James and Comcare (Compensation) - [2023] AATA 2826

James and Comcare (Compensation) [2023] AATA 2826 (29 August 2023)
Division:GENERAL DIVISION
File Numbers: 2021/0077; 2022/3333
Re:Gunilla James
APPLICANT

AndComcare
RESPONDENT

DECISION
Tribunal:Senior Member Dr M Evans-Bonner
Date:29 August 2023
Place:Perth

I refuse to reinstate applications 2021/0077 and 2022/3333.
..............[Sgd]..........................................................
Senior Member Dr M Evans-Bonner
CATCHWORDS
PRACTICE AND PROCEDURE – workers’ compensation – application for reinstatement of two withdrawn applications – whether applications dismissed in error – where written withdrawals suggested the Applicant did not want to proceed because she was pursuing a negligence action in the Federal Court – other reasons subsequently put forward by Applicant during the reinstatement hearing that she was not mentally well at the time of withdrawal, that she was intimidated by one of Comcare’s witnesses, that her adult children may be embarrassed by the proceedings, that there were special circumstances for reinstatement and that she could now afford to obtain legal representation – finding that special circumstances relate to an extension of time to seek reinstatement and do not constitute a separate ground upon which reinstatement can be sought – allegations of improper conduct by Comcare found to be baseless – applications for reinstatement of both applications refused
LEGISLATION
Administrative Appeals Tribunal Act 1975 (Cth) – ss 33A, 35(4), 42A(1A), 42A(1B), 42A(2), 42A(8), 42A(8A), 42A(9), 42A(10), 42A(11)
Courts and Tribunals Legislation Amendment (2021 Measures No. 1) Act 2022 (Cth)
Safety, Rehabilitation and Compensation Act 1988 (Cth) s 14
CASES
De Los Santos-Aguilar and Migration Agents Registration Authority [2014] AATA 269
Goldie v Minister for Immigration and Multicultural and Affairs [2002] FCAFC 367
GSRJ and Secretary, Department of Social Services [2023] AATA 87
Kalafatis and Commissioner of Taxation [2012] AATA 150
Mori and Secretary, Department of Social Services [2013] AATA 737
Re Novosel and Comcare (2011) 121 ALD 172
Re Walls and Comcare (2015) 148 ALD 185
Ristic and Secretary, Department of Social Services [2017] AATA 2
White and Secretary, Department of Families, Community Services and Indigenous Affairs [2007] AATA 1712
REASONS FOR DECISION
Senior Member Dr M Evans-Bonner
29 August 2023
OVERVIEW

