Lagrange and Comcare (Compensation)
[2021] AATA 4369
•25 November 2021
Lagrange and Comcare (Compensation) [2021] AATA 4369 (25 November 2021)
Division:GENERAL DIVISION
File Numbers: 2021/1783
2021/2281
Re:Diana Lagrange
APPLICANT
AndComcare
RESPONDENT
DECISION
Tribunal:Deputy President Boyle
Date:25 November 2021
Place:Perth
Pursuant to s 42B(1)(a) of the Administrative Appeals Tribunal Act 1975 (Cth), the applications are dismissed.
...[SGD].....................................................................
Deputy President Boyle
CATCHWORDS
PRACTICE AND PROCEDURE – application for dismissal (AAT Act s 42B(1)) – whether application is vexatious – costs: applicability of SRC Act sub-ss 67(1), (2), (8) – Tribunal’s powers statutory – circumstances of the case do not meet the requirements of SRC Act sub-ss 67(2) or (8) – under current program Applicant receives what she sought – no practical purpose would be served by a successful review of the decision the subject of the applications – proceedings have become frivolous – applications dismissed
LEGISLATION
Administrative Appeals Tribunal Act 1975 (Cth) ss 2A(b), 33(1)(b), 42B, 42B(1), 42B(1)(a)
Rules of the Supreme Court 1971 (WA) ord 59
Safety, Rehabilitation and Compensation Act 1988 (Cth) s 37, 62(1) 62(2), 62(5) 67, 67(1), 67(2), 67(8)
CASES
Drake v Minister for Immigration and Ethnic Affairs (1979) 46 FLR 406
Fearnley v Australian Fisheries Management Authority [2006] FCAFC 3; (2006) 94 ALD 519
Flahive and Comcare [2021] AATA 2444
Greczanik and Australian Postal Corporation [1994] AATA 160
Lees v Comcare [1999] FCA 753; (1999) ALD 84
Minister for Immigration and Border Protection v WZARH (2015) 256 CLR 326
Perry v Comcare [2006] FCA 33
Riley v Commission for the Safety, Rehabilitation and Compensation of Commonwealth Employees (1994) 48 FCR 449
Shi v Migration Agents Registration Authority [2007] FCAFC 59; (2007) FCR 525
Williams and Australian Electoral Commission [1995] AATA 160; (1995) 38 ALD 366
REASONS FOR DECISION
Deputy President Boyle
25 November 2021
THE APPLICATION
The Respondent seeks dismissal of the two applications under s 42B(1) of the Administrative Appeals Tribunal Act 1975 (Cth) (AAT Act) on the basis that the applications are frivolous and/or vexatious.
BACKGROUND
The following facts are largely taken from the Respondent’s dismissal submissions dated 17 August 2021. They appear not to be contested by the Applicant.
The Applicant was employed as an “emergency and remote registered nurse” when she fell and suffered an injury.
The Respondent has accepted liability under the Safety Rehabilitation and Compensation Act 1988 (Cth) (SRC Act) for “contusion of hip and thigh (left)” with a date of injury of 16 May 2012 (the injury).
The Applicant was paid incapacity payments for a limited period in 2012, for 13 weeks in 2017 and significant periods of incapacity in 2018 following surgery.
Following her injury in 2012, the Applicant continued to work in the casual pool at the Sir Charles Gairdner Hospital (emergency department) as well as engaging in various remote work at Wheatstone and Queensland, until July 2017 when she had her first surgery.
Following that surgery, a work trial rehabilitation program was organised pursuant to s 37 of the SRC Act, under which the Applicant partook in some work in an aged care facility and at St Vincent de Paul. The Applicant’s rehabilitation program was subject to a number of changes.
By determination dated 18 December 2020,[1] the Applicant’s then rehabilitation program was altered to describe the final goal of the rehabilitation program to be “to obtain full time (40 hours per week) employment with nil restrictions.”[2] The expected rehabilitation program end date was 25 June 2021.
[1] T29.
[2] T29/149.
By letter dated 21 December 2020 from the Applicant’s lawyers, Chapmans Barristers & Solicitors,[3] the Applicant sought a review of the rehabilitation program effected by the determination of 18 December 2020.
[3] T33/159.
