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

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”).
On 10 June 2016 the Applicant applied to the Tribunal for a review of the decision (“the application”).
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.
Three years have now passed and the application has not been heard and determined.
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.
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
Section 42A(5) of the AAT Act provides as follows:
If an applicant for review…

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.

Continue reading NIKOLOV and Comcare (Compensation)

Details

AGLC: NIKOLOV and Comcare (Compensation) [2019] AATA 4235
Case: [2019] AATA 4235
Decision Date: 3 September 2019

CaseChat Overview and Summary

This matter concerned an application by Mr Nikolov to the Administrative Appeals Tribunal (AAT) for compensation, with Comcare as the respondent. The dispute ultimately centred on the Applicant's persistent failure to prosecute his application and comply with directions issued by the Tribunal, leading to the dismissal of his application. The decision was made by Senior Member R Cameron.

The primary legal issue before the Tribunal was whether it should exercise its discretion under section 42A(5) of the *Administrative Appeals Tribunal Act 1975* (Cth) to dismiss Mr Nikolov's application. This power to dismiss is exercisable where a reasonable time has elapsed and the applicant has failed to prosecute their application or comply with Tribunal directions. The Tribunal was required to consider the history of the proceedings to determine if these conditions were met.

Senior Member Cameron's reasoning involved a detailed chronological account of the application's progression, highlighting numerous instances where the Applicant requested adjournments or failed to provide required documentation. The Tribunal noted that a warning regarding the power to dismiss for non-compliance with directions, referencing section 42A(5)(b) of the *AAT Act*, was explicitly provided to the Applicant. The Tribunal concluded that a reasonable time had elapsed and that the Applicant had failed to proceed with his application and comply with directions issued on 30 May 2019 and 8 August 2019.

Consequently, the Tribunal exercised its discretion under section 42A(5) of the *AAT Act* and dismissed Mr Nikolov's application.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

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Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

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

Ratio Decidendi

Legal Principle Established

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 It is appropriate to provide a timeline concerning several events that have occurred in the course of this application. 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. Accordingly, a conference was relisted for 24 August 2016. That conference was held. The matter was not resolved. 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. 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. 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. A further conference was fixed for 15 February 2017. That conference did not resolve the matter. 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. 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".