Ms James is seeking that I reinstate two applications that she withdrew on 18 October 2022 and 23 October 2022.
The applications were withdrawn prior to a seven-day final hearing of the applications which was listed to commence on 9 November 2022.
Ms James represented herself throughout the Tribunal proceedings.
For the reasons outlined below, I have refused to reinstate the applications.
Application 2021/0077
The first application was lodged with the Tribunal on 7 January 2021. It sought review of a reviewable decision of a delegate of Comcare dated 7 January 2021. This is application 2021/0077.
That reviewable decision affirmed a determination by a delegate of Comcare dated 2 October 2020 which decided that Comcare was not liable to pay Ms James compensation under s 14 of the Safety, Rehabilitation and Compensation Act 1988 (Cth) (SRC Act) for “adjustment disorder, currently in remission” and “possibility of discrete delusional parasitosis with associated formication and tactile hallucinations”.
Ms James had stated in her claim form dated 23 July 2020 that the condition she was claiming compensation for was “anxiety and depression” and that she first noticed her symptoms/injury on 1 July 2016. She stated that she was injured because of a “bullying situation” which “continued and worsened due to insufficient action by management”.
Application 2022/3333
The second application was lodged with the Tribunal on 27 April 2022. It sought review of a reviewable decision of a delegate of Comcare dated 18 March 2022. This is application 2022/3333.
This second reviewable decision affirmed a determination by a delegate of Comcare dated 8 February 2022 which also decided that Comcare was not liable to pay Ms James compensation under s 14 of the SRC Act for:
1)        Adjustment Disorder with mixed anxiety and depressed mood
2) Mixed Personality Disorder with paranoid, borderline, anxious, avoidant, obsessive personality traits
3)        Delusional Disorder, somatic type
4) Other specified schizophrenia spectrum and other psychotic disorder, attenuated psychosis syndrome, in remission
Ms James had stated in her claim form that the conditions she was claiming compensation for was “mental injury – anxiety disorder/ aggravation” and that she first noticed her symptoms/injury on 20 August 2021 at 8.56AM. She stated that she was performing “usual duties of being in prep time at work before logging on to my computer. 9 AM for a 9 AM start” and that she was injured due to “verbal abuse by a colleague”.
Directions hearing of 17 October 2022
Part of the background factual matrix of these applications was that Ms James had a personal relationship with a co-worker. The relationship ended and she subsequently made allegations against this co-worker (who I will refer to as the co-worker), including allegations of intimidation, harassment and bullying at work, in statements dated 28 July 2020 and 11 August 2020 which she made in application 2021/0077. She alleged that management did not properly deal with her complaints against the co-worker and that she was also bullied by colleagues, including her manager who found issues with her performance.
On 5 October 2022, Comcare lodged with the Tribunal a statement dated 21 September 2022 made by the co-worker where the co-worker responded to the allegations made against him by Ms James in her statements.
On 6 October 2022, I made a confidentiality order pursuant to s 35(4) of the Administrative Appeals Tribunal Act 1975 (Cth) (AAT Act) concerning this statement following an application by Comcare, on the basis that it contained references to sensitive personal information. The confidentiality order restricted the publication or other disclosure of the information contained in the co-worker’s statement to the parties and their representatives, to the extent necessary, any person whom a party approaches for the purpose of providing evidence in relation to the proceeding, Members and staff of the Tribunal and the Tribunal’s transcription provider.
Ms James wrote a letter to the Tribunal dated 6 October 2022. She raised several issues concerning the proceedings in that letter. Relevantly, she stated that she had commenced two cases in the Federal Court, WAD156/2022 and WAD165/2022 and would be using the co-worker’s statement in those proceedings. She referred to the Federal Court proceedings as being “a negligence action pertaining to possible criminal offences under the Fair Work Act 2009”. She “question[ed] the appropriateness” of the co-worker giving evidence in the Tribunal proceedings, and also requested the Tribunal make an order to “set” a different date of injury of 11 July 2019 and for two witness statements (including from the co-worker) to be withdrawn by Comcare.
I held a directions hearing by telephone on 17 October 2022 to discuss the issues raised by Ms James in her 6 October 2022 letter. Ms James represented herself. Ms Danti appeared for Comcare.
The implied undertaking was discussed, as well as the fact that the witness statements were covered by confidentiality orders. I decided to defer discussion of whether the witness statements could be used in other proceedings to the beginning of the hearing. Ms James also indicated that she wanted to change the date of the injury so that evidence from 2015 and 2016 would not be relevant. I understood that this was an attempt by Ms James to divide the evidence between the AAT proceedings and the Federal Court proceedings which would have the effect that the co-worker’s evidence would only be relevant to the Federal Court proceedings and not the AAT proceedings.
Ms James raised concerns about the co-worker being a witness in the AAT proceedings. She suggested that he could give evidence by video from a different room. I indicated that I would be happy for him to give evidence via Microsoft Teams and that if Ms James had a list of questions she wanted to ask, that I could ask the questions for her. Ms James also stated that she had not received the co-worker’s statement yet and I asked Ms Danti (who had not yet provided it pending our discussion about confidentiality and the implied undertaking) to provide it to Ms James. The order of witnesses was also discussed (R4).
Withdrawal and dismissal of application 2021/0077
