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[2010] AATA 180
General information, not legal advice.
Administrative Appeals Tribunal of Australia
2010-03-17
Original judgment source is linked above.
And: MILITARY REHABILITATION AND COMPENSATION COMMISSION
CORRIGENDUM TO DECISION [2010] AATA 180
The Tribunal amends its decision and reasons for decision published on 17 March 2010 as follows:
CATCHWORDS - COMPENSATION - application to review reviewable decision accepting liability for a condition - whether necessary implication that claims for permanent impairment and non-economic loss refused - characterisation of reviewable decision - limited to liability for injury alone.
PRACTICE AND PROCEDURE - application to dismiss application on basis that it is frivolous and vexatious - parameters of power - application dismissed.
Australian Postal Corporation v Ouydn [2003] FCA 318; (2003) 73 ALD 659
Director General Security v Sultan and Another [1998] FCA 1548; (1998) 90 FCR 334
General Steel Industries Inc v Commissioner for Railways (N.S.W.) [1964] HCA 69; (1964) 112 CLR 125
Grassby v The Queen [1989] HCA 45; (1989) 168 CLR 1
Irwin v Military Rehabilitation and Compensation Commission [2009] FCAFC 33
JF Keir Pty Limited v Sparks [2008] FCA 611
Lees v Comcare [1999] FCA 753; (1999) 29 AAR 350
Pitt v OneSteel Reinforcing Pty Limited [2008] FCA 923
Re Bienstein and Attorney-General (Commonwealth of Australia) [2008] AATA 330
Re Fuad and Telstra Corporation Limited [2004] AATA 1182; (2004) 39 AAR 496
Re Williams and Australian Electoral Commission and The Greens (party joined) [1995] AATA 160; (1995) 38 ALD 366
Walton v Gardiner [1993] HCA 77; (1993) 177 CLR 378; (1993) 112 ALR 289; (1993) 67 ALJR 485
DECISION AND REASONS FOR DECISION [2010] AATA 180
And: MILITARY REHABILITATION AND COMPENSATION COMMISSION
dismisses the application under s 42B of the Administrative Appeals Tribunal Act 1975.
The central issue in this case is whether Mr Vincent can obtain any benefit or advantage by pursuing his application for review of the reviewable decision of the Military Rehabilitation and Compensation Commission (MRCC) dated 9 February 2009. On its face, that reviewable decision decided that MRCC's liability extended to Mr Vincent's condition of major depressive disorder. There is a question whether the Tribunal was limited to review of that decision or whether it could also review whether Mr Vincent was entitled to compensation for permanent impairment and non-economic loss. I have decided that the Tribunal's powers are limited and do not extend to a consideration of Mr Vincent's entitlement to compensation for permanent impairment and non-economic loss. As Mr Vincent has not questioned the MRCC's acceptance of liability for major depressive disorder but seeks compensation for permanent impairment and non-economic loss, I have decided that his application should be dismissed under s 42B of the Administrative Appeals Tribunal Act 1975 (AAT Act). I have made that decision because no practical outcome could be achieved by his pursuing that application.
Claim to Repatriation Commission under VE Act in respect of PTSD, heart disease, diabetes mellitus and pleural plaque: 24 August 2006
Claim to the MRCC in respect of right ocular melanoma and Bowen's disease
Claim under SRC Act dated 29 October 2007 and submitted on 10 July 2008 in respect of major depressive disorder
"Please find enclosed a Claim for Rehabilitation and Compensation (D2020) form dated 29 October 2007. You will note that Part 9 of this form has not yet been completed by my client. I have therefore sent a duplicate of the form to him so he can duly authorise the Commission to investigate this claim.
Given the obvious urgency of this claim, my client would appreciate you doing everything you can to register and process this claim until Part 9 has been received by you."[5]
Form of claim under SRC Act in respect of major depressive disorder
"If it is determined that there is liability to pay you compensation, what benefits you will be seeking?"
"... asked to accept liability for my client's claimed condition, namely Major Depressive Disorder, and determine his entitlement to compensation for Permanent Impairment and Non-Economic Loss - you are specifically asked to make a Determination under sections 24 and 27 of the SRCA.
Please note that Lees v Comcare [1999] FCA 753; (1999) 29 AAR 350 and Oudyn v Australian Postal Corporation [2002] AATA 72 (7 February 2002) support the principal [sic] that a claim for Permanent Impairment can be submitted where no Determination of liability has been made.
The medical evidence provided to you with this letter supports that my client's impairment resulting from the claimed condition is now permanent and stable and is assessable at 25% under Table 5.1 of the approved Guide."[10]
Request for MRCC reconsideration: 2 October 2008
18. In a letter dated 2 October 2008, Mr Mason asked the MRCC to reconsider its determination. He submitted that the MRCC had failed to give any weight or any sufficient weight to Mr Vincent's evidence and that it had failed properly to apply the relevant law to the claim.[19]
VRB's decision in respect of claims for PTSD and alcohol dependence (partial remission): 27 October 2008
19. On 27 October 2008, the VRB decided to set aside the decision of the Repatriation Commission in relation to PTSD and substituted a decision that the Commonwealth is liable to pay pension for incapacity arising from PTSD. First, the VRB accepted that Mr Vincent was suffering from PTSD. It then decided whether his PTSD was, on the balance of probabilities, connected with the circumstances of his relevant service which, in his case, was defence service. There was, it decided, material pointing to his witnessing the crash of an F111 aircraft at the Evans Head Range and to his seeing the remains of the pilot and navigator. That related to his defence service. Therefore, Mr Vincent's hypothesis that his PTSD was connected with his defence service was consistent with the factors in cl 6(b) or (f) of the Statement of Principles determined by the Repatriation Medical Authority (RMA) in relation to posttraumatic stress disorder.[20] Those factors required that Mr Vincent experienced a Category 1B stressor[21] either immediately before the clinical onset of his PTSD or before the clinical worsening of that condition. The RMA determined the factors on the basis that:
"On the sound medical-scientific evidence available, the Repatriation Medical Authority is of the view that it is more probable than not that posttraumatic stress disorder and death from posttraumatic stress disorder can be related to relevant service rendered by veterans or members of the Forces under the VEA, or members under the Military Rehabilitation and Compensation Act 2004 (the MRCA)."[22]
With regard to alcohol dependence (in partial remission), the VRB affirmed the Repatriation Commission's decision.
MRCC's acknowledgment of request for reconsideration: 6 November 2008
20. On 6 November 2008, a delegate of the MRCC wrote to Mr Vincent's solicitors advising that the request for reconsideration had not referred to any new material. Unless they provided further information, the reconsideration would be undertaken on the basis of the existing material. The delegate extended the time within which new material could be submitted to 9 January 2009.
21. I note that the letter of acknowledgement was written from the Brisbane office of the MRCC. Like all other offices of the MRCC, it is located within the Department of Veterans' Affairs.
Further medical reports: 10 and 24 November 2008
22. On 10 November 2008, Dr Les Ding, a Consultant Psychiatrist, prepared a report for the MRCC and sent it to its Melbourne office. In his opinion, Mr Vincent suffered from both PTSD and a major depressive disorder. The latter had developed as a co-morbid condition with PTSD[23] and had been contributed to by Mr Vincent's melanoma and subsequent surgery and complications.[24] As the Commonwealth had accepted liability for both right ocular melanoma resulting in enucleation and associated weakness of the right facial muscles as well as Bowen's disease of the left side of the face,[25] Dr Les Ding expressed his opinion in a later report dated 24 November 2008 that there were no factors other than Mr Vincent's employment with the Australian Defence Force that had aggravated his Major Depressive Disorder.[26]
MRCC's further determination in Melbourne: 28 November 2008
23. On 28 November 2008, a delegate of the MRCC located in Melbourne decided that Mr Vincent had suffered an injury arising out of, or in the course of, his military service and made a determination that liability be extended to include aggravation of major depressive disorder.[27]
24. The delegate who made this decision was the delegate who made the determination of 26 September 2008. She had disallowed the claim but left open the question whether she would "investigate an extension of liability on the accepted condition of right ocular melanoma_" to include the condition of major depressive disorder._" She had asked for a report from Dr Les Ding and had received the report even though Mr Mason was not aware of this at the time. Her decision of 28 November 2008 is the completion of her determination that comprised two steps: the first dated 26 September 2008 that left open one aspect of the claim and the second that was dated 28 November 2008. The second is not a review of the first determination but a completion of it. I refer to it as the determination dated
Letter from Mr Vincent's solicitors to MRCC in Brisbane: 28 November 2008
25. It would seem from Mr Mason's letter to the MRCC's Brisbane office dated 28 November 2008 that he was yet to receive notice of the further determination from its Melbourne office. He referred to a conversation between his legal assistant and the Brisbane office earlier in the day and noted that the MRCC was yet to receive a copy of Dr Ding's reports from its Melbourne office. Mr Mason confirmed that the MRCC did not require any further information and that it would contact him to discuss his client's request for reconsideration.
