Lower and Comcare
[2001] AATA 703
•6 August 2001
DECISION AND REASONS FOR DECISION [2001] AATA 703
ADMINISTRATIVE APPEALS TRIBUNAL )
) No S1991/279
GENERAL ADMINISTRATIVE DIVISION )
Re KEVIN BERTRAM LOWER
Applicant
And COMCARE
Respondent
DECISION
Tribunal Miss WJF Purcell (Senior Member)
Date6 August 2001
PlaceAdelaide
Decision The Tribunal refuses to reinstate the application dismissed by this Tribunal, by consent, on 17 August 1992.
(Signed)
WJF PURCELL
(Senior Member)
CATCHWORDS
PRACTICE AND PROCEDURE – application for reinstatement of application dismissed by consent – whether dismissed in error – whether Tribunal has discretion – nature of discretion
Administrative Appeals Tribunal Act 1975 s29, 42A
Re Schramm and Repatriation Commission (AAT 797, 12 October 1998)
Re McKenzie and Secretary, Department of Social Security (AAT 13187, 30 July 1998)
Hunter Valley Developments Pty Ltd v Minister for Home Affairs and Environment (1984) 58 ALR 305
REASONS FOR DECISION
6 August 2001 Miss WJF Purcell (Senior Member)
This is an application, dated 29 February 2000, for reinstatement of an application for review of a decision of Comcare dated 27 September 1991, which affirmed a determination dated 14 May 1991 disallowing the applicant's claim for compensation in respect of a work related stress syndrome. On 17 August 1992, the Tribunal made a decision, by consent, dismissing the application.
The documents lodged in the 1991 application, pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 (the T Documents), were before the Tribunal, with some additional documents and exhibits tendered by the parties. The applicant, who gave oral evidence, was represented by Ms Atherton from the Community and Public Sector Union (the Union) and called his treating psychiatrist Dr Ford, as a witness. Ms K Bean, Australian Government Solicitor, appeared for the respondent (Comcare).
In its letter of 7 March 2000, in support of the application, the Union stated in part as follows:
"It has recently come to Mr Lower's attention that critical documentation relating to the circumstances surrounding his injury were not included in the T-Documents and may not have been considered by Comcare in their original determination. These documents are an individual selection report and the summary of the Joint Selection Committee report. A copy of these documents is attached. Mr Lower's claim was for an injury arising from a decision to compulsorily transfer him to a position he had just been rated as unsuitable for by that JSC.
It is our assertion that the content of these reports, the manner in which they were delivered, the admitted lack of any formal performance counselling prior to them being issued, combined with the subsequent decision to compulsorily transfer Mr Lower to the same position he had been brutally advised he would never be suitable for, clearly demonstrates mis-management by the employer. As such the injury arising out [of] these actions is compensable and can not be avoided through use of the exclusionary provision of the SRC Act 1988.
We believe that the provision of this additional documentation further strengthens Mr Lower's claim and it would be a denial of natural justice for it not be reconsidered in light of this material. Accordingly we seek the reinstatement of Mr Lower's application for review of his rejected Comcare claim pursuant to s42A(1), sub-sections (9) and (10) of the Administrative Appeals [Tribunal] Act 1975."
On 29 August 2000, the Union forwarded to the Tribunal a copy of its letter of the same date, to the Australian Government Solicitor, which read in part as follows:
"'In addition to the reasons put forward in that letter we also submit that it is appropriate for the AAT to reinstate Mr Lower's application because at the time of the consent order Mr Lower was unable to give informed consent due to his mental illness. The extent and nature of his injury has, until recently, prevented him from being able to either fully comprehend the status of this matter or pursue the claim.
As agreed I have also enclosed for your consideration prior to Thursday's Directions Hearing a statement from Mr Lower and a summary of events relating to the period between the consent order and his application being lodged."On 14 November 2000, Ms Ware, Australian Government Solicitor, lodged an affidavit in which she deposed to perusing her client's file in relation to this matter, and discovering that copies of both the documents referred to in the Union's letter of 7 March 2000 had been forwarded to the Australian Government Solicitor by the applicant's then solicitors, by letter dated 30 June 1992; and were part of the documentation in Comcare's possession prior to the consent decision of 17 August 1992.
