Gregory and Department of Defence [1999] AATA 77 (11 February 1999)

Last Updated: 17 February 1999

DECISION AND REASONS FOR DECISION [1999] AATA 77

ADMINISTRATIVE APPEALS TRIBUNAL )

) No S98/485

GENERAL ADMINISTRATIVE DIVISION )

Re PETER GREGORY

Applicant

And DEPARTMENT OF DEFENCE

Respondent

DECISION

Tribunal Senior Member J.A. Kiosoglous MBE

Date 11 February 1999

Place Adelaide

Decision The Tribunal directs that it does not have jurisdiction in this matter and accordingly the application is dismissed.

(Signed)

J.A. KIOSOGLOUS

(Senior Member)

CATCHWORDS

COMPENSATION - meaning of decision - consideration of "imposition of liability and legislative requirements" - whether requirement to attend medical examination is a "decision"

PRACTICE AND PROCEDURE - Jurisdiction - requirement to attend medical appointment - whether Tribunal has authority to review a requirement made under s.57

Safety, Rehabilitation and Compensation Act 1988 ss.38, 57, 62

Director-General of Social Services v Hales (1983) 5 ALN N162

REASONS FOR DECISION

11 February 1999 Senior Member J.A. Kiosoglous MBE

1. The Tribunal held a telephone directions hearing on 18 January 1999 to determine the question of whether the Tribunal has jurisdiction to hear the matter of Mr Gregory's compensation claim.

2. The applicant represented himself and Mr Paul Ontong, Assistant Director, Reconsiderations and Appeals at the Department of Defence (the Department) represented the respondent.

3. The facts of the matter relevant to the question of jurisdiction are summarised as follows:

(a) Mr Gregory submitted a claim for compensation on 9 February 1989 for (inter alia) inadequate treatment for his psychological condition whilst he was in the RAAF. In a determination dated 15 February 1990 the Department rejected this claim. A reconsideration dated 18 September 1990 affirmed the decision of 15 February 1990.

(b) On 15 June 1998 Mr Gregory submitted a further claim for compensation. In reply to the question, "what injury or illness are you claiming for?", he stated "as determined by Veterans Affair (sic) for my TPI pension". In response to this claim the delegate, Mr Steven Henri wrote to the applicant on 25 June 1998 and stated (inter alia):

"Please find enclosed copies of a initial determination dated 15 February 1990 and an appeal decision dated 18 September 1990 relating to claim for compensation submitted on 16 June 1998.

As your claim has been determined and has since been denied at appeal I suggest that you contact AAT for a review of the previous decisions. Initially you should contact them asking for an extension of time given that your initial appeal was denied nearly 8 years ago."

(c) It appears that on 30 June 1998 the applicant wrote to the Department requesting a reconsideration of the reviewable decision dated 18 September 1990. Mr Paul Ontong wrote to the applicant on 10 August 1998 requesting him to telephone to discuss his claim.

(d) On 15 December 1998 Mr Ontong again wrote to the applicant stating (inter alia):

"Thankyou for your letter dated 16 October 1998 in which you ask us to reconsider the determination dated 25 June 1998.

Please accept my apologies for the delay in responding to your correspondence.

Your request for reconsideration is outside the time limit set by the Safety, Rehabilitation and Compensation Act 1988 (the Act). In view of the circumstances of this matter, however, I am prepared to grant an extension of time for your request.

...

I note that you are relying upon the diagnosis of Professor Evans dated 10 September 1996. This report, and in particular its diagnosis of schizophrenia, is at odds with medical reports previously obtained and provided in this matter. Accordingly, I believe it is important to obtain a further psychiatric review of your condition. I have made arrangements for you to see Professor R D Goldney on Thursday 15 April 1999 at 9.00 am at his rooms at the Adelaide Clinic, Suite 13, 33 Park Terrace, Gilberton.

...

