Gnjec and Comcare
[2007] AATA 1972
•21 November 2007
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) do not presently apply (Brehoi v Minister for Immigration and Multicultural Affairs[2]). Subs 42A (10) is in the following terms:
(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.
[2] (1999) 52 ALD 385, at [23]-[24].
As can be seen, there are 2 aspects to the subsection. The first concerns dismissal of an application “in error” and the second concerns the discretionary power to reinstate the application conveyed in the words “may … reinstate”. Thus, the discretion to reinstate an application is essentially preconditioned by dismissal of the application in error.
5. The following questions must be answered to properly address Ms Gnjec’s request for reinstatement:
(a)Was the application dismissed in error?
(b)If so, is it appropriate to exercise the discretion to reinstate the application?
Was the application dismissed in error?
6. This matter has a long and unfortunate history. Ms Gnjec lodged the application on 27 February 2003. Thereafter, as careful consideration of the file reveals, substantial efforts were made by the Tribunal to progress the application, being mindful of Ms Gnjec’s mental health issues and issues of procedural fairness to both parties. Ms Gnjec was at times represented (by different solicitors) and at other times unrepresented. It is not necessary to list the entire history of the application in the Tribunal for present purposes. The relevant facts follow.
7. On 26 September 2006, a Telephone Directions Hearing was held at which Ms Gnjec, who was unrepresented at the time, informed the Tribunal that she required a further three to five months to prepare her case for hearing. Consistent with the request, directions were made setting a timetable and hearing certificates were issued with the intention of listing the matter for hearing in February or March 2007. Comcare’s hearing certificate was filed on 13 October 2006. On 16 November 2006, the Tribunal contacted Ms Gnjec in relation to setting the matter down for hearing. Ms Gnjec informed the Tribunal that she was seeking legal representation. On 17 November 2006, Mr John O’Keefe (S and T Lawyers) informed the Tribunal that he was representing Ms Gnjec in the matter (confirmed in writing on 13 December 2006). Mr O’Keefe filed a hearing certificate in the matter on 12 December 2006. On that day the matter was set down for hearing on 26 to 30 March 2007, and listing notices were issued. On 14 December 2006, a Telephone Directions Hearing was listed for 15 January 2007, to check progress of the matter prior to hearing. At the directions hearing Ms Gnjec was represented by Mr O’Keefe. Both parties advised that the matter would be ready to proceed on the dates listed. The Tribunal directed both parties to file and serve all further evidence and to advise of all witnesses to be called at the hearing by 5 February 2007. By request of Mr Robert Chin (Deacons), representing Comcare, a number of summons were sealed on 17 January 2007, including a summons on Ms Gnjec to produce certain diaries, documents and records. On 8 and 9 March 2007, Ms Gnjec contacted the Tribunal in relation to concerns about releasing certain documents to Comcare. She was advised to discuss the matter with her solicitor. The Tribunal informed Mr O’Keefe about the communications. On 9 March 2007, a Return of Summons Hearing was listed for 12 March 2007 and listing notices were issued. On 12 March 2007, Ms Gnjec telephoned the Tribunal in relation to claims of privilege over certain documents. The Tribunal informed Mr O’Keefe about the communication.
8. On 20 March 2007, the Tribunal completed a pre-hearing checklist with each party. The matter was ready to proceed to hearing. On 22 March 2007, Ms Gnjec telephoned the Tribunal about obtaining access to Auscript tapes of the proceedings and was advised to take the matter up with Mr O’Keefe. On 23 March 2007, Ms Gnjec telephoned the Tribunal and requested permission to record the proceedings. When informed that this was not permitted she requested a copy of the Auscript tapes of the proceedings. On 26 March 2007, the first day of the listed hearing, Ms Gnjec telephoned the Tribunal and was advised to speak with her solicitor. The hearing commenced at 10.05am. Ms Gnjec did not attend the hearing but was represented by Mr O’Keefe. Comcare was represented by Ms Lorraine Walker, counsel. Mr O’Keefe applied for an adjournment on the basis that Ms Gnjec was suffering from a thyroid problem and was not well enough to participate in the hearing.[3] The Senior Member directed Mr O’Keefe to provide medical evidence concerning Ms Gnjec’s health status. After a short adjournment Mr O’Keefe informed the Tribunal that Ms Gnjec had obtained a medical certificate from Dr Tang, which referred to “PTSD, anxiety and depression”. However, Mr O’Keefe was not able to hand up the certificate or to contact Dr Tang. Comcare informed the Senior Member that it would oppose Ms Gnjec’s request for an adjournment, and would apply to have the matter dismissed pursuant to subs 42A(5) of the AAT Act. Senior Member Constance asked Mr O’Keefe to inform his client about the application for dismissal and briefly adjourned the matter to provide him with an opportunity to obtain instructions.