On 11 December 2000, the applicant lodged a Statement of Facts and Contentions in which he set out further reasons in support of his application for reinstatement. He contended that the application was dismissed in error, and should be reinstated in accordance with sub-section 42A(10) of the Administrative Appeals Tribunal Act 1975 (the Act) for the following reasons:
"iThe consent order arose out of a late withdrawal of services by Mr Lower's representatives and at the time he was in no position to represent himself or in a psychological state to fully understand what was happening;
iiAt the time the consent order was issued Mr Lower believed he would be able to have the matter considered at a later time and did not know the order as such may be a permanent discontinuance of the matter;
iiiMr Lower's injury is such that he has not been able to fully understand or systematically pursue this matter in the intervening period;
iv Mr Lower has always believed the matter to be very much alive;
vMr Lower is still an employee of the Bureau of Meteorology and sufficient records exist for all parties not to be prejudiced by the re-listing of this application;
vi The merits of Mr Lower's initial application are strong; and
viiIt would be a denial of natural justice if Mr Lower was not able to have his original application fully considered in light of his lack of genuine consent to the dismissal order."
Section 42A of the Act as far as is relevant for the purposes of this application provides:
"Power of Tribunal to dismiss application or strike out party
42A. (1) Where all the parties to an application before the Tribunal for a review of a decision consent, the Tribunal may dismiss the application without proceeding to review the decision or, if the Tribunal has commenced to review the decision, without completing the review.
(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.
(1B) If notification is so given, the Tribunal is taken to have dismissed the application without proceeding to review the decision.(2) If a party to a proceeding before the Tribunal in respect of an application for the review of a decision (not being the person who made the decision) fails either to appear in person or to appear by a representative at a directions hearing, a conference mentioned in section 34, or a mediation under section 34A, held in relation to the application, or at the hearing of the proceeding, the Tribunal may:
(a) if the person who failed to appear is the applicant - dismiss the application without proceeding to review the decision; or
(b) in any other case - direct that the person who failed to appear shall cease to be a party to the proceeding.
(3) For the purposes of subsection (2), a person is taken to appear in person or by a representative at a directions hearing, conference, mediation or hearing of a proceeding if the person or the person's representative, as the case may be, participates in it by a means allowed under section 35A.
…(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 or on its own initiative, reinstate the application and give such directions as appear to it to be appropriate in the circumstances."
The applicant gave oral evidence, and tendered a signed statement dated 29 August 2000 (Exhibit A1). He detailed his employment at the Bureau of Meteorology (the Bureau) from 1971 onwards. He was initially a trainee observer. He was interviewed for promotion to an Observer Grade 2 position in May 1990. The Joint Selection Committee advised him at the time that he was not suitable for promotion to that position, and he was provided with a copy of its report dated 28 May 1990, which reads, in part:
"Criterion 7
Supervisors report poor. Although overall probably indicating unacceptable level of performance, generally rated as adequate. Referee nominated does not disagree with supervisors assessment.
Criterion 8
All reports indicate significant lack of commitment to the job and co-operation. If only on this basis, Mr Lower must be considered unsuitable for promotion as Obs Gr2.
Summary Comments
Overall unsuitable.
PS. The JSC gave full benefit of the doubt to Mr Lower in accepting that he was genuinely an applicant."The applicant said in evidence that he was concerned about the contents of the Joint Selection Committee report, and referee reports, and asked that they be removed from his file. He was advised that this could not be done. In about July 1990 he was asked to take up a relief Observer Grade 2 position in Ceduna, but declined because of his concerns over the recent assessment of his unsuitability for the work. He said in evidence that he has not returned to work at the Bureau since 24 July 1990, and has been incapacitated for work since that time as a result of the stress related injury which has been diagnosed as "major depression and panic disorder". He lodged a claim for compensation on 15 December 1990, which was rejected on 14 May 1991.
The applicant said in evidence that at about the time of the original Tribunal Hearing listed for 17 August 1992, he could not afford to pay his lawyer, and was in no mental state to represent himself. He said that he had received a letter from his solicitor which was sent on 13 August 1992. On 14 August 1992 he had a telephone conversation with his solicitor as a result of which he understood that the solicitors were waiting for his instructions on the future progress of the matter. The Union had decided not to provide any further funding and he would be liable for his own costs.
