NIKOLOV and Comcare (Compensation)

[2019] AATA 4235

NIKOLOV and Comcare (Compensation) [2019] AATA 4235 (3 September 2019)

Division:GENERAL DIVISION

File Number:2016/3154           

Re:JONIAN NIKOLOV

APPLICANT

AndComcare

RESPONDENT

DECISION

Tribunal:R CAMERON SENIOR MEMBER

Date:3 September 2019

Date of written reasons:        16 October 2019  

Place:Melbourne

The Tribunal is satisfied that the Applicant has failed within a reasonable time:

1.To proceed with the application; and

2.To comply with the directions made on 30 May 2019 and 8 August 2019 in relation to this application

Pursuant to section 42A(5) of the Administrative Appeals Tribunal Act 1975, the Tribunal dismisses the application.

[sgd]........................................................................

R CAMERON SENIOR MEMBER

Catchwords

PRACTICE AND PROCEDURE – Compensation – failure to comply with directions – failure to proceed with the application – significant delay – application dismissed

Legislation

Administrative Appeals Tribunal Act 1975

Safety, Rehabilitation and Compensation Act 1988

Cases

Beard v Telstra (1999) 57 ALD 376

Guse v Comcare (1997) 49 ALD 288

REASONS FOR DECISION

R CAMERON SENIOR MEMBER

INTRODUCTION

1. On 13 April 2016 a review officer of the Respondent affirmed a decision previously made on 15 February 2016 denying a claim made by the Applicant under section 14 of the Safety, Rehabilitation and Compensation Act 1988 (“the decision”).

2. On 10 June 2016 the Applicant applied to the Tribunal for a review of the decision (“the application”).

3. The Applicant’s claim was for a diagnosed condition of “psychological injury depression” which the Applicant alleges arose as a result of “being subjected to sustained and unreasonable systematic psychological bullying”.[1] This is the subject matter of the application which apparently arose from his time as an employee of the Commonwealth Scientific and Industrial Research Organisation (CSIRO) for whom he worked from June 1998 until he left in approximately December 2016.[2] He was employed as a Research Projects CSOF, Level 5. He is a mechanical/materials engineer and holds a doctorate.

   [1] The "Claim for Workers Compensation" is document T3 of the T-documents.

   [2] A letter to the Applicant dated 7 December 2016 from the Human Resources Manager of the CSIRO informing the Applicant that he had become redundant to its staffing requirements which included a "Formal notice and termination" of his employment is contained in the "Section 71 Documents" filed by the Respondent in this application.

4. Three years have now passed and the application has not been heard and determined.

5. At a directions hearing on 3 September 2019 the Tribunal made orders pursuant to section 42A(5) of the Administrative Appeals Tribunal Act 1975 (“the AAT Act”) dismissing the application as it was satisfied that the Applicant had failed within a reasonable time:

   (a)to proceed with the application; and

   (b)to comply with the directions made on 30 May 2019 and 8 August 2019 in relation to this application.

6. The Applicant, as he was entitled to do, has sought that the Tribunal provide reasons in writing for the decision to dismiss the application.

   SECTION 42A(5) OF THE AAT ACT

7. Section 42A(5) of the AAT Act provides as follows:

   If an applicant for review of the 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 review the decision.

8. The construction and application of section 42A(5) of the AAT Act has been the subject of some consideration in several authorities of the Federal Court of Australia.

9. Dismissal under the section should be done sparingly and is a decision of last resort, particularly in a case where the genuineness of the claim is not in dispute.

10. An applicant should be given the opportunity to explain or advance reasons why the matter should nevertheless proceed.[3]

    [3] See Guse v Comcare (1997) 49 ALD 288 at 291.

11. It has also been held that the power to dismiss pursuant to section 42A(5) of the AAT Act requires that, at the time of the decision by the Tribunal to dismiss the application pursuant to that subsection, a reasonable time has elapsed and there has been a failure by the applicant to prosecute his application.[4]

    [4] Beard v Telstra (1999) 57 ALD 376 at 382.