[3] Transcript, 26 March 2007, p2.
9. The hearing resumed at 2.00pm. Mr O’Keefe informed the Tribunal that Ms Gnjec had agreed to fax the medical certificate, but that had not yet occurred. The Senior Member proceeded to deal with the application for adjournment. Mr O’Keefe informed the Senior Member that Ms Gnjec had instructed him that this would be the last adjournment that she would seek. The Senior Member rejected the application for adjournment on the basis that it lacked any proper basis.[4]
[4] Transcript, 26 March 2007, p7.
10. As it appears, Mr O’Keefe was not ready or able to proceed with the application. He did not have instructions to proceed with other witnesses, but had instructions not to call Ms Gnjec’s treating psychiatrist, Dr Tym. He did not have instructions to rely on statements or documents that had been filed or to tender any further material. Mr O’Keefe informed the Tribunal that “when I ring her, I don’t get lucid instructions or sensible instructions, so it’s very difficult for me to run the case in that context”.[5]
[5] Transcript, 26 March 2007, p9.
11. In the course of these proceedings a medical certificate signed by Dr S. Tang was received. The certificate is in the following terms:
“In my opinion, she [Ms Gnjec] is unfit for her AAT from 23rd March 2007 to 18th May 2007.
Diagnosis: Medical condition
Post-traumatic stress disorder
Anxiety
Stress”
12. Ms Walker applied for the matter to be dismissed, citing prejudice against Comcare and issues of cost as a result of enduring uncertainty attaching to the progress of the matter to resolution. Mr O’Keefe stated that he did not have proper instructions and that Ms Gnjec was sick, referring again to an alleged thyroid problem. Mr O’Keefe suggested that an overnight adjournment may assist. The Senior Member refused the application for an overnight adjournment and dismissed the matter as a result of Ms Gnjec’s failure to proceed with the application within a reasonable time pursuant to subs 42A(5) of the AAT Act. On 27 March 2007, both parties were notified of the dismissal decision and that the application may be reinstated if it was dismissed in error or the decision may be appealed in the Federal Court.
13. On 3 April 2007, Mr John Hyndes, a Legal Aid solicitor, informed the Tribunal that Ms Gnjec had instructed him to complain about the Tribunal and her previous solicitor even though she could not recall the name of her solicitor or the matter that was before the Tribunal. Mr Hyndes did not make any complaint. On 5 April 2007, Ms Gnjec telephoned the Tribunal and stated that she was not adequately represented at the hearing. The Tribunal informed Ms Gnjec that it was open to her to write to the Tribunal to express her concerns.
14. On 17 April 2007, the Tribunal received a request for reinstatement of the application from Ms Gnjec, to which was attached a statement in the following terms:
“Re: Appeal for adjournment matter A2003/76
Grounds of Appeal
Without a fair hearing justice has not been sought, I was informed by my Solicitor that my Barrister had pulled out on Friday 23rd March, one day before the hearing 26th March 2007. I did not have proper representation. I was not happy with the legal representation I received in the past and the present. As a result there has to be an adjournment as I have found myself disappointed with the legal representation I have received. For example my solicitor has told me, quote “I can not use any of your diary entries.” This statement is unacceptable and unethical in my books as he can use the diary entries. Comments like these are unacceptable as there are a great deal of pain and suffering in these entries, which are valid. The solicitor was taking a defeatist attitude continually throughout the entire process. I seek an adjournment because I have found that Solicitors who have represented me in the past aren’t prepared to fight for me and as a result of this I will fight for me by representing myself. Because I am representing myself I will require 3-3.5 months to prepare for my case. Seeing I am not a Solicitor/Barrister I will need to familiarise myself with these legal proceedings. There is no-one more I trust than myself. Please note I have attached a copy of the Medical Certificate (see Attached) from Dr Tang who clears me unfit for the AAT, until the hearing date has been set for the final time.
Main Points
- I was left with improper legal representation and unhappy with the Direction they were taking because they were ignoring my pain and suffering which I should be compensated for which constitutes material damage.
- Please note that on the hearing day 26th March 2007 I was totally Incapacitated and could not get out of bed.”
