O’Sullivan and P & O Maritime Services Pty Ltd (Compensation) - [2019] AATA 6889

O’Sullivan and P & O Maritime Services Pty Ltd (Compensation) [2019] AATA 6889 (24 December 2019)
Division:GENERAL DIVISION
File Number: 2015/0698
Re:Michael O’Sullivan
APPLICANT

AndP & O Maritime Services Pty Ltd
RESPONDENT

DECISION
Tribunal:Mr S. Webb, Member
Date:24 December 2019
Place:Perth

Application dismissed.
............................[sgd]............................................
Mr S. Webb, Member
CATCHWORDS
SEAFARERS’ COMPENSATION – compensation claim refused by primary determination – request for reconsideration – time within which reconsideration decision is to be made – deemed refusal – application for review by the Tribunal – Tribunal has jurisdiction
PRACTICE AND PROCEDURE – dismissal – purported revocation of request for reconsideration of primary determination – purported revocation of application for review by the Tribunal – applicant requested dismissal for want of jurisdiction – effect of purported revocations – meaning of ‘notify the Tribunal to the effect that the application is discontinued or withdrawn’ – applicant self-represented, on medication and unwell –latitude – time allowed to obtain legal representation – no medical evidence of prospect of recovery – applicant failed to appear at a directions hearing – applicant failed to proceed with his application within a reasonable time – applicant failed to comply with directions within a reasonable time – mandatory considerations – assessment of applicant’s explanations – applicant expressly stated his unwillingness to participate further in the proceedings without legal representation – requirement for each party to be given a reasonable opportunity to present their case – obligation to proceed in fairness to both parties – application dismissed
LEGISLATION
Administrative Appeals Tribunal Act 1975 (Cth) – ss 2A, 25, 29, 33, 34J, 39, 42A, 42C, 43, 45
Evidence Act 1995 (Cth) – s 98
Seafarers’ Rehabilitation and Compensation Act 1992 (Cth) – ss 4, 54, 55, 61, 67, 73, 76, 78, 79, 88, 89

CASES
Andelman v Secretary, Department of Families, Housing, Community Services and Indigenous Affairs (2011) 213 FCR 345; [2011] FCA 299
Beard v Telstra Corporation Ltd (1999) 57 ALD 376; [1999] FCA 999
Berry v Commissioner of Taxation (2015) 149 ALD 270
Charara v Commissioner of Taxation (2016) 160 ALD 57; [2016] FCA 451
Collector of Customs (NSW) v Brian Lawlor Automotive Pty Ltd [1979] FCA 21
Guse v Comcare (1997) 49 ALD 288
Mitchell and Comcare [2016] AATA 141
MZWUA v Minister for Immigration and Multicultural Affairs [2006] FCA 1625
O’Sullivan and P & O Maritime Services Pty Ltd [2016] AATA 283
O’Sullivan and P & O Maritime Services Pty Ltd [2016] AATA 865
O’Sullivan and P & O Maritime Services Pty Ltd [2018] AATA 2899
O’Sullivan and P & O Maritime Services Pty Ltd [2019] AATA 126
O’Sullivan and P & O Maritime Services Pty Ltd [2019] AATA 2966
O’Sullivan and P & O Maritime Services Pty Ltd [2019] AATA 4759
O’Sullivan v Barker J & Ors [2017] HCA P38 of 2017
O’Sullivan v Barker J & Ors [2018] HCASL 56; HCA P62 of 2017
O’Sullivan v P & O Maritime Service Pty Ltd [2017] FCA 508
O’Sullivan v P & O Maritime Services Pty Ltd [1998] DCWA CIV2466 of 1997
O’Sullivan v P & O Maritime Services Pty Ltd [2016] FCA 969
O’Sullivan v P & O Maritime Services Pty Lt
d [2017] FCA 47

R V Gale
[2012] NSWCCA 174

REASONS FOR DECISION
Mr S. Webb, Member
24 December 2019

Michael O’Sullivan sustained an injury to his lower back in 1993. At the time, he was employed by P & O Maritime Services Pty Ltd (the Company). He claimed and was paid benefits under the Maritime Industry Offshore Oil and Gas Operations Award 1991 (the Award). After 100 weeks, payment of benefits ceased. Later, in 2014, Mr O’Sullivan made a further claim against the Company for compensation in respect of a back injury.

The Company rejected the claim. Mr O’Sullivan applied for reconsideration. As no reconsideration decision was made within the time allowed under s 79(6) of the Seafarers’ Rehabilitation and Compensation Act 1992 (the SRC Act), the claim was taken to be refused. It was in relation to this deemed decision that Mr O’Sullivan applied for review by the Tribunal.
In the course of the resulting proceedings, which have been protracted and difficult, issues of jurisdiction have arisen – Mr O’Sullivan requested dismissal of his application under

s 42A(4) of the Administrative Appeals Tribunal Act 1975 (the AAT Act). Furthermore,

Mr O’Sullivan notified the Tribunal that he revoked his request to the Company for reconsideration and his application to the Tribunal for review. He also informed the Tribunal he is not well and is unwilling to participate further in the proceedings without legal representation.
The Company applied for Mr O’Sullivan’s application to be dismissed on grounds that he failed appear at a directions hearing, and he failed to proceed with the application and to comply with Tribunal directions within a reasonable time.
It is these matters I must presently decide.
FACTS
The background facts of Mr O’Sullivan’s application are set out in previous decisions and judgments:
(a)O’Sullivan v P & O Maritime Services Pty Ltd
[1998] DCWA CIV2466 of 1997

(17 September 1998);
(b)O’Sullivan and P & O Maritime Services Pty Ltd [2016] AATA 283 (3 May 2016);
(c)O’Sullivan v P & O Maritime Services Pty Ltd [2016] FCA 969 (9 August 2016);
(d)O’Sullivan and P & O Maritime Services Pty Ltd [2016] AATA 865 (10 October 2016);
(e)O’Sullivan v P & O Maritime Services Pty Ltd [2017] FCA 47 (2 February 2017);
(f)O’Sullivan v P & O Maritime Service Pty Ltd [2017] FCA 508 (9 May 2017);
(g)O’Sullivan v Barker J & Ors [2017] HCA P38 of 2017 (8 November 2017);
(h)O’Sullivan v Barker J & Ors [2018] HCASL 56; HCA P62 of 2017 (21 March 2018);
(i)O’Sullivan and P & O Maritime Services Pty Ltd [2018] AATA 2899 (15 August 2018);
(j)O’Sullivan and P & O Maritime Services Pty Ltd [2019] AATA 126 (8 February 2019);
(k)O’Sullivan and P & O Maritime Services Pty Ltd [2019] AATA 4759 (7 August 2019); and
(l)O’Sullivan and P & O Maritime Services Pty Ltd [2019] AATA 2966 (13 August 2019).
I adopt, but for present purposes do not need to repeat, the facts set out in paragraphs [8] to [76] in O’Sullivan and P & O Maritime Services Pty Ltd [2019] AATA 126.
In order to assist understanding, I will set out facts that are relevant to matters I must presently decide.
On 16 December 1993 while employed by the Company as a Greaser on the Lady Dawn, Mr O’Sullivan injured his back in a fall.[1]
[1] T15.
He was employed under the Maritime Industry Offshore Oil and Gas Operation Award 1991 (the Award).[2]
[2] T22, folio 9.
Mr O’Sullivan informed the Company that he wanted to claim benefits under the provisions of the Award rather than compensation under the SRC Act.[3] There is a question of whether this is a valid and effective election for the purposes of s 61 of the SRC Act. This is not a matter I need to resolve for present purposes.
[3] T16, T17 and T27 refer.
From 17 December 1993 to 16 November 1995, the Company paid weekly incapacity benefits under the Award.
Mr O’Sullivan’s employment with the Company came to an end on 19 December 1994.
On 16 November 1995, the Company’s insurer, American Home Assurance Company, ceased paying Mr O’Sullivan benefits for lost wages as the 100-week limit under clause 30 of the Award had been reached.
Mr O’Sullivan commenced a common law claim against the Company in the District Court of Western Australia.[4]
[4] CIV 2466 of 1997; Lib No D980258.
On 17 September 1998, in consideration of Mr O’Sullivan’s election to receive benefits under the Award rather than compensation under the SRC Act, O’Sullivan DCJ ruled that:
… I am of the view that s 54(1)(a) does operate to preclude the plaintiff from instituting or proceeding with a common law action against the defendant. … it is clear, in my view, that the plaintiff has no right by virtue of s 55 to institute or proceed with a common law action against the defendant.[5]
[5] CIV 2466 of 1997; Lib No D980258.
More than 16 years later, on 12 November 2014, Mr O’Sullivan claimed compensation in respect of an alleged injury to his lower back on 26 August 2014.[6] The injury was described as ‘Lumbrosacral radiculopathy – slipped disc’ affecting ‘Lower back – left leg’.[7] Mr O’Sullivan nominated the Company as his employer ‘at [the] time of the injury’.[8]
[6] T8.
[7] Ibid, folio 41.
[8] T8 folio 39.
The alleged injury is said to have occurred at ‘945am-1005am’ on 26 August 2014 in the following circumstances:
27.Where did the injury or illness happen? …
Outside maritime union and maritime mining power credit union building
…
31.Please describe, in your own words, the events that led to your injury or illness, including unexpected events
Leaving the building after paying union fees and registering for employment and accidently [sic] missed the step and jarred my back[9]
[9] Ibid, folios 41-42.
In the compensation claim form, Mr O’Sullivan indicated that he was claiming for:
lost wages resulting from incapacity for work
medical and related expenses
travel expenses attending medical examination/rehabilitation …
alterations, aids or appliances
household and attendant care services[10]
[10] Ibid, folio 39.
In the compensation claim form, Mr O’Sullivan signed a declaration which includes the following election: ‘I elect to claim benefits under the Seafarers Act and not under an industrial award or agreement’.[11]
[11] Ibid, folio 43.
On 21 November 2014, under s 67 of the SRC Act, the Company requested the following information from Mr O’Sullivan:
Please provide the following information in writing:
1.Proof of employment with P&O Maritime in 1993.
2.Claim number and details of claim relating to the incident in 1993 with P&O Maritime including any medical reports and dates of incapacity.
3.Details of current claim including medical reports eg MRI report and relationship with employment at P&O Maritime.
4.Details of claims for lost wages resulting from incapacity for work, medical and related expenses, travel expenses, alterations, aids or appliances, household and attendant care services.
5.History of employment from 1993 – 2014.
Please note that we may choose to contact Dr John Troy and Dr Bradley Price to seek further clarification around any of the above points. I look forward to hearing back from you as soon as possible.
Please note that the 12 day liability determination time frame has ceased until this information is received.[12]
[12] Exhibit 3, ‘14’; T9.
As can be seen, the s 67 notice affected the time within which Mr O’Sullivan’s compensation claim was to be determined. I note in passing that the time in which a compensation claim is to be determined is worked out under s 73 of the SRC Act. Where a notice under s 67 is given to a claimant within 12 days of the claim being lodged, the time allowed is extended by operation of s 73(2)(b) of the SRC Act.
On 1 December 2014, Mr O’Sullivan provided the Company with following information:
I reply in sequence to the numbered questions
1.Copy of Discharge from Offshore Supply Vessel {enclosed}
2.Claim no 3898
Details.
P&O Maritime Services PTY LTD Paid fortnightly Compensation for lost wages to the Claimant effective from 17/12/93
The Claimant was removed from Register A in accordance with clause 3{r}{v} schedule x Maritime Industry Seagoing Award due to injury extending beyond 6 months effective 17/6/94
P&O Maritime Services PTY LTD terminated employment effective 19/12/94
P&O Maritime Services PTY LTD ceased payment of fortnightly Compensation for lost wages effective 16/11/95
P&O Maritime Services PTY LTD did not contribute to the Claimants medical expenses
The Claimant has enclosed a Progress/Fitness Medical Certificate dated 1/3/94 from DR John Troy that relates to the injury on the 16/12/93
At the time of writing the above mentioned Certificate is all that can be Located
3.A copy of Hospital Attendance and Diagnosis is enclosed dated 26/8/2014
Your request under Section 67 {SRCA} and the information supplied establishes a Relationship
4.The Claimant makes Request for lost wages under the Regulations of the {SRCA}
The Claimant reserves his right to claim all other entitlements
5.The Claimant was employed
Offshore Marine Services 2006 2007
Svitzer Offshore PTY LTD 2008
Maersk Shipping 2008 2009
Seacorp Coastal Shipping 2009 2010
Tams Dredging 2010 2011
The Claimant did not resume duties in the Maritime Industry after 16/12/1993 until 19/7/2006
The Claimant encloses a further Progress Certificate Of [sic] Capacity DR Price dated 9/10/2014
The Claimant has answered each and every question requested under section 67 {SRCA} in a truthful manner[13]
[13] Exhibit 3, ‘15’; T11, folio 47.
On 8 December 2014, the Company determined to reject the claim. The reasons given for this determination were:
You were not an employee of P&O Maritime at the time of your injury…
…
You were not requested nor required to attend any place to register employment with P&O Maritime Services and you are not currently registered [as a] seafarer on a P&O Maritime prescribed vessel.[14]
[14] T12, folio 48 and 49.
On the same day, 8 December 2014, the Company provided two documents to the Seacare Authority. The first is a Report on the Employer’s Determination of a Claim for Workers’ Compensation form.[15] This document states that the time period for determining Mr O’Sullivan’s claim was not extended. This appears to be incorrect as s 73(2)(b) applied to suspend time when the notice under s 67 was given to Mr O’Sullivan, with a new

