Cleary and Comcare (Compensation)

This matter concerned an application for review lodged by Mr Cleary with the Administrative Appeals Tribunal (AAT) on 18 August 2014, seeking review of a decision by Comcare. The dispute centred on Mr Cleary's failure to attend a medical examination arranged by Comcare, which Comcare argued was necessary to assess his claim for an anxiety disorder allegedly arising from his employment. The AAT, presided over by Deputy J W Constance P, was required to determine whether Mr Cleary had failed to proceed with his application within a reasonable time and, if so, whether to exercise its discretion to dismiss the application.

The legal issues before the Tribunal were threefold: first, whether Mr Cleary had failed to proceed with his application; second, if he had, whether this failure occurred within a reasonable time; and third, if both of these conditions were met, whether the Tribunal should exercise its discretion to dismiss the application. The Tribunal considered the objective of providing a fair, just, economical, informal, and quick review mechanism, as well as the principles established in cases such as *Berry v Commissioner of Taxation* and *Charara v Commissioner of Taxation*, which emphasise that the power to dismiss should be used sparingly and as a last resort, with procedural fairness afforded to the applicant.

The Tribunal reasoned that Mr Cleary had failed to proceed with his application, noting that despite lodging it in August 2014, there had been minimal progress beyond a single preliminary conference. The primary impediment was Mr Cleary's repeated failure to attend medical assessments arranged by Comcare, which had led to the suspension of his rights to compensation and to continue proceedings under section 57 of the *Safety Rehabilitation and Compensation Act 1988* (Cth). The Tribunal found that the delay since November 2014 was occasioned by Mr Cleary's non-attendance at these assessments, and it was not satisfied that his health prevented attendance for the entirety of this period. Furthermore, the Tribunal determined that the matter had not proceeded within a reasonable time, referencing an initial expectation that such matters would be finalised within 12 months.

Consequently, the Tribunal concluded that Mr Cleary had failed to proceed with his application within a reasonable time and that it was appropriate to exercise its discretion to dismiss the application. The Tribunal found that continuing the matter without the necessary medical assessment would not be fair to Comcare and would not meet the statutory requirement for expedition. Therefore, in accordance with subsection 42A(5) of the *Administrative Appeals Tribunal Act 1975* (Cth), the application for review lodged by Mr Cleary was dismissed.