The applicant gave evidence that on the day of the Tribunal Hearing, he attended his solicitor's office and was informed that his solicitor would no longer be involved in the matter, and would not attend the Tribunal with him, so he would have to apply, himself, for an adjournment. He said that he felt that he could not attend the Hearing by himself, and was given a withdrawal form to sign. He said that given his then state of mind, he just signed the form, but believed that the issue was still going to be alive, and that he would have to try to come back to the Tribunal when he was in a better position and could handle it. In relation to his understanding of the meaning of the words "adjourned", "dismissed" or "withdrawn", the applicant said in evidence that he had not really thought about the distinction between the words. All he could think about at the time was that he could not go on.
The applicant gave evidence that in 1996 he spoke to a solicitor from a private law firm about pursuing the matter further, but nothing happened for approximately 18 months. He spoke to lawyers from another firm of solicitors at one stage, but the matter did not progress any further with them. He also approached the Union in 1996, and made a second approach in 1999. He said also that in about 1997 he approached Comcare, and was informed that the matter was concluded, and he would need to make further application to the Tribunal. He attended then at the Tribunal, and was informed that he needed to make an application, and was provided with some forms. The applicant in cross-examination, said that he did not make his second approach to the Union earlier, because solicitors were handling the case. He agreed that there were periods where he did not pursue his claim, but said that his medical disability restricted him in his ability to pursue the claim.
On the applicant's evidence, he has never abandoned his assertion that the interview report was wrong, and that he wants someone, therefore, to tell the Bureau that the report must have been wrong, when subsequently, his supervisor wanted to send him to Ceduna to perform 100% of the same duties. Although the Bureau says that it will not retract the report, because it considers that the applicant would use that against it, he is convinced that the Tribunal will find, after hearing the evidence, that the report was unfair; that he reacted to the report; and that this reaction is part of his medical condition which persists until the present. He believes, in those circumstances, the Tribunal will be telling the Bureau that its judgment was wrong; and someone from Comcare will be responsible then for rehabilitating him, so that he can return to work in the Bureau. He said in evidence that he has been looking for another party to help him; he cannot do this alone; and with the help of the Union he is trying to do something about this, instead of the current situation where the Bureau is just waiting for him to resign. This is something he really does not want to do. He is seeking favourable consideration and rehabilitation.
An examination of the documentary evidence discloses that despite Comcare's denial of his claim for compensation and rehabilitation, the applicant has continued to pursue his stated goals of gaining rehabilitation and work at the Bureau, and retraction of the unfavourable interview report. Rehabilitation has been attempted, unsuccessfully, on several occasions over the intervening years, and he has received considerable support and assistance from the Commonwealth Rehabilitation Service.
In 1994, the applicant applied to Comsuper for invalidity retirement. The application was rejected on the basis that he possessed a residual capacity for work. He was referred by Comsuper to the Commonwealth Rehabilitation Service in October 1995. In October 1996 Mr Upsdell, Vocation Rehabilitation Counsellor, wrote to Mr Boardman, the Bureau's personnel manager, in the following terms:
"I am writing to inform you that I have been unable to arrange a return to work for Kevin and I am of the opinion that further involvement by myself will not assist the process. As you know, Kevin was referred to us in October 1995 to establish whether a return to work was practicable. The process has taken some time due to the complexity of the issues involved. My intention has been to negotiate a return to work under conditions that would be acceptable to both parties. As a result of the discussion that has occurred, the crucial issue as I perceive it is the issue of the acceptance of the workers compensation claim filed by Kevin 5 years ago, not supported by the Bureau, and subsequently rejected by Comcare. Kevin's position is that he is unable to consider a return to work unless the claim is accepted albeit in a symbolic manner. I understand that while the acceptance of the claim is the responsibility of Comcare and requires appeal to the Administrative Appeals Tribunal to be changed, even a symbolic acceptance of the claim would not be supported by the Bureau. Hence Kevin's position is not going to be accomodated (sic) and there is a clear impasse which prevents a resolution of the matter unless it can be resolved. Hence I believe that a return to work at the Bureau is not practicable as things stand at present. In my opinion, further negotiation is not likely to assist resolution of the case."
Dr Davis, psychiatrist, reported to Dr Gormly of Health Services Australia on 26 November 1996, in part, as follows:
"While I consider that Mr. Lower is unable to return to work in the Bureau of Meteorology, essentially because of the stand he has taken against his employer, I am not convinced that he is totally and permanently incapacitated for work of any sort. He does not have a disabling psychiatric condition, and thereby it cannot be argued that he has an on-going incapacity for work because of chronic mental illness. I consider that his personality disorder is the over-riding factor in his work related difficulties. However, I consider that he has the retained capacity to be educated or trained to undertake other work, outside of the Bureau of Meteorology.