12-day period to commence once he complied with the notice.
[15] Written submissions of the Respondent, 30 October 2019, Attachment E.
The second document is a short letter, as follows:
To whom it may concern,
Re: Claim for Workers’ Compensation Lodged on P&O Maritime Services
Please find enclosed a copy of a Claim for Workers’ Compensation for Mr Michael O’Sullivan that has been received by P&O Maritime Services on 12/11/2014. P&O Maritime Services has rejected liability for this claim on 8/12/2014 after the determination period was ceased due to insufficient information.[16]
[16] Written submissions of the Respondent, 30 October 2019, Attachment F.
As can be seen, the reason given for the rejection is not in the same terms as the reason given in the determination.
These two documents were not disclosed to Mr Sullivan at the time.
On 10 December 2014, Mr O’Sullivan sent the Company a request for reconsideration of the determination rejecting his compensation claim.[17] The Registered Post Delivery Confirmation docket reveals the request was delivered to the Company on

12 December 2014.[18]
[17] T13, folio 50.
[18] Written submissions of the Respondent, 30 October 2019, Attachment A.
This date is significant as it marks the start of the period in which a reconsideration decision is to be made under s 79 of the SRC Act.
The Company sought a report from Comcare, as required under s 78(4) of the SRC Act. The resulting report is dated 29 January 2015.[19]
[19] T14.
The Company did not make a reconsideration decision within 60 days of

12 December 2014. Whereupon, under s 79(6) of the SRC Act, it is deemed to have made a decision rejecting Mr O’Sullivan’s compensation claim.
On 12 February 2015, Mr O’Sullivan applied for review by the Tribunal.[20]
[20] T1, folios 3 and 4.
On 27 February 2015, an interlocutory hearing was conducted before (then) Deputy President Hotop. The Deputy President decided the Tribunal had jurisdiction to proceed with Mr O’Sullivan’s application for review of the Company’s deemed refusal decision.
On 27 April 2015 the Company’s solicitors, Holman Fenwick Willan, asked Mr O’Sullivan to list ‘all your employers from 1995 to date’ and ‘all treating doctors you consulted in respect of your back condition from 1995 to date’.[21] Mr O’Sullivan declined this request, stating:
…
The respondents [sic] lawyers continue to push for medical history from 1993 to date and employment history from 1995. The claimant says they are not entitled to it. The claimant says he was removed from register A through injury and become [sic] a civilian and was sacked and paid his own medical treatment.
The election to receive compensation under an award, a representative from P&O Dictated that over the phone in late december [sic] 1993, and it has never been sighted in any court of law. It will not stand up now or never would have. The election was made when the SRCA was in its infancy. Besides that no such election is made on the accident on 26/8/2014.
The claimant addresses the injury on the 26/8/2014 and states for everybody’s understanding the nature of such injury. The claimant jarred his back, this is clearly written on the claim form, the sudden jolt travelled up the claimants leg into the same spot that the claimant suffered an injury on 16/12/1993 causing the recurrence.
The claimant addresses section 33 of the Administrative Appeals Act
Not to contradict the relevant legislation governing that Act
...[22]
[21] Exhibit 2, ‘16’.
[22] Ibid ‘19’.
On 23 December 2015, the Tribunal issued the following directions:
On or before 4 February 2016, the Applicant file with the Tribunal and serve on the Respondent:
(a)a list of all treating doctors consulted, in respect of his back condition, from 1993 to date; and
(b)a list of all of his employers from 1993 to date.
Mr O’Sullivan challenged the Tribunal directions and stated:
1.On the 1/12/2014 the Claimant replied to the respondents request for further information made under section 67 [SRCA] on the 21/11/2014 and supplied the information.
2.The request on the on the [sic] 21/11/2014 was the only official request made under section 67 of the SRCA, the respondents lawyers are just conducting a fishing expedition and presenting a red herring in all there [sic] previous correspondence.
3.The directions are not clear and should have at least taken into consideration the information already submitted.
4.The Claimant repeats that he was removed from register A on the 17/6/1994 and any further information other than that already supplied and forcibly ordered would in his opinion be outside the boundaries of the SRCA.
5.The Respondents [sic] Lawyers are simply not entitled to information outside the SRCA.
6.… [23]
[23] Exhibit 2, ‘20’.
It was in this context, on 17 February 2016, that Mr O’Sullivan requested referral of an alleged question of law to the Federal Court:[24]
…
That question being, Can [sic] a Claimant be compelled to provide information of or during a period of time served outside the Maritime Industry, under the Rules and Regulations of the Seafarers Rehabilitation and Compensation Act 1992.
The Claimant contends that he supplied the information on the 1/12/2014 in response to a request from the respondent under section 67[SRCA] within the time limit, and complied with request. The claim was then carried on with, and deemed to be disallowed under section 79 [2] [SRCA] about 8/2/2015.
…
Whereby allowing the claim to proceed through the original 12 day period after the information was received under section 67, through the 60 day reconsideration and then deeming the claim under s 79 [SRCA] The Claimant is said to have complied with the original request under section 67 [2] [SRCA].
The Respondents Solicitors are acting outside the current legislation in their quest to revisit the request under section 67[SRCA].[25]
[24] Ibid ‘21’.
[25] Ibid.
On 3 May 2016, without addressing his request for referral of an alleged question of law to the Federal Court, the Tribunal dismissed Mr O’Sullivan’s application for want of compliance.[26]
[26] O’Sullivan and P & O Maritime Services Pty Ltd [2016] AATA 283.
Mr O’Sullivan successfully challenged the dismissal decision in the Federal Court. On

9 August 2016, Siopis J set aside the dismissal decision and remitted the matter to be determined according to law by the Tribunal.[27] In so doing, Siopis J identified two questions of law on which the appeal was raised:
9. … The notice of appeal does not precisely identify the questions of law relied on; but, in essence, the questions were whether Mr O’Sullivan had been denied procedural fairness in the Tribunal; and also whether there was an inconsistency between s 67(2) of the Seafarers Rehabilitation and Compensation Act and s 33(2) of the AAT Act.
[27] O’Sullivan and P & O Maritime Services Pty Ltd [2016] FCA 969.

As the appeal was resolved on the first question, Siopis J did not proceed to deal with the second question.
The Tribunal proceedings resumed.
On 10 October 2016, with the agreement of the parties, I gave a ruling on a preliminary point in respect of Mr O’Sullivan’s employer.[28]
[28] O’Sullivan and P & O Maritime Services Pty Ltd [2016] AATA 865.
Mr O’Sullivan appealed this decision to the Federal Court. On 2 February 2017, McKerracher J dismissed the appeal.[29]
[29] O’Sullivan and P & O Maritime Services Pty Ltd [2017] FCA 47.
After some time, Mr O’Sullivan sought an extension of time in which to appeal against this judgment. On 9 May 2017, Barker J dismissed the application.[30]
[30] O’Sullivan v P & O Maritime Services Pty Ltd [2017] FCA 508.
On 17 August 2017, Mr O’Sullivan sought relief from the judgments of McKerracher J and Barker J in the High Court of Australia.[31] On 8 November 2017, Gordon J refused the application for an order to show cause in respect of the judgment of McKerracher J and dismissed the application in respect of Barker J.[32]
[31] O’Sullivan v Barker J & Ors [2017] HCA P38 of 2017, page 1 of the judgement.
[32] O’Sullivan v Barker J & Ors [2017] HCA P38 of 2017, Order of 8 November 2017.
On 6 December 2017, Mr O’Sullivan made application for leave to appeal from the judgment of Gordon J.[33] On 21 March 2018, Bell and Gageler JJ refused the application.[34]
[33] O’Sullivan v Barker J & Ors [2018] HCASL 56; HCA P62 of 2017.
[34] Ibid.
The proceedings in the Tribunal then resumed.
On 9 May 2018 and 2 July 2018, I issued procedural directions that required, in part,

