Thomsen and Military Rehabilitation and Compensation Commission
[2004] AATA 930
•6 September 2004
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2004] AATA 930
ADMINISTRATIVE APPEALS TRIBUNAL )
) No V04/677
GENERAL ADMINISTRATIVE DIVISION ) Re THOMAS THOMSEN Applicant
And
MILITARY REHABILITATION AND COMPENSATION COMMISSION
Respondent
DECISION
Tribunal Mr J Handley, Senior Member Date6 September 2004
PlaceMelbourne
Decision For the reasons published IT IS DECIDED ‑
1. The “reviewable decision”, was the decision made on 9 November 1996.
2. The reviewable decision was a nullity.
3. Remittal of the application pursuant to s42D(1) of the Administrative Appeals Tribunal Act 1975 is not permissible.
4. It is recommended:
(i) If the applicant does intend to proceed to claim compensation under the SRC Act he should notify the respondent accordingly and request it to issue an own motion review of its decision of 9 November 1996;
(ii) If such a notification is made the respondent should, consistent with the decisions of Rosillo, Oudyn and Liu and pursuant to the Model Litigant Policy of the Commonwealth, issue an own motion review defining its “present liability”;
(iii) Such a decision would be capable of review (if it is decided that liability is presently denied) and an application to review should be lodged within 60 days.
(Sgd) J Handley
Senior Member
PRACTICE AND PROCEDURE – application to extend time to lodge proceedings – reviewable decision made in November 1996 – decision denied liability and found the effects of injury had ceased – decision a nullity – extension of time not made – s42D powers cannot be exercised – recommendations made to the parties
Administrative Appeals Tribunal Act 1975(Cth) s29(7) and s37 and s42D
Safety, Rehabilitation and Compensation Act 1988 (Cth)
Commonwealth Employees Compensation Act 1930 (Cth)
Compensation (Commonwealth Government Employees) Act 1971 (Cth)
Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344
Australian Postal Corporation v Oudyn (2003) 73 ALD 659; [2003] FCA 318
Rosillo v Telstra Corporation Ltd (2003) 77 ALD 396; [2003] FCA 1628.Liu and Comcare [2004] AATA 617
REASONS FOR DECISION
6 September 2004 Mr J Handley, Senior Member 1. The applicant applied to extend time to lodge these proceedings pursuant to s29(7) of the Administrative Appeals Tribunal Act 1975 (“AAT Act”). The application was heard on 31 August 2004. Mr De Marchi appeared on behalf of the applicant and Mr Lolis appeared on behalf of the respondent.
2. The history of the application as evident from the documents lodged by the respondent pursuant to s37 of the AAT Act can be briefly summarised as follows.
3. On 12 April 1996 Mr Thomsen made a claim for compensation alleging injury in the course of his former employment with the Australian Army. The date of injury is not recorded but maybe inferred from the claim form as having occurred prior to his discharge from service on 17 January 1974. A description of injury is not recorded with any particularity nor is the type of compensation sought recorded in the claim form (T-documents page 15). The claim form was attached to a letter completed by Mr Richards, a pension officer with the Pascoe Vale RSL Branch. In the letter Mr Richards recorded “We are acting on behalf of Mr Thomsen in his claim for compensation for back problems” (page 18).
4. On 19 April 1996 Mr Thomsen was asked by the compensation section of the Department of Defence to provide further documentation in support of his claim (page 21) and on 22 April 1996 he replied enclosing a report of injury (page 23).
5. On 14 June 1996 the respondent wrote to Mr Thomsen at his home address (page 32). The letter recorded that liability was accepted with respect to a “bruised abraded right lumbar region of back sustained on 12 December 1996”. Additionally the letter recorded that it was also determined that the effects of that injury had ceased by 10 January 1974. Mr Richards on behalf of Mr Thomsen wrote to the respondent on 20 June 1996 (page 34) again confirming that he was acting on behalf of Mr Thomsen and notifying of the intention to appeal the determination of 14 June 1996. Mr Richards was asked by the respondent in a letter of 2 July 1996 (page 35) to provide documentation in support of any back injury arising out of employment. Apparently because there was no response to that letter the respondent again wrote to Mr Richards on 6 September 1996 (page 36) requesting supporting information in document form.