    CONSIDERATION

12. It is appropriate to provide a timeline concerning several events that have occurred in the course of this application.

13. A conference was first listed in this matter for 10 August 2016. A notice informing the Applicant of the conference was sent by post to him at the address contained in the application he lodged with the Tribunal. On 8 August 2016, two days before the date appointed for the conference, a tribunal officer telephoned the Applicant. He advised her that he had not received the notice from the Tribunal and requested the conference be rescheduled two weeks later.

14. Accordingly, a conference was relisted for 24 August 2016. That conference was held. The matter was not resolved.

15. A further conference was fixed for 26 October 2016. That conference was vacated at the request of the Applicant who stated in an email to the Tribunal that he was not prepared, and needed more time to do so. He also stated in that email that he had spoken to a lawyer from Slater and Gordon Lawyers and was hopeful that they might be able to act for him. Unfortunately, this did not come to pass.

16. A conference was further listed for 9 December 2016. Once again at the request of the Applicant this conference was vacated. The Applicant made the request in an email to the Melbourne Registry of the Tribunal on 30 November 2016. It also stated that in the last two days he had been contacted by a lawyer, presumably for the purposes of being retained to act for him. Once again this did not come to pass. The conference was vacated.

17. Following receipt of the Applicant’s email to the Tribunal on 30 November 2016 a letter was sent by Slater and Gordon Lawyers on 6 December 2016 advising that they now acted on behalf of the Applicant.

18. A further conference was fixed for 15 February 2017. That conference did not resolve the matter.

19. Yet another conference was listed for 22 March 2017. That conference was vacated following a request by Slater and Gordon Lawyers due to their unavailability on that date.

20. Fortunately, due to cooperation between the parties a conference was able to be listed and conducted on 21 March 2017. The Conference Registrar presiding at that conference made standard directions for both parties to provide statements of evidence, all reports, records and any other documents on which they intended to rely and Statements of Facts and Contentions. The Applicant was required to lodge with the Tribunal and serve his material by 21 April 2017 and the Respondent was to do the same by 5 May 2017. It should be observed that paragraph 2 of the “Notes to Direction” warned that the Tribunal can dismiss an application if an applicant fails within a reasonable time to comply with a direction made by the Tribunal. That paragraph of the Notes to Directions also specifically refers to the power of the Tribunal to do so in section 42A(5)(b) of the AAT Act.[5]

    [5] Hereinafter, this warning is referred to as "the section 42A(5)(b) warning".

21. At the request of the Applicant by a direction made on 21 April 2017 the dates for lodging with the Tribunal and serving each party’s material were extended to 8 May 2017 for the Applicant and 22 May 2017 for the Respondent. The directions made on 21 April 2017 contained the section 42A(5)(b) warning.

22. On 18 April 2017 Slater and Gordon Lawyers advised the Tribunal that they no longer acted on behalf of the Applicant, and that in future he would be representing himself.

23. The Applicant did not comply with the directions made by the Tribunal as varied. On 29 May 2017 the lawyer for the Respondent notified the Tribunal and the Applicant by email that they had not been served with any materials by the Applicant as required by the directions made on 21 April 2017. The Respondent’s lawyers email also requested that the matter be listed for a non-compliance directions hearing. The email additionally stated that the Respondent also intended to apply for a dismissal of the application at “any such hearing in accordance with section 42A of the AAT Act”.

24. On 7 June 2017 a non-compliance hearing was held before a Deputy President of the Tribunal. Directions were made by the Deputy President for the Applicant to lodge with the Tribunal and serve his material on or before 28 July 2017 and for the Respondent to lodge with the Tribunal and serve its material by 11 August 2017. The Directions of 7 June 2017 also contained the section 42A(5)(b) warning.

