Devetzidis and Comcare (Compensation)

[2018] AATA 5317

Devetzidis and Comcare (Compensation) [2018] AATA 5317 (4 December 2018)

Division:GENERAL DIVISION

File Number:           2018/4193

Re:Arthur Devetzidis

APPLICANT

AndComcare

RESPONDENT

DECISION

Tribunal:Senior Member B J Illingworth

Date:4 December 2018

Date of written reasons:        20 December 2018

Place:Adelaide

The application for extension of time is refused.

..........................[Sgd]..........................................

Senior Member B J Illingworth

CATCHWORDS

PRACTICE AND PROCEDURE – extension of time application – over two years out of time – application previously withdrawn – whether applicant requesting reinstatement of withdrawn application – whether the application was dismissed in error – whether special circumstances provisions applied – extension of time application refused.

LEGISLATION

Safety, Rehabilitation and Compensation Act 1988, s 14

Administrative Appeals Tribunal Act 1975, ss 29(4), 29(6), 29(7), 42A(1A), 42A(1B), 42A(8), 42A(8B), 42A(10)

REASONS FOR DECISION

Senior Member B J Illingworth

20 December 2018

1. At the conclusion of the hearing of the above matter, the terms of the decision intended to be made and the reasons therefore were stated orally. After the giving of the oral reasons, the applicant, pursuant to subsection 43(2A) of the Administrative Appeals Tribunal Act 1975, requested the Tribunal to furnish a statement in writing of the reasons of the Tribunal for its decision.

2. The oral reasons for decision have been transcribed by Epiq.  Some minor amendments and additions have been made to that transcript. Whereas those oral reasons, as amended, may reflect the inelegance of an extempore decision, they are in fact the reasons for the said decision.

3. The said transcript is annexed hereunto and furnished to the applicant and to the respondent as it is the reasons for the Tribunal’s decision.

I certify that the preceding 3 (three) paragraphs are a true copy of the reasons for the decision herein of Senior Member B J Illingworth

............................[Sgd].......................................

Associate

Dated: 20 December 2018

Date of interlocutory hearing:	4 December 2018
Applicant:	In person
Advocate for the Respondent:	Brenton Lochert

ORAL DECISION OF SENIOR MEMBER ILLINGWORTH      [10.53 am]

1. SENIOR MEMBER: On 7 March 2016, an authorised review officer (“ARO”) affirmed a determination dated 30 October 2015, that the applicant was not entitled to compensation under section 14 of the Safety, Rehabilitation and Compensation Act 1988 (“the SRC Act”).

2. On 26 July 2018, the applicant filed in the Tribunal an application for extension of time and an application for review of the decision dated 30 October 2015, which decision he said he received on 29 January 2016.

3. However, given the ARO reviewed that determination and published the decision on 7 March 2016, that should that be the date from which the date for filing the application for review is to be considered.  The applicant had until 9 May 2016 to file the application for review at the Tribunal within time.

4. Hence on its face the application for review, it is well over two and a half years out of time.  However, this is not the first time that this application has been brought before the Tribunal.

5. On 5 May 2016, the applicant requested the Tribunal review the decision of the ARO dated 7 March 2016 and attached a copy of that decision to the request.  That application was made within time and the Tribunal was properly seized with jurisdiction to decide the application.  The application was given a reference number 2016/2330. By that application the original determination dated 30 October 2015 was to be reviewed by the Tribunal.

6. On 2 November 2016, the applicant filed in writing a signed and dated notice of withdrawal form.  That notice of withdrawal was in relation to file number 2016/2330 and was filed in accordance with section 42A(1A) of the Administrative Appeal Tribunal Act 1975 (“the Act”).

7. Accordingly on 2 November 2016, the application was dismissed pursuant to section 42A(1B) of the Act.  As a consequence, the determination dated 30 October 2015 remained affirmed.

8. Subject to section 42A(8) of the Act, if the Tribunal dismissed an application under section 42A(1B), as it did here, a party to the proceedings other than the applicant may apply to the Tribunal to reinstate the application.

