
(a)A form titled ‘Prior Financial Approval Request Form’ dated 23 January 2024, with the condition specified as ‘occlusal (bite) collapse, splayed out teeth, loss of function and stability of his bite’.[12]
(b)An email from the DVA to Mr Oakey, dated 6 September 2024, referring to a request from a Dr Kon for DVA to fund a ‘specialist consultation with an orthodontist, photographs and orthodontic retainers’.[13]
(c)That email from DVA goes on to state
DVA is unable to fund the requested treatment as it is not directly treating an accepted dental condition. In order for DVA to consider funding this treatment, you will need to lodge a claim to have a specific dental condition accepted under your white card. Your provider has been advised of this decision and has been asked to assist you in the claim lodgement process.
[12] SuppTDocs 8 of 20-oakey-178T7F-20250106
[13] SuppTDocs 11 of 20-oakey-178T7F-20240106
There is no evidence before the Tribunal that Mr Oakey has made a claim to the DVA in response the email from the DVA of 6 September 2024.
In any event, there is no time limit provided in the DRCA and the Safety, Rehabilitation and Compensation (Defence‑related Claims) Regulations 2019 for the Commission to decide claims lodged by applicants.
As such, s 16 of the ART Act is not engaged and the Tribunal has no jurisdiction to deem a decision to have been made.
The Tribunal is not satisfied that it has jurisdiction in respect of Mr Oakey’s contentions about the delay in the decision as whether the Commission will reimburse Mr Oakey’s medical expenses and that part of the application for review is dismissed pursuant to s 97 of the ART Act.
DECISION
The Tribunal dismisses the application for review under s 97 of the ART Act in respect to the separate grounds of the:
(a)Separate consideration of Mr Oakey’s osteoarthritis.
(b)Recognition of operational service for Mr Oakey under the Veterans’ Entitlement Act 1986 (Cth).
(c)Increase in incapacity payments under the Safety, Rehabilitation and Compensation (Defence-related Claims) Act 1988 (Cth).
(d)Repayment of a debt incurred to Centrelink.
(e)Delay of the decision in respect to reimbursement of medical expenses.
Date(s) of hearing: 9 May 2025 Date final submissions received: 9 May 2025 Representation for the Applicant: Mr Oakey, Self-represented litigant Solicitors for the Respondent: Ms Vetter, HWL Ebsworth Lawyers
0
4
0