15. On 24 April 2007, the reinstatement matter was set down for hearing on 25 May 2007 and notices were issued. Ms Gnjec was informed that she was required to file and serve all documentary evidence on which she would rely by 11 May 2007. The Tribunal made repeated efforts to contact Ms Gnjec in the period from 14 to 21 May 2007 without success. On 22 May 2007, Ms Gnjec telephoned the Tribunal and stated that she had been hospitalised since 8 May 2007 and may not be able to attend the hearing. On 23 May 2007, the Tribunal was informed by Dr Melanie Jones of the Canberra Hospital that Ms Gnjec would not be fit or able to attend the hearing on 25 May 2007 (confirmed in writing on 24 May 2007). On 25 May 2007, Ms Gnjec telephoned the Tribunal claiming she was fit and requested the matter be stood over for four months. The Tribunal vacated the hearing and stood the matter over, on a month to month basis, until Ms Gnjec was fit and able to proceed. Subsequently the Tribunal attempted to contact Ms Gnjec on several occasions without success. On 18 July 2007, the Canberra Hospital informed the Tribunal that Ms Gnjec had been discharged into the community in June 2007. On 18 July 2007, the Tribunal sent a letter to Ms Gnjec’s address on file. On 2 August 2007, Ms Gnjec attended the Tribunal to photocopy some documents. She declined to discuss the progress of her request for reinstatement at that time. On 3 August 2007, the Tribunal contacted Ms Gnjec by telephone and was informed that she was too unwell to discuss her application. On 8 August and 25 September 2007, the Tribunal contacted Ms Gnjec by telephone and possible listing dates were discussed. On 3 October 2007, Mr Chin confirmed suitable listing dates for Comcare. On that date, the Tribunal set the matter down for hearing on 9 November 2007, and listing notices were issued. The hearing proceeded as listed. Ms Gnjec was not legally represented at the hearing. I heard oral submissions from both parties. After the hearing Ms Gnjec made written submissions. I have had regard to those submissions.
16. The power to reinstate an application that has been dismissed on the grounds that an applicant failed to proceed with the application within a reasonable time is preconditioned by error. The error need not be an administrative error of the Tribunal, but may involve an error on the part of a solicitor, for example, if the error leads to dismissal of the application (Goldie v Minister for Immigration and Multicultural Affairs [2002][6]). I am bound to follow that decision (see discussion by DP Forgie in Re Wilson and Commissioner for Taxation [2007][7]).
[6] FCAFC 367, at [30]-[36].
[7] AATA 1721, at [14].
17. As it appears to me, there is no error of fact or of law attaching to the dismissal of Ms Gnjec’s application. Mr O’Keefe was instructed to seek an adjournment. He did so at the hearing on 26 March 2007. However, the Senior Member did not accede to his request and attempted to proceed to hear the matter, at least in part. This was not possible because Mr O’Keefe had no instructions to proceed with the matter or that would enable him to proceed with aspects of the matter, in relation to certain witnesses or documentary materials, for example. The Senior Member provided Mr O’Keefe with at least two opportunities to obtain further or better instructions, particularly in relation to the prospect of an application for dismissal of the application. However, it appears that the only instructions Mr O’Keefe obtained were that Ms Gnjec was unwell and unable to participate.
18. The Senior Member proceeded to deal with Comcare’s application for dismissal. Mr O’Keefe had the opportunity of being heard on that matter.[8]
[8] Transcript, 26 March 2007, pp 12 and 13.
19. I am satisfied that the Senior Member afforded Ms Gnjec procedural fairness insofar as Mr O’Keefe was provided with opportunities to obtain instructions, which were not forthcoming. It may be said that Ms Gnjec was too unwell to provide instructions at that time. However, that proposition is not supported by the facts. Even though Ms Gnjec was certified as medically unwell on 26 March 2007, the certificate was signed by a doctor who is otherwise not mentioned in the long history of this matter on the Tribunal file or in any other documents that have been filed. That is said without being in any way critical of Dr Tang. However, without further evidence from the doctor, it is not possible to ascertain the extent of Ms Gnjec’s incapacity on that day. The fact is that she was sufficiently well and motivated, and concerned about the progress of her matter, to make a number of telephone calls to the Tribunal on that day, before and during the course of the hearing. This behaviour is consistent with her past behaviour at crucial points in the Tribunal’s efforts to progress and finally deal with her application. In Katterns v Comcare [2002][9], Wilcox J found procedural error in the dismissal of a matter by the Tribunal as the parties were not given notice or opportunity to be heard on the issue of dismissal.[10] That case is distinguished from this. Ms Gnjec was given notice and the opportunity to be heard on the issue of dismissal. Dismissing her application in those circumstances is not infected with procedural error.
[9] FCA 1366.
[10] Ibid, at [3].