6. On 9 November 1996 – there being no indication of any response by Mr Richards to the letters of 2 July and 6 September 1996, the respondent reconsidered its primary determination of 14 June 1996 and affirmed it. Specifically the delegate of the respondent affirmed that part of the earlier decision which found that the effects of injury of 12 December 1996 had ceased by 10 January 1974.
7. On 12 January 2004 Mr Thomsen completed another claim for compensation where he recorded Mr Tusler, a pensions officer with the Maribyrnong/Maidstone RSL Branch as his representative. The claim specifically sought compensation for “household services” (page 45). The respondent wrote to Mr Tusler on 30 January 2004 acknowledging receipt of the claim form dated 9 January 2004 and advised that by a determination of 14 June 1996 and a reviewable decision of 9 November 1996 it had been decided that the effects of injury sustained in the course of the former employment with the Australian Army had ceased by 10 January 1974. Accordingly it was decided to reject the claim for reimbursement of the cost for household services.
8. On 31 March 2004 Mr De Marchi wrote to the respondent indicating that it was the intention of Mr Thomsen to claim lump sum compensation for his client’s back injury. In the letter Mr De Marchi also sought a claim form. The respondent acknowledged the letter on 6 April 2004 and forwarded the claim form as requested. That form was completed by Dr Wilson of Glenroy on 20 April 2004 and forwarded to the respondent. On 6 May 2004 the respondent wrote to Mr De Marchi acknowledging the claim for lump sum compensation for permanent impairment with respect to the applicant’s back injury and advised him that a reviewable decision had been made on 9 November 1996 where it was decided that the liability of the respondent “was deemed to have ceased by 10 January 1974” (page 62). On 1 June 2004 Mr De Marchi wrote to the respondent and advised that his client “does not believe he has received the letter of 9 November 1996” and further advised that the letter of 6 May 2004 would be regarded as “the official rejection of his claim” (page 64).
9. On 1 June 2004 Mr De Marchi lodged an application for review with this Tribunal reciting that the decision under review was that as contained in the letter of 6 May 2004 (pages 65 to 66). On 15 July 2004 Mr De Marchi was notified by the District Registrar of the Tribunal that it appeared that there had not been any reviewable decision made on 6 May 2004 but rather it had been made on 9 November 1996. In those circumstances he was advised that it appeared that the Tribunal did not have any jurisdiction to review “the decision” made of 6 May 2004. However, if it was intended to review the decision of 9 November 1996 an application should be made to extend time to lodge the proceedings (page 70).
10. On 29 July 2004 the District Registrar wrote to Mr De Marchi and indicated that in the absence of an application to extend time to lodge the proceedings it would be assumed that it was not intended to pursue the review (page 74). On 2 August 2004 Mr De Marchi lodged an application for extension of time. The grounds upon which the application for an extension of time was sought were recorded as “The claim has been lodged now because the applicant was for the first time informed on 6/5/04 by his current Pension Officer that his application was rejected in June 1996, when he applied for “household services”” (pages 75 to 77).
11. At the hearing of the application Mr De Marchi on behalf of Mr Thomsen submitted that his client had “no record of being sent the letter from DVA of November 1996” and accordingly Mr Thomsen had never been advised that the effects of injury had been deemed to have ceased. He submitted that the letter from the respondent of 30 January 2004 (page 54) should be “treated” as the reconsidered decision. However, when it was pointed out to Mr De Marchi that in the application for extension of time he relied on the letter of 6 May 2004, he then submitted that letter should be regarded as being the reviewable decision. It therefore followed he said that by reason of the application to review being lodged on 9 June 2004 that it had been lodged within time.
