Lower v Comcare

[2002] FCA 1394

FEDERAL COURT OF AUSTRALIA

Lower v Comcare [2002] FCA 1394

ADMINISTRATIVE LAW – Appeal from decision of Administrative Appeals Tribunal (“Tribunal”) refusing application to reinstate an earlier application for work related stress – original application dismissed by consent – applicant had withdrawn original application – power of Tribunal to dismiss original application – no consent by all parties to dismiss application by earlier Tribunal – whether Tribunal erred in treating dismissal of original application as a consent for dismissal – withdrawal of proceeding

Administrative Appeals Tribunal Act 1975 (Cth) ss 42A, 44

Barber v Staffordshire County Council [1996] 2 All ER 748 cited
Khan v Golechha International Ltd [1980] 1 WLR 1482 cited
SCF Finance Co Ltd v Masri (No 3) [1987] QB 1028 cited
The Owners of the Cargo of the “Kronprinz” v The Owners of the “Kronprinz” (1887) 12 App Cas 256 cited
Re Stevenson and Commonwealth of Australia (1987) 7 AAR 343 discussed
Schipp v Herfords Pty Ltd (1975) 1 NSWLR 412 discussed
Boal Quay Wharfingers Ltd v King’s Lynn Conservancy Board [1971] 1 WLR 1558 discussed
R v Hampstead and St Pancras Rent Tribunal; Ex parte Goodman [1951] I KB 541 cited

KEVIN BERTRAM LOWER v COMCARE
S 147 0F 2001

TAMBERLIN J
ADELAIDE (Heard by Video Conference)
15 NOVEMBER 2002

IN THE FEDERAL COURT OF AUSTRALIA
SOUTH AUSTRALIA DISTRICT REGISTRY	S 147 OF 2001

BETWEEN:	KEVIN BERTRAM LOWER APPLICANT
AND:	COMCARE RESPONDENT
JUDGE:	TAMBERLIN J
DATE OF ORDER:	15 NOVEMBER 2002
WHERE MADE:	ADELAIDE

THE COURT ORDERS THAT:

1.The decision of the Tribunal be set aside.

2.The matter be remitted to the Tribunal for determination in accordance with law.

Note:   Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
SOUTH AUSTRALIA DISTRICT REGISTRY	S 147 OF 2001

BETWEEN:	KEVIN BERTRAM LOWER APPLICANT
AND:	COMCARE RESPONDENT

JUDGE:	TAMBERLIN J
DATE:	15 NOVEMBER 2002
PLACE:	ADELAIDE (Heard by Video Conference)

REASONS FOR JUDGMENT

1. This is an appeal under s 44 of the Administrative Appeals Tribunal Act 1975 (Cth) (“the Act”) from a decision of the Administrative Appeals Tribunal (“the Tribunal”) of 6 August 2001 which refused an application to reinstate an earlier application for compensation in respect of work related stress. The earlier application had been dismissed on 17 August 1992 in these 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.” (Emphasis added)

2. The applicant had been represented at the earlier hearing by a solicitor who on 17 August 1992 attended the scheduled hearing 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 as follows:

   “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…