Simmons v Military Rehabilitation and Compensation Commission
[2024] FCA 1107
•20 September 2024
FEDERAL COURT OF AUSTRALIA
Simmons v Military Rehabilitation and Compensation Commission [2024] FCA 1107
File number(s): SAD 2 of 2024 Judgment of: O'SULLIVAN J Date of judgment: 20 September 2024 Catchwords: PRACTICE AND PROCEDURE — where applicant applied to the Administrative Appeals Tribunal (AAT) which determined that there was no “decision” — subsequent application for judicial review pursuant to the Administrative Decisions (Judicial Review) Act 1977 (Cth) — application for extension of time to file application — where applicant was subject to numerous welfare checks — where the delay is explained by a previous application to the AAT — where explanation for the delay — where extension of time to file application does not cause prejudice to respondents — where the substantive application has merit — leave for an extension of time within which the applicant may file an originating application for judicial review granted
ADMINISTRATIVE LAW — application for judicial review of decision by the Military Rehabilitation and Compensation Commission to refuse the applicant’s claims for compensation for asthma, Post-Traumatic Stress Disorder and Gastro-oesophageal Reflux Disease under the Safety, Rehabilitation and Compensation Act 1988 (Cth) — whether mandatory procedures to be observed by law were not observed by the Commission – whether the Commission provided reasons — whether the decision raises an error of law — applicant’s ground made out – appeal granted
Legislation: Administrative Appeals Tribunal Act 1975 (Cth), s 44
Administrative Decisions (Judicial Review) Act 1977 (Cth), ss 5, 16
Federal Court of Australia Act 1976 (Cth), ss 37AF, 37AE, 37AG, 37AJ
Safety Rehabilitation and Compensation (Defence-Related Claims) Act 1988, ss 60, 61, 62, 63
Federal Court Rules 2022 (Cth), r 31.01
Cases cited: Ansett Transport Industries (Operations) Pty Ltd v Wraith (1983) 48 ALR 500
Australian Competition and Consumer Commission v Air New Zealand (No 12) [2013] FCA 533
Australian Competition and Consumer Commission v Valve Corporation (No 5) [2016] FCA 741
AYB19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 442
Brackenrig v Comcare Australia (1995) 56 FCR 335
Commissioner of Taxation v Osborne (1990) 26 FCR 63
Commonwealth v Pharmacy Guild (“Chemists’ Dispute Case”) (1989) 91 ALR 65
Copperart Pty Ltd v Commissioner of Taxation (Cth) (1994) 50 FCR 345
De Domenico v Marshall (1999) 94 FCR 97
Dornan v Riordan (1990) 24 FCR 564
Forbutt; Yusuf; Hawkins v Comcare (2001) 115 FCR 127
Hogan v Australian Crime Commission [2010] HCA 21; (2010) 240 CLR 651
Katoa v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] HCA 28; (2022) 276 CLR 579
Motorola Solutions Inc v Hytera Communications Corporation Ltd (No 2) [2018] FCA 17
O’Brien v Repatriation Commission (1984) 1 FCR 472 (c.f. Repatriation Commission v O’Brien (1985) 155 CLR 422
Pettitt v Dumbley [1971] 1 NSWLR 376
Public Service Board of NSW v Osmond (1986) 159 CLR 656
Quach v RU [2024] FCAFC 32
Rich Rivers Radio Pty Ltd v Australian Broadcasting Tribunal (1989) 22 FCR 437
Singh v Minister for Immigration and Border Protection [2017] FCAFC 195
Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247
SZQBI v Minister for Immigration and Citizenship [2011] FCA 1388
SZTRY v Minister for Immigration and Border Protection [2015] FCAFC 86
Division: General Division Registry: South Australia National Practice Area: Administrative and Constitutional Law and Human Rights Number of paragraphs: 53 Date of hearing: 4 September 2024 Counsel for the Applicant: The applicant appeared in person Counsel for the Respondent: Mr J Davidson Solicitor for the Respondent: Australian Government Solicitors ORDERS
SAD 2 of 2024 BETWEEN: JOHN BRADLEY SIMMONS
Applicant
AND: MILITARY REHABILITATION AND COMPENSATION COMMISSION
Respondent
ORDER MADE BY:
O'SULLIVAN J
DATE OF ORDER:
20 SEPTEMBER 2024
THE COURT ORDERS THAT:
1.The decisions of the respondent communicated to the applicant by email sent 10 May 2023 in relation to the conditions of Post Traumatic Stress Disorder and Gastro-Oesophageal Reflux Disease, are quashed.
