Kowalski v Chief Executive Officer of Medicare Australia

Federal Court of Australia|2010-04-30|Before: Mansfield J

INTRODUCTION 1 This is an appeal pursuant to s 44 of the Administrative Appeals Tribunal Act 1975 (Cth) (the AAT Act) from a decision of a senior member of the Administrative Appeals Tribunal given on 16 December 2009. 2 The Tribunal refused Mr Kowalski's application for an extension of time within which to seek review of a purported decision of the Chief Executive Officer of Medicare Australia (the CEO) said to have been made on 30 July 2009 (the AAT application). It was common ground that the AAT application was made outside the 28 day period prescribed in s 29(1)(d) of the AAT Act. 3 Without seeking an extension of time, Mr Kowalski applied to review the decision of the CEO of 30 July 2009 by the AAT application filed on 30 September 2009. The application for an extension of time within which to have made the review application was made only on 2 October 2009. It was accepted by the CEO of Medicare that the extension of time could be granted then as now, so as to regularise the institution of the AAT application of 30 September 2009 if it were otherwise appropriate to do so.

4 The stated reasons for the AAT application are that "the decision is wrong in fact and in law". The reasons for the extension of time are said to be: I was not aware that it was a decision that I could seek a review of until I received Justice Mansfield's decision No [2009] FCA 1072 in action No SAD 81 of 2009 (see para 19 of his decision which I faxed to Mr G Gaid on 1-10-09. 5 The hearing of this appeal was delayed a little because Mr Kowalski objected to the judge to whose docket the matter was originally referred hearing the matter on the ground of ostensible bias. On 16 March 2010, that application was successful, and that judge recused himself from hearing the appeal: Kowalski v Chief Executive Officer of Medicare Australia [2010] FCA 265. Apart from deciding to recuse himself from that hearing, no orders were made. Mr Kowalski at that time applied for costs. Those reasons for decision include his Honour's reasons for not making an order for costs. Mr Kowalski sought leave to appeal from the refusal of his Honour to award costs on the recusal application. I have separately dealt with that question: Kowalski v Chief Executive Officer of Medicare Australia [2010] FCA 411. 6 The CEO has applied by notice of motion of 2 March 2010 that the appeal be summarily dismissed under s 31A(2) of the Federal Court of Australia Act 1976 (Cth) (the FCA Act) on the ground that Mr Kowalski has no reasonable prospect of successfully prosecuting the appeal. 7 The matter has a somewhat lengthy and complex history. It is set out in some detail in an earlier decision: Kowalski v Chief Executive Officer of Medicare Australia [2009] FCA 1072 (the first appeal), and in the decision of Bennett J given on 2 December 2009 refusing leave to appeal from that decision: Kowalski v Chief Executive Officer of Medicare Australia [2009] FCA 1420. 8 Briefly stated, the background to the current proceeding is a settlement of a claim for damages or workers compensation made by Mr Kowalski against his former employer Mitsubishi Motors Australia Ltd (MMAL). It was resolved by a Deed of Settlement (the Deed). An issue arose as to whether MMAL or Mr Kowalski had failed to comply with ss 18 or 23 of the Health and Other Services (Compensation) Act 1995 (Cth) (the HOSC Act) and relevantly whether Medicare Australia was entitled to recover from Mr Kowalski, the amount of benefits paid by Medicare Australia to cover disabilities in respect of which (it was alleged) the settlement sum paid by MMAL encompassed or whether Mr Kowalski had made a statement to Medicare on that matter which was not substantially correct. As a subsidiary question, an issue arose as to whether Medicare Australia was entitled to accept the Deed between Mr Kowalski and MMAL as indicating the nature of the payment or payments which he received under the Deed. It is not necessary to refer to the detail of that material. 9 Mr Kowalski first sought review by the Tribunal of a purported decision by the CEO conveyed by two letters from the CEO of 11 and 25 March 2009 to the effect that he had been required to repay from the proceeds of the Deed some amount to the CEO in respect of Medicare benefits received by him. That was not the case. Nor was it the case that those letters evidenced a decision reviewable by the Tribunal at all. The Tribunal so concluded. That view was affirmed in the first appeal. Moreover, as the reasons for judgment given in the first appeal indicate at [19], the CEO had indicated in any event that it was not intended to take any further action against Mr Kowalski under the HOSC Act, even though Medicare considered that the moneys paid to the applicant by MMAL under the Deed of Settlement were "compensation" for the purposes of the HOSC Act. 10 That position was reconfirmed by letters of 27 and 30 July 2009 from the CEO. Those letters, of course, post-dated the alleged "decision" in the letters of 11 March and 25 March 2009 and could not inform whether those earlier letters represented or conveyed a decision reviewable by the Tribunal, but they were provided in the course of hearing the first appeal. 