AULISON (AUSTRALIA) PTY LTD and AUSTRALIAN TRADE COMMISSION

[2010] AATA 176

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2010] AATA 176

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No 2008/3170

GENERAL ADMINISTRATIVE DIVISION		)
Re		AULISON (AUSTRALIA) PTY LTD

Applicant

And AUSTRALIAN TRADE COMMISSION

Respondent

DECISION

Tribunal Mr G. L. McDonald, Deputy President

Date15 March 2010

PlaceMelbourne

Decision The application is reinstated.

......(sgd. G L McDonald).......

Deputy President

CATCHWORDS

PRACTICE AND PROCEDURE – application for reinstatement – applicant withdrew application – no error by the Tribunal accepting the withdrawal notice – error not limited to Tribunal – application reinstated

Administrative Appeals Tribunal Act 1975 ss 42A(1A), 42A(1B), 42A(10), 42B and 43(1)

Stagolevska and Secretary, Department of Families, Housing Community Services and Indigenous Affairs [2009] AATA 663

Re Margaret Wicke-Fitzgerald and Secretary Department of Education, Employment and Workplace Relations [2008] AATA 811

REASONS FOR DECISION

15 March 2010 Mr G. L. McDonald, Deputy President

1. The applicant seeks to have an application which it withdrew pursuant to s 42A(1A) of the Administrative Appeals Tribunal Act 1975 (the Act) reinstated.

2.      At the reinstatement hearing Mr Phillip Zhu, the managing director of the applicant company, gave oral evidence through an interpreter.  Mr Chris Tucker represented the respondent.  A reinstatement hearing took place on 10 December 2009 and 25 February 2010.

3.      The circumstances are as follows.  On 11 July 2008 an application was made for the review of a decision of the respondent refusing to accept expenditure claimed in promotion allegedly undertaken in China.  The case went through various pre‑hearing stages, including on 20 November 2009 a conciliation conference before one of the Tribunal’s conference registrars.  At the conference Mr Zhu, who was representing the applicant, signed a notification of discontinuance requesting that the application be withdrawn.  The effect of such a notification is that the Tribunal is then taken to have dismissed the application without proceeding to review to decision appealed against: (s 42A(1B) of the Act).

4.      By letter dated 26 November 2006 Mr Zhu wrote to the Tribunal seeking to have the application reinstated.  No grounds were set out in the request.  A reinstatement hearing was arranged.  Mr Zhu stated that he had health issues as at 20 November 2009 which had led to him signing the withdrawal notice.  The Tribunal adjourned the hearing to allow Mr Zhu, who was then in China, to return to Australia and obtain a medical report from his treating medical practitioner.

5.      By the time of the resumed reinstatement hearing a medical certificate from Dr Tan Phat Bach dated 16 February 2010 had been produced.  Dr Bach is a general medical practitioner.  In that certificate Dr Bach stated that he had been consulted by Mr Zhu on 23 November 2009.  Dr Bach diagnosed Mr Zhu as suffering “... insomnia, fatigue, depression because of stress at work …”  Dr Bach prescribed drugs which Mr Zhu said were to assist him sleep.  Mr Zhu told the Tribunal he took the drugs only for a few days before mentally adjusting his own approach.  Mr Zhu did not take up Dr Bach’s advice to see a psychiatrist.  The certificate does not state that Mr Zhu was unable to reach decisions as the result of the conditions from which he was suffering nor that he was unable to attend to his work.

6.      The respondent opposes the reinstatement application.  It does so on the basis that in order to succeed Mr Zhu must demonstrate that there was an error made by the Tribunal in accepting the withdrawal notice.  It is submitted for there to be an error the Tribunal needs to be satisfied that the registrar who accepted the withdrawal knew or ought reasonably to have known that Mr Zhu was suffering from a mental incapacity.  The medical evidence does not support the proposition that Mr Zhu was suffering from a mental incapacity to the extent that he did not know what he was doing.  There was accordingly no error made by the Tribunal in accepting the withdrawal notice.

