Haberl and Comcare (Compensation)

[2017] AATA 2909

Haberl and Comcare (Compensation) [2017] AATA 2909 (23 November 2017)

Division:GENERAL DIVISION

File Number(s):      2017/5964

Re:Leanne Haberl

APPLICANT

AndComcare

RESPONDENT

DECISION

Tribunal:Senior Member A Poljak

Date:23 November 2017

Date of written reasons:       18 January 2018

Place:Sydney

The Tribunal, pursuant to section 42B(1) of the Administrative Appeals Tribunal Act 1975 (Cth), dismisses the application.

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

Senior Member A Poljak

CATCHWORDS

PRACTICE AND PROCEDURE – Reinstatement – original application withdrawn by applicant – new application filed – whether new application should be treated as application for reinstatement of original application – narrow power to reinstate – application dismissed

LEGISLATION

Administrative Appeals Tribunal Act 1975 (Cth) ss 29, 42A

CASES

Anthony Hordern & Sons v Amalgamated Clothing and & Allied Trades Union of Australia [1932] HCA 9; (1932) 47 CLR 1

WRITTEN REASONS FOR ORAL DECISION

Senior Member A Poljak

18 January 2018

Introduction

1. The applicant sought review of a decision of Comcare dated 17 October 2016, which affirmed an earlier decision to deny ongoing household services (matter number 2016/6859) (“the reviewable decision and original application”). On 18 July 2017, the applicant formally requested for the original application to be withdrawn. Pursuant to section 42A(1A) and (1B) of the Administrative Appeals Tribunal Act 1975 (Cth) (“the Act”), the original application was withdrawn and dismissed by the Tribunal on 19 July 2017.

2. On 28 September 2017, the applicant requested a reinstatement of the original application. On advice from the Tribunal, the applicant filed a fresh application for review of the reviewable decision (“the application”). 

3. The application was listed before me as an interlocutory hearing for an extension of time application because of the age of the reviewable decision. Following a discussion with the parties, the application was treated as a reinstatement application and dismissed.

4. Oral reasons for the decision were given at hearing and one party has requested written reasons for the decision. The following submissions and reasons for the decision are distilled from the transcript of the proceedings.

   Parties’ submissions

5. Comcare submitted that in circumstances where an application had been dismissed following withdrawal, the only way to have that matter heard again was to look at the specific section of the legislation that dealt with that question. Comcare submitted that the power to grant, or rather the power to reinstate a dismissed application is specifically given in narrow terms in section 42A(10). The power to grant an extension of time is expressed in broader terms under section 29(7), and accordingly section 29(7) must give way to section 42A(10). In support, Comcare relied on the joint decision of Gavin Duffy C.J and Dixon J in Anthony Hordern & Sons v Amalgamated Clothing and & Allied Trades Union of Australia [1932] HCA 9; (1932) 47 CLR 1 who said at [7]:

   The legislature explicitly gives a power by a particular provision which prescribes the mode in which it shall be exercised and the conditions and restrictions which must be observed, it excludes the operation of general expressions in the same instrument which might otherwise have been relied on for the same power.

6. Throughout the hearing, Comcare maintained its opposition to the reinstatement application.

7. The applicant’s representative made submissions about the circumstances surrounding the withdrawal of the original application. He said that the original application concerned cleaning services expenses only. He said the applicant was not happy with Comcare going to the extent of not allowing an ADL assessment at home. This was despite the recommendation of Dr Moffitt. The applicant’s representative advised that Comcare sent a letter to the applicant in mid-2015, after receipt of Dr Moffitt’s report, advising that an ADL assessment would be conducted at home to see what services the applicant still needed, such as ironing and cleaning. The assessment was never done at home. The applicant’s representative said that the applicant was suddenly assigned with the same case manager as him. The applicant’s representative disagreed with the applicant having the same case manager as himself and said the issue was being investigated further by their Local MP and the Minister of Finance. The applicant’s representative said that he had requested on a number of occasions for the applicant to be assigned a different case manager.

8. The applicant’s representative advised that the the case manager decided to stop the applicant’s cleaning expenses abruptly with no good reason at all, and said, “No, that’s finished.” He said that the decision was appealed and instead of going for an ADL assessment, the applicant had to be sent to Sydney for a medical assessment. The applicant’s representative said that he and the applicant disagreed with the doctors that Comcare wanted to send the applicant to, and they ended up being referred to Dr Chow in Newcastle. The applicant’s representative advised that he thought it was not worth aggravating the applicant’s condition because she was fairly bad with her depression and anxiety and Comcare didn’t seem to understand. Accordingly, he decided that it just was not worth it, just for the cleaning expenses and the small expense involved, to put the applicant through the medical assessment. As a result, the original application was withdrawn.

9. In any event, the applicant’s representative advised that despite the withdrawal, Comcare still required the applicant to attend Dr Chow for medical review. He expressed that he felt the applicant was being harassed and victimised by Comcare, and said that the Local MP’s were looking into the issue at the moment. He said he feels like Comcare has treated them badly and said that if Comcare will not agree to reinstate the application, they will reapply to Comcare for cleaning services and start again.

   Consideration

10. After considering the submissions from Comcare, I was persuaded that this matter should be dealt with as a reinstatement application and not as an extension of time application.

11. The two relevant provisions which provide for reinstatement of such an application that has been withdrawn, are contained in ss 42A(8) and 42A(10), which provide:

    (8) If the tribunal is taken to have dismissed an application under subsection (1B), a party to the proceedings, (other than the applicant) may, within the period referred to in subsection (8B), apply to the Tribunal for reinstatement of the 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 proceedings or on its own initiative, reinstate the application and give such directions as appear to it to be appropriate in the circumstances.

12. Neither of the circumstances provided by subsections (8) and (10) is satisfied in this matter. Namely, the respondent has not applied for reinstatement and the application was not dismissed in error. In my mind filing a fresh application for the same matter that was withdrawn on request by the applicant circumvents the Tribunal’s processes. Section 42A of the Act specifically outlines the circumstances of when a reinstatement of a dismissed or withdrawn application can occur. To not consider the scope and restrictions contained in s 42A, in my mind, could lead to significant prejudice to Comcare in going ahead with a new application. As the applicant requested for her matter to be withdrawn, Comcare should be entitled to consider that the proceedings have been finalised and is entitled to manage its affairs according to decisions as they have been made appropriately.

13. The applicant may file a new claim for cleaning services expenses with Comcare at any time.

14. The application is dismissed.

I certify that the preceding 14 (fourteen) paragraphs are a true copy of the reasons for the decision herein of Senior Member A Poljak

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

Associate

Dated: 18 January 2018

Date(s) of hearing:	23 November 2017
Advocate for the Applicant:	Mr R Haberl
Solicitors for the Respondent:	Mr A Schofield, Comcare