12. Mr Lolis on behalf of the respondent submitted that the reviewable decision of November 1996 was forwarded to the applicant’s representative. It was properly addressed, it was prepaid and it was not returned. It was therefore submitted that there should be a finding made that the reviewable decision was communicated to the applicant. Mr Lolis relied on the “principles” decided by Wilcox J in Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344 (“Hunter Valley”) and submitted that the application to extend time should not be permitted. He submitted that there was no acceptable explanation for the delay in the lodging of the proceedings and it could reasonably be inferred that the applicant had rested on his rights by not challenging the decision of 1996 until 2004. He submitted that the letter of 6 May 2004 could not be deemed to have been the reviewable decision and noting that more than seven years had elapsed between November 1996 and June 2004, the application to extend time should be refused.
13. In reply Mr De Marchi submitted that the “real issue” was whether the applicant was given notice pursuant to s61 of the Safety, Rehabilitation and Compensation Act 1988 (“SRC Act”). It was submitted that the applicant is the “claimant” and by reason of the decision of November 1996 not having been served on him – as the claimant – the time for lodging of the proceedings could not commence until such time as Mr Thomsen had been served with the decision under review. It therefore followed that by reason of the decision under review being in fact “the decision” made on 6 May 2004 the principles in the Hunter Valley decision had no application because the applicant was not “out of time”.
14. I then asked Mr De Marchi to consider the contents of a letter written by the District Registrar and forwarded to him and Mr Lolis on 20 August 2004. Omitting irrelevant parts that letter relevantly contained the following paragraph:
Additionally, I am concerned that the decision sought to be reviewed – the reviewable decision of 9 November 1996 – appears to be invalid. I am not expressing a legal view, but I draw your attention to the recent decisions of the Federal Court in Australian Postal Corporation v Oudyn (2003) 73 ALD 659; [2003] FCA 318 and Rosillo v Telstra Corporation Ltd (2003) 77 ALD 396; [2003] FCA 1628. You should also be aware of the decision of the President of the Tribunal in Liu and Comcare [2004] AATA 617.
15. Mr De Marchi then paused to either read the letter – or refresh his memory – and then submitted that he had not referred to the above decisions in his submissions because at all relevant times his client was within time and there had not ever been a need to apply to extend time to commence the proceedings.
16. Mr Lolis submitted that the above decisions were made some six or seven years after the decision of November 1996 and the effect of deciding in retrospect that the decision then made was invalid would unsettle established practices (refer paragraph 4 of Hunter Valley at p349). It was submitted that there would have been “thousands of decisions” made prior to the decisions in Oudyn, Rosillo and Liu which are now at risk of being found as invalid.
17. Mr De Marchi then submitted that the decision of November 1996 should be found to be invalid.
conclusion and reasons for decision
18. But for the discussion which will follow concerning the application of the decisions of Oudyn, Rosillo and Liu the application to extend time should be refused.
19. As a matter of law and fact the decision made on 9 November 1996 is the reviewable decision in these proceedings. Mr Richards was the applicant’s representative at that time. The applicant had instructed him to act on his behalf and prior correspondence from Mr Richards would attest this. That the applicant would assert that he, as the claimant, was not ever notified of that decision but advance it as the basis of an extension of time some seven years after the letter was received defies rational belief.
20. I am of the view that it may reasonably be inferred that the applicant had in fact abandoned that application – and probably Mr Richards – because on 9 January 2004 he made another claim upon the respondent for compensation with respect to the same injury. At that time he was living at 55 Cumberland Road, Pascoe Vale. The Pascoe Vale Sub-Branch to the RSL is located at 40 Cumberland Road, Pascoe Vale. Mr Thomsen then decided to engage Mr Tusler a pensions officer of the Maribyrnong/Maidstone RSL Branch to act on his behalf. In that claim he sought compensation for household services. In March 2004 Mr De Marchi initiated a claim for lump sum compensation for permanent impairment with respect to the back injury. When the respondent advised Mr De Marchi on 6 May 2004 that a decision had been made by it on 9 November 1996 to end liability by deciding that the effects of injury had ceased at 10 January 1974, it was submitted that the letter of 6 May 2004 should be regarded as a reviewable decision. In those circumstances the application lodged on 1 June 2004 was within time.
