1. The application is dismissed.
2. Reserve costs.

1. The applicant, Mr Richards, was involved in a transport accident on 25 May 1996 (the transport accident). There has been a considerable amount of litigation in respect of the injuries which the applicant alleges he suffered as a result of the transport accident.
2. On 28 November 2007, the applicant requested to be reimbursed the cost of a Tempur bed (the bed) which he had purchased. The request was made pursuant to s 60 of the Transport Accident Act 1986 (the Act), on the basis that the applicant alleged that the bed was necessary as a result of injuries he received in the transport accident, particularly injuries to his neck and spine.
3. On 14 January 2008, the respondent wrote to the applicant relevantly stating :

On 3 February 2003, you were advised of the TAC's decision not to fund a bed. I have enclosed a copy of the TAC's letter dated 3 February 2003, which explains the TAC's decision not to fund the Tempur bed.

The TAC does not wish to alter its decision of 3 February 2003.

1. The applicant alleges that the respondent's letter of 14 January 2008 constitutes a decision pursuant to s 70 of the Act. As a result, he alleges that this Tribunal is authorised to review that decision pursuant to s 77 of the Act.
2. In furtherance of that allegation, the applicant lodged an application with this Tribunal seeking review of the matters contained in the letter of 14 January 2008, such application was lodged on 16 June 2008.
3. The preliminary hearing before me concerned the sole point of whether the contents of the letter of 14 January 2008 constituted a decision pursuant to s 70 of the Act in which case, it could be reviewed by the Tribunal pursuant to s 77. However, if the letter did not constitute a decision, it was common ground that the applicant was out of time to review the respondent's decision of 3 February 2003. As such, it necessarily follows that if the letter of 14 January 2008 is not a decision pursuant to s 70 of the Act, then it is not reviewable. It was on this point that the preliminary hearing before me took place.

1. In October 2001 and November 2002, the applicant's request for the bed to the respondent was supported by his chiropractor, Dr Paul Perkoulidis.
2. The respondent denied the applicant's request for the bed (2003 decision). By a letter dated 3 February 2003, the respondent relevantly stated :

I refer to your request for the TAC to fund a Templar (sic) bed.

Following a thorough review of the available medical evidence the TAC is not satisfied that the injuries you sustained in the transport accident of 25/5/96 are sufficient justification for the provision of the requested Templar (sic) bed.

1. On 6 February 2003, the applicant requested the respondent to review its 2003 decision.
2. On 24 March 2003, the applicant withdrew his request for a review of the 2003 decision and, as a consequence, the review never took place.
3. By memo written by the respondent on 3 February 2004, it is stated :

Regarding the mattress I noted that TAC had not accepted liability for the client's back condition and therefore cannot consider this request ...

1. At paragraph 56 of the applicant's submissions, the applicant describes the adjudications by which there was found to be a causal connection between the applicant's back injury and the transport accident. It is there stated :

56(b) This matter came before Judge McInerney in the County Court, date of judgment given on the 22nd of November 2002. Judge McInerney found that the May 96 motor accident did in fact cause the injuries to the applicant's lumbar back, but would not grant leave to bring common law proceedings.

(c) The applicant appealed to the Court of Appeal, decision given on the 21st of May 2004. The Court of Appeal remitting the case back to the County Court for a new trial.

NOTE: The morning of the appeal the respondent withdrew their notice of contention to dispute the funding of Judge McInerney finding on causation of the lumbar back injuries.

1. There does not appear to be any further discussion between the parties in relation to the bed until 18 May 2006 when the issue reignited. On that date, the applicant sent a facsimile to the respondent including the two certificates which I have already referred to from Dr Perkoulidis.
2. There appears to have been a telephone conversation between the applicant and a Craig Izzard from the respondent on 22 May 2006. The note of that conversation reads as follows :

He (the applicant) also wanted to further discuss whether the TAC is able to reverse its decision regarding a bed - the justification for this is that he has now found an alternative to the Templar (sic) bed which is a lesser cost.

After discussing this issue with a number of people, I have advised the client that there is not much likelihood of the decision being changed as it is still a bed that is in question and which is mentioned in the decision letter of 03.02.03.

1. In proceedings before Judge F B Lewis in the County Court (judgment being given 15 August 2006) which proceedings were to strike out the applicant's application, his Honour referred to the particulars in the application that alleged a breach of the respondent's statutory duty by not providing a specialised bed for the plaintiff (the applicant). At paragraph 15 of his Honour's decision, he stated :

The Transport Accident provides, in s. 77, that an aggrieved person 'whose interests are affected by a decision of the Commission, may within 12 months after becoming aware of the decision apply to the Tribunal for review of the decision.' 'Tribunal' is defined as the Victorian Civil and Administrative Tribunal.

