Smith and Military Rehabilitation and Compensation Commission (Compensation) - [2024] AATA 599

Smith and Military Rehabilitation and Compensation Commission (Compensation) [2024] AATA 599 (4 April 2024)
Division:VETERANS’ APPEALS DIVISION
File Number: 2024/0560
Re:Graham Smith
APPLICANT

AndMilitary Rehabilitation and Compensation Commission
RESPONDENT

DECISION

Tribunal:Senior Member D. J. Morris
Date:4 April 2024
Place:Melbourne
1.The Tribunal orders that the Respondent in this matter is the Military Rehabilitation and Compensation Commission.
2.The application is dismissed under s 42A(4) of the Administrative Appeals Tribunal Act 1975 because the Tribunal is satisfied that the decision is not reviewable.
3.The Tribunal directs that a copy of this decision and the reasons for the decision be sent to the Military Rehabilitation and Compensation Commission.

...........................[signed].............................................
Senior Member D. J. Morris
Catchwords

PRACTICE AND PROCEDURE – applicant has brought decision to Tribunal for review – application appears to relate to review of a decision of the Military Rehabilitation and Compensation Commission – applicant asserts that he sought internal review – Department contends there is no reviewable decision – tribunal satisfied that applicant requested internal review but no evidence of internal reconsideration decision – is this a case where refusal to act or failure to act can be taken to be a decision – insufficient evidence of positive decision by respondent to refuse to act – no reviewable decision – application therefore dismissed for want of jurisdiction – written reasons to be sent to purported decision-maker
VETERANS’ APPEALS – decision relating to rate of incapacity payments – recipient advised reconsideration can be requested – reconsideration request made – respondent appears not to have acted on request – in absence of reconsideration decision there is no reviewable decision
Legislation

Administrative Appeals Tribunal Act 1975 (Cth)
Australian Veterans’ Recognition (Putting Veterans and Their Families First) Act 2019 (Cth)
Safety, Rehabilitation and Compensation (Defence-related Claims) Act 1988 (Cth)

Cases

Board of Control of Michigan Technological University and Deputy Commissioner of Patents (1979) 2 ALD 203
Collector of Customs v Brian Lawlor Automotive Pty Ltd (1979) 41 FLR 338
Deputy Commissioner of Patents v Board of Control of Michigan Technological University (1979) 2 ALD 711
Smith and Military Rehabilitation and Compensation Commission; Re: [2023] AATA 3021

