Carbone and Comcare

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[2012] AATA  665

Division GENERAL ADMINISTRATIVE DIVISION

File Number(s)

2012/1119, 2012/0244

Re

TERESA CARBONE

APPLICANT

And

COMCARE

RESPONDENT

INTERLOCUTORY DECISION

Tribunal

PROFESSOR RM CREYKE, SENIOR MEMBER

Date  2 October 2012
Place Canberra

The application for reinstatement under section 42A(10) of the Administrative Appeals Tribunal Act 1975 (Cth) is refused.

...............................[sgd].........................................

PROFESSOR RM CREYKE, SENIOR MEMBER

CATCHWORDS

Practice and procedure — Applications — Reinstatement —Jurisdiction to reinstate - no error of Tribunal - statutory interpretation

LEGISLATION

Administrative Appeals Tribunal Act 1975 (Cth) s 42A(10)

Safety, Rehabilitation and Compensation Act 1988 (Cth) ss 14, 37(7)

CASES

Goldie v Minister for Immigration and Multicultural and Indigenous Affairs (2002) 72 ALD 652

Manoli v Secretary, Department of Social Security (1994) 35 ALD 133
Re White and Repatriation Commission (unreported, SM McCabe, 21 January 2005)

Re Myers and Federal Commissioner of Taxation (2004) 85 ALD 453

REASONS FOR INTERLOCUTORY DECISION

PROFESSOR RM CREYKE, SENIOR MEMBER

BACKGROUND

  1. Ms Teresa Carbone had an injury described as 'aggravation of lumbar sprain and sciatica', which was accepted by Comcare as being due to employment in a decision dated 8 November 2011. The injury occurred when she was an employee with the Australian Customs and Border Protection Service, and was caused by sitting on a broken chair when participating in a training course at the end of April 2009.

  2. A graduated return to work plan (RTWP) was in place for her rehabilitation. The substantive applications related to two reviewable decision. The first application, AAT reference number 2012/1119, related to a reviewable decision dated 20 March 2012 which denied liability under section 14 of the Safety, Rehabilitation and Compensation Act 1988 (Cth) (SRC Act) for a secondary condition of ‘aggravation of anxiety and depression’. Ms Carbone claimed that the condition arose from being forced to do the RTWP, and then being forced to do duties not in accordance with medical advice.

  3. The second application, AAT reference number 2012/0244, related to a reviewable decision dated 24 November 2011, which rejected Ms Carbone’s claim that the duties in her RTWP were not ‘suitable’. Her refusal to comply with the RTWP enabled Comcare to suspend her entitlements to compensation under section 37(7) of the SRC Act.

  4. On 19 January 2012, Ms Carbone sought further review by the Tribunal.  The Tribunal agreed to hear both matters together.

  5. Ms Carbone in March 2012 accepted a new position in another department.

  6. On 17 May 2012, Ms Carbone contacted the Tribunal to advise that she wished to withdraw her applications and, on receipt of the information about the process, emailed the Tribunal that day to withdraw.

  7. The Tribunal thereupon notified both parties that the applications were withdrawn under section 42A(1A) of the Administrative Appeals Tribunal Act 1975 (Cth) (Act). Under section 42A(1B) of the Act, the effect of the notification is that the Tribunal has dismissed the application without proceeding to review the decision.

  8. On 19 July 2012, Ms Carbone emailed the Tribunal seeking to have the matters reinstated.  The request for reinstatement…

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Details
Case
[2012] AATA 665
Decision Date

