The Estate of the Late John Edward Gough and Comcare (Compensation)

[2024] AATA 3605

The Estate of the Late John Edward Gough and Comcare (Compensation) [2024] AATA 3605 (11 October 2024)

Division:GENERAL DIVISION

File Number:2024/0578          

Re:The Estate of the Late John Edward Gough  

APPLICANT

AndComcare

RESPONDENT

DECISION

Tribunal:Member Lee Benjamin

Date:11 October 2024

Place:Brisbane

The application for review is dismissed.

.............................[SGD]...........................................

Member Lee Benjamin

Catchwords

PRACTICES AND PROCEDURES - where application lodged out of time - where issue of whether Tribunal has jurisdiction to review application - where Tribunal already “functus officio” and does not have jurisdiction - where not appropriate in all circumstances to grant extension of time – application dismissed

Legislation

Safety, Rehabilitation and Compensation Act 1988 (Cth)
Administrative Appeals Tribunal Act 1975 (Cth)

Cases
Kuchlmayr and Australian Capital Territory (Compensation) [2020] AATA 5072
Lees v Comcare (1999) 56 ALD
Re Gough and Comcare (Compensation) [2020] AATA 4669
Re John Edward Gough and Trans Australia Airlines [1983] AATA 330

Re Rana and Military Rehabilitation and Compensation Commission [2008] AATA 558

REASONS FOR DECISION

Member Lee Benjamin

11 October 2024

WHAT HAPPENED?[1]

[1] The background to Mr Gough’s application is helpfully set out in Comcare’s written outline of submissions dated 22 March 2024 (Comcare’s submissions) (para 2.1 to 2.14). I have extracted the same across paragraphs 1 to 14 of these Reasons because there does not, except as highlighted below, appear to be controversy about these matters.

1. On or about 28 November 1979, the late John Edward Gough made a claim for compensation pursuant to the Compensation (Commonwealth Government Employees) Act 1971 (Cth) (1971 Act) in relation to his contraction of mesothelioma. The late Mr Gough sought to attribute his mesothelioma to employment by Trans Australia Airlines (TAA).

2. On 27 February 1981, in the context of his mesothelioma, it was determined that the late Mr Gough had not suffered the contraction of a disease, or the aggravation, acceleration or recurrence of a disease, to which his TAA employment was a contributing factor with the result that his claim was disallowed under the 1971 Act. That determination was affirmed upon reconsideration.

3. The late Mr Gough then applied to the Administrative Appeals Tribunal to review the disallowance of his claim. After a hearing on the merits, the Tribunal affirmed the disallowance of the late Mr Gough’s claim: Re John Edward Gough and Trans Australia Airlines [1983] AATA 330. There is no evidence of the late Mr Gough applying for, or overturning that decision on, judicial review.

4. On 1 June 2017, Mr Stephen Gough, as the personal legal representative of the late Mr Gough submitted a claim for compensation in relation to the death of the late Mr Gough from mesothelioma. Mr Stephen Gough sought to attribute the late Mr Gough’s mesothelioma to employment by TAA.[2]

   [2] Mr Gough says it was not an application to review a death claim, rather an application to the Tribunal to review a second reviewable decision of Comcare purporting to revoke a section 129A reconsideration on own motion decision on an already reviewable decision on the injury claim of John Edward Gough (deceased).

5. On 21 September 2017, Comcare wrote to Mr Stephen Gough. Comcare informed Mr Stephen Gough that it had been determined under section 14 of the Safety, Rehabilitation and Compensation Act 1988 (Cth) (SRC Act) that Comcare was liable to pay compensation in respect of the late Mr Gough’s mesothelioma. It was also determined that the total amount payable under the claim was $167,150.05. That amount was calculated as follows:

   (a)$368.57 was payable for compensation of private vehicle travel and parking fees relating to medical treatment and supplied (attendant care aids) under section 16 of the SRC Act;

   (b)$139,320.72 was payable per the maximum statutory rate for a lump sum death (dependency) benefit applicable on 17 July 1990 under subsection 17(3) of the SRC Act (apportioned as per Comcare’s statement of reasons);

   (c)$17,068.82 was payable to Mr Stephen Gough and $6,234.59 was payable to Mr Darren Gough for weekly prescribed child benefits they “should” have received at the time under subsection 17(5) of the SRC Act;

   (d)$1,741.51 was payable for reimbursement of funeral expenses at the maximum statutory rate applicable on 17 July 1990 under section 18 of the SRC Act; and

   (e)$2,415.84 was payable for end stage palliative care services the late Mrs Gough provided to the late Mr Gough from 14 April 1990 to 2 July 1990 under section 29 of the SRC Act.