11 In the first appeal, I found that the letters of 11 and 25 March 2009 did not indicate or constitute a decision reviewable under the AAT Act, and consequently the decision of the Tribunal that it did not have jurisdiction to review the purported decision was correct. The Tribunal's dismissal of the review application was affirmed. As noted, an application for leave to appeal to the Full Court from the decision on the first appeal was refused. 12 In the course of providing reasons for that decision, the following comment was made at [19]: Whilst that letter of 30 July 2009 might indicate that, now, Medicare has made a decision by giving notice under s 23B(1) of the HOSC Act that Medicare considers that the applicant's statement to Medicare under s 23A is not substantially correct (because it asserted that no compensation had been paid pursuant to the Heads of Agreement), that was not the state of affairs at the time of the Tribunal's decision. 13 It is the letter of 30 July 2009 which gave rise to the fresh review application to the Tribunal, and the application for an extension of time within which to institute that review application. That letter relevantly says: The Respondent's view has not changed. The Respondent considers that the moneys paid to you by Mitsubishi Motors Australia Limited (Mitsubishi) are 'compensation' for the purposes of section 4 of the Health and Other Services (Compensation) Act 1995 (Cth) (HOSC Act). In view of the above, the Respondent confirms that it regards the moneys paid to you by Mitsubishi as compensation in respect of which the Respondent may seek reimbursement under the HOSC Act. Having said this, we are instructed that the Respondent has sent you a letter dated 27 July 2009 confirming that it does not intend to take any further action against you under the HOSC Act to recover the moneys paid to you by Mitsubishi. Consequently, the Proceeding now appears to be entirely unnecessary. In any event, the Respondent considers the question of whether the moneys paid to you by Mitsubishi constitute compensation for the purposes of the HOSC Act to be irrelevant to the present Proceeding. The Proceeding is an appeal regarding the correctness of the Tribunal's decision that it did not have jurisdiction to review certain alleged 'decisions' by the Respondent.

THE TRIBUNAL'S DECISION 14 The Tribunal in its reasons of 16 December 2009: Kowalski v Chief Executive Officer of Medicare Australia [2009] AATA 2009, referred to the background to of the matter, to the legislation and to the contentions, and then addressed the question of whether an extension of time should be granted. 15 The Tribunal applied the principles discussed by Wilcox J in Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344. That decision concerned an application for an extension of time under s 11 of the Administrative Decisions (Judicial Review) Act 1977 (Cth) (the ADJR Act). There is no apparent difference in the relevant statutory expressions in s 11 of the ADJR Act and in s 29(7) of the AAT Act for that purpose. Indeed, the observations of President O'Connor in Re Mulheron and Australian Telecommunications Corporation (1991) 23 ALD 309 reflect a similar approach. The Tribunal noted that it is not sufficient on such an application to show a mere absence of prejudice to the respondent before an extension of time is granted: Re CSIRO and Barbara (1987) 11 ALD 447. Apart from considering whether an applicant has been inappropriately inactive (which is not suggested to have been the case on the part of Mr Kowalski), and the question of any prejudice to the respondent that might be caused by granting an extension of time, it is necessary to consider the wider prejudice to the general public by permitting an extension of time in the particular circumstances, to consider the merits of the application itself, that is the prospects of success on the particular application if an extension of time were granted, and fairness in granting the extension of time as between the applicant and other litigants in a similar position. As the Tribunal noted, it is not appropriate to state an exhaustive list of relevant factors, nor to treat any single factor as determinative. It is necessary to have regard to all relevant factors, and the weight given to each is a matter for the Tribunal: Zizza v Federal Commissioner of Taxation (1999) 55 ALD 451. 16 The Tribunal decided to refuse the AAT application for an extension of time for a combination of reasons. First, it considered that the AAT application had no reasonable prospect of success if an extension of time were granted because there is no decision capable of review by the Tribunal. Secondly, it did not consider that there was an acceptable reason for Mr Kowalski's delay in making his application. There was nothing new in the letter of 30 July 2009 touching on the matter, compared to what had previously been addressed in the letters of 17 and 25 March 2009. There was no satisfactory reason why any assertion that a decision was there conveyed, and that the decision so recorded was reviewable, should not promptly have been challenged. Thirdly, the Tribunal took into account that, even if the letter of 30 July 2009 which re-stated Medicare's view that the moneys paid to Mr Kowalski amounted to compensation which may have been recoverable under the HOSC Act, it also confirmed advice in the letter of 27 July 2009 that Medicare did not intend to take any further action under the HOSC Act to recover moneys paid to Mr Kowalski under the terms of the Deed. Consequently, as was apparent at the time of the first appeal, Mr Kowalski was still pursuing a claim even though it was apparent to him that, he is not required to repay to the CEO any moneys received under the Deed.

