Croker and Secretary, Department of Employment and Workplace Relations

[2007] AATA 1059

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2007] AATA 1059

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No N2006/555

GENERAL ADMINISTRATIVE  DIVISION		)
Re		CLAYTON CROKER

Applicant

And SECRETARY, DEPARTMENT OF EMPLOYMENT AND WORKPLACE RELATIONS

Respondent

DECISION

Tribunal Mr P Taylor

Date31 January 2007

PlaceSydney

Decision The Tribunal directs that the matter be reinstated pursuant to section 42A(9) of the of the Administrative Appeals Tribunal Act 1975.

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

Mr Peter Tayor SC
  Senior Member   

Administrative Appeals Tribunal

 

 

ABN 90 680 970 626  Sydney REGISTRY
 

DECISION AND REASONS FOR DECISION [2007] AATA 1059

ADMINISTRATIVE APPEALS TRIBUNAL           )

)     No N2006/555

GENERAL ADMINISTRATIVE DIVISION		)
Re		CLAYTON CROKER

Applicant

And SECRETARY DEPARTMENT OF EMPLOYEMENT AND WORKPLACE RELATIONS

Respondent

DECISION (CORRIGENDUM)

TribunalMr P Taylor SC, Senior Member

Date8 March 2007

PlaceSydney

WHEREAS:

1.   The Tribunal released a decision in this matter, which was dated 31 January 2007.

2. The Tribunal wishes to amend the decision so as to rectify an error contained below the Certification Box so as to reflect the correct advocate for the Respondent. To do so with the least cost and inconvenience to the parties, the Tribunal will exercise the power under s43AA of the Administrative Appeals Tribunal Act1975.

3.   Now the Tribunal therefore orders that the advocate for the Respondent should read as follows:

Mr Ken Bullock of Centrelink, Legal Services

………[sgd]…………

Mr Peter Taylor SC

Senior Member

REASONS FOR DECISION

31 January 2007	Mr Peter Taylor SC, Senior Member
INTRODUCTION

1.The application by Mr Croker in proceedings N2006/0555 was listed for hearing on 1 December 2006 before Senior Member Allen.  The hearing was due to commence at 10 a.m.  Mr Croker did not appear.  Attempts by Tribunal staff to contact him on his mobile telephone number were unsuccessful.  The number appeared to have been a disconnected.

2.As a result of Mr Croker’s non-appearance Senior Member Allen dismissed the application pursuant to section 42A(2) of the Administrative Appeals Tribunal Act 1975 (‘AATA’). Mr Croker was first advised of the dismissal when he telephoned at about 11:30 a.m. to apologise for his non-appearance. He was also subsequently sent a letter dated 1 December 2006 by the Deputy Registrar informing him of both the dismissal of the proceedings and the possible application for reinstatement under section 42A(8) and (9) of the AATA.

BACKGROUND

3.Mr Croker wrote to the Tribunal on 7 December 2006 making an application for reinstatement.  His letter said that he had misrecorded the hearing time as due to commence at 1:00 p.m. in the afternoon.  He had discovered his error at 11:10 and contacted the Tribunal. Mr Croker’s letter also referred to his commitments in relation to the studies at the Sydney Institute of Technology and attendance at the Sydney Eye Hospital on 29 November 2006 which had left his vision impaired for the rest of the day and resulted in him being unable to attend a final University examination.  He also claimed that he was very fatigued and this was related to his claimed Repetitive Stress Injury.

4.The application is opposed by the Secretary for the Department of Employment and Workplace Relations. The secretary’s reasons are set out in a notice of opposition dated 22 December 2006.  The substance of the Secretary’s opposition is that Mr Croker has not provided a satisfactory explanation for his non-appearance on 1 December 2006 and does not, in any event, have good prospects of success in the substantive application. 

5.Mr Croker’s original application was lodged with the Tribunal on 12 May 2006.  It was an application to review a 28 April 2006 decision of the Social Security Appeals Tribunal (‘SSAT’).  That Tribunal had affirmed earlier decisions (by the Authorised Review Officer on 2 December 2005 and by the original decision maker on 31 March 2005) to cancel Mr Croker’s disability support pension. 

6.In its 10 May 2006 published Reasons for Decision the SSAT concluded that Mr Croker had three conditions which constituted relevant impairment of the purposes of section 94 of the Social Security Act 1991. Those conditions, the relevant impairment tables and the assessment made by the SSAT were as follows

7.Bilateral upper limit impairment: Table 3 – five points for his non dominant left upper limb and 10 points for his dominant right upper limb: total 15 points.

Undifferentiated Somatoform disorder: Table 6 – 0 points

Tinnitus:  Table 20 – 0 points.

8.The result of the SSAT decision was that Mr Croker was assessed as having an impairment score of only 15 points. He did not therefore satisfy the 20 point threshold requirement in s94(1)(b) of the Social Security Act 1991 (‘SSA’). Because he did not meet that threshold the SSAT did not go on to consider whether or not Mr Croker had a “continuing inability to work” – which is, of course, a further pre-requisite to entitlement to a disability support pension.

9.Mr Croker’s review application was lodged with this Tribunal on 12 May 2006. At the same time he made an application for a stay of the 28 April 2006 decision. That stay application was rejected by Senior Member Ettinger, for the reasons set out in the Reasons for Decision published as [2006] AATA 536. Relevant to the present application Senior Member Ettinger recorded her belief that Mr Croker’s substantive application had “some prospects of success” and was certainly not an application that she would consider as being without merit.