I draw your attention to the provisions of Section 57 of the Act which provide that if you refuse or fail, without reasonable excuse to undergo an examination, or in any way obstruct an examination, your rights to compensation under the Act and to institute or continue any proceedings under the Act in relation to compensation are suspended until the examination takes place."

(e) On 21 December 1998 the applicant lodged an application with the Tribunal stating (inter alia):

"I hereby request that the decision of the Department of Defence dated 15 December 1998 be reviewed by the Administrative Appeals Tribunal on the following grounds.

1. The determining authority evidences an apparent bias in the decision.

2. The determining authority is acting vexatiously and causing unreasonable delay.

3. The determining authority has exercised powers outside of the terms of the delegation.

4. The determining authority has failed to comply with the statutory requirements applying to the decision."

(f) The Tribunal subsequently called the said telephone directions hearing on Monday 18 January 1999 to hear submissions by the parties on the question of its jurisdiction in relation to the application.

applicant's submissions

4. In support of his contention that the Tribunal has jurisdiction to review the alleged decision of 15 December 1998 (the alleged decision), the applicant submissions are summarised as follows:

(a) The alleged decision is made under s.62 of the Safety, Rehabilitation and Compensation Act 1988 (the Act) because it is made during the course of a reconsideration. The applicant submitted that because Mr Ontong has been delegated authority to, and is conducting a reconsideration pursuant to s.62 of the Act, then the alleged decision is also subject to s.62.

(b) Decisions made under s.62 are primary to any other decisions in respect of the reconsideration and are the only decisions deemed to provide jurisdiction for review, except where the decision-maker does not have the power to make the decision in the first place.

(c) For Mr Ontong to use s.57, or any other part of the Act outside of part VI of the Act in considering the reconsideration, it would have to be allowed by s.62, and s.62 would have to specify that s.57 can be used in the reconsideration.

(d) Whether the decision is provisional or interlocutory is of no consequence. The request in Mr Ontong's letter to attend a medical examination is a demand, and is therefore a decision that is reviewable. The applicant referred to Director-General of Social Services v Hales (1983) 5 ALN N162 at N163-N164 in support of this submission, where Lockhart J states:

"a pronouncement which alters rights or imposes liabilities is readily classified as a decision"

(e) The Tribunal gains jurisdiction to hear a matter once a decision has been made, not at the conclusion of the reconsideration process. "Decision" has the same meaning in the Act as in paragraphs (d) and (e) of sub-s.3(3) of the Administrative Appeals Tribunal Act 1975. The requirement in Mr Ontong's letter, dated 15 December 1998, in so far as it imposes a condition to see the doctor, makes it a decision reviewable by the Tribunal.

(f) The applicant submitted (inter alia):

"The fact that he has invoked section 57 does not diminish the certainty that the source of this authority can only be based on section 62 of the SR&C Act."

(g) The applicant also made submissions that Mr Ontong had no authority to conduct the reconsideration. The applicant submitted that Mr Ontong was involved in the making of the determination dated 25 June 1998, and could not therefore conduct the reconsideration pursuant to paragraph (b) of sub-s.62(1).

respondent's submissions

5. Mr Paul Ontong made submissions on behalf of the Department which are summarised as follows:

(a) Mr Ontong was never involved in the primary decision making process. In particular he was not involved in the initial claim relating to the reconsideration of 18 September 1990.

(b) He submitted that the respondent has the power under s.57 of the Act to require a medical examination and that this requirement occurs before any decision is made in relation to the reconsideration.

(c) The respondent submitted that the Tribunal does not have jurisdiction until a reviewable decision has been made. As no reconsideration of the determination dated 25 June 1998 has been made, the Tribunal has no jurisdiction in the present matter.

discussion and findings

6. The Tribunal, with the acquiescence of the parties, referred to its file S98/306 in which the applicant had requested review of the decision of the Department of 25 June 1998. This application was treated as an application for review of the reconsideration decision 18 September 1990 and the applicant lodged an application for extension of time, which was opposed by the Department.

