Cleary and Comcare (Compensation)

[2020] AATA 1372

Cleary and Comcare (Compensation) [2020] AATA 1372 (7 May 2020)

Division:GENERAL DIVISION

File Number(s):      2019/7388

Re:Gary Cleary

APPLICANT

AndComcare

RESPONDENT

DECISION

Tribunal:Emeritus Professor P A Fairall, Senior Member

Date:7 May 2020

Place:Sydney

The application made on 15 November for an Extension of Time is dismissed for the reasons provided. For the avoidance of doubt, the application for review made on 13 November 2019 is also dismissed, by reason of section 42A(8) of the AAT Act.

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

Emeritus Professor P A Fairall, Senior Member

CATCHWORDS

PRACTICE AND PROCEDURE – compensation – reinstatement of application – extension of time raised – prejudice to parties – standing to apply for review – application dismissed

LEGISLATION

Administrative Appeals Tribunal Act 1975 (Cth) s 42A

Safety, Rehabilitation and Compensation Act 1988 (Cth) s 14

CASES

Hunter Valley Developments v Minister for Home Affairs and Environment (1984) 58 ALR 305

REASONS FOR DECISION

Emeritus Professor P A Fairall, Senior Member

7 May 2020

INTRODUCTION

1. On 13 November 2019, the applicant submitted an online application for Review of Decision. He said that the decision to be reviewed was a ‘Workers Compensation’ decision. In response to the request to describe the decision he said:

   Dismissed as case not progressed within reasonable timeframe. Comcare claimed that I had taken too long to recover from 4 cancer related surgeries to resume my AAT Appeal. Comcare alleged that I had not provided any medical proof of Agoraphobic (sic) Incapacity “and likely never will be able to do so”.

   Upheld Reasonable Administration Action as the cause of my Unplanned Absenteeism.

   My employer claimed that all my Anxiety and migraines, abdominal pain were Hypochondria.

   Comcare claimed that all my neurological and psychological issues were the Imaginary and only consequential of the Occupational Health Assessment process. (sic)

2. He gave the decision reference number as 2017/4506.

3. He said that he received the decision on 1 November 2019. When asked to provide a ‘brief’ explanation for why he wanted the decision reviewed, he provided five closely typed pages of ‘reasons’. He uploaded 60 emails together with attachments.

4. On 14 November 2019, an officer from the Sydney Registry (‘Registry’) of the Administrative Appeals Tribunal (‘AAT’) contacted the applicant to seek further clarification as to the decision that he wanted to be reviewed, and the date on which the decision was received. The officer also invited the applicant to complete an extension of time (‘EoT’) form.[1]

   [1] An Application for Extension of Time for Making an Application for Review of Decision

5. On 14 November 2019 the applicant replied by email, providing a copy of the decision he was appealing. This was the decision dated 12 July 2017 by the Australian Taxation Office (‘ATO’) declining to interfere with a Determination (dated 22 November 2016) denying liability under section 14 of the Safety, Rehabilitation and Compensation Act 1988 (Cth) (‘the SRC Act’), in relation to the applicant’s claim for compensation for ‘thyroid, portal vein thrombosis, nodes, goitre, cirrhosis’. The ATO had concluded that the Determination under review was correct, concluding that there was no liability under section 14 of the SRC Act.

6. The applicant confirmed by email that the date of the relevant decision was 18 July 2017, and that the reference to 1 November 2019 was an ‘oversight’.

7. On 15 November 2011, the applicant completed the EoT form sent to him by the Sydney Registry. In responding to the requirement to ‘Outline your reasons for applying for an extension of time to make your application for review of the decision’, the applicant provided a number of pages of hand-written notes. The applicant did not address the question relating to the reasons for the extension of time application, but made various allegations relating to the original assessment, which took place in 2013.

8. On 18 November 2019, the Registry advised the applicant that his EoT application had been received and the views of the respondent had been sought as to whether the application would be consented to or opposed.

9. On 22 November 2019, the respondent’s authorised representative wrote to the Tribunal noting that matter 2017/4506 had been withdrawn and dismissed by the Tribunal on 8 June 2018. She sought clarification as to whether the EoT application filed by the applicant related to 2017/4506 and therefore related to the determination made on 12 July 2017. She asked therefore whether the matter was, in substance, an application for reinstatement.

10. The Registry officer replied saying that:

    [I]t is an extension of time application for 2019/7388 (not a reinstatement). The applicant withdrew his application for matter 2017/4506 but the decision that the applicant is asking to be reviewed is the same for matter 2017/4506 and 2019/7388.