25. A “Further Amended Direction” was made by the Deputy President of the Tribunal on 2 August 2017. It followed a written request by an email from the Applicant of 25 July 2017 seeking an extension of several months to lodge with the Tribunal and serve on the Respondent his material. The Respondent consented to a further extension of three months for the filing of the Applicant’s material. The Further Amended Direction recorded the receipt of the Applicant’s email of 25 July 2017 requesting an extension of the Amended Direction of 7 June 2017 and noted the Respondent’s consent to a three month extension. Accordingly, the Applicant was given until 30 October 2017 to lodge with the Tribunal and serve his material on the Respondent who were given until 13 November 2017 to do the same. Once again the Further Amended Direction contained the section 42A(5)(b) warning.

26. By an email of 30 October 2017 the Applicant requested “a few days extension” to lodge with the Tribunal and serve on the Respondent the material upon which he intended to rely. The Respondent promptly replied to this request in an email to the Tribunal, which firstly, sought a dismissal of the application pursuant to section 42A (5) of the AAT Act, and outlined a short history of the matter and in particular the Applicant’s non-compliance with previous directions.

27. The Applicant lodged some material with the Tribunal on 3 November 2017. However, approximately five days later the Respondent had not received this material. As a result of this fact the Deputy President made “Further Amended Direction No 2” permitting the Respondent to lodge with the Tribunal, and serve its material on or before 4 December 2017. Once again, the Further Amended Direction No 2 contained the section 42A(5)(b) warning.

28. The Respondent lodged its material on 21 November 2017. Emails then passed between the parties and the Tribunal. In short, in that email trail the Applicant stated he needed more time to, as he put it, rebut the material that had been lodged with the Tribunal, and served by the Respondent. The Respondent consented to the extension of time sought by the Applicant, and this led to the Deputy President making “Further Amended Direction No 3”. By this direction the Applicant was granted until 27 February 2018 to lodge with the Tribunal, and serve on the Respondent, his reply to the Respondent’s documents lodged on 22 November 2017. Once again the Further Amended Direction No 3 contained the section 42A(5)(b) warning.

29. The Applicant was unable to comply with the time prescribed by Further Amended Direction No 3 for lodging and serving his material in reply. There was some email traffic between the parties concerning the matter which led to “Further Amended Direction No 4” being made by the Deputy President on 13 March 2018. This Further Amended Direction was made by consent, and required the Applicant to lodge with the Tribunal and the Respondent any material upon which he intended to reply on or before 10 April 2018. Once again, this Further Amended Direction contained the section 42A(5)(b) warning.

30. Hearing certificates were lodged and on 6 August 2018 the application was listed for hearing for five days commencing 26 November 2018. A notice of that listing was sent to both parties on that date.

31. On 22 November 2018 the Applicant stated that he was unable to proceed on 26 November as he had been unable to obtain legal representation. He stated that he was unable to represent himself due to his “current fragile state”. No medical evidence was produced in support of the application. He also sought an adjournment of the matter until early 2019.

32. The Respondent neither consented nor objected to the Applicant’s request to adjourn the hearing scheduled to commence on 26 November. The adjournment was granted by the Tribunal.

33. On 6 January 2019 the Applicant sought a “six-week extension which would give me some opportunity to search for the assistance that I require.” He stated that he had been unable to find suitable legal representation since the matter had been adjourned in late November. Once again, the Respondent neither consented nor objected to the Applicant’s request, and left the decision to the Tribunal. The Tribunal granted the extension sought.

34. On 24 February 2019 the Applicant in a letter to the Tribunal, sought a further four weeks extension to commence work with his legal representatives and prepare himself for the large volume of documents for the hearing.