6. Further, in its correspondence of 21 September 2017, Comcare determined that compensation was not payable for:

   (a)incapacity to work from the period April 1978 to 30 November 1988 under section 45 of the 1971 Act;

   (b)permanent impairment (lump sum) benefit under sections 24 and 25 of the SRC Act;

   (c)a Greenfield ride-on lawn mower under sections 16, 29 and 39 of the SRC Act; and

   (d)incapacity for the period 1 December 1988 to 16 July 1990 under section 132 of the SRC Act.

7. On 16 October 2017, Mr Stephen Gough wrote to Comcare and requested reconsideration “in relation to Comcare’s determination issued on September 21 2017”.

8. On 15 December 2017, Comcare wrote to Mr Stephen Gough and advised that it had completed its review. Comcare concluded that the original determination could no longer be sustained and decided to revoke it. In effect, Comcare decided to disallow Mr Gough’s claim.

9. On 23 February 2018, Mr Stephen Gough lodged with the Tribunal an application for review of the decision of 15 December 2017 (AAT Application No. 2018/0923).

10. On 22 March 2019, Mr Stephen Gough submitted that the Tribunal did not have jurisdiction to review the decision made on 15 December 2017 given the effect of section 129A of the SRC Act.

11. On 9 April 2019, the Tribunal held an interlocutory hearing where both parties were given the opportunity to provide submissions in relation to jurisdiction.

12. On 10 April 2019, the Tribunal found that it had the jurisdiction under section 25 of the Administrative Appeals Tribunal Act 1975 (Cth) (AAT Act) to review the decision dated 21 December 2017.

13. On 4 December 2020, after a hearing on the merits, the Tribunal affirmed the disallowance of Mr Gough’s claim: Re Gough and Comcare(Compensation) [2020] AATA 4669. There is no evidence of Mr Stephen Gough applying for, or overturning that decision on, judicial review.

14. On 19 January 2024, Mr Gough sought an extension of time for making an application to the Tribunal for review of the decision dated 15 December 2017.

15. On 2 April 2024, the Tribunal held an interlocutory hearing to take submissions from the parties.

    WHAT QUESTIONS NEED TO BE ANSWERED?

16. The Tribunal must consider whether:

    (a)the Tribunal has jurisdiction to review Mr Gough’s application?; and if so,

    (b)it is reasonable in all the circumstances for an extension of time to be granted?

    WHAT ARE THE ANSWERS TO THE QUESTIONS?

17. In my view (and I find that), the Tribunal has no jurisdiction to review Mr Gough’s application because the Tribunal is 'functus officio'. In any case, even if the Tribunal had jurisdiction to review Mr Gough’s application, I am of the view (and find that), it is not reasonable in all the circumstances to grant Mr Gough an extension of time to make his application.  

    WHY ARE THESE THE ANSWERS TO THE QUESTIONS?

18. Under the AAT Act, the Tribunal has jurisdiction and powers provided to it under specific statutes, which enable the Tribunal to review a reviewable decision.

19. It is not controversial that, generally, once the Tribunal has exercised its power under section 43 of the AAT Act, the case law makes it plain that the Tribunal’s power to review the matter again is exhausted.[3] 

    [3] Comcare’s submissions, para 3.2. Also see Lees v Comcare (1999) 56 ALD at [39].

20. Mr Gough seeks the Tribunal “relist 2018/0923 with the 15 December 2017 decision.”[4] Comcare contends that the Tribunal is “functus officio” with regards to AAT Application No. 2018/0923.

    [4] Mr Gough’s email to the Tribunal dated 2 February 2024.

21. Mr Gough says that Comcare purported to issue a second and impermissible reviewable decision dated 15 December 2017, to revoke the earlier 21 September 2017 reviewable decision to reinstate the revoked 1983 primary determination.[5]

    [5] Mr Gough’s written submissions dated 21 March 2024 (Mr Gough’s submissions), para 3.

