MITCHELL and Comcare (Compensation)

MITCHELL and Comcare (Compensation) [2020] AATA 1464 (26 May 2020)
Division:GENERAL DIVISION
File Number:2017/3827
Re:SONIA MITCHELL
APPLICANT

AndComcare
RESPONDENT

DECISION
Tribunal:R CAMERON, SENIOR MEMBER
Date:26 May 2020
Place:Melbourne

The Tribunal decides to reinstate the application pursuant to section 42A(10) of the Administrative Appeals Tribunal Act 1975.
................... .[sgd]...............................................
R CAMERON, SENIOR MEMBER
Catchwords
PRACTICE AND PROCEDURE – reinstatement application – matter dismissed for failure to proceed with the application within a reasonable time – whether the application has been dismissed “in error” – whether the application should be reinstated – application reinstated
Legislation
Administrative Appeals Tribunal Act 1975
Cases
Goldie v MIMA (2002) 72 ALD 652
Guse v Comcare (1997) 49 ALD 288
Villips v Migration Agents Registration Authority (2011) 119 ALD 439
Secondary Materials
P W Young, C E Croft, M Smith, On Equity (Lawbook Co., 2009)
John N Pomeroy, Spencer W Symons, A Treatise on Equity Jurisprudence (5^th Edition, The Lawyers Cooperative Publishing Company, 1941)
REASONS FOR DECISION
R CAMERON SENIOR MEMBER
26 May 2020
INTRODUCTION