On 18 October 2022, Ms James wrote to the Tribunal to withdraw application 2021/0077. She stated:
1.I wish to withdraw my claim before the AAT of the case AAT2021/0077. This is because I have recently lodged common law suit for negligence, which is confirmed proceeding to mediation, and I do not wish for there to be an unnecessary overlap for the time period that AAT2021/0077 relates to.
2.I wish the remaining AAT 2022/3333 to be assessed at the hearing coming up in November 2022.
…
(All correspondence quoted is as original.)
Ms James also requested in this letter that she be able to lodge a replacement statement of facts, issues and contentions and asked that the Respondent do the same so she could see what was being disputed.
The effect of Ms James’ 18 October 2022 correspondence is provided for in s 42A(1A) of the AAT Act which states:
(1A)A person who has made an application to the Tribunal for a review of a decision may, in writing lodged with the Tribunal, at any time notify the Tribunal to the effect that the application is discontinued or withdrawn.
Further, s 42A(1B) of the AAT Act states:
(1B)If notification is given in accordance with subsection (1A) or (1AA),
the Tribunal is taken to have dismissed the application without proceeding to review the decision.
Thus, the effect of these provisions is that following receipt of the Applicant’s letter of
18 October 2022, application 2021/0077 was taken to have been dismissed on that date.
The Applicant was notified of the dismissal in a letter from the Tribunal dated
21 October 2022 sent after the 21 October 2022 directions hearing which I will now discuss.
Directions hearing of 21 October 2022
I held a directions hearing by telephone on 21 October 2022 to discuss the effect of the withdrawal on the remaining application (application 2022/3333) and whether updated statements of facts, issues and contentions should be lodged. Again, Ms James represented herself, and Ms Danti appeared for Comcare.
Ms Danti stated Comcare’s position that the evidence in the first application could be heard in the second application. I also asked Comcare to update their statement of facts, issues and contentions.
Ms James objected to the co-worker being called as a witness which she expressed would be a “vilification” and a “character attack”. She stated that she did not think he could comment on events that occurred in 2021. She expressed concern that he would be stating she had a “personality defect” when he was not a medical expert and “question[ed] the value” of his evidence (R5).
Ms Danti still had not provided Ms James with the co-worker’s statement and so I asked her to do so. I also discussed that he would appear by videoconference. Further, I asked whether there were any other support measures I could put in place to make Ms James feel more secure, including providing me with a list of questions to ask him. I noted that Ms James’ fiancée would be present as a support person. Ms James stated that (R5/107):
… it’s probably a good thing, I mean for both of us, that we’re not – that he’s on Microsoft conference and all that. The contingencies would be good in the circumstances. But as far as being able to ask [the co-worker] or cross-examination [sic] him in regards to what he’ll be saying, I don’t – I can’t see myself having an issue with that, because obviously I have to ask him very important questions, for instance – yes, lot – things that would be interesting I think more are a value to me than the respondent …
I made an order pursuant to s 33A of the AAT Act that the co-worker was to give his evidence at the hearing by Microsoft Teams.
Correspondence from Ms James concerning the co-worker
Ms Danti provided a copy of the co-worker’s statement to Ms James on 21 October 2022 after the directions hearing.
After receiving the statement, Ms James emailed Comcare’s legal representatives suggesting the co-worker provide a copy of a photograph he referred to in his statement “so that it may be identified by myself and what age I was in the photo”. At the reinstatement hearing on 21 June 2023, Ms James stated that she was being “facetious”. She initially stated there was no photo, but then that there was a photo of her in a bathing suit when she was 16 or 17 years old. She stated: “I’m challenging you [the Respondent], or him, to produce a photo, that’s right, that’s what I’m doing”.
Ms James then emailed the co-worker directly, stating that:
I have just partaken in your witness statement for the AAT.
I was wondering if you would send the same statement to [email address of a lawyer acting for the Commonwealth in the Federal Court proceedings]
This is because I am suing Services Australia for negligence and I think you may not know this, and despite me talking to the Comcare Lawyers about it, they will not advise you of your rights, but if you approach [the law firm] you can get advised.
Kind regards,
…
The receipt of the co-worker’s statement also prompted Ms James to send an email to the co-worker on 23 October 2022. The email reads as follows (I have deleted the personal allegations that traverse the content of the statement which is covered by the confidentiality order):
I am asking that you cease and desist your defamatory, intimidating, humiliating, threatening and injurious comments [allegation omitted], something you have never witnessed first hand and know nothing about.
Please stop discussing personal information about me, for example [allegation omitted]. You are breaching confidential discussions. Comments about me [allegation omitted] for which you were counselled against after the 4 August 2016 complaint upheld by HR – now you are repeating those same acts? Repeatedly? I mean, ARE YOU STILL TALKING ABOUT ME … [allegation omitted] TO PEOPLE? Have you thought about the continued harassment that that is causing me???
I am also advising you that I can ask for PERSONAL penalties in my Federal Court case payable by you. This case has not gone to trial yet.
Due to your statement to the AAT, I have contacted the Prime Minister to intervene as per the attached letter to the PM’s office.
There is such a thing as [allegation omitted], and I think you are coming close to perpetrating such actions. Conversations between us back then could have been completely fictional and regardless are deeply humiliating to me, are of a sexual nature in terms of our time together, and should not be repeated under any circumstances. They are also defamatory.