By “determination” dated 24 December 2020 the Respondent issued what it described as an altered rehabilitation program.[4] In the covering email by which the altered rehabilitation program was sent to the Applicant, the Respondent noted that the Applicant’s feedback about the previous program had been taken into account and a new program was proposed to address those concerns.[5] The Applicant’s rehabilitation program of 24 December 2020 described the final goal of the rehabilitation program as being “to obtain full time (40 hours per week) employment in a registered nursing role completing duties with nil restrictions.”[6] The plan provided that:
Given Ms Lagrange continues to be certified with restricted hours and physical restrictions, the key rehabilitation actions within this plan will focus on building capacity towards achieving full time [registered nurse] duties. This will continue to be reviewed in line with the available medical capacity information.[7]
[4] T35.
[5] While the parties treated the program issued on 24 December 2020 as a determination, it followed a request by the Applicant’s lawyers’ letter dated 21 December 2020 (T33) and the Applicant’s email of 22 December 2020 (T34) to reconsider the program (determination) dated 18 December 2020. Accordingly, the “determination” of 24 December 2020 was, technically, a decision under s 62(5) of the SRC Act following a request for reconsideration under s 62(2). The “determination” of 24 December 2020 was therefore the reviewable decision. If that analysis is correct, then the application to the Tribunal was not made within the time prescribed by s 65(4) of the SRC Act. If that is the case, then I will extend time for making the application.
[6] T35/65.
[7] T35/170.
The expected rehabilitation program end date was again noted to be 25 June 2021.[8]
[8] T35/165.
By letter dated 6 January 2021 the Applicant’s lawyers requested a reconsideration of the determination (rehabilitation program) of 24 December 2020.[9] The request for reconsideration stated that the Applicant was concerned that the goal of the program was not to return the Applicant to her pre-injury employment, but instead for the Applicant to “obtain new full time (40 hours per week) employment in a Registered Nursing role.”
[9] T39/174.
By letter dated 16 February 2021,[10] which the parties have treated as the reviewable decision, the Respondent purported to affirm both the program of 18 December 2020 and the program of 24 December 2020. The Respondent stated that it was not satisfied that there was sufficient evidence to alter the final goal in the rehabilitation plan to include return to work as an emergency department registered nurse. The Respondent stated:
The delegate has clearly identified the need to build up your capacity for work as a precursor to specifically honing in on the competencies required for an Emergency Department Registered Nurse.
Given the long period of time you have been out of the work force I accept the delegate’s reasoning in this regard and find there is no basis to alter the current wording in the determinations dated 18 December 2020 and 24 December 2020.[11]
[10] T47.
[11] T47/187.
By application for review lodged with the Tribunal on 26 March 2021, the Applicant sought review of the reviewable decision. Because the parties proceeded on the basis of there being two determinations and two reviewable decisions, the application was assigned two separate file numbers by the Tribunal: 2021/1783 and 2021/2281. The two applications, in effect, relate to the same issue and have been programmed and dealt with together. The application stated the reason for the review was:
1. Failure of Comcare to correctly interpret and apply the provisions of s37 of the Safety, Rehabilitation and Compensation Act 1988;
2. Failure of Comcare to correctly set out the appropriate goal of the Applicant's Return to Work Programme; and
3. Findings made by Comcare that are not in accordance with the reliable evidence, including the Applicants' evidence as to her and her treating doctors preferred return to work goal, that is, to her pre-injury role.
On 8 June 2021, the Applicant was reviewed by Dr David Fitzgerald, occupational physician, who prepared a report.[12] Dr Fitzgerald expressed the view that the Applicant was now able to “carry out pre-injury RN duties when suitable employment is found”. Dr Fitzgerald considered that work hardening was not required and that “from a physical point of view she has recovered to the extent she would be able to return to full time emergency and remote RN duties as soon as a position is available to her”.[13]
[12] Respondent’s dismissal submissions, Annexure A.
[13] Respondent’s dismissal submissions, Annexure A, 7.
Following receipt of Dr Fitzgerald’s report, Medibank (which was administering the rehabilitation program) provided a copy of the report to the Applicant on 11 June 2021 and organised a meeting to finalise the then-current program and commence a new program based on the updated information in the report. On 30 June 2021 Medibank sent the Applicant a closure form for the then-current rehabilitation program. It is that program, the program of 24 December 2020, which is the subject of the review in these proceedings. At the same time, Medibank also sent the Applicant a new rehabilitation plan (the new program) for consultation.
On 3 July 2021 the Applicant signed the Rehabilitation Program Closure Record, ending the rehabilitation program that is the subject of the Applicant’s substantive application.
Since the previous program ended, the Applicant has participated in the new program. The Applicant has not sought review of the new program.