This matter is an example of what might be described as a classic case confronting Tribunals, and with increasing frequency courts, when presented with self-represented parties. Frequently, a self-represented litigant appearing before a Tribunal poses unique and difficult challenges.
The Applicant, pursuant to section 42A(10) of the Administrative Appeals Tribunal Act 1975 (“the Act”), seeks reinstatement of an application for review filed by her on 28 June 2017 (“the Application”)[1] which was dismissed by Senior Member Morris of this Tribunal on 4 February 2020.
[1] The Application sought review of a decision made by the Respondent 4 May 2017 which determined that, as at 10 May 2017, the Applicant had no present entitlement to chiropractic, massage and acupuncture treatment under section 16 of the Safety, Rehabilitation and Compensation Act 1988. The reviewable decision is document T 81 of the T documents.
The Application was dismissed by Senior Member Morris pursuant to section 42A(5) of the Act on the grounds that the Tribunal was satisfied that the Applicant had failed within a reasonable time to proceed with her application.
THE MATERIAL BEFORE THE TRIBUNAL AT THE HEARING OF THE REINSTATEMENT APPLICATION
There was significant material before the Tribunal at the hearing of the reinstatement application. Both parties filed relatively extensive written submissions.[2]
[2] The Applicant’s submissions were dated 20 March 2020 and consisted of 30 pages. The Respondent's submissions opposing the application for reinstatement were dated 3 April 2020 and consisted of 8 pages.
The Respondent handed up to the Tribunal a 32 page “Procedural Chronology”. This chronology provided extensive detail concerning every step that had been taken in the proceeding to date. On examination of it, together with a comparison of its contents with the Tribunal file it was found to be an accurate document. Other than to quite properly point out that she had only received the document the day before the hearing, the Applicant otherwise did not take issue with its contents. Where various entries in the chronology were referred to during the course of the hearing, the Applicant did not challenge the accuracy of those entries.
Additionally, there were the Tribunal documents and Statements of Issues, Facts and Contentions.[3] There were also an array of medical reports and sundry documents lodged with the Tribunal, which need not be specifically referred to for the purposes of these reasons.
[3] The Respondent's Statement of Issues, Facts and Contentions was lodged with the Tribunal on 10 October 2018. The Applicant’s Statement of Facts, Issues and Contentions was lodged with the Tribunal on 21 May 2019.
Specific reference should be made however, to some more recent reports lodged and served by the Applicant.
There was a report prepared by Dr Y Khoury dated 29 January 2020. This report featured prominently in the reasons of Senior Member Morris referred to earlier.[4]
[4] Specifically paragraphs [47] to [52] of Senior Member Morris's reasons are referred to.
A further report was prepared by Dr Khoury on 20 April 2020.
A report was also before the Tribunal from Mr Stolz-Groubusch, a Clinical Psychologist, addressed to Dr Khoury and dated 16 April 2020.
The Tribunal should observe that counsel for the Respondent objected to the receipt in evidence of the further report prepared by Dr Khoury on 20 April 2020 and the report of Mr Stolz-Groubusch being received in evidence. After taking submissions from both the Applicant and counsel for the Respondent the Tribunal made a ruling and received both reports in evidence.
Having made the ruling to receive both reports in evidence the Tribunal offered the Respondent through its counsel the opportunity to reply if necessary, and any time it might need to do so. Counsel for the Respondent elected to proceed.
RELEVANT SUBSECTIONS OF SECTION 42A OF THE ACT
It is appropriate to reproduce sections of the Act relevant to this application.
Section 42A(5) of the Act, pursuant to which Senior Member Morris dismissed the application, provides:
(5) If an applicant for review of a decision fails within a reasonable time:
(a)to proceed with the application; or
(b)to comply with a direction by the Tribunal in relation to the application;
the Tribunal may dismiss the application without proceeding to a review of the decision.
Some observations should be made about the construction and application of section 42A(5)(a) of the Act.
The discretionary power in section 42A(5)(a) of the Act is only enlivened if the applicant fails “within a reasonable time” to proceed with the application. Prior to the exercise of the discretion by the Tribunal it must consider and determine not only whether there has been a failure to proceed with the application, but must also consider and determine whether a reasonable time has elapsed since the relevant failure. Should the Tribunal omit to undertake this consideration, it will have misapplied the section.
It is well-established that the discretion conferred on the Tribunal by section 42A(5)(a) of the Act must only be exercised sparingly and as a matter of last resort. This is particularly so where the genuineness of the claim is not in dispute.[5] The nature of the discretion conferred by this section requires the consideration by the Tribunal after the failure of the applicant whether a reasonable time has elapsed, and whether the appropriate remedy in the circumstances is dismissal of the application. The reason for this is that exercise of such discretion involves a denial to the applicant of a hearing on the merits. As an application of the power of dismissal under section 42A(5)(a), as noted earlier, is a matter of last resort, the Tribunal must consider whether dismissal is the appropriate remedy, or whether it would be more appropriate to take some other course in order to secure prosecution of the application. Similarly, if the Tribunal fails to do so it would more likely than not constitute a misapplication of the section, and as such, an appealable error.
[5] Guse v Comcare (1997) 49 ALD 288 at 291. Although this case was a matter involving the construction and application of section 42A(5)(b) the analysis of Burchett J concerning the overall application of section 42A (5) is relevant and applicable to this matter.
