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DEFENCE COMPENSATION INSTRUCTION – No. 43

Military Compensation Scheme (MCS) - Safety, Rehabilitation and Compensation Act 1988 (SRCA)

Subject

ADMINISTRATION OF COMPENSATION CASES PENDING APPEALS BEFORE THE ADMINISTRATIVE APPEALS TRIBUNAL

1.                    The purpose of this Defence Compensation Instruction (DCI) is to detail the procedures to be followed by all Military Compensation and Rehabilitation Service Offices when compensation claim matters are appealed to the Administrative Appeals Tribunal.

Background

  1.                 All matters appealed to the Administrative Appeals Tribunal (AAT) are administered by the Reconsideration and Appeals Section of the MCRS National Office.  There is no intention to devolve this function to regional offices.
  2.                 Cases before the AAT can become protracted and complicated for varying reasons.  Detailed in the following sub paragraphs is a brief view of the process for administering each appeal lodged before the AAT:
  1. An application to have a reviewable decision considered by the AAT is lodged within 60 days of the date of the receipt of the determination.
  2. The AAT office forwards a copy of the appeal to the Department (MCRS National Office) for the production of a section 37 statement and Tribunal documents (Tdocs) in accordance with the Administrative Appeals Tribunal Act 1975.
  3. Reconsiderations and Appeals Section will email or fax a request to the Regional Office that all files relating to the appeal be sent to ADRA and that DEFCARE records be updated..
  1.        On receipt of the Regional office file a section 37 statement and Tdocs must be lodged with the AAT within 28 days of receipt of the notice of appeal.  At this stage the AAT is advised of the Department's legal representative in the case.
  2.        Once the section 37 statement has been filed with the AAT, the Regional office file is returned to the Regional office to allow the day to day administration of the claim to continue.
  3.        The AAT will advise the date of the first preliminary conference.  At this conference both parties (the Applicant being the 'Claimant' and the Respondent being 'Comcare - Department of Defence') will generally set out the Facts and Contentions of their respective cases.
  4.        Subsequent conferences will be held by the AAT to ensure that all agreed investigations are being conducted as required.
  5.        When both parties are satisfied that all avenues of investigation (further medical opinions, witness statements etc) have been completed the AAT will convene a mandatory 'Conciliation Conference'.
  6.        At the Conciliation Conference both parties are given the opportunity to 'settle' the matter without moving to a full hearing before the AAT.  If the parties can agree on a settlement, an agreement is produced and authorised by the AAT.
  7.        Should the parties not be capable of reaching a settlement at the conciliation stage the matter then moves on to a Hearing before the AAT.
  8.        The AAT will list a matter for Hearing.  The matter will be heard and the AAT will hand down its decision on the matter.
  9.        Should either of the parties wish to contest the AAT decision, they have 30 days in which to lodge an appeal to the Federal Court of Australia on matters of law only.
  10.        On receipt of the AAT written decision a copy is forwarded to the Regional office for action as appropriate.
  1.                 During the period when the AAT is considering an appeal (sub paragraphs a – m above) the day to day management of the claim for compensation  must continue (the exception being where liability is not accepted or liability is ceased). 
  2.                 There have been instances in the recent past where delegates, with the best intentions of managing the day to day claim issues, have issued decisions which have compromised the Department's position in cases before the AAT. 

Policy

  1.                 It is essential that the Department's litigation strategy regarding matters appealed to the AAT is not compromised.  To ensure this, effective immediately, delegates at all levels, are to advise the Reconsideration and Appeals Section of the National Office by email or facsimile (02 6266 8624) of any decision they intend to make in relation to any claim for compensation for a claimant who has an appeal before the AAT.

7.The intended decision will be considered in consultation with the Department's legal representative in the matter before the AAT and the delegate will be informed as to whether the decision is to be processed and/or provide written advise as to how to proceed.

8.This action will ensure that no decision made will compromise the Department case before the AAT.

  1.     Use of DEFCARE Records.  Delegates are to ensure that the 'Review' section contained in all DEFCARE records for the claimant are checked prior to making any decision.  If the DEFCARE record indicates that an appeal is before the AAT the delegate must advise in accordance with paragraph 6 above.

10.My contact officer in relation to this DCI is Mr Paul Ontong on 02-6266 8628.

BRENDAN SARGEANT

ASJET

17 August 1999