2.Pursuant to s 16 of the Administrative Decisions (Judicial Review) Act 1977 (Cth), the decisions are remitted to the respondent for further consideration and determination according to law.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
O’SULLIVAN J:
The applicant, Mr Simmons, applies for an extension of time to make an application for judicial review under s 5 of the Administrative Decisions (Judicial Review) Act 1977 (Cth) in respect of a decision of the respondent, the Military Rehabilitation and Compensation Commission. The decision affirmed the decisions of delegates to refuse claims made by Mr Simmons for compensation for asthma, Post-Traumatic Stress Disorder and Gastro-Oesophageal Reflux Disease under the Safety Rehabilitation and Compensation (Defence-Related Claims) Act 1988 (Cth).
Suppression order and use of pseudonyms
On 28 August 2024, the Commission filed an interlocutory application seeking suppression of the name of a deponent of the respondent, whom I describe as Deponent A. The Commission sought a suppression order on the ground that Mr Simmons continues to engage in abusive and threatening language over emails and online in relation to the respondent and staff of the respondent, legal representatives of the respondent, and Court staff. I heard the application when the matter was called on for hearing on 4 September 2024 and was satisfied that an order should be made pursuant to s 37AF of the Federal Court of Australia Act 1976 (Cth).
The reasons for making that order appear below.
Pursuant to s 37AF(1)(a) of the FCA, the Court has power to make suppression or non-publication orders in relation to information tending to reveal the identity of or otherwise concerning any witness (or any person who is related or otherwise associated with a witness) in a proceeding before the Court.
Section 37AG(1) of the FCA Act sets out the grounds on which the Court may make a suppression order.
In Motorola Solutions Inc v Hytera Communications Corporation Ltd (No 2) [2018] FCA 17 at [6] Perram J summarised the principles applicable to the making of suppression orders as follows:
(a)The [FCA Act] contains Part VAA which relates to suppression and non-publication orders;
(b)The power of the Court to make such orders is contained in s 37AF and the grounds for making them are to be found in s 37AG, which includes within it that “the order is necessary to prevent prejudice to the proper administration of justice”: s 37AG(1)(a);
(c)Such an order is not lightly to be made. It must be necessary to prevent prejudice to the proper administration of justice and not merely desirable: see Hogan v Australian Crime Commission [2010] HCA 21; (2010) 240 CLR 651 at 666 [39]; Australian Competition and Consumer Commission v Valve Corporation (No 5) [2016] FCA 741 at [8] per Edelman J;
(d)The Court may make any other order necessary to give effect to the primary order: s 37AF(2) of the [Court Act];
(e)The order, once made, must remain in place no longer than is reasonably necessary to achieve its purpose: s 37AJ(2); and
(f)The Court must take into account that a primary objective of the administration of justice is to safeguard the public interest in open justice (s 37AE) but no balancing exercise need be carried out between the utility of the order and the interest which open justice assumes under the [Court Act]: Australian Competition and Consumer Commission v Air New Zealand (No 12) [2013] FCA 533 at [21].
The Commission sought its proposed orders in these terms:
(1)The material to which this order applies (see order 2) is not to be published or further disclosed, other than to:
(i)The respondent and staff of the respondent;
(ii)Legal representatives of the respondent;
(iii)The presiding judge;
(iv)The presiding judge’s associate; and
(v)Other such Court staff who require access to the material for the purpose of the proceeding.
