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PRACTICE AND PROCEDURE -Military Rehabilitation and Compensation Commission determined that the applicant had received an overpayment of incapacity payments - applicant applied to the Veterans' Review Board (VRB) for review of determination of Commission - applicant lodged application for review in Tribunal prior to decision of VRB - VRB subsequently set aside determination and remitted to Commission for recalculation - Commission made a subsequent determination - whether Tribunal has jurisdiction - application for review dismissed

Administrative Review Tribunal Act 2024 (Cth)

Military Rehabilitation and Compensation Act 2004 (Cth)

Baumgarten and eSafety Commissioner (Guidance and Appeals Panel) [2025] ARTA 59

Comcare v DSLB [2025] FCAFC 13

Kitoko v University of Technology Sydney [2021] FCA 360

1. In the reasons below a reference to 'tribunal' generally refers to the Administrative Review Tribunal whereas 'Tribunal' refers to the presently constituted tribunal.
2. On 27 March 2026, an interlocutory hearing in-person was held. Mr Tofler was self-represented. Mr Jack Sime, Australian Government Solicitor (AGS), appeared for the Military Rehabilitation and Compensation Commission (the Commission). The parties provided written submissions and had an opportunity to make oral submissions.
3. The Tribunal admitted into evidence the Respondent's Submissions on Jurisdiction and the 4 annexures attached to them as Exhibit 1. The parties agreed that the annexures included all the relevant material. The Tribunal also had regard to the Mr Tofler's written submissions dated 24 March 2026 (Applicant's Submissions).

1. On 25 February 2025, the veteran, Mr Tofler, made an application for review to the tribunal stating that the decision to be reviewed was made by the Commission and that it was wrong because:[1]

The primary areas of concern I have is the incorrect calculations of the Incapacity payment amounts used for the retrospective claim. This was further compounded by an incorrect reading of the MRCA legislation which they believed meant by working you received zero in incapacity payments for the fortnight, this is an oversight and the correct legislation, instead, incentives the veteran to work by paying 100% of the incapacity payment (instead of 75%) up to the full payment amount. If the veteran works and earns less then he would earn on incapacity at 100% then DVA makes up the difference so there is no disincentive to seek employment. DVA have put me at zero entitlements for approximately a year of work even though I earnt under the incapacity amount the entire time. This is all fully backed up with every pay slip and notice of assessment. As I have been approved for retrospective medical discharge my Incapacity payments should of increased as per an average rate of advancement if i (sic) stayed a full time soldier. As it happens DVA did not even apply the CPI increase and only adjusted the remuneration benefit. I plan to set out my case in detail at the tribunal and provide evidence with clear logic, backed up by MRCA guidelines and framework that DVA have been unresponsive, unwilling and dismissive to an issue that has taken three years to reach tribunal. This has placed enormous stress on a veteran with mental health diagnosis' and does not even come close to reaching the moral and ethical standards that DVA promotes so heavily.

