Weeks and Military Rehabilitation and Compensation Commission (Veterans' entitlements)

[2023] AATA 1614

Weeks and Military Rehabilitation and Compensation Commission (Veterans' entitlements) [2023] AATA 1614 (13 June 2023)

Division:GENERAL DIVISION

File Number(s):      2022/0868

Re:John Weeks

APPLICANT

AndMilitary Rehabilitation and Compensation Commission

RESPONDENT

DECISION

Tribunal:Member Lee Benjamin

Date:13 June 2023

Place:Brisbane

The application was dismissed on 25 May 2023 pursuant to subsection 42A(1B) of the Administrative Appeals Tribunal Act 1975 (Cth).

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Member Lee Benjamin

CATCHWORDS

Application withdrawn in error, application dismissed by operation of law

LEGISLATION

Administrative Appeals Tribunal Act 1975 (Cth)

Safety, Rehabilitation and Compensation (Defence-related Claims) Act 1988 (Cth)

CASES

Kalafatis and Commissioner of Taxation [2012] AATA 150

REASONS FOR DECISION

Member Lee Benjamin

13 June 2023

1. Mr John Weeks made an application for review of a Military Rehabilitation and Compensation Commission decision, which denied liability to pay compensation under section 14 of the Safety, Rehabilitation and Compensation (Defence-related Claims) Act 1988 (Cth) (reviewable decision).

2. On 25 May 2023, Mr Weeks wrote to the Tribunal and indicated that:

   I … withdraw my Psychological claim, as I have gone as far as I can go with this matter under these particular circumstances.

3. Also on 25 May 2023, Mr Weeks wrote to the Tribunal and indicated that:

   I have formally withdrawn my Psychological Case as of today.

4. On 29 May 2023, in response to Mr Weeks’ correspondence with the Tribunal, the Tribunal contacted Mr Weeks by telephone to ascertain his position on the application. Mr Weeks advised the Tribunal that he:

   …no longer wished to withdraw his application.

5. On 30 May 2023, Mr Weeks wrote to the Tribunal to advised that:

   I require further consideration of my claim concerning Administrative incompetence.

6. On 31 May 2023, Military Rehabilitation and Compensation Commission’s solicitor, the Australian Government Solicitor (AGS) wrote to the Tribunal and requested formal notification that Mr Weeks’ application was dismissed on 25 May 2023 pursuant to subsection 42A(1B) of the Administrative Appeals Tribunal Act 1975 (Cth) (AAT Act). The AGS’s position is that:

   This application was dismissed by operation of section 42A(1B) of the AAT Act when the applicant notified the Tribunal his application for review of the reviewable decision was withdrawn on 25 May 2023. Section 42A(1B) provides that where notification is given in accordance with subsection (1A), the Tribunal is taken to have dismissed the application without proceeding to review the decision.

   …

   The Tribunal should not interpret the applicant’s correspondence of 30 May 2023 as indicating that he did not intend to withdraw his application for review of the reviewable decision…. Further the ‘administrative claim’ is clearly outside the scope of the reviewable decision because it is not in relation to an alleged injury. Once the applicant withdrew his ‘psychological claim’ there was nothing else within the Tribunal’s jurisdiction to determine in this application.

7. On 7 June 2023, the Tribunal convened a Directions Hearing by Telephone:

   ·Mr Weeks explained that he is self-represented and withdrew his application in error.

   ·The AGS reiterated that Mr Weeks’ application was dismissed by operation of law on 25 May 2023 and helpfully drew the Tribunal’s attention to several cases supporting that submission, including Kalafatis and Commissioner of Taxation [2012] AATA 150.

   ·The AGS also submitted that Mr Weeks so-called ‘administrative claim’ is not a matter within the Tribunal’s jurisdiction in reviewing the reviewable decision. 

   ·The AGS noted that it was open for Mr Weeks to approach the Tribunal to apply to reinstate his application.

8. While I accept that Mr Weeks has withdrawn his application in error, I nevertheless find that his correspondence with the Tribunal on 25 May 2023 constitutes a withdrawal notification for the purposes of subsection 42A(1A) of the AAT Act. By operation of subsection 42A(1B) of the AAT Act, the Tribunal ceased to have jurisdiction over Mr Weeks’ application on 25 May 2023. As Deputy President Forgie explained in Kalafatis and Commissioner of Taxation [2012] AATA 150 [55]:

   The outcome is that, as soon as an applicant’s notification of withdrawal arrives at the Tribunal, be it physically in paper form or in electronic form, it has been deposited in, and so lodged, in the Tribunal, the applicant’s application is taken to have been dismissed. The applicant cannot have a change of heart and seek to withdraw the notification. Even if for some reason the Registry did not place the withdrawal on the appropriate file, the application would be withdrawn because s 42A(1B) takes effect on lodgement and not on filing.

9. I find that Mr Weeks’ application was dismissed on 25 May 2023 pursuant to subsection 42A(1B) of the AAT Act.

10. It is open for Mr Weeks to apply to the Tribunal to reinstate his application.

11.      

I certify that the preceding ten (10) paragraphs are a true copy of the reasons for the decision herein of Member Lee Benjamin

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Associate

Dated: 13 June 2023

Date of Telephone Directions Hearing:	7 June 2023
Applicant:	By Telephone
Solicitor for the Respondent:	Mr Jamie Watts Australian Government Solicitor