Fitzsimmons and Comcare
[2008] AATA 919
•15 October 2008
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2008] AATA 919
ADMINISTRATIVE APPEALS TRIBUNAL )
) Q 200600067
GENERAL ADMINISTRATIVE DIVISION ) Re STEPHEN FITZSIMMONS Applicant
And
COMCARE
Respondent
DECISION
Tribunal Mr R G Kenny, Member Date15 October 2008
PlaceBrisbane
Decision The Tribunal orders that the application dated 25 August 2008 for reinstatement pursuant to s 42A(10) of the Administrative Appeals Tribunal Act 1975 be dismissed.
.....................[Sgd]..............................
Member
CATCHWORDS
PRACTICE AND PROCEDURE – application for review – reinstatement application – application withdrawn by solicitor on applicant’s instructions – application dismissed by deputy registrar – whether application dismissed in error – error can be on the part of one of the parties – no operative error in the circumstances – application dismissed
Safety Rehabilitation and Compensation Act 1988 (Cth) s 62(1)
Administrative Appeals Tribunal Act 1975 (Cth) ss 29(7), 42A(1A), 42A(1B), 42A(10)
Stevenson and Comcare [2005] AATA 870
Goldie v Minister for Immigration and Multicultural Affairs [2002] FCAFC 367; (2002) 121 FCR 383
REASONS FOR DECISION
15 October 2008 Member R G Kenny BACKGROUND
1. On 16 December 2005, the respondent, Comcare, determined, under s 62(1) Safety Rehabilitation and Compensation Act 1988 (Cth), that it was not liable to pay compensation to Mr Stephen Fitzsimmons (“the applicant”) for viral hepatitis B. That decision affirmed a decision made on 5 September 2005. The condition was initially claimed by Mr Fitzsimmons in 2003 as having arisen out of his employment with the Australian Customs Service (ACS). On 31 January 2006, Mr Fitzsimmons lodged an Application for Review of the decision with the Tribunal. In the application form, he nominated Stockley Furlong Lawyers as his legal representative.
2. On 7 August 2006, Mr Rodney Stockley of Stockley Furlong Lawyers wrote to the Tribunal in the following terms:
“We wish to confirm that further to our advice at the telephone conference of 1 August 2006, our instructions in relation to this matter are to request that the Tribunal dismiss the Application and make no finding in relation to the determination under appeal.
We confirm that our client, based on the medical evidence available, accepts the determination of 5 September 2005 in which the Respondent denies liability. “
3. On 9 August 2006, the Deputy Registrar of the Tribunal wrote to Stockley Furlong Lawyers and to Comcare. He acknowledged receipt of Mr Stockley’s letter as a notification that Mr Fitzsimmons’ application was withdrawn. He also advised that the effect of the notification was that the Tribunal had dismissed Mr Fitzsimmons’ application without proceeding to review the decision.
4. By letter, dated 25 August 2008, Mr Fitzsimmons wrote to the Tribunal requesting that his application be reinstated.
ISSUE AND LEGISLATION
5. Matters relating to dismissal and reinstatement of Applications before the Tribunal are provided for in s 42A of the Administrative Appeals Tribunal Act 1975 (Cth) (“the AAT Act”). In so far as relevant, it reads:
“s42A Discontinuance, Dismissal, reinstatement etc. of application
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.
(1B)If notification is so given, the Tribunal is taken to have dismissed the application without proceeding to review the decision.
…
Reinstatement of application
(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.”
6. It is not disputed that Mr Stockley’s letter of 7 August 2006 constituted notification of withdrawal of Mr Fitzsimmons’ application under s 42A(1A) of the AAT Act or that, as advised by the Deputy Registrar in accordance with s 42A(1B) of the AAT Act, the application is deemed to have been dismissed by the Tribunal. The issue for determination is whether Mr Fitzsimmons’ application may be reinstated under s 42A(10) of the AAT Act.
APPLICANT’S CASE
7. Mr Fitzsimmons was dissatisfied with Mr Stockley’s handling of his claim for hepatitis B. He had advised Mr Stockley of various processes by which the condition could have been transmitted to him in the course of his work which involved him in dealing with refugees, often in unsanitary conditions. Throughout, Mr Stockley had been concerned only with transmission through blood or semen contact and had not fully investigated the claim via other means.
8. Mr Fitzsimmons had always been aware that, in order for his claim to be successful, there needed to be medical evidence supporting a relationship between hepatitis B and his employment. He agreed that there had been no medical evidence which directly supported his claim and that medical experts with whom he had spoken were not prepared to say “one way or the other” that there was such an association. He still believed that such a relationship could be found and he referred to an internet document which purported to summarise an article from the British Journal of Sports Medicine concerning the contracting of hepatitis B through sweat exchanges. He believed that this had been brought to Mr Stockley’s attention but he was unable to recall whether this had been done before or after the application had been withdrawn.