The Applicant’s solicitor confirmed at a directions hearing on 4 August 2021 that the changes sought by the Applicant had been fully addressed by the new program. This was again confirmed by Mr Lourey at the hearing when he observed that:
… the subject matter of her application has indeed fallen away because the [R]espondent is giving her, or is in the process of giving her what she has sought from the outset, which is a program with the content consistent of returning her to that pre injury role.[14]
[14] transcript at 10.
THE APPLICATION FOR DISMISSAL
By email dated 2 August 2021 the Respondent’s solicitors sent an email to the Tribunal, copied to the Applicant’s solicitors, advising that they were instructed to seek dismissal of the applications pursuant to s 42B of the AAT Act. The email stated that, while the applications had not been instituted vexatiously, they had now become vexatious because the Applicant had received what she sought in a rehabilitation program and there was no practical purpose in proceeding with the applications. That letter referred to the Federal Court decision of Lees v Comcare[15] and the Tribunal’s decision in Flahive and Comcare[16] The email also stated that:
The Respondent has previously invited the Applicant to withdraw the Applications for Review on the basis that a review of the decisions would be of no practical benefit to the Applicant; this invitation was rejected.
[15] [1999] FCA 753; (1999) ALD 84.
[16] [2021] AATA 2444.
As a result of that email, on 4 August 2021 I made directions for the parties to file written submissions and any further evidence regarding the Respondent’s application for dismissal of the applications under s 42B(1) of the AAT Act. The parties filed submissions[17] and the Applicant filed a bundle of documents as further evidence on 2 September 2021. The application for dismissal was heard on 8 September 2021. The Applicant was represented by Mr M Lourey and the Respondent was represented by Mr A Burgess.
[17] The Respondent on 17 August 2021; the Applicant on 6 September 2021.
The Applicant submitted that there was no “proper application” by the Respondent to dismiss the substantive applications. By her written submissions of 6 September 2021, the Applicant submitted:
2. The Applicant's position regarding the use of an open email by the Respondent to make an application pursuant to s.42B, is well known and she urges the Tribunal to dismiss that application on the basis it is irregular and not properly brought.
3. The Applicant acknowledges that the Tribunal has broad powers as to how to manage its affairs, however the Applicant says that such a discretion does not extend to allowing a party to bypass the fundamentals of civil procedure, including the requirements to file a proper interlocutory application supported by an affidavit.
I take the reference to the Applicant’s “position regarding the use of an open email” being “well known”, to be a reference to Mr Lourey taking objection in a previous matter to an interlocutory application being made to the Tribunal by a party by way of an email or letter, copied to the other party and setting out the orders sought.
As I discussed with Mr Lourey at the hearing, unlike courts, the Tribunal does not have rules or practice directions dealing with how interlocutory applications are to be made. There is no equivalent to ord 59 of the Rules of the Supreme Court 1971 (WA) (or its equivalent in the Federal Court) regulating how applications are to be made, or the form that is to be used in such applications. While there are tribunal forms for certain applications (e.g. request for stay order, application to be made a party, application for extension of time) there is no form for an interlocutory application by a party equivalent to a chamber summons or motion before a court. In accordance with the requirements of the AAT Act for proceedings to be fair, just, economical, informal and quick,[18] and to be conducted with little formality and technicality,[19] the Tribunal treats correspondence such as that from the Respondent’s lawyers of 2 August 2021 (see [20] above) as an application.
[18] AAT Act s 2A(b).
[19] AAT Act s 33(1)(b).
There is no basis for the Applicant’s claim that it is a “fundamental of civil procedure” that there must be some “proper interlocutory application supported by an affidavit.” Firstly, the Tribunal is undertaking an administrative function, not a judicial function: Shi v Migration Agents Registration Authority[20] at [35] per Downes J. Secondly, what is required is that the parties are afforded procedural fairness,[21] which requires each of the parties to be given appropriate opportunity to make submissions.[22] In the present case, the Applicant was given the opportunity to provide further evidence and make written submissions, which she did (see [21] above). She also made oral submissions at the hearing through Mr Lourey. I am satisfied that the Applicant was afforded procedural fairness.
[20] [2007] FCAFC 59; (2007) 158 FCR 525.
[21] AAT Act s 39.
[22] Minister for Immigration and Border Protection v WZARH [2015] HCA 40; (2015) 256 CLR 326.