9. Relevantly section 42A(8B) provides that such application for reinstatement must be filed within 28 days of notification that the application is dismissed.

10. Hence no power is granted to the Tribunal to reinstate this application, which was originally withdrawn pursuant to section 42A(1B) of the Act.

11. By that process, the Tribunal's jurisdiction in respect of the determination dated 30 October 2015, as affirmed by the ARO on 7 March 2016, was wholly extinguished.

12. Section 42A(10) of the Act provides that if it appears to the Tribunal that an application has been dismissed in error, the Tribunal may on application by a party to the proceedings or of its own motion reinstate the application.

13. Section 42A(10) of the Act is to be contrasted with section 42A(8), in that subsection 10 does not prohibit the applicant from bringing the application for reinstatement.  This can be well understood because to do otherwise would mean that an applicant could not have the application, which was dismissed in error, reinstated and thereby not remedy a miscarriage of justice.

14. In this matter the applicant did not, as it turned out, make an application for reinstatement.  However, the Tribunal called for the records of file 2016/2330 to be first satisfied that the proceedings had not been dismissed in error.  It had not.  The signed notice of withdrawal was on file and the respondent received notification of that withdrawal.

15. By the Tribunal's order of 24 August 2018, the applicant was, prior to the hearing of this application, given the opportunity to consider the basis upon which the application was pursued and take such advice in relation to the matter as he deemed fit.  The purpose was to clarify whether, in fact, this was an application for reinstatement or if it was an application for extension of time together with an application to review a decision.

16. The applicant was ordered to file and serve an outline of argument and list of authorities and such other documents upon which he relied by 8 November 2018.  The respondent was given to 15 November 2018 to do the same, and the matter was listed for argument on 22 November 2018.

17. The applicant requested an extension of time to file his documents which was granted to 15 November 2018 and the hearing date was subsequently varied to today, namely 4 December 2018.  The change of the hearing date was to accommodate the respondent who had another hearing at the Tribunal.

18. It is noteworthy from the applicant's filed documents that he is, in fact, maintaining under section 29(7) of the Act, and also pursuant to 29(6) of the Act, that because of special circumstances the Tribunal ought to extend the time within which to enable him to make the application, being the same application previously made.  However, insofar as section 29(6) is concerned, the application is misconceived.  Section 29(6) of the Act is to be read in conjunction with section 29(4) such that where no time limit is prescribed for the making of an application, and the application has not been lodged within a reasonable time of that decision, the Tribunal may entertain the application if there are special reasons for doing so.

19. Section 29(7) of the Act provides that the Tribunal may extend the time for making the application if the Tribunal is satisfied that it is reasonable in all the circumstances to do so.

20. Despite the personal circumstances that were impacting upon the applicant, including at the time he withdrew his earlier application, his decision to withdraw the application under section 42A(1A) of the Act had the effect of dealing with the decision in dispute by dismissing the application.  This has the same effect as a matter proceeding to hearing or an order made by the Tribunal in like terms.

21. The decision brings to an end the Tribunal's jurisdiction on the matter in dispute.  It does not enable an applicant to decide, as is the case here, two and a half years later that he is permitted to re-agitate the matter.  It is ended.

22. It is not for the Tribunal to consider extending the time for bringing the application because it is said to be reasonable to do so.  The application has already been brought before the Tribunal and been dealt with.  To attempt to reinstate that which has already been decided and finalised is to bring an application which is misconceived and an abuse of process of the Tribunal. There is no jurisdiction to deal with the application.

23. Even if I am wrong about that, the Tribunal finds that in all of the circumstances it is not reasonable to bring the application two years after withdrawing that same application in November 2016. The respondent is entitled to regard the matter as concluded, particularly after the application was instituted within time and then withdrawn. It would be unreasonable to extend the time to issue the application over two and half years after the subject decision.  But that is not the issue here. 

24. By the applicant’s decision to file a notice of withdrawal in the earlier proceedings, those proceedings were brought to an end, as was the jurisdiction of the Tribunal. 

25. Accordingly, the Tribunal orders that the application for extension of time is refused.

    END OF ORAL DECISION  [11.07 am]