CaseChat Overview and Summary

The applicant, Ms Carbone, sought to have her withdrawn applications reinstated against the respondent, Comcare, after she had withdrawn them from the Administrative Appeals Tribunal (AAT). The AAT had to decide whether it had the jurisdiction to reinstate the applications, whether it had made an administrative error, and whether the application had been made within a reasonable time. Ms Carbone argued that she had been pressured into withdrawing her applications and that the AAT had not advised her of other options when she telephoned them on 17 May 2012. The AAT found that Ms Carbone had simply informed the AAT that she wished to withdraw and asked how to effect the withdrawal. There was no indication that she was ambivalent about her choice, and the fact that she acted immediately after receiving the advice to withdraw her applications supports that inference. Therefore, there was no administrative error on the part of the AAT. The AAT also noted that Ms Carbone delayed her application for reinstatement for two months, and that her conduct was not exemplary. The AAT rejected Ms Carbone’s application for reinstatement because it had not been made within 28 days, and because there had been no error by the AAT either of fact or law. The AAT held that it could only reinstate a matter if there had been an error, and that Ms Carbone had not shown that the AAT had made an error in not advising her of other options when she telephoned them on 17 May 2012. The AAT also noted that Ms Carbone’s evidence of her stress levels did not appear to be of a sufficiently serious nature to inhibit her making her intentions plain in the telephone call to the AAT.

Orders

Orders of the court

The application for reinstatement under section 42A(10) of the Administrative Appeals Tribunal Act 1975 (Cth) is refused.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

On 11 September 2012, an interlocutory hearing was held to consider the request. In view of the claim that her health was affected on 17 May 2012, the Tribunal allowed Ms Carbone time to provide medical evidence of her health around the time of her application for withdrawal. She supplied documents on 18 and 21 September respectively. EVIDENCE Evidence of Ms Carbone Ms Carbone gave evidence that at the time she withdrew the applications for review, she was under pressure and her health was suffering. At the end of March 2012 she had moved house and on 1 May 2012 she had changed jobs and departments and she stated at the hearing that ‘coming from an environment where I’d been bullied, I was adjusting to a new work environment and it was quite difficult’. She also said she was suffering palpitations. A Holter monitor was prescribed, that is, a device worn for 24 hours to monitor any heart rhythm problems causing symptoms such as palpitations. She stated that during discussions at the Tribunal, she “felt pressurised to submit reports and attend medical appointments”, and that the “whole timing of the matter was not really suitable” to her situation. Therefore, she said she wanted to postpone the matter, but thought she “had no option but to withdraw." Ms Carbone also claimed that when she telephoned the Tribunal on 17 May 2012, she had asked what were her options, and was not advised that she could seek an extension of time. She said that the only advice she received was how to withdraw her application. The documents provided on 18 September 2012 contained telephone records for calls Ms Carbone made to a 13/1300 number between 19 April 2012 and 16 June 2012. Ms Carbone’s evidence was that these calls were to an Optus telephone advice service for psychological counselling. The records show that Ms Carbone made numerous one or two minute calls to that number during this period. However, calls of any length, as could be expected if the call was to obtain psychological counselling, occurred about once a day only during the mid-April to mid-June period. On 21 September 2012, Ms Carbone also provided the clinical notes from her general practitioner, Dr David Buckman, Ginninderra Medical & Dental Centre, for the period 11 March 2012 to the 15 June 2012. The notes indicate that Ms Carbone had a medical certificate for 19 – 20 March 2012 as her ‘neck and back very sore’ (sic) and on 23-24 April 2012 for a ‘visual disturbance, which was very minor and fleeting’ and that on 17 April she reported ‘starting a new job in two weeks’ and ‘she has had “high levels of stress”’. On 21 May 2012, the records state ‘She is getting a lot of palpitations lately but she relates this to her anxiety level’ and “She has pulled out of her claim for work-related anxiety and stress compensation because of the toll it was taking on her emotions’. The notes also state ‘She has a new job now and wants to move on’. On her doctor’s recommendation, Ms Carbone wore a Holter monitor on 25 May 2012 to assess her level of palpitations. However, the clinical records for 27 May 2012, note ‘Holter monitor [report] looks unremarkable’.