1. His Honour then went on to state at paragraph 19 :

I can understand the plaintiff's frustration at the ponderous dealings in relation to the bed between 1 October 2001 and 3 February 2003, and it is not for me to assess the merits of the defendant's decision. I think, unfortunately, the plaintiff is caught by the time limits set by s.77 of the Act so far as any appeal to the Tribunal is concerned.

1. As a result, his Honour ordered that the proceeding be dismissed. The applicant appealed Judge Lewis' decision to the Court of Appeal which appeal was dismissed.
2. Buchanan JA at paragraph 40 of his decision stated as follows :

In my view the cost of a bed of a type calculated to reduce the discomfort and increase the prospects of recovery of a person injured in a transport accident could fall within this provision (s 60(2)(a)). The decision whether such a bed was required to meet the need and thus constituted disability or rehabilitation services was a matter for the Commission to determine. It was under no absolute duty to grant a request for compensation. Its duty was to consider the request. If the Commission rejects a request for compensation, the disappointed claimant's remedy is not an action in damages, but a reconsideration of the claim by the Commission and a review of the Commission's decision pursuant to ss 77 and 78 of the Act. ....

1. The applicant sought leave to appeal this decision to the High Court which leave was refused on 22 May 2008.
2. On 28 November 2007, the applicant claimed reimbursement costs for the bed which he had by that stage purchased for the sum of $3241.05. As a result of that claim, the respondent wrote the letter of 14 January 2008 to which I have previously referred (see paragraph 3 hereof). It is the content of this letter of 14 January 2008 that the applicant alleges is a decision of the respondent. Thus, the question I must consider is whether the letter of 14 January 2008 is in fact a decision within the meaning of s 70 of the Act and, if it is, it would of course be reviewable pursuant to s 77 as the application herein was made within the 12 month period.

1. The relevant provisions of the Transport Accident Act 1986 concerning this proceeding are found in a number of provisions which I outline below.
   1. Medical and like benefits

(2) The Commission is liable to pay as compensation to a person who is injured or in respect of a person who dies as a result of a transport accident -

(a) the reasonable costs of road accident rescue services, medical services, hospital services, nursing services, disability services, rehabilitation services, transportation costs and ambulance services received in Australia because of the transport accident; and

(1) The Commission must within 21 days after receiving a claim for compensation -

(a) accept or reject liability to pay compensation; or

(2) The Commission must, within 14 days after receiving further information sought by it in relation to a claim or the result of a medical examination or within 21 days after receiving the claim or making a request under subsection (1)(c), whichever last occurs, accept or reject the claim or make a reasonable request, or further reasonable request, under subsection (1)(b).

(1) A person whose interests are affected by a decision of the Commission may, within 12 months after becoming aware of the decision, apply to the Tribunal for review of the decision.

(3) If any dispute arises in relation to an individual funding agreement or a proposed individual funding agreement, a party (or a proposed party) to the agreement may apply to the Tribunal for a resolution of the dispute within 3 months after the dispute arises

Schedule 1 clause 94 of the Victorian Civil and Administrative Tribunal Act 1998 reads as follows :

Section 126(1) and (2)(a) do not apply to a proceeding under the Transport Accident Act 1986.

Clause 94 makes it clear that the Tribunal cannot extend time in relation to an application made pursuant to s 77 of the Act.

WHETHER AFFIRMATION OF A PREVIOUS DECISION IS A NEW DECISION PURSUANT TO S 77 OF THE ACT

1. There has been some controversy in this Tribunal as to whether the affirmation of a previous decision constituted a new decision, see the decision of Judge Jones in Cockayne v Transport Accident Commission made 5 April 1989 where his Honour Judge Jones found that a review of a decision by the respondent constituted a new decision which could be reviewed by the Tribunal. Opposed to this view are several other decisions of the Tribunal, including Ulanovsky v Transport Accident Commission DP Macnamara 18 July 1997, Murray v Transport Accident Commission (unreported 22 September 2000) per SM Ball and Lindrea v Transport Accident Commission (first instance unreported 10 April 2001) per SM Preuss [2001] VCAT 1698.
2. The diversion of opinion mentioned in the cases referred to above was settled by an appeal in the matter of Lindrea v TAC which appeal was heard by his Honour Ashley J in Lindrea v Transport Accident Commission [2001] MVR 259 [2001 VSC 463]. The facts of that case can be stated shortly. The applicant's husband died as a result of a motor vehicle collision and the applicant made a claim for a spouse benefit. The claim was made in December 1998 and rejected by the respondent in December 1999. After the rejection of the claim, the surviving spouse requested the respondent to undertake an internal review. As a result of the internal review, the previous decision of the respondent was affirmed in May 2000. In November 2001, the deceased's spouse applied for review by VCAT of the May 2000 decision. It will be noted that at this particular time, the applicant would have been out of time to review the December 1999 decision as the time limit imposed by statute (s 77) was 12 months.
3. His Honour Ashley J concluded that the only decision of the respondent that was capable of review pursuant to s 77(1) was the 1999 decision, however, the time for review of that decision had expired. As a result, his Honour found that the affirmation of the original decision after internal review (May 2000) was not a decision which could be reviewed. Therefore, his Honour concluded that as the review provisions precluded an application for review being made after 12 months, the applicant could not seek review in the Tribunal.