9. Mr Fitzsimmons agreed that he was aware that the withdrawal of his application would mark the end of his claim for acceptance of hepatitis B. He also agreed that a copy of the letter of withdrawal sent to the Tribunal by Mr Stockley on 7 August 2006 had been mailed to his address, that he had read it and that he had discussed it with his wife.
10. Mr Fitzsimmons said that he had been suffering the effects of depression at the time that his application was withdrawn and considered that this may have had an impact on his thinking at the time. He said that this condition had been relevant to the decision to accept Mr Stockley’s advice to withdraw the application. This was because he had also claimed that depression was causally associated with his employment with the ACS and Mr Stockley had advised him that his prospects of success in that claim were better than those for the claim for hepatitis B. Mr Stockley’s advice was that the claim for hepatitis should be withdrawn and that that they should concentrate on the claim for depression.
11. Mr Fitzsimmons agreed that he had seen a psychiatrist, Dr Greg Apel, in relation to his depression claim in September 2006 and that he had correctly advised him that he discontinued his claim for hepatitis B.
12. After the application had been withdrawn, Mr Fitzsimmons learned that Mr Stockley was absent from Australia for about 12 months. During that period, Mr Fitzsimmons had dealings by telephone with another solicitor from Stockley Furlong Lawyers. This was Mr Gregor McCarthy. Mr Fitzsimmons said that Mr McCarthy had indicated that he would look at the hepatitis B matter to see if it should be reopened but that, when Mr Stockley returned to Australia, Mr McCarthy had no further involvement with his case.
SUBMISSIONS
13. Submissions were made on behalf of Mr Fitzsimmons by his wife, Ms Isabel Fitch. She submitted that the application had been dismissed in error because of fault on the part of Mr Stockley and lack of understanding by Mr Fitzsimmons concerning the withdrawal of the application. She said that Mr Stockley had limited his investigations concerning the causes of hepatitis B to medical reports about blood tests and had not followed other transmission possibilities, relevant to Mr Fitzsimmons’ working environment, which were referred to him. She submitted that Mr Fitzsimmons’ agreement to withdraw the application was not based on a fully informed consent as he had not been made aware of all the consequences of doing so. She submitted that this was compounded by Mr Fitzsimmons’ depression from which he continues to suffer and which severely affected him in 2006 when the decision to withdraw the application was made. Ms Fitch was also critical of Mr Stockley’s advice that a claim for hepatitis B should be discontinued in favour of a claim for acceptance of depression as being employment related. This was because Mr Stockley had advised that the end result for Mr Fitzsimmons would be the same in either case and she submitted that this was not correct.
14. Ms Fitch referred to a range of documents which, in her submission, pointed to the merits of Mr Fitzsimmons’ claim of a relationship between his employment and hepatitis B. These included Comcare’s Code of Practice relating to work-related exposure to hepatitis B; an ACS publication entitled “Guidelines … Potential for Exposure to Communicable Diseases in the ACS Workplace”; the internet document, noted above, entitled “Hepatitis B found in sweat of Olympic athletes”; a specialist medical report, dated 29 April 2003, from Professor Graham Cooksley; and a medical certificate, dated 15 May 2006, from Mr Fitzsimmons’ treating medical practitioner, Dr Richard Kidd.
15. Ms Fitch also submitted that there would be no prejudice to Comcare if Mr Fitzsimmons’ application were reinstated because only a relatively short period had passed since it was withdrawn and medical evidence was readily available for the processing of the claim.
16. Ms Fitch referred to the Tribunal decision in Re Stevenson and Comcare[1] as authority for the view that, if an applicant has an arguable case, he should not be denied the opportunity to have his claim reviewed.
[1] [2005] AATA 870 at [8]
17. For Comcare, Mr Pappas submitted there had been no error attaching to the dismissal of Mr Fitzsimmons’ application. He submitted that Mr Fitzsimmons had retained the services of a lawyer who had provided him with legal advice; that Mr Fitzsimmons clearly understood the advice and the consequences of taking it; that Mr Fitzsimmons was aware that, for his claim to succeed, he needed supportive medical evidence; that Mr Fitzsimmons was also aware that he did not have that supportive evidence; that Mr Fitzsimmons followed the advice of his lawyer and agreed to the withdrawal of his application. Mr Pappas submitted that any subsequent legal advice concerning the prospects of success of his claim or of supportive medical evidence did not amount to an error in relation to the decision to withdraw the application.
CONSIDERATION
18. I have noted Ms Fitch’s reference to the case of Re Stevenson and Comcare[2]. It relates to an application for an extension of time for making an application for review under s 29(7) of the AAT Act and not reinstatement of a withdrawn claim. It is not concerned with the terms of s 42A of the AAT Act where different considerations arise.
[2] [2005] AATA 870 at [8].