In the end, I consider that Mr. Lower will have to make a choice whether or not he wants to pursue this course of action."On 13 January 1997, the applicant's case was re-submitted to the Comsuper Assessment Panel for consideration. The Panel once again recommended that the application be declined. The Panel's recommendation dated 30 January 1997, reads in part as follows:
"Dr AT Davis independent psychiatrist states that he is "not convinced that he is totally and permanently incapacitated for work of any sort" and "does not have a disabling condition". Dr Ford does not believe he is totally incapacitated for work.
Of course the Bureau of Meteorology would like to get rid of Mr Lower and would like his application to succeed on grounds of "practicality". However, the Panel is charged to recommend an invalidity only and the fact of the matter is that Mr Lower does not qualify as totally and permanently incapacitated".
We again recommend that the application for issue of Invalidity Retirement Certificate be declined."The applicant's case was referred by Comsuper to the PSS Board for consideration. On 6 March 1997, the Board decided not to approve the applicant's retirement on the ground of invalidity, and suggested that the applicant contact the Bureau's personnel officer concerning his future employment with the Bureau.
On 25 May 1998, Mr Boardman from the Bureau referred the applicant again to Dr Long of Health Services Australia, for assessment regarding his fitness for duty as an Observer with the Bureau. Dr Long reported on 24 June 1998 that he understood that the applicant's case was currently under review because of restructuring in the Bureau, and that his prospects for a return to work in the foreseeable future needed to be established. Dr Long's report reads in part:
"Summary and Opinion:
This man has a history of significant anxiety and depression spanning many years. Although his symptoms have improved considerably with treatment and the passage of time and removal from the work place, he remains very angry about events of the early 1990s such that he seems still unable to consider a fresh start back at work even if his employer were willing to do so. The intensity of his emotions is such that I do not foresee his ever returning to work with the Bureau of Meteorology, now or in the future. I note from your referral letter that any return to observer work would require an initial period in Adelaide prior to undertaking extensive retraining in Melbourne. As already stated however he is unwilling and I believe unable to return to the Bureau of Meteorology at this time and hence his capacity to comply with these specific requirements is not relevant.
I note that he reports to be functioning satisfactorily in most other aspects of his life at this time in that he is living independently as a boarder and apparently has a circle of friends with whom he socialises regularly. He is also cycling and walking for exercise. He may therefore retain a capacity to enter into alternative employment, which does not require interaction with the Bureau of Meteorology if ties could be severed with that organisation. In any case I certainly would not see his resuming duty with your organisation in less than 6 months and doubt that this will ever be an option even in the distant future.
Thank you again for referring Mr Lower for assessment. I trust this is the information you require. I confirm that I have now had the opportunity to speak with his specialist Dr Ford prior to completion of this report."
The applicant's most recent contact with the Bureau, as recorded in the documents, is Mr Boardman's letter dated 9 February 1999, which informs the applicant of an unusual one-off Agreement Certification Bonus resulting from negotiations for salary increases. Mr Boardman advised that staff on sick leave without pay were eligible for payment of the bonus, which would be paid into the applicant's bank account. The applicant remains an employee of the Bureau and has been on continuous sick leave since mid 1990, and on sick leave without pay since November 1991. He has been a recipient of a Social Security Disability Support Pension since 1991.