Mr O’Sullivan to give specified information in respect of his previous employers and medical practitioners who had treated his back condition since December 1993.
On 4 July 2018 Mr O’Sullivan sought referral of a question of law to the Federal Court:
Further to this matter being remitted to the Tribunal to be determined by Law [2016] FCA 969, the Submissions in response to direction 9 May 2018 and directions hearing by Telephone on 2 July 2018 conducted by Senior Member Webb, the Applicant formally requests that, under section 45{1} of the Administrative Appeals Tribunal Act, with the agreement of the President refer the Question of law contained in the Reasons for Decision, Senior Member Walsh, 3rd May 2016 {para 18 page 7} to the Federal Court of Australia, the Question of Law being as set out below.
Whether or not Section 61 of the Seafarers Rehabilitation and Compensation Act precludes the Applicants [sic] claim for Compensation at all.
On 17 July 2018, Mr O’Sullivan identified the alleged question of law in the following manner:
The Particular Question of Law is: Whether or not Section 61 [of the SRCA] precludes the applicants [sic] claim for compensation at all [the relevant document is identified as T34 page 27 of the section 37 Statement of P&O Maritime Services Pty Ltd and further relevant documents] [sic] The precise wording of this Question has been kept in the same terms as what is stated in the letter filed and served by the Respondent on 17 November 2015 and accepted into evidence by Senior Member Walsh in the written reasons dated 3 May 2016 [para 18 page 7] [sic]
On 15 August 2018, Mr O’Sullivan’s request for referral of a question of law to the Federal Court under s 45 of the AAT Act was refused as the issue raised in respect of s 61 of the SRC Act relied upon certain factual findings which have not yet been made, rendering the requested referral premature.[35]
[35] O’Sullivan and P & O Maritime Services Pty Ltd [2018] AATA 2899 at [54]-[88].
At various times thereafter, Mr O’Sullivan gave the Tribunal information he considered relevant to the Tribunal’s directions:
(a)On 16 August 2018 he provided a receipt of an application to the Fiona Stanley Fremantle Hospitals Group for access to information, namely ‘Summaries and notes of inpatient O’Sullivan injury 26 August 2014’.[36]
[36] Exhibit 1, ‘7’.
(b)On 23 August 2018 he provided the following information:
1{a} There is no history of employment from 2014 to present, the applicant has previously obliged the respondent with employment history from 1993 to 2014 by letter dated 1st December 2014, in reply to there [sic] letter of request under section 67 of the SRCA 1992, dated 21 November 2014 and complied with 67{2} of the Act.
1{b} The Applicant forwarded the Respondent and Tribunal the required documents on 16 August 2018.[37]
(c)On 4 September 2018 Mr O’Sullivan stated that he had not been employed by any employers since 2014.
(d)On 10 September 2018, he stated:
The Applicant has not been employed by any employers, what so ever, from the year 2014 to the present but does include a reference that P&O Maritime Service Pty Ltd, or the Seafarers Safety Net Fund be taken as the applicants employer for the purpose of his Claim for Workers Compensation under the SRCA 1992, dated 29 October 2014.
[37] Ibid, ‘8’.
On 20 September 2018 Mr O’Sullivan gave the Tribunal a letter in which he said:
The Applicant in this matter stands down from the role as a self representative [sic].
On the grounds.
1.I am taking high daily doses of medication prescribed by my treating doctor for chronic lower back and left leg pain due to the injury on 16/12/1993 and following aggravation on 26/8/14.
2.As the matter proceeds before the AAT, I am finding it difficult to stay with in [sic] the time limits imposed by the tribunal and the effects of the medication cause a confusing state of mind.
3.This makes reading and replies to complex legal documents difficult.
4.The matter before the Tribunal is whether the injury is continuing, or fresh from the 16/12/93, including the injury on 26/8/2014.
5.P&O Maritime Services Pty Ltd has neglected to offer any sort of Rehabilitation or Medical assistance during that time period and to the present date.
6.All of the above has caused further injury and continuing to cause injury.
For these reasons I resign my position as a self representitive [sic] effective immediately.
I now require Legal [sic] advice and further time extention [sic] to engage a legally qualified practitioner to represent me.
I have applied to the Governor-General [Attorney-General] for legal assistance and enclose proof of receipt of the application.
I also enclose a letter from my treating doctor outlining the difficulties I have experienced as a self representitive [sic], including chronic pain and medication prescribed to treat the symptoms.
I apply to the AAT for an adjournment to post-pone [sic] matter No 2015/0698 and continue when the applicant is represented.[38]
[38] Ibid, ‘10’.
The brief report of Dr Price attached to this letter is in the following terms:
Mr O’Sullivan has chronic lumbosacral radiculopathy/slipped disc. He is on pain relievers for chronic lower back and left leg pain. Due to his injury on 16/12/1993 and following aggravation on 26/8/14.
As a self represented applicant he is finding it difficult.
On the 19/7/2018 his pain relieving medications were increased. This increase may affect his mental processing abilities (the effect varies between people).
Since the date I issued the first workers compensation certificate (on 29/8/2014) he has regularly attended myself and been issued with work cover progress certificates, naming P&O Maritime Service Pty Ltd as the employer.
As I understand it the Company is not paying his incurred medical expenses.
Due to his symptoms he has no capacity to work and is due for review on on [sic] 3/11/18. As a self represented applicant Mr O’Sullivan states to me he is having difficulty performing his role due to the medications he is on.[39]
[39] Ibid.
In a telephone directions hearing on 25 September 2018, Mr O’Sullivan refused to answer questions on grounds that he was no longer representing himself. He asserted that he required legal advice before complying with any Tribunal directions or answering questions. He sought an indefinite stay of proceedings, which I refused. I issued directions, allowing further time for the parties to make submissions, as follows:
2.on or before 20 October 2018, the applicant is to give to the Tribunal written submissions why the whole of his application should not be dismissed and should, nevertheless, proceed; and
3.within 10 days thereafter, the respondent is to give to the Tribunal and the applicant written submissions in response to those given by the applicant pursuant to Direction 2, if any, or otherwise in respect of the proceedings.
A dismissal hearing was set down on 11 December 2018.
On 30 October 2018 solicitors for the Company filed extensive submissions seeking dismissal of the application under s 42A(5)(b) of the AAT Act on the grounds that

Mr O’Sullivan failed to comply with directions requiring him to provide the names of all his employers (on and off shore) and the names of treating doctors he consulted in respect of his claimed back condition since December 1993.
On 21 November 2018 Mr O’Sullivan wrote to the Tribunal and said:
The applicant provided the Tribunal with a medical letter from Dr Bradley Price dated 19 September 2018 and as stated in that letter, pain relieving medication were increased on 19 July 2018 and the applicant was due for review on the

3 November 2018.
During that period the applicant has requested, the Tribunal postpone the matter, and applied for financial assistance for legal assistance, the Tribunal and the Respondents Solicitors have refused to allow the matter be [sic] to be postponed until the applicant can gain legal assistance.
The applicant was reviewed by Dr Bradley Price, as stated in the letter, and issued a further progress work cover certificate.
Dr Price has made comment on the progress certificate that states:
Patient will try and reduce medication and comply with Tribunal recommenations [sic].
Since the review, by Dr Price, the applicant has been gradually reducing the Medication, in a genuine attempt to comply with the Tribunals time lines.
The respondents Solicitors have supplied the applicant with Submissions of the Respondent pursuant to the order of Member Webb made 25 September 2018.
The document is massive and provides, no index, nor is it in date order, and contains numerous cases that need to be examined.
To date, the applicant is unrepresented and can not [sic] meet the Tribunal deadline, to provide a response to the respondents dismissal application and informs the Tribunal no written submissions will be made.[40]
[40] Ibid, ‘Letter dated 21 November 2018’.
The dismissal hearing proceeded as listed on 11 December 2018. Mr O’Sullivan appeared and both parties made extensive oral submissions. During the hearing, Mr O’Sullivan informed me that Dr Price had prescribed Panadeine Forte, Brufen and Temaze. He told me that after taking the medications he would wake up groggy.
I refused the Company’s application for dismissal of Mr O’Sullivan’s application,[41] and issued the following procedural directions:
[41] O’Sullivan and P & O Maritime Services Pty Ltd [2019] AATA 126.
2.Subject to further orders, the application is to be prepared for hearing according to the following procedural directions:
(a)
on or before 22 February 2019, Mr O’Sullivan is to inform the Tribunal and the Company if he presses the request he made on

17 February 2016; and if so
(i) on or before 8 March 2019, Mr O’Sullivan is to give the Tribunal supporting submissions in writing, or inform the Tribunal that no such submissions will be made; and
(ii) on or before 22 March 2019, the Company is to provide any written submissions in response, or inform the Tribunal that no such submissions will be made;
(b)on or before 7 May 2019, Mr O’Sullivan is to give the Tribunal and the Company all relevant materials on which he will rely at hearing;
(c)on or before 6 August 2019, the Company is to give the Tribunal and Mr O’Sullivan all relevant materials on which it will rely at hearing;
(d)on or before 20 August 2019, Mr O’Sullivan is to give the Tribunal and the Company a Statement of Facts, Issues and Contentions;
(e)on or before 3 September 2019, the Company is to give the Tribunal and Mr O’Sullivan a Statement of Facts, Issues and Contentions; and
(f)a hearing is to be listed at the earliest suitable date thereafter.
As can be seen, Mr O’Sullivan was given time to inform the Tribunal if he intended to press for referral to the Federal Court of the alleged question of law he raised on

16 February 2017. He did so on 22 February 2019. Time was allowed for the parties to be heard on this issue, without impeding progress of the application to hearing.
On 25 March 2019, Mr O’Sullivan informed the Tribunal that his application to the Attorney-General for legal support was ongoing, and complained that the Company’s failure to adhere to the Tribunal’s timetable had caused him to miss the

Attorney-General’s Department time limit for the provision of additional information.
On 7 May 2019, Mr O’Sullivan provided a document to the Tribunal. This did not address the requirements of Direction 2(b) issued on 8 February 2019. Mr O’Sullivan contested the basis on which he could be compelled to attend a medical appointment by the Company and requested referral of further alleged questions of law to the Federal Court, namely:
6. According to the guidelines and information about claiming workers compensation and the form approved by the Seacare Authority, in accordance with subsection 63[2] of the Seafarers Act, was the claim form dated 29 October 2014, made by Mr O’Sullivan, addressed to the correct employer as per the instructions of the Seacare Authority and if so:
{a} As per the Seacare Authority instructions, did Mr O’Sullivan correctly identify the employer at question 10 of the claim form, which states the name of the employer at the time of injury, given that all references to the employer mean the employer against whom the claim is made. And if that is so:
{b} Was P&O Maritime Services Pty Ltd advised by the Seacare Secretariate [sic] that the claim is valid, and if that is so, and the answer to all the above 3 questions is yes then:
7.Has P&O Maritime Services, been acting as Mr O’Sullivans [sic] employer, in relation to the claim for injury that occurred on 26 August 2014, the subject of the claim form dated 29 October 2014 under s63, s67, s68, s73, s77, s78, s79 of the Seafarers Act.
And if the answer is yes and:
{a} The issue and question to be addressed by the Tribunal, “is whether the Company is Mr O’Sullivan’s actual or deemed employer for the purposes of his claim for compensation under the SRC Act in respect of an injury sustained on 26 August 2014” and as there is no general definition of actual, original, or deemed employer under the SRC Act then:…
{b} Is P&O Maritime Services Pty Ltd for the purposes of Mr O’Sullivans claim for compensation under the SRC Act in respect of an injury sustained on 26 August 2014 Mr O’Sullivans definitive employer under s79[6] of the SRCA 1992 and if the answer is also yes to the above 3 questions does:
8.It dispose of the application, before the Administrative Appeals Tribunal, matter No 2015/0698.
On 9 May 2019, Mr O’Sullivan responded to Direction 2(b) of 8 February 2019 and gave the Tribunal additional materials on which he intends to rely at hearing.
On 20 May 2019, in a directions hearing, I informed the parties I would deal with

