Lopez Applicant And Optus Administration

[2010] AATA 286

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2010] AATA 286

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No 2009/1383

GENERAL ADMINISTRATIVE  DIVISION		)
Re		Romeo Lopez

Applicant

And Optus Administration

Respondent

DECISION

Tribunal Senior Member A K Britton

Date29 March 2010

PlaceSydney

Decision Pursuant to s 42A(5) of the Administrative Appeals Tribunal Act 1975, the Tribunal dismisses the application.

.......................[SGD].................

Senior Member

CATCHWORDS

PRACTICE AND PROCEDURE – failure within reasonable time to proceed with application.

Administrative Appeals Tribunal Act 1975 – s 42A(5)

REASONS FOR DECISION

29 March 2010 Senior Member A K Britton           

1.      The history of this application, once made to the AAT, is one of continual non-compliance on the part of Mr Lopez.  The substantive application concerns a reviewable decision made on 6 February 2009 which was to the effect that the respondent was not liable to pay compensation in respect of alleged injuries sustained by Mr Lopez.

2.      On 1 July 2009, the respondent wrote to Mr Lopez and advised that his entitlement — I presume “future entitlement” — to compensation had been suspended due to his repeated failure to attend medical examinations arranged by the respondent.  After that date, the respondent took steps for Mr Lopez to see Drs Dalton and Maxwell.  After one missed appointment, Mr Lopez attended an appointment with Dr Maxwell.  Two appointments were scheduled with Dr Dalton.  Mr Lopez attended none.

3. On 16 November of last year the District Registrar of the Tribunal wrote to Mr Lopez and advised that the AAT could not continue to determine his application for review given his repeated failure to attend medical examinations arranged by the respondent: s 57(2) of the Safety, Rehabilitation and Compensation Act 1988. Mr Lopez was invited to provide an explanation for his failure to attend these examinations but failed to do so. The Registrar also advised Mr Lopez that his application may be dismissed without proceeding to review, in the event that he failed to provide the Tribunal with a reasonable explanation for his non-compliance and/or nothing further had occurred in relation to his application within three months. The applicant did not reply to that letter.

4.      The Tribunal subsequently wrote to Mr Lopez on 10 March of this year advising that his matter had been listed for today and that the Tribunal would consider dismissing his application for review.  He was invited to put any submissions he might wish to make in writing and to attend today’s proceedings.  He did neither.  Over four months have now passed since the Tribunal first put Mr Lopez on notice that his application may be dismissed.  He was reminded, in the Registrar’s letter of 10 March that the Tribunal would be deciding today whether his application should be dismissed.

5. Mr Lopez has provided no explanation for his non-attendance today, and has not contacted the Tribunal. In my view, s 42A(5) of the Administrative Appeals Tribunal Act 1975 is clearly satisfied in that Mr Lopez has failed within a reasonable time to proceed with his substantive application for review.  In my view the history of non-compliance on the part of Mr Lopez together with his failure to take any steps to progress his application for over five months, warrants the exercise of the power to dismiss his application and for that reason, I do so.

I certify that the 5 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member A K Britton.

Signed:         ...................................[SGD]...........................................
  Associate to Senior Member Britton

Date of Hearing:  29 March 2010
Date of Decision:  29 March 2010
Date of Publication of Reasons:                22 April 2010
The Applicant failed to appear.
Representative for the Respondent:         Mr B Kelly

(instructed by Curwoods Lawyers)