The applicant called Dr Ford, who has been his treating psychiatrist since November 1990, who said in evidence that the applicant is suffering from a "generalised anxiety disillusion, a panic disorder", with episodes of major depression from time to time. He said that at the time of the Tribunal Hearing of the 1991 application (in August 1992) the applicant was suffering from panic attacks and anxiety which worsened progressively from about the time that he began to head toward litigation again. Dr Ford considered that the applicant was suffering from a considerable level of depression; and in September 1992 Dezepramine was prescribed. As to the question of how the applicant was handling his own affairs, Dr Ford considered that he was handling things "fairly badly". He was bad tempered, and seemed much more despairing and hopeless. Dr Ford said that the applicant was "exhausted by the whole process … and overwhelmingly frightened of the process, frightened of revisiting it" (Transcript p.19). Dr Ford was referred to the correspondence to the applicant from his solicitors immediately prior to the Hearing in August 1992, and said:
"… Look, given what I know about Kevin's state of mind and, you know, his response to being let down I believe when he read that he would have exploded and had no intention or ability to contact them. Certainly when I have tried to, even mildly, confront or to express a different point of view Kevin has found that very difficult to accept which is one of the reasons I have been seeing him for some 10 years gradually working through those things so I don't think he would have been able to deal with it." (Transcript p.31)
Dr Ford said in evidence that from time to time over the years the applicant has become quite angry with him, blaming him for the failure of the claim. It has been a very complex matter, and the applicant's ability to coherently present his history, particularly in the first 3 or 4 years that Dr Ford knew him was really quite poor. His ability to structure what it was that was bothering him, was quite difficult. The claim has always been on the applicant's mind, and there has been a gradual improvement in his condition over the last 3 or 4 years. Dr Ford said that he has urged the applicant to consider moving on, leaving this distressing incident behind. He has not been able to do that. It has meant a lot to him, he has improved, and has begun to think about it again, and now resubmitted his application.
Dr Ford gave evidence that there has been a general improvement in the applicant's condition over the last 3 or 4 years. There have been less complaints of panic attacks, less interpersonal conflicts, where the applicant feeling rejection or criticism has become angry easily, and antagonised those with whom he enjoys social contact. These periods of disturbance Dr Ford anticipates, will become less severe and less frequent over time. There have been breaks in these episodes, periods of improvement when things had stabilised. He would have been capable of approaching the Union and reactivating the matter; but people often take some time between feeling well and feeling better, and then acting as if they were better or acting well. Some delay could be expected.
The applicant submits that there would be no prejudice to Comcare in reinstating the matter, as sufficient documentation is still available, as are the T Documents lodged in the earlier matter. The Bureau has its file, and the applicant is still an employee. He argues also that Dr Ford's evidence supports his assertion that he had an impairment of cognition at the time that the application was dismissed. He did not understand the implication of the document he was signing and the actions that were taking place, and he was unable to systematically pursue his claim after it had been dismissed. He made attempts to take some action on his claims, but because of his psychiatric condition was unable to see it through. In the applicant's mind he did not know how to have the matter re-opened, but that did not mean that it was closed for ever. He certainly has not, at any point, rested on his rights, and when he has been able, he has made attempts to pursue the matter. He maintains that the dismissal in 1992 can be negated, can be found to be an error of the Tribunal, as his lack of understanding negates the consent. He relies on Re Schramm and Repatriation Commission (AAT 797, 12 October 1998). He maintains also that the merits of his substantive case are sufficient to warrant the matter being reinstated.
Comcare argues that the Tribunal does not have the power to reinstate a matter pursuant to sub-section 42A(10) of the Act, where there was no error made by the Tribunal in dismissing the application. It relies on Re McKenzie and Secretary, Department of Social Security (AAT 13187, 30 July 1998). Dr Ford's evidence, it submits, stopped short of saying that there was impaired cognition on the applicant's part at the time of the withdrawal of the application. While the applicant's emotional response to various issues clouded his perception of things, it did not incapacitate him to the point that he was unable to comprehend what was going on around him. Being tired, exhausted and overwhelmed by the system does not make the applicant unique from other applicants who withdraw applications. This falls short of someone being unable to comprehend what is happening. Comcare submits, in addition, that the applicant had not demonstrated sufficient endeavour in pursuing his claim in the intervening eight years. He had taken some steps which were not followed through. He has not provided an acceptable explanation for the inordinate delay in reactivating the matter. The applicant's lack of action has prejudiced Comcare. If the matter were reinstated after eight years, it would be much more difficult to locate witnesses, and their recollection of events would be poorer than they would have been. Most significantly, Comcare has had no opportunity to have the applicant medically examined over the eight-year period.
In addition to their oral submissions, the parties provided lengthy and carefully prepared written submissions in relation to reinstatement, or alternatively a possible extension of time, which I have not outlined in detail in these Reasons. I have taken into account, however, each of the submissions in the course of my deliberations.