Mr O’Sullivan’s requests for referral of alleged questions of law to the Federal Court in a single decision, and allowed time for the parties to be heard. I made the following directions:
1.on or before 10 June 2019, Mr O’Sullivan is to give to the Tribunal and the Respondent all further materials on which he will rely, or inform the Tribunal that no further materials will be given;
2.on or before 10 June 2019, the Respondent is to give to the Tribunal and

Mr O’Sullivan written submissions addressing Mr O’Sullivan’s 7 May 2019 request for referral of questions of law to the Federal Court of Australia under s 45 of the Administrative Appeals Tribunal Act 1975, or inform the Tribunal that no such submissions will be made;
3.Directions 2(c), (d) and (e) of 8 February 2019 are vacated.
A telephone directions hearing is to be listed before me at 10.00am WST (12.00 EST) on 21 June 2019.
On 5 June 2019, the Company requested a number of summons be issued by the Tribunal. This was done.
On 10 June 2019, Mr O’Sullivan gave the Tribunal a document setting out a number of submissions, opinions, arguments and explanations regarding his 2014 claim.
On 17 June 2019, Mr O’Sullivan objected to the summonses and raised a number of legal issues relating to authority.
I heard the parties in a telephone directions hearing on 21 June 2019. Mr O’Sullivan informed me that he was engaged in processes to obtain relevant materials from a former legal representative. Over objection by the Company, I allowed more time for him to obtain such materials and give them to the Tribunal, and issued the following directions:
1. on or before 19 July 2019, Mr O’Sullivan is to give to the Tribunal and the Respondent all further materials on which he will rely, including medical reports, radiological imaging and X-ray reports, tax returns and group certificates from 1993 to the present.
A telephone directions hearing is to be listed before me at 10.00am WST (12.00 EST) on 26 July 2019.
On 10 July 2019 one of the persons summonsed raised an objection to the production of documents sought.
On 17 June 2019, 11 July 2019 and 22 July 2019, Mr O’Sullivan raised objections to the summonses sealed by the Tribunal.
In correspondence dated 17 and 25 July 2019, Mr O’Sullivan informed the Tribunal that,

in the context of ‘further deteriation [sic] to the applicants physical and mental wellbeing’, he required legal assistance to identify relevant documents and he was ‘making every endeavour to be represented by a Legal Practitioner’. He sought vacation of the directions made on 21 June 2019 and asked for the telephone directions hearing set down on

26 July 2019 to be held over for one month. I refused this request.
On 26 July 2019, I heard the parties and issued directions in respect of summonses to which Mr O’Sullivan objected. Related issues were dealt with by Deputy President Boyle in an interlocutory hearing on 13 August 2019, the details of which are not presently relevant to matters I must decide.
On 7 August 2019, I refused Mr O’Sullivan’s application for referral of alleged questions of law to the Federal Court.[42]
[42] O’Sullivan and P&O Maritime Services Pty Ltd [2019] AATA 4759.
On 13 August 2019, Deputy President Boyle heard and decided issues raised by

Mr O’Sullivan in objection to summonses sought by the Company and sealed by the Tribunal.[43]
[43] O’Sullivan and P&O Maritime Services Pty Ltd [2019] AATA 2966.
On 23 September 2019, Mr O’Sullivan gave the Tribunal written submissions, setting out the following matters:
30.Because P&O Maritime Services did not disclose to Deputy President Hotop the essential and required information contained in the Seacare Certificate, it deprived him of giving appropriate directions and made it impossible for him to accurately calculate a 60 day period that had no proper start date.
…
33. By not disclosing the relevant essential information to Deputy President Hotop, and the Tribunal, and the claimant, it may have also appeared that P&O stayed silent with full knowledge, that doing so, would avoid directions to how the future conduct of the proceedings would be conducted, including possibly the proper grant of Tribunal Jurisdiction.
…
35. It appears, in the claimants [sic] own opinion, the Solicitor acting for P&O used a deliberate ploy, to avoid directions that would have been given by Deputy President Hotop, and the proper grant of Tribunal jurisdiction.
…
36.The problem for the claimant with that opinion, is if he were to press that matter it would require an authoritative determination of questions of fact or law.
37. It would be unwise to proceed with out representation, as well as causing further deterioration of health. Therefore, [sic]
38. Effective immediately, from the date the AAT receives this correspondence, the claimant “revokes” Request for Reconsideration of Determination pursuant to s 78(2) of the Seafarers Act identified as T13 page 50 dated 10/12/2014.
39. Effective immediately, from the date the AAT receives this correspondence, the claimant “revokes” AAT Application for Review of a Decision dated 12/2/2015. identified as T1 page 3.
40. Both Documents have been gained by P&O, without disclosing to the claimant, essential and relevant information, contained in the the [sic] Seacare Authority Certificate, that would have, if given, enabled him to make a more informed decision prior to elevating the claim pursuant to s 78(2) of the Seafarers Act.
41. Under 42A {1B} [4] of the AAT Act 1975 {Dismissal if decision is not reviewable} the claimant requires the Tribunal dismiss the application without proceeding to review the decision and that request be stayed for a period of 7 days from the date of receipt of this correspondence.
42. The 7 days grace period will allow the other partys [sic] time to consider, if an agreement can be reached by consent under s 42A {1} of the AAT Act 1975.
…

On 30 September 2019, the Company advised that no consent decision would be agreed to.
On 11 October 2019, Mr O’Sullivan wrote to the Tribunal in the following terms:
1. Please confirm, the above matter has been removed, from the Jurisdiction of the AAT Act 1975, under s42A {1B} [4] {Dismissal if decision is not reviewable}
2. The Respondents Solicitor has indicated their client, will not enter into any consent decision.
On 15 October 2019, the matter was set down for a telephone directions hearing before me at 10am Western Standard Time on 18 October 2019.
On 17 October 2019 Mr O’Sullivan faxed a letter (dated 16 October 2019) to the Tribunal in which he requested cancellation of the telephone directions hearing and stated:
15. The claimant, to this stage, has obliged, but to tackle the further intricative [sic] legal issues in ill health and with out Legal Representation, could be detriment to the claim, as well as add continuing anxiety to the claimant and unwise to do so.
…
17. The Claimant is not amenable to participate further, within the alleged Jurisdiction of the AAT Act 1975, for the reasons given in para 15 of this correspondence.
18. The Claimant feels, he would be of little assistance to the Tribunal, if he was to attempt to tackle, intricative [sic] legal issues of the kind referred to, in the 23 September 2019 correspondence, in an unwell state, without the assistance of a Legal practitioner.
19. If the Tribunal decides to carry on with this matter without the participation of the Claimant and at some time in the future, the claimant gains Legal Representation, and a Court of law finds the non-disclosure of the Seacare Certificate, addressed “to whom it may concern” interfered with the Proper grant of Tribunal Jurisdiction, granted by Deputy President Hotop, or was a deliberate ploy by the respondents Solicitor to avoid future direction, that possibly would have been given by Deputy president Hotop, in accordance with 3[1] interpretation of proceeding [g], AAT Act 1975, the tribunal would need to be mindful, before issuing any further directions or orders, the Commonwealth may be found liable under s 24W of the AAT Act 1975. [para 19 correspondence dated 23 September 2019]
20. The Claimant has “revoked” Request for reconsideration of Determination pursuant to s 78[2] of the Seafarers Act 1992 identified as T13 page 50 dated 10/12/2014. [para 38 correspondence dated 23 dated 23 [sic] September 2019]
21. The Claimant has “revoked” AAT Application for review of Decision dated 12/2/2015, identified as T1 page 3. [para 39 correspondence dated 23 September 2019]
22. The Claimant has given his reasons for revoking both Documents [para 40 correspondence dated 23 September 2019.]
23. The Claimant has requested the Tribunal under s 42A {1B} [4] {Dismissal if decision is not reviewable} dismiss the application, without proceeding to review the decision and that request be stayed for a period of 7 days from the date of the 23 September 2019, which would have been the day the AAT received the request. [para 41 correspondence dated 23 September 2019]
24. The 7 day grace period was to allow the other party’s time to consider, if an agreement could have been reached by consent under 42A [1] of the AAT Act. [para 42 correspondence dated 23 September 2019]
25. The claimant wrote to the respondents solicitors on 24 September 2019, enquiring whether an agreement could have been made by consent. [para 43 correspondence dated 23 September 2019]
26. The respondents solicitor replied by letter dated 30 September 2019 and confirmed that they are instructed not to enter into any consent decision.
27. The 7 day grace period has now expired and the Claimant takes that to mean, that they intend to carry on with the matter.
28. If the respondents solicitors intend to present argument, in opposition to what is stated in para 20-27 of this correspondence, it will not be contested by the Claimant, without the services of a professional Legal Practitioner.
29. For the reasons given in para 18 of this correspondence and it being unwise to continue without the services of a skilled Legal practitioner, the claimant requests the Direction [sic] Hearing set down for 9am wst on 18 October 2019 be cancelled.
On 17 October 2019, having considered the protracted procedural history and in the particular circumstances following resolution of disputation over summonses by Deputy President Boyle, I refused this request.
Later that day, at 4.13pm, Mr O’Sullivan wrote to the Tribunal in the following terms:
1 The claimant in the above matter, has an appointment with Dr Price on the morning of the 18 October 2019.
2 The time clashes with the scheduled telephone Directions Hearing set down for 9am WST 18 October 2019.
3 Therefore the claimant will not be available on the morning of 18 October 2019.
Accepting this at face value, I vacated and rescheduled the telephone directions hearing for 9am WST on 25 October 2019. Mr O’Sullivan was sent a listing notice by registered post forthwith.
On 23 October 2019, Mr O’Sullivan informed the Tribunal that:
4.The Claimant is not amenable to participate further within the alleged Jurisdiction of the AAT Act 1975, in a deteriorating state of health, without the skills of a qualified Legal Practitioner.
5.The Claimant stands firm and the Tribunal may need to dispense with the Direction [sic] Hearing, set down for 9am wst 25 October 2019.
On 24 October 2019, I decided that the telephone directions hearing would proceed as listed. Mr O’Sullivan was informed of this by telephone. Later that day, at 5.12pm,

