Gregory and Comcare (Compensation) - [2023] AATA 4880

Gregory and Comcare (Compensation) [2023] AATA 4880 (4 December 2023)
Division:GENERAL DIVISION
File Number: 2023/5728
Re:Luke Gregory
APPLICANT

ComcareAnd
RESPONDENT

INTERLOCUTORY DECISION
Tribunal:Mr S. Webb, Member
Date:4 December 2023
Place:Melbourne

Application for reinstatement refused.
Catchwords
PRACTICE AND PROCEDURE – withdrawal of application – application for reinstatement – allegation withdrawal consequent to error – causes of action – peripheral circumstances – psychiatric illness – actions of legal representatives – exercise of choice – application dismissed
Legislation
Administrative Appeals Tribunal Act 1975 s 42A
Safety, Rehabilitation and Compensation Act 1988 ss 5B, 14, 19
Cases
Goldie v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 367
Lower v Comcare [2002] FCA 1394
Ristic and Secretary, Department of Social Services [2017] AATA 2
Walls and Comcare [2015] AATA 697
White and Secretary, Department of Families, Community Services and Indigenous Affairs [2007] AATA 1712 at [42]
REASONS FOR INTERLOCUTORY DECISION
Mr S. Webb, Member
4 December 2023

Luke Gregory lodged two applications for review of Comcare decision in respect of compensation claims: applications 2023/3745 and 2023/5728. He subsequently withdrew application 2023/5728. After doing so, he applied for reinstatement of this application on grounds of error.
It is this issue, alone, which is the subject of this interlocutory decision.
For ease of understanding, it is necessary to touch on the subject of each application.
Application 2023/3745 is in respect of a reconsideration decision accepting liability for an injury under s 14 of the Safety, Rehabilitation and Compensation Act 1988 (SRC Act), namely aggravation of post-traumatic stress disorder (PTSD) and major depressive disorder. Mr Gregory cavils with the deemed date of the injury in this decision (26 August 2022) and asserts he sustained the injury in 2008.
Application 2023/5728 is in respect of a reconsideration decision which addressed Mr Gregory’s entitlement to periodic compensation for incapacity to work as a result of the injury. Under s 19(2) of the SRC Act, the amount of periodic compensation for incapacity to work as result of the injury hinges on the AE amount, namely the amount Mr Gregory actually earns in employment or the amount he is deemed able to earn in suitable employment, whichever is greater.
For completeness I note Mr Gregory previously applied for review of a Department of Veterans’ Affairs reconsideration decision to deny liability for a number of physical injury claims: application 2022/4355. This application was finalised in 2022.
Each party provided detailed written submissions, referencing relevant authorities (to which I will return). Relevant materials were taken into evidence when the reinstatement application was heard.
Mr Gregory asserts application 2023/5728 was dismissed in error. He asserts a cascade of erroneous events led him to withdraw the application. In his submission, 3 errors occurred which were causally instrumental in the act of withdrawal. Firstly, he alleges his lawyer, Lawrence Dent of Arnold, Thomas & Becker, failed to notify Comcare he retained instructions to represent Mr Gregory in the Tribunal proceedings. Secondly, he alleges an email…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Gregory and Comcare (Compensation)

Details

AGLC: Gregory and Comcare (Compensation) [2023] AATA 4880
Case: [2023] AATA 4880
Decision Date: 4 December 2023

CaseChat Overview and Summary

This matter concerned an application by Mr Gregory for the reinstatement of a previously withdrawn application before the Administrative Appeals Tribunal. The dispute arose from Mr Gregory's assertion that the withdrawal of his original application was a consequence of error.

The primary legal issue before the Tribunal was whether the discretion to reinstate the application under section 42A(1) of the *Administrative Appeals Tribunal Act 1975* (Cth) was enlivened. This required the Tribunal to determine if the original withdrawal had indeed occurred as a result of material error.

The Member found that the original application had not been dismissed in error. Consequently, the Tribunal's discretionary power to reinstate the application under section 42A(1) of the *Administrative Appeals Tribunal Act 1975* (Cth) was not triggered. The Member held that factors such as the absence of prejudice to the respondent and the short period within which the reinstatement application was filed were irrelevant where the prerequisite of material error was not met.

Accordingly, Mr Gregory's application for reinstatement was refused.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

As application 2023/5728 was not dismissed in error the discretion to reinstate the application under s 42A(1) of the AAT Act does not arise. The absence of prejudice to the Respondent and the shortness of the period in which Mr Gregory’s application for reinstatement was made are not to the point. Where the Tribunal’s discretionary power to reinstate an application under s 42A(10) of the AAT Act is not enlivened by material error, the power cannot be exercised.Decision Mr Gregory’s application for reinstatement is refused.

Ratio Decidendi

Legal Principle Established

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