(2)The material to which this order applies is:
(i)The parts of the affidavits filed by the respondent, dated 16 August 2024 and 27 August 2024, which identify the deponent (being their name and initials);
(ii)In Annexure XX-1 to the affidavit filed by the respondent dated 16 August 2024, the name following the words ‘Printed on 16 Aug 2024 at 9:25 am by’, at the bottom of pages 5-21 of the affidavit;
(iii)In Annexure XX-1 to the affidavit filed by the respondent dated 16 August 2024, the names listed in the final column (‘Delegat’ [sic]) at pages 22-26 of the affidavit; and
(iv)This order shall operate for a period of 10 years from the date of the order.
In the present case, the application proceeds upon the contention that the orders that are sought are necessary to protect the safety of Deponent A. The evidence before the Court supports that conclusion. I am satisfied that the orders that are sought are necessary in the sense contemplated by s 37AG(1)(c) of the FCA Act.
The respondent submitted that the order that is sought should remain in effect for a period of 10 years. I accept that this is an appropriate period of time for the making of the suppression order.
Extension of time application
Background
Mr Simmons lodged four claims for four separate medical issues with the Commission: asthma, PTSD, GORD, and right iliac crest spur graft site causing chronic pain. The latter claim has been accepted by the Commission and is not referred to in the originating application. As such, it is not before the Court.
Asthma
Mr Simmons lodged an application on 12 July 2018 for compensation for asthma arising from exposure to ammunition gas and toxic fumes from military equipment.
On 30 October 2019, a delegate of the Commission denied the claim on the basis that Mr Simmons’ service had not materially contributed to the occurrence of his asthma. The Commission subsequently reconsidered and affirmed that determination on 18 May 2020.
PTSD
The second claim was lodged on 3 March 2022 for compensation for PTSD arising out of Mr Simmons witnessing a friend’s death from a motor vehicle accident. On 9 June 2022, the Commission refused this claim as it was satisfied that the condition occurred whilst Mr Simmons was off duty and not engaged in his usual employment.
GORD
The third claim was lodged on 18 April 2021 for compensation for GORD. On 9 June 2022, a delegate of the Commission denied the claim on the basis that it was satisfied that a diagnosis was not established in relation to this condition during Mr Simmons’ military employment.
Review by Commission
On or before 13 April 2023, the Commission commenced a review of the various claims. In an email dated 13 April 2023, and a further email dated 1 May 2023, the Department of Veterans’ Affairs requested Mr Simmons provide further supporting information which would allow for further investigation into the claims for PTSD and GORD.
On 10 May 2023, the Commission notified the applicant that the outcome of the review was the acceptance of the right iliac crest spur graft site causing chronic pain. The Commission advised that decisions relating to the other three conditions, being asthma, PTSD and GORD, remained unchanged (Decision).
Review by AAT
Mr Simmons applied for a review of the Decision to the Administrative Appeals Tribunal. At the conclusion of the hearing before the AAT on 29 August 2023, the AAT handed down an oral decision. On 31 August 2023, it handed down its written decision which was that it was not satisfied the Department’s email of 10 May 2023 was a reviewable decision within the meaning of the DRC Act.
Application to Federal Court
On 12 January 2024, Mr Simmons filed an application for an extension of time to file an originating application for judicial review of the Decision in this Court. The application was supported by an affidavit sworn 12 January 2024.
An originating application for judicial review must be filed within 28 days from notification of the decision or of the reasons for the decision: r 31.01 of the Federal Court Rules 2022 (Cth).
Since the Decision was communicated to Mr Simmons on 10 May 2023, any application for judicial review was due to be filed by Monday 19 June 2023, such that the application was made some seven months out of time.
This matter proceeded on the basis that the question of an extension of time, and the merits of any appeal were heard at the same time. At the hearing, Mr Simmons was self-represented. The Commission appeared by counsel.
It is for the reasons which follow that:
(a)There will be an order extending the time within which the applicant may file an originating application for judicial review to 12 January 2024; and
(b)The decisions relating to Mr Simmons’ claims for PTSD and GORD are quashed and the decisions remitted to the respondent for further consideration and determination.