7. Prior to a hearing in relation to the extension of time, Ms Julie McIntyre of Norman Waterhouse, solicitors for the Department, wrote to the applicant on 15 October 1998 stating (inter alia):

"Thank you for your letter dated 9 October 1998.

I note that you wish to claim for the condition of untreated schizophrenia.

The letter from Department of Defence dated 25 June 1998 was based upon an assumption that the condition for which you claimed was a personality disorder already considered and reviewed in1990. The basis of this assumption was your claim for compensation dated 15 June 1998 for a condition "as determined by Veterans' Affairs for my TPI pension". Department of Defence was only aware of a determination by the Department of Veterans' Affairs in 1989 in respect of a personality disorder. It appears from your letter dated 9 October 1998 that you challenge this assumption and say that you are claiming for "untreated schizophrenia" which, in your view, is a different condition.

If this is the case, I suggest that it would be more appropriate for you to withdraw your current application for an extension of time in the AAT and to request a reconsideration of the decision dated 25 June 1998. Your request for reconsideration should confirm that the condition you claim is schizophrenia based upon Professor Evans' diagnosis (and any other medical evidence you wish to attach) and state your reasons for requesting a reconsideration. You may choose to simply refer to the reasons you have outlined in your letter dated 9 October 1998.

I should further point out that the Department of Defence will not necessarily accept that a claimed condition of schizophrenia is different to that determined in 1990. If however this is the position you wish to put to the AAT then it is necessary that you have a reviewable decision which deals with the issue. The matter currently before the AAT, in my view, does not."

8. Following receipt of this letter, the applicant withdrew his application for extension of time on 18 October 1998, stating to the Tribunal (inter alia):

"After further correspondence with Ms McIntyre, who is acting for the Respondent in this matter, I have submitted a request to the Department to reconsider their decision of 25 June 1998."

9. Having reviewed the history of this matter, the Tribunal is satisfied that the letter of Mr Henri dated 25 June 1998 is a primary determination, rejecting the applicant's claim of 15 June 1998 on the grounds that there is no new compensable condition.

10. The Tribunal is satisfied having heard the submissions of the respondent that the letter of 25 June 1998 is a primary determination under the Act which must be reconsidered pursuant to s.62 of the Act if it is to be reviewed by the Tribunal.

11. Having carefully considered the submissions of the applicant, the Tribunal is satisfied that the decision, which the applicant seeks to have reviewed in the present matter, is the requirement of Mr Ontong that he attend an appointment with Professor Golding on Thursday 15 April 1999 at 9.00am for medical assessment. This requirement for medical assessment was made pursuant to s.57 of the Act.

12. The Tribunal does not accept the applicant's contention that Mr Ontong has no authority to require him to undergo a medical examination under s.57. The Tribunal appreciates that the applicant has given much thought to the legislative requirements and has made considerable efforts to put his case before it. Nevertheless, it is satisfied that he has misconstrued the law in this case. The Tribunal is satisfied that s.62 does not need to specifically permit a delegate of "the relevant authority" to exercise the power of "the relevant authority" under s.57 to require a medical examination.

13. The Tribunal is satisfied that the word "delegate" does not have the meaning contended by the applicant. In exercising the authority to require a medical examination under s.57 of the Act, Mr Ontong is acting on behalf of "the relevant authority", which is the body entitled to require an examination under the said section. The Tribunal considers that it would make no sense to limit the operation of s.57 to prevent reconsideration officers requiring medical examination in order to seek clarification of medical issues, so long as the requirement is in accordance with the requirements of s.57. The Tribunal is satisfied that in this case, the requirements of s.57 have been complied with, and the requirement is valid.