In the absence of any form or practice direction prescribing how applications such as the Respondent’s application for dismissal of the proceedings under s 42B are to be made, it is not clear how Mr Lourey would have such applications be made. The email dated 2 August 2021 from the Respondent’s lawyers was unequivocal as to what was sought and any doubt as to the nature of what was sought was addressed by the directions, the filing of evidence and written submissions and by the hearing on 8 September 2021.
I reject the Applicant’s submission that the application for dismissal was not properly brought.
THE PARTIES’ SUBMISSIONS
Applicant
The Applicant’s written submissions filed on 6 September 2021 were to the following effect:
(a)Given the Respondent’s approach, the Applicant had no choice but to pursue the Tribunal proceedings. Up until about 30 June 2021 the Respondent had maintained its position in the reviewable decision of 16 February 2021 which affirmed the determination.
(b)In late June or early July 2021, the Respondent acknowledged the merits of the Applicant's position and agreed to cease the existing Return to Work Programs and replace them with “a proper” Return to Work Program as contemplated by s 37 of the SRC Act.
(c)The new program, in effect, gave the Applicant what she had sought in the Tribunal review.
(d)In those circumstances the appropriate course would have been for the Respondent to consent to orders being made in these proceedings in terms of the new program and for the Respondent to agree to pay the Applicant’s costs of the proceedings under s 67 of the SRC Act.
(e)The Applicant has been trying since mid-June 2021 to have the Respondent agree to a decision in terms of (d) above.
(f)Strictly read, s 42B of the AAT Act only applies when an application is first lodged with the Tribunal. Notwithstanding, the Applicant notes the views of the Tribunal regarding that section in the decision of Flahive which is incorrect.
(g)In fact, Flahive is clearly authority for a common-sense approach to be taken by the Tribunal to a matter before it which is “... devoid of any practical effect.” Flahive is not authority for the proposition that as soon as a Respondent “caves in” and accepts the error of their ways, that an existing application before the Tribunal automatically becomes vexatious. This is not the ratio of the decision of Williams and Australian Electoral Commission.[23]
(h)Further, the facts of Flahive are the complete opposite of the facts in this matter and it is the Respondent who has refused to work with the Applicant in agreeing common-sense orders under s 42C of the AAT Act.
(i)If the Applicant is successful in convincing the Tribunal that the above orders are appropriate, she seeks costs up until the present given the conduct of the Respondent and/ or its solicitors since in or about June 2021 to the present, or alternatively seeks costs up to on or about 30 June 2021.
(j)The appropriate orders are:
(i)the determinations of 18 December and/or 24 December 2020 be set aside and the matter be remitted to the original decision maker for further reconsideration; and
(ii)the Respondent pay the Applicant's costs of the applications pursuant to s 67 of the SRC Act 1988; and (if required)
(iii)the applications be otherwise dismissed.
[23] [1995] AATA 160; (1995) 38 ALD 366.
Respondent
The Respondent’s written submissions filed on 17 August 2021 were to the following effect:
(a)The powers of the Tribunal under s 43(1) of the AAT Act are powers for the purpose of reviewing the reviewable decision, not powers that may be exercised at large.[24]
(b)The Tribunal’s jurisdiction in relation to this application is limited to reviewing plans which have now expired. In accordance with the decision in Lees, the Tribunal has no jurisdiction to review the current plan which has not been the subject of a reviewable decision.
(c)The Tribunal is therefore left in a situation where it is asked to make changes to two plans which are no longer in existence and therefore there is no longer any practical purpose proceeding with this review.
(d)The applications should be dismissed because they have become frivolous or vexatious.[25]
(e)The applications, whilst not instituted vexatiously, have now become vexatious as there is no practical purpose in the Tribunal retrospectively changing the language used in a plan which has now ceased to exist.
(f)Any change to the wording of the expired plan, including the requested change to the wording of the goal of the plan, would not be a decision that is more favourable to the Applicant, because the change would have no practical effect. This is because any change to the expired plan would not provide any benefit to the Applicant and no additional rehabilitation would be available, nor would there be any additional compensation payable.
[24] Citing Lees at [39].
[25] Citing Flahive at [16]–[18].
CONSIDERATION
At the hearing Mr Lourey succinctly described the Applicant’s position as follows:
The program that is now being developed by the parties is directed towards that goal, so my client’s approach to this is that the subject matter of her application has indeed fallen away because the respondent is giving her, or is in the process of giving her what she has sought from the outset, which is a program with the content consistent of returning her to that pre injury role.