Procedural fairness is the fulcrum of any exercise of the discretion under section 42A(5)(a). It must be afforded to the applicant in those circumstances. This would ordinarily require the applicant to be given the opportunity by the Tribunal to make submissions as to why the discretion should not be exercised. Included in this process would be whether there had been a failure to proceed with the application, and if so, whether a reasonable time had elapsed since such failure. Similarly, to afford procedural fairness to the applicant in such circumstances, it would extend to giving them an opportunity to explain or justify any failure, or to advance any reasons why, despite such failure, the application should not be dismissed.
Such opportunity could, and frequently does, extend to allowing an applicant a further opportunity to remedy any failure, or in layman’s terms, “get their house in order”. The Tribunal acknowledges that in a case such as this with a self-represented applicant, circumstances are frequently difficult. Some latitude must be afforded to a self-represented party to an application in this Tribunal for these reasons. This recognises the sometimes unique and difficult challenges that the Tribunal faces from time to time as noted earlier. The Tribunal considers that this case is one of them. Such latitude might not be afforded a party who is represented by competent legal advisers.
Section 42A(10) of the Act, relevant to this application for reinstatement of the application, provides:
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.
An examination of the language used in section 42A(10) reveals that on its true and proper construction, a multi-step consideration should be undertaken when applying it. To enliven the jurisdiction to reinstate an application firstly, it is necessary to appear to the Tribunal at the rehearing that such application was dismissed in error. The error must bear some relation to the dismissal. If the Tribunal concludes that it does appear the application was dismissed in error, the discretion to reinstate the application is enlivened. The next step requires it to determine whether the discretion to reinstate should be exercised in favour of the applicant.
The meaning of the word “error” when construing subsection 42A(10) has been the subject of some consideration by the authorities. The Tribunal considers that the preponderance of the authority holds that the conditions for exercise of the power contained in subsection 42A(10) does not impose any qualification, or limitation on the word “error”. It does not for instance confine the concept, or perhaps more accurately the word, to a notion of for instance, jurisdictional error where a tribunal purports to exercise jurisdiction in excess of that which has been conferred upon it, or fails to exercise jurisdiction which it properly has.
It has also been held that in order to enliven the Tribunal’s power under section 42A(10) it is not necessary that the Tribunal, a member, or employee of the Tribunal should have been at fault in relation to the dismissal. The fault may have lain elsewhere provided it induced the error.[6]
[6] The observations of Wilcox and Downes JJ in Goldie v MIMA (2002) 72 ALD 652 at [29] are referred to. In that passage, by way of example, it was said that if a solicitor’s mistake induced the dismissal of an action, it could properly be said the application had been "dismissed in error". (Such mistake was not caused by any act or omission by the Tribunal, one of its officers or the other party or parties to the application.) This approach means that the concept of “error” has the indicia of and includes a "unilateral mistake". A term often used to describe the situation where only one party makes a mistake.
A paragraph from the reasons of Carr J in Goldie v MIMA does reveal how broad the concept, or the notion of “error” is in the context of section 42A(10) the Act. His Honour observed at paragraph [77]:
In my view, there is a significant degree of desirability of persons being able to rely on the ordinary meaning conveyed by the word “error”. More importantly, s 42A(10) provides a mechanism of avoiding prolonging legal or other proceedings without compensating advantage. The mechanism is a relatively informal method of bringing a matter back to the Tribunal for reconsideration with a view to it being considered on the merits. It can be seen as a convenient, prompt and inexpensive means whereby errors which may have occurred in the exercise of the Tribunal’s default jurisdiction can be rectified. That is, any sort of error in dismissing an application summarily, whether the error the administrative error or any other error.
(Emphasis added).
The observations of Carr J in this paragraph of Goldie v MIMA are particularly apposite to the circumstances of this matter.
This meaning of the word “error” therefore, casts a very wide dragnet, which can capture a multitude of fact situations. The range of settings in which an error causing an application to be dismissed could range from such things as a classic application of the “slip rule”, a perverse finding of fact, a mistake of fact, a mistake of law[7] or the Tribunal being misled (whether intentionally or otherwise). The list is not exhaustive. Following the approach of Carr J in Goldie v MIMA referred to above, it can be seen that it is a relatively low threshold for an applicant to cross in persuading the Tribunal that an application was dismissed in error and to exercise its discretion to reinstate under section 42A(10).
[7] Mistake in this setting can include both a common mistake and a unilateral mistake. The definition of the word "mistake" has been the subject of many authorities and text writers alike. It is a concept that has been applied in contract, equity, common law and, of course, administrative law. One is minded by way of example to refer to a definition recorded with approval by the learned authors of On Equity, Young, Croft & Smith, who adopted definition taken from Pomerory’s A Treatise on Equity Jurisprudence, (although it is readily acknowledged that this is not an equity case, the definition is useful):
“An erroneous mental condition, conception, or conviction, induced by ignorance, misapprehension, or misunderstanding of the truth, but without negligence, and resulting in some act or omission done or suffered erroneously by one or both parties to a transaction, but without its erroneous character being intended or known at the time."