10.Mr Croker, dissatisfied with the refusal of his stay application, lodged a notice of appeal in the Federal Court on 27 June 2006.  The application was supported by his affidavit of the same date.  Subsequently he filed an affidavit dated 28 September 2006.  Both affidavits seem to deal with substantially the same matters of fact.  The affidavits disclose  that in 1994 Mr Croker had been granted a disability support pension.  His impairment complaint at that time was (apparently) of extreme pain in both hands.

11.Mr Croker had continued on a disability support pension for five years “or more”.  There is some lack of clarity in the affidavit in relation to the period between about 1999 and 2005.  However, the substance of Mr Croker’s complaint appears to relate to medical assessment reviews carried out on 2 March 2005 and 1 August 2005.  Mr Croker appears to contend that in the August 2005 assessment he was assessed as having, as a result of his somatoform disorder, an impairment point score of 10 under Table 6 of the Impairment Tables.  If this assessment was correct it would indicate, arguably, that Mr Croker is entitled to an impairment point score of 25 – although this is not an assessment that has commended itself to subsequent decision makers.

12.Included in the T documents in the substantive proceedings is a medical assessment report dated 2 March 2005 by Health Services Australia.  The report lists the same three medical conditions as those accepted by the SSAT in its 10 May 2006 published reasons.  The  assessment records Mr Croker as having a somatoform disorder that produces “moderate symptoms”.  However, this is also described as having a temporary functional impact and involving an uncertain diagnosis.  The report does not proceed to allocate any point score impairment rating.

13.The substance of Mr Croker’s contention, as I understand it, is the existence of conflicting medical opinion which has not been properly evaluated.  This proposition, at least in relation to the existence of conflicting medical evidence seems to have some foundation.  On 3 November 2006 the Secretary wrote to Mr Croker providing a Statement of Facts and Contentions for the substantive proceedings.  Paragraph 17 of that statement is in the following terms.

While there is conflicting medical evidence as to the source of the applicant’s symptoms; whether it is caused by either RSI, or somatoform disorder, or the presence of both, the respondent contends the medical evidence all points towards the applicant having one impairment which manifests itself as the burning sensation the applicant feels in his upper limbs.  The secretary contends that Mr Croker does not have an impairment rating of at least 20 points and therefore does not satisfy s94(1)(b)(c) of the Act.

CONSIDERATION

14.The reinstatement discretion conferred by s42A of the AATA is not confined by any express limitations other than the timeliness of the application and satisfaction that reinstatement is “appropriate”. In making an assessment of whether the reinstatement is “appropriate” two extreme situations might be envisaged. On the one hand, it would not be appropriate to reinstate an application that had no prospects of success. On the other hand, it would be appropriate to reinstate an application if the Tribunal was satisfied that it had genuine prospects of success and that the non-attendance, which had occasioned the original dismissal, resulted from genuine mistake.

15.In the present case Mr Croker says that his non-appearance was an error in his recording of the time appointed for the commencement of the hearing.  His 7 December 2006 reinstatement application letter to the Tribunal seeks to implicate in that mistake pressure related to the completion of his university studies and his attendance at the Sydney Eye Hospital on 29 November 2006.  The Secretary’s notice of opposition to the reinstatement application justifiably makes the point that the causal relationship between either the studies or his eye problems, and Mr Croker’s non-attendance at the commencement of the hearing of his review application is difficult to appreciate.  However, the reality is that mistakes do happen and often they are difficult, if not impossible, to explain by any logical process. 

16.The difficulty of explanation is inherent in the notion of mistake.  In the present case I would infer from the stay application, Mr Croker’s enthusiastic pursuit of an appeal to the Federal Court and his prompt communication with the Tribunal on the very day the application was dismissed, that his failure to attend at the commencement of the hearing was indeed a mistake on his part.  I am fortified in that view by the obvious importance of the application to him and an impression that the application has genuine prospects of success.

17.In recording my satisfaction that the application has “genuine” prospects of success I am not expressing any prediction about the likely outcome. In my opinion it is inappropriate on an application of this kind to embark upon any attempt to evaluate matters of fact or opinion that lie at the heart of the substantive review application. All that is necessary to be satisfied about is that there is an apparently credible and arguable basis on which Mr Croker could seek to satisfy this Tribunal that he has made out his entitlement under s94 of the SSA.

18.The decision of the SSAT which he seeks to have this Tribunal review, allocated him an impairment table point score of 15.  The threshold is 20.  It seems a critical issue in the final resolution of the substantive application will be whether or not a separate impairment point assessment should be made in relation to Mr Croker’s somatoform disorder.  In its 10 May 2006 Reasons for Decision the SSAT recorded that there was “no dispute that Mr Croker suffers from somatoform disorder”.  However, that Tribunal allocated a nil assessment to the disorder, concluding that it was relevantly functionally symptomatic only in relation to Mr Croker’s hand symptoms – which it separately assessed under Table 3. 

19.The accuracy of that conclusion, and the adequacy of the reasoning upon which it is based, are not in my opinion, matters appropriate to be investigated at any length on an application for reinstatement.  The nature of the issue, given the appearance of some underlying medical opinion support - from the 2 March 2005 medical assessment to which I have referred above and the  concession which I think is implicit in paragraph 17 of the Secretary’s Statement of Facts and Contentions – is one that should not be determined on an application for reinstatement.

DECISION

20.Having regard to the matters I have set out above I consider that it is appropriate for the Tribunal to reinstate the application in the exercise of discretion conferred by s 42A(9) of the AATA.

I certify that the 20 preceding paragraphs are a true copy of the written reasons for the decision herein of Mr P Taylor SC, Senior Member.

Signed:         ...[sgd]................................
  Associate

Date of Hearing  31 January 2007
Date of Decision  31 January 2007 
Appearance for Applicant               Self-represented

Advocate for the Respondent        Mr George Lozynsky of Centrelink, Legal Services