MITCHELL and Comcare (Compensation) - [2020] AATA 1464

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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

AGLC: MITCHELL and Comcare (Compensation) [2020] AATA 1464
Case: [2020] AATA 1464
Decision Date: 26 May 2020

CaseChat Overview and Summary

This matter concerned an application for reinstatement of a dismissed application before the Administrative Appeals Tribunal. The original application had been dismissed for failure to proceed within a reasonable time.

The primary legal issues before the Tribunal were whether the dismissal of the application was made "in error" and, if so, whether the Tribunal should exercise its discretion to reinstate the application.

The Tribunal, applying the principles articulated by Carr J in *Goldie v MIMA*, adopted a broad interpretation of the word "error" in the context of section 42A(10) of the relevant Act. This interpretation encompassed any type of error, including administrative errors, mistakes of fact or law, or situations where the Tribunal was misled. The Tribunal found that this broad definition established a relatively low threshold for an applicant seeking reinstatement. The Tribunal considered the extensive procedural history of the application, noting that the concept of "error" could capture a multitude of factual circumstances, and that reinstatement was intended as a convenient, prompt, and inexpensive mechanism to rectify errors in the Tribunal's default jurisdiction.

The Tribunal ordered that the application be reinstated.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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.