HISTORY OF THE APPLICATION
The comparatively extensive history of this application has been recorded in paragraphs [6] to [33] of the reasons of Senior Member Morris, and in the “Procedural Chronology” prepared by the Respondent’s lawyers for the purposes of the hearing of this application. The contents of those documents have been considered by the Tribunal. It is not necessary to repeat every procedural step that has been taken in the course of this application. However, some key events should be identified for the purposes of these reasons.
As noted earlier this application was commenced on 28 June 2017. It goes without saying that in terms of the usual timeframe within which applications of this nature are disposed of by the Tribunal, it has been on foot for quite some time.
There have been four preliminary conferences held in this matter in December 2017, June, September and November 2018.
There have been various telephone hearings, or directions hearings held in August and October 2017, December 2018, May 2019 and February 2020, the last of which led to the dismissal of the application.
In addition to the various telephone hearings, there have been numerous occasions on which various directions have been issued either by a Conference Registrar of the Tribunal, or a Senior Member. Those directions have concerned the conduct and prosecution of the application.
The application was initially listed for hearing for three days commencing 19 June 2019. This hearing was vacated at the request of the Applicant in an email sent on 14 June 2019 which had attached to it two medical certificates signed by Dr Khoury. Those medical certificates could be, at best, described as “pro forma”. In the email, the Applicant not only relied upon medical grounds in support of her application for a postponement of the hearing date, but also contended that she was not prepared to conduct the matter on that date which was putting her “under more stress”. Additionally, she also raised issues justifying her application for an adjournment of the hearing concerning availability of a medical specialist, for what she described as “proper and full cross-examination”.
The Tribunal granted the Applicant’s request to vacate the hearing listed to commence on 19 June 2019. On 2 July 2019 it was re-fixed for hearing commencing on 16 September 2019.
The hearing of the application fixed for hearing commencing on 16 September 2019 was vacated on the Tribunal’s own motion by a notice issued on 29 July 2019. It was acknowledged by the Respondent’s counsel in the course of the hearing of this reinstatement application that such vacation of the hearing date was not a consequence of any act or actions on behalf of the Applicant.
The parties completed hearing certificates and the application was relisted for a further hearing to commence on 6 November 2019. This hearing was vacated on 24 October 2019 as a result of a request made by the Applicant, supported by a letter from Dr Khoury of 23 October 2019, advising that the Applicant was suffering a medical condition and unable to “attend court” until her condition had stabilised. There was also a letter from a treating clinical psychologist Dr Troselj stating that she supported a hearing on the papers as in her opinion, the Applicant attending the Tribunal for three days commencing 6 November 2019 would exacerbate her mental health conditions.
Following the vacation of the November 2019 hearing, also on 24 October 2019 the Tribunal made very specific directions. It required the Applicant to provide a fresh report from her medical practitioner and/or clinical psychologist by 17 December 2019 providing specific answers to several questions.
The first question required an answer as to whether the Applicant was medically able to participate in a hearing, including making submissions, giving evidence and asking questions of witnesses.
If the answer to the first question was in the negative, the second question requested an answer to whether or not she would be able to do so in the period from 13 January to 28 February 2020.
If the answer to the second question was in the negative, the response to the third question required the author (or authors as the case may be) to express an opinion as to when she would be able to do so.
It should be observed that in the notes to the direction of 24 October 2019 was a warning, clearly directed to the Applicant, that section 42A(5) of the Act provides that failure to comply with the direction may result in the Tribunal dismissing the application without proceeding to review the decision. Whilst it will be the subject of further references in these reasons, it is perhaps appropriate to record at this juncture in these reasons that this note was directed towards a failure to comply with a direction by the Tribunal, which is within the purview of section 42A(5)(b) rather than subsection (5)(a), which addresses a failure within a reasonable time to proceed with the application.
In compliance with the direction made on 24 October 2019 the Applicant produced a report from Dr Khoury of 4 December 2019. That report confirmed that the Applicant was unable to participate in a hearing from 13 January 2020 to 28 February 2020. The report also stated that he was unable to give a date that the Applicant could attend the hearing. He also stated that she was scheduled to attend a review appointment with him on 29 January 2020.
By a further direction made on 6 December 2019, the matter was listed for a directions hearing on 4 February 2020. Additional directions were made requiring the Applicant to provide a medical letter from Dr Khoury following her appointment with him on 29 January 2020. The directions required the treating doctor (Dr Khoury) to include in the medical letter his opinion of the Applicant’s capacity to continue the application. It also required his opinion, if the Applicant were not capable at that time of continuing her application, a timeframe in which she would be able to do so. It perhaps also ought to be noted again, that a standard warning was contained in a note (at paragraph 2 of the “Notes to Direction”) informing the Applicant that if she failed within a reasonable time to comply with the direction the Tribunal could dismiss the application pursuant to section 42A(5)(b) of the Act.