My friend made submissions in relation to this not being a reconsideration of its own motion. One can easily understand why the [R]espondent would choose to characterise it as such, but the point is, sir, the application was necessary to get the respondent to focus on the issues that my client was agitating, which is, (1), a goal of the return to work program; and (2), activities in a program consistent with the achievement of that goal.
Now, with the changes taking effect and the development of content particular to that goal, the subject matter of the application as brought did fall away, but what this boils down to is, it’s about costs. My client met the costs. My client has sought legal assistance to effect the change in what was happening on the ground that she desired, and she’s been successful with that. The characterisation of the matter in the way my friend’s client’s chosen to do through my friend’s submissions, my client disagrees vehemently, sir. She should not be deprived of her costs of this application on the basis of anything that’s now claimed by the [R]espondent.[26]
[26] transcript at 10.
Neither party was able to refer me to any authority which dealt with the present factual scenario and I was similarly unable to find one. I understand the position in which the Applicant finds herself. The rehabilitation program issued by the Respondent on 24 December 2020 (affirmed on review on 16 February 2021) did not give the Applicant what she had sought. It was, therefore, understandable and appropriate that the Applicant sought review by the Tribunal of that program in March 2021.
However, as Mr Lourey put it, under the new program the Applicant received and receives that which she sought by way of the review by the Tribunal and, as a result, “the subject matter of the application as brought did fall away”. The only live issue is the question of costs. There are, relevantly, three subsections of the SRC Act dealing with costs. They are sub-ss 67(1), (2) and (8) which are as follows:
(1) Subject to this section, the costs incurred by a party to proceedings instituted under this Part in respect of that reviewable decision shall be borne by that party.
(2) Subject to this section, where a proceeding instituted under this Part in respect of a reviewable decision relating to a determination is rendered abortive because a decision has been made, following a reconsideration under subsection 62(1), varying or revoking that determination, the responsible authority is liable to reimburse the claimant for costs reasonably incurred by the claimant in connection with that proceeding.
…
(8) Where, in any proceedings instituted by the claimant, the Administrative Appeals Tribunal makes a decision:
(a) varying a reviewable decision in a manner favourable to the claimant; or
(b) setting aside a reviewable decision and making a decision in substitution for the reviewable decision that is more favourable to the claimant than the reviewable decision;
the Tribunal may, subject to this section, order that the costs of those proceedings incurred by the claimant, or a part of those costs, shall be paid by the responsible authority.
I put to Mr Lourey that the current factual circumstances did not come within the operation of either of sub-ss 67(2) or (8). In response Mr Lourey submitted as follows:
We don’t agree with that, sir. Certainly section 67(8), there is no - the [T]ribunal has not made a decision to vary because it’s been cut off from considering what to do at the pass, if you like, by the [R]espondent’s action in giving the [A]pplicant what she wanted, which is a program in accordance with her original goal, and it’s the core goal of any return to work program. It’s inherent and explicit in the legislative scheme return to pre injury duties, and that’s all the worker here, my client has sought from the outset.
But what we say, sir, is that subsection (2) does enliven the [T]ribunal because simply put the proceeding instituted in respect of the reviewable decision has been rendered abortive because a decision has been made. The connection between the decision that’s been made, which my friend describes as something that’s occurred completely independently of these proceedings. That’s something we’d require some convincing of, sir.
…
It’s enough that the reviewable decision is rendered abortive. The proceedings were properly instituted, and it can’t be the case, and I appreciate you do, sir, describe the inadequacies of the legislation, but it cannot be the case that the circumstances can be reduced to the manner in which the [R]espondent characterises them here.
…
There’s no basis at all, sir, for my client to be seeking a reconsideration of the determination that took effect from early July, it’s what she wanted.
…
She can’t be deprived of her costs of the proceedings that brought her to that point.[27]
[27] transcript at 12–13.
As I pointed out to Mr Lourey, while I have sympathy for the Applicant, it is not a question of the Applicant being “deprived of her costs”, it is a question of what power the Tribunal has under the legislation. As is made clear by the AAT Act s 25, the Tribunal’s sole source of jurisdiction and power is the applicable legislation.[28] Section 67 constitutes a code in the area of costs under the SRC Act.[29]
[28] AAT Act s 25; see also Drake v Minister for Immigration and Ethnic Affairs (1979) 46 FLR 406, 414, 420.