11. However, the ‘matter’ referred to as 2019/7388 is in essence, and identified as such by the applicant, a challenge to the Determination made on 12 July 2017, which was the subject of previous proceedings (2017/4506) that were withdrawn by the applicant and dismissed by the Tribunal on 8 June 2018. The present proceedings cannot proceed without reference to the fact that they are an attempt to continue proceedings that have been dismissed. There is no reviewable decision, apart from the determination made on 12 July 2017, identified by the applicant as a basis for his application for review.

    THE LAW

12. The following provisions of the Administrative Appeals Decision Act 1975 (Cth) are relevant:

    42A  Discontinuance, dismissal, reinstatement etc. of application

    Dismissal if parties consent

    (1)  Where all the parties to an application before the Tribunal for a review of a decision consent, the Tribunal may dismiss the application without proceeding to review the decision or, if the Tribunal has commenced to review the decision, without completing the review.

    (1AAA)  [omitted]

    Deemed dismissal—applicant discontinues or withdraws 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. [emphasis added]

    (1AA) [omitted]

    (1B)  If notification is given in accordance with subsection (1A) or (1AA), the Tribunal is taken to have dismissed the application without proceeding to review the decision. [emphasis added]

    Dismissal if party fails to appear

    (2) – (7) omitted

    Reinstatement of application

    (8)  If the Tribunal is taken to have dismissed an application under subsection (1B), a party to the proceeding (other than the applicant) may, within the period referred to in subsection (8B), apply to the Tribunal for reinstatement of the application. [emphasis added]

    (8A)  (8B) and (9) [omitted]

    (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. [emphasis added]

    DISCUSSION

13. The import of section 42A(1B) is that where an application is withdrawn by the applicant under section 42A(1A) (as it was in this case), the Tribunal is taken to have dismissed the application without proceeding to review the decision.

14. The implication of section 42A(8) is that the applicant has no standing to apply for reinstatement. Other parties to the proceedings may apply for reinstatement, within the time specified in subsection 8B, but the applicant may not. The only potential pathway open to the applicant in the present case is to show under section 42A(10) that the matter withdrawn at his request, namely, matter 2017/4506, was dismissed in error. There has been no suggestion from any party in the present proceedings that 2017/4506 was dismissed in error. Nor is there any evidence before me that would substantiate such a claim.

15. The application for review made on 13 November 2019 is, in reality, an attempt to re-agitate the matter previously withdrawn from the Tribunal. It is in effect an attempt to reinstate matter 2017/5706. The applicant has no standing to make such an application, by reason of section 42A(8).

16. The application for an extension of time, which the applicant was requested by the Registry to complete, related to an application for review which, on further scrutiny, the applicant has no standing to make. An application for an extension of time for an application which the applicant has no standing to make is not capable, regardless of the merits, of generating a favourable outcome in the substantive matter, and is in effect a nullity.

17. Under these circumstances, I do not think that it is necessary to canvass in any detail the medical reports relating to the original claim (2017/4506), reassembled and attached by the respondent to its submissions. Nor do I think that it is necessary to review the extensive log of claims created by the applicant against Comcare. It is clear that the applicant has grievances as to the manner of his severance from the Australian Tax Office and the way in which his claim for compensation has been handled. I express no opinion as to whether those claims are in any way justified.

18. Nor do I think it necessary to consider at length the various factors identified by Wilcox J in Hunter Valley Developments v Minister for Home Affairs and Environment (1984) 58 ALR 305. Those factors are applicable to extension of time applications which this matter, as noted above, is not.

19. However, out of an abundance of caution, I note that I have read the respondent’s submissions dated 22 January 2020 with respect to those factors (outlined at paragraphs 13 and 14 of the submissions) and I agree with them in their entirety. To allow an extension of time (leaving aside the reinstatement point) after such a long passage of time, and given the large and varied scope of material adduced by the applicant, would create a serious prejudice for the respondent. It would also do a great disservice to the applicant, by holding out a false hope. I note that the original injury is said to have occurred some twenty years ago, in 2000, and that no new medical evidence has been presented which casts doubt on the medical reports obtained by the respondent for the purposes of the 2017 proceedings. The prospect of successfully challenging the decision made by the ATO on 12 July 2017, which affirmed the original Determination made on 22 November 2016, is vanishingly small.

    DECISION

20. I therefore dismiss the application made on 15 November 2019 for an Extension of Time for the reasons provided. For the avoidance of doubt, I also dismiss the application for review made on 13 November 2019, by reason of section 42A(8) of the AAT Act.

I certify that the preceding 20 (twenty) paragraphs are a true copy of the reasons for the decision herein of Emeritus Professor P A Fairall, Senior Member

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

Associate

Dated: 7 May 2020

Date(s) of hearing:	28 January 2020
Applicant:	By phone
Solicitors for the Respondent:	Ms S Johnson, HBA Legal