21. The submission that the letter of 6 May 2004 should be deemed to be the reviewable decision is without merit. It is clearly not a “reviewable decision” within the meaning of s60 or s62 of the SRC Act. The letter of 6 May 2004 was written after a claim was made for lump sum compensation. A reviewable decision, is a decision made upon a request to reconsider a determination or upon reconsideration by the respondent’s own initiation. A determination with respect to the claim for lump sum compensation was not ever made, no request for reconsideration could have been made and the letter of 6 May 2004 was not the result of an own motion review.
22. The principles to be considered when exercising a discretion to extend time are found within the Hunter Valley decision. Whilst there have been slight modification to those principles by subsequent decisions of the Federal Court I would be obliged to find that an extension of time to review the decision of 9 November 1996 should not be granted. There is a 60 day limit upon lodging proceedings with respect to reviewable decisions made under the SRC Act. More than seven and a half years has elapsed since November 1996. The applicant has advanced an explanation for his delay but it would not in the circumstances be “fair and equitable” to extend the time to permit the proceedings to be lodged. There is nothing that points to the applicant having taken any action subsequent to November 1996 to put the respondent on notice that the decision of 9 November 1996 was being challenged or to notify the decision-maker that it was intended to contest the finality of that decision. It is clearly a case of the applicant having “rested on his rights”. That conclusion may also be reached having regard to the making of another claim upon the respondent in 2004. Whilst there was no evidence of the respondent suffering prejudice, it would not be hard to imagine that in an application involving a delay of more than seven and a half years from the occasion of the decision under review being made – and having regard also to the injury having occurred in 1966 – that documents may have been lost or destroyed, witnesses may have died or might not be located and if they were located their memories may have failed. In the context also of the application of the SRC Act and the relevance of the legislation which proceeded that Act namely the Compensation (Commonwealth Government Employees) Act 1971 and the Commonwealth Employees Compensation Act 1930, a significant evidentiary and prejudicial issue is likely to emerge, namely, whether the applicant has any entitlement to lump sum compensation for back injury and if so whether it could be found as a fact that the injury was an “impairment” which had become “permanent” after 1 December 1988.
23. This would have been an application which clearly would have unsettled established practices. Fairness as between other applicants in similar positions would probably have caused this application to be unsuccessful and the objective of litigation ending would have been significant matters to be considered in the exercise of the discretion. Additionally – noting that Mr De Marchi submitted that neither he nor his client had any medical evidence to support the claim, it would have been impossible to find that the application had any merit.
24. On 18 June 2004 the President of this Tribunal together with a Deputy President and a Senior Member delivered a decision in Liu v Comcare [2004] AATA 617. At paragraphs 1, 2 and 3 of that decision it was decided as follows:
1. Section 14 of the Safety, Rehabilitation and Compensation Act 1988 creates a general liability for the payment of compensation to injured workers covered by the Act. It does not address categories of compensation. It does not address quantification. That is left to other sections of the Act. An initial determination of entitlement to compensation under the Act will normally incorporate a finding in favour of the claimant both under s 14 and also under one of the other sections of the Act (eg. ss 16, 19 or 24).
2. A positive determination under s 14 is a determination of the existence of a compensable injury. The nature and amount of the compensation is to be determined under other provisions of the Act. Compensable injuries may not always result in the payment of compensation. They may give rise to intermittent entitlements to compensation. There may be periods when there is no present entitlement to compensation under any of the sections of the Act relating to the nature and amount of compensation. But during such periods an injury which has been determined to be a compensable injury under s 14 will not cease to be a compensable injury. It will simply be correct to say during some periods that at the present the compensable injury does not give rise to an entitlement to compensation. Such periods may be long. The compensable injury may never give rise to any future entitlement to compensation. But this can not be known or determined in advance. No determination, whether by consent of the parties or not, can preclude the making of a future application for compensation with respect to a compensable injury determined to exist under s 14. This was made clear in Plumb v Comcare (1992) 39 FCR 236 at 240.