20. Ms Gnjec’s dissatisfaction with her legal representation does not constitute an error that was material to the dismissal of her application. As it appears to me, her dissatisfaction was manifest in the lead up to the substantive hearing of her application. As Ms Gnjec’s application file reveals, she has been similarly dissatisfied in the past with various legal representatives over the long history of her application in the Tribunal. Such dissatisfaction is not properly characterised as an error of the requisite kind, concerning or leading to dismissal of the application, for present purposes. There is no evidence of any fault or error, or similar deficiency, in the legal representation Ms Gnjec obtained prior to and during the aborted hearing of her application. All that can be said is that Ms Gnjec came to the opinion that the legal advice and representation she was receiving was deficient and, exercising her own judgement about that matter, became increasingly dissatisfied. In her submission, Mr Alan Anforth, counsel, withdrew from her case one day before the hearing on 26 March 2007. It appears that Mr Anforth did in fact withdraw, although the particular timing is not clear on the materials before me.[11] Nevertheless, Ms Gnjec instructed and was properly represented by Mr O’Keefe. Finally on this point, Mr O’Keefe’s proposal for a further adjournment, overnight, to enable him to obtain instructions, was considered and rejected by the Senior Member. There is nothing to suggest that such an adjournment would have been productive. The medical certificate provided that Ms Gnjec would not be fit for a number of weeks to 18 May 2007, although the basis on which that prospective assessment was based is not clear. Nor is it clear that she was rendered unfit to instruct her legal representatives.
[11] Transcript, 26 March 2007, p3.
21. Ms Gnjec asserts that her “pain and suffering” has not properly been taken into account and that she has been denied justice and procedural fairness by dismissal of her application.[12] That proposition is not made out. Nor is it supported by reliable evidence. Efforts have been made by the Tribunal to ensure Ms Gnjec’s application is properly and fairly dealt with. Numerous delays and extensions have been granted in response to her requests or by the Tribunal’s own motion in response to changes in Ms Gnjec’s circumstances over time. By ordering such adjournments, the Tribunal sought to afford Ms Gnjec procedural fairness, having regard to her circumstances. Having regard to Ms Gnjec’s previous issues concerning legal representation, the Tribunal obtained the professional opinion of Ms Gnjec’s treating psychiatrist, Dr Tym, concerning her competency to proceed. Dr Tym indicated that she was competent to proceed. Having regard to the circumstances of Ms Gnjec’s mental health and the residential treatment she obtained in the Canberra Hospital for extended periods, her matter was considered by the Public Advocate and she made representations to the Guardianship Tribunal. The application had been on foot in the Tribunal for over four years prior to the hearing on 26 March 2007.
[12] Applicant’s written submissions, 9 November 2007.
22. The administration of justice is not served by uncertainty and delay, and requires consideration of issues of procedural fairness to both parties. Justice delayed is justice denied (Re Rana and Defence Force Retirement and Death Benefits Authority [2005][13]). In the circumstances, it is hardly surprising that issues of prejudice to Comcare and the need for certainty and timeliness in decision-making were ventilated by Ms Walker during the hearing. I accept that with the effluxion of time, month by month, year by year, the difficulty of obtaining reliable evidence in relation to alleged events and occurrences relevant to the claimed injury has increased. Plainly enough, delays in the progress of this application in the Tribunal have resulted in increasing costs to Comcare and a diminishing likelihood of successful rehabilitation.
[13] AATA 291, at [3].
23. In conclusion, it is desirable to properly resolve any substantive application before the Tribunal, being mindful of the objective of doing so in a manner that is ‘fair, just, economical, informal and quick’ (s.2 AAT Act). In this case, the Tribunal made substantial efforts to progress Ms Gnjec’s application and to properly address her claims for compensation in relation to an alleged injury in employment. In so doing, the objectives of fairness and justice weighed heavily in the balance. However, despite repeated opportunities and adjournments, Ms Gnjec failed to proceed with her application within a reasonable time and the matter was dismissed. I have found no error on the part of the Tribunal or any other error infecting that decision. The power to reinstate an application that has been dismissed for want of an Applicant proceeding within a reasonable time is confined to the existence of error. Absent error, the application cannot be reinstated. Unfortunately for Ms Gnjec, that is my conclusion and there the matter must rest.
24. Ms Gnjec’s application for reinstatement of her application pursuant to subs 42A(10) of the AAT Act is rejected, and her application is not reinstated.
I certify that the 24 preceding paragraphs are a true copy of the reasons for the decision herein of Mr S. Webb, Member
Signed: ....signed..........................
Jane Gribble
AssociateDate of Hearing 9 November 2007
Date of Decision 21 November 2007
Representative for the Applicant Self Represented
Counsel for the Respondent Lorraine Walker
Solicitor for the Respondent Robert Chin
Deacons
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4
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