Are you still at work? You need to adhere to APS standards if that is the case.
I am considering withdrawing my simple Comcare claim and pursue the penalties fully under the Fair Work Act in its entirety against both your employer and yourself, as case that is already underway. Do you realise it carries offenses as well and your acts could be seen as CRIMINAL???
Seek legal advice, have you been contacted by [the lawyer acting for the Commonwealth in the Federal Court proceedings] regards the court case? Maybe you ought to, her full details are in the letter attached.
The letter to the Prime Minister (A4) is a typed letter of approximately three pages. In the letter, Ms James referred to the Federal Court proceedings, her receipt of the co-worker’s statement, and gave an explanation as to why she withdrew application 2021/0077:
In August of this year, I realised I was not only dealing with an injury as per my Comcare claim, but also negligence and breaches of my Fair Work General Protections. I therefore lodged two court cases in the Federal Court – WAD156/2022 and 165/2022 – as I was permanently incapacitated and was seeking damages. That combined case is destined for mediation.
Just yesterday I was released a statement by [the co-worker] in the Comcare case AAT2022/3333. I know that what I felt I was complaining about in 2016 was legitimate but I was not aware of the extent.
[The co-worker] quite frankly recounted the event back at Centrelink, … I cannot reveal much more because this statement is under a confidentiality order.
I dropped one of my Comcare cases pertaining to [the co-worker] because I did not want him on the public record, which would happen once the AAT hearing finishes on 17 November 2022.
The Lawyers for Comcare, Moray&Agnew still wants to put him on the witness stand and so it will be.
…
I have personal reasons I do not want the potential broadcasting [here Ms James mentions her three adult children, the profession of her son and the personal situation of one of her daughters]. We could all be impacted but I cannot go without compensation, that is not a choice I can make.
I cannot believe that [the co-worker] would perpetuate the sexual harassment by repeating it in the AAT Perth Tribunal and at the court, we were partners so this is not a traditional sexual harassment case but he took it to work nonetheless causing abject fear and intimidation for me.
Withdrawal and dismissal of application 2022/3333
On 23 October 2022, Ms James wrote to the Tribunal withdrawing application 2022/3333. The relevant paragraphs provided:
1.I wish to withdraw my claim before the AAT of the case AAT2022/0033. This is because I have recently lodged common law suit for negligence, which is confirmed proceeding to mediation, and I do not wish for there to be an unnecessary overlap for the time period that AAT2022/3333 relates to, regards damages for future wages and other damages.
2.I have also made that decision after careful consideration subsequent to reading [the co-worker’s] statement to the AAT repeating the same abuse as I accused him of back in 2016. I believe it is a safer forum for me to meet him in court in my current case, where I can make him a co-respondent, along with others such as [colleague name omitted] where they can face personal penalties and answer to their actions, as I do not feel that Comcare can provide any pecuniary consequences for the people that are involved in the bullying and breaches of the Fair Work Act.
…
The effect of s 42A(1A) and (1B) of the AAT Act was that following receipt of the Applicant’s letter of 23 October 2022, application 2022/3333 was taken to have been dismissed on that date.
Ms James was notified of the dismissal in a letter from the Tribunal dated 24 October 2022.
Request for reinstatement and an extension of time
On 13 April 2023, Ms James sent an email to the Tribunal titled, “Reraise request AAT0077/2021 and 2022/3333”:
I would like to reraise the previous withdrawn cases AAT0077/2021 and 2022/3333 for two reasons:
1.I have via the Federal Court been able to partake of a preliminary Investigation conducted at my employment and tabled in August 2016, where omissions by the employer surfaced that I was not previously aware of. The subject of my harassment claim back then (which was upheld) reveals that my stalking claim was not investigated, which was one part of my complaint. Secondly the culprit had notified the leadership as early as a year before, in 2015, that he may have difficulty in stopping bullying me. The stalking claim raises my claim of bullying into a question of workplace violence, which in the case of the SRC Act, would make it deemed injurious in the workplace. The report was released only a few days before the hearing and I did not have time to fully realise the significance, and the FOI team had refused to release it at all.
2.I was very upset by the Legal Team for Comcare uploading for the hearing a witness statement from the bullying culprit at Centrelink, [co-worker name omitted], which contained a claim that I was [allegation omitted] ….
3.This sexual harassment made me very upset and I withdrew the first claim 0077/2021 so that I would not have to meet [the co-worker] in any capacity at the hearing at AAT. Despite the only other case related to a different agency and 5 years later, the Comcare team decided to keep [the co-worker] as a witness and I questioned the relevance. They decided to keep him as a witness and I was frightened and intimidated, and felt sexually harassed.
4.I now, in view of the above situation, and having had time to pucker up my courage, decided that I want to contest my cases again. The case was only one week out of hearing and all the work was done for both parties, so I feel it will be resumed without much extra investigation for the other party.
5.I have sued in the Federal Court and has a case there, for total and permanent incapacity, but as having been a Federal Government employee, I must have an underlying claim at Comcare as per law in order to claim in common law for an injury, so I must contest a Comcare claim.

