Georgina Mackay and Australian Postal Corporation
[2013] AATA 368
•6 May 2013
[2013] AATA 368
Division GENERAL ADMINISTRATIVE DIVISION File Numbers
2011/4746 & 2011/4747
Re
Georgina Mackay
APPLICANT
And
Australian Postal Corporation
RESPONDENT
DECISION
Tribunal Senior Member Bernard J McCabe
Date 6 May 2013 Place Brisbane The application to reinstate earlier proceedings is refused.
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Senior Member Bernard J McCabe
CATCHWORDS
APPLICATION FOR REINSTATEMENT - dismissed in error - Matter withdrawn or adjourned - Understanding legal advice - Confidentiality order - Application to reinstate earlier proceedings refused
LEGISLATION
Administrative Appeals Tribunal Act 1975 ss 35, 42A
CASES
Goldie v Minister for Immigration and Multicultural Affairs (2002) 72 ALD 652
REASONS FOR DECISION
Senior Member Bernard J McCabe
Georgina Mackay was an applicant before the Tribunal in compensation proceedings brought against Australia Post. The hearing was conducted on 17 and 18 June 2009. I was the presiding member at that hearing; I was joined on the bench by Dr Maynard. The evidence called by the applicant – in particular the evidence led from her treating general practitioner – did not go well. At the end of that evidence, before an adjournment, I suggested to the applicant’s counsel that the evidence was of limited value. Ms Mackay was not in the hearing room to hear this exchange, but her brother was present.
When the hearing resumed following the adjournment, counsel for the applicant said she had taken instructions from her client who wished to withdraw the proceedings. The proceedings were not withdrawn on the spot. Counsel asked for the matter to be adjourned so the withdrawal could be requested in writing. That occurred in due course.
Ms Mackay now says the proceedings were withdrawn in error. She said she understood the proceedings were merely being adjourned. She wants to go on with her original claims. For that to occur, I would have to order that the proceedings be reinstated pursuant to s 42A(10) of the Administrative Appeals Tribunal Act1975.
I will come to the evidence and the findings of fact in a moment. I want to address s 42A(10) first. That sub-section says the Tribunal may reinstate a matter that was dismissed in error. At least two things flow from that proposition: firstly, I must be satisfied there is an error of the kind referred to in the section; and secondly, an error is a necessary but not sufficient condition for reinstatement. In other words, it is not enough for me to be satisfied there is an error. I must still be satisfied it is appropriate in all the circumstances to reinstate.
The Full Court made clear in Goldie v Minister for Immigration and Multicultural Affairs (2002) 72 ALD 652 that the concept of error is to be interpreted widely. There remains an interesting question over whether the error must be a reasonable error, or whether it is enough in a case like this for the applicant to proceed on the basis of a misunderstanding that might have arisen notwithstanding the advice she received. I will have more to say about that shortly.
Let me turn to the evidence. Ms Mackay says she did not recall the word “withdrawal” being used in the discussion she had with her solicitor and barrister in the adjournment following the doctor’s evidence. Mr Mackay, her brother, was also present. They both recall being told the evidence was unsatisfactory, and may be bad for the case (Mr Mackay was present in the hearing when I criticised the doctor’s evidence). They both insist they were told the claims were being adjourned so they could be brought back on within a matter of months, perhaps with additional evidence. Mr Mackay in particular said he asked a number of questions about what this meant as he did not want his sister to be prejudiced in her claims.
Mr Mackay has a hearing problem that was evident during the hearing. He also explained he experienced dyslexia which sometimes affected his ability to absorb information, especially in stressful or unfamiliar situations. Ms Mackay also had some problems recollecting events: a good example of this was her inability to remember when asked at the outset of the hearing whether she had signed a document waiving privilege. (She had clearly done so, but she had difficulty remembering that fact even after she was handed a copy of the document which bore her signature.) Mr Mackay and Ms Mackay are not sophisticated people with experience of a hearing. Even so, they were both adamant about their recollection of what transpired on 18 June 2009 during the adjournment.
Ms Mackay’s counsel gave evidence at the reinstatement hearing and provided a statement after she was released from her obligation of confidentiality. She described her recollections of the earlier hearing and the discussions she had with her client. The counsel insisted she clearly explained the proceedings would be withdrawn in light of the way the evidence had come out. She said she explained to Ms Mackay that fresh claims might be brought in due course with additional evidence. I asked the barrister whether she was satisfied Ms Mackay understood what she was being told, given her obvious lack of sophistication. The barrister said she was careful to explain the effect of what would occur in terms the applicant understood – and that the applicant and her brother indicated they did understand. The barrister pointed out she was experienced in dealing with clients in Ms Mackay’s position. The applicant’s solicitor gave evidence to similar effect.
The applicant’s solicitor returned to her office after the hearing concluded and wrote to the applicant. The letter is dated 18 June 2009. It clearly says the proceedings had been withdrawn on Ms Mackay’s instructions. The letter also said the files would be transferred to the Canberra office of the firm so further steps could be taken in relation to the claims.