35. The matter was ultimately listed for a further telephone directions hearing on 3 April 2019. The Applicant produced a statutory declaration made on 2 April 2019 which he stated he had been admitted to the East Bentleigh Community Care Unit of Monash Health for an initial period of 28 days. In that statutory declaration he also stated that he would attend the directions hearing on 3 April 2019, “under sufferance” as he did not want his case to be dismissed. He sought to have the matter postponed until he was well enough to deal with the case and obtain legal representation. An adjournment was granted and it was relisted for 30 May 2019. The matter was listed for a further telephone directions hearing on 30 May 2019. The Applicant appeared for himself (having not obtained any legal representation) and Mr Wallace of counsel appeared for the Respondent. Mr Wallace on behalf of the Respondent sought to have the matter dismissed pursuant to section 42A(5) of the AAT Act. The Applicant opposed that application, and sought further time to secure legal representation. The Tribunal declined to make an order dismissing the application under section 42A(5). However, the Applicant was warned that the matter had been delayed for too long, that he needed to obtain legal representation or be ready to have the matter fixed for hearing. The directions made that day also noted that the matter was to be listed for a telephone directions hearing not less than two months from that day. It was a significant indulgence granted by the Tribunal to the Applicant.

36. A direction was also made on 30 May 2019 in the following terms:

    “At the next Directions Hearing, the Applicant is to show cause why the Application should not be dismissed pursuant to section 42A (5) of the Administrative Appeals Tribunal Act is 1975 in the event that he has not taken further steps to proceed with the Application by that date.”

37. After the directions hearing on 30 May 2019 the Applicant in email and telephone contact with the Tribunal, stated amongst other things, that he was “actively” endeavouring to obtain legal representation.

38. A further directions hearing by telephone was listed for 8 August 2019. At that hearing the Applicant appeared for himself and Mr Wallace of counsel appeared for the Respondent. The Applicant had taken no steps since the previous directions hearing on 30 May 2019. There was no explanation from the Applicant for his failure to take any steps since the previous directions hearing. He stated that he wished to lodge further lay and expert evidence. He stated that there was a large amount of new evidence. The nature and substance of such new evidence was not identified by him at that hearing. Once again Mr Wallace sought to have the application dismissed under section 42A(5) of the AAT Act. The Tribunal declined to make such an order. The long history of delay in prosecuting the matter was explained to the Applicant by the Tribunal.[6] He acknowledged the summary of the history of delay outlined by the Tribunal was correct. He requested “one last chance” for leniency. However, once again the Applicant was informed by the Tribunal that he needed to proceed. He was also informed that on the next directions hearing the Tribunal would be sympathetic to any application that may be made by Mr Wallace’s client in the event that the Applicant had not taken effective steps to prosecute his case. These steps included compliance with the terms of directions made by the Tribunal, and preparedness to be ready to proceed to a hearing of the application.

    [6] Not to mention that it was after the Applicant’s submissions, carefully canvassed by Mr. Wallace during his submissions which the Applicant must have fully comprehended.

39. Mr Wallace carefully submitted that there was no evidence of the Applicant having ever done anything since the last directions hearing. He also submitted that although the Applicant stated that he had new evidence, there had been nothing produced since 2018. He also submitted that the Applicant had not framed his case in a way that enabled his client to fully appreciate the witnesses that were to be called, or the substance of the evidence to be adduced from them. Much of what was submitted by the Applicant was irrelevant. The Applicant had missed every possible opportunity to advance his cause and had not yet done so. He requested that a firm direction be given that a list of witnesses that the Applicant proposed a call at the hearing of the application, and signed statements of evidence to be given by them, be lodged with the Tribunal and served on the Respondent. He submitted there needed to be a response that identified what his doctors said was significantly causative of the Applicant’s complaints giving rise to the claim against his client. There was no evidence of it at that time. He sought a step by step process that the Applicant had to meet. Unless these steps were complied with he further contended the Applicant should not be allowed to proceed. Given the history of the matter and indeed an examination of the material filed by the Applicant the Tribunal was amenable to this submission.

40. Directions were made on 8 August 2019 by the Tribunal expressed to be “one last chance” requiring the Applicant to lodge with it and serve on the Respondent a list of witnesses that he proposed to call at the hearing of the application, and a summary of the substance of evidence to be given by each witness.