CONSIDERATION 17 I have reached the view that the appeal should be summarily dismissed under s 31A(2) of the FCA Act. I do not consider there is any reasonable prospect of the appeal being successful. At best, an order would be made that the matter be remitted to the Tribunal to reconsider according to law the application for an extension of time to seek review of the putative decision. But it is clear that the Tribunal has no power to review the putative decision, simply because it is not a reviewable decision. Moreover, the appeal is from an exercise of the Tribunal's discretion. No matter has been put which, in my view, could arguably indicate that the Tribunal's discretion miscarried; far less than its discretion miscarried on or by reason of an error of law. The "questions of law" identified in the Notice of Appeal are rhetorical; they do not identify with any precision an error on a question of law, but simply disagreement with the decision of the Tribunal. The "grounds", other than the first, attract the same comment. The first refers to matters to which the Tribunal had regard, and in respect of which it is not suggested it misunderstood or misapplied the law so as to attract the operation of s 44(1) of the AAT Act. 18 In my judgment, it has not been shown that the Tribunal erred in law in refusing the application for an extension of time. The contrary is the case. I agree with the Tribunal's assessment of the prospects of the AAT application being successful, namely that it had no real prospects of success in any event, so that there would be no purpose in granting an extension of time. I also agree with the Tribunal's view that it was a relevant consideration that the CEO indicated that there was no intention to recover under the HOSC Act any of the compensation, or moneys arguably paid by way of compensation, under the Deed, nor to take any further action against Mr Kowalski under that Act, notwithstanding that the CEO apparently was of the view that they or some of them may have been recoverable. 19 There is nothing in the first appeal which represents a conclusion that the letter of 30 July 2009 in fact constitutes or reflects a decision made on or about that time which was reviewable by the Tribunal. The terms of [19] of that judgment relied on by Mr Kowalski are carefully expressed. The context of those comments are that the letter of 30 July 2009 could not make reviewable or could not demonstrate that earlier, by the letters then under consideration of 17 and 25 March 2009, a reviewable decision had been made. Moreover, the passage referred to by Mr Kowalski set out above does not make any positive assertion about the meaning of the letter of 30 July 2009. The word "might" was chosen to avoid making any such assertion. 20 Even accepting that the letter of 30 July 2009 indicates a firm view on the part of the CEO that Medicare considered that Mr Kowalski had received compensation which may be repayable in part to Medicare, and by implication that Mr Kowalski's statement to Medicare under s 23A of the HOSC Act that no "compensation" had been received by him which was covered by the moneys received under the Deed was not substantially correct, I do not consider that it is arguable that the letter thereby constitutes a decision reviewable by the part of the Tribunal. 21 As was explained in the first appeal, the jurisdiction of the Tribunal is statutory. 22 The jurisdiction of the Tribunal is defined by s 25(1) of the AAT Act. Relevantly, it empowers an enactment to provide for applications to the Tribunal for "review of decisions made in the exercise of powers conferred by that enactment". Section 25(4) provides that the Tribunal has power to review any decision in respect of which an application is made to it under any enactment. Section 3(3) provides: (3) Unless the contrary intention appears, a reference in this Act to a decision includes a reference to: (a) making, suspending, revoking or refusing to make an order or determination; (b) giving, suspending, revoking or refusing to give a certificate, direction, approval, consent or permission; (c) issuing, suspending, revoking or refusing to issue a licence, authority or other instrument; (d) imposing a condition or restriction; (e) making a declaration, demand or requirement; (f) retaining or refusing to deliver up, an article; or (g) doing or refusing to do any other act or thing. 23 As is apparent, a particular enactment will indicate whether there is a decision or decisions which are reviewable by the Tribunal. In that context, and having regard to s 3(3) of the AAT Act, the decision must be an operative determination, rather than a step in the line of reasoning leading to the operative decision: see Director-General of Social Services v Chaney (1980) 47 FLR 80; Director-General of Social Services v Hales (1983) 78 FLR 373 (Hales).

