GBGF and COMCARE Professor RM Creyke, Senior Member

[2011] AATA 311

Administrative Appeals Tribunal

INTERLOCUTORY DECISION AND REASONS FOR DECISION [2011] AATA 311

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No  2009/6071

GENERAL ADMINISTRATIVEDIVISION		)
Re		GBGF

Applicant

And  COMCARE

Respondent

INTERLOCUTORY DECISION

Tribunal  Professor RM Creyke, Senior Member

Date 11 May 2011

Place Canberra

Decision  The application for re-instatement is rejected.

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

Professor RM Creyke, Senior Member

CATCHWORDS

PRACTICE AND PROCEDURE – reinstatement of matter – withdrawal by applicant’s solicitors − no error by tribunal – applicant in poor health at time of withdrawal − whether error by solicitors – reinstatement refused

Administrative Appeals Tribunal Act 1975 (Cth) s 42A

Goldie v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 72 ALD 652

Re McKenzie and Secretary, Department of Social Security (1998) 54 ALD 281

REASONS FOR INTERLOCUTORY DECISION

11 May 2011

Professor RM Creyke, Senior Member

Background

1.      The applicant in this matter, GBGF, has sought reinstatement of a matter dismissed by the Tribunal on 22 November 2010; a decision for which he initially sought Tribunal review on 23 December 2009. 

2. The matter had been listed for hearing in December 2010. However, on 19 November 2010, the applicant’s solicitors lodged written notification requesting that the matter be withdrawn in accordance with section 42A(1A) of the Administrative Appeals Tribunal Act 1975 (Cth) (Act)

3.      Following that notification, on 22 November 2010 the Tribunal sent letters to the applicant’s solicitors, informing them that the matter had been finalised by dismissal on 19 November 2010.

4.      On 20 February 2011 the applicant emailed the Tribunal to request that his matter be reactivated. In his application he claimed that it was not until he made a telephone call to the Tribunal on 16 February 2011, that he understood that the matter had been withdrawn.

5.      At the time when the request for withdrawal was made on his behalf, the applicant said that ‘legal and employment related matters intruded and overshadowed the AAT process, including my legal capacity’.  He submitted accordingly that ‘due to the overbearing strain, I would not have likely been able to participate fully in any hearings, had the matter so proceeded’.

6.      In support of his claim that his ‘legal capacity’ had been impaired at that time, the applicant enclosed a medical certificate dated 7 July 2010 which certified the applicant to be unfit for work.  However, since the period covered was 23 June 2010, to 25 August 2010, the certificate has not bearing on his capacity in November 2010.

Legislation

7.      The relevant provisions are found in the Administrative Appeals Tribunal Act 1975 (Cth) (Act).

42A 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.

…

Dismissed application taken to be concluded

(6)  If, under this Act, the Tribunal dismisses an application or an application is dismissed on its behalf, the proceeding to which the application relates, unless it is reinstated under subsection (9) or (10), is taken to be concluded.

…

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.

Issue

8. The sole issue is whether the Tribunal should reinstate the application under section 42A(10) of the Act.

Consideration

9. Section 42A(10), which deals with reinstatement of applications to the Tribunal, applies only where an application has been dismissed ‘in error’. The relevant error is not confined to an administrative error.[1] If no error can be established, the Tribunal’s functions in the matter are concluded.[2] Section 42A(6) of the Act reinforces the earlier findings on this issue by providing that if an application is dismissed and not reinstated ‘the proceeding to which the application relates … is taken to be concluded’.

[1] Goldie and Minister for Immigration and Multicultural and Indigenous Affairs (2002) 72 ALD 652 at 657-659 per Wilcox and Downes JJ.

[2] Re McKenzie and Secretary, Department of Social Security (1998) 54 ALD 281.

10.     The source of the ‘error’ is not confined to the Tribunal and may extend to the applicant, and the applicant’s solicitors. In Goldie v Minister for Immigration and Multicultural and Indigenous Affairs, Wilcox and Downes JJ in the Full Court addressed what might constitute an ‘error’ for the purposes of an application for reinstatement under s 42A(10) of the  Act:

The fault may have lain elsewhere, provided it induced the error. For example, because of a mistake as to his or her instructions, a solicitor or other representative of a party might have wrongly consented to a dismissal order or filed a notice of discontinuance. No fault would attach to the Tribunal; but, if the solicitor’s mistake induced the dismissal of the action, it could properly be said the application had been "dismissed in error” .[3]

[3] Goldie v Minister for Immigration and Multicultural and Indigenous Affairs (2002) 72 ALD 652 at 657 per Wilcox and Downes JJ.

11.     No administrative or other error was made by the Tribunal in dismissing the application, nor was this suggested.

12. The applicant indicated in his letter of 20 February 2011 that his own preoccupations at the time the application was dismissed may have meant that a hearing would then have been difficult for him to manage. That is not the kind of error which is covered by section 42A(10).

13.     Alternatively, in a further submission of 14 April 2011, the applicant indicated that his medical impairment at the time the application was dismissed would have negated his ‘full consent’.  This submission was accompanied by a report by Dr Graham George, consultant psychiatrist, made in May 2010, in which he had assessed The applicant as having ‘mild symptoms of generalised anxiety disorder’. Dr George noted ‘he no longer has panic disorder …diagnosed in March 2009’, due to the fact ‘that he takes medication’ which ‘has tended to ameliorate these symptoms’. 

14.     This report was again prior to the period in question and, in any event, indicated that the applicant’s diagnosed condition was of a ‘mild variety’, was improving and as Dr George also indicated in his report, did not prevent him studying law.

15.     The submission also attached a certificate from Dr Ranjana Curtotti dated 3 November 2010, noting that the applicant’s concerns about his worker’s compensation process had impacted on his end of year examination preparation, but significantly also noted that the applicant was ‘happy to sit the examinations … during November’ and during ‘the summer semester’.

16.     Neither of these reports supports the applicant being legally incapacitated in November 2010.  Dr George’s report was at an earlier time than November 2010 and indicated improvements in the applicant’s condition, and Dr Curtotti’s report indicated the applicant was capable of sitting law examinations at the relevant time.

17.     The applicant’s submission of 14 April 2011, also contained what may have been a submission as to errors on the part of his former employer, not corrected by Comcare. 

18. Such errors are not of the variety which are covered by section 42A(10) which is confined to administrative errors on the part of the Tribunal, legal errors by the Tribunal, and possibly errors by an applicant’s solicitor.

19.     There were no administrative or legal errors by the Tribunal in this matter.  Nor is there evidence, other than the applicant’s assertion, that his former solicitor had erred in any manner in relation to the application for withdrawal. Independent corroborative evidence would be required of such an error on the solicitor’s part and no such corroboration has been provided.

20. In these circumstances no error of the kind required by section 42A(10) has been established and accordingly the application for dismissal is rejected.

I certify that the 20 preceding paragraphs are a true copy of the reasons for the decision herein of Professor RM Creyke, Senior Member.

Signed: ..................[sgd]............................
  C. Baillie, Associate