26. Mr Mason would also seem to have been unaware of the determination made in the Melbourne office when he wrote again to the Brisbane office of the MRCC on
1 December 2008. This is apparent from his statement that he was unsure whether the file was "... still in Melbourne (to determine whether to extend liability on the accepted condition Right Ocular Melanoma to include Major Depressive Disorder), or has now been forwarded to Brisbane for reconsideration of the Determination dated 26 September 2008 ...".[28]
Continuation of initial request for reconsideration and further request for reconsideration: 3 December 2008
27. That Mr Mason was unaware is confirmed in his further letter of 3 December 2008 to the MRCC in Brisbane. He did not receive the determination until 2 December 2008 but Mr Mason emphasised that this did not mean that the request for reconsideration was withdrawn. It was not and, furthermore, on behalf of his client, he now asked the MRCC to reconsider the determination dated 28 November 2008 because:
"1. the Commission failed to determine my client's entitlements under sections 24 and 27 of the SRCA as claimed by my client in the letter dated 10 July 2008;
Determination regarding claim for major depressive disorder: 17 December 2008
28. On 17 December 2008, a delegate of the MRCC based in Brisbane referred to Mr Vincent's claim for major depressive disorder. She noted that a claim for that condition had previously been accepted:
"... as a sequela to his right ocular melanoma condition ... This determination deals with post traumatic stress disorder."[30]
The delegate determined that Mr Vincent's military service had contributed in a material degree to his contracting PTSD.[31]
Request for reconsideration: 22 December 2008
29. In a letter dated 22 December 2008 written by Mr Mason on behalf of his client, the MRCC was asked to reconsider its determination dated 17 December 2008. The basis on which reconsideration was sought mirrored that on which he had previously sought it in relation to the MRCC's determinations dated 26 September 2008 and 28 November 2008.
Reconsideration of determination made on 26 September 2008: 9 February 2009
30. In a letter dated 9 February 2009, a delegate of the MRCC based in Brisbane wrote to Mr Mason.[32] She advised him that she had reconsidered the MRCC's determination dated 26 September 2008 in respect of Mr Vincent's claim for major depressive disorder. The delegate decided to revoke the determination and to determine instead that liability extended to Mr Vincent's condition of major depressive disorder.
Mr Mason's letter to the MRCC: 27 February 2009
31. Mr Mason wrote to the MRCC at its Brisbane office on 27 February 2009. He enclosed copies of his earlier letters dated 10 July 2008, 2 October 2008 and 1, 3 and
22 December 2008. He wrote that it had always been clear that Mr Vincent's claim had been made for compensation under ss 24 and 27 of the SRC Act. He invited the MRCC to reconsider the whole of the claim using its power to do so on its own motion. If it did not, he was instructed to lodge an application in the Tribunal to review the reviewable decision dated 9 February 2009.[33] Mr Mason sent a copy of his letter and its enclosures to Mr Paul Ontong, the Director of Reconsiderations and Appeals in the MRCC.[34]
32. On 27 February 2009, the delegate from the Brisbane office called Mr Mason to say that Mr Vincent's file had been returned to the Melbourne office for determination of permanent impairment. She had reconsidered only whether the Commonwealth was liable under s 14 of the SRC Act. When Mr Mason said that Mr Vincent's claim had been in respect of ss 24 and 27 and they had yet to be determined, Mr Mason understood the delegate to say that she could not undertake that reconsideration. She did not have the file and that she would need to speak with Mr Ontong or with the Assistant Director of Reconsiderations and Appeals, Mr Paul Reis.[35]
Application to the Tribunal for review of reviewable decision dated 9 February 2009: 10 March 2009
33. On 10 March 2009, an application was lodged in the Tribunal on Mr Vincent's behalf. The application sought review of the MRCC's reviewable decision dated 9 February 2009. The reasons lodging the application were said to be "Error of Fact" and "Error of Law".[36]
34. In a letter dated 14 May 2009, another delegate of the MRCC located in Brisbane wrote to Mr Mason:
"I refer to your client's request for a permanent impairment lump sum payment for their [sic] accepted conditions namely, major depressive disorder and post traumatic stress disorder.
In assessing your client's entitlement to compensation by way of a lump sum payment, Table 5.1 may be used to assess the degree of impairment that has resulted from your client's accepted conditions.
On the basis of the specialist medical advice, it appears that he suffers a whole person impairment as a result of his compensable injury and that the degree of impairment is 25%. Enclosed is a copy of Comcare Table 5.1
The total amount of compensation payable to him is $55,364.62 which consists of $37,599.05 under Section 24 of the Act and $17,765.57 under Section 27 of the Act for non-economic loss."[37]
35. The letter then set out over three pages of reasons for reaching these figures. It then advised him on its fifth page that Mr Vincent had a right to sue the Commonwealth, a Commonwealth agency or a Commonwealth employee for damages at common law if the believed that his permanent impairment resulted from their negligence. That right arises under s 45 of the SRC Act. If he chooses to do so, his legal costs would be his responsibility and the maximum payment he could receive would be $110,000. Compensation would not be payable under either ss 24 or 27 of the SRC Act.
36. If he were to accept the payment, the letter continued, it could affect any pension he might be paid in the future. The letter noted that Mr Vincent was not then in receipt of a pension. Any decision he made to accept the payment would not affect any other entitlements he had to such things as incapacity payments, medical expenses and rehabilitation. Were his condition to deteriorate, Mr Vincent could request a reassessment of the degree of permanent impairment.
"This letter is to advise your client of the amount payable (subject to clearance from within DVA), to enable your client to make an informed decision as to whether he wishes to receive the compensation or institute proceedings at common law.
This is not a formal assessment or determination of the amount of compensation which may be paid for his impairment. A formal determination and assessment of the amount of compensation payable to your client will be made when we proceed to make the payment or your client tells us what he wants to do.
Please complete and return the attached Election Form, advising whether or not your client wishes to receive the offered compensation or institute proceedings at common law, within 21 days. ..."
Clarification of impact of offer on Disability Pension paid to Mr Vincent under VE Act: 25 May 2009
38. In a letter dated 25 May 2009, the delegate of the MRCC wrote again to Mr Vincent's solicitors. She repeated the offer and advised him of the effect on the Disability Pension paid to him under the VE Act. An amount of $10,007.35 would be recovered from the total amount of $55,364.62 payable to him. His ongoing fortnightly payments of Disability Pension would be reduced by $126.79 under the VE Act.
"If the payment of the offered lump sum would affect any current Disability Pension or if your client is receiving an Income Support pension from DVA then we will take no further action on this matter until your client returns the election or otherwise tells us what to do."
40. In a letter to the MRCC's Brisbane office, Mr Mason enclosed a document signed by Mr Vincent and electing to receive compensation under the SRC Act. The election was dated 27 October 2007 but the letter was dated 27 May 2009. Mr Mason asked the delegate to make a determination as soon as possible, state her reasons for making it and provide details of the offsetting of Mr Vincent's entitlements under the VE Act.
41. In a letter dated 28 May 2009, a delegate in the MRCC's Brisbane office advised Mr Vincent, through his solicitors, that she had determined that he had suffered a whole person permanent impairment as a result of his major depressive disorder and PTSD. The degree of his impairment is 25%. The total amount of compensation payable was $55,364.62 consisting of $37,599.05 under s 24 of the SRC Act and $17,765.57 under s 27. From the total amount, the sum of $10,007.35 would be recovered. The remaining amount of $45,357.27 would be paid within 30 days.
Offer to pay Mr Vincent's reasonable costs: 30 July 2009
42. On 30 July 2009, the MRCC offered to pay Mr Vincent's reasonable costs up to and including to that date. It did so:
"... on the mistaken premise that neither the applicant nor his solicitor were [sic] advised that the applicant's claim for compensation for permanent impairment was still under consideration prior to the determination of 28 May 2009.