41. Additionally, the direction made on 8 August 2019 also provided the following:

    “1. The Application will be set for hearing  in the week beginning 25 November 2019 subject to Registry approval; and”

    “2. If the Applicant fails to comply with direction 1, the Tribunal will consider any application the Respondent may be advised to make under section 42A(5) of the Administrative Appeals Tribunal Act 1975.”

42. Both before and after pronouncing the precise terms of the directions, the Tribunal explained to the Applicant precisely what he had to do in terms of compliance with the first paragraph of the direction. The Applicant stated that he understood what was required of him. He was also warned that if he did not comply the Tribunal would be minded to exercise the power contained in section 42A(5) of the AAT Act. It was also strongly recommended that he, as soon as possible, obtain competent legal advice.

43. The Direction made on 8 August 2019 also contained the section 42A(5)(b) warning.

44. In purported compliance with the direction of 8 August 2019 the Applicant lodged a document with the Tribunal on 21 August 2019 entitled “Applicant’s witness list” which identified 23 witnesses. The substance of the witnesses’ evidence was identified in four short paragraphs as follows:

    “1. To prove and confirm that this injury is a work-related injury;

    2. That, the employer failed to deal in this case with the necessary duty of care;

    3. That, the employer breached the code of practice by forcing redundancy process while the employee is on a return to work program; and

    4. That, because of the above failures, the condition deteriorated and has led to hospitalisation and permanent disability.”

1. Where each witness was identified in the list they were allocated a paragraph number of one or more of the above statements concerning the evidence they would give, or it was anticipated, they would give. The contents of each of the paragraphs speak for themselves. However, it is worthwhile noting that they are general and essentially meaningless, in the context of this application. There is no particularity, or detail, provided in those paragraphs about the evidence that each proposed witness will give. Indeed, no evidence that would enable the Respondent to know precisely what evidence each witness would give.

2. Following the provision of the “Applicant’s witness list” the Respondent on 22 August 2019 requested the Tribunal convene a further telephone directions hearing. One reason why a further directions hearing was sought was to determine why the Applicant needed to call each of the witnesses listed in the Applicant’s list. It was also to object to the calling of the former solicitor, the delegate and the review officer of the Respondent. Additionally, it was sought that the Applicant provide a signed witness statement with an outline of the evidence of each witness be provided.

3. A directions hearing was convened on 3 September 2019. Mr Wallace made a further application for dismissal under section 42A(5) of the AAT Act. He submitted amongst other things, that the Applicant’s so called witness list did not comply with the provisions of the direction made on 8 August 2019. He also submitted that the Applicant had been well and truly on notice for some time that the Respondent would be seeking to invoke the provisions of section 42A(5) because there was both a failure to proceed with the application, and to comply with previous directions, within a reasonable time. He emphasised the fact that the proceeding had been on foot for well over three years, and that there had been numerous acts of non-compliance of which this most recent one was an example.

4. Mr Wallace also made a submission with considerable force and effect, that three witnesses whom the Applicant sought to call were a former lawyer and two decision-makers of the Respondent. He submitted that there was no relevant or probative evidence that they could possibly give at a hearing. The Tribunal agrees with this submission. Further, the Tribunal views most seriously the unverified and un-particularised allegations insofar as they are made against the lawyer who is an Officer of the Court and has taken an oath (or affirmation) to properly conduct them self in that office.

5. The Applicant submitted that he had complied with the previous directions made, and in particular the direction made on 8 August 2019. He submitted that the so-called “short format” including the list of witnesses and the brief summary of their evidence in a generic way was sufficient. He then made a series of unhelpful statements which did not assist him. He stated that the process was giving him “similar treatment to Guantánamo Bay”, if he was required to make further statements. He then stated that the lawyers and decision-makers he sought to call as witnesses had “made false statements”, had “provided false statements” and were “making false evidence”. The Applicant further alleged that the Respondent was treating him “as an idiot” and that the process was a “Mickey Mouse game”. He requested that relying upon the material as filed he be permitted to proceed to the hearing of the application.