In my opinion this appeal was commenced outside the time permitted by s 77(1) of the Act. That was so for at least two reasons.

First, I consider that where a claim for compensation is made which requires a decision under s 70, it is that decision (or deemed decision) and no other which is the decision for s 77(1) purposes. I do not deny the power of the commission to invite and undertake an informal review of its statutory decision. But in my opinion the structure of the Act, which is pertinently replete with time limits, strongly suggests that in every case involving s 70 there is to be a common starting point - that is, the s 70 decision itself.

Second, I consider that the May decision, which affirmed rejection of the claimed entitlement to compensation, should not be considered a decision affecting the interests of the plaintiff. The decision of that character was the decision which rejected the claimed entitlement.

Concerning those conclusions I should make the following points: First, the consequence of the first of my conclusions is I differ from the decision of the tribunal in one respect. The tribunal concluded that a decision on internal review varying a s 70 decision (though this was not such a case) would be a decision for s 77 purposes. In light of my first conclusion there is no room for an informal review decision having that character. It matters not - particularly it is the case if the review decision varies the original decision - that the review decision has the determinative character of a decision. No doubt the fact of the re-determination in such a case will be relevant in the event that an application has been made for tribunal review. It might be the case that the tribunal application becomes irrelevant, or that the issue for consideration by the tribunal will in substance be narrowed; just as might occur in consequence of a s 78 review. But those considerations do not bear upon what is 'the decision' for s 77(1) purposes.

Second, I have not acted upon what I have called the general argument concerning affirmation. But my first conclusion renders that argument superfluous.

Third, to make the matter crystal clear, I have given full account, in the statutory construction exercise, to those parts of Mr Keely's submissions which I have accepted in the course of these reasons. I have simply not been persuaded that they overcome the impact of s 77(1) read in its statutory context.

Fourth, as I indicated earlier in these reasons, I was unable to regard either Cockayne or Ulanovsky as satisfactorily resolving the constructional issue raised by this appeal.

1. The applicant attempted to distinguish the decision of Ashley J in Lindrea and other decisions to which I have referred from the present situation. He stated that he was seeking medical and like expenses pursuant to s 60 of the Act. In Lindrea the applicant was seeking a spousal death benefit and in other cases, the applicants were seeking to review a permanent impairment decision. In my view, the distinction which Mr Richards sought to draw is not a proper distinction. For the application of ss 70 and 77, it matters not what type of decision the Transport Accident Commission was making. What is important is whether an affirmation or an internal review of the decision which had been made is subject to a review by this Tribunal. His Honour Ashley J has now made it abundantly clear that it is not. Further, when one looks at the terms of the letter of the respondent of 14 January 2008, it is abundantly clear that it was just restating the position of 2003 and not intending to make a new decision at all. Thus, I find that purely making an affirmation of a previous decision cannot be considered a new decision. Therefore, such decision is not reviewable by this Tribunal.
2. The applicant submitted that as a causal connection between the motor vehicle accident and his back injuries were established at a later time than the 2003 decision, there were new facts which the respondent should consider and, as such, the decision was reviewable.
3. It is clear that the decision of his Honour Judge McInerney of 22 November 2002 makes it clear that there is a causal connection between the motor vehicle accident and the applicant's lumbar injury (see p 162 of the transcript of that decision). The decision of Judge McInerney was appealed to the Court of Appeal and its decision was made on 21 May 2004 [2004] VSCA 91. Their Honours in the Court of Appeal remitted the matter to the County Court.
4. On remitter to the County Court, the matter was heard by Judge Cohen in February 2005 and decision given 17 March 2005. In her reasons for decision, she stated at paragraph 43 :

I am not satisfied that the plaintiff suffered such injury to his lumbar spine or whole spine.

