Hawk and Linfox Armaguard Pty Limited (Compensation)
[2023] AATA 3068
•27 September 2023
Hawk and Linfox Armaguard Pty Limited (Compensation) [2023] AATA 3068 (27 September 2023)
ReviewNumber: 2021/9794, 2023/1352
Division:GENERAL DIVISION
File Number(s): 2021/9794 & 2023/1352
Re:Victor Hawk
APPLICANT
AndLinfox Armaguard Pty Limited
RESPONDENT
INTERLOCUTORY DECISION
Tribunal:Deputy President B W Rayment OAM KC
Date:27 September 2023
Place:Sydney
The application for reinstatement of the application 2021/9794 is granted under s 42A(10) of the Administrative Appeals Tribunal Act 1975 (Cth).
..................................[SGD]......................................
Deputy President B W Rayment OAM KC
CATCHWORDS
PRACTICE AND PROCEDURE – application for reinstatement of withdrawn application – application for reinstatement made in 2021 – whether there was an error – application granted
LEGISLATION
Administrative Appeals Tribunal Act 1975 (Cth)
Safety, Rehabilitation and Compensation Act 1988 (Cth)
CASES
Goldie v Minister for Immigration and Multicultural Affairs [2002] FCAFC 367
Hawk and Linfox Armaguard Pty Limited [2021] AATA 800
REASONS FOR INTERLOCUTORY DECISION
Deputy President B W Rayment OAM KC
27 September 2023
Section 42A(1A) of the Administrative Appeals Tribunal Act 1975 permits an applicant to notify the Tribunal at any time that their application is discontinued or withdrawn. If such a notification is made, s 42A(1B) provides that the Tribunal is taken to have dismissed the application without proceeding to review the decision.
Section 42A(10) provides that 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 made within the period referred to in subsection (11) or of its own initiative, reinstate the application and give such directions as appear to it to be appropriate in the circumstances. The word “may” entails that the power is discretionary.
Subsection (11) provides as follows:
11For the purposes of subsections (8), (8A) and (10), the period is:
(a)28 days after the party receives notification that the application has been dismissed, unless paragraph (b) applies; or
(b)if the party requests an extension—such longer period as the Tribunal, in special circumstances, allows.
Ms Slack of counsel for the Respondent made comprehensive and detailed submissions opposing the application. In the course of those submissions, she referred to earlier reasons of the Tribunal which led to the remissions of the proceedings to the Respondent to calculate entitlements.
The applicant has had an unfortunate work history, traced by Deputy President the Hon. John Pascoe AC CVO in careful reasons in Hawk and Linfox Armaguard Pty Limited [2021] AATA 800. The applicant was twice made the subject of attempted armed robberies when employed as a Cash Transit Officer, once in 2005 when employed by another company, and later in 2013 when working for the present respondent. He is now aged 50, and in 2005 he was 31 and in 2013 he was 39. The attempted robberies were terrifying to him, and he was diagnosed with post-traumatic stress disorder amongst other conditions. The respondent determined that he had generalised anxiety. In 2013 his treating psychiatrist said that he suffered from PTSD and that he was pressured by the respondent to return to unsuitable duties, as a result of which he had become extremely anxious, irritable, had difficulty concentrating, and insomnia. He last worked for the respondent in August 2013. He had by 2019-2020 managed to work in various employments, earning what was described as minimal amounts at that time. He received a payout of his superannuation monies on the basis of a total and permanent disability claim. He began to drink heavily apparently as a result of an attempt to self-medicate. The Tribunal heard evidence given concurrently by medico-legal medical practitioners who agreed on some matters described in the reasons at paragraphs [86]-[99], and from the applicant’s treating psychiatrist, Dr Pilsky, who had seen the applicant on more than 100 occasions since 2013. As I read the conclusions reached by the Deputy President, the evidence of the treating psychiatrist differed from that of the medico-legal witnesses, in important respects, including at paragraphs [111]-[119]. Dr Pilsky’s evidence was preferred to the evidence of the two medico-legal experts in important respects. The differences between Dr Pilsky on the one hand and the medico-legal experts on the other hand included whether the applicant still suffered from PTSD or whether his PTSD was in remission, and as to whether he was capable of full-time employment. In the concurrent evidence the medico-legal experts both agreed that he was now (in 2021) capable of full-time employment, whereas the treating psychiatrist took a much more conservative view as appears from paragraph [111] of the reasons. The findings made by the Deputy President at paragraphs [156]-[168] resolve the question whether the applicant still suffered from the effects of his accepted psychological condition arising from the attempted robbery of 2013, a matter which was prominent in the determination of the other contested matter of capacity to work in full-time employment. In the result the Deputy President set aside the reviewable decision of the respondent dated 22 March 2019 and remitted the matter to the respondent to determine the monetary consideration available under ss 16 and 19 of the Safety, Rehabilitation and Compensation Act 1988. The orders for remission were made for reasons discussed in paragraph [179] of the reasons.
The respondent acting on the remission, determined on 8 October 2021 that the amount payable under s 19 was nil. The applicant again sought review from the Tribunal about the decision on remittal. One submission made to me on the present application by the respondent is that the applicant does not have good prospects of success on the review, because the medico-legal experts agreed that he was capable of full-time employment. In my opinion, on the contrary, because the evidence of Dr Pilsky was preferred by DP Pascoe, the review instated by the applicant from the determination by the respondent as to quantum cannot be said to have poor prospects of success on the materials presently before me, including the reasons of the Tribunal published in 2021, the same year in which the determinations under review were made by the respondent.
