Lower and Comcare - [2003] AATA 540

CATCHWORDS – PRACTICE AND PROCEDURE –

whether power to consider application to reinstate application withdrawn by applicant and purported to have been dismissed by Tribunal – whether bound by Federal Court’s judgement remitting matter to the Tribunal that s. 42A(10) has no application – whether obiter dicta or ratio decidendi – if not bound, whether Tribunal has power – whether the Tribunal should refer questions of law raised to the Federal Court – application refused.

Administrative Appeals Tribunal Act 1975 ss. 29(7), 42A, 42A(1), 42A(1A), 42A(1B), 42A(2), 42A(10), 42B, 42C, 42D, 43 and 45.

Lower v Comcare [2002] 36 AAR 220
Re Queensland Nickel Management Pty Ltd and Great Barrier Reef Marine Park Authority (1992) 16 AAR 319
Schramm and Repatriation Commission (1998) 54 ALD 501
Brehoi v Minister for Immigration and Multicultural Affairs (1999) 58 ALD 385
Goldie v Minister for Immigration and Multicultural Affairs (2002) 36 AAR 238
Collector of Customs v Brian Lawlor Automotive Pty Ltd (1979) 24 ALR 307

Hospital Benefit Fund of Western Australia Inc v Minister for Health, Housing and Community Services (1992) 39 FCR 225
Re Zimmax Trading Co Pty Ltd and Collector of Customs, New South Wales (1979) 2 ALD 120

Re Davina and Defence Force Retirement and Death Benefits Authority (1996) 43 ALD 761
Mitchell v Noble (1981) 7 NTR 19

DECISION AND REASONS FOR DECISION [2003] AATA 540

ADMINISTRATIVE APPEALS TRIBUNAL     )
  )          S2002/435
GENERAL ADMINISTRATIVE DIVISION     )

Re KEVIN BERTRAM LOWER

Applicant

And COMCARE

Respondent

DECISION

Tribunal:                   Miss S A Forgie (Deputy President)
Date:  6 June, 2003
Place:  Adelaide

Decision:The Tribunal refuses to reinstate the applicant’s application for review dated 29 November, 1991.

S A FORGIE
Deputy President

REASONS FOR DECISION

On 29 November, 1991, the applicant, Mr Bertram Lower, applied for review of a reviewable decision of a delegate of the respondent, Comcare, dated 27 September, 1991. In that decision, Comcare affirmed an earlier decision, which was dated 14 May, 1991 and which disallowed Mr Lower’s claim for compensation in respect of a work related stress syndrome. On 17 August, 1992, Mr Lower signed a document instructing his then solicitors

“… to withdraw my application before the Administrative Appeals Tribunal which has been set down for a hearing on Monday 17 August 1992, on the basis that I am unable to afford their services and I do not wish to conduct the hearing of the matter myself.”

A differently constituted Tribunal then dismissed Mr Lower’s application for review of Comcare’s reviewable decision in the following terms:

“The parties to this application for review having consented, it is directed, pursuant to section 42A(1) of the Administrative Appeals Tribunal Act, 1975, that the application be dismissed.”

On 29 February, 2000, Mr Lower applied for a reinstatement of his application pursuant to s. 42A(10) of the Administrative Appeals Tribunal Act 1975 (“AAT Act”). A differently constituted Tribunal refused the application on the basis that the decision had not been dismissed in error and…

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.

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Details

Case: [2003] AATA 540
Decision Date: 6 June 2003

CaseChat Overview and Summary

In Lower and Comcare, the applicant, Mr. Bertram Lower, sought reinstatement of his application for review of a decision made by Comcare, which had previously dismissed his claim for compensation in respect of a work-related stress syndrome. The application had been withdrawn by Mr. Lower, leading to its dismissal by the Tribunal. The Federal Court had previously remitted the matter to the Tribunal for determination in accordance with the law. The issues before the Tribunal were whether it was bound by the Federal Court's judgment, whether it had the power to reinstate the application under s. 42A(10) of the Administrative Appeals Tribunal Act 1975, and whether it should refer questions of law to the Federal Court. The Tribunal found that it was bound by the Federal Court's judgment and did not have the power to reinstate the application. It also determined that it was not an appropriate case to refer questions of law to the Federal Court. Consequently, the Tribunal refused to reinstate the applicant's application for review.

Orders