The directions of 6 December 2019 and the listing notice for 4 February 2020 were sent to the Applicant under cover of an email of the same day. The contents of the email need not be reproduced in full. However, relevantly, for the purposes of this application, the email did state: “The Tribunal has also listed the matter for a directions hearing by telephone on 4 February 2020 at 10:30 AM to discuss the progression of your application.” This sentence featured prominently in the Applicant’s submissions to the Tribunal during the hearing of her application for reinstatement of the application.
Late in the afternoon of 3 February 2020, the Applicant forwarded a further report from Dr Khoury in purported compliance with the directions of 6 December 2019. This letter stated that the Applicant was currently unable to continue with her application. Dr Khoury further stated that he was currently unable to give a date that she would be able to attend. He also recorded that she was scheduled to attend a review appointment with him on 25 March 2020.
As noted earlier on the next day, namely 4 February 2020, Senior Member Morris dismissed the application under section 42A(5)(a) of the Act on the grounds that the Applicant had failed within a reasonable time to proceed with the application.
The Applicant obtained a further medical report from Dr Khoury on 20 April 2020. This report advised that with the assistance of her clinical psychologist the Applicant should be able to attend and do what is required to represent herself at the Tribunal. He stated that he supported a recommendation (although not stating, it is apparent from other material before the Tribunal that the recommendation has come from a Clinical Psychologist the Applicant has seen: Mr Stolz-Grobusch) that the Applicant only be required to deal with one matter at a time by Comcare. Whilst there are other matters referred to in the report, they do not need to be repeated. They have been taken into consideration by the Tribunal in full.
Also accompanying Dr Khoury’s report of 20 April 2020 was a report from Mr Stolz-Grobusch. Mr Stolz-Grobusch’s report observed that he had met with the Applicant on a weekly to fortnightly basis for six sessions of psychological therapy since 6 February 2020. Mr Stolz-Grobusch also recorded that the Applicant had been seeking therapy because she experiences significant stress along with situational depression and anxiety relating to her injury claim with Comcare. He stated that this stress relating to her claim had impacted her functioning in areas of mood, energy levels, motivation, sleep, digestion, attention and concentration. The impact of the Comcare claim on the Applicant was significant. He also stated that a speedy resolution to the Applicant’s Comcare claim would help resolve her levels of stress, situational anxiety and depression.
THE CONTENTIONS OF THE PARTIES
The Applicant in her written and oral submissions identified four elements, or perhaps more accurately grounds, in support of her application for reinstatement.
The Applicant’s written submission was, at times, not easy to follow, and in summarising her contentions the Tribunal has sought to distil the essential elements from it, and marry them with the contentions advanced orally on the day of the hearing of the reinstatement application.
Those grounds were:
(a)Her medical condition and the subsequent medical reports;
(b)The conduct of the hearing on 4 February 2020;
(c)Further considerations and the reasons behind her request for reinstatement; and
(d)Her response to the Respondent’s written submissions.
The Applicant approached her medical condition by, naturally, relying upon the contents of the most recent reports of Dr Khoury of 20 April 2020 and Mr Stolz-Grobusch. The contents of which have been referred to previously in these reasons. The sum total of those reports she contends, is that the position that she is now in medically differs from what it was in the previous report of Dr Khoury of 29 January 2020. To a lesser degree, she relied upon the report of Mr Stolz-Grobusch. However, it would be fair to her to say that she recognised it did not specifically answer the question about whether she had the capacity to proceed with the application and a fully contested hearing before the Tribunal.
She sought to develop the contention that Dr Khoury’s report of 29 January 2020 certified her position “currently”, and that he could not predict what her future medical condition would be. He was not saying that she could not ever proceed with the application. He did not say that she would never be able to represent herself. The position had changed between 29 January and 20 April 2020. Coupled with this contention, she asserted that she was ready to proceed.
In essence, her contention concerning the error of the Tribunal within the meaning of section 42A(10), was that whilst Dr Khoury in his report of 29 January 2020 stated that “currently” she was unable to continue with the application he did not exclude the possibility of her being in a position to do so at some time in the future. It required a review. That review took place subsequent to the report of 29 January 2020, and was finalised in the report of 20 April 2020, which as noted earlier, certified that she is now able to do what is required to represent herself in her application against the Respondent before the Tribunal.
The Applicant’s complaints about the conduct of the hearing on 4 February 2020 commenced, and overall, centred on her contention that she had no prior warning that at the hearing she might face the prospect of it being dismissed on the grounds that she failed within a reasonable time to proceed with the application.
When probed on this contention by the Tribunal and specifically asked whether or not she believed she had been “ambushed”, she stated she wouldn’t go that far. However, in fairly strong terms she stated that she had been “surprised” and in effect caught unprepared, or on the “back foot” when it came to adequately resisting the application of section 42A(5)(a) of the Act. She also contended that the lack of a proper prior warning of possible exercise of the power of dismissal under section 42A(5)(a) of the Act was manifestly unfair.
One of the facts relied upon by her both in her oral, and written submissions to the Tribunal was that in the email she received from the Tribunal on 6 December 2019 which contained the Directions made on that day by the Senior Member it stated amongst other things: “The Tribunal has also listed the matter for a directions hearing by telephone on 4 February 2020 at 10:30 AM to discuss the progression of your application.” As she put it, nothing at all was mentioned in any way in that email about the prospect of the dismissal and certainly not under section 42A(5)(a) of the Act.