7.      It is necessary to consider the relevant provisions of the Act:

42A  Discontinuance, dismissal, reinstatement etc. of application

…

(1A)A person who has made an application to the Tribunal for a review of a decision may, in writing lodged with the Tribunal, at any time notify the Tribunal to the effect that the application is discontinued or withdrawn.

(1B)If notification is so given, the Tribunal is taken to have dismissed the application without proceeding to review the decision.

…

(10)If it appears to the Tribunal that an application has been dismissed in error, the Tribunal may, on the application of a party to the proceeding or on its own initiative, reinstate the application and give such directions as appear to it to be appropriate in the circumstances.

8. The effect of s 42A(1B) is that once a notice to withdraw an application is lodged with the Tribunal then the case is dismissed. All that this subsection does is to relieve the Tribunal from having to formally issue a notice affirming the decision under review (see s 43(1)(a)). While s 42A(1B) utilises the expression ‘dismissal’ (see also s 42B), it in effect deems the decision under review to be affirmed.

9.      In support of the proposition that the error must be an error of the Tribunal the respondent relies on a statement made in Stagolevska and Secretary, Department of Families, Housing Community Services and Indigenous Affairs,[1] that if the Tribunal made no error then reinstatement cannot be considered.  In that decision the Tribunal did not expand on why it adopted this interpretation.  In Re Margaret Wicke‑Fitzgerald and Secretary Department of Education, Employment and Workplace Relations,[2] the Tribunal stated that the word ‘error’ should be given a broad interpretation and was not limited to administrative error.  On the facts of that case, although the Tribunal found that the withdrawal was based on ‘stress’ being experienced by the applicant, there was “… no evidence that she experienced symptoms of a psychological nature or that her mental capacity to make the decision was in any way impaired.”[3] In the latter case, the Tribunal did not restrict the ‘error’ mentioned in s 42A(10) to error of the Tribunal.

[1] [2009] AATA 663.

[2] [2008] AATA 811.

[3] At [20] per Senior Member Pascoe.

10.     The presently constituted Tribunal does not accept that error is restricted to error of the Tribunal.  If, for instance, a person mistakenly signed a notice of withdrawal which was lodged, without the mistake being recognised by the Tribunal, there would be no error on its part by accepting the notification.  The lodgement of the notification would result in the automatic dismissal of the application.  Clearly, an error would have been made unrelated to any action of the Tribunal, and the applicant would still have the right to have the case reinstated.

11.     In addition to the medical certificate, Mr Zhu told the Tribunal at the hearing on 25 February 2010 that he was “nervous” about proceeding with the application because of the additional work it would involve.  This may be reflective of Mr Zhu’s claimed depression.  To commit an error is to make a mistake.  The Tribunal accepts, as the result of its experience in innumerable compensation and veterans cases, that those diagnosed as suffering from fatigue, insomnia and/or depression are prone, among other things, to making mistakes.  In order to reach its conclusion that he made a mistake in signing the withdrawal, the Tribunal does not accept it is necessary to find that Mr Zhu suffered from a cognitive incapacity to the degree required for exculpation in a criminal prosecution.  Rather, it must be satisfied on the balance of probabilities that, as the result of suffering from the diagnosed conditions, he erroneously withdrew his application.  The evidence, in particular, the diagnosis of the conditions made by Dr Bach on 23 November 2009, leaves the Tribunal so satisfied.

12. For the above reasons the Tribunal is satisfied that s 42A(10) of the Act is satisfied and determines that the application be reinstated.

I certify that the 12 preceding paragraphs are a true copy of the reasons for the decision herein of
Mr G. L. McDonald, Deputy President

Signed:         ............(sgd D De Andrade)................
  D De Andrade     Personal Assistant

Dates of Hearing  10 December 2009 and 25 February 2010
Date of Decision  15 March 2010
Advocate for the Applicant       Mr P. Zhu, Managing Director
Solicitor for the Respondent     Mr C. Tucker, Lachlan Partners Legal