PRACTICE AND PROCEDURE - dismissal pursuant to subsection 42A(4) of the Administrative Appeals Tribunal Act 1975 - whether the Tribunal has jurisdiction to review a decision made pursuant to section 42C of the Administrative Appeals Tribunal Act 1975 - Tribunal does not have jurisdiction to review decision - application for review dismissed

Administrative Appeals Tribunal Act 1975, ss 42A, 42C, 43AA

Safety, Rehabilitation and Compensation Act 1988, s 14

Novosel v Comcare [2017] FCA 722

Margaret Allars, 'Perfected Judgments and Inherently Angelical Administrative Decisions: the Powers Of Courts and Administrators to Re-Open or Reconsider Their Decisions', Australian Institute of Administrative Law Forum, No 30, 2001.

1. On 26 October 2020 the Applicant, Ms Nicole Kuchlmayr, sought review of the Tribunal's decision made on 21 June 2018 in matter number 2017/6255. On 5 November 2020 the parties were directed to provide submissions, by 20 November 2020, on the question of whether the Tribunal has jurisdiction to consider Ms Kuchlmayr's application. The Respondent, the Australian Capital Territory, filed submissions by that date but Ms Kuchlmayr did not.
2. On 24 November 2020 the Tribunal decided to dismiss the application pursuant to s 42A(4) of the Administrative Appeals Tribunal Act 1975 (the Act) on the basis that the decision in question is not reviewable by the Tribunal.
3. Ms Kuchlmayr has sought reasons for this decision. On 24 November 2020, after the Tribunal had made its decision, she provided a submission going to the question of whether the Tribunal has jurisdiction to entertain her application. Since this submission was received after the deadline for the lodging of submissions, and after the Tribunal had in fact made its decision, the submission was, obviously, not taken into account in reaching that decision. However, I can indicate that, had the submission been considered before my decision was made, it would have had no bearing on the conclusion I reached.
4. What follows are the reasons for my decision.

1. In 2017 Ms Kuchlmayr sought review in the Tribunal of a reviewable decision made pursuant to s 14 of the Safety, Rehabilitation and Compensation Act 1988 in relation to a claim for adjustment reaction with mixed emotional features sustained on 27 May 2016.[1] Her application was given the number 2017/6255 by the Tribunal.
2. The following year, after discussion between the parties, agreement was reached between them as to the resolution of the matters raised in the application. Accordingly, on 18 June 2018, Terms of Agreement under s 42C of the Act were filed with the Tribunal, those terms having been signed by Ms Kuchlmayr's solicitors at the time.
3. On 21 June 2018, the Tribunal issued a Decision pursuant to s 42C of the Act (the consent decision), reflecting the Terms of Agreement lodged a few days prior. This decision had the effect of finalising the proceedings in 2017/6255. It is an essential precondition for the exercise of the power in s 42C that the parties have reached agreement as to the terms of a consent decision.
4. On 26 October 2020, more than two years later, Ms Kuchlmayr sought review by the Tribunal of the decision dated 21 June 2018. In support of the application, she gave the following reasons (the Tribunal has given the person referred to a pseudonym, as publication of her name serves no useful purpose in the circumstances):

My employer ACT Health (AB, then Director of the [redacted]) submitted a reconsideration containing false and misleading information. I believe this was fraud. I was unable to prove that the information was false and misleading. My claim was revoked in October 2017.

The AAT was involved and my claim was affirmed by consent in June 2018.

In early 2019 I met with the CEO of Canberra Health Service who looked into my complaints about false and misleading information being submitted to Comcare by AB. My complaints were then referred to the Professional Standards Unit (PSU) for investigation.

AB has been found guilty of misconduct - 2020.

All of the information in my Comcare claim was submitted by AB. I contend that the information supplied by her contains false and misleading information.

I request that my claim be reviewed based on true information, and the false and misleading information supplied by AB is removed from my Comcare claim.

1. In the submission Ms Kuchlmayr lodged on 24 November 2020 she expanded on the matters alleged in her original application. She referred to correspondence with a solicitor representing the Respondent, to the process undertaken within the ACT Health Directorate to respond to Ms Kuchlmayr's complaint of misconduct against AB, and to the outcome of that process. The submission suggested that neither the Territory nor its insurer was prepared to reconsider her claim for workers compensation, and that she decided to seek merits review of the earlier decision as the AAT has powers to summons documents and people.