The Applicant also stated that there were no other written or verbal warnings given to her including by the Respondent, that dismissal under section 42A(5)(a) of the Act was a possibility at the 4 February 2020 directions hearing (bearing in mind it was listed for directions). Had the Respondent, prior to the directions hearing 4 February 2020 made a complaint about the progress of the matter, asserted that the Applicant had failed within a reasonable time to proceed with the application, and given notice of an application to dismiss, she would have attended that hearing better prepared to resist any potential application of section 42A(5)(a) of the Act. Presumably, this could have also included gathering additional evidence from treating doctors and other healthcare professionals such as psychologists concerning her fitness to participate in the final hearing of an application, and any timeframe within which she would become available to do so.
Coupled with this contention was also the fact that each of the Directions issued by a Senior Member or Conference Registrar as the case may be as she put it made it very clear that the conditions for dismissing a claim were in fact under section 42A(5)(b) of the Act for failure within a reasonable time to comply with a direction made by the Tribunal. This conveyed to her a misconception as to what the grounds were for dismissal and was in reality the source of the “error” (presumably within the meaning of section 42A(10) of the Act).
Amongst the further considerations (which need not be repeated in these reasons in detail, but have been taken into consideration by the Tribunal) the Applicant contended that it was unfair to dismiss the application when one looks at the merits. The starting point of her development of this contention was to look at the contents of the reviewable decision made in May 2017 itself. Although the contention was put in a somewhat discursive way, the substance of it as comprehended by the Tribunal, was that she had an accepted compensable condition acknowledged by the Respondent. The debate centred on whether her claim constituted reasonable medical treatment. It is a matter that should ultimately be determined at a properly ventilated final hearing of the application where the opportunities afforded to both parties to place all relevant evidence, including specialist evidence, before the Tribunal.
As for her response to the Respondent’s written submissions, much of her resistance to them centred around what she contended was unreasonable conduct on the part of the Respondent. It need not be repeated for the purposes of these reasons however; they have been taken into account by the Tribunal.
The Respondent contended that much of the contentions of the Applicant were irrelevant.
It was also contended that the additional medical evidence introduced since the hearing on 4 February 2020 contradicted the medical evidence given at that hearing when her application was dismissed under section 42A(5)(a).
The Respondent contended fact that the Applicant has a medical condition that prevents her from proceeding with her application was a valid and legitimate matter for consideration by the Tribunal in determining whether to exercise the power conferred upon it by section 42A(5)(a) of the Act. It relied upon a section of a decision in Villips v Migration Agents Registration Authority.[8]A passage from that decision was cited, the substance of which was that if the delay is caused by a medical condition it does not give an applicant an indefinite right to maintain a matter before the Tribunal. More will be said about this case later in these reasons.
[8] (2011) 119 ALD 439 at [17].
Counsel for the Respondent very carefully dissected the recent report of Dr Khoury of 20 April 2020 and that of Mr Stolz-Grobusch. He emphasised that Mr Stolz-Grobusch has not seen the Applicant in the time leading up to a final hearing. Additionally, he contended that Mr Stolz-Grobusch in his report of 16 April 2020 does not address the key issue of whether or not the Applicant is capable of proceeding to a hearing on the merits, including contending with such things as cross-examination and making legal submissions. As he put it, Mr Stolz-Grobusch has not had the “luxury” of observing her in the time leading up to a hearing, and how she would manage the stress levels in that context.
Similarly, concerning the most recent report of Dr Khoury of 20 April 2020 counsel for the Respondent also contends that his report does not address what he described as the “key issue” namely, whether the Applicant would be capable of proceeding to a final hearing and participating properly in all the steps that such a hearing requires. In short, the absence of considerable detail in that report concerning the steps that she would have to undertake in conducting a final hearing representing herself and her capacity to endure the stress of same, in effect renders the report of little or no weight.
Another limb to the Respondent’s resistance to the application for reinstatement was that whether or not the Respondent requested the application be dismissed was irrelevant. The power under section 42A(5)(a) of the Act is discretionary, which the Tribunal is capable of exercising on its own motion. It is not contingent on a request or application being made by the Respondent. Therefore, this factor does not constitute an “error” within the meaning of the section.
In short therefore, the Respondent contends that even if the Tribunal should find there was an error which resulted in the decision to dismiss under section 42A(5)(a) of the Act, the Tribunal ought not exercise its discretion under section 42A(10) of the Act as there is insufficient medical evidence justifying reinstatement.
CONSIDERATION
The Tribunal considers, after taking into account the material before it, and the submissions made by both parties, that the application was dismissed in error within the meaning of section 42A(10) of the Act.
In making this observation, the Tribunal does not in any way wish to be seen to be criticising the decision to dismiss the application on 4 February 2020. It does not do so.
In reaching this conclusion, it is appropriate to repeat the observation made earlier in these reasons that the discretion conferred on the Tribunal by section 42A(5)(a) of the Act must only be exercised sparingly and as a matter of last resort.