22. Mr Gough says that, in February 2018, he appealed to the Tribunal on the basis that Comcare's second reviewable decision dated 15 December 2017 was incorrect in law, and contrary to the weight of evidence and medical opinion concerning asbestos exposure and mesothelioma causation. He says that the “AAT application did not state the decision subject to the application was a death claim decision”.[6]

    [6] Mr Gough’s submissions, para 27.

23. Mr Gough claims that he was not properly “heard” by the Tribunal in the 2018/0923 matter. He says that Comcare engaged in conduct that the Tribunal “may now determine amounted to contempt of the Tribunal under s 63 of the AAT Act.” He contends that Comcare “obstructed and hindered the Tribunal from performing its functions” in hearing his application for “review of Comcare's second reviewable decision on the injury claim of the late John Gough by misleading the Tribunal that its 21 September 2017 decision was not a reviewable decision, but a primary determination of a death claim”. [7]

    [7] Mr Gough’s written submissions, para 29.

24. In my respectful view, Mr Gough’s contentions are difficult to follow and otherwise accept. Mr Gough was represented at the hearing and acceded to the Tribunal’s findings in the 2018/0923 matter because he did not appeal the Tribunal decision to the Federal Court of Australia.

25. Comcare drew my attention to the Tribunal’s decision in Re Rana and Military Rehabilitation and Compensation Commission [2008] AATA 558, in which Deputy President Forgie stated (see paragraph [99]):[8]

    The duty that is imposed upon the Tribunal must be to review the particular decision of which review is sought and in relation to which the Tribunal is given jurisdiction. Once it has done so in accordance with its statutory authority and power, it seems to me that the Tribunal has done all that it can lawfully do. It is functus officio.

    [8] Comcare’s submissions, para 3.3.

26. Comcare further drew my attention to Deputy President Humphries’ comments at paragraph [13] in Kuchlmayr and Australian Capital Territory (Compensation) [2020] AATA 5072:[9]

    The power granted under statute to undertake a review of a particular decision can, as a general rule, be exercised only once. It is the power to review a specific reviewable decision; once it has reviewed that decision and decided to affirm it, overturn it or remit it for fresh assessment to the decision-maker, its statutory power to review is exhausted. At that point it is functus officio [Latin: having performed his office], meaning that it no longer has any power to change or reconsider the decision it has made. That principle is the same whether the decision is one made on the merits after a full hearing or one produced as a result of the agreement of the parties (Novosel v Comcare [2017] FCA 722 at [103]. Even the courts have very limited powers to reopen finalised decisions, preferring to direct affected parties to their right to appeal to a higher court.

    [9] Comcare’s submissions, para 3.4.

27. As is apparent, Comcare contends, from the above background, the Tribunal has previously decided to affirm the Respondent’s decision dated 15 December 2017. To the extent that Mr Gough contends that the decision was made in jurisdictional error, Comcare submits that the Tribunal has also previously decided that the Tribunal has jurisdiction pursuant to section 25 of the AAT Act to review the decision.[10] Accordingly, Comcare contends that the Tribunal is functus officio and lacks the jurisdiction to hear the present application. In my view, Comcare’s submissions must be accepted.

    [10] Comcare’s submissions, para 3.5.

28. Even if I am wrong about the Tribunal being functus officio, and the Tribunal otherwise has jurisdiction to review Mr Gough’s application, I am of the view (and find) that it is not reasonable, in all the circumstances, to grant Mr Gough an extension of time to file his application.[11]

    [11] Subsection 29(7) of the AAT Act.

29. On the basis of the materials before me:

    (a)Mr Gough’s delay in filing the review and extension application (~5 years) is very significant;

    (b)Mr Gough has not provided a reasonable explanation for the delay in lodging his application;

    (c)any substantive review in this application would appear to have poor prospects of success; and

    (d)refusal of the application for extension of time will not result in an injustice to Mr Gough as he has another means of review pursuant to another AAT application currently on foot.

    DECISION

30. The application for review is dismissed.

    I certify that the preceding 30 (thirty) paragraphs are a true copy of the reasons for the decision herein of Member Lee Benjamin

    ..................[SGD].........................

    Associate

    Dated: 11 October 2024

    Representative for the Applicant:  Mr Stephen Gough

    Representative for the Respondent:   Mr Ben Dube of Sparke Helmore Lawyers