Mr O’Sullivan informed the Tribunal of the following matters:
1.The claimant in the above matter, has an appointment with Dr Price on the morning of 25 October 2019.
2.The time clashes with the scheduled telephone Direction [sic] Hearing set down for 9am WST 25 October 2019.
3.The Claimant, by written correspondence dated 23 October 2019, advised the Tribunal that he is not amenable to participate further within the alleged Jurisdiction of the AAT Act 1975, in a deteriorating state of health, without the skills of a qualified Legal Practitioner. [para 4]
4.The Claimant, by written correspondence dated 23 October 2019, advised the Tribunal, he stands firm on the above issue, and the Tribunal may need to dispense with the Direction [sic] Hearing, set down for 9am wst 25 October 2019. [para 5]
5.In any event, the claimant will not be available on the morning of 25 October 2019.
The telephone directions hearing proceeded as listed. Mr O’Sullivan failed to appear. I set down a further telephone directions hearing for 1pm WST on 15 November 2019 and issued the following directions:
1.on or before 30 October 2019, the Respondent is to file and serve written submissions responding to issues raised by the Applicant in correspondence to the Tribunal dated 23 September 2019 and 16 October 2019, addressing, in particular, the matters set out in paragraphs 37, 38, 39 and 41 of the 23 September 2019 correspondence and paragraphs 17, 20, 21, 22 and 23 of the 16 October 2019 correspondence;
2.on or before 13 November 2019, the Applicant is to file and serve written submissions in response or inform the Tribunal that no such submissions will be made.
On 30 October 2019, the Company filed submissions with the Tribunal, asserting that the Tribunal had jurisdiction to proceed and seeking dismissal of Mr O’Sullivan’s application.
In a letter dated 12 November 2019, Mr O’Sullivan informed the Tribunal, inter alia, of the following:
1.The Claimant was served with the Respondents Submissions on the

5 November 2019 well outside the time limit imposed by the Tribunal in direction 1 dated 25 October 2019.
…
6.As Member Webb is already aware, the claimant is taking prescribed medication as a result of the work related injury that occurred on the

26 August 2014.
7.Since Member Webb become [sic] aware, the claimant has been prescribed additional medication, to combat mental health issues, that have gradually manifested, during the longevity of the application and this type of activity by the Respondents Solicitor only increases anxiety.
8.The Respondents submissions contain inconsistency and require a response, but the claimant is not in a clear and obvious state of mind, to address and properly respond to it, within the reduced time frame, without the assistance of a skilled Legal Practitioner.
9.The claimant has not exhausted all avenues of engaging a suitable legal practitioner.
…
In a letter dated 14 November 2019, Mr O’Sullivan informed the Tribunal of the following:
1.The Claimant encloses a copy of letter, confirming attendance with Dr Price on the Morning of 18 October 2019, and 25 October 2019.
2.The Claimant is not available to attend direction [sic] hearing by Telephone set down for 1.00pm WST on 15 November 2019.
3.The time clashes with a further attendance on that day, with Dr Price.
The letter Mr O’Sullivan gave the Tribunal from Dr Price is dated 25 October 2019 and simply states:
I have seen mr O’Sullivan on morning of 18/10/19 and this morning with anxiety related to the matter before the AAT.
In response to Mr O’Sullivan’s correspondence, I decided to reschedule the telephone directions hearing to 10.00am WST on 18 November 2019. The parties were duly informed by telephone. Mr O’Sullivan attended the directions hearing.
In the course of the directions hearing, Mr O’Sullivan informed me that he had taken medication which he refused to identify and he was feeling agitated, anxious and ‘fuzzy headed’. He asserted that he had complied with all directions and was still seeking the services of a legal practitioner. When asked what he intended by purportedly revoking his application to the Tribunal and his previous request to the Company for reconsideration of the determination rejecting his claim, Mr O’Sullivan refused to elaborate. He asserted that he was not well enough to proceed and he could not suggest a time when that circumstance might change.
The Company argued for dismissal of Mr O’Sullivan’s application and asserted that there would be no prospect of any change in Mr O’Sullivan proceeding in the foreseeable future should any further adjournment be granted.
ISSUES
In order to address the various issues raised by the parties, it is necessary to determine:
(a)the effect, if any of the revocations Mr O’Sullivan has made, including whether the application is taken to have been dismissed;
(b)the Tribunal’s jurisdiction to hear Mr O’Sullivan’s application;
(c)if the application should be dismissed on jurisdictional grounds under s 42A(4) of the AAT Act;
(d)if the application should be dismissed under s 42A(2) on grounds Mr O’Sullivan failed to appear at a directions hearing;
(e)
if the application should be dismissed under s 42A(5)(b) on grounds that

Mr O’Sullivan failed to proceed with his application within a reasonable time;
(f)
if the application should be dismissed under s 42A(5)(a) on grounds that

Mr O’Sullivan has failed to comply with a direction.
The parties have been given opportunity to be heard on these matters. Written and oral submissions have been made.
At this point, it may be appropriate to say something about the substance and merit of

Mr O’Sullivan’s application.
His application relates to a claim for compensation in respect of a back injury. The claim involves issues of some complexity in respect of a previously accepted back injury claim and the operation of a number of legislative provisions under the SRC Act. For present purposes, it is not necessary to revisit these issues, which have been thoroughly canvassed in earlier interlocutory decisions in the course of these proceedings. To the extent that merit may be a relevant consideration in the issues to be decided presently, all I would say on a cursory assessment is that Mr O’Sullivan’s case requires detailed medical evidence in respect of the causal relationship between his accepted back injury and the injury claim which is at the heart of these proceedings. His case is not futile or hopeless, but it remains to be proved. Once the facts have been established, there may be an ancillary legal issue concerning the operation of s 54, s 55 and s 61 of the SRC Act and the Tribunal’s jurisdiction. Those are matters that cannot presently be dealt with, absent the requisite factual matrix being determined.
Effect of revocations
Without the assistance of a legal representative and for reasons of ill health, Mr O’Sullivan refused to explain or expand upon the revocations he purports to have made.
The Company asserts that the purported revocations do not affect the Tribunal’s jurisdiction in respect of Mr O’Sullivan’s application. Furthermore, the Company asserts that Mr O’Sullivan’s purported revocation of his application to the Tribunal, on which these proceedings stand, is conditional and for that reason it does not amount to a withdrawal of the application, such that it must be taken to be dismissed.
However they may best be understood, the matters Mr O’Sullivan has raised challenge the Tribunal’s jurisdiction and the enduring status of his application.
I should say immediately, it is quite unusual for a person who has applied for review of a decision to challenge the foundation of the Tribunal’s jurisdiction in respect of an application. I have explained to Mr O’Sullivan that he is at liberty to withdraw his application at any time, whereupon, should he do so, the proceedings will come to an end. There is a question whether the action he has taken to revoke his application for review amounts to or should be taken to be a withdrawal of the kind contemplated by s 42A(1A) of the AAT Act. It must be noted that withdrawal of that kind has an automatic effect – by operation of s 42A(1B), the application is taken to have been dismissed.
It is germane to consider the language used in s 42A(1A) and (1B):
(1A)A person who has made an application to the Tribunal for a review of a decision may, in writing lodged with the Tribunal, at any time notify the Tribunal to the effect that the application is discontinued or withdrawn.
…
(1B)If notification is given in accordance with subsection (1A) or (1AA), the Tribunal is taken to have dismissed the application without proceeding to review the decision.
What Mr O’Sullivan intended by his use of the word ‘revokes’, and what he understood it to mean, is not clear. He declined to explain this when asked. Considering the little that he has said or given in documentary form on this subject, it is open to infer that he was using ‘revokes’ in the ordinary sense. The word does not feature in the AAT Act and it is not given any special meaning. The extent to which Mr O’Sullivan is familiar with the AAT Act is not established, but he is not a lawyer and it may be accepted, on his past record, that he is capable of navigating the AAT Act’s terms and provisions, albeit without detailed knowledge. It is possible, but not presently established or able to be properly inferred, that Mr O’Sullivan chose the word very carefully on the basis that it is not a word used in

s 42A. Whatever his reasons were, I will proceed on the basis that the word carries the meaning ascribed to its ordinary usage, by dictionary definition.
The Macquarie Online Dictionary sets out the following relevant definition for revoke:
verb (t) 1.to take back or withdraw; annul, cancel, or reverse; rescind or repeal: to revoke a decree.
The Oxford English Dictionary sets out the following relevant definitions:
2.a. transitive. To recant, withdraw (something one has written or said); to retract, take back (a statement, opinion, vow, etc.); to renounce (a belief).
b. intransitive. To make a retraction; to recant.
3. a. transitive. To annul, repeal, rescind (a decree, will, privilege, etc.); to cancel (an order, appointment, office, etc.). Also intransitive.
Clearly enough, revoke may be synonymous with withdraw.
To my mind, subject only to considerations of conditionality, Mr O’Sullivan’s revocation of his 12 February 2015 application to the Tribunal for review may be construed as ‘to the effect that his application is discontinued or withdrawn’. The words to the effect that are sufficiently broad to encompass an applicant’s intention to discontinue or withdraw an application, albeit using different language and words other than those contained in the legislation.
On the issue of conditionality, as can be seen, the legislation does not permit withdrawal of an application on conditional grounds, such as were before the Tribunal in Mitchell and Comcare (Mitchell).[44] In that case, Ms Mitchell purported to withdraw her application ‘[u]nless the AAT are willing to revoke the decision of Comcare dated 29 September 2014, in my favour’. Of this, the Tribunal said:
[44] [2016] AATA 141.
33.When a notification of this sort is lodged with the Tribunal, “... the Tribunal is taken to have dismissed the application without proceeding to review the decision.” This is the effect of s 42A(1B) and its effect is immediate. Once an application has been dismissed, the Tribunal not only no longer proceeds to review the decision that is the subject of that application but has no power to do so. Its powers are exhausted unless and until, in appropriate cases, the applicant applies for the reinstatement of the application and the Tribunal reinstates it under s 42A(8) (having regard to ss 42A(8A) and (8B)) or

s 42A(10).
34.A conditional withdrawal does not lead to this outcome for it is not a withdrawal within the meaning of s 42A(1A). The effect of the condition that Ms Mitchell has imposed is that I review the decision and decide whether or not I decide in her favour by setting aside the reviewable decision and substituting a decision that she is entitled to compensation under s 19 of the SRC Act in respect of her compensable injury for the period from 26 April 2007 to 16 June 2008 due to her compensable injury. If I decide that I do not decide the matter in her favour, her withdrawal becomes unconditional.