Extension of Time principles
An application for an extension of time within which to file an originating application for judicial review needs to be accompanied by, amongst other things, a draft application that complies with FCR 31.01. In considering the application, the principles relevant to ordering an extension of time for a notice of appeal are applicable to ordering an extension of time for an originating application for judicial review. The Court considers the reasons for the delay in filing the application, but may also consider the merits of the application at a reasonably impressionistic level, and if the circumstances warrant, the Court may engage in a more than impressionistic assessment of the merits: Katoa v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] HCA 28; (2022) 276 CLR 579, [17]-[18] (Kiefel CJ, Gageler, Keane and Gleeson JJ).
In Singh v Minister for Immigration and Border Protection [2017] FCAFC 195 at [20]-[21], Perram, Farrell and Perry JJ said:
20.The principles relevant to the exercise of discretion to grant an extension of time for an appeal are well established and are underpinned by a consideration of where the best interests of justice lie. Those principles may be summarised as follows.
(1)An extension of time will not be granted unless the Court is positively satisfied that it is proper to do so.
(2)The length of the delay is a relevant factor.
(3)The appellant must show an acceptable explanation for the delay and that it is fair and equitable in the circumstances to extend time.
(4)Any prejudice to the respondent is a material factor militating against the grant of an extension, although the absence of prejudice does not, without more, suffice to justify the grant of an extension of time.
(5)The merits of the substantive appeal, if leave were granted, are properly to be taken into account.
(See e.g. BAO15 v Minister for Immigration and Border Protection [2016] FCA 214 at [19]; Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344 at 348–349.)
21.As to the fifth of these matters, the proposed grounds should be considered on their face and examined at a “reasonably impressionistic level”; the Court should not descend into a fuller consideration of the arguments for and against each ground (see MZABP v Minister for Immigration and Border Protection [2015] FCA 1391 at [62] (Mortimer J) (approved on appeal in MZABP v Minister for Immigration and Border Protection [2016] FCAFC 110 at [38]).
See also SZQBI v Minister for Immigration and Citizenship [2011] FCA 1388 at [16]-[25] (Cowdroy J); SZTRY v Minister for Immigration and Border Protection [2015] FCAFC 86 at [6] (Flick, Griffiths and Perry JJ); AYB19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 442 at [30] (Markovic J).
In Quach v RU [2024] FCAFC 32, [24]-[25], the Full Court (Perry, Meagher and Shariff JJ) said:
24.An extension of time will not be granted unless the Court is positively satisfied that it is proper to do so. The discretion to extend time under r 36.05 of the Federal Court Rules is not confined by express criteria. However, there are a range of considerations which may appropriately be taken into account in the exercise of discretion, and which are of varying weight depending on the circumstances of the particular case, namely:
(1)the length of the delay;
(2)whether the applicant has demonstrated an acceptable explanation for the delay;
(3)whether the respondent would suffer prejudice if the extension of time were granted; and
(4)the merits of the substantive appeal, if the extension of time was granted.
See, eg, Hunter Valley Developments Pty Ltd v Cohen [1984] FCA 186; (1984) 3 FCR 344 at 348-349 (Wilcox J) and Bechara v Bates [2018] FCA 460 at [17] (Perry J).
25With respect to the last of these factors, it will generally be the case that the merits of the proposed appeal should be approached in a reasonably impressionist manner. Thus, in Katoa v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] HCA 28; (2022) 178 ALD 573, Kiefel CJ, Gageler, Keane and Gleeson JJ explained at [17] that:
“[I]t may be accepted that, in determining what is necessary in the interests of the administration of justice for the purposes of s 477A(2) [of the Migration Act 1978 (Cth) ] (or s 477(2)) [powers to extend time], it will often be appropriate to assess the merits of the proposed grounds of review at a ‘reasonably impressionistic level’. That is because the interests of justice are likely to be advanced by granting an extension of time to an application with some merit, depending, of course, on other relevant factors. In this regard, it may be relevant, as Mortimer J observed, that an extension of time will confer upon the applicant not only the right to a determination of their substantive application on the merits but also a right of appeal from that judgment, if adverse to the applicant.”