Decision

Reasons for decision

The Tribunal has found that Ms Carbone simply informed the Tribunal that she wished to withdraw and asked how to effect the withdrawal. There was no intimation in the conversation that she was ambivalent about her choice and the fact that Ms Carbone acted immediately after she received the advice to withdraw her applications supports that inference. In those circumstances, there was no administrative error on the part of the Tribunal. Other factors relevant to a decision about reinstatement In addition, the Tribunal notes that an application for reinstatement should be made within 28 days. Ms Carbone delayed her application for two months. In other words, her own conduct was not exemplary in this matter. Decisions by the Tribunal are intended to finalise the matters brought before it (section 42A(6)). The application has prevented that finality which is a principle underpinning Tribunal processes, and has put Comcare to the trouble of responding to the request for reinstatement when it was entitled to consider the matter had been concluded. In these circumstances, there has been no error by the Tribunal either of fact or law, nor has it perpetrated an administrative error in relation to its response to Ms Carbone’s telephone call of 17 May 2012. Accordingly, under section 42A(10) of the Act, the Tribunal rejects the application by Ms Carbone to reinstate her applications.

Ratio Decidendi

Legal Principle Established

Counsel for Comcare submitted that under section 42A(10) of the Act the Tribunal may reinstate an application for, among others, an ‘administrative error’.[1] In addition, in exercising the discretion to reinstate, the Tribunal should consider a number of factors including ‘the conduct of the applicant; any prejudice to the respondent; the merit of the substantial case; and the overriding obligation to do what is fair in the circumstances’.[2]CONSIDERATION[1] Goldie v Minister for Immigration and Multicultural and Indigenous Affairs (2002) 72 ALD 652.[2] Manoli v Secretary, Department of Social Security (1994) 35 ALD 133; Re White and Repatriation Commission at [9] (unreported, SM McCabe, 21 January 2005); Re Myers and Federal Commissioner of Taxation (2004) 85 ALD 453 at [19]. Whether there has been an ‘error’ The Tribunal may only reinstate a matter if there has been ‘error’. It is alleged that the error was that the Tribunal did not advise Ms Carbone when she rang the Tribunal on 17 May 2012 of options other than withdrawal of her application. She alleged that she asked about her options but was not advised of any alternatives other than withdrawal, and that this was an administrative error on the part of the Tribunal. The Tribunal permitted Ms Carbone further time to provide evidence that her health was suffering around 17 May 2012, in case her health conditions prevented her seeking the appropriate advice from the Tribunal. It did so in the exercise of its discretion to be ‘fair in the circumstances’, and in order that Ms Carbone be given the opportunity to show either that her distress at the time would have been apparent to someone in the Tribunal when she telephoned, or that she was confused and likely to have thought she had asked the Tribunal about options but in fact had not done so. In relation to evidence Ms Carbone provided in response, the Tribunal notes that, if it is accepted that the calls to the 13/1300 number were for psychological counselling – and the Tribunal only has Ms Carbone’s word to that effect - a history of one substantive counselling call a day during the relevant period does not indicate excessive stress levels. That finding is reinforced by the medical records at the time. One of the three consultations with her doctor made by Ms Carbone in April 2012 referred to her informing him of her ‘high levels of stress’. However, in March she also consulted her doctor about her neck and back pain and the report of 19 March 2012 noted she ‘had a massage and feels better now’. In addition, although there are references in the clinical notes to Ms Carbone reporting ‘high levels of stress’ during the period around 17 May 2012, her doctor did not prescribe any medicine for that stress, and the recording of her heart rate by the Holter monitor at the time was found to be ‘unremarkable’. This suggests that Ms Carbone may have been suffering a level of stress at the time, but it was clinically not of sufficient seriousness to require medication. Nor was it likely in those circumstances for her stress to have been obvious in a call to the Tribunal on 17 May 2012. In addition, her stress does not appear to be of a sufficiently serious nature as to inhibit Ms Carbone making her intentions plain in the telephone call to the Tribunal on 17 May 2012. The Tribunal notes that Ms Carbone was able at the time to phone the Tribunal and seek advice on how to effect a withdrawal of her applications. She was also able to respond quickly to that advice, as indicated by the fact that she emailed notification of her intention to withdraw to the Tribunal immediately after concluding the phone call.