Hodzic and Commonwealth Bank of Australia (Compensation)

[2015] AATA 490

Hodzic and Commonwealth Bank of Australia (Compensation) [2015] AATA 490 (8 July 2015)

Division	GENERAL DIVISION
File Number	2013/4749
Re	James Hodzic
APPLICANT
And	Commonwealth Bank of Australia
RESPONDENT

DECISION

Tribunal	Mr P W Taylor SC, Senior Member
Date	8 July 2015
Place	Sydney

The application for review is dismissed pursuant to section 42B of the Administrative Appeals Tribunal Act 1975. 

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

Mr P W Taylor SC, Senior Member

CATCHWORDS

PRACTICE AND PROCEDURE – dismissal – redetermination – Applicant conceded could not better redetermination –– Applicant no basis or intention to pursue current review proceedings – application for review frivolous and vexatious – application for review dismissed

LEGISLATION

Administrative Appeals Tribunal Act 1975 s 42B

Safety, Rehabilitation and Compensation Act 1988 ss 8, 9

REASONS FOR DECISION

Mr P W Taylor SC, Senior Member

8 July 2015

1. Mr Hodzic was injured in a fall on 13 June 2011. In July and October 2011 the Respondent determined that, for the purposes of ss 8 and 9 of the Safety, Rehabilitation and Compensation Act 1988 (the “SRC Act”), his net weekly earnings (“NWE”) were:

   ·13 June 2011 to 18 September 2011:-  $720.14 (based on his average NWE from 19 April to 14 June 2011)

   ·26 October 2011:– $740.63 (based on his average NWE from 17 September to 12 November 2011).

2. In August 2013 Mr Hodzic unsuccessfully sought a reconsideration of the July and October 2011 decisions.  He contended that they understated his earnings, because they failed to take into account income he had previously derived from a second job he had relinquished in February 2011.  Mr Hodzic claimed he had given up his second job in reliance on an intimation that he would be given additional working hours, and within a short time, a full time position at a greatly increased salary.  The Respondent’s 10 September 2013 rejection of his contentions is the decision that caused Mr Hodzic to bring the present review proceedings.

3. The Respondent conceded that Mr Hodzic should succeed in his review application – to the extent of a redetermination it made on its own initiative on 3 February 2015.

4. On 12 May 2015 I gave directions to the following effect:

   (1) By 19 May 2015 the Respondent is to file and serve an exegesis that sets out the primary factual findings and reasoning relied on to substantiate the determination and calculations referred to in paragraph 26 of its Statement of Facts and Contentions of 1 April 2015.  (It is noted, without any approving comment, that the Respondent contends it will be sufficient compliance with this direction if it files and serves the reviewable determination dated 3 February 2015.)

   (2) By 2 June 2015 the Applicant is to file and serve an exegesis statement to his current Statement of Facts and Contentions, that responds specifically to the information provided by the Respondent, and states

   (a) any disputed primary findings of fact

   (b) the reasons for any such dispute

   (c) the factual findings for which the Applicant contends

   (d) references to the evidence relied on to substantiate the findings for which he contends.

   (3) The proceedings be adjourned for a further telephone directions hearing on 16 June 2015 at 1415.

5. The Respondent complied with the first direction.  The Applicant did not and has not complied with the second direction.

6. At a subsequent telephone directions hearing, the Applicant’s solicitor informed me that the Applicant conceded he could not better the Respondent’s 3 February 2015 redetermination.  The solicitor informed me that the Applicant would file a Notice of Withdrawal of the application.

7. No withdrawal was, or has been, filed.

8. On 2 July 2015 the Respondent contacted the Tribunal, and (i) noted that the Applicant’s solicitor had indicated that a Notice of Withdrawal would be filed with the Tribunal on 26 June 2015, (ii) observed that no Notice had been filed, and (iii) requested a further directions hearing.

9. I then caused the Registry to convey to the parties the following matters:

   ·My view that that the Applicant’s solicitor had made it perfectly clear at the last directions hearing that the Applicant conceded he had no prospect of improving on the Respondent's reconsidered determination.

   ·My view that the formal continuation of the review proceedings has been conceded by the Applicant as having no purpose.

   ·My indication that unless the matter was either (i) concluded forthwith by the filing of a Notice of Withdrawal or (ii) by 5.00 pm on Monday 6 July 2015, a written statement from the Applicant that the suggested concession had been withdrawn, the Tribunal would dismiss the matter under s 42B of the Administrative Appeals Tribunal Act 1975 (the “AAT Act”) – without further notice and without requiring the attendance of either party.

   ·My further indication that if the Applicant objects to such a course of action, that objection and the reasons for it must be conveyed to the Tribunal and the Respondent by 5.00 pm on Monday 6 July 2015.

10. I have been informed that the Respondent contacted the Registry on 7 July 2015 and determined that nothing had been filed by the Applicant – either in compliance with my recent indication, the 12 May 2015 direction or the Applicant’s solicitor’s previous indications.

11. In the circumstances I am satisfied that the Applicant has failed to comply with a previous direction of the Tribunal, without reasonable cause or excuse.  I am also satisfied that the Applicant has no basis to pursue, and does not intend to pursue, the current review proceedings.  In those circumstances their formal continuation is pointless and suffices to characterise them as frivolous and vexatious.

    DECISION

12. The application for review is dismissed pursuant to s 42B of the AAT Act.

I certify that the preceding 12 (twelve) paragraphs are a true copy of the reasons for the decision herein of Mr P W Taylor SC, Senior Member

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

Associate

Dated 8 July 2015

Date of hearing	Heard on the papers
Solicitors for the Applicant	Carroll & O'Dea Lawyers
Solicitors for the Respondent	HBA Legal