(Citations omitted)
Submissions on extension of time and consideration
Documents read and relied upon
Mr Simmons attached a draft originating application to his application for an extension of time filed 12 January 2024. The application is supported by an affidavit sworn by Mr Simmons on 12 January 2024 to which he annexed a decision of the AAT dated 29 August 2023. He also relied upon a second affidavit filed 12 January 2024 which annexes the Decision, an affidavit of service filed 1 February 2024, and his written submissions dated 28 July 2024.
The Commission relied upon the affidavit of Deponent A sworn 16 August 2024 and its submissions dated 16 August 2024.
Length of the delay
The delay is seven months, which the respondent submits is significant.
I accept that submission. However, as explained below, a delay of that magnitude is not determinative of a decision to refuse the application.
Explanation for the delay and that it is fair and reasonable and equitable in the circumstances to extend time
Mr Simmons submits that the reason for the delay was due to having a matter heard in the AAT (the decision of which is annexed to his first affidavit sworn 12 January 2024). Mr Simmons contends that it was not until his application was dismissed in the AAT on 29 August 2023 that he could seek legal advice on his next steps and file an originating application in this Court.
Mr Simmons also submits that there were further delays due to numerous welfare checks by the South Australian Police in relation to his interactions with the respondent.
The respondent accepts that up until 29 August 2023, the applicant was not resting on his rights in relation to the decision in question. However, beyond that, the respondent submits that there is no adequate explanation for the further four-and-a-half-month delay and that Mr Simmons does not establish that he was diligently pursuing his rights.
I do not accept the respondent’s submission. Although it may be said that Mr Simmons did not attempt to file the application for an extension of time until some four-and-a-half months after the AAT decision, it seems his health and welfare checks operated to preclude him from filing an originating application for judicial review in this Court within time. In all circumstances, I am prepared to accept his explanation for the delay.
Any prejudice to the respondent
Neither Mr Simmons nor the Commission address any prejudice that may or may not affect the respondent.
The draft originating application for judicial review
The draft originating application for judicial review, which accompanied Mr Simmons’ application filed 12 January 2024, identifies three grounds of appeal which can conveniently be dealt with in one central ground. That is, whether the delegate erred in failing to follow procedures that were required by s 61 of the DRC Act to be observed in connection with the making of the decision, namely, to provide written reasons for the determination of a claim.
Mr Simmons submits that the decision attracted an obligation to give a statement of reasons under the DRC Act, and that this obligation was not complied with.
The respondent rejects the merits of the draft originating application on three grounds.
First, the respondent submits that there is no obligation under the common law to give reasons for a decision: Public Service Board of NSW v Osmond (1986) 159 CLR 656. As the respondent points out, whether there was a statutory obligation to give reasons for the decision depends upon its characterisation. It accepts that if the Decision constituted a reconsideration pursuant to s 62 of the DRC Act, then an obligation to give reasons arose, however it argues that this is not the correct characterisation of the email sent on 10 May 2023.
Rather, the respondent submits, the email constitutes a preliminary step, that is deciding whether or not to embark upon reconsideration. In the absence of a request for reconsideration made under s 62(2), any reconsideration would be on the Commission’s own motion. The respondent submits that the decision in question is the outcome of a process by which the respondent considered whether to embark on a reconsideration process and concluded that it ought not.
Second, the respondent submits that in the event the Court finds that a reconsideration decision was in fact made, the Court should find that the applicant had available to him alternative remedies to bringing this application, which were more appropriate in the circumstances. It submits, Mr Simmons could have requested a reconsideration of the PTSD and GORD claims. Alternatively, the respondent submits that Mr Simmons could have sought a review of the AAT’s decision under s 44 of the Administrative Appeals Tribunal Act 1975 (Cth), lodged a fresh claim with the respondent, or sought a statement of reasons pursuant to s 13 of the ADJR Act.
Finally, the respondent submits that relief is futile in any event, as the decision has been overtaken, in relation to PTSD and asthma, by two fresh claims made by Mr Simmons on 12 May 2024 which are now before the respondent. In light of this, and in circumstances where the applicant is entitled to request a reconsideration of his GORD condition, the respondent submits that there is no utility in the Court directing the respondent to undertake a reconsideration of the claim.