1. On 3 March 2025, the Veterans' Review Board (VRB) heard Mr Tofler's application for review (lodged on 7 June 2022) of a determination of the Commission dated 27 October 2021 (the Primary Determination) that said Mr Tofler owed a gross arrears payment of $286,954.97[2].
2. On 13 June 2022, the Commission made a further determination stating Mr Tofler owed the gross amount of $431,673.52.[3]
3. On 3 March 2025, the VRB decided to set aside the Primary Determination and remit the matter to the Commission to recalculate incapacity payments and determine the amount of incapacity payments payable (the VRB Decision).[4] The Tribunal considers the reasons the VRB set aside the determinations and remitted to the Commission should be set out in full.
4. The VRB stated at [34]-[45]:[5]
   1. The continuous changing monetary amounts communicated to the applicant, coupled with the identified miscalculations, raises a reasonable doubt about the accuracy of the figures provided. It is understandable that the applicant holds such concerns.
   2. We are perplexed as to why the Commission continues to issue correspondence to an individual each time it appears they have made a preliminary calculation of a possible overpayment, especially when, as seen in this case, the amount owed is likely to change as more information becomes available.
   3. We take a straightforward approach to this issue: simply write to the applicant once, explain the situation in clear, understandable terms and inform them that further information will be provided once the Commission has gathered all necessary material to make a final determination. Do not demand payment until the amount is certain. This is a point made by the applicant during the hearing, and is relevant not only to this individual but to many other veterans.
   4. The applicant merely wanted a final figure for the alleged overpayment, together with a clear and straightforward explanation of how that figure was determined. We recognise that drafting such correspondence is not a simple task, but it is something the Commission should be capable of providing. Relying on boilerplate template letters to communicate such complex information is an unacceptable approach. Such communication requires careful drafting, accuracy, and should include the details of all calculations used to arrive at any figures, particularly in cases when repayment of funds is demanded.
   5. There is no question that the Commission is legally required to pursue any overpayment if one has occurred. Notwithstanding this, how any such overpayment is calculated, communicated and substantiated is, in our view, critical.
   6. Given the material before us, and the oral evidence provided to us at hearing we are not able to be reasonably satisfied whether an overpayment has occurred, and if it has, what that amount may be.
   7. Additionally, we urge the Commission to provide you with clear and detailed explanations regarding the method used to calculate the tax to help restore transparency and trust in the process. It may very well be that the tax rates are simply advised by the ATO and applied, and this is appropriate as the Commission is not making taxation decisions but exercising a statutory function in making relevant deductions. However, the deductions made presumes that the calculations initially done are correct before any such tax deductions are made.
   8. In light of the issues we have identified and were ventilated at hearing, we have determined that it would be only fair and just for this matter to be remitted back to the Commission for a thorough recalculation. In our view, that is why we have the legislative power to take such action - so we can use it in the rare cases it is necessary. This is one such case.
   9. We urge the Commission to consider the issues we have identified to ensure the next determination issued to you is not only accurate, but explained in a manner that is understandable, and contains sufficient detail for you to have confidence in any amounts paid, or overpaid.
   10. Notwithstanding our observations made concerning the almost opaque explanations provided by the Commission in the determinations sent to you, in our experience, this is not unique to your incapacity matter. It is rare that any incapacity matter that comes before this Board is accompanied, at first instance, by any comprehensible supporting documentation setting out financial amounts that have been calculated.
   11. It has been explained to us by Commission representatives that incapacity determinations must be produced in a form that is dictated by the 'template' letter format used for such decisions. It is strongly suggested this 'template' be changed immediately to show how financial calculations are arrived at, and in more detail. This will likely require the detailed calculations necessary to support any financial outcome being annexed to the determination letter. Such action is even more relevant where an overpayment is seeking to be recovered.
   12. We have no power to force change to administrative processes used within the Commission. Without such a power, we are sufficiently in touch with reality to only be able to express a hope that these issues are taken on board.

1. On 8 May 2025, the Commission made a determination, in response to the VRB Decision, that Mr Tofler had an overpayment of $67,046.84, providing explanatory notes for how the calculations were made (the Second Primary Determination).[6]
2. The Tribunal does not have the jurisdiction to make a finding that the Commission has or has not complied with the directions made by the VRB in making the Second Primary Determination (explained below) but observes, at a superficial level, that the determination is difficult to read and comprehend.

1. The Commission seeks dismissal of Mr Tofler's application for review pursuant to s 97 of the ART Act on the basis that the Tribunal has no jurisdiction as there is no reviewable decision before the Tribunal.
2. As the Tribunal understands from Mr Tofler's written submissions, he seeks relief from the Tribunal to enforce the VRB Decision, stay the operation of the Primary Determination and compel the Commission to provide disclosure under s 23 of the Administrative Review Tribunal Act 2024 (Cth) (the ART Act).
3. The issue for determination is whether there is a reviewable decision before the tribunal within its jurisdiction.