Ms Mitchell contemplates that I will undertake the review on the material that she has already submitted and without a hearing. I will now explain why I do not have power to review the decision at this time and in the manner

Ms Mitchell contemplates.
It is quite clear in Mitchell’s case that the condition imposed on the operation of

s 42A(1B) required the Tribunal to make a decision on the substantive application before it at that time. It is very clear that a conditional withdrawal of that kind is untenable and entirely contrary to the objects and purposes of s 42A(1A) and (1B) – it is akin to an abuse of process.
Mr O’Sullivan’s revocation of his application before the Tribunal has a different character. It is not conditional. It does not require the Tribunal to make a decision on the substantive application before it, rather it sets out his reasons for the purported revocation, which is stated to have immediate effect. The conditionality Mr O’Sullivan imposed relates to his request, probably under s 42A(4) of the AAT Act, for the Tribunal to dismiss his application for want of jurisdiction, without proceeding to review the decision. The condition imposed is in the form of a seven day stay of the request for dismissal under s 42A(4), purportedly allowing the Company a 7 days grace period in which to consider if agreement can be reached, such that s 42A(1) might then apply, and the application be dismissed by consent. The request for dismissal under s 42A(4) arises in respect of Mr O’Sullivan’s allegation that the Seacare Certificate interferes in some way with the Tribunal’s jurisdiction. This is bolstered by Mr O’Sullivan’s revocation of his application to the Tribunal and his purported revocation of the request he made for reconsideration of the determination by which the Company refused his compensation claim.

There are three things to say about this. Firstly, if Mr O’Sullivan’s revocation has immediate effect, as stated, and it is construed as a notice to the effect that his application is withdrawn, the application would be taken to have been dismissed forthwith. No further determination in respect of Mr O’Sullivan’s arguments in respect of jurisdiction could then be entertained – the Tribunal’s jurisdiction and power would be at an end, subject only to an application for reinstatement under s 42A(10) on grounds of error. This means, if Mr O’Sullivan’s revocation of his application is effective, there is nothing remaining to be done.
Secondly, there are some doubts about Mr O’Sullivan’s intentions. It can be accepted that he had in mind some kind of agreement with the Company over withdrawal of his application. The precise details of this are not apparent. Nevertheless, his reference to a 7 days grace period clearly misunderstands the effect of the revocation made. The combined effect of Mr O’Sullivan’s revocation and his related request for dismissal of his application for want of jurisdiction would be dismissal of his application – dismissal of the application by withdrawal, dismissal by consent, or in his submission, dismissal of the application for want of jurisdiction. To my mind, conditionality of this kind is unlikely to render Mr O’Sullivan’s revocation inoperable or untenable. It may, however, amount to an attempt to abuse Tribunal processes. Importantly, it may also be construed as an error on his part in relation to which dismissal by automatic operation of s 42A(1B) may not have been understood or foreseen.
Thirdly, that notwithstanding, the attack Mr O’Sullivan has made on the jurisdiction of the Tribunal, by revoking his application and, purportedly at least, the request he previously made for reconsideration of the decision denying his compensation claim, might be considered as a form of conditionality. Nonetheless, the actions he has taken over a period of months, the words he has used and the submissions he has made, relating to legal representation and ill health for example, strongly suggest he does not want to proceed with his application. I accept that an applicant’s intent must be clear and unequivocal for deemed dismissal to occur by operation of s 42A(1A) and (1B). To my mind, Mr O’Sullivan’s various actions may surpass that requirement.
On these facts, it is possible, even likely, that s 42A(1B) applies and Mr O’Sullivan’s application may be taken to be dismissed.
Even if I am wrong about this, and I accept there is some doubt about Mr O’Sullivan’s intent and the effect of his revocation of his application, as will appear, his application is dismissed on other grounds. For this reason, I do not need to go any further in respect of dismissal by operation of s 42A(1B).
Before moving on to address those matters and Mr O’Sullivan’s challenge to the Tribunal’s jurisdiction, it is necessary to deal with his purported revocation of the request he made to the Company for reconsideration of the 8 December 2014 decision denying his compensation claim.
There is a good deal of uncertainty regarding the retrospective effect of this purported revocation, made several years after the request for reconsideration was originally, and properly, made under the terms of s 78(3).
By his previous request for reconsideration, Mr O’Sullivan invoked legislative rights and provoked legislative consequences. This is so, even though the Company did not make a reconsideration decision within the time required under s 79(1)(a) of the SRC Act. It is on receipt of a request for reconsideration that the 60 day period prescribed in s 79(1)(a) commences. Thereafter, if the employer has not made a decision by the end of that 60 day period, s 79(6) has effect and the employer is taken to have made a decision disallowing the claim by operation of the legislation. That is what occurred.
While it may be possible to rewrite history with the stroke of a pen, actions taken, rights exercised and legislative consequences cannot so easily be undone. The decision the Company is taken to have made by operation of s 79(6) is a ‘reviewable decision’ for the purposes of s 88, such that application may be made for review of it within a further 60 day period – s 89(3) of the SRC Act modifies s 29(2) of the AAT Act for this purpose. That is what occurred.
In these circumstances, I am not persuaded that Mr O’Sullivan’s purported revocation of the request he made for reconsideration of the Company’s determination on

8 December 2014 voids the previous operation of s 79(6) of the SRC Act, negates the application for review Mr O’Sullivan lodged, or acts in any way upon the Tribunal’s jurisdiction conferred under s 88 of the SRC Act.
Jurisdiction
Mr O’Sullivan argues, somewhat incoherently, that the Tribunal’s jurisdiction to hear his application is not well founded. In his submission, the initial assessment of jurisdiction by Deputy President Hotop may have been flawed by the Company’s failure to disclose correspondence directed to the Seacare Authority, which he represents as the Seacare Certificate. This document, so the argument goes, sets out a reason for rejecting

Mr O’Sullivan’s compensation claim that had not been disclosed and, if disclosed would have enabled Mr O’Sullivan to make more informed decisions about the appropriate course of action. By application of reasoning that is difficult to follow, Mr O’Sullivan asserts that the Seacare Certificate affects the time in which reconsideration of the Company’s primary determination of his claim was to be completed, whereupon a reconsideration decision rejecting his claim was deemed to have been made.[45] In the particular circumstances of this case, Mr O’Sullivan maintains that this ‘interfered with the Proper grant of Tribunal Jurisdiction’.[46]
[45] Mr O’Sullivan’s written submissions, 16 October 2019, at [5].
[46] Ibid, at [19].
The Company asserts that the two pieces of correspondence it sent the Seacare Authority do not affect the Tribunal’s jurisdiction and, moreover, these documents do not bear upon the calculation of time for the purposes of s 79 of the SRC Act. In the Company’s submission, the correspondence notifies the Authority of the determination it made rejecting Mr O’Sullivan’s compensation claim.
I have carefully considered the notes made of the 27 February 2015 directions hearing, in which Deputy President Hotop, as he then was, positively determined the Tribunal’s jurisdiction. I have also had regard to the more recent positive comments of Deputy President Boyle regarding the Tribunal’s jurisdiction in this matter.[47] Nonetheless, it is quite clear that neither Deputy President had opportunity to take into account the documents Mr O’Sullivan has recently placed before the Tribunal, and to consider the matters he is presently agitating.
[47] O’Sullivan and P&O Maritime Service Pty Ltd [2019] AATA 2966 at [26]-[27].
I should say immediately that the correspondence between the Company and the Seacare Authority has an informative character, in the form of notice of action taken, rather than an operative character, whereby some further action is requested or required by the Seacare Authority. In this regard, the documents are largely innocuous.
Mr O’Sullivan cavils with the content of the information communicated, asserting that this discloses action not previously disclosed, in the form of reasons for the decision to deny his compensation claim that are different than those disclosed to him. Mr O’Sullivan says that had he known about the previously undisclosed reasons, he could have taken different action. Indubitably, that may be so. But this does not bear upon the Tribunal’s jurisdiction in the manner for which he contends.
This is because, in this case, the Tribunal’s jurisdiction rises on three legs:
(a)a ‘reviewable decision’ as defined in s 76(1) of the SRC Act;
(b)for the purposes of s 25 of the AAT Act, conferral of jurisdiction under s 88 of the SRC Act; and
(c)an application for review of a decision that complies with the terms of s 29(1) of the AAT Act.
With regard to a ‘reviewable decision’, a deemed refusal decision by operation of s 79(6) of the SRC Act is a decision the employer is taken to have made. When one considers the interlaced operation of s 78 and s 79, it can be understood that a deemed refusal decision of an employer under s 79(6) may be taken to be, impliedly at least, a decision of the employer for the purposes of s 78(6), being a ‘reviewable decision’ under s 76(1).
The relevant facts in Mr O’Sullivan’s case are that the Company made a determination refusing his compensation claim on 8 December 2014. On 10 December 2014,

Mr O’Sullivan sent by registered post a request for reconsideration of this decision. This was received by the Company on 12 December 2014.
Sixty days or such further period as the Authority notifies thereafter, by operation of

s 79(6) of the SRC Act, the Company is taken to have made a decision to refuse

Mr O’Sullivan’s claim. The Company did not request and the Authority did not allow or notify any further period under s 79(1)(b) for the Company to make a reconsideration decision in response to Mr O’Sullivan’s request. Thus, on 10 February 2015, the Company is taken to have made a decision refusing Mr O’Sullivan’s claim. This decision is a ‘reviewable decision’. The first jurisdictional limb is established.
With regard to the conferral of jurisdiction for the purposes of s 25 of the AAT Act, s 88(1) of the SRC Act is very clear:
Application may be made to the AAT by a claimant for review of a reviewable decision.
From this it follows that the second jurisdictional limb is established.
On 12 February 2015, Mr O’Sullivan lodged an application for review, to which he attached a number of documents.[48] It is quite clear that Mr O’Sullivan’s application for review was squarely directed to the decision the Company was required but failed to make in response to his request for reconsideration, whereupon, at the end of the sixty day period prescribed in s 79(1), it is taken to have made a refusal decision.
[48] T1.
Mr O’Sullivan’s application was properly made under the terms of s 25 of the AAT Act.