REASONS FOR DECISION

Senior Member D. J. Morris
4 April 2024

Mr Graham Smith lodged an application with this Tribunal on 27 January 2024. In his application for review he described the decision about which he is aggrieved as ‘DVA won’t reply or do a review on the decision of pay rises and back pay for 24 years’. He stated that the reviewable decision was made on 1 July 2023.
HEARING
On 16 February 2024, the Tribunal conducted an interlocutory hearing by telephone, in order to ascertain whether it had jurisdiction to review the decision. The hearing did not involve the Respondent because, at that stage, it was not clear who the decision-maker was.
Mr Smith made submissions and referred to documents he had lodged with the Tribunal. During the hearing, the Applicant referred to a letter he had received from the Department of Veterans’ Affairs (DVA) dated 30 June 2023, to which he said he replied on 17 July 2023. The Tribunal requested that he provide any other material in support of his application, including in particular that correspondence. Mr Smith undertook to do so.
Subsequently, the Tribunal became aware that Mr Smith had in fact provided the 30 June 2023 on the morning of the hearing, but it had not reached the Tribunal’s associate nor me. In his material Mr Smith cited s 25 of the Safety, Rehabilitation and Compensation (Defence-related Claims) Act 1988 (Cth) (‘the DRC Act’), so the Tribunal gleaned that was relevant to his matter.
Section 25 of the DRC Act concerns interim payment of compensation in a case where the Military Rehabilitation and Compensation Commission (MRCC) has determined that an employee is suffering from a permanent impairment as the result of an injury and is satisfied that the degree of impairment is more than 10 per cent but has not made a final determination of the degree of impairment. In such a case the MRCC ‘shall, on the written request of the employee’ make an interim determination on the amount of compensation payable to the employee.
Consequently, in order to ascertain whether there had been an interim determination made, and also in order to obtain the correspondence Mr Smith referred to, I directed my associate on 23 February 2024 to directly contact DVA in the following terms:
I refer to the above application for review lodged with the Tribunal by Mr Graham Smith.
The Tribunal seeks information on whether an interim determination has been made under s 25 of the Safety, Rehabilitation and Compensation (Defence-related Claims) Act 1988.
The Tribunal also seeks any correspondence of 30 June 2023 to Mr Smith, and of his reply dated 17 July 2023, or any other directly related correspondence. Please provide this information no later than close of business 1 March 2024.
DVA responded on the same date and requested a copy of Mr Smith’s application in order to better respond to the request.
On 4 March 2024, the Tribunal sent a further request to DVA, asking that the requested correspondence be provided by close of business on that day.
On 4 March 2024, an officer of DVA responded by email in the following relevant terms:
We have considered your request. DVA has not been able to identify any reviewable decision that can be considered by the AAT.
I have attached a letter to Mr Smith dated 30 June 2023. We have not identified a communication from Mr Smith dated 17 July 2023. There is no relevant interim determination that has been able to be located.
Attached to the email was a letter dated 30 June 2023 to the Applicant from a Deputy Commissioner of the MRCC (which exists within DVA) advising Mr Smith of a reassessment of Incapacity Payments to him due to rate changes. The letter relevantly said:
Decision
Under Division 3, Part II of the Safety Rehabilitation and Compensation (Defence-related Claims) Act 1988 (DRCA), you are now entitled to the following payments.
[Table of payments omitted]
…
If you would like us to review this decision
You can ask for a review within 30 days of receiving this letter. Please set out your reasons in writing and email to [email protected] or post to GPO Box 9998, Brisbane QLD 4001. You can go to for details.
We will try to complete the review within 3 months but it may take longer if the matter is complex. We will let you know about the progress of your review if it is taking longer than expected.
CONSIDERATION
Was there a decision, and did the Applicant seek reconsideration of the decision?
Although Mr Smith did not provide a copy of the request that he says he sent to DVA on 17 July 2023, amongst the extensive correspondence he provided to the Tribunal was an email he sent to DVA dated 19 July 2023, sent at 9.05 am. The email was headed ‘fortnightly letter 17^th July 2023’ and relevantly stated:
Dear DVA,
I am asking for a reconsideration on pay rises for 2023/24. The reason I ask for a reconsideration on this letter as it is not what the remuneration gave us. It is well below the pay rise the amount should be paid.
(Minor spelling errors corrected)
Mr Smith then went on to develop arguments that, in essence, he considers he has been underpaid by DVA for 23 years. Saliently, he then wrote: “Well I am asking for a full reconsideration on my 23/24 year pay rises…”
The Applicant then made some broad criticisms of DVA and other points which are extraneous. The tone of the email was unnecessarily combative.
Mr Smith also provided the Tribunal with an email he sent on 7 August 2023 to DVA in which he relevantly stated:
I put a reconsideration in 4 weeks ago about my pay rises and underpayment. Since you refused to deal with it, I will apply to the AAT to have this [heard].
He then sent DVA a follow up email dated 4 September 2023 where he stated that he has not had a reply in relation to his request for reconsideration of ‘23/24 pay rises’ and notes that ‘this is over the 30 days’. It is clear he was referring to the timeframe set out in the 30 June 2023 letter.
It is evident from the tone of Mr Smith’s email correspondence to DVA that he has been frustrated, and indeed he has made florid and unjustified accusations about the conduct of the Department and officers of it.