1. Thus, when one examines the situation carefully, it is apparent that prior to the 2003 decision, his Honour Judge McInerney had found that there was a causal connection between the motor vehicle collision and the applicant's spine. Therefore, at the time of the 2003 decision that was the finding. It was at a later time when Cohen J made her decision (17 March 2005).
2. Therefore, it is clear that when the decision was made in 2002, the most recent judicial finding was that there was a relationship between the motor vehicle accident and the applicant's problems with his lumbar spine. Yet when the 2008 letter was sent, the relationship between the two was no longer judicially accepted because of Judge Cohen's finding. Therefore, if there had been a change in the factual situation between 2003 and 2008, that change was a disadvantage to the applicant.
3. In any event, it would seem apparent that the mere existence of new material cannot make an affirmation of a previous decision into a new decision that is capable of review. In Ulanovsky v TAC (unreported 18 July 1997), Macnamara DP, sitting in the then Administrative Appeals Tribunal, at p 7 stated :

It would seem to me on so important a jurisdictional issue as this, surprising, if in determining when time ran, one had to descend to a minute consideration of the form of correspondence seeking the reconsideration and determining whether genuine additional information had been given on the one hand or on the other hand there was no more than a cri de coeur (an appeal from the heart).

1. This approach was also adopted by Preuss SM at first instance in the Lindrea case. In Jai Hickey v Transport Accident Commission (unreported 16 June 2000), at paragraph 19 thereof, Megay SM makes a similar point.
2. In these circumstances, I am firmly of the view that even if new material had been provided to the respondent, the letter of 14 January 2008 would not constitute a decision. In any event, it would appear to me that the respondent, when it made its 2003 decision, would have had in mind the decision of Judge McInerney. However, because Judge Cohen in her subsequent decision was unable to find a causal connection between the applicant's back problems and the transport accident, it does not appear to me that the applicant did provide any further information subsequent to the 2003 decision that would cause the respondent to change its mind.

RELEVANCE OF WHETHER THE 2003 DECISION WAS THE CORRECT AND PROPER DECISION

1. Mr Richards submitted that because the 2003 decision was not the correct and proper decision, I should find that the contents of the letter of 14 January 2008 do constitute a new decision. In my view, this is not a submission that can be accepted. The applicant had 12 months from the 2003 decision to seek review in VCAT. He did not. It would be quite wrong for a Tribunal, a number of years later, to review the 2003 decision and decide whether it was a correct or preferable decision. In any event, reviewing that decision at this time would be a substantive matter, whereas what I am dealing with here is whether the 2008 letter is in fact a decision, which is a procedural matter. Section 77 of the Act clearly imposes a time limit and that time limit is a very strict time limit which can be shown by reference to Schedule 1 clause 94 of the Victorian Civil and Administrative Tribunal Act 1998. Therefore, I cannot accept the submission that because the 2003 decision may or may not be a correct decision, that the letter of 14 January 2008 would in fact be a decision within the meaning of s 70 of the Act.

1. Mr Richards also submitted that there had been a movement in the common law since the 2003 decision and therefore the 2008 letter should be accepted as a new decision. This is a statutory Tribunal interpreting a statutory right. The common law may be of assistance in seeking to interpret that right, however, when a statute such as the Act clearly excludes review of a decision after 12 months, and where the authorities are clear that an informal review of a decision by the respondent does not create a new decision, it would be quite wrong for this Tribunal to attempt to state new principles of law. This is especially so because I am bound by what His Honour Ashley J said in Lindrea.
2. Mr Richards referred to a number of sections of the Act, in particular s 1 of the Act being the purpose section; s 3 in relation to the definition of "rehabilitation service"; s 11(c) in relation to the object of the respondent to ensure transport accident scheme emphasises accident prevention and effective rehabilitation; and also s 8 in relation to the objects of the Act. He said under those circumstances, a broad approach should be taken and that as his application showed that the bed would be likely to rehabilitate him, he should be successful in recovering the cost of such bed.
3. However, where there is a specific section in an Act like ss 70 and 77, which to some extent conflicts with the more general sections to which the applicant referred, the specific section in the Act is to be preferred ("generalia specialibus non deregant"). Under those circumstances, I find that the sections of the Act which the applicant referred to do not take his case any further.

1. For the reasons I have stated above, I have come to the conclusion that the contents of the letter of 14 January 2008 from the respondent do not constitute a new decision. As it was conceded by the applicant that he was out of time to review the 2003 decision, it is clear that there was no decision made in January 2008 pursuant to ss 70 and 77 of the Act.

2. Thus having found that the letter of 14 January 2008 from the respondent does not contain a reviewable decision but merely an affirmation of a previous decision, it necessarily follows that the applicant's claim must fail. Therefore the application will be dismissed.