Consideration
The critical question in this application for an extension of time to lodge an originating application for judicial review of a decision of the Commission, is whether the decision of the delegate was a “decision” under the DRC Act, with the consequence that the delegate was obliged to give reasons.
The DRC Act
Sections 60, 61, 62 and 63 of the DRC Act are of central importance in this matter. They provide:
Section 60 – Interpretation
“reviewable decision” means a decision made under subsection 38(4) or section 62.
Section 61 – Determinations to be notified in writing
(1A)The determining authority must consider and determine each claim for compensation under section 14 within the period prescribed by the regulations.
(1)As soon as practicable after a determining authority makes a determination, it shall cause to be served on the claimant a notice in writing setting out:
(a)the terms of the determination;
(b)the reasons for the determination; and
(c)a statement to the effect that the claimant may, if dissatisfied with the determination, request a reconsideration of the determination under subsection 62(2).
(2)This section does not apply in relation to a determination under subsection 16(1) that compensation of an amount equal to the full amount of the cost of medical treatment obtained by an employee is payable if that amount of compensation is payable to a person other than the employee.
Section 62 – Reconsideration of determinations
(1) A determining authority may, on its own motion:
(a)reconsider a determination made by it; or
(b)cause such a determination to be reconsidered by a person to whom its power under this section is delegated, being a person other than the person who made, or was involved in the making of, the determination; whether or not a proceeding has been instituted or completed under this Part in respect of a reviewable decision made in relation to that determination.
(2)A request to a determining authority to reconsider a determination made by it may be made by:
(a) the claimant; or
(b) if the determination affects the Commonwealth--the Commonwealth.
(3) A request for reconsideration of a determination shall:
(a)set out the reasons for the request; and
(b)be given to the determining authority within 30 days after the day on which the determination first came to the notice of the person making the request, or within such further period (if any) as the determining authority, either before or after the expiration of that period, allows.
(4)On receipt of a request, the determining authority shall reconsider the determination or cause the determination to be reconsidered by a person to whom its power under this section is delegated, being a person other than a person who made, or was involved in the making of, the determination.
(5)Where a person reconsiders a determination, the person may make a decision affirming or revoking the determination or varying the determination in such manner as the person thinks fit.
(6)The determining authority or person must decide a request made by a claimant to reconsider a determination within the period prescribed by the regulations.
Section 63 – Reviewable decision to be notified in writing
As soon as practicable after a person makes a reviewable decision, the person shall cause to be served on the claimant a notice in writing setting out:
(a)the terms of the decision;
(b)the reasons for the decision; and
(c)a statement to the effect that, subject to the Administrative Appeals Tribunal Act 1975 , application may be made to the Administrative Appeals Tribunal for review of the decision to which the notice relates.
The Decision
The key document in this matter is the Commissioner’s email sent 10 May 2023. It reads:
I am writing to you to confirm the current status of your request for previously determined claims to be reassessed at the Primary level. These reviews have taken place as advised in the email dated 13 April 2023. The outcome of the review was the acceptance of condition Right iliac crest spur graft site causing chronic pain. The other three conditions you requested to be reviewed at the primary decision level, being Asthma dated 30 October 2019 and 18 May 2020, Posttraumatic Stress Disorder dated 9 June 2022, and Gastro-oesophogeal reflux disease dated 9 June 2022, remain unchanged.
In the same email dated 13 April 2023 and a further email dated 1 May 2023, DVA requested you provided further supporting information which would allow further investigation into the claims for PTSD and GORD.
On 1 May 2023, you provided a document confirming you were living on base full time at the time of the incident, however it does not confirm or reference your attendance at the site of the incident. On the same date you sent another email with a brochure for the Army Logistic Training Centre.
Following review of the information you have provided, I can confirm the decisions of 9 June 2022 relating to PTSD and GORD will not be changed, either through a new decision or a reconsideration on own motion. In regards to the claim for Asthma, no further medical information has been received. The decision of 30 October 2019 and subsequent review of 18 May 2020 remain unchanged.
Was there a “decision” pursuant to s 62 of the DRC Act?