The Tribunal is, however, satisfied that the contents of the Applicant’s email dated 19 July 2023 constituted a request for reconsideration consistent with the invitation in the MRCC’s letter of 30 June 2023. It is accepted that Mr Smith did not send this request to the email address set out in the letter (he sent it to [email protected]), nor is there evidence that he posted a copy to the Department’s postal address also set out in the letter.
But, especially linking together the email of 19 July 2023 with the follow-up emails of 7 August 2023 and 4 September 2023, it is clear to the Tribunal that Mr Smith had (a) requested a reconsideration of his rate of Incapacity Payments and (b) knew about the 30-day period in which he was obliged to request reconsideration; and (c) and complied with making his request within that 30-day time period.
The Tribunal notes that, in spite of asking DVA for any other directly related correspondence, the response from that Department was confined only to there not being a communication from Mr Smith dated 17 July 2023. It is axiomatic that the email of 19 July 2023, albeit sent to a different part of the Department, is directly related correspondence. This response from DVA may reasonably be concluded to be misleading.
As mentioned above, the Applicant referred to s 25 of the DRC Act, which Mr Smith advised is the part of the Act under which he sought a review. On a preliminary reading of the DRC Act, s 25 is not where the rate of Incapacity Payments is dealt with. In any event, DVA advised that no ‘relevant’ interim determination has been made.
Has there been a reconsideration decision that is reviewable?
It would seem to the Tribunal that the more relevant part of the DRC Act in relation to his dispute is Division 3 – Injuries resulting in incapacity for work. Section 60 of the DRC Act provides that the Tribunal may review “determinations, decisions or requirements” under, inter alia, ss 19, 20, 21, 21A and 22.
While the Tribunal is satisfied that the Applicant did seek reconsideration of the decision of 30 June 2023, and did so within the 30-day timeframe referred to in the Deputy Commissioner’s letter of that date, there is no evidence before me of any reconsideration decision.
To the contrary, both in his written submissions and his oral submissions at the interlocutory hearing, Mr Smith voiced his frustration that the Respondent has, in his word, ‘refused’ to undertake a reconsideration. Sparsely phrased as the response the Tribunal received from DVA on 4 March 2024 was, the Respondent submits therein that it has not made a decision that is reviewable in relation to the Applicant.
For the decision to be reviewable by the Tribunal, the MRCC/DVA must reconsider the rate of Incapacity Payments payable to the Applicant in accordance with s 62(5) of the DRC Act, where the original decision can be affirmed, revoked or varied. Then, if unsatisfied with that reconsideration determination, Mr Smith can ask the Tribunal to review that reconsideration decision.
In the absence of a s 62(5) reconsideration determination, the Tribunal is unable to review any decision about the rate of Incapacity Payment payable to Mr Smith for 2023-24.
Is the failure or refusal of the Respondent to undertake a reconsideration decision reviewable?
Mr Smith’s contention is that the Tribunal should review the failure of the Respondent to undertake a reconsideration under s 62(4) of the DRC Act.
The Courts have considered the power of the Tribunal relating to decisions made in the exercise of powers, and whether that phraseology embraces a decision refusing to make an order or refusing to do anything.
In Deputy Commissioner of Patents v Board of Control of Michigan Technological University (1979) 2 ALD 711, the Federal Court of Australia (Smithers, Franki and Keely JJ) (‘Michigan Technological University’) was considering a matter where the Commissioner of Patents had refused an application for extension of time for the university board to restore a lapsed patent application on the grounds that he considered he lacked statutory authority, and had made a second decision refusing to advertise the application. The university board then applied to the Tribunal for a review of those decisions. Deputy President Mr Justice Davies held (Re: Board of Control of Michigan Technological University and Deputy Commissioner of Patents (1979) 2 ALD 203) that the Tribunal had jurisdiction to review the decision of the Commissioner. The Commissioner then appealed to the Court.
Franki J, with whom Smithers and Keely JJ agreed, held that where the Commissioner, in this case, decided he had no power to grant an application, that refusal to exercise a power was a ‘decision’ that may be reviewed by the Tribunal.
Therefore, where a person with power to make a decision refuses to entertain a request properly made, or simply does nothing, depending on the wording of the enactment conferring power on the Tribunal, that refusal may itself be a reviewable decision. It may be noted, as the Court did, that this set of circumstances is the converse of the often quoted case of Collector of Customs v Brian Lawlor Automotive Pty Ltd (1979) 41 FLR 338, where the Federal Court held (upholding a decision in the Tribunal by President Brennan) that where an administrator made a decision purporting to act under statutory power that he erroneously considered he had, that purported decision was capable of review by the Tribunal.
However, in this particular case, the Tribunal is not satisfied that the Respondent has ‘refused’ to undertake a reconsideration decision, as Mr Smith submits. There is an absence of any correspondence from the MRCC or DVA other than the 30 June 2023 letter which the Tribunal obtained.