17.1 the premise was mistaken because the affidavit of the applicant's solicitor deposes to his being so informed by Ms Lindsay on 27 February 2009"[38]
Mr Vincent's solicitor request that MRCC agree to a decision under s 42C of the AAT Act: 14 August 2009
43. On 14 August 2009, Mr Mason asked the MRCC to agree to "a Consent Order in accordance with s 42C of the [AAT Act], with costs to be agreed or assessed" or "an own motion Reviewable Decision in accordance with paragraph 62(1)(a) of the [Act], with costs payable in accordance with subsection 67(2) of the [Act]."[39]
MRCC's request to the Tribunal to dismiss Mr Vincent's application under s 42B(1) of the AAT Act: 10 August 2009
44. On 19 August 2009, the MRCC asked that Mr Vincent's application be dismissed. It did so on the basis that his application is frivolous or vexatious because the MRCC had already made the payments that Mr Vincent sought under ss 24 and 27 of the MRC Act. In addition, it had offered to pay Mr Vincent the costs of his application to the Tribunal with the amount of those costs to be agreed between them or, in default of agreement, to be taxed. Nothing else, the MRCC submitted, could be achieved by Mr Vincent's application for review.
An injury may entitle employee to compensation but that compensation comprises several different and distinct categories
45. Part II of the Safety Rehabilitation and Compensation Act 1988 (SRC Act) is concerned with entitlement to compensation. Division 1 of that Part is concerned with injuries, property loss or damage and medical expenses. Section 14 of that Division provides:
"(1) Subject to this Part, Comcare is liable to pay compensation in accordance with this Act in respect of an injury suffered by an employee if the injury results in death, incapacity for work, or impairment.
(2) Compensation is not payable in respect of an injury that is intentionally self-inflicted.
(3) Compensation is not payable in respect of an injury that is caused by the serious and wilful misconduct of the employee but is not intentionally self-inflicted, unless the injury results in death, or serious and permanent impairment."
46. The word "injury" is defined in s 5A(1) to mean:
(b) an injury (other than a disease) suffered by an employee, that is a physical or mental injury arising out of, or in the course of, the employee's employment; or
(c) an aggravation of a physical or mental injury (other than a disease) suffered by an employee (whether or not that injury arose out of, or in the course of, the employee's employment), that is an aggravation that arose out of, or in the course of, that employment;
but does not include a disease, injury or aggravation suffered as a result of reasonable administrative action taken in a reasonable manner in respect of the employee's employment."
47. Expressions used in Division 1 of Part 2 are found in Part I. Section 5B defines the word "disease", s 5A(2) defines the expression "reasonable administrative action" and ss 6 and 6A are concerned with the circumstances in which an injury may be treated as having arisen out of, or in the course of, a person's employment.
48. Section 12, also found in Part I, is concerned with the amounts of compensation payable under the SRC Act:
"An amount of compensation payable under a provision of this Act in respect of an injury is, unless the contrary intention appears, in addition to an amount of compensation paid or payable under any other provision of this Act in respect of that injury."
49. Division 1 of Part II of the SRC Act goes on to provide for compensation in respect of particular expenses or losses:
s 15 compensation for loss of or damage to property used by employee; and
51. Division 3 of Part II provides for compensation for injuries resulting in incapacity. Section 19 provides for compensation for injuries resulting in incapacity. The remaining provisions, ss 20-23A, are concerned with particular situations affecting the employee.
52. Division 4 of Part II provides for compensation for injuries resulting in permanent impairment. Section 24(1), for example, provides:
"Where an injury to an employee results in a permanent impairment, Comcare is liable to pay compensation to he employee in respect of the injury."
The amount of compensation is an amount that is the same percentage of the maximum amount as the percentage determined by Comcare as the degree of permanent impairment resulting from the injury.[42] Comcare assesses the degree of permanent impairment under the Guide.[43] Section 26 is concerned with the payment of compensation.
53. What is meant by a "permanent impairment" is ascertained by reference to each of its words. Section 4(1) defines an "impairment" as:
"... the loss, the loss of the use of, or the damage or malfunction, of any part of the body or any bodily system or function or part of such system or function."
The word "permanent" means "... likely to continue indefinitely".[44] For the purpose of determining whether an impairment is permanent, Comcare shall have regard to the matters listed in s 24(2).
54. The remaining provision of Division 4 of Part II, s 27, provides for compensation for non-economic loss. Section 27(1) provides:
"Where an injury to an employee results in a permanent impairment and compensation is payable in respect of the injury under section 24, Comcare is liable to pay additional compensation in accordance with this section to the employee in respect of that injury for any non-economic loss suffered by the employee as a result of the injury or impairment."
55. Division 5 of Part II provides for compensation for household services and attendant care services where, as a result of an injury, the employee obtains household services that he or she requires. Section 29(1) sets the amount Comcare is liable to pay.
56. Part V of the SRC Act is concerned with claims for compensation. Section 53 provides that notice of the injury must have been given to the relevant authority. That is not enough to entitle the person to compensation, however, for s 54(1) provides that:
"Compensation is not payable to a person under this Act unless a claim for compensation is made by or on behalf of the person under this section."
57. As to the form of the claim, s 54(2) provides that:
"A claim shall be made by giving the relevant authority:
(a) a written claim in accordance with the form approved by Comcare for the purpose of this paragraph; and
(b) except where the claim is for compensation under section 16 or 17 - a certificate by a legally qualified medical practitioner in accordance with the form approved by Comcare for the purpose of this paragraph."
If the claim is not accompanied by a certificate by a legally qualified medical practitioner, the claim shall be taken not to have been made until it has been given to the relevant authority.[45] As to the approved form, strict compliance is not required and substantial compliance is sufficient.[46]
58. At my request, the MRCC submitted the form said to have been approved as a compensation claim for permanent impairment and non-economic loss. The form submitted is headed "Compensation Claim for Permanent Impairment" but gives no express indication that it has been approved. That it has approval is presumably implied from the fact that it is provided by the MRCC to the applicant. The form requires DVA to provide certain information in Part A. That information includes basic information such as the claimant's name and the date of the injury but also includes the "accepted condition". Part B must be completed by the claimant's medical practitioner. It asks the medical practitioner to diagnose the claimant's current condition and then whether this is the accepted condition. If it is not, that is an end of the matter. If it is not, the medical practitioner is asked to give details of the impairment that has resulted from the accepted condition, whether the condition has stabilised and the extent of the impairment.
59. After it has accepted liability for an injury, the MRCC also sends to the applicant a Benefit Election Form.[47] The form asks for information about the applicant's medical discharge, weekly incapacity payments, permanent impairment, medical costs, the work done before the injury and household services required. The MRCC also sends the applicant a document entitled "Non-Economic Loss Questionnaire". The questions that it asks the applicant to answer are all directed to the effects of any permanent impairment assessable under Part I of the Guide to the assessment of the Degree of Permanent Impairment".
Different and distinct categories of compensation require different claims
60. It is clear from the structure of Parts II and V that the SRC Act provides for and distinguishes various categories of compensation. Those categories relate to matters such as medical expenses and extend to incapacity, permanent impairment and other expenses consequent upon the injury. The separate nature of the categories of compensation specified in Part II of the Act is emphasised by the requirement in s 54 that a claim for compensation must be made. By expressly excluding a claim for compensation under ss 16 and 17 from its operation, s 54(2)(b) underlines that a claim for compensation is a claim for compensation in respect of a sort specified in a particular section in Part II. It is not a claim for compensation in respect of all or any of the sorts specified in Part II of the Act.
62. A "determining authority" is the person who makes a determination[50] and includes a delegate of the MRCC. Subject to one exception, the determining authority is required to set out the determination in writing and to give reasons for making it.[51] A "determination" means "... a determination, decision or requirement made under section 14, 15, 16, 17, 18, 19, 20, 21, 21A, 22, 24, 25, 27, 29, 30, [or] 31 ..." and others, all of which are found in Part II of the SRC Act.
63. A determining authority may reconsider a determination it has made either on its own motion or at the request of, among others, the claimant. That is the effect of ss 62(1) and (2) found in Part VI of the SRC Act. The decision that it makes on redetermination is a reviewable decision.[52] An application may be made to the Tribunal for review of a reviewable decision under s 64.