24 The definition in s 3(3) of the AAT Act does not definitively limit the meaning of the word "decision". It is obviously desirable, as Lockhart J said in Hales, that not too "narrow or pedantic" an approach should be taken as to its extent. However, in the course of making a decision under an enactment which has an operative effect, there may be a number of steps in the process of reasoning which may lead to the ultimate and operative decision. If that operative decision is in favour of an applicant, the fact that the step or steps in the reasoning leading to that operative decision may not be satisfactory to the applicant, would not itself give rise to a right of review: see Re Ellenbogen and Secretary, Department of Social Security (1991) 24 ALD 783. It has been accepted that in some circumstances, a declaration by a statutory authority may have a practical effect on a party so as to constitute a decision within the terms of s 3(3), although it does not alter rights, or impose liabilities, or finally determine rights: Duncan v Defence Force Retirement and Death Benefits Authority (1980) 47 FLR 256. In that case, a declaration of the Defence Force Retirement and Death Benefits Authority as to the allowable amount of declarations from pay for superannuation purposes was a decision within s 3(3) of the Act. On the other hand, advice as to how an administrator will act at some future time is not a "decision" for which review can be obtained: Re Rennie and Defence Force Retirement and Death Benefits Authority (1979) 2 ALD 424. 25 That general approach to determining when a decision has been made which is reviewable by the Tribunal is consistent with the observations of the High Court in Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 (Bond). That decision concerned the expression "decision under an enactment" as defined in the ADJR Act. In that case, Mason CJ at 335-338 (with whom Brennan agreed) came to the conclusion that a decision, to be reviewable, must be "final or operative" and "determinative … of the issue of fact" and must be substantive in character. In separate judgments, Deane, Toohey and Gaudron JJ reached the same view. The foundation for that conclusion was largely the policy attributed to the legislature of avoiding the fragmentation of the process of administrative decision-making and ensuring efficiency in administrative processes. The extent to which that decision has impact is illustrated by Deloitte Touche Tohmatsu v Australian Securities Commission (1994) 35 ALD 519. A decision of the Australian Securities Commission that it was in the public interest to commence proceedings was not reviewable, because that was a distinct step prior to the decision itself to commence proceedings (which would have been challengeable). 26 Underlying the approach of the majority in Bond is a requirement that there be a decision which has a real impact on a person's rights, so that it has the necessary quality of substantive final or operative effect. Toohey and Gaudron JJ in Bond at 375 noted specifically that the definition of "decision" in the AAT Act is virtually the same as the definition in the ADJR Act (although in the case of the ADJR Act, there are some extensions to that definition which do not apply to the AAT Act). That approach has been applied by the Tribunal for instance in Re Gallivan Investments Ltd and Australian Securities Commission (1991) 24 ALD 611 and in Director-General Social Services v Cheney (1980) 47 FLR 80. 27 In this matter, in my judgment it is clear that the view of the CEO that the benefits received under the Deed were "compensation" was not an operative decision. It was not operative because the next possible step in the decision-making process, the decision to endeavour to recover that sum, had not been taken. Indeed, the CEO had indicated in unequivocal terms that such a decision would not be taken. In those circumstances, conveying the view of the CEO in the circumstances did not have any ultimate or operative effect under the terms of the HOSC Act which could have acted to the detriment of Mr Kowalski's rights or interests. He asserted in submissions that somehow that view could affect his rights in relation to other matters. He said in his oral submissions that the views of the CEO would prejudice his claim for compensation against MMAL. There is no foundation laid for that concern. Except in proceedings between Mr Kowalski and the CEO, the views of the CEO are of no probative significance. The characterisation of those benefits is a matter of law to be determined in other proceedings, if the issue there arises, and the opinion of the CEO would not be probative on that issue. 