Relevantly, Mr Smith drew my attention to a previous decision of the Tribunal – Re: Smith and Military Rehabilitation and Compensation Commission [2023] AATA 3021. In that matter, Mr Smith was seeking review of an earlier decision dated 7 July 2022 about his Incapacity Payments. He sought review of that decision and on 31 October 2022 received an email from DVA advising that a review had been conducted into the payments and the way they were calculated. The Member, Dr Bygrave, noted that the Tribunal, differently constituted, had at an interlocutory stage before her hearing decided it had jurisdiction because it decided that the email of 31 October 2022 constituted a reconsideration determination.
That previous matter stands in contrast to the matter Mr Smith is currently agitating, because he has not provided any evidence that there has been a reconsideration review – in fact, to the contrary he is submitting that DVA is ‘refusing’ to undertake a review.
In the absence of further evidence, the Tribunal cannot conclude that the MRCC/DVA is positively refusing to act, which may itself constitute a reviewable decision. The Tribunal cannot compel the MRCC/DVA to make a reconsideration decision, but it is to be expected that, the Tribunal having found that a request has been lodged, that will occur by normal administrative process consistent with the requirements in the DRC Act.
The Tribunal is also not confident, considering the judgment in Michigan Technological University, to find that the MRCC/DVA has simply ‘failed to do anything.’ That may well be the case, but the fact that the Applicant made his request to a different email address and headed it misleadingly, referring to a fortnightly letter dated 17 July 2023 rather than the decision of 30 June 2023, could have contributed to his request not being dealt with in a timely manner.
Another avenue of relief open to the Applicant would be for him to apply to the Federal Court for a writ of mandamus compelling the Respondent to act. But, having found that a request for reconsideration has been lodged, the Tribunal expects that the reconsideration will now occur, if it has not already, by normal administrative process consistent with the mandatory requirements in the DRC Act.
The Tribunal notes the provisions of the Australian Veterans’ Recognition (Putting Veterans and Their Families First) Act 2019 (‘Recognition Act’). The Recognition Act is exhortative in its content but includes provisions committing the Commonwealth to making decisions under the DRC Act ‘within a time that is proportionate to the complexity of the matter’ (see ss 7(1) and (2)). It is important to also note that s 10 of the Recognition Act makes clear that a failure to comply with the provisions in Part 2 (which includes s 7) is not a ground for the review or challenge of any decision. Nonetheless, the Tribunal, and indeed the Respondent, must pay due attention to the intention of the Parliament in enacting the Recognition Act.
Therefore, although in the absence of a reconsideration decision the Tribunal finds it lacks the jurisdiction to review the application, it will cause a copy of these written reasons to be sent to the Respondent, for information and appropriate action.
The Tribunal makes the observation that in dealing with the Respondent and DVA over several years, it has consistently found DVA to be responsive and to act in conformity with the Commonwealth’s duty as a model decision-maker and litigant. It is possible that the pugnacious contents of some of the Applicant’s communications with DVA has coloured its responses to him.
A word of warning
Although the Tribunal has found that a reconsideration has been requested, it is necessary to sound a word of warning to the Applicant. When the MRCC/DVA undertakes a reconsideration as requested under s 62(4) of the DRC Act, it will pertain to the decision conveyed to him on 30 June 2023 relating to the rate of Incapacity Payments payable to him. It is unlikely that DVA would have the power to consider a reconsideration outside the parameters of this decision, such as Mr Smith’s contention that there has been an historic ‘underpayment’ of compensation to him over some 23 years. If Mr Smith wants to pursue that matter, he would have to do so through a judicial process.
The Applicant also included in the material he provided to the Tribunal a range of other matters relating to claims for household expenses, claims for ‘compensation’ and documents relating to the Scheme for Detriment caused by Defective Administration. It would appear he wanted to fold these other historical grievances into his submissions before a substantive hearing. The Tribunal makes clear to Mr Smith that it is not empowered to undertake general reviews of the way an agency operates, it can only review a decision made under an enactment which is stipulated to be reviewable by the Tribunal under that enactment (see s 25(1) of the AAT Act).
SUMMARY
The Tribunal is satisfied that the Applicant requested a reconsideration by the MRCC/DVA on 19 July 2023 in relation to the decision relating to the rate of his Incapacity Payments contained in a letter from the MRCC dated 30 June 2023.
Although the DRC Act provides that, on receipt of a request, the determining authority shall reconsider a determination, the Tribunal is further satisfied that there is no evidence before it that such a reconsideration decision, which is reviewable by the Tribunal, has been made, in spite of the request. The Respondent in fact denies there is a reviewable decision.

The Respondent in this matter will be declared to be the MRCC and a copy of this interlocutory decision will be sent to that Commission, so that the necessary steps to comply with s 62(4) of the DRC Act can be taken.
DECISION
The Tribunal orders that the Respondent in this matter is the MRCC.
The application is dismissed under s 42A(4) of the Administrative Appeals Tribunal Act 1975 because the Tribunal is satisfied that the decision is not reviewable.
The Tribunal directs that a copy of this decision and the reasons for the decision be sent to the MRCC.

I certify that the preceding 46 (forty-six) paragraphs are a true copy of the reasons for the decision herein of Senior Member D. J. Morris

........................[signed]................................................
Associate
Dated: 4 April 2024

Date of hearing:

16 February 2024