In this matter, the applicant has been consistent in his aims to have the unfavourable interview report of 28 May 1990 retracted and to attain an acknowledgment and acceptance of liability by Comcare, which would lead to rehabilitation and a return to work in the Bureau. It is now eleven years since the applicant last worked at the Bureau, and ten years since his claim for compensation was refused by Comcare. Dr Ford has been his treating psychiatrist for more than ten years. It appears in accordance with Dr Ford's assessment, the applicant has improved over the last three or four years, to the extent that he can now pursue his claim, the applicant has been unable to accept Dr Ford's advice, over many years, to abandon this unpleasant incident. If the applicant is unable to accept such advice from his treating psychiatrist, who has seen him regularly over the ten-year period, it is not surprising that he persists in the belief (some eight years after the event) that the consent dismissal in August 1992, did not have the effect of closing this chapter. His inability to accept the realities of the situation may well be an aspect of his illness, but it indicates that there has been little change in his condition and his perceptions over this ten to eleven year period. He remains convinced that the Tribunal will, somehow, force a retraction of the statements in the interview report and that rehabilitation and return to work will follow. This, despite two recorded unsuccessful attempts at rehabilitation.
The applicant, on all the evidence, continues to be incapacitated for work, and qualified for receipt of a Social Security Disability Support Pension. Attempts at rehabilitation have failed, and in the light of the last such attempt and report by Dr Long of 24 June 1998, it is clearly his opinion that the applicant will never return to work with the Bureau, although he may retain a capacity to enter into alternative employment which does not require interaction with the Bureau. That the applicant does not wish to sever his ties with the Bureau is obvious; and it is obvious also that he will persist in his convictions no matter what advice he receives. The question remains whether, in all the circumstances of the matter, the application for reinstatement should succeed. In the matter of Re McKenzie, Deputy President Forgie was examining a situation where the applicant had consented to dismissal of her application. In the course of her Reasons for Decision, the Deputy President said:
"32. … Parliament has chosen to adopt the passive voice in describing the application i.e. it refers to "an application ... dismissed in error" but makes no specific reference to the person by whom or body by which it has been dismissed. It seems clear, however, that the body by which it has been dismissed must be the tribunal, for it is the only person or body which has that power. It equally follows that the error must have been made by the tribunal for it is the only person or body which can dismiss an application in error.
33. It may be that the tribunal has acted upon a consent to dismiss an application given by the parties in circumstances in which the consent was given unintentionally by the parties, or one of them, or without realisation of its significance. Even if that were to occur, it could not be said to be an error of the tribunal.
34. In the circumstances of this case, Mrs McKenzie gave her consent to the dismissal of the application. She expressed her view that she felt that she was forced to consent and did so both on paper and in her discussion with an officer in the Registry. In some circumstances that could lead to a finding that the tribunal should not have taken her to have consented to the dismissal. Having regard to the conversation, however, I am satisfied that Mrs McKenzie gave her consent to the dismissal even though she still felt that she was correct in her view that the money given to her daughters should be disregarded. Her feelings of dissatisfaction do not negate her consent and did not give the tribunal reason to form the view that her consent was not given. Therefore, it did not dismiss her application in error on 2 April, 1996. Consequently, I am unable to reinstate it pursuant to sub-section 42A(10) of the AAT Act.
I adopt with respect the Deputy President's remarks.
In the present matter, the applicant had been represented by a solicitor who attended the scheduled Hearing on 17 August 1992, and informed the Tribunal that he was instructed to withdraw the application for review. He produced a document signed by the applicant and dated 17 August 1992, which reads:
"I Kevin Lower hereby instruct my 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 this matter myself."
I consider that the applicant's stated inability to afford his solicitors' services and conduct the Hearing on his own behalf did not negate his consent. Having had the opportunity to hear evidence from the applicant's treating psychiatrist, I accept his evidence that the applicant was tired and overwhelmed by the system, and that he was handling matters badly at the time. The surrounding circumstances are insufficient, in my view, to either negate his consent, or to give the Tribunal reason to form the view that his consent was not given. The applicant's stated inability to afford his solicitor's services did not negate his consent; and as was the situation in Re McKenzie did not give the Tribunal reason to form the view that his consent was not given. The application was not dismissed in error, and cannot be reinstated therefore, pursuant to sub-section 42A(10) of the Act.
In the course of the Hearing the possibility of the applicant's application being treated as an application for extension of time was canvassed. As no such application had been lodged by the applicant, and Comcare had not prepared submissions prior to the Hearing, the issue was addressed at some length. Parties were given leave to lodge further written submissions and Comcare provided these submissions.
