Gnjec and Comcare

[2007] AATA 1972

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2007] AATA 1972

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No A2003/76

GENERAL ADMINISTRATIVE  DIVISION		)
Re		KATARINA GNJEC

Applicant

And COMCARE

Respondent

DECISION

Tribunal Mr S. Webb, Member

Date21 November 2007

PlaceCanberra

Decision The Tribunal decides not to reinstate Ms Gnjec's application.

..............signed................................

Mr S. Webb, Member

CATCHWORDS

COMPENSATION - dismissal - failure to proceed - no error - application not reinstated

Safety, Rehabilitation and Compensation Act 1988 s 14, 64

Administrative Appeals Tribunal Act 1975 ss 2, 42A

Brehoi v Minister for Immigration and Multicultural Affairs (1999) 52 ALD 385

Goldie v Minister for Immigration and Multicultural Affairs [2002] FCAFC 367

Re Wilson and Commissioner for Taxation [2007] AATA 1721

Katterns v Comcare [2002] FCA 1366

Re Rana and Defence Force Retirement and Death Benefits Authority [2005] AATA 291

REASONS FOR DECISION

21 November 2007 Mr S. Webb, Member         

1. In February 2003, Katarina Gnjec lodged an application for review of a decision by Comcare to reject her claim for compensation pursuant to s.14 of the Safety, Rehabilitation and Compensation Act 1988 in relation to an alleged mental injury. Ms Gnjec suffers from a psychiatric illness. On 27 March 2007, the Tribunal dismissed her application pursuant to subs 42A(5) of the Administrative Appeals Tribunal Act 1975 (the ‘AAT Act’).

2.      Ms Gnjec has requested reinstatement of her application.  She says that she has been denied justice and that her legal representation was not adequate.  In Ms Gnjec’s submission, her solicitor was defeatist in attitude and did not properly brief her barrister in relation to certain matters. For example, Ms Gnjec submitted her barrister was shown the Respondent’s statement of facts and contentions, but not the Applicant’s.  Furthermore, her barrister “pulled out” just before the hearing listed to deal with her application, as a result of which she was unwell and unable to attend on the day.  All of this, she says, amounts to “an error of fact”, as a result of which she was denied procedural fairness.[1]  In consequence, Ms Gnjec asserts that her application was dismissed in error and should be reinstated.

[1] Applicant’s written submissions, 9 November 2007.

3.      As will appear I do not agree.

4. The Tribunal’s powers in relation to the dismissal of an application are set out at s.42A of the AAT Act. Subs 42A(5) is in the following terms:

(5) If an applicant for review of a decision fails within a reasonable time:

(a) to proceed with the application;

…

The Tribunal may dismiss the application without proceeding to review the decision.

The circumstances in which an application that has been dismissed may be reinstated are set out at subs 42A(8), (9) and (10). However, subs 42A(8) and (9) are only applicable if the application in question was dismissed pursuant to subs 42A(2): if a party fails to appear. That is not the case here; Ms Gnjec’s application was dismissed pursuant to subs 42A(5). Thus, subs 42A(8) and (9)…