McDermott and Comcare (Compensation)

[2023] AATA 2300

McDermott and Comcare (Compensation) [2023] AATA 2300 (1 August 2023)

Division:GENERAL DIVISION

File Number(s):      2019/2575

Re:Reagan Kathleen Clare McDermott

APPLICANT

AndComcare

RESPONDENT

DECISION

Tribunal:Deputy President B W Rayment OAM KC

Date:1 August 2023

Place:Sydney

The application for reinstatement is refused.

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

Deputy President B W Rayment OAM KC

CATCHWORDS

PRACTICE AND PROCEDURE – application for reinstatement – application for review dismissed for non-compliance with Tribunal Direction – reinstatement refused

LEGISLATION

Administrative Appeals Tribunal Act 1975 (Cth)

CASES

Goldie v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 367; (2002) 121 FCR 383

Mori v Secretary, Department of Social Services [2014] FCA 333

Mori v Secretary, Department of Social Security [2014] FCA 1014

REASONS FOR DECISION

Deputy President B W Rayment OAM KC

1 August 2023

1. This is an application for reinstatement of an application for review dismissed by another member of the Tribunal under s 42A of the Administrative Appeals Tribunal Act 1975 (the Act). The application for review was dismissed on 2 March 2023 because the applicant failed to comply with a Direction of the Tribunal dated 31 January 2023. The Direction stated that non-compliance would result in dismissal of the application.

2. Section 42A(8)-(11) of the Act, headed ‘Reinstatement of application’, provide as follows:

   42A Discontinuance, dismissal, reinstatement etc. of application

   Reinstatement of application

   (8)If the Tribunal is taken to have dismissed an application under subsection (1B), a party to the proceeding (other than the applicant) may, within the period referred to in subsection (11), apply to the Tribunal for reinstatement of the application.

   (8A)If the Tribunal dismisses an application under subsection (2) (other than an application in respect of a proceeding in which an order has been made under subsection 41(2)), a party to the proceeding may, within the period referred to in subsection (11), apply to the Tribunal for reinstatement of the application.

   (9)If it considers it appropriate to do so, the Tribunal may reinstate the application and give such directions as appear to it to be appropriate in the circumstances.

   (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 made within the period referred to in subsection (11) or on its own initiative, reinstate the application and give such directions as appear to it to be appropriate in the circumstances.

   (11)For the purposes of subsections (8), (8A) and (10), the period is:

   (a)28 days after the party receives notification that the application has been dismissed, unless paragraph (b) applies; or

   (b)if the party requests an extension—such longer period as the Tribunal, in special circumstances, allows.

3. Having examined the decision of Foster J in Mori v Secretary, Department of Social Services [2014] FCA 333, the proper construction of s 42A (9) is that it applies only if the application for reinstatement is filed within the time limits specified in 42A(1). That is, the Tribunal has a general discretion under s 42A(9), if the time limits mentioned in s 42A(11) are satisfied. See also the decision of Nicholas J in a case involving the same applicant: Mori v Secretary, Department of Social Security [2014] FCA 1014 at [6].

4. Otherwise, the Tribunal’s discretion under s 42A(10) (involving error) is the only power which may be engaged so as to entitle the Tribunal to reinstate an application.

5. In this case, the general discretion under s 42A (9) is engaged, because the application for reinstatement was made within the time limit in s 42A(11). Of course, if there were an error in the case, s 42A(10) is also engaged. The word “error” is to be understood as explained in Goldie v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 367; (2002) 121 FCR 383 at [29].

6. The respondent opposed the application. It filed written submissions dated 2 May 2023 recounting the history of the progress of the application since it was filed on 12 May 2019. The applicant has sought legal representation but for the most part has been unrepresented throughout the progress of the matter. Many interlocutory applications have not proceeded because the Tribunal was unable to contact the applicant. The written submissions extended over 10 pages.

7. The applicant put on submissions dated 17 May 2023 apparently in reply to the respondent’s submissions. It seems that the general explanation given by the applicant for her non-compliance was in relation to difficulties the applicant had at her workplace, but her submissions did not answer points raised in the respondent’s submissions. On 19 June 2023 I wrote to the parties saying I had decided to give the applicant a further opportunity to answer those submissions and gave her 21 days in which to do so, expiring on 10 July 2023.

8. On 10 July 2023 the applicant responded stating that she believed she had provided everything that she could throughout the process to date, and to the best of her ability.

9. The applicant’s submissions of 17 May and 10 July do not provide compelling reasons for why she failed to comply with the Tribunal’s Direction or why the application has not been progressed by her. It seems to me that it is not consistent with the objects of the Tribunal for this review application now to be reinstated, unless good reason is shown to do so. It has all the marks of a case which has not been pursued by the applicant within a reasonable time, bearing in mind that for the most part she has not had professional legal assistance.

10. The application for reinstatement is refused.

I certify that the preceding 10 (ten) paragraphs are a true copy of the reasons for the decision herein of Deputy President B W Rayment OAM KC

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

Associate

Dated: 1 August 2023

Date(s) of hearing:	17 May 2023
Date final submissions received:	10 July 2023
Applicant:	In person
Solicitors for the Respondent:	Sparke Helmore Lawyers