The terms and timing of the 19 December 2021 withdrawal (or in terms, request for termination of the review) made by the applicant, and his request for reinstatement made the same day as he received the Tribunal’s email on 21 December 2021 informing him of the dismissal of his review proceedings, and describing his earlier communication as a mistake, tend to support the suggestion now made by the applicant that the proceedings were dismissed in error by the applicant.
In the Full Court decision of Goldie v Minister for Immigration and Multicultural Affairs [2002] FCAFC 367 (Wilcox, Carr and Downes JJ) it was held that it is erroneous to treat the word “error” as limited to administrative error by the Tribunal: see the reasons of Wilcox and Downes JJ at [29]. Their Honours instanced an error made by the applicant’s solicitor. See also the reasons of Carr J at [73] and [77].
If a person’s psychiatric condition leads him or her mistakenly to ask that his or her proceedings be dismissed, that is an “error” within the meaning of s 42A(10).
Still considering the matter in general terms, the question whether an application to withdraw the proceedings is in “error” may be assisted if it is determined that in the circumstances it would be reasonable and appropriate for a rational person not to ask for the proceedings to be dismissed. The whole purpose of the contested proceedings before DP Pascoe was to seek a monetary benefit, and having succeeded in those proceedings, it would be very unusual for a person in the applicant’s position to decide not to proceed with an application to review the decision made by the respondent, given that the application did not have poor prospects of success.
The evidence before the Tribunal includes a statement from the applicant dated 12 May 2023 in which he said at paragraphs 7 and 22 (redactions added):
7On 19 December 2021, I emailed the Tribunal directly to withdraw my Application for the Review. I did this without the advice of my then solicitor [REDACTED]. I had a fragile mental state at this stage due to my workplace injury. I had a nervous breakdown around this time and had accused my [REDACTED] of misconduct and I had made complaints about him.
[…]
22I am not aware of the correct procedure or process for having insurer decisions reviewed other than writing to the insurer directly. I have relied upon my solicitors to progress my claim in the Tribunal and have the insurer’s decision reviewed. I continue to suffer significant psychological symptoms, including anxiety and depression as a result of my workplace injury. Every attempt I made to have the insurer change its decision has been rejected and this has only served to increase my symptoms and distress. As a result, I have on occasions made poor decisions. The decision to withdraw my application for review on 19 December 2021 was one of those decisions. I made that decision because I was suffering enormous psychological stress at the time.
That statement supports the view that the application of 19 December 2021 was dismissed in error. Paragraph 7 sits well with the decision made by DP Pascoe.
For those reasons it seems to me that the proceedings were dismissed in error within the meaning of s 42A(10).
One other matter should be discussed. Ms Slack, who argued this matter for the respondent, submitted that the time limit specified in s 42A(11) was breached and that there were no special circumstances as required by s 42A(11)(b).
The proposition that the application for reinstatement was made on 21 December 2021 would ordinarily mean that the time limit was not breached. The application made on 21 December was originally set down and adjourned because the applicant was then seeking new legal representation. Neither the applicant nor the respondent sought to set the matter down as such. Rather the applicant applied for an extension of time on 26 March 2023 to lodge a fresh application for review of the same reviewable decision of 2021 to which the then dismissed application for review then related. The matter came before me and I indicated that in my opinion the proper approach would be to proceed with an application for reinstatement. I asked Ms Slack whether she was ready to proceed with the application on that basis and she answered in the affirmative. After I indicated that I wished further to research the matter the interlocutory proceeding was adjourned, and comprehensive oral and written submissions as to absence or presence of error and other matters then proceeded.
Ms Slack submitted that the application of 21 December 2021 had been impliedly abandoned by the applicant by applying for an extension of time to file a fresh application of review, with the applicant’s representative apparently accepting that the “error” in s 42A was an error made by the Tribunal. She also submitted that the discretion to reinstate ought not, as a matter of discretion, to be exercised in favour of the applicant.
I doubt whether in those circumstances the application of 21 December has been impliedly abandoned, but in any event it semes to me that in the circumstances I have already outlined above, including the possible error made by the legal representatives of the applicant having regard to the decision in Goldie and notwithstanding the delays in bringing the matter forwards, on a number of grounds the circumstances are special such as to permit the Tribunal to grant any necessary extension of time, an extension which I grant, for more abundant caution.
In the result I exercise discretion under s 42A(10) to reinstate the 2021 application for review and the proceedings will be listed for procedural directions before me at a date convenient to the Tribunal and the parties.
In the circumstances the 2023 application made by the legal representatives of the applicant for an extension of time again to apply for review of the decision made by the Respondent on the remission by DP Pascoe no longer arises for consideration.
I certify that the preceding 19 (nineteen) paragraphs are a true copy of the reasons for the decision herein of Deputy President B W Rayment OAM KC
....................................[SGD]....................................
Associate
Dated: 27 September 2023
Date(s) of hearing: 14 July 2023 Date final submissions received: 3 September 2023 Counsel for the Applicant: Mr D Steiner Solicitors for the Applicant: Gerard Malouf & Partners Counsel for the Respondent: Ms K Slack Solicitors for the Respondent: HWL Ebsworth Lawyers
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