64. On their face, these provisions maintain the clear distinction between different types of compensation. Had Parliament intended that a single determination could be made in respect of one or more than one type of compensation, it would have defined "determination" as "... a determination, decision or requirement made under sections 14, 15, 16, [and/or] 17 ...". Instead, it chose to define it in terms of a "a determination, decision or requirement made under section 14, 15, 16, ... [or] 17 ...". A determination, therefore, relates to compensation under one section or another but not to compensation under more than one at a time.
65. The Full Court considered the structure of the SRC Act including the provisions of Part II, to which I have referred, and to ss 62 and 64 found in Part VI. It looked as well at s 43 of the AAT Act. It did so in Lees v Comcare[53] in a case in which Comcare had determined that it was liable to pay Ms Lees compensation in respect of Morbid Depressive Episode and PTSD on the basis she met the requirements of s 14 of the SRC Act. Ms Lees later claimed reimbursement of a taxi fare when she had to seek medical assistance in relation to her condition. In the course of reviewing Comcare's reviewable decision in relation to that matter, the Tribunal decided that it could decide whether Ms Lees was entitled to compensation for permanent impairment under s 24 of the SRC Act.
66. The Full Court described the decision-making processes set out in the SRC Act as "structured".[54] In that case, that process, their Honours said:
"48 ... In our view, his Honour was plainly right in so concluding. As is mentioned above, on 16 October 1995 an authorised officer of Comcare had determined pursuant to s 14 of the Act that Comcare was liable to pay compensation in accordance with the Act to Ms Lees in respect of the injury suffered by her. That determination had not been the subject of reconsideration under s 62 of the Act and was therefore not a 'reviewable decision' for the purposes of s 64 of the Act. The determination under s 14 established, amongst other things, that Comcare would be liable to pay compensation to Ms Lees under s 24 of the Act if the injury resulted in permanent impairment. We interpolate that we do not read s 24(1) of the Act as a second source of liability to pay compensation in respect of an injury to an employee resulting in impairment. We see that liability as being created by s 14 of the Act. Section 24 we understand as being intended to define the nature and extent of the liability to pay compensation in respect of an injury which results in permanent impairment.
50 The only issues under s 24 of the Act which required determination in Ms Lees' case were the issues of whether she had a permanent impairment and, if she did, the amount of compensation payable under the section in respect of that impairment. Neither of these issues had been determined at the first tier decision-making stage. Necessarily in the circumstances, there had been no reconsideration under s 62 of the Act of a determination on these issues. Consequently there was no reviewable decision touching on these issues to found an application to the AAT under s 64 of the Act. The reviewable decision which founded Ms Lees' application to the AAT was the determination of the Independent Review Officer concerning Ms Lees' entitlement under s 16 of the Act for compensation in respect of taxi fares incurred, or to be incurred, for the purpose of obtaining medical treatment. It was that determination, and that determination only, that s 64 of the Act authorised the AAT to review. The powers of the AAT under s 43 of the AAT Act were powers which it was authorised to exercise for the purpose of reviewing only that determination."[55]
67. The Full Court also considered the case of Mr O'Donohue in Lees v Comcare. Mr O'Donohue had claimed compensation but Comcare had disallowed it on the basis that he had not suffered an injury within the meaning of the SRC Act. Comcare was taken to have made a determination under s 14. Its determination was affirmed on review and Mr Donohue applied to the Tribunal for review of the resulting reviewable decision. The Tribunal considered that it had jurisdiction to consider whether or not he was entitled to compensation for permanent impairment and non-economic loss as well as whether he had suffered an injury for which Comcare was liable to pay compensation. The Full Court of the Federal Court said:
"54 The only application which s 64 of the Act entitled Mr O'Donohue to make to the AAT was an application for review of the reviewable decision made by the Independent Review Officer. The terms of that decision are revealed by the notice in writing served on Mr O'Donohue. No suggestion has been made that the notice in writing misrepresents the actual determination made by the Independent Review Officer.
55 For the AAT to reach a decision as to Mr O'Donohue's entitlement, if any, to receive compensation under s 24 of the Act in respect of a permanent impairment it would have to become involved in a process extending beyond review of the reviewable decision made under s 62 of the Act. It would require the AAT to consider issues not determined at either the first or the second tier of the decision-making process established by the Act.
56 In view of the structured decision-making process established by the Act, and the plain language of s 64 of the Act, the powers of the AAT under s 64 do not, in our view, on an application to review a decision under s 14 of the Act, extend to allowing it to reach a decision as to Mr O'Donohue's entitlement, if any, to receive compensation under s 24 of the Act. In this regard it is immaterial in our view, whether the reviewable decision was one which determined that Comcare was liable to pay compensation in respect of an injury or one which determined that Comcare had no such liability."[56]
The usual course of determining liability to pay compensation
68. In Lees v Comcare, the Full Court did not turn its mind to whether the determining authority was obliged to make a determination in relation to a claim for compensation. It seems clear from the requirement that there be a claim and from the three- tiered decision-making process, though, that the determining authority is obliged to make a decision regarding each claim that is made.
69. Once that determination is made, it triggers the claimant's right to have it reviewed. If the claimant exercises that right and asks the determining authority to review it, the determining authority has a duty to review the determination and to make a reviewable decision. If the claimant applies to the Tribunal for review of the reviewable decision, the Tribunal has an obligation to review it. The steps are the same regardless of the nature of the compensation claimed. Nothing in the SRC Act provides that a person may not make more than one claim or that each claim for a particular type of compensation must be determined by the determining authority before a person may make another claim in relation to a particular injury or another injury. There is no provision of the sort found in ss 14(5), (6) and (7) of the Veterans' Entitlements Act 1986 disentitling a person from making a claim while a claim in respect of incapacity or death from a particular injury or disease has not been finally determined.
A claim for compensation under s 14 not necessarily the first step
70. The structured approach to decision-making does not mean that a claim must necessarily be made under s 14 in the first instance. In the course of considering Ms Lees' position, the Full Court said:
"49 It may be that a situation could arise in which an employee has a claim for compensation for permanent impairment under s 24 of the Act where no determination of Comcare's liability under s 14 of the Act has been made. In such a case it may well be that the Act allows the issue of Comcare's liability to pay to the employee compensation for permanent impairment to be determined under s 24 notwithstanding that no earlier determination under s 14 has been made. However, the practical reality is that such cases will be rare. Ordinarily, before any issue of an employee's, or former employee's, entitlement to compensation for permanent impairment arises, a determination concerning that person's entitlement to compensation will have been made under s 14 of the Act. Neither of the matters under present consideration is an instance of a case in which a claim for compensation for permanent impairment arose in the absence of a determination under s 14 of the Act."[57]
Consequence of determining authority's making a determination in relation to one claim but not contemporaneous claims
71. In Fuad and Telstra Corporation Limited[58] (Fuad), Downes J sitting as President of the Tribunal, considered a claim for compensation in respect of incapacity made by Mr Fuad. Telstra Corporation Limited (Telstra) had, as the determining authority, previously accepted liability for the injury under s 14 of the SRC Act and possibly under s 16 in respect of medical expenses. Telstra decided that its liability to pay compensation in respect of the injury had ceased and did not turn its mind to the claim for compensation for incapacity in respect of that injury. The President decided:
"... [T]he effect of the decision in Oudyn [Australian Postal Corporation v Ouydn [2003] FCA 318; (2003) 73 ALD 659] is that even though an application for compensation is refused pursuant to s 14 or s 16, with the consequence that the decision-maker does not address fully the actual applications under s 19, s 21 or such other section as is appropriate, nevertheless, the decision adverse to the applicant is a decision adverse on all matters put before the decision-maker by the applicant.