1. Sub-section 12(1) of the ART Act relevantly provides that a decision is a 'reviewable decision' if an Act or a legislative instrument provides for an application to be made to the Tribunal for review of the decision.
2. Section 54 of the ART Act provides, for the purposes of reviewing a reviewable decision, the Tribunal 'may exercise all the powers and discretions that are conferred on the decision-maker by an Act or an instrument made under an Act'.
3. Section 354(1) of the Military Rehabilitation and Compensation Act 2004 (Cth) (the MRCA) provides that an application may be made to the tribunal for review of a reviewable determination.
4. Section 345 of the MRCA defines 'reviewable determination' as:

(a) a determination under subsection 350(2) revoking, confirming or varying an original determination; or

(b) a determination that has been varied under subsection 348(1); or

(c) a determination under Part 4 by the Board on review of an original determination except a determination that has been varied under subsection 348(1); or

(d) a decision by the Principal Member under subsection 353C(4), (7) or (9) to dismiss an application for review.

(a) The Commission has failed to recalculate the Primary Determination and provide comprehensible documentation as to the financial calculations as ordered by the VRB.

(b) In oral submissions Mr Tofler said that he was seeking a stay of the Primary Determination, in circumstances that the Commission has continued to garnish amounts owing to him by the Commission despite the VRB Decision.

(c) Further, he stated that the Commission was not complying with its obligations under the Legal Services Direction, in particular by relying on a 'technical legal defence'[8] in seeking dismissal for want of jurisdiction.

(d) He went on to ask that the tribunal apply equitable principles in determining the application for jurisdiction and not allow the Commission to apply a technical legal defence that the tribunal does not have jurisdiction.

(e) He sought relief that the tribunal order:

(i) the Commission to comply with the spirit and text of the VRB Decision by a de novo review; and

(ii) the Commission provide the tribunal a comprehensive breakdown of all calculations to arrive at any purported incapacity payment or overpayment amount.

(a) The Primary Determination is not reviewable by the tribunal. In doing so the Commission relies on s 354(1) of the MRCA and the fact that there is no other Act or legislative instrument that provides for an application to be made to the tribunal under the MRCA.

(b) While the VRB Decision is a reviewable decision under the ART Act, the application for review was not made in respect of the VRB Decision because it was lodged prior to it being made and that Mr Tofler cannot apply to the tribunal in anticipation of a reviewable decision that does not exist.

(c) The statutory construction of s 355 of the MRCA, modifying s 18 of the ART Act, requires that the time for an application for review to the tribunal begins after the reviewable determination is provided to an applicant.

(d) The Second Primary Determination is not reviewable by the tribunal because it is not a reviewable decision as provided in the MRCA but is reviewable by the VRB.

1. At the hearing, the Tribunal asked for confirmation from Mr Tofler which decision he was seeking review. He confirmed it was the Primary Determination as provided in his application for review. He says that the reason he applied for review of the Primary Determination prior to his hearing and the decision of the VRB was because he had no confidence that the Commission would comply with the decision of the VRB.
2. The Tribunal explained the general approach to its jurisdiction in veteran matters and more generally, describing the tiered approach to decision making, namely that the Commission makes a primary determination under the MRCA that then is reviewable by the VRB. The decision of the VRB becomes a reviewable decision within the jurisdiction of the tribunal. There are exceptions to that general statutory scheme, such as where decisions are made under the workers compensation legislation, but that did not apply to the present circumstances.
3. Mr Tofler was understandably frustrated with the delay in the tribunal's consideration of the jurisdiction issue, being over 12 months since he filed his application for review. The Tribunal apologised for the delay and told him it would deal with the matter in an expedient manner.
4. The Tribunal noted that the Commission had helpfully outlined Mr Tofler's existing appeal rights in respect of the Second Primary Determination and that he remained within the statutory timeframe to seek review of that decision by the VRB. Mr Tofler was concerned that the VRB, having decided as it had, did not have the statutory power to make the Commission comply with its orders.
5. The Tribunal raised with the Commission Mr Tofler's allegation that it had continued to garnish Mr Tofler's entitlements to offset the alleged overpayment in the face of the VRB Decision that set aside the Primary Determination. Mr Sime explained candidly that the AGS had only been instructed to act in the matter some days prior to the hearing and was not able to respond to the allegation. The Tribunal noted that it considered the Primary Determination had been revoked by the decision of the VRB and this was analogous to the reasoning of the Full Court in Comcare v DSLB [2025] FCAFC 13 that in a statutory tiered decision-making process, earlier determinations are revoked by the operative determination[10], thus if the Commission had acted on the Primary Determination after the VRB Decision it might have done so without power. On the state of the material before it, the Tribunal could not take that issue any further.
6. In Baumgarten and eSafety Commissioner (Guidance and Appeals Panel) [2025] ARTA 59 (Baumgarten), the President states that the jurisdiction and powers of the Tribunal are not 'at large' as provide at [36]:

Whether a reviewable decision has been made must be assessed objectively. One must look at the objective features of the decision or action that the relevant enactment specifies is a reviewable decision and compare them to the objective features of the decision made or the action taken by the decision-maker in a particular case, and then objectively determine whether the latter decision or action amounts, as a matter of fact, to a reviewable decision.

1. Respectfully, the Tribunal agrees and is bound by the decision in Baumgarten. This is not a remarkable conclusion; the tribunal is a creature of statute and is not invested with original jurisdiction or powers as superior courts. This was explained carefully to Mr Tofler.
2. The Tribunal does not accept that the Commission or the AGS is in breach of its obligations under the Legal Services Direction. The Commission (and the AGS) is obliged under s 56 of the ART Act to assist the tribunal to make the correct or preferable decision[11].
3. In the present circumstances that obligation is to assist the tribunal to determine if it has jurisdiction to consider the application for review. The determination of jurisdiction is a substantive statutory requirement to ensure the tribunal has the statutory power to review a decision. Failure to do so would amount to a jurisdictional error if no reviewable decision is before the tribunal.
4. The tribunal has no jurisdiction to review the Primary Determination or the Second Primary Determination. They are not reviewable decisions under the ART Act or as modified by the operation of the MRCA.
5. It follows that the tribunal has no power to order a stay of the Primary or Second Primary Determination as the tribunal's statutory power to order a stay is limited to a reviewable decision (s 32 of the ART Act).
6. The VRB Decision is a reviewable decision, but the Tribunal agrees with the Commission that the application for review was lodged with the tribunal prior to that decision being made. Therefore, as Mr Tofler confirmed he was seeking review of the Primary Determination, the VRB Decision is not before the tribunal.
7. As the VRB Decision was favourable to Mr Tofler by setting aside the Primary Determination and resulted in the Second Primary Determination, the proper course is for Mr Tofler to seek review of that Second Primary Determination by the VRB.
8. As to dismissal of the application for review, s 97 of the ART Act provides:

(a) The application is made for review of a decision; and

(b) The Tribunal is satisfied that the decision is not reviewable by the Tribunal.

1. The dismissal power in s 97 of the ART Act should be exercised sparingly and with caution, but where the tribunal makes a practical judgment that an applicant's case has no reasonable prospects of success, then it should be exercised.[12] This is consistent with the objects in s 9 of the ART Act.
2. The Tribunal is reasonably satisfied that Mr Tofler's application for review has no reasonable prospects for success because the tribunal does not have jurisdiction as there is no reviewable decision before it.
3. The Tribunal thanked Mr Sime and Mr Tofler at the hearing for their civil discourse and conduct in making submissions to assist the tribunal to make the correct or preferable decision.
4. However, the Tribunal told the Commission that it considered the publication of the VRB's reasoning in these reasons as important for transparency. The Tribunal observed that, and the Mr Sime did not disagree, Mr Tofler's submission had weight that the Second Primary Determination remained opaque, difficult to read and understand.
5. The Commission might take steps, as observed by the VRB, to better explain how it came to its conclusions as to Mr Tofler owing an overpayment. It might also consider the effect of an order setting aside a primary determination on its statutory authority to continue to act as if it has the power to enforce a revoked determination.

1. The Tribunal dismisses the application for review under s 97 of the ART Act.

[7] Applicant's Submissions and oral submissions.

[8] Section 41(h) of the Legal Services Direction 2025.

[9] Exhibit 1, pp 4-5, at [23]-[35].

[10] per Horan J (Perry J and Logan J agreeing) at [107] to [111].

[11] See also Guidance note 7: Obligation to assist the Administrative Review Tribunal.

[12] per Griffiths J in Kitoko v University of Technology Sydney [2021] FCA 360.