The respondent’s submission that the letter of 10 May 2023 was not a “decision”, but rather a preliminary step to consider reconsideration under s 62, cannot be accepted. A reviewable decision is a decision made upon a request to reconsider a determination or upon reconsideration by the respondent at its own initiation. The email sent on 10 May 2023 was written after a request from the Department on 13 April 2023 and 1 May 2023 for further supporting information which would allow further investigation into the claims for PTSD and GORD. It is a reviewable decision within the meaning of ss 60 and 62(4) of the DRC Act.
Does the respondent have a duty to give reasons for a decision?
Counsel for the respondent conceded that s 61(1) of the DRC Act expressly imposes upon the decision-maker a duty to give reasons for its findings. In this respect it supersedes the common law which imposes no obligation to give reasons: Osmond.
Much has been written on the subject of the adequacy of reasons for a decision where there is an obligation to give them: Pettitt v Dumbley [1971] 1 NSWLR 376; Ansett Transport Industries (Operations) Pty Ltd v Wraith (1983) 48 ALR 500, 507; O’Brien v Repatriation Commission (1984) 1 FCR 472 (c.f. Repatriation Commission v O’Brien (1985) 155 CLR 422, 445 - 456 per Brennan J); Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247; Commissioner of Taxation v Osborne (1990) 26 FCR 63, 65; Rich Rivers Radio Pty Ltd v Australian Broadcasting Tribunal (1989) 22 FCR 437, 444; Commonwealth v Pharmacy Guild (“Chemists’ Dispute Case”) (1989) 91 ALR 65; Dornan v Riordan (1990) 24 FCR 564, 567, 573 - 574; Copperart Pty Ltd v Commissioner of Taxation (Cth) (1994) 50 FCR 345; Brackenrig v Comcare Australia (1995) 56 FCR 335; De Domenico v Marshall (1999) 94 FCR 97, 116 - 117; Forbutt; Yusuf; Hawkins v Comcare (2001) 115 FCR 127, 141 - 142. Without repeating the detail of what has been set out, two of the central purposes are: (1) to assist the parties to understand the result, and (2) to enable a disappointed party to consider whether to take advantage of any right to appeal of judicial review.
I am satisfied that the delegate did not provide any, or any adequate, reasons as required by s 61(1). Although the delegate made reference to further supporting information that was provided by Mr Simmons and the outcome of the decision, it failed to give any, or any adequate, reasons as to why Mr Simmons’ claims for PTSD and GORD remained unchanged. There is no indication as to how the further supporting information was applied, or by what process the conclusion was reached. It is not sufficient to merely list the matters it has considered without stating why it has reached the decision in question. The failure to set out the reasoning process amounts in itself to an error of law.
I do not imply that the Commission was bound to explain, in analytical detail, why it rejected or accepted the content of each report or piece of information before it. That would place what would be an unacceptable and unreasonable burden on it. However, it is important that it indicates its independent assessments in light of the various further supporting documentation and the reasons why it has arrived at those outcomes so that the recipient of the decision is able to understand the basis for it.
Relief Sought
In the absence of any specific orders being sought, at the hearing I asked the applicant to indicate precisely what relief is sought against the Commission. The response from Mr Simmons was, relevantly, that all three claims should be remitted to the Commission for redetermination.
The Court was then informed by the respondent’s counsel that the affidavit of Deponent A dated 16 August 2024 annexes two further claims for compensation made by Mr Simmons on 12 May 2024: PTSD and carbon monoxide poisoning. Mr Simmons confirmed that this was the case but indicated that both claims arise from different events to those relevant to the Decision.
Conclusion
The asthma claim has been determined and no further information was provided by Mr Simmons such that there was no reconsideration.
However, Mr Simmons provided further submissions about the PTSD and GORD claim. In the circumstances, I will make an order that, in respect of the PTSD and GORD claims, the Commission’s decision as communicated in its’ email to Mr Simmons sent on 10 May 2023 is set aside and the matter remitted to the decision maker for redetermination according to law.
I certify that the preceding fifty-three (53) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice O'Sullivan. Associate:
Dated: 20 September 2024
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