The Tribunal acknowledges that the progress of this application has been unsatisfactory to say the least. By the same token, it also acknowledges the difficulties faced by the Applicant in terms of her medical conditions, as outlined in several medical reports, together with the fact that she is self-represented, which as noted earlier in these reasons poses its own unique challenges.
It is apparent that the Applicant did not appreciate that the power under section 42A(5)(a) of the Act, to dismiss on the grounds that she had failed within a reasonable time to proceed with the application, was open to the Tribunal. She did not appreciate that it could be exercised by the Tribunal of its own motion, notwithstanding that the Respondent had not made any application to that effect, or otherwise foreshadowed that it might do so.
This also needs to be viewed with a degree of realism when one examines the contents of the email of 6 December 2019 which referred specifically to a prospective discussion at the directions hearing on 4 February 2020 about the “progression” of her application. This language has the indicia of the matter proceeding to a final hearing, not a summary dismissal. Also, one has to couple this with the contents of the notes to the direction made on that day which only referred to the power of dismissal in the event of non-compliance with those directions under section 42A(5)(b) of the Act. These facts are consistent with the Applicant’s submission that the question of a dismissal for failing within a reasonable time to proceed with the application took her by surprise. She attended at the directions hearing on 4 February 2020 erroneously believing that, having complied with the terms of the directions made on 6 December 2019, there was no risk, or perhaps more accurately, prospect, of the application otherwise being dismissed. This significantly hampered her capacity to explain adequately, or justify her failure to proceed, or to perhaps comprehensively advance any further reasons why, despite such failure, the application should not have been dismissed. This could have included, as appears to be her propensity, the Applicant preparing and serving a detailed, and perhaps appropriately structured written submission canvassing these matters. It is unfortunate that she did not do so.
The Tribunal considers that the combined effect of these two matters was to lead the Applicant into error as to what might occur, and/or what the Tribunal’s power of dismissal was at the next directions hearing. She was mistaken into believing it was a routine directions hearing that would progress the application to a final hearing; not one that might consider the summary dismissal of the application for failing to proceed in a reasonable time (which had not been raised previously). The error and/or mistake was also compounded by, or perhaps more accurately encompassed, a failure on her part to obtain more detailed medical evidence to place before the Tribunal at the hearing on 4 February 2020, as she has now done, as to whether or not she would ever be able to proceed with the application. The Tribunal accepts the Applicant’s contention as noted earlier, that Dr Khoury in his report of 29 January 2020 stated that the Applicant was “currently” unable to continue with her application before the Tribunal. He did not exclude the possibility of her being in a position to proceed with it sometime in the future. He has now done so. It can also be said in that sense the error constituted the failure to furnish the Tribunal at the directions hearing on 4 February 2020 with appropriate medical evidence to properly appraise it of the Applicant’s true medical condition, so as to enable it to make a fully informed decision as to whether the power conferred upon it to dismiss under section 42A(5)(a) of the Act should be exercised.
It should be recalled as noted earlier in these reasons, that the concept of “error” in the relevant sense prescribed by section 42A(10) of the Act is very wide. This error, the Tribunal considers, is an error within the meaning of under section 42A(10) of the Act. Further, the error as such is also sufficient to enliven the discretion to reinstate the application within the meaning of that section.
Bearing in mind that the power of dismissal should be exercised as a last resort, the Tribunal finds that, given the most up-to-date evidence from Dr Khoury and Mr Stolz-Grobusch, the Applicant is in a position to proceed. The Tribunal is reluctant to deny an Applicant a hearing on its merits. The Tribunal considers the discretion should be exercised in her favour to be given one last chance. It does not express any view on the merits of the case other than in this context to observe that the Applicant had previously accepted compensable conditions. It is a genuine claim, in the sense identified earlier in these reasons; whether it may or may not succeed is another matter.
The contention of the Respondent relying upon the decision of Villips v Migration Agents Registration Authority[9] can be distinguished. In that case, the Senior Member was confronted with medical evidence which, as was noted in the passage cited, did not suggest any real prospect of the Applicant’s medical condition resolving itself in the foreseeable future. The Tribunal finds in this matter, both with respect to the report of Dr Khoury of 29 January 2020, and the most recent report of 20 April 2020, that this was not the case. As noted earlier, in the first report of 29 January of this year, the treating doctor stated that “currently” she was unable to continue and he was yet to be able to determine a date when she could. (It did not say as in Vilips that her condition did not have any real prospect of resolving itself in the foreseeable future. Also, the passage relied upon by the Respondent, when carefully read as part of the entire reasons for decision of the Senior Member concerned, was obiter.) That earlier opinion of Dr Khoury has been superseded by the subsequent one in April of this year.
[9] (2011) 119 ALD 439 at [17].
Another reason why Vilips should be distinguished is that the Senior Member did not dismiss the case under section 42A(5). He refused to do so because he considered that, notwithstanding the Applicant’s ongoing medical condition, there was some prospect of the case being able to be heard in the future. This finding was based upon submissions from the Applicant himself, where he considered he would be in a position to proceed at a full hearing of the matter were it to have been listed later in the year concerned. In the view of the Tribunal, this is a significant distinction. It is also apposite to this case, not only given the submissions made by the Applicant herself, but also given the expert evidence contained in the more recent reports that were received in evidence by the Tribunal.