14. The jurisdiction of the Tribunal to review decisions under the Act is limited to that provided by sub-s.38(4) and sub-s.62(5) of the Act. Sub-section 38 (4) relates to decisions made by Comcare, which affirm, revoke or vary the determination made by a rehabilitation authority. Sub-section 62 (5) relates to decisions made on reconsideration that affirm, revoke or vary the determination under reconsideration. "Determination" in relation to this section has the meaning as set out in sub-s.60 (1) of the Act, viz:

"Section 60 (1) In this Part: "determination" means a determination, decisions or requirement made under ss.8, 14, 15, 16, 17, 18, 19, 20, 21, 21A, 22, 24, 25, 27, 29, 30, 31, 34, 36, 37, 39, under paragraph 114B (5) (a) or under Division 3 of Part X;"

It is clear that the Tribunal has no jurisdiction to review a requirement made under s.57 of the Act. A requirement pursuant to s.57 of the Act is not a requirement that is open to reconsideration under s.62, and the Tribunal only has jurisdiction to review decisions made which either affirm, revoke or vary a determination made under one of the sections outlined above. The Tribunal is satisfied that it is clear from Mr Ontong's letter dated 15 December 1998, that the requirement under s.57 of the Act serves the purpose of clarifying the medical issues before any reconsideration decision is made. To date, there has been no reconsideration decision, and the Tribunal therefore has no jurisdiction.

15. The Tribunal finds it unnecessary to consider whether the requirement was in fact a "decision" but notes the submissions of the applicant. The Tribunal notes that even if the submissions were accepted (which they are not) that Mr Ontong was exercising authority under s.62 of the Act, the Tribunal would still require a decision which either "affirmed, varied or revoked" the determination, or met the requirements as discussed in Hales (above), namely that the alleged decision "alter the rights or imposes a liability" before it could exercise its jurisdiction. The Tribunal is satisfied that Mr Ontong, in exercising the power of "the relevant authority" under s.57 of the Act, is not altering the rights of the applicant, nor is he imposing a liability. He is exercising a power granted by legislative provision. The exercise of legitimate legislative authority to impose a requirement under s.57 of the Act does not in any way alter the rights of the applicant or impose a liability above and beyond what the law allows.

16. In relation to submissions made regarding whether or not Mr Ontong has the authority to conduct the reconsideration, and whether he was involved in the original determination 25 June 1998, the Tribunal considers that on the documentary evidence before it, in particular the record of a conversation involving Mr Ontong (S98/306 s.37 Documents Flag K p99-100), there is a question as to whether Mr Ontong should conduct the reconsideration given that he did appear to be consulted about the original determination. Nevertheless, the Tribunal is satisfied that this question is irrelevant in terms of the issue of jurisdiction before it. Section 57 of the Act states that "the relevant authority" is the authority that can require a medical examination. "The relevant authority" in this case is Comcare, with Mr Ontong acting on behalf of the relevant authority. The Tribunal is satisfied that the relevant authority does have the power to require a medical examination under s.57. It is an irrelevant consideration as to whether the person had the authority or not to reconsider the determination, as no reconsideration decision has been made.

17. Taking all these matters into consideration, the Tribunal is satisfied that it does not have jurisdiction in relation to the present application. The Tribunal is satisfied that the "alleged decision" is a requirement under s.57, and it has no jurisdiction to consider requirements made under s.57 of the Act. The Tribunal considers that it only has jurisdiction once a reviewable decision under the Act has been made.

decision

18. The Tribunal directs that it does not have jurisdiction in this matter and accordingly the application is dismissed.

I certify that this and the nine (9) preceding pages are a true copy of the decision and reasons for decision herein of Senior Member J.A. Kiosoglous MBE

Signed: .....................................................................................

Personal Assistant

Date/s of Hearing 18 January 1999

Date of Decision 11 February 1999

Counsel for the Applicant In person

Solicitor for Applicant -

Counsel for the Respondent Mr Paul Ontong

Solicitor for the Respondent Department of Defence