Ms James also lodged a form titled, “Application for Extension of Time for Making an Application for Review of a Decision” (A1). I have treated this application as an application for an extension of time to seek reinstatement pursuant to s 42A(11) of the AAT Act because Ms James’ application for reinstatement was later than the 28 day time period. She stated that her reasons for making the application were:
My applications were before a planned hearing with the AAT (2021/0077 & 2022/3333) in November 2022 when the respondent insisted on introducing vexatious & inappropriately intimidating & scandalous evidence that I was a [allegation omitted] (as per [co-worker] Sept 22 statement. This was extremely intimidating to me and I withdrew my claim before the AAT. I was too unwell at the time, my condition has stabilised and I feel strong enough.
THE REINSTATEMENT HEARING
I heard Ms James’ application to reinstate both applications by telephone on 21 June 2023 and 11 August 2023.
Ms James represented herself and Mr Woulfe appeared as counsel for Comcare, instructed by Ms Danti of Moray & Agnew Lawyers.
Ms James gave evidence under affirmation and was cross-examined by Mr Woulfe.
I admitted the following documents into evidence:
(a)Ms James extension of time request dated 28 April 2023 (Exhibit A1);
(b)document titled “Re Reinstatement question” dated 26 May 2023 with attachment (Exhibit A2);
(c)email from the Applicant to the Registry dated 13 April 2023 “Reraise request AAT0077/2021 and 2022/3333” (Exhibit A3);
(d)letter from the Applicant to the Prime Minister 22 October 2022 (Exhibit A4);
(e)Respondent’s submissions regarding the reinstatement question dated 26 May 2023 with attachments referred to in submissions (Exhibit R1);
(f)T6 and T12 in application 2021/0077 (Exhibit R2);
(g)statement of co-worker dated 21 September 2022 (Exhibit R3);
(h)transcript of directions hearing of 17 October 2022 (Exhibit R4); and
(i)transcript of directions hearing of 21 October 2022 (Exhibit R5).
In Exhibit A2, Ms James stated the basis upon which she was seeking reinstatement. She also expressed concerns about Comcare wanting to call the co-worker as a witness at the final hearing:
The respondent refers to s42 of the AAT act, in particular whether the AAT should consider either the dismissal in error provision under s 42A(10) or under the special circumstances under s 42A(11).
I do not think I have stated anywhere that I had my application dismissed in error.
I do believe I am seeking a remittance due to special circumstances 42A(11).
…
Comcare over stepped the mark and uploaded scandalous and vexatious material in the form of [the co-worker’s] statement, which was not fair nor reasonable to myself, who in my claim describes the circumstances of my complaint and what caused an injury in 2015-2016, now I have to listen to someone defending this act of harassing me in the workplace …
I withdrew my claim as I have alluded to, I felt it intimidating, and any adjustments to the hearing in the form of where [the co-worker] was sitting or it being conducted via a video, none of that mitigates the offensiveness of the content that was to be heard.
(My emphasis.)
RELEVANT LAW
Dismissal in error
Sections 42A(8) through to 42A(10) of the AAT Act set out the circumstances in which an applicant may apply for reinstatement of an application for review with the Tribunal and the circumstances in which the Tribunal may reinstate an application. Sections 42A(8) through to 42A(10) of the AAT Act are as follows:
(8)If the Tribunal is taken to have dismissed an application under subsection (1B), a party to the proceeding (other than the applicant) may, within the period referred to in subsection (11), apply to the Tribunal for reinstatement of the application.
(8A)If the Tribunal dismisses an application under subsection (2) (other than an application in respect of a proceeding in which an order has been made under subsection 41(2)), a party to the proceeding may, within the period referred to in subsection (11), apply to the Tribunal for reinstatement of the application.
(9)If it considers it appropriate to do so, the Tribunal may reinstate the application and give such directions as appear to it to be appropriate in the circumstances.
(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 made within the period referred to in subsection (11) or on its own initiative, reinstate the application and give such directions as appear to it to be appropriate in the circumstances.
Section 42A(8) of the AAT Act is not applicable because a party “other than the Applicant” may apply for reinstatement in the circumstances contemplated in that subsection.
Section 42A(8A) of the AAT Act is also not applicable because it applies to dismissals in circumstances where a party fails to appear under s 42A(2) of the AAT Act.
Section 42A(9) of the AAT Act appears applicable at first glance because it provides: “If it considers it appropriate to do so, the Tribunal may reinstate the application and give such directions as appear to it to be appropriate in the circumstances”. However, this provision has been held only to apply to applications that have been dismissed under
s 42A(2) of the AAT Act for failing to appear, and not to a deemed dismissal under
s 42A(1B) of the AAT Act (Kalafatis and Commissioner of Taxation [2012] AATA 150 (Kalafatis) at [59]).
As noted by Deputy President Forgie in Kalafatis at [58], the only applicable provision in circumstances where an Applicant has voluntarily withdrawn an application and seeks to have it reinstated is s 42A(10) of the AAT Act.
Ms James voluntarily withdrew her two applications in her correspondence dated 18 and 23 October 2022.
Thus, to exercise discretion to reinstate Ms James’ applications, I must first be satisfied that the applications were dismissed in error.
Further, the Applicant has the burden of establishing that her application should be reinstated (De Los Santos-Aguilar and Migration Agents Registration Authority [2014] AATA 269, at [35]).
What is an “error”?
In Goldie v Minister for Immigration and Multicultural and Affairs [2002] FCAFC 367 (Goldie) the Full Court of the Federal Court adopted a broad interpretation of the word “error”, which is not limited to administrative errors. The Full Court stated at [27]-[29] that:
… The subsection does not impose any qualification or limitation on the word “error”.
The only limitations that we can see in s42A(10) are:
(i) that the Tribunal has dismissed the application; and