It was within the time allowed by operation of s 29(2), as amended by s 89(3) of the SRC Act. It was lodged two days after the Company is taken to have made a decision by operation of s 79(6).
Thus it is that the third jurisdictional limb is established.
From this it follows, the Tribunal has jurisdiction to hear Mr O’Sullivan’s application.
Generally, the reasons given for a reviewable decision are not material to the Tribunal’s jurisdiction. For a decision to be reviewable, jurisdiction must be conferred. Furthermore, even if the reviewable decision is legally flawed or invalidly made, as Mr O’Sullivan alleges, the Tribunal may still be capable of reviewing it on application.[49]
[49] Collector of Customs (NSW) v Brian Lawlor Automotive Pty Ltd [1979] FCA 21, per Bowen CJ at [16]-[24] and Smithers J at [55].
Dismissal on jurisdictional grounds
Mr O’Sullivan’s request for his application to be dismissed under s 42A(4) of the AAT Act for want of jurisdiction cannot be acceded to, as dismissal under that section is not available. The Tribunal has jurisdiction to review the decision the Company is deemed to have made on 10 February 2015.
I note, for the avoidance of doubt, that if Mr O’Sullivan’s purported revocation of his application for review has effect, it would result in automatic dismissal under s 42A(1B) of the AAT Act, not dismissal under s 42A(4).
Dismissal – Failure to appear
The Company asserts that Mr O’Sullivan failed to appear at two telephone directions hearings and he has not provided evidence in support of his assertions relating to conflicting medical appointments. This, the Company argues, is sufficient reason to dismiss Mr O’Sullivan’s application.
The power to dismiss an application in circumstances where a person fails to appear at a directions hearing is set out in s 42A(2) of the AAT Act:
(2)If a party to a proceeding before the Tribunal in respect of an application for the review of a decision (not being the person who made the decision) fails either to appear in person or to appear by a representative at a directions hearing, or an alternative dispute resolution process under Division 3, held in relation to the application, or at the hearing of the proceeding, the Tribunal may:
(a)if the person who failed to appear is the applicant—dismiss the application without proceeding to review the decision; or
(b)in any other case—direct that the person who failed to appear shall cease to be a party to the proceeding.
As can be seen, if the preconditions necessary to enliven the power to dismiss under the terms of this section are met, then the discretionary power may be exercised.
As the procedural chronology clearly reveals, a telephone directions hearing was listed to occur on 18 October 2019. Mr O’Sullivan was sent a listing notice in respect of this directions hearing on 14 October 2019. On 16 October 2019, Mr O’Sullivan requested the directions hearing be cancelled. This request was refused. On 17 October 2019,

Mr O’Sullivan informed the Tribunal that he had an appointment with Dr Price that clashed with the listed directions hearing. I accepted this at face value. In consequence of this the directions hearing was vacated and relisted on 25 October 2019.
On 23 October 2019, Mr O’Sullivan asked the Tribunal to dispense with the relisted directions hearing. This request was refused. Late on 24 October 2019, Mr O’Sullivan informed the Tribunal that he had a further appointment with Dr Price which clashed with the relisted directions hearing and he will not be available on the morning of 25 October 2019.
The telephone directions hearing proceeded. Mr O’Sullivan failed to appear. A number of attempts were made to contact him by telephone, without success.
I am satisfied that that Mr O’Sullivan was given appropriate notice of the directions hearing. This was given by registered post and confirmed by telephone.
From this it follows that the discretion to dismiss his application is enlivened. It remains to determine if exercise of the discretion is appropriate in all the circumstances.
To my mind, there is much that weighs for exercising the discretion, as the Company contends.
On a number of occasions prior to the directions hearing, Mr O’Sullivan informed the Tribunal that he is not amenable to participate further in the proceedings in a deteriorating state of health, without the skills of a qualified Legal Practitioner. Mr O’Sullivan has been given substantial periods of time, over many months and years, in which to obtain legal advice or legal representation. A great deal of latitude has been allowed in this regard.

Mr O’Sullivan has raised issues relating to legal advice or legal representation since January 2016. It is a matter that Mr O’Sullivan has expressly raised on several occasions, and it is a matter I have addressed in orders and interlocutory decisions, including on

3 August 2018, 15 August 2018 and 8 February 2019. I am not persuaded that

Mr O’Sullivan’s failure to obtain legal representation is a reasonable explanation for him failing to appear at the directions hearing on 25 October 2019.
It can be accepted that Mr O’Sullivan is unwell. Dr Price refers to him experiencing anxiety and has previously referred to a painful back condition for which Mr O’Sullivan has been prescribed strong analgesic medication that, in Dr Price’s assessment on 19 September 2018, might interfere with Mr O’Sullivan’s ‘mental processing abilities’. This notwithstanding, Dr Price has not suggested that Mr O’Sullivan is unfit or unable to effectively participate in Tribunal proceedings. Having dealt with Mr O’Sullivan on many occasions since 2016, his capability to effectively participate is clearly demonstrated by his very active involvement and his submissions addressing intricate legal points. While this may be affected by pain or the effect of strong medications from time to time, or by anxiety, Mr O’Sullivan has been an effective participant.
The reason Mr O’Sullivan has given for his failure to appear on 25 October 2019 is that he was attending a consultation with Dr Price that clashes with the listed directions hearing. Mr O’Sullivan did not specify the time and location of the appointment with Dr Price on that day; nor did he seek to reschedule the directions hearing to another time, after his appointment with Dr Price. Dr Price confirmed Mr O’Sullivan’s attendance this morning, but did not specify the time of the appointment. Furthermore, Dr Price does not suggest that the anxiety to which he refers was such that it would prevent Mr O’Sullivan effectively participating in the directions hearing.
I also note that on three successive occasions, Mr O’Sullivan was notified of a listed directions hearing with which he then cavilled and, when informed the directions hearing would proceed as listed, he then informed the Tribunal he would not be available as the listing clashed with an appointment he arranged with Dr Price. I cannot determine with certainty when Mr O’Sullivan arranged these appointments at times that clashed with the listed directions hearings, but the pattern is striking. This smacks of contrivance – one might accept a clash of appointments on one occasion, but a second is highly unlikely and raises a question of convenience, whereas a third could suggest a deliberate intent. Conduct of this latter kind would not be consistent with s 33(1AB) of the AAT Act and the obligation of an applicant to use his or her best endeavours to assist the Tribunal to fulfil the objective in section 2A.
I note in passing that the Tribunal is not bound by the rules of evidence, under which coincidence evidence outside the terms of s 98 of the Evidence Act 1995 (Cth) would not be admissible. Nevertheless, in this case, the information given by Mr O’Sullivan is insufficient to establish with precision the time of the appointments and when they were made. The same can be said of the evidence given by Dr Price. I do not propose to engage in probabilistic reasoning of the kind Simpson J referred to in R v Gale[50] at [25] on this point, as it is not necessary to do so. The coincidence of timing is a fact Mr O’Sullivan contends for. The evidence he has adduced in support of this proposition is not sufficient to establish it as a fact. Nor do I intend to draw any inference from this evidence about his state of mind or his intent to orchestrate events in order to avoid appearing at the directions hearings listed by the Tribunal.
[50] [2012] NSWCCA 174.
The information Mr O’Sullivan set out in his 23 October 2019 letter to the Tribunal does not establish a reasonable justification for adjournment of the directions hearing.

Dr Price’s 25 October 2019 note does not establish a valid reason for Mr O’Sullivan’s failure to appear at the directions hearing on 25 October 2019. Even if I accepted his assertion about the clash of his appointment with Dr Price and the listed directions hearing, which is presently unsupported, he failed to appear and the discretion to dismiss his application is enlivened.
In such circumstances, the question is how best to proceed. Dismissing Mr O’Sullivan’s application for his failure to appear is one option. The Company contends for this course.

I note that when faced with similar circumstances in MZWUA v Minister for Immigration and Multicultural Affairs,[51] the Federal Court considered that dismissal was appropriate. Of course, each case turns on its own facts and must be assessed in the particular circumstances. Should this option be preferred, Mr O’Sullivan will be able to seek reinstatement of his application under s 42A(8A) of the AAT Act.
[51] [2006] FCA 1625 at [8]-[9].
Another option is to determine the application forthwith. Doing so in this case would be fraught with difficulties, such as those described by the Tribunal in Mitchell’s case at [35] and [36]. Foremost among them is the lack of agreement – this removes any possibility of determining the application under s 34J or 42C of the AAT Act, leaving only determination under s 43 of the AAT Act on hearing the application. I have not conducted a hearing of the substantive application. Furthermore, the possibility of setting the application down for hearing in the near future is also fraught with difficulty. Even though the application was lodged in February 2015, the proceedings have been interrupted by legal and procedural disputes relating to preliminary matters, which have been the subject of Federal Court and High Court actions on a number of occasions. One result of all this is that the Company has not yet obtained and given the Tribunal materials on which it will rely. Mr O’Sullivan has given some materials, but has refused to give more without legal advice, albeit that he has been afforded ample time to obtain legal representation or advice. I am not prepared to proceed in a manner that may not be consistent with the requirement under s 39(1) of the AAT Act that each party is to be given a reasonable opportunity to present their case.

Another option, is to allow the application to proceed. This would mean not exercising the discretion to dismiss Mr O’Sullivan’s application under s 42A(2) and issuing procedural directions to progress the application to hearing as expeditiously as is possible in the circumstances. This has been attempted in the past, without success. Furthermore,

Mr O’Sullivan has stated his unwillingness to proceed in this manner and to participate further without legal representation or advice.
Considering all these matters and weighing up the options, as a last resort, it is appropriate to exercise the discretion conferred by s 42A(2) of the AAT Act to dismiss

Mr O’Sullivan’s application in consequence of his failure to appear at the directions hearing on 25 October 2019 – that, to my mind, is the preferable course.
Even if I had decided this issue differently in the present circumstances, and the matter is finely balanced, no different result would be obtained. As will appear, there are other grounds for dismissing of Mr O’Sullivan’s application.
Dismissal – Failure to proceed within a reasonable time
Mr O’Sullivan maintains that he requires legal representation before proceeding with his application. He argues that his case involves intricate and novel legal issues that necessitate professional legal advice, which he is not able to properly represent, especially as he is unwell.
The Company asserts that Mr O’Sullivan’s application should be dismissed as he has failed to proceed with it within a reasonable time.
This issue is to be decided under s 42A(5) of the AAT Act:
Dismissal if applicant fails to proceed or fails to comply with Tribunal’s direction
(5)If an applicant for a review of a decision fails within a reasonable time:
(a)to proceed with the application; or
(b)…
the Tribunal may dismiss the application without proceeding to review the decision.
As can be seen, there are three steps: firstly, it is necessary to determine if Mr O’Sullivan has failed to proceed with his application; and if so, secondly, if this failure is within a reasonable time. If so, then thirdly, it is necessary to decide if it is appropriate to exercise the discretion to dismiss his application in the particular circumstances.
Failure to proceed
The applicable test of whether an applicant has failed to proceed with his or her application was examined by Spender J in Beard v Telstra Corporation Ltd[52] (Beard) at [30] –
In my opinion, the power to dismiss pursuant to s 42A(5) of the 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.
[52] [1999] FCA 999.
Close examination of the procedural history reveals that Mr O’Sullivan has attempted to stay the proceedings on several occasions on grounds of ill health and lack of legal representation. On 20 September 2018, he purported to resign as his own representative. On many occasions he has resisted progress in the proceedings for want of good health and legal advice or legal representation. Nevertheless, over the intervening period,