19. I have also noted the documents relied upon by Ms Fitch in relation to the merits of Mr Fitzsimmons’ claim for hepatitis B. I make no findings in relation to the merits of the claim but make the following observations. Comcare’s Code of Practice and the ACS publication are quite general in nature and not specific to Mr Fitzsimmons’ claim. Dr Kidd’s report confirms that Mr Fitzsimmons was suffering from depression in the period when the withdrawal letter was forwarded to the Tribunal by Mr Stockley. However, this is not in dispute. While Dr Cooksley, in his report, indicated that he would not stop Mr Fitzsimmons’ application for compensation, he continued by saying that this was in the context of a need for appropriate immunisation procedures. Importantly, elsewhere in his report, he stated that it was “most unlikely” that Mr Fitzsimmons’ hepatitis B was due to occupational exposure.
20. Ms Fitch has sought to identify error in fault on the part of Mr Stockley and lack of understanding by Mr Fitzsimmons concerning the withdrawal of the application. The scope of s 42A(10) of the AAT Act is not limited to administrative errors associated with actions by the Tribunal and may extend to fault by a party or a party’s representative: see Goldie v Minister for Immigration and Multicultural Affairs[3]. Accordingly, an error by Mr Stockley or by Mr Fitzsimmons which had the effect of inducing the withdrawal of the application has the potential to fall within the reinstatement provision. However, in this case, I am satisfied that no such error arose.
[3] [2002] FCAFC 367 at [29] and [30] per Wilcox and Downes JJ; [73] and [77] per Carr J.
21. Ms Fitch’s submissions concerning Mr Fitzsimmons’ lack of understanding concerning the withdrawal of the application and his agreement to do so without a fully informed consent and awareness of the consequences thereof are not consistent with Mr Fitzsimmons’ evidence. His evidence was that, at the time when he spoke with Mr Stockley about the withdrawal, he was aware that the withdrawal of his application would mark the end of his claim. That is also the tenor of the history recorded in the report of Dr Apel who saw Mr Fitzsimmons approximately 5 weeks after the application was withdrawn. In taking a history of events from Mr Fitzsimmons, Dr Apel noted that “he had decided to drop the AAT case about hepatitis, as there was no decisive evidence either way”. Mr Fitzsimmons received a copy of the letter of withdrawal and discussed it with Ms Fitch. It clearly declares that the effect of the withdrawal is that the Comcare decision was accepted by him. I am satisfied that Mr Fitzsimmons was fully aware that Mr Stockley was to withdraw the application, that Mr Fitzsimmons was fully aware of the consequences of that action and that, in sending the letter of withdrawal to the Tribunal, Mr Stockley was acting on Mr Fitzsimmons’ instructions.
22. Mr Fitzsimmons’ evidence was that, after the withdrawal and during the absence of Mr Stockley from Australia, another solicitor at Stockley Furlong indicated that he would look further at his claim. However, this was inconclusive as he had no further dealings with that solicitor. This does not demonstrate error by Mr Stockley. Neither does Mr Stockley’s advice to focus on the depression claim demonstrate error by him as that matter has not yet been resolved.
23. Ms Fitch also submitted that error arose because of Mr Stockley’s limited investigations concerning the causes of hepatitis B. Reference was made to an internet document summarising an article from the British Journal of Sports Medicine concerning the contracting of hepatitis B through sweat exchanges. Mr Fitzsimmons was unable to recall whether that was revealed to Mr Stockley before or after the withdrawal of the application. The article itself was not in evidence and its publication date is not known. Further, Ms Fitch agreed that she had not read it. However, the internet document was in evidence. It is dated 1 March 2007 and, therefore, post-dates the withdrawal of the application. I am satisfied that, at the time of the withdrawal, Mr Fitzsimmons was aware that he needed supporting medical evidence for his claim to be successful and he knew that, at that time, no such evidence was available. Again, that is the history recorded in Dr Apel’s report.
24. It is not disputed that Mr Fitzsimmons was suffering from depression when the application was withdrawn. However, his evidence was that he understood that Mr Stockley was to withdraw the application and that he understood both the reason for and the consequences of that process.
25. In summary, I am satisfied that the letter of withdrawal sent by Mr Stockley was based on Mr Fitzsimmons’ instructions given by him with full knowledge of the reasons for doing so and of the consequences of doing so. I am satisfied that Mr Fitzsimmons application for review of the Comcare decision was not dismissed in error.
DECISION
26. In the circumstances, I dismiss the application.
I certify that the 26 preceding paragraphs are a true copy of the reasons for the decision herein of Mr R G Kenny, Member
Signed: ..................[Sgd].................................................
Elizabeth Young, Research AssociateDate of Hearing 7 October 2008
Date of Decision 15 October 2008
The Applicant was assisted by his wife, Ms Isabel Fitch
Solicitors for the Respondent Ms L. Pendle, Australian Government Solicitor
Counsel for the Respondent Mr J. Pappas
0
2
0