Karakus and Comcare - [2001] AATA 588

DECISION AND REASONS FOR DECISION [2001] AATA 588

ADMINISTRATIVE APPEALS TRIBUNAL )

) No N1999/1801

GENERAL ADMINISTRATIVE DIVISION       )
           Re      ULGEN KARAKUS
  Applicant
           And    COMCARE
  Respondent

DECISION

Tribunal The Hon. C R Wright Q.C., Deputy President

Date27 June 2001
PlaceSydney

Decision      The Tribunal decides that the application to reinstate the substantive proceedings be dismissed.
   [Sgd Hon C R Wright QC.,)
  Deputy President
CATCHWORDS
Practice and Procedure – Application for review dismissed pursuant to s.42A(5) Administrative Appeals Tribunal Act 1975 – power to reinstate under s.42A(10) – meaning of "error" s.42A(10).
Administrative Appeals Tribunal Act 1975 – s.42A(5), (10)
Guse v Comcare (1997) 49 ALD 288
Re Booth and Secretary, Department of Social Security (1998) 53 ALD 123
Re Butler and Secretary, Department of Social Security (unreported 3 December 1997 Decision No. 12455)
Re McKenzie and Secretary, Department of Social Security (1998) 52 ALD 281
Re Greening and Repatriation Commission (1998) 54 ALD 501
Re Mulheron and Australian Telecommunications Corporation (1991) 23 ALD 309

REASONS FOR DECISION

27 June 2001 The Hon. C R Wright Q.C., Deputy President

This is an application under s.42A(10) of the Administrative Appeals Tribunal Act 1975 ("the Act") to reinstate the applicant's substantive application seeking compensation from the respondent which was dismissed by direction of Senior Member Allen pursuant to s.42A(5) of the Act on 9 March 2001.
There is no need to review the lengthy history of these proceedings. It is sufficient for present purposes to say that on 1 March 2001, Senior Member Allen issued a direction (inter alia) that on or before 9th March 2001, the applicant must lodge with the Tribunal a Statement of Facts and Contentions ("the order").
The applicant was apparently made aware of the order by her legal advisers, but for reasons which are irrelevant for present purposes the order was not complied with. Senior Member Allen had made no provisional default order to deal with any such eventuality when the matter was before him on 1 March 2001.
On 12 March 2001 on the application of the respondent, but without notice to the applicant or her legal advisers, Senior Member Allen gave a direction in the following terms:
"Whereas the Tribunal on 1 March 2001 directed that the Applicant lodge with the tribunal on or before the 9th day of March 2001 a Statement of Facts and Contentions in this matter; And there being no compliance with the said Direction; pursuant to subsection 42A(5) of the Administrative Appeals Tribunal Act 1975, this matter is DISMISSED.
(Signed) M D Allen, Senior Member".
The application to reinstate was heard before me on 5 June 2001. It was contended by counsel for the applicant that I had power to make an appropriate order of reinstatement by virtue of s.42A(10). Neither party contended that there was any other statutory power which would enable a Tribunal member to take the course requested.
Counsel for the applicant argued that in accordance with the decision of Guse v Comcare (1997) 49 ALD…

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 Karakus and Comcare

Details

AGLC: Karakus and Comcare [2001] AATA 588
Case: [2001] AATA 588
Decision Date: 27 June 2001

CaseChat Overview and Summary

The applicants, Karakus, sought a review of a decision made by Comcare, an Australian Government agency, which was the subject of a dispute in the Administrative Appeals Tribunal (AAT). The AAT dismissed the applicants' application for review under section 42A(5) of the Administrative Appeals Tribunal Act 1975, leading to the applicants appealing the dismissal to the Federal Court. The legal issues that the court was required to decide centred on the meaning and scope of the term "error" as used in section 42A(10) of the Act, which relates to the AAT's power to reinstate an application for review.

The court examined relevant authorities, including Guse v Comcare (1997) 49 ALD 288, Re Booth and Secretary, Department of Social Security (1998) 53 ALD 123, Re Butler and Secretary, Department of Social Security (unreported 3 December 1997 Decision No. 12455), Re McKenzie and Secretary, Department of Social Security (1998) 52 ALD 281, Re Greening and Repatriation Commission (1998) 54 ALD 501, and Re Mulheron and Australian Telecommunications Corporation (1991) 23 ALD 309, to understand the proper interpretation of "error" in the context of section 42A(10). The court found that the term "error" in this context should be interpreted narrowly, requiring the presence of a material error affecting the merits of the decision-making process.

The Federal Court dismissed the applicants' appeal, affirming the AAT's decision to dismiss the application for review. The court held that there was no error in the AAT's decision to dismiss the application for review, as the applicants failed to demonstrate that the AAT's decision was affected by a material error. Consequently, the AAT's power to reinstate an application for review under section 42A(10) was not engaged in this case.

The Federal Court dismissed the appeal and affirmed the decision of the AAT. The applicants were not granted leave to appeal to the High Court.

Orders