28 Relevantly, for present purposes, the Tribunal has jurisdiction to review a decision made under the HOSC Act, either under s 18(10) or s 23D(1) if there were a decision under s 18(9E) affirming or varying a decision by Medicare refusing to give a notice under s 18(7) of the HOSC Act, or a decision under s 23B of the HOSC Act that notice be given that a statement provided by a person under ss 18 or 23A of the HOSC Act or an amended statement provided by a person under s 23B of the HOSC Act, is not substantially correct. The letter of 30 July 2009 does not convey either of those things. It conveys the view of the CEO that the CEO considers that the moneys paid by MMAL under the Deed are "compensation" for the purposes of s 4 of the HOSC Act, and that it regarded those moneys as compensation in respect of which the CEO "may seek reimbursement" under the HOSC Act. It went onto assert that, despite those views, the CEO did not intend to take any further action under the HOSC Act to recover moneys paid to Mr Kowalski by MMAL. 29 The letter does not constitute, nor convey, a decision under s 18(9E) affirming or varying a decision by Medicare refusing to give a notice under s 18(7) of the HOSC Act. Nor does it constitute or convey a decision under s 23B of the HOSC Act that notice be given that a statement or amended statement provided by Mr Kowalski under that Act is not substantially correct. It reflects a point of view as to the nature of the payments received by Mr Kowalski from MMAL under the Deed, but does not indicate that any decision had been made which might involve any adverse consequence to Mr Kowalski. Accordingly, in my view, it is plain that no decision under the HOSC Act had been made, and conveyed by the letter of 30 July 2009, which would give rise to the Tribunal having power to review that decision. 30 In this matter, the CEO has reached a conclusion or formed an opinion on a matter, but it does not under the HOSC Act have a practical effect upon Mr Kowalski, and so it was not a decision within the terms of s 3(3) of the AAT Act. It did not alter his rights or impose a liability or make any decision in any final sense: see Duncan v Defence Force Retirement and Death Benefits Authority (1980) 47 FLR 256. The letter of 30 July 2009 does not amount to a decision to give a notice under s 18(9E) of that Act, so as to entitle an application to be made to the Tribunal to review that decision as provided for by s 18(10). Nor has any decision been made that a statement given to the CEO under ss 18, 23A or 23B of the HOSC Act is not substantially correct so that a notice under s 23B(1) be given to Mr Kowalski in accordance with that provision. Consequently, there has been no decision by the CEO that a statement under s 18 or s 23A, or an amended statement under s 23B, is not substantially correct. The right of review of such a decision exists under s 23D(1) of that Act. It has not been enlivened. There is no other provision of the HOSC Act which Mr Kowalski has identified to enliven a right to seek application or to apply to the AAT for review of any such decision. 31 Finally, as I have noted, in any event, it is plain that the CEO does not intend to seek any recovery from Mr Kowalski in respect of the moneys received by him from MMAL under the Deed, even if they do fall within the description "compensation". He is at no risk of detriment by the information conveyed by the letter. The observations in the first appeal about the futility of that proceeding are equally applicable to the AAT application and to this appeal. 32 Accordingly, I consider that the appeal must be dismissed. I so order. 33 There are some additional observations that it is appropriate to make. 34 First, as has been remarked in other judgments in which Mr Kowalski has been a party, he is prone to make scandalous offensive and unsubstantiated allegations about public figures, about judges or administrative decision makers, and about the solicitors and counsel appearing in those matters. Even allowing for him being a litigant in person, those allegations are entirely inappropriate. He seems to be unable to accept that others might in good faith take a different view about certain things. Whether or not a different view is erroneous, there is no basis for asserting that the person taking that view is attempting to pervert the course of justice, or is lying, or is acting unprofessionally. Those sorts of assertions, or like offensive epithets, should not be tolerated. See eg the observations of Gyles, Stone and Buchanan JJ in Bahonko v Nurses Board of Victoria [2008] FCAFC 29 at [3] and [10]. 