Ms Mackay said she did not receive the letter of 18 June 2009 for several weeks but – and this is important – she said she saw the word “withdrawn” and assumed it meant “adjourned”. It took some time for her to appreciate what “withdrawn” actually meant, she said.
I am satisfied the applicant’s lawyer and solicitor did explain the proceedings were to be withdrawn rather than merely adjourned. I am also satisfied the applicant and her brother were told that fresh claims might be lodged in due course with new evidence. I rely on the evidence of the barrister and solicitor; quite apart from the fact they are officers of the court who might be expected to take their obligations to their client and the Tribunal seriously, their explanation should be accepted because it is consistent with the written confirmation of instructions dated 18 June 2009.
There is still a question over whether the applicant was acting in error notwithstanding this advice. Just because she and her brother were given advice does not mean they understood what they were told. I asked the applicant’s barrister and solicitor whether they were confident they had gone to sufficient lengths to make their advice plain to a client who was relatively unsophisticated. The applicant’s barrister in particular made it clear she had gone to some lengths to make her advice clear and intelligible. She pointed out she had dealt with many claims of a similar nature for other clients of varying levels of sophistication. Given that experience and the description of what she told the applicant and her brother, I am inclined to accept the barrister’s assessment that the advice was clear enough in the circumstances. But that does not mean the applicant and her brother made their decision untainted by error.
Ultimately, I do not think it makes any difference to the outcome of this application. Even if there was such an error, I am still required to decide whether it would be appropriate in all the circumstances to reinstate the application. As it happens, the advice the applicant’s lawyers say she was given on the day of the hearing was probably the right advice. As I indicated on 18 June 2009, the case was unlikely to succeed to the extent it relied on the evidence of the treating general practitioner. A strategic withdrawal with a view to making fresh claims with better evidence was probably the best course of action in the circumstances. I note some fresh claims have since been lodged, and more have been foreshadowed. In all the circumstances, it does not make much sense to reinstate the earlier proceedings. It would be better for the applicant to martial her medical and other evidence for a fresh application which can be vetted in the ordinary way through the determination and reconsideration process. If she is dissatisfied with the outcomes of that process, she can come back to the Tribunal in due course.
CONCLUSION
The application to reinstate the earlier proceedings (namely files numbered 2007/4324, 2008/0389, 0974, 3437, 3881, and 4007) pursuant to s 42A(10) of the Administrative Appeals Tribunal Act1975 is refused.
CONFIDENTIALITY ORDERS
I made orders under s 35 of the Act when the reinstatement proceedings were commenced. I believed it would not be appropriate to allow publication of serious allegations made about the applicant’s former lawyers before they could be tested in a hearing – particularly where the former lawyers were not a party to the proceedings and unable to respond before the obligation of confidentiality was waived and the hearing was held. But the hearing is over now. A decision has been made. Should the confidentiality orders remain in place?
The applicant and respondent do not have strong views on this issue. The lawyers who appeared at the reinstatement hearing on behalf of Ms Mackay’s former representatives argued I should permanently suppress (a) the transcript of evidence taken at the reinstatement hearing and (b) the documents on the file in this matter. They suggested in the alternative that the decision should be edited so that identifying details be deleted when the decision was published. They argued there was no advantage in revealing the allegations but there was the potential for prejudice to the lawyers’ practices if the allegations became public knowledge.
The Act anticipates the Tribunal will – as far as possible – do its job in public: s 35(1) and (3). There are certainly individual cases where it is appropriate to depart from this practice, but applications for confidentiality orders must be carefully scrutinised. I was satisfied an order was appropriate when I made it. The lawyers now have the benefit of a finding that I am satisfied they did not act improperly or induce the misunderstanding in the applicant about the effect of what transpired on 18 June 2009.
I acknowledge there may be some discomfort for the former representatives if the allegations are reported. The fact they have been effectively cleared does not prevent malicious gossip or unfair comment. But it was ever thus: every report of proceedings in the Tribunal might embarrass someone or compromise his or her privacy. Parliament presumably had that possibility in mind when it enacted s 35(3).
If I thought the allegations were made maliciously, or if they were scandalous or intentionally false, I might take a different view. But that is not the case here. Allegations were made and the lawyers were cleared of any wrong-doing. There is no reason to stop that information being published in the ordinary way. I would therefore set aside the confidentiality orders made under s 35(2) seven days after the date these written reasons are published to the parties.
I certify that the preceding 19 (nineteen) paragraphs are a true copy of the reasons for the decision herein of Senior Member Bernard J McCabe.
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Associate
Dated 31 May 2013
Dates of hearing 24 April 2013 and 6 May 2013 Date final submissions received 1 May 2013 Applicant In person Counsel for the Respondent Charles Clark Solicitors for the Respondent Sparke Helmore
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