1. The matters put forward by Ms Kuchlmayr in her original application and in her submission go to the factual basis on which the consent decision of 21 June 2018 was made. Their import, as I apprehend it, is that, had the Tribunal been aware of the matters latterly raised by Ms Kuchlmayr, in particular the matters pertaining to what she says is fraud perpetrated by or on behalf of her employer, then it would not have made the consent decision. The argument would be that, those matters having now come to light, it is appropriate to revisit a decision which was made based on a flawed or incomplete understanding of the facts relevant to its making.
2. Without undertaking a detailed forensic assessment of the matters Ms Kuchlmayr raises, it is fair to say that, on face value, the matters she has put forward may have the gravamen to warrant revisiting her original claim for workers compensation. However, it would be futile on the part of the Tribunal to undertake such an assessment if, having been persuaded that the claim should be revisited, it was unable to grant the relief she sought. Unfortunately for her, in the present circumstances that is precisely the situation the Tribunal faces.
3. The Tribunal has the power to review certain decisions (usually those of government agencies) where they affect the interests of an individual or a certain organisation: ss 25 and 27 of the Act. The decisions which are reviewable by the Tribunal are set out in or under Commonwealth legislation. Over 400 Commonwealth statutes and legislative instruments set out circumstances where the Tribunal may review an administrative decision. Without an act or instrument specifying that a particular type of decision is reviewable, the Tribunal cannot act. Unlike the Federal Court and certain state courts, the Tribunal lacks a general power to interfere to protect the legal rights of citizens.
4. The power granted under a statute to undertake a review of a particular decision can, as a general rule, be exercised only once. It is the power to review a specific reviewable decision; once it has reviewed that decision and decided to affirm it, overturn it or remit it for fresh assessment to the decision-maker, its statutory power to review is exhausted. At that point it is functus officio [Latin: having performed his office], meaning that it no longer has any power to change or reconsider the decision it has made. That principle is the same whether the decision is one made on the merits after a full hearing or one produced as a result of the agreement of the parties (Novosel v Comcare [2017] FCA 722 at [103]). Even the courts have very limited powers to reopen finalised decisions, preferring to direct affected parties to their right to appeal to a higher court.[2]
5. There are confined exceptions to this rule. The Tribunal on occasions has set aside consent decisions where it has become apparent that a party had withdrawn their legal representative's instructions prior to the Tribunal considering terms of agreement under s 42C. This is on the basis that the precondition - agreement between the parties - for the power to make a consent decision was absent, notwithstanding the appearance that it was present. Another exception is found in s 43AA: if a decision contains an obvious error in the text of the decision or in a written statement of reasons, the error may be corrected. Such errors are typically typographical, and must be obvious and uncontroversial. A third exception is where a decision is appealed to the Federal Court and the court determines that the Tribunal has not exercised its statutory power according to law, and the decision is remitted to the Tribunal to be made again.
6. But in the absence of an exception such as these, there is no capacity for the Tribunal to revisit, at the request of a party or at its own behest, a decision already made. Quite apart from the lack of a statutory basis for doing so, this approach would contribute to uncertainty and undermine the principle that parties can expect finality from a decision of the Tribunal. The Moving Finger writes; and, having writ, Moves on, as Omar Khayyám pithily put it.[3]

1. It would be futile to undertake an exploration of the issues Ms Kuchlmayr has raised in support of her application for review of the consent decision. This is because, in the absence of one of the exceptions referred to above, there is no basis on which the Tribunal can reopen a matter already determined, no matter how compelling the argument may be that the decision was based on an inaccurate factual foundation.
2. Other avenues may be available to her, such as lodging a fresh claim for workers compensation. The Tribunal is, however, unable to give her advice on those options.

1. I certify that the preceding 17 (seventeen) paragraphs are a true copy of the reasons for the decision herein of Deputy President Gary Humphries AO.

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[1] In this decision italics generally indicated direct quotation.

[2] Margaret Allars, 'Perfected Judgments and Inherently Angelical Administrative Decisions: the Powers Of Courts and Administrators to Re-Open or Reconsider Their Decisions', Australian Institute of Administrative Law Forum, No 30, 2001.

[3] The Rubáiyát of Omar Khayyám, 1859.