(ii) that the act of dismissal was attended with error.
We do not think it is necessary, in order to enliven the Tribunal's power under s42A(10), that the Tribunal, or a member or employee of the Tribunal, should have been at fault in relation to the dismissal. The fault may have lain elsewhere, provided it induced the error. For example, because of a mistake as to his or her instructions, a solicitor or other representative of a party might have wrongly consented to a dismissal order or filed a notice of discontinuance. No fault would attach to the Tribunal; but, if the solicitor's mistake induced the dismissal of the action, it could properly be said the application had been "dismissed in error".
In Re Novosel and Comcare (2011) 121 ALD 172 (Novosel), Senior Member Professor RM Creyke citing Goldie, explained that “The source of the ‘error’ is not confined to the Tribunal and may extend to the applicant, and the applicant’s solicitors.” In Mr Novosel’s case, the Tribunal explained why there was no error:
… the reason for the withdrawal was a deliberate decision on the part of Mr Novosel, in light of his personal and financial circumstances, and following receipt of the evaluation and his solicitor’s advice, to discontinue his application. The decision was not based on any error by himself, or due to advice by solicitors or others.
An “unwise withdrawal” does not constitute a dismissal having been in error. Additionally, there must be a relationship between the error and the dismissal.
For example, in Ristic and Secretary, Department of Social Services [2017] AATA 2, Member Brigadier Warner, at [18], summarised the case law with respect to the meaning of “dismissed in error” in s 42A(10) of the AAT Act as follows:
Further guidance on the applicability of s 42A(10) to Mr Ristic’s circumstances in the present proceedings is found in a number of cases cited by the respondent ... This guidance can be summarised as follows:
·“Dismissed in error” comprehends any error in the application of s 42A that led to the dismissal;
·For the discretion in sub-section 42A(10) to be invoked, there must be an error which bears some relation to the dismissal;
·The error must be related to the dismissal rather than broader or peripheral circumstances; and
·An unwise withdrawal of an application does not constitute dismissal in error.
Similarly, in Mori and Secretary, Department of Social Services [2013] AATA 737 (Mori) Member Webb found, at [15], that regret, or a change of heart did not constitute an error:
Finally, I accept that Ms Mori now regrets the decision she made to sign the terms proposed to her by the Secretary, and that she wishes that she had not done so. Unfortunately for her, regret at having done something, or wishing it was not done or could be undone, having had a change of heart, does not constitute an error for the purposes of s 42A(10).
Mori was applied in the more recent Tribunal decision of GSRJ and Secretary, Department of Social Services [2023] AATA 87 by Senior Member DJ Morris, at [47].
In White and Secretary, Department of Families, Community Services and Indigenous Affairs [2007] AATA 1712 (White), the Applicant, Mrs White, submitted a form withdrawing her application for review following an outreach conversation with the Tribunal’s Conference Registrar. Deputy President Forgie explained at [42]:
Mrs White did not make an error in sending the notice of withdrawal to the Tribunal. She knew what she was sending and that is so even though she later thought that she should not have sent it at all but should have continued with the review process. Whichever stream of authority is followed regarding the meaning of an “error” in s 42A(10), the error must bear some relation to the dismissal. There is no error of that kind in this case. That is so even though Mrs White thought that she had received advice from the Conference Registrar and that the Conference Registrar’s advice was incorrect.
Discretion to reinstate
If it is established that an application was dismissed in error, that alone is not enough for the application to be reinstated. The Tribunal must go on to consider whether to exercise the discretion to reinstate the application.
In Re Walls and Comcare (2015) 148 ALD 185, at [18], Deputy President G Humphries set out the considerations that were relevant for the Tribunal to consider when deciding whether to exercise discretion under s 42A(1) to reinstate an application that was dismissed in error:
Should the discretion under s 42A(10) to reinstate the application be exercised?
The considerations which the Tribunal should undertake in relation to the exercise of this discretion under s 42A(10) are very similar to those to be addressed in granting an extension of time under s 29(7) for an application. Those considerations, in the context of s 42A(10), were outlined in White’s case:
(a) respect for the efficiency of the case management practices of the Tribunal;
(b)consistency in the manner in which people in like positions are treated;
(c) the prejudice caused to the respondent by a reinstatement; and
(d) whether the applicant has an arguable case.
28-day statutory time period for seeking reinstatement
Ms James’ reinstatement applications were made after the 28-day statutory time period.
Subsection 42A(10) of the AAT Act refers to the application for reinstatement having to be made “within the period referred to in subsection (11)” of the AAT Act.
Subsection 42A(11) provides:
(11) For 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.
Thus, if Ms James can establish that her applications were (or that one of her applications was) dismissed in error, and if I am satisfied that I should exercise discretion under s 42A(10) of the AAT Act to reinstate the application, I will also need to consider whether to exercise discretion to grant the extension of time.
Special circumstances
I will elaborate on the parties’ submissions more in a moment. Here, it is relevant to observe that Ms James seeks to have the applications reinstated on the ground of “special circumstances”. However, the statutory context in which those words appear limits the consideration of “special circumstances” to the extension of time to seek reinstatement in s 42A(11) of the AAT Act. It does not elevate “special circumstances” to a separate ground upon which reinstatement can be sought.
I also note that s 42A(11) of the AAT Act was inserted into the AAT Act by the Courts and Tribunals Legislation Amendment (2021 Measures No. 1) Act 2022 (Cth). The Revised Explanatory Memorandum explained that:
78. Items 39 to 41 amend the provisions relating to reinstatement of an application by standardising in new subsection 42A(11) that the same time limit applies for applications made under subsection 42A(10) as well as applications made under subsections 42A(8) or (8A). This will improve consistency in relation to the operation of the reinstatement provisions, clarify for parties the time within which an applications must be made and promote the timely finalisation of applications in the AAT.
…
Item 39 – Subsection 42A(10)
82. This item amends subsection 42A(10) to specify that, where an application appears to have been dismissed in error, a party to the proceeding must apply to have the application reinstated within the period referred to in new subsection 42A(11).
Item 40 – At the end of section 42A
83. This item adds a new subsection 42A(11) which specifies the time period within which a party must apply for reinstatement under subsections 42A(8), (8A) and (10): that is, within 28 days after the person receives notification that the application has been dismissed or, if the party requests an extension, such longer period as the AAT, in special circumstances, allows. This new subsection replaces the former subsection 42A(8B).
Item 41 – Subsection 69BA(1)
84. Section 69BA provides that the dismissal powers set out in sections 42A and 42B of the AAT Act, which apply to applications for review of a decision, extend to other types of applications that may be made to the AAT. The exception specified in subsection 69BA(1) is the power in subsection 42A(4) to dismiss an application if the AAT is satisfied that the decision is not reviewable by the AAT. This can only apply to an application for review of a decision.
85. This item makes a consequential amendment to subsection 69BA(1) to add a reference to subsection 42A(4A) inserted by this Part as it can also only apply to an application for review of a decision.
This explanation illustrates that Parliament did not intend to create a new basis for reinstatement, but rather that the amendments sought to clarify the time limits for reinstatement.
ISSUES
Thus, if Ms James is successful in establishing that either or both of her applications were dismissed in error, and if I am satisfied that discretion should be exercised to reinstate one or both of them, Ms James must also persuade me that there are special circumstances which justify an extension of time being granted.
However, if the applications were not dismissed in error, it will be unnecessary for me to consider the remaining issues.
WERE THE APPLICATIONS DISMISSED IN ERROR?
I am satisfied that Ms James voluntarily withdrew both her applications in her correspondence to the Tribunal on 18 and 23 October 2022.
In her reinstatement submissions, and in her closing submissions at the reinstatement hearing, Ms James confirmed that she did not think the applications were dismissed in error, but rather that there were “special circumstances” which justified the reinstatement of the applications. However, as I explained above, special circumstances are not a separate basis for reinstatement.
Nevertheless, as Ms James is unrepresented and is not legally qualified, I will consider the evidence as to why Ms James withdrew her applications, and whether there was any error made by Ms James or the Tribunal that may have a correlation with one or both applications being dismissed in error.
Ms James’ withdrawal correspondence of 18 October 2022 where she withdrew application 2021/0077 stated that she wanted to withdraw that application because she had recently lodged a “common law suit for negligence” and wanted to avoid “unnecessary overlap”.
Her withdrawal correspondence of 23 October 2022 where she withdrew application 2022/3333 also referred to her “common law suit for negligence” and that she wanted to avoid “an unnecessary overlap for the time period”. In this withdrawal correspondence, Ms James also stated that she had made the decision to withdraw this application because the Federal Court was a “safer forum for me to meet him [the co-worker] in court” whereby she could “make him a co-respondent” and seek “personal penalties” against the co-worker.
The withdrawal correspondence for both applications indicates that Ms James chose to withdraw her applications because she had instituted proceedings in the Federal Court, a venue which she preferred because she felt more comfortable with the co-worker giving evidence there and because she thought she could pursue damages against him there.
At the reinstatement hearing on 21 June 2023 and 11 August 2023, Ms James put forward additional reasons for withdrawing both applications. I will now provide an overview of this evidence.
Ms James stated that she was “shocked by … and quite intimidated” when she read the co-worker’s “scandalous statement”, that she “did not feel safe”, felt that Comcare were seeking to re-litigate a previous HR investigation, and that calling the co-worker as a witness would amount to “sexual harassment”. She withdrew application 2021/0077 because she thought Comcare would not call him as a witness and continued to feel unsafe and intimidated when Comcare confirmed at the directions hearing on 21 October 2022 that they intended to rely upon the same evidence in application 2022/3333.
However, Ms James admitted to not being physically or mentally afraid of the co-worker and although she appeared content for him to give evidence from a separate room or via Microsoft teams, she declined my offer at the directions hearing on 17 October 2022 to provide me with a list of questions to ask him at the hearing. As I noted at paragraph [27] above, Ms James stated that:
… as far as being able to ask [the co-worker] or cross-examination him in regards to what he’ll be saying, I don’t – I can’t see myself having an issue with that, because obviously I have to ask him very important questions, for instance – yes, lot – things that would be interesting I think more are a value to me than the respondent …
It seems to me that it would be unpleasant for Ms James if the co-worker, whom she had a personal relationship with that ended on acrimonious terms, was to give evidence at the hearing. However, I am not satisfied that she was intimidated. Ms James’ conduct in emailing the co-worker on 21 and 23 October 2022 and threatening him with personal damages in her Federal Court proceedings also tends to suggest that she was not intimidated or afraid of him.