3. The only time that liability under s 14 can be reconsidered is under s 62. But that is a reconsideration of whether the original determination was correct on its merits and cannot address any issue of cessation of correctly determined liability. A changed determination upon such a reconsideration is a determination that there never was a compensable injury (see Australian Postal Corporation v Oudyn (2003) 73 ALD 659 at 666-667).
25. Later, after the Tribunal discussed the application of Oudyn and Rosillo the Tribunal concluded that there were two conditions precedent that must be present before the Tribunal can exercise its discretion under s42C of the AAT Act namely:
1) The Tribunal must be satisfied that a decision in or consistent with the terms of the agreement "would be within the powers of the Tribunal"; and
2) It must appear to the Tribunal to be appropriate for the Tribunal to make such a decision.
26. The Tribunal then decided the following:
12. We have considered the amended form of the terms of settlement with care. We did so with a view to considering whether the following criteria, which we consider flow from the Act, have been satisfied by the proposed decisions. The criteria are that determinations:
(a) should not suggest that liability has ceased;
(b) should not suggest that no future liability can exist; and
(c) should speak only as to present liability.
27. In the present application the reviewable decision of 9 November 1996 recorded that the effects of the injury at 12 December 1966 had ceased by 10 January 1974. Thereafter the respondent consistently maintained its denial of subsequent claims. It did so on the basis that having decided that the effects of injury had ceased at 10 January 1974 it no longer had any liability.
28. That decision offends the principles found within Oudyn, Rosillo and Liu.
29. Having regard to paragraph 12 of the decision in Liu, the respondent should not have decided that the effects of injury had ceased nor should it have decided that liability had ceased. Additionally it should not have decided that there could be no future liability. The respondent should have decided that at 9 November 1996 it then did not have any present liability. On each occasion that the applicant had subsequently claimed the respondent should have made a decision as to whether it then had a “present liability”.
30. Mr Lolis was concerned that the law as was clarified by these three decisions would not only affect the present application but could affect many other applications which might be the subject of future proceedings. Indeed it was put that established practices would be unsettled if the effect of these decisions as pronounced in 2003 and 2004 were imposed retrospectively.
31. The reference by Wilcox J to established practices being unsettled was a reference only to one of the factors which should be considered in the exercise of a discretion where an application is being made to extend time to lodge proceedings. It is inherent by His Honour’s decision that the decision sought to be reviewed out of time was lawfully made.
32. In the present application the decision of 9 November 1996 was not lawfully made and must be regarded as a nullity. As Madgwick J decided in Rosillo (at paragraph 20), when the Tribunal affirmed a reviewable decision to cease liability, it affirmed a nullity. His Honour decided that the Tribunal should have set the decision aside.
33. If the application had been lodged within time, I would have remitted it to the respondent for reconsideration pursuant to s42D of the AAT Act. However this cannot occur because until time is extended to permit the proceedings to be lodged, there is no “proceeding for review of a decision” within the meaning of s42D(1). Accordingly the following comments are admittedly gratuitous but the unusual circumstances in which both parties find themselves causes me to recommend –
(i)If the applicant does intend to proceed to claim compensation under the SRC Act he should notify the respondent accordingly and request it to issue an own motion review of its decision of 9 November 1996;
(ii)If such a notification is made the respondent should, consistent with the decisions of Rosillo, Oudyn and Liu and pursuant to the Model Litigant Policy of the Commonwealth, issue an own motion review defining its “present liability”;
(iii)Such a decision would be capable of review (if it is decided that liability is presently denied) and an application to review should be lodged within 60 days.
I certify that the 33 preceding paragraphs are a true copy of the reasons for the decision herein of Mr J Handley, Senior Member
Signed: Grace Carney
Personal AssistantDate of Hearing 31 August 2004
Date of Decision 6 September 2004
Solicitor for the Applicant Mr D De Marchi
Solicitor for the Respondent Mr C Lolis
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