Section 29 of the Act relates to the manner of applying for review, and as far as is relevant to an application for extension of time provides:
"Manner of applying for review
…(7) The Tribunal may, upon application in writing by a person, extend the time for the making by that person of an application to the Tribunal for a review of a decision (including a decision made before the commencement of this section).
(8) The time for making an application to the Tribunal for a review of a decision may be extended under subsection (7) although that time has expired.
(9) Before determining an application for an extension of time, the Tribunal may, if it thinks fit, require the applicant to serve notice of the application on a specified person or persons, being a person or persons whom the Tribunal considers to be affected by the application.
(10) If a person on whom a notice is served under subsection (9), within the prescribed time after the notice is received by him, gives notice to the Tribunal, as prescribed, stating that he wishes to oppose the application, the Tribunal shall not determine the application except after a hearing at which the applicant and any person who so gave notice to the Tribunal are given a reasonable opportunity of presenting their respective cases.
…"Comcare submits that receipt of a written application for extension of time is a mandatory requirement, and the Tribunal does not have jurisdiction to consider a grant of extension of time in the absence of an application in writing. The application before the Tribunal was for reinstatement of the application, and if that application was unsuccessful, the applicant could lodge an application for extension of time, and that matter would proceed to a further hearing. It maintains that sub-section 29(7) of the Act is specific in its requirement that such an application be in writing in contrast to sub-section 42A(10) of the Act which enables the Tribunal, on its own initiative, to reinstate the application if it appears to the Tribunal that an application has been dismissed in error. In the matter of Re McKenzie the applicant had applied for extension of time, and in the course of her Reasons for Decision, Deputy President Forgie considered the possibility of viewing Mrs McKenzie's application as an application for reinstatement.
I consider, on reflection, that Comcare's argument must succeed. The applicant has not lodged an application in writing for extension of time, and the question is not properly before the Tribunal. In any event, however, much of the evidence and the submissions in relation to the question of reinstatement, are relevant also to consideration of the question of extension of time. I am of the view that if the applicant were to lodge a written application, such application should not succeed.
In Re McKenzie, Deputy President Forgie outlined the manner in which the discretion to grant an extension of time should be exercised, in the following terms:
"In considering the manner in which the discretion to grant an extension should be exercised, regard is traditionally paid to the principles set out by Wilcox J in Hunter Valley Developments Pty Ltd v Minister for Home Affairs and Environment (1984) 58 ALR 305. In that case Wilcox J considered an application for extension of time pursuant to section 11 of the Administrative Decisions (Judicial Review) Act 1977 (Cth) ("ADJR Act"). After noting that section 11 does not set out any criteria to be followed in exercising the court's discretion and noting that there had been a number of decisions of judges of the Federal Court all sitting at first instance, he said:
"... I venture to suggest that from them may be distilled the following principles to guide, not in any exhaustive manner, the exercise of the court's discretion:
(a) Although the section does not, in terms, place any onus of proof upon an applicant for extension, an application has to be made. Special circumstances need not be shown, but the court will not grant the application unless positively satisfied that it is proper so to do. The 'prescribed method' of 28 days is not to be ignored: Ralkon v Aboriginal Development Commission (1982) 43 ALR 535 at 550. Indeed it is the prima facie rule that proceedings commenced outside that period will not be entertained: Lucic v Nolan (1982) 45 ALR 411 at 416. It is a pre-condition to the exercise of discretion in his favour that the applicant for extension show an 'acceptable explanation of the delay' and that it is 'fair and equitable in the circumstances' to extend time: Duff v Freijah (1982) 43 ALR 479 at 485; Chapman v Reilly (Neaves J, 9 December 1983, unreported, at 7).
(b) Action taken by the applicant, other than by making an application for review under the Act, is relevant to the consideration of the question whether an acceptable explanation for the delay has been furnished. A distinction is to be made between the case of a person who, by non-curial means, has continued to make the decision-maker aware that he contests the finality of the decision (who has not 'rested on his rights': per Fisher J in Doyle v Chief of General Staff (1982) 42 ALR 283 at 287) and a case where the decision-maker was allowed to believe that the matter was finally concluded. Compare Doyle, Chapman, Ralkon, and Douglas v Allen (Morling J, 3 April 1984, unreported, at 18) with Lucic at 414–5 and Hickey v Australian Telecommunications Commission (1983) 47 ALR 517 at 519. The reasons for this distinction are not only the 'need for finality in disputes' (see Lucic at 410 but also the 'fading from memory' problem referred to in Wedesweiller v Cole (1983) 47 ALR 528.