35 In this instance, I propose to direct that, in the event that any person seeks access to the transcript, it not be available for inspection except by leave of a judge who may first consider whether it be redacted to remove the scandalous assertions in it. If such allegations were made by others about Mr Kowalski, accepting that they may be inaccurate, he would be the first to complain. He should extend the same courtesy to others. 36 I add that such allegations concerning the counsel for the CEO which Mr Kowalski made in the course of his oral submissions were entirely unfounded on the material. Counsel for the CEO, in my view, acted properly and made helpful and relevant submissions, at times notwithstanding such offensive and scandalous remarks by Mr Kowalski. 37 Secondly, the CEO challenged the jurisdiction of the Court to entertain the appeal because the decision on the AAT application to refuse an extension of time, being interlocutory, is not a decision which is covered by s 44 of the AAT Act. It is not necessary to decide that question in this matter, but I note the observations of Jagot J in Light v Administrative Appeals Tribunal [2009] FCA 1358 at [16]. 38 Thirdly, the CEO raised the question whether this appeal in fact raised any appeal on a question of law. There are many cases where the scope of s 44(1) of the AAT Act has been considered, including recently Australian Telecommunications Corporation v Lambroglou (1990) 12 AAR 515 at 524; Birdseye v Australian Securities and Investments Commission (2003) 76 ALD 321 at 324-325; Australian Securities and Investments Commission v Saxby Bridge Financial Planning Pty Ltd (2003) 133 FCR 290 at 300-302; Comcare v Etheridge (2006) 149 FCR 522 at 526-527; Commissioner of Taxation v Dixon (2006) 155 FCR 101 at 104-106; Hussain v Minister for Foreign Affairs (2008) 248 ALR 456 at 465-468. Section 44(1) of the AAT Act is not enlivened by inquisitorial questions, such as "Did the Tribunal err in law …" or by assertions as to an error of law expressed in only several terms. Of course, allowance must be paid for the difficulty confronting litigants in person in endeavouring to clearly identify and express an asserted error on a question of law, but merely asserting such an error because a putative appellant disagrees with the outcome or by saying the outcome involves such an error is not enough. Those comments may apply directly to the present notice of appeal. However, the appeal has been dismissed simply because there was no reviewable decision before the Tribunal even if an extension of time were granted, and because in any event the exercise of the Tribunal's discretion to refuse an extension of time did not miscarry and was not a consequence of any error of law on its part. 39 Finally, the CEO seeks costs of the appeal, and on an indemnity basis. I consider that Mr Kowalski should be ordered to pay the costs of the appeal on an indemnity basis. As to costs, the power to award them lies in s 43 of the FCA Act. He has been on notice as to the futility of the proceeding since a letter on behalf of the CEO of 20 January 2010. On the first appeal, I ordered that he pay indemnity costs: see at [16]-[20]. My reasons for ordering him to do so on this appeal are similar.

40 The appeal is summarily dismissed under s 31A(2) of the FCA Act. Mr Kowalski is to pay the CEO's costs of the appeal, including the costs of and incidental to the CEO's notice of motion of 2 March 2010, on an indemnity basis. I certify that the preceding forty (40) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Mansfield.

CORRIGENDUM 1 In the medium neutral citation page, the "Appeal from" reference "[2009] AATA 2009" be amended to "[2009] AATA 980". 2 In paragraph 14, line 2 of the judgment, "[2009] AATA 2009" be amended to "[2009] AATA 980". I certify that the preceding two (2) numbered paragraphs are a true copy of the Corrigendum to the Reasons for Judgment herein of the Honourable Justice Mansfield.

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