It follows that all matters put before the decision-maker as part of a claim under the Act are before the Tribunal for review when an application for review is made, even though the decision may not address them in any particular way. That leaves a problem of identifying exactly what was before the decision-maker but that is a practical problem and not a jurisdictional problem."[59]
72. The reason for the conclusion in Fuad is, in effect, that the case of Australian Postal Corporation v Ouydn (Oudyn) requires it. It does not go further to state why Oudyn requires it and I have had some difficulty in reconciling Fuad with Ouydn. I return to Oudyn below and consider it in more detail.[60] For the moment, I note that it seems to me that Oudyn requires each claim to be considered separately. None is dependent upon another. The Tribunal must look to what has actually occurred in the decision-making process and identify the reviewable decision in relation to which it has jurisdiction. I note that the Full Court of the Federal Court referred to the passage from Fuad, stated its conclusion and expressed its approval of that conclusion when it considered the case of Irwin v Military Rehabilitation and Compensation Commission[61] (Irwin). It too did not explain why reliance upon Oudyn should lead to the same result under the MRC Act or why it should have led to that result under the SRC Act when it said:
" The appeal to the Tribunal (ss 354 and 355 of the Military Compensation Act [2004]) is an appeal, not from the original determination of the Commission, but from a reconsideration decision (s 349 of the Military Compensation Act). Where the matter before the Commission for reconsideration is a claim seeking determination of both liability and compensation the Commission, on reconsideration, will have both matters before it and may determine compensation if it decides to accept liability (see Re Paul Fuad and Telstra Corporation Limited ... [2004] AATA 1182; (2004) 39 AAR 496 at 498; [2004] AATA 1182 at [4]).
The sequential determination of liability and damages or compensation is a well known process in the law. The general rule is that both aspects are heard together even though no entitlement to damages will arise if liability is not established. In appropriate cases the two are separated. Nevertheless the tribunal remains seized of jurisdiction to determine both matters. In our opinion that is the case under the Military Compensation Act."[62]
73. The Full Court considered whether its decision was inconsistent with that of a differently constituted Full Court in Lees v Comcare (Lees). It set out the facts relating to Mr Donohue as I have done[63] and concluded:
" In Lees there was no implicit rejection of a compensation claim. Such a claim had not been made (or, at least, had not been supported by essential information) and Comcare would not have been aware, when it determined that it had no liability, of all of the information it needed to deal with the additional aspects of the compensation determination which would have arisen had liability been accepted. It would have been necessary for a further application to have been made by Mr O'Donohue [sic] and for more information to be supplied by him. The only reviewable determination made by Comcare, thus related to liability: see at [52].
The difference in outcome in this appeal and in Lees is explicable by reference to the different regimes prescribed by the Military Compensation Act on the one hand and the SR&C Act on the other."[64]
74. While the different regimes can explain the difference in outcome between the cases of Lees and Irwin, they cannot explain the difference in outcome between Lees and Fuad for both were decided under the SRC Act. What does explain the difference is the difference in view of the claims actually before the decision-maker initially and on review. In Fuad, the Tribunal was satisfied on the facts that the claims were before the decision-maker. Given that Downes J was a member of the Full Court that decided Irwin and given the Full Court's observations regarding Lees in [27] of its judgment, it would seem that he was satisfied that Mr Fuad's claim for compensation in respect of incapacity had been properly supported with essential information. It followed that a rejection of Mr Fuad's claim in respect of the injury under s 14 necessarily entailed a rejection of the claim made for permanent impairment made simultaneously. There was no such claim in Lees in respect of permanent impairment by either Ms Lees or Mr Donohue or, in the case of Mr Donohue, in respect of non-economic loss as well. Unlike Mr Fuad's claim in respect of permanent impairment, there was no claim for permanent impairment (and for non-economic loss) that was properly before the decision-maker and so could not be a matter that could be considered by the Tribunal on review.
75. It seems to me, then, that Fuad is not intended to lay down a rule that states that a decision adverse to the claimant on one claim for compensation must necessarily be understood as a decision adverse to all other claims for other types of compensation even though the decision-maker has not addressed those other claims. Reading Fuad and the analysis of Lees in Irwin together, it follows that there must first be an examination of what was actually before the decision-maker. If, for example, information essential to support the claim for a particular type of compensation was not available to the decision-maker and the decision-maker does not address the claim, the conclusion will be that there is no such determination. It will not be that a rejection of another claim under, for example, s 14 will necessarily be a rejection of the other claim under any other section or sections of Part II of the SRC Act.
76. In Oudyn, Cooper J said of the Tribunal's jurisdiction in respect of decisions made under the SRC Act:
"The jurisdiction of the AAT is to review a reviewable decision: s 64. In respect of
such a review, the Full Court said in Lees (at [39]):
'[39] In considering the extent of the power of the AAT when reviewing decisions under the Act, it is to be noted, first, that the AAT is authorised by
s 64 of the Act to review only reviewable decisions - that is, for present purposes, second tier or reconsideration decisions made under s 62 of the Act. Decisions under s 62 of the Act are the result of the reconsideration by Comcare or a licensed authority of a determination, as defined by s 60 of the Act, concerning which a claimant will have received a notice in writing setting out the terms of the determination and the reasons for the determination:
s 61(1). Secondly, it is to be noted that the powers of the AAT under s 43(1) of the AAT Act are powers '[f]or the purpose of reviewing' the reviewable decision, not powers that may be exercised at large. Further, the powers and discretions that the AAT may exercise under s 43(1) are the powers and discretions conferred by the Act on the determining authority for the purposes of reconsidering a determination under s 62 of the Act. The AAT will not be authorised on review of a reviewable decision to exercise any powers and discretions which would not have been available to the determining authority at the second tier decision-making stage, albeit that such powers and discretions might have been available to the determining authority at the first tier decision-making stage.'"[65]
77. This passage from the judgment of Cooper J is consistent with the approach taken by the Full Court in both Lees and Irwin. The Tribunal may exercise the powers it has been given under s 43 of the AAT Act in reviewing the reviewable decision but this does not authorise it to review a decision that it is not otherwise authorised to review. It is clear from his Honour's judgment that the Tribunal must first identify the decision that it has the jurisdiction or power to review and, when it has done that, exercise the powers and discretions that the decision-maker had in making that decision. He said:
" The decision of the Full Court in Lees makes clear that a decision to accept liability under s 14 of the Act involves no more than acceptance of a liability to pay compensation under the Act in accordance with the provisions of the Act in respect of a particular injury. A decision to accept liability under s 14 of the Act involves findings as to the five elements identified by the Full Court in par [35] of its reasons.
The content, duration and means of satisfying the liability to pay compensation is to be found and worked out by determinations made under other sections of the Act including s 24. These determinations give substance to the liability '... to pay compensation in accordance with this Act_', provided for in s 14. They do not require that the determination under s 14 of the Act to accept liability be reconsidered or revoked when the liability to pay under s 14 is satisfied by payment in accordance with the requirements of one or more of the other sections of the Act. The liability under s 14 of the Act to pay compensation stands until it is discharged in accordance with the Act. Once discharged it is terminated._
The power of APC to reconsider a determination under s 62 of the Act, when exercised in relation to a determination made under s 14, is a power limited to a reconsideration of one or more of the elements identified by the Full Court in Lees_. A determination on reconsideration that one or more of the elements did not exist is a determination that there was at no time a liability under s 14 of the Act to pay compensation for the particular injury. The position is different to, and to be contrasted with, the situation where a benefit is being paid under a particular section, in consequence of a determination having been made under s 14._
Where APC is paying compensation under one or more sections of the Act and it determines that its liability to pay in accordance with that section has been satisfied, the relevant determination is that the payment cease because the circumstances entitling payment under that section no longer exist, or can no longer be made out by the claimant. It is a determination under that section. It operates in respect of the claim then in existence for the payment of compensation under that section. It does not operate as a bar to future claims in respect of that injury if the circumstances under the section can be made out again in the future, or if it can be brought under another applicable section of the Act."[66]
78. The Australian Postal Corporation (APC) had made a determination on 18 May 2000 to the effect that Mr Oudyn's injury on 2 August 1999 no longer resulted in his being incapacitated for work or in a permanent impairment and that any payments of compensation made under one or more sections of the SRC Act were terminated. Clearly, the APC could not foreclose any future claims Mr Oudyn might make.[67] Mr Oudyn did make a further claim and did so on 12 February 2001 in respect of permanent impairment. APC referred the claim to its reconsideration delegate because consideration of the claim for permanent impairment under s 24 necessarily required a reconsideration of its determination on 18 May 2000 that he was not entitled to any compensation (and so not to compensation in respect of permanent impairment).
79. The issue that the delegate of APC had to decide was whether or not Mr Oudyn had a permanent impairment as a result of the injury sustained on 2 August 1999 and, if so, the amount of compensation to which he was entitled when it was assessed in accordance with s 24 of the Act. The delegate affirmed the decision of 8 May 2000 saying that APC was not liable to pay compensation on either 8 May 2000 or on 27 February 2001 in respect of the injury Mr Oudyn suffered in 1999. Mr Oudyn sought reconsideration of that decision under s 62(2) of the SRC Act. The APC refused to consider the matter further and made that clear in a letter dated 27 July 2001 to Mr Oudyn's solicitor.