6. As has been contended for by the Respondent by Mr Wallace’s submissions in the directions hearing on 3 September 2019 and in in the Respondent’s Statement of Issues, Facts, Contentions, the voluminous supporting material filed by the Applicant on or about 3 November 2017 predominantly relates to the events that occurred after the Applicant developed the condition which is the subject of his claim for Workers’ Compensation made on 21 November 2015. In that claim the Applicant stated that he first noticed the complaint or illness that he made a Workers’ Compensation claim for, on or about 15 August 2010.[7] In the same document he answered that he first sought medical treatment for the illness on or about 5 June 2014.

   [7] Document T3 (page 7) of the T-documents.

7. The Respondent contended that the material filed by the Applicant predominantly relates to events after he first noticed the illness in 2010. Therefore, such material is not relevant to the review of this decision. This does leave a gap in the evidence and it is appropriate that the Applicant provide, before the case can be heard, relevant details to the Respondent, and for that matter the Tribunal, articulating how his employment with CSIRO contributed to a significant degree to the illness he has claimed for. Such illness it will be recalled he first noticed in 2010. 

8. As noted earlier the application has been on foot for three years. No steps were taken between the directions hearing on 30 May 2019 and the directions hearing on 8 August 2019. No explanation was offered to the Tribunal for this failure despite the warning given to him at the hearing on 30 May 2019 and the express provision in paragraph 1 of those directions requiring the Applicant to show cause why his application should not be dismissed under section 42A(5) of the AAT Act in the event that he had not so taken further steps to proceed by the next directions hearing. The unexplained failure to take any steps between those directions hearings was a further failure on the part of the Applicant to proceed with the application within a reasonable time.

9. The direction made on 8 August 2019 that the Applicant provide a list of witnesses that he proposed call together with a summary of the substance of the evidence to be given by each witness was not unreasonable, nor unfair to him. It was also not unreasonable given the unexplained failure previously identified of the Applicant to take any steps between    30 May and 8 August 2019. It is also appropriate and procedurally fair to the Respondent that this direction be complied with so that the Respondent would know the substance of the case that it had to meet.

10. This failure to comply with paragraph 1 of the direction of 8 August 2019 needs also to be looked at in the context of the repeated adjournments of conferences, failures to comply with directions, or be ready for the hearing date that was fixed for five days in November 2018, that have been identified earlier in these reasons. It has been these repeated failures (sometimes unexplained or unsupported by verified medical evidence) on the part of the Applicant to proceed with the application, which has caused this case not to be disposed of after three years. It cannot be said that after three years and all the failures on the part of the Applicant, that he has proceeded with the application in a reasonable time. Even making allowances for his periods of apparent ill-health (for which there has been scant evidence) and the fact that he has predominantly been self-represented throughout the time that this application has been on foot, the review has not been conducted within a reasonable time. There have been many indulgences granted to the Applicant to enable him to secure legal representation and his health to improve; not to mention undertake appropriate preparation. Notwithstanding these indulgences, he has not been able to prepare the case such that it is ready for hearing. It has not been prepared adequately so that the Respondent knows what case it has to meet.

11. It will also be recalled that the Applicant has been repeatedly informed of the operation and effect of section 42A(5) of the AAT Act from comparatively early in this proceeding.[8] In addition to the fact that most of the copies of the Directions made by the Tribunal and served upon him contained the section 42A(5)(b) warning. There has been the correspondence from the Respondent’s lawyers, outlined above, warning that they would seek an order under this section.

    [8] It was first raised by the Respondent in an email to the Tribunal (which the Applicant was copied in on) on 29 May 2017.

12. Further and critically, to this decision from the directions hearing on 30 May 2019 and thereafter, specific reference was made to the section in the course of that directions hearing, and that of 8 August 2019. Counsel for the Respondent made applications for dismissal under section 42A(5) of the AAT Act on each of those days. He did so fairly, precisely and on terms that could have left the Applicant in no doubt of the consequences of failing to comply with the directions of the Tribunal.