A further reason put forward by Ms James for withdrawing her application was that she was feeling mentally ill at the time and “I did not feel like I was well enough to be able to mentally withstand that without danger to my mental health because I was still in a fairly active phase of anxiety and probably depression”. Further, she explained:
… in my emotional mind I thought I – to be honest, I just needed – due to the intimidation I needed to have the Comcare out of my hair and Moray & Agnew, and what they’d done, and I needed to take a good break from – not a break, I never thought I’d come back. I never thought I would ask for re-raise but I thought this is doing me more injury again and I can’t handle it at the moment because at the time I was still quite ill. I was still having nightmares, for instance, and stuff like that. So I did not feel safe and I think that was the main – main reason is that I have my Federal Court anyway. The money will be coming my way, some way, you know, at some point and I felt due to the intimidation I’ve got my Federal Court case anyway.
I accept that AAT proceedings of this nature can be stressful to an unrepresented person such as Ms James. I also note, however, that there is no medical evidence of Ms James withdrawing because she was experiencing mental health issues. At the hearing on 21 June 2023, Ms James stated that she was “in a better place now” and that she had “a lot of protective factors” and that she was “financially … able to get representation”. At the 11 August 2023 hearing she stated that she now thought the issue of legal representation was not relevant to her reinstatement application.
To assist Ms James, I asked her at the hearing on 21 June 2023 if she thought I had made an error, for example, by not disallowing Comcare from calling the co-worker as a witness at the upcoming final hearing. Ms James said she thought that I had made an error and that I made an error by “allowing the witness statement to go ahead without being amended or addressed”.
However, in her closing submissions at the resumed hearing on 11 August 2023, Ms James stated (without any prompting) that she did not think I had made an error by failing to stop the co-worker from giving evidence. She stated that if the applications had proceeded to hearing and I had allowed the co-worker to give evidence, she would appeal on the basis that I was prejudiced in allowing evidence that was not relevant. She confirmed that she did not think I had made a mistake and that Comcare had also made mistakes that were not relevant.
Ms James claimed that the applications should be reinstated under “special circumstances” because of Comcare’s “intimidating conduct” in persisting to call the co-worker whose evidence was not “probative”, was “sensational” and “offensive”. She accused Comcare of intentionally seeking to call the co-worker as a witness to prejudice and intimidate her and that Comcare had acted recklessly and on purpose.
Before addressing the remaining reasons put forward by Ms James as to why she withdrew her applications, I will address these allegations against Comcare. Ms James’ issues with the co-worker and how they were dealt with by her employer formed the factual background to her claims in both applications, which is why she addressed her issues with the co-worker in detail in her statements. I have reviewed the co-worker’s statement (R3) and observe that the co-worker was responding to allegations that Ms James had made against him in her statements. Given Ms James’ allegations against the co-worker were part of the factual basis for her claims, I agree that Comcare was entitled to procedural fairness in obtaining a witness statement from the co-worker and potentially calling him as a witness. The witness statement would not be tendered and put into evidence until the hearing, and it would be open to Ms James to make submissions concerning relevance at the hearing. In short, Comcare was seeking to lead evidence that they thought was of relevance and they were entitled to do so. There is no evidence that Comcare acted improperly in seeking to call the co-worker as a witness. There is no evidence that Comcare sought to intimidate Ms James.
This evidence is also relevant, and supports a finding, that there was no error by the Tribunal. That is, I did not err in the way I dealt with the witness statement. I would have denied Comcare procedural fairness if I had decided that the co-worker could not give evidence. It would also have been improper of me to direct that the parts of the witness statement that were objectionable to Ms James were to be removed. In any event, the co-worker’s statement had not been admitted into evidence at the hearing because we had not yet reached the hearing. The statement was also covered by a confidentiality order which prohibited the disclosure of the content of the statement to anyone except the persons listed in para [13] above.
In her letter to the Prime Minister, Ms James had stated that she did not want the co-worker’s evidence on the “public record” and that for “personal reasons I do not want the potential broadcasting”. At the hearing on 21 June 2023, Ms James confirmed that one of the reasons that she withdrew her applications was that she was concerned that her adult children could be impacted emotionally and, in their careers, if she went ahead with the AAT hearing and the co-worker was to give evidence.
The above evidence shows that Ms James made a deliberate decision to voluntarily withdraw her applications for a range of personal reasons including:
·a strategic decision to avoid any overlap between the Tribunal proceedings and the Federal Court proceedings;
·deciding that the forum of the Federal Court and the damages that could be claimed in those proceedings would be more preferable to her than pursuing her applications in the Tribunal;
·her discomfort about her former partner giving evidence in the Tribunal proceedings and her subjective views about the nature of his evidence;
·her concern for her mental health at the time of her withdrawals; and
·the potential “embarrassment” that the AAT proceedings may cause her adult children.
Based on the evidence, and the reasons put forward by Ms James, I agree with Mr Woulfe’s characterisation of Ms James’ reasons for withdrawing as being personal and forensic reasons that were not affected by any error on the part of Ms James or the Tribunal. In other words, Ms James’ decision to withdraw her applications was a deliberate decision that she willingly made after considering her personal circumstances (Novosel).
Ms James appears to have reassessed her personal circumstances and the advantages and disadvantages of proceeding with the AAT hearing and now wants her applications reinstated, or at the very least the second application reinstated. However, a change of mind, or later regret after having withdrawn, are not a sufficient basis for reinstatement because they do not amount to the applications having been dismissed in error.
For the reasons set out above, I am not satisfied that Ms James has met the burden of establishing that either or both applications should be reinstated. I therefore refuse both applications for reinstatement.
DECISION
I refuse to reinstate applications 2021/0077 and 2022/3333.

I certify that the preceding 92 (ninety-two) paragraphs are a true copy of the reasons for the decision herein of Senior Member Dr M Evans-Bonner

...........[Sgd].......................................................
Associate
Date: 29 August 2023

Date of hearing:

21 June 2023 and 11 August 2023

Representative for the
Applicant:

Representative for the Respondent:

Self-represented

Mr PG Woulfe instructed by Ms A Danti, Moray & Agnew Lawyers