The Tribunal should also note the contentions of the Respondent that the most recent reports of Dr Khoury and Mr Stolz-Grobusch do not address some of the key issues about whether the Applicant is capable of proceeding to a hearing on the merits including giving evidence in chief, enduring cross-examination and making legal submissions. It is a contention fairly made. However, the Tribunal considers that if the Applicant was incapable of undertaking any one or all of these steps, the relevant medical or health care professionals, including her treating doctor Dr Khoury, would have said so. Further, Mr Stolz-Grobusch, who stated in his report that he had undertaken six sessions of psychological therapy with her since 6 February 2020, would have said in no uncertain terms if she was unable to undertake the task of appearing for herself at a final hearing. It is apparent from an examination of his report that the demands of the dispute between the Applicant and the Respondent over several years were canvassed between him and the Applicant in the course of those therapy sessions that were undertaken.
Another matter that arises from the most recent reports of Dr Khoury and Mr Stolz-Grobusch which do not assist the contentions of the Respondent in this matter, is that it can really only be established that the Applicant has failed within a reasonable time to proceed with the application if it is currently listed for hearing. The decision of Spender J in Beard v Telstra Corporation Ltd[10] in this regard is problematic for the Respondent. The construction of the statutory test by Spender J will make it very difficult for a Respondent to resist an application such as this. The discretion under section 42A(5)(a) is therefore, more likely to be exercised where an applicant fails to prosecute a matter following it being listed for hearing. To construe the section otherwise is more likely than not to be a misunderstanding of the statutory test. In this instance had the matter been fixed for hearing and a medical report stated that she was unable to proceed on that day it may well have been a different matter. Unfortunately, the matter has not been, or more accurately as at 4 February 2020, relisted for hearing. This is a factor that weighs against accepting the contentions of the Respondent.
[10] (1999) 57 ALD 376.
Accordingly, the application will be reinstated under section 42A(10) of the Act. The Tribunal will endeavour to list this matter for a final hearing if possible, later this year. A further directions hearing will be convened shortly.

I certify that the preceding 81 (eighty-one) paragraphs are a true copy of the reasons for the decision herein of R Cameron, Senior Member.

..........................[sgd]...................................
Associate
Dated: 26 May 2020

Dates of hearing: 21 April 2020

Applicant: In-person

Counsel for the Respondent: Mr R Seit

Solicitors for the Respondent: Sparke Helmore Lawyers

[2020] AATA 1464

26 May 2020

Key Legal Topics

Areas of Law

Administrative Law

Statutory Interpretation

Legal Concepts

Appeal

Judicial Review

Procedural Fairness

Remedies

Statutory Construction

Dates of hearing:	21 April 2020
Applicant:	In-person
Counsel for the Respondent:	Mr R Seit
Solicitors for the Respondent:	Sparke Helmore Lawyers