Wade and Military Rehabilitation and Compensation Commission

[2007] AATA 1965

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2007] AATA 1965

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No  2007/3868

VETERANS’ APPEALS  DIVISION		)
Re		Jeffrey Wade

Applicant

And Military Rehabilitation and Compensation Commission

Respondent

DECISION

Tribunal Senior Member B J McCabe

Date16 November 2007

PlaceBrisbane

Decision The Tribunal does not have jurisdiction to hear the application. The application is therefore dismissed.  

....................[Sgd].......................

SENIOR MEMBER

CATCHWORDS

PRACTICE AND PROCEDURE – Application for Review – jurisdiction question – request to respondent for reconsideration – whether reviewable decision made by respondent – reconsideration request made out of time – no jurisdiction of the Tribunal – application dismissed

Safety, Rehabilitation and Compensation Act 1988 ss 27(3), 60, 62, 63(3)

Administrative Appeals Tribunal Act 1975 s 25(5)

Wade and Military Rehabilitation and Compensation Commission [2007] AATA 1182

REASONS FOR DECISION

16 November 2007 Senior Member B J McCabe         

1.      Mr Jeffrey Wade has asked the Tribunal to review a decision of the Military Rehabilitation and Compensation Commission. The Commission says the Tribunal does not have jurisdiction to deal with the application because there is no reviewable decision. It adds that in any event the substance of the matter has already been heard and determined by the Tribunal on a previous occasion. Mr Wade disagrees.

2.      I am satisfied the Tribunal does not have jurisdiction to deal with the matter. The application is therefore dismissed. I explain my reasons below.

factual background

3.      Mr Wade suffers from a knee condition that arose as a result of an injury he sustained while playing football in the Navy in 1961. The respondent has accepted liability for a swollen left knee which includes osteoarthritis of the left knee. (The determination in relation to the swollen left knee is dated 21 February 2006; the determination to include osteoarthritis of the left knee was made on 19 May 2006.) Mr Wade previously sought a payment under the Safety, Rehabilitation and Compensation Act 1988 (the Act) in respect of non-economic loss. His claim was rejected by the respondent. The Tribunal affirmed the decision in Wade and Military Rehabilitation and Compensation Commission [2007] AATA 1182. The Tribunal explained in its reasons that Mr Wade was not eligible to receive compensation for non-economic loss because he failed to make a claim in respect of his permanent impairment within the time prescribed by s 27(3) of the Act: at [42]-[43]. Section 27(3) says a person who claims to suffer a permanent impairment that arose prior to 1 December 1988 must have made his or claim for non-economic loss by a prescribed date (ie, 7 December 2000). Mr Wade’s claim was made after that date.

4. The respondent says Mr Wade is seeking to re-run his earlier claim seeking compensation for non-economic loss. Mr Wade says that is not so. He says his current application relates to his osteoarthritis of the left knee, which – although a sequela to the original injury – did not result in a permanent impairment until around 1999 when his knee locked and he received treatment. If his argument is right, he would be able to avoid the bar to actions for non-economic loss contained in s 27(3) that frustrated his earlier claim.

5.      Mr Wade wrote to the Commission on 2 July 2007 and asked that it reconsider the determination dated 19 May 2006 extending liability to include osteoarthritis. Mr Wade argues the Commission should not have found the osteoarthritis had caused a permanent impairment until 1999. The Commission responded to Mr Wade on 23 July 2007. The writer noted the determination had already been reconsidered and the decision had been affirmed on review by the Tribunal. He said the Commission declined to reconsider the claim on the basis that it had already been heard and determined.

6.      Mr Clark, for the respondent, says the letter from the respondent dated 23 July 2007 does not constitute a reviewable decision. In those circumstances, he argues, the Tribunal does not have jurisdiction to deal with the matter. The Commission’s letter of 23 July 2007 explains what it regards as the appropriate course for Mr Wade: if he wishes to dispute his degree of permanent impairment, he should submit a fresh claim and allow it to be dealt with in the ordinary course. That may or may not result in an application to the Tribunal in due course – but that would be a question for another day.

7. Mr Wade, for his part, says he has asked the Commission to reconsider the decision pursuant to s 62 of the Act. He says the Commission’s refusal to do so is effectively a decision in the negative (ie, a decision to affirm the original decision). His contention appears to rely on the argument that s 60 of the Act defines ‘decision’ by reference to the definition of ‘decision’ in the Administrative Appeals Tribunal Act 1975. Section 25(5) of the Administrative Appeals Tribunal  Act 1975 says a decision-maker’s failure to do something it is required to do within a specified time should be treated as a decision by the person not to do that act or thing.

8. There is something to Mr Wade’s argument, but I do not think I need to deal with it in these proceedings. Mr Wade’s request for a reconsideration dated 2 July 2007 was made well over a year after the original determination was issued. Section 63(3) of the compensation Act requires that requests for a reconsideration be made within 30 days of the date on which the decision first came to the applicant’s notice. The respondent is able to grant an extension of time (s 63(3)(b)) and a decision to refuse an extension of time can presumably be appealed to the Tribunal. But that has not occurred here.

9.      The request for reconsideration was made out of time. An extension of time has not been granted. The respondent’s correspondence does not amount to a reviewable decision in those circumstances. It follows the Tribunal has no jurisdiction to deal with the matter. The application is dismissed.

I certify that the 9 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member Bernard J McCabe.

Signed:         .....................................................................................
  Stephen O’Grady, Associate

Date of Hearing of Jurisdiction 5 November 2007
Date of Decision  16 November 2007
For the applicant  Self-represented
For the respondent                   Mr Clark, of counsel