[29] Riley v Commission for the Safety, Rehabilitation and Compensation of Commonwealth Employees (1994) 48 FCR 449 per Beaumont J; applied in Perry v Comcare [2006] FCA 33 at [65].
There are two problems with the Applicant’s argument in relation to the application of s 67(2). The first is that the facts of the present case do not enliven s 67(2). The Applicant argues that the section is enlivened “because, simply put, the proceeding instituted in respect of the reviewable decision has been rendered abortive because a decision has been made” (see [33] above). Section 67(2), however, specifies that the proceeding for the review must be rendered abortive “following a reconsideration under subsection 62(1), varying or revoking the determination” (see [32] above). That was simply not what happened in the present case. The decision the subject of the Tribunal’s review is the program issued by the Respondent on 24 December 2020. That was not revoked or varied by a reconsideration under s 62(1). The program of which review is sought came to an end on 30 June 2021[30] and the Applicant signed a Rehabilitation Program Closure Record form on 3 July 2021.[31]
[30] T29/150.
[31] Respondent’s dismissal submissions, Annexure C.
The decision under review was rendered abortive, not because of a “reconsideration under s 62(1)” as required by s 67(2), but because the program under review came to an end and the new program provides what the Applicant has sought. Section 67(2) is not enlivened.
The second problem with the Applicant’s argument in relation to s 67(2) is that that section does not empower the Tribunal to make an order for costs. The liability for “the payment of costs follows automatically by operation of s 67(2).”[32] It is not up to the Tribunal, and the Tribunal has no relevant power, to make an order for costs under s 67(2).
[32] Greczanik and Australian Postal Corporation [1994] AATA 160 at [9].
As noted above, the other section under which the Tribunal would potentially have power to award costs is s 67(8). However, as Mr Lourey correctly observed, “the [T]ribunal has not made a decision to vary because it’s been cut off from considering what to do at the pass, if you like, by the respondent’s action” (see [33] above). I do not necessarily agree with Mr Lourey’s characterisation of the Respondent’s action of providing the new program after the expiration of the previous program giving the Applicant what she seeks, as “cutting off the Applicant at the pass”. It is, however, the case that, for all practical purposes, again as Mr Lourey put it, “the subject matter of the application as brought [has fallen] away” (see [30] above).
The issue, therefore, is whether there is any practical purpose in a decision on the application being made.[33] I noted in Flahive the comments of Finn and Sundberg JJ at [16] of Fearnley v Australian Fisheries Management Authority,[34] citing the following passage from Williams:
In this case the outcome of the proceedings, whether successful to the applicant or otherwise will be devoid of any practical effect ... The interest which gave the applicant standing to commence the proceedings has long ceased to exist. He has no legitimate interest in pursuing them further. Accordingly, in our opinion, while the proceedings were not instituted vexatiously, they have become vexatious.
[33] Flahive at [17].
[34] [2006] FCAFC 3; (2006) 94 ALD 519.
The same comment can be made in respect of the current proceedings. There is no suggestion that the application was not well-founded or that it did not have a proper basis when made. As in Williams, however, subsequent events have, as Mr Lourey put it, caused the subject matter of the proceedings to fall away and rendered the proceedings abortive. Unfortunately for the Applicant, the circumstances which have caused that to happen do not come within the relevant costs provisions of the SRC Act, in this case, sub-ss 67(2) and (8).
In Flahive I did refer to possible discretionary costs orders being relevant when considering whether there was any utility in proceedings being continued. The power to order costs under s 67(8), however, is dependent on there being a decision favourable to the applicant in the proceedings. In circumstances where the subject matter or purpose of the proceedings has, in effect, fallen away, there would be no substantive decision that the Tribunal could make that would trigger a discretion to make a costs order in favour of the Applicant.
It is appropriate in the present case to dismiss the applications under s 42B(1) because no practical purpose would be served by a successful review of the decisions the subject of the applications. The Applicant is, by virtue of the new program, already receiving what she would receive if she were successful in the applications.
DECISION
Pursuant to s 42B(1)(a) of the AAT Act, the applications are dismissed.
I certify that the preceding 43 (forty-three) paragraphs are a true copy of the reasons for the decision herein of Deputy President Boyle
...[SGD].....................................................................
Associate
Dated: 25 November 2021
Date of hearing: 8 September 2021 Counsel for the Applicant: Mr M Lourey Solicitors for the Applicant: Chapmans Barristers & Solicitors Counsel for the Respondent: Mr A Burgess Solicitors for the Respondent: Sparke Helmore Lawyers
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