13. Also the Tribunal during the hearings on 30 May 2019 and 8 August 2019 made very specific reference to section 42A(5) of the AAT Act and included a direction on 30 May 2019 calling on the Applicant to show cause why the power under that section should not be exercised if he had not taken further steps to proceed, and in the case of the 8 August 2019 hearing that it would consider any application that might be made by the Respondent. By reason of these facts the Applicant was fairly on notice of the potential consequences if he did not firstly, abide by the directions of the Tribunal, and secondly, have his case ready to proceed. Also there has to be a degree of realism in this matter given that the Applicant is an intelligent man who as noted earlier, is a mechanical/materials engineer and holds a doctorate, who did not have any difficulty understanding the meaning and effect of section 42A(5); particularly after its consequences were explained to him both in the course of dialogue with the Tribunal, and having had the benefit of a clear and unequivocal exposition of it, not to mention its consequences, by counsel for the Respondent.

14. There has to be a limit to the indulgences that the Tribunal will extend to the Applicant in these circumstances. He has failed to give to the Respondent many of the basic integers of his case which it is entitled to. He has not therefore, proceeded after three years with the application within a reasonable time.

15. The Applicant also has consistently failed to adhere to several directions that have been made. Most importantly, he has failed to comply with the direction contained in paragraph 1 of the orders made on 8 August 2019. There was also the unexplained failure to take any steps between that hearing and 30 May 2019 as previously mentioned.

16. Another concern of the Tribunal is that the Applicant has also been concerned with matters that are fundamentally irrelevant to the application. This includes the conduct of former employees and officers of his then employer the CSIRO, solicitors and a review officer which the Applicant focused on rather than prepare his case articulating how his employment with CSIRO contributed to a significant degree to the illness he has made a Workers’ Compensation claim for. Another irrelevant factor often relied on by the Applicant in some of his material concerned whether he was genuinely made redundant by the CSIRO. Similarly, this is not relevant to how his employment with CSIRO contributed to a significant degree to the illness he has claimed for. Also, as noted earlier so much of the material filed by the Applicant on 3 November 2017 relates to irrelevant matters after he incurred the illness complained of.

17. Considering all of these matters it cannot be said in the relevant sense required by section 42A(5)(a) of the AAT Act that he has proceeded with the application in a reasonable time. Similarly, for the reasons given above, he has not complied with directions of the Tribunal in relation to the application made on 30 May 2019 and 8 August 2019 despite being well warned of the consequences if he failed to do so. This enlivens the discretion of the Tribunal conferred by section 42A(5) of the AAT Act to dismiss the application without proceeding to review the decision.

18. The resorting to irrelevant matters, the failure to articulate how his employment with CSIRO contributed to a significant degree to the illness for which he claims, his overall delay in prosecuting his case together with the failure to comply with directions made in relation to the application on 30 May 2019 and 8 August 2019, do make the Tribunal question the merits, if not the genuineness, of the Applicant’s claim. In these circumstances the Tribunal considers that dismissing the application is a last resort.

19. The Applicant has been given adequate opportunity to explain or advance reasons why the application should nevertheless proceed. The Tribunal is satisfied that he has not done so.

20. In the circumstances and given the matters articulated previously in these reasons, the Tribunal concludes that the discretion conferred by section 42A(5) of the AAT Act to dismiss the application without proceeding to review the decision should be exercised against the Applicant.

    DECISION

21. By reason of the foregoing matters the Tribunal is satisfied that the Applicant has failed within a reasonable time:

    (a)To proceed with the application; and

    (b)To comply with the directions made on 30 May 2019 and 8 August 2019 in relation to this application.

22. Therefore, pursuant to section 42A(5) of the AAT Act the Tribunal dismisses application.

I certify that the preceding 66 (sixty-six) paragraphs are a true copy of the written reasons for the decision herein of R Cameron, Senior Member

[sgd]........................................................................

Associate

Dated: 16 October 2019

Date of directions hearing:	3 September 2019
Applicant:	By telephone
Counsel for the Respondent:	John Wallace