80. Cooper J analysed the decisions that had been made and concluded that that the Tribunal had jurisdiction because the APC had made a reviewable decision. His reasoning was:
" The issue of whether Mr Oudyn had permanent impairment as a result of the injury suffered on 2 August 1999, and was in consequence, entitled to compensation assessed in accordance with s 24 of the Act, has been considered by the requisite two tiers within APC. This occurred in May 2000 and February 2001. The decision affirming the earlier decision of 18 May 2000 was a reviewable decision within the meaning of s 60 of the Act. It was reviewable by the AAT pursuant to s 64(1) of the Act.
It is common ground in these proceedings that a refusal to make a decision is, for the purposes of the Act, a decision itself: see s 60 of the Act and s 3(3)(a) of the AAT Act. A refusal to make a decision on reconsideration under s 62 of the Act on a claim for compensation to be assessed pursuant to s 24 of the Act is by the extended definition a determination made under s 62 of the Act. It was a reviewable decision within the meaning of s 60 and reviewable by the AAT pursuant to s 64(1) of the Act.
The AAT had jurisdiction in proceedings Q2001/316 to review the determination of the Reconsiderations Delegate given on 17 February 2001 that Mr Oudyn had no permanent impairment and thus no entitlement to compensation under the Act. That necessarily involves a review of the claim of Mr Oudyn to entitlement to compensation to be assessed under s 24 of the Act.
The AAT had jurisdiction in proceedings Q2001/753 to review the refusal of the claim made under cover of the letter dated 12 February 2001 for compensation for permanent impairment, such refusal being contained in or evidenced by the letters of 8 March 2001 and 27 July 2001."[68]
What was the reviewable decision of which Mr Vincent sought review by MRCC?
81. It is clear from the judgments of the Federal Court in Lees, Irwin and Oudyn and of the Tribunal in Fuad that I must look at what has actually transpired. As is clear, a claim for permanent impairment can be made without being accompanied by a claim under
s 14. The Tribunal will have jurisdiction if liability is denied but only if it can identify a reviewable decision of the sort defined in s 60(1) of the SRC Act and in respect of which it is given jurisdiction under s 64. It will have jurisdiction if the determining authority refuses to make a decision, Cooper J decided in Oudyn. There is nothing in his judgment, though, that suggests that the two-tier process of a determination (or failure to make it) followed by a request for reconsideration and a reviewable decision (or failure to make it) is irrelevant. Not only is it not irrelevant, it is essential. The Tribunal has jurisdiction only in relation to a reviewable decision and a reviewable decision can only be reached after a two-tier process set out in Part VI of the SRC Act. That is so even if the determining authority refuses to take part in one of the steps and its refusal is taken to be a decision as occurred in Oudyn.
82. In this case, Mr Vincent sought review of the reviewable decision dated
9 February 2009 when he applied to the Tribunal on 10 March 2009. In that reviewable decision, the MRCC set aside its earlier determination dated 26 September 2008 in respect of Mr Vincent's claim for major depressive disorder. The delegate decided to revoke the determination and to determine instead that liability extended to Mr Vincent's condition of major depressive disorder. The Tribunal clearly has jurisdiction in relation to the reviewable decision.
83. The delegate did not make any decision regarding Mr Oudyn's claims for permanent impairment and non-economic loss. Is it a case in which her reviewable decision can be said to amount to a refusal to accept the claims? It is not enough to turn to the case of Fuad and draw the conclusion that it does. Unlike Fuad, this is not a case in which the determining authority, MRCC, has refused the claim for compensation under s 14. This is not a case in which MRCC had made a determination under s 14 and done nothing about the other claims. Instead, the MRCC had accepted liability under s 14 in respect of Mr Vincent while making clear in its communications with Mr Vincent's solicitor that it was examining further the claims for permanent impairment and non-economic loss.
84. Mr Mason was agitating for the MRCC to make determinations on the additional two claims. The MRCC did not address his submissions regarding the law but proceeded with its consideration of the claims. In view of its calculation of Mr Vincent's entitlement to permanent impairment, it would seem that it had sufficient information to make a determination at least in relation to permanent impairment. It had the information supplied by Mr Vincent or on his behalf in the Benefit Election Form and the Non-Economic Loss Questionnaire. Both were dated 28 July 2008. At the time that they were signed, the injuries in respect of which the MRCC accepted liability had not yet been determined. Mr Vincent's condition was described in those forms as "psychiatric". That was not the condition in respect of which the MRCC accepted liability but rather a description of the general category into which it should be classified. The printed passages on both forms made clear that they were to be used after liability had been accepted for an injury. In the meantime, Mr Vincent had lodged his application for review of the reviewable decision dated 9 February 2009. He did so on 10 March 2009.
85. On 9 February 2009, I find, MRCC had not made a determination in relation to the claims for permanent impairment and non-economic loss. It had not made a reviewable decision regarding those claims. Determinations on the claims were not made until 28 May 2009. Had the MRCC done nothing, it might be arguable that it could be taken to have implicitly refused the claims but that is not the case. The MRCC was doing something and it made Mr Vincent's solicitor aware that it was. The something that it was doing was to return the file to its Melbourne office for determination of the claim for permanent impairment. The MRCC made Mr Vincent's solicitor aware of what it was doing on 27 February 2009. That was before Mr Vincent applied to the Tribunal for review of the reviewable decision of 9 February 2009. The MRCC proceeded to consider the claim as it had made clear on its Benefit Election Form and the Non-Economic Loss Questionnaire that it would. After making an offer to Mr Vincent, the MRCC proceeded to make a determination in respect of permanent impairment on 28 May 2009. It seems to me that there is nothing in Lees, Fuad or Irwin that prevents MRCC from deciding claims under the SRC Act on a serial basis rather than all at the same time. The Full Court of the Federal Court in Irwin specifically recognised that the regime provided by the SRC Act is different from that provided in the SRC Act.
86. In view of my finding, I consider that the only reviewable decision that the Tribunal has jurisdiction to review is that dated 9 February 2009 and that it related only to Mr Vincent's claim under s 14 and not to those claims under ss 24 and 27.
What can Mr Vincent achieve by review in the Tribunal?
87. On behalf of Mr Vincent, Mr Carey submitted that the MRCC's determination made on 28 May 2009 that Mr Vincent suffered a whole person permanent impairment as a result of his major depressive disorder and PTSD, the degree of his impairment and the amount of compensation payable should have been made by the Tribunal under s 42C of the AAT Act. When regard is had to s 26 of the AAT Act, the determination should not have been made. The effect of s 26 of the AAT Act is that the MRCC could not make the determination once Mr Vincent had applied to the Tribunal unless it made the determination under s 62(1) of the MRC Act. It had not made the determination under s 62(1).
88. I agree that this would have been an accurate description of the position had the MRCC's reviewable decision dated 9 February 2009 been one that related to Mr Vincent's claims for permanent impairment and non-economic loss. As I have decided that it did not, the powers under ss 26 and 62(1) become irrelevant. The MRCC's determination of 28 May 2009 was not varying any earlier determination including those determinations dealt with by the reviewable decision dated 9 February 2009. It was a new and separate determination on a claim separate from that which initiated the chain of events leading to the reviewable decision dated 9 February 2009.
89. I have also considered Mr Carey's submission in light of the powers conferred on the Tribunal by virtue of s 43 of the AAT Act. The effect of that section is that the Tribunal has all the powers and discretions conferred by the SRC Act on the MRCC in reviewing the reviewable decision. That decision is the reviewable decision dated 9 February 2009. As it revoked the determination dated 26 September 2008 (and the determination of
28 November 2008 on my reasoning at [24] above) and determined instead that liability extended to Mr Vincent's condition of major depressive disorder. It was a decision that related only to the MRCC's liability to pay compensation under s 14 and did not extend to Mr Vincent's claim for permanent impairment or non-economic loss. Therefore, the Tribunal had all the powers and discretions conferred on the MRCC in making that decision. That meant that it was limited to the matters required and raised by s 14. It could not go to matters raised by other sections dealing with other sorts of compensation under Part II of the SRC Act.