(c) Any prejudice to the respondent, including any prejudice in defending the proceedings occasioned by the delay, is a material factor militating against the grant of an extension: see Doyle at 287; Duff at 484–5; Hickey at 525–7 and Wedesweiller at 533–4.
(d) However, the mere absence of prejudice is not enough to justify the grant of an extension: Douglas at 18; Lucic at 416; Hickey at 523. In this context, public considerations often intrude: Lucic, Hickey. A delay which may result, if the application is successful, in the unsettling of other people (Ralkon at 550; Becerra v Fowell (Morling J, 18 February 1983, unreported, at 12– 13)) or of established practices (Douglas at 19) is likely to prove fatal to the application.
(e) The merits of the substantial application are properly to be taken into account in considering whether an extension of time should be granted: Lucic at 417; Chapman at 6.
(f) Considerations of fairness as between the applicants and other persons otherwise in a like position are relevant to the manner of exercise of the court's discretion: Wedesweiller at 534–5." (pages 114-115)"
In applying the guidelines set out in Hunter Valley Developments Pty Ltd v Minister for Home Affairs and Environment (1984) 58 ALR 305, I consider that although, on the evidence, the applicant was incapacitated for various periods during the eight years from the time the application was dismissed, and the reinstatement application was lodged, it is clear that he was not incapacitated for anything approaching the whole of that period. In Dr Long's opinion there has been a gradual improvement in the applicant's condition over the period since about 1996. In addition he had approached Comcare in about 1996, and this Tribunal, when he was told that a further application was required. The lack of action by his solicitors is not a satisfactory explanation for the delay. In my view the applicant has not provided a satisfactory explanation for the inordinate delay.
Although the applicant remained in contact with the Bureau, and with rehabilitation providers, he did not put Comcare on notice. On his evidence, he approached a counter officer at Comcare some five years ago and was informed that he would need to lodge a further application. There was no other contact. In my view, on the whole of the evidence, there was no conduct by the applicant, known to Comcare, to indicate that the 1992 dismissal was not final, and that Comcare's liability was still an issue.
As to the question of prejudice, clearly Comcare would be disadvantaged by the possible unavailability of witnesses so many years after the event, but the applicant would be disadvantaged also. Comcare submits also, that because the matter was finalised, it has not undertaken any medical examinations of the applicant over the last eight years and those reports that have been prepared in the interim by medical practitioners are directed towards the applicant's current condition, and not to the question of causation. This is a real and serious prejudice. In my view, however, such reports were prepared and available to the parties prior to the scheduled Hearing; and could be updated by those practitioners if they were available. I consider the more serious prejudice being in relation to the possible unavailability of lay witnesses who could give vital evidence as to the circumstances surrounding the applicant's work performance and other relevant matters. Both parties are prejudiced by such a delay.
As to the question of the merits of the substantive application, the applicant maintains that he is not interested in the monetary result but wants, in effect, his "day in Court", retraction of the unfavourable interview report, rehabilitation and a return to work at the Bureau. The applicant, however, cannot obtain from the Tribunal the remedy he seeks. It is not within the Tribunal's power to direct that the Bureau retract the comments outlined in the interview report, and it is clearly, on the whole of the evidence, a futile exercise to contemplate rehabilitation and return to the Bureau's work force.
Finally, as to considerations of fairness as between the applicant and other persons otherwise in a like position, there are probably many people who would like to pursue, at a later date, an application dismissed some years beforehand. It is in the public interest, however, that decisions are challenged and proceedings finalised within a reasonable time. Uncertainty and lack of finality are not in the public interest. I consider that in the circumstances surrounding such an extensive delay in pursuing this matter, it would not be in the public interest that an extension of time be granted.
For these reasons the Tribunal refuses to reinstate the application dismissed by this Tribunal, by consent, on 17 August 1992.
I certify that the 41 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member WJF Purcell
Signed: .....................................................................................
Personal AssistantDate/s of Hearing 22 February 2001
Date of Decision 6 August 2001
Counsel for the Applicant Ms Atherton
Solicitor for the Applicant Community & Public Sector Union
Counsel for the Respondent Ms K. Bean
Solicitor for the Respondent AGS
0
8
0