90. With that in mind, the question becomes: what could Mr Vincent achieve from the Tribunal's reviewing the reviewable decision. The reviewable decision had given him what he had claimed: compensation in respect of major depressive disorder. So far as his claim was concerned, there was nothing more that the Tribunal could give him.
91. I note that, in addition to the powers conferred upon the Tribunal by s 43 of the AAT Act and the provisions of the SRC Act conferring powers and discretions on the decision-maker, the MRC Act also confers a power upon the Tribunal itself. That is the power to order that the determining authority reimburse an applicant in the Tribunal for costs reasonably incurred in connection with the proceeding. The Tribunal's power to do that is dependent upon there being circumstances that are described in s 67 and that enliven the power.
92. Had the MRCC reconsidered the determination and rendered the proceeding for review of the reviewable decision abortive, the power would have been enlivened under
s 67(2). Had the Tribunal made a decision under s 42C of the AAT Act, the costs power under s 67(8) would have been enlivened. Neither circumstance arose, though, because the determination made by the MRCC after Mr Vincent applied for review of the reviewable decision related to a different claim. The determination made under ss 24 and 27 could not render the review of the reviewable decision relating to the claim under s 14 abortive. The Tribunal had no power to make a decision about permanent impairment when reviewing a reviewable decision about liability under s 14.
93. In my view this leads to the conclusion that review by the Tribunal can offer Mr Vincent nothing more than he has already achieved.
94. The Tribunal must necessarily have power to dismiss an application if it does not have jurisdiction or power to review a decision. As it is clear that I consider that the Tribunal does have power to review the reviewable decision dated 9 February 2009. It is a reviewable decision of which Mr Vincent seeks review. There is no basis on which I could dismiss his application.
95. The same conclusion must be reached with the regard to the power given to the Tribunal by s 42A(4) of the AAT Act to dismiss an application. It provides:
(a) a person makes an application to the Tribunal for a review of a decision; and
(b) the person is unable to show, within such time as is prescribed after being notified in writing by the Registrar or a Deputy Registrar that the decision does not appear to be reviewable by the Tribunal, that the decision is so reviewable;
the Tribunal may dismiss the application without proceeding to review the decision."
96. In this case, I cannot exercise the power given by s 42A(4). There are two reasons. First, I am satisfied that the reviewable decision of which Mr Vincent sought review is indeed reviewable. It does not, in my view, encompass all that his counsel, Mr Carey, would have but that does not detract from its being reviewable. The second is that the procedure set out in s 42A(4)(b) has not been followed. Therefore, the power does not arise.
97. I would make the observation that s 42A(4)(b) should not be read as detracting from the Tribunal's duty to consider its own jurisdiction. If, as might happen with an unrepresented applicant, that person were unable to show that the decision appears to be reviewable, the Tribunal should consider the matter for itself. While the applicant's failure to demonstrate jurisdiction enlivens the power under s 42A(b), it remains a discretionary power. As the provision says, the Tribunal "may dismiss the application." It does not provide that the Tribunal must do so.
98. In Bienstein and Attorney-General (Commonwealth of Australia),[69] I considered authorities that have variously considered the role of the Tribunal to be adversarial or inquisitorial.[70] Whichever view is correct in a particular case, it is not a Tribunal that should adhere to procedure at the cost of the rights of the parties. If it is a Tribunal that is required to find the correct or preferable decision[71] when reviewing a decision, its duty should be no less when determining its jurisdiction.
99. The Tribunal is a body established by enactment. Its powers are circumscribed by those it is expressly given in the AAT Act or in another enactment conferring jurisdiction upon it. Unlike a superior court, it does not have inherent powers.
100. That it is not an end of its powers for the words of Dawson J in Grassby v The Queen[72] are equally applicable to the Tribunal:
"However notwithstanding that its powers may be defined, every court undoubtedly possesses jurisdiction arising by implication upon the principle that a grant of power carries with it everything necessary for its exercise (ubi aliquid conceditur, conceditur et id sine quo res ipsa esse non potest). Those implied powers may in many instances serve a function similar to that served by the inherent powers exercised by a superior court but they are derived from a different source and are limited in their extent. The distinction between inherent jurisdiction and jurisdiction by implication is not always made explicit, but it is, as Menzies J points out, fundamental."[73]
101. Dismissal of a proceeding as an abuse of process is known in the courts. It was described, for example, in Walton v Gardiner,[74] where Mason CJ, Deane and Dawson JJ said that the inherent jurisdiction of a superior court to stay its proceedings for abuse of process:
"... extends to all those categories of cases in which the processes and procedures of the court, which exist to administer justice with fairness and impartiality, may be converted into instruments of injustice or unfairness. Thus, it has long been established that, regardless of the propriety of the purpose responsible for their institution and maintenance, proceedings will constitute an abuse of process if they can be clearly seen to be foredoomed to fail. ... Again, proceedings within the jurisdiction of a court will be unjustifiably oppressive and vexatious of an objecting defendant, and will constitute an abuse of process, if that court is in all the circumstances of the particular case, a clearly inappropriate forum to entertain them. ... Yet again, proceedings before a court should be stayed as an abuse of process if, notwithstanding that the circumstances do not give rise to an estoppel, their continuance would be unjustifiably vexatious and oppressive for the reason that it is sought to litigate anew a case which had already been disposed of by earlier proceedings. ... "[75]
102. There is no express power of this sort given by the AAT Act. The Tribunal is expressly given power to dismiss an application in other circumstances e.g. s 42A(4) (decision not reviewable); 42(5) (applicant's failure to proceed with the application or to comply with the Tribunal's direction within a reasonable time; 42(7) (failure of applicant to appear) and s 42B (proceeding frivolous or vexatious). A power to dismiss an application as an abuse of process is not necessary for the exercise of those powers expressly given and so cannot be implied.
103. I have also considered whether Mr Vincent's application should be dismissed under s 42B of the AAT Act as Ms Macdonnell submits I should. That section provides that:
"(1) Where an application is made to the Tribunal for the review of a decision, the Tribunal may, at any stage of the proceeding, if it is satisfied that the application is frivolous or vexatious:
(b) if the Tribunal considers it appropriate, on the application of a party to the proceedings, direct that the person who made the application must not, without leave of the Tribunal, make a subsequent application to the Tribunal of a kind or kinds specified in the direction.
(2) A direction given by the Tribunal under paragraph (1)(b) has effect despite any other provision of this Act or a provision of any other Act.
(3) The Tribunal may discharge or vary such a direction."
104. Implicit in s 42B is an assumption that the Tribunal has power to review the decision. If it did not, it could dismiss the application for want of jurisdiction and no reference would need to be made to s 42B dismiss an application.
105. As Gray J explained in Pitt v OneSteel Reinforcing Pty Limited,[76] "the word 'frivolous', especially when coupled with 'vexatious', is a technical legal term, in substance meaning the absence of a cause of action."[77] As Graham J said in JF Keir Pty Limited v Sparks,[78] "An action can be stayed as vexatious 'if it can really lead to no possible good'."[79] The power to dismiss an application summarily is a power known to, and exercised by, the courts under various names. It is a power whose limits were considered by Barwick CJ in General Steel Industries Inc v Commissioner for Railways (N.S.W.):[80]
"The plaintiff rightly points out that the jurisdiction summarily to terminate an action is to be sparingly employed and is not to be used except in a clear case where the Court is satisfied that it has the requisite material and the necessary assistance from the parties to reach a definite and certain conclusion. ... [the] cases uniformly adhere to the view that the plaintiff ought not to be denied access to the customary tribunal which deals with actions of the kind he brings, unless his lack of a cause of action - if that be the ground on which the court is invited, as in this case, to exercise its powers of summary dismissal - is clearly demonstrated. The test to be applied has been variously expressed; "so obviously untenable that it cannot possibly succeed"; "manifestly groundless"; "so manifestly faulty that it does not admit of argument"; "discloses a case which the Court is satisfied cannot succeed"; "under no possibility can there be a good cause of action"; "be manifest that to allow them" (the pleadings) "to stand would involve useless expense".
...
... Dixon J. (as he then was) sums ...a number of authorities in Dey v Victorian Railways Commissioners [(1949) [1949] HCA 1; 78 CLR 62] where he says: 'A case must be very clear indeed to justify the summary intervention of the court to prevent a plaintiff submitting his case for determination in the appointed manner by the court with or without a jury. The fact that a transaction is intricate may not disentitle the court to examine a cause of action alleged to grow out of it for the purpose of seeing whether the proceeding amounts to an abuse of process or is vexatious. But once it appears that there is a real question to be determined whether of fact or law and that the rights of the parties depend upon it, then it is not competent for the court to dismiss the action as frivolous and vexatious and an abuse of process.' Although I can agree with Latham C.J. in the same case when he said that the defendant should be saved from the vexation of the continuance of useless and futile proceedings, in my opinion great care must be exercised to ensure that under the guise of achieving expeditious finality a plaintiff is not improperly deprived of his opportunity for the trial of his case by the appointed tribunal. On the other hand, I do not think that the exercise of the jurisdiction should be reserved for those cases where argument is unnecessary to evoke the futility of the plaintiff's claim. Argument, perhaps even of an extensive kind, may be necessary to demonstrate that the case of the plaintiff is so clearly untenable that it cannot possibly succeed."[81]
106. Principles of this sort underpin the Tribunal's exercise of the power given to it by s 42B(1) of the AAT Act. The Tribunal's reasons for decision in Re Williams and Australian Electoral Commission and The Greens (party joined)[82] set out the following general principles governing the exercise of the power:
"(30) The power for peremptory dismissal of proceedings is to be exercised cautiously and sparingly: per Barwick CJ in General Steel Industries Inc v Commissioner for Railways (NSW) [1964] HCA 69; [1965] ALR 636; (1964) 112 CLR 125. The mere fact that a proceeding is shown to have no foundation in fact is insufficient to justify a finding that it was commenced vexatiously or without reasonable cause: Per von Doussa J in Hatchett v Bowater Tutt Industries Pty Ltd (No 2) [1991] FCA 188; (1991) 28 FCR 324.
(31) The manifest untenability of a proceeding provides one ground for finding that the proceeding is a vexatious one. ..."[83]
107. The Tribunal went on to consider the relevance of futility in the context of
s 42B. In that case, it had decided that, whatever the outcome of any review, that review could not have any effect upon the matter of concern to Mr Williams. The decision under review was a decision that a certain name be entered in the register kept under the Commonwealth Electoral Act 1918 as the registered officer of the Greens. At the time of the hearing, that person was no longer the registered officer of the Greens. Had Mr Williams been successful in having that name removed from the register, the effect would have been that the position of registered officer of the Greens was vacant for a period of time. As no election had been called during that period and the registered officer had not been called upon to perform his sole function under the Commonwealth Electoral Act, the vacancy was of no consequence at all. The Tribunal concluded that Mr Williams' application would be futile.
108. Despite its conclusion on that point, the Tribunal also accepted that Mr Williams genuinely believed that the contrary was the case and his application for review was not futile. The Tribunal then went on to distinguish between a genuine but mistakenly held mistake of fact and one of law:
"(37) The genuineness of the applicant's belief might well have been a relevant factor in his favour - and possibly a decisive one - had the subject of his mistake been a factual one rather than a matter of law. As von Doussa J commented in Hatchett_, an applicant who genuinely holds a mistaken belief as to a state of facts which, if correct, would support the claim which is made in the proceedings, is ordinarily entitled to 'a day in court'. In that event, it could operate very unfairly to an applicant to prejudge the issues without affording him/her an opportunity to support his/her case with appropriate evidence. But where, as here, the significant factual matters are agreed between the parties, and the only issues in dispute relate to the legal consequences which follow, the genuineness of the applicant's legitimacy of his claim must bow before a finding that, as a matter of law, no legitimate purpose can be achieved by continuing with the proceeding. ..._"[84]
109. In adopting this approach, the Tribunal took the same path as that later taken by Sundberg J in Director General Security v Sultan and Another[85] [1998] FCA 1548; (1998) 90 FCR 334. In the Sultan case, review by the Tribunal would not lead to Mr Sultan's being able to obtain the visa he sought, even if he were successful in every respect on that matter that was within the Tribunal's jurisdiction to review. Both Sundberg J and the Tribunal looked to the practical outcome of the review.
110. I have already looked at the practical outcome of Mr Vincent's application and have concluded that he cannot achieve more by review than he already has. Therefore, I have decided that I should dismiss his application under s 42B of the AAT Act.
I certify that the one hundred and ten preceding paragraphs are a true copy of the reasons for the decision herein of
Signed: .......................................................................
[2] It is not clear to me how the VRB could take this action. Section 155 provides for the withdrawal, by an applicant, of an application for review by the VRB and for the consequences of such a withdrawal. It does not permit the VRB to withdraw the application. Its powers are limited to those set out in Part IX of the VE Act in this context e.g. affirm or vary a decision, set it aside and substitute another or, in the case of the assessment of the rate of pension payable, remit the matter to the Commission to assess: VE Act, s 139(3) and (4). It also has the power to dismiss an application e.g. ss 155AA and 155AB. It does not have the power to withdraw an application.
[21] "'a category 1B stressor' means one of the following severe traumatic events:
(a) being an eyewitness to a person being killed or critically injured;
(b) viewing corpses or critically injured casualties as an eyewitness;
(c) being an eyewitness to atrocities inflicted on another person or persons;
(e) being an eyewitness to or participating in, the clearance of critically injured casualties"
[33] Affidavit of Benjamin John Mason; Exhiit BM-1
[34] Affidavit of Benjamin John Mason; Exhiit BM-2
[35] Affidavit of Benjamin John Mason at [5]
[37] Attachment to submissions made on behalf of MRCC
[38] Submissions on behalf of MRCC dated 2 October 2009 at [17]
[39] Submissions on behalf of MRCC dated 2 October 2009 at [18]
[48] [1999] FCA 753; (1999) 56 ALD 84; 29 AAR 350; Wilcox, Branson and Tamberlin JJ
[54] [1999] FCA 753; (1999) 29 AAR 350; 56 ALD 84 at [56]; 363; 96
[55] [1999] FCA 753; (1999) 29 AAR 350; 56 ALD 84 at [48]- [50]; 362-363; 94-95
[56] [1999] FCA 753; (1999) 29 AAR 350; 56 ALD 84 at [54]- [56]; 363-364; 96
[57] [1999] FCA 753; (1999) 29 AAR 350 at [49]; 362
[59] [2004] AATA 1182; (2004) 39 AAR 496 at [4]- [5]; 498
[61] [2009] FCAFC 33, Downes, Greenwood and Tracey JJ
[62] [2009] FCAFC 33 at [22]- [23]
[64] [2009] FCAFC 33 at [27]- [28]
[65] [2003] FCA 318; ; (2003) 73 ALD 659 at [28]; 666. Section 43 of the AAT Act provides: "For the purpose of reviewing a decision, the Tribunal may exercise all the powers and discretions that are conferred by any relevant enactment on the person who made the decision and shall make a decision in writing: (a) affirming the decision under review; (b) varying the decision under review; or (c) setting aside the decision under review and (i) making a decision in substitution for the decision so set aside; or (ii) remitting the matter for reconsideration in accordance with any directions or recommendations of the Tribunal."
[66] [2003] FCA 318; (2003) 73 ALD 659 at [30]- [33]; 666-667
[67] [2003] FCA 318; (2003) 73 ALD 659 at [35]; 667
[68] [2003] FCA 318; (2003) 73 ALD 659 at [47]- [50]; 670
[70] [2008] AATA 330 at [14]- [27]
[71] Drake v Minister for Immigration and Ethnic Affairs [1979] AATA 179; (1979) 2 ALD 60; 24 ALR 577 at 68; 589 per Bowen CJ and Deane J
[73] [1989] HCA 45; (1989) 168 CLR 1 at 16-17
[74] [1993] HCA 77; (1993) 177 CLR 378; (1993) 112 ALR 289; (1993) 67 ALJR 485
[75] [1993] HCA 77; (1993) 177 CLR 378; (1993) 112 ALR 289; (1993) 67 ALJR 485 at [...]; 393; 298; .... (citations omitted)
[81] [1964] HCA 69; (1964) 112 CLR 125 at 128-129, footnotes omitted
[83] [1995] AATA 160; (1995) 38 ALD 366 at 372
[84] [1995] AATA 160; (1995) 38 ALD 366 at 374
Australian Postal Corporation
Ouydn
(1993) 177 CLR 378
(1998) 90 FCR 334
(1964) 112 CLR 125
(1989) 168 CLR 1
(1993) 112 ALR 289
(1993) 67 ALJR 485
(1991) 28 FCR 324