Mr O’Sullivan has agitated issues he considers to be important and he has requested referral of alleged questions of law to the Federal Court. On 9 May 2019, he provided the Tribunal with some materials he intends to rely upon and considers to be relevant to his case. From 17 June 2019 to 13 August 2019 he resisted the issue of summonses to which he objected. On 23 September 2019, he sought dismissal of his application on jurisdictional grounds. Mr O’Sullivan has made submissions about these matters on a number of occasions. It is in this context, and in a state of ill health, that he has effectively refused to participate further in Tribunal proceedings without legal advice or legal representation.
On 21 June 2019, Mr O’Sullivan sought further time in which to obtain documents from a previous lawyer, but there is no evidence that he has done so. On 17 and 25 July 2019 he sought further time in which to obtain legal advice or legal representation. By

Mr O’Sullivan’s own account, this did not occur. In August 2019 he proceeded to raise issues and objections to summonses sought by the Company. Those matters were dealt with by Deputy President Boyle on 13 August 2019. Mr O’Sullivan did not challenge this decision.
Since 13 August 2019, Mr O’Sullivan has not given the Tribunal further materials in support of his case on which he intends to rely and he has not sought to progress or prosecute his application in a material way.
On 23 September 2019, Mr O’Sullivan requested dismissal of his application on jurisdictional grounds. This is not consistent with him pursuing or prosecuting the application; rather, it is consistent with a process of reasoning and argument against the very foundation of the application, such that it would be brought to an end without being heard and determined. So, too, are the purported revocations Mr O’Sullivan made in respect of his application for review and his request for reconsideration of the Company’s 8 December 2014 determination. This is reinforced by his stated desire to no longer participate in the application for the reasons he outlined.
Since 23 September 2019, Mr O’Sullivan has sought to stay or end the proceedings for reasons he has explained, and he has stated his desire not to participate any further in the proceedings as he is in ill heath and without legal advice or legal representation. He has purported to revoke his application for review and requested dismissal of his application on jurisdictional grounds.
While actions Mr O’Sullivan took prior to 13 August 2019 might be consistent with him attempting to proceed with his application, dealing with issues he considered to be important as best he could within the latitude granted to him by the Tribunal, the same cannot be said of the actions he has taken on and after 23 September 2019. By those actions Mr O’Sullivan has attempted to have his application dismissed and brought to an end without being heard and determined and he has expressly declined to participate further in the proceedings without legal representation.
Considering these matters, I am reasonably satisfied that Mr O’Sullivan has failed to proceed with his application since 23 September 2019, at least.
Reasonable time
For the purposes of s 42A(5) of the AAT Act, it is necessary to determine if a reasonable time has elapsed since the failure to proceed.[53] The assessment of reasonableness requires consideration of the particular circumstances of each case and, in particular, the circumstances of the applicant and any explanation of the failure or its persistence.
[53] Charara v Commissioner of Taxation (2016) 160 ALD 57; [2016] FCA 451 at [78].

The span of time that may be considered reasonable in any case is not simply determined with regard to duration alone – it should not be assumed that for a period of time to be reasonable it must necessarily be short. The dismissal power under s 42A(5) is in support of the Tribunal objectives set out in s 2A:
2A Tribunal’s objective
In carrying out its functions, the Tribunal must pursue the objective of providing a mechanism of review that:
(a)is accessible; and
(b)is fair, just, economical, informal and quick; and
(c)is proportionate to the importance and complexity of the matter; and
(d)promotes public trust and confidence in the decision making of the Tribunal.
As can be seen, quickness is but one objective of the mechanism for review the Tribunal must pursue under s 2A(b). This is coupled with fairness, justice, economy and informality in a context in which objectives of accessibility, proportionality and public trust also arise.
Although the details are not clear, and Mr O’Sullivan has refused to divulge information about medical issues, it is clear enough that he suffers from a back condition and anxiety, and he has obtained medical treatment for his physical and psychological ailments from Dr Price. The medical evidence, such as it is, does not establish a firm or sufficient basis on which to determine if Mr O’Sullivan has failed to proceed with his application within a reasonable time for medical reasons. While medical and health issues may have slowed his ability to proceed, the present evidence does not establish that he has been unable to do so since 23 September 2019. This is underscored by Mr O’Sullivan’s ability to make written submissions on matters relating to his application, albeit seeking to have it dismissed on jurisdictional grounds.
Mr O’Sullivan’s failure to obtain legal representation has not prevented him from proceeding, rather he has exercised choice in deciding not to provide further materials or to make further submissions in respect of his substantive application without legal advice or legal representation. He has exercised this choice somewhat variably since he attempted to resign as his own representative on 20 September 2018. Since

23 September 2019, want of legal advice or legal representation has not prevented him from making written submissions seeking dismissal of his application on jurisdictional grounds.
Even though the previous stay applications Mr O’Sullivan has made have been refused, as the procedural history clearly demonstrates, much time has been allowed for him to obtain legal advice or representation in order to proceed with his application. While it may be Mr O’Sullivan’s preference is to proceed only with legal representation, failing to obtain legal advice or legal representation is not a sound or sufficient basis on which to determine if he has failed to proceed with his application within a reasonable time. While legal representation is not a requirement of proceedings in the Tribunal, in Mr O’Sullivan’s present circumstances, it is a relevant matter to take into account when assessing reasonable time for present purposes.
The time for Mr O’Sullivan to proceed with his application may be assessed with reference to the timetable directed by the Tribunal on 21 June 2019, in the following relevant terms:
on or before 19 July 2019, Mr O’Sullivan is to give to the Tribunal and the Respondent all further materials on which he will rely, including medical reports, radiological imaging and X-ray reports, tax returns and group certificates from 1993 to the present.
Mr O’Sullivan sought additional time to comply with this direction, but this was refused as additional time had already been granted and the direction effectively reiterated an earlier direction issued on 20 May 2019, to which Mr O’Sullivan responded with submissions, opinions, arguments and explanations regarding his 2014 claim. While failure to comply with the 21 June 2019 direction is a different and separate consideration to which I will shortly return, Mr O’Sullivan has not yet given the Tribunal further materials within the terms of the 21 June 2019 direction.
To my mind, adopting the language and the test Spender J set out in Beard’s case, while this failure has resulted in delay, it alone does not amount to a failure by Mr O’Sullivan to prosecute his application when Mr O’Sullivan was actively engaged in other matters relating to summonses that were on foot in the proceedings. Once those matters had been dealt with on 13 August 2019, however, unlike Beard’s case, no substantive hearing has been listed and the question of proceeding within a reasonable time arises.
Thereafter, once the other matters in which he was engaged, relating to summonses, had been finally dealt with on 13 August 2019, Mr O’Sullivan’s failure to give the Tribunal further materials in support of his case on which he intends to rely or to agitate matters in support of his application is not consistent with him prosecuting his application.
Furthermore, the request Mr O’Sullivan made on 23 September 2019 for dismissal of his application on jurisdictional grounds is consistent with him no longer prosecuting the application. So, too, are the purported revocations he made in respect of his application for review and his request for reconsideration of the Company’s 8 December 2014 determination. This is reinforced by his stated desire to no longer participate in the application for the reasons he described.
Mr O’Sullivan has been afforded a great deal of time and latitude commensurate with his particular circumstances to progress his application to hearing. Matters relating to his health, his efforts to obtain legal representation and the consequent difficulties he alleges proceeding with his application have been on foot for more than 12 months. Since

23 September 2019, Mr O’Sullivan’s efforts have been directed to having his application dismissed on jurisdictional grounds. From 23 September 2019 to the present he has failed to proceed with his application. His failure to do so has caused delays and uncertainty for the Company. The resulting unfairness weighs in the balance when assessing the extent of a reasonable time in the particular circumstance.
Considering these matters in the context of the extensive procedural history, including the time allowed and the latitude given to Mr O’Sullivan, I am satisfied that, presently, he has failed within a reasonable time to proceed with his application.
This means the discretion to dismiss his application under s 42A(5)(a) of the AAT Act is enlivened.
Discretion
Wigney J set out applicable principles when dealing with s 42A(5) of the AAT Act in Charara v Commissioner of Taxation[54] (Charara). While the discretion conferred by s 42A(5)(a) of the AAT Act is not expressly limited, as Jagot J explained in Andelman v Secretary, Department of Families, Housing, Community Services and Indigenous Affairs[55] at [34]-[35], it must be construed and exercised in a manner that provides procedural fairness and equal justice to the parties. This does not mean that it is necessary to pander to every whim of a self-represented applicant such as Mr O’Sullivan, rather it requires an evaluation of fairness in the particular circumstances. Furthermore, the discretion must be exercised sparingly[56] and reasonably.[57]
[54] (2016) 160 ALD 57; [2016] FCA 451 at [78]-[82].
[55] (2011) 213 FCR 345; [2011] FCA 299.
[56] Guse v Comcare (1997) 49 ALD 288 at 291.
[57] Berry v Commissioner of Taxation (2015) 149 ALD 270 at [34]-[35].
Furthermore, it is necessary to have regard to the objectives set out in s 2A(b) of the AAT Act and the requirement set out in s 33(1)(b) of that Act, that the proceeding is to be ‘conducted with as little formality and technicality, and with as much expedition, as the requirements of this Act and of every other relevant enactment and a proper consideration of the matters before the Tribunal permit’.
Since 23 September 2019, Mr O’Sullivan’s conduct in respect of the proceedings has not been consistent with his obligation to ‘use his or her best endeavours to assist the Tribunal to fulfil the objective in section 2A’ under s 33(1AB) of the AAT Act. Rather his conduct has been to seek dismissal of his application on jurisdictional grounds.
The real possibility of Mr O’Sullivan’s application being dismissed on other grounds was explained to him during the directions hearing on 18 November 2019. Counsel for the Company reiterated the substance of written submissions that were given to the Tribunal and Mr O’Sullivan. Certainly, Mr O’Sullivan is familiar with dismissal issues under s 42A(5) of the AAT Act as these have been dealt with and explained in some detail by the Tribunal in two previous interlocutory decisions,[58] one of which Mr O’Sullivan successfully challenged in the Federal Court.[59]
[58] O’Sullivan v P & O Maritime Services Pty Ltd [2016] AATA 283 and O’Sullivan v P & O Maritime Services Pty Ltd [2019] AATA 126.
[59] O’Sullivan v P & O Maritime Services Pty Ltd [2016] FCA 969.
Mr O’Sullivan made written and oral submissions in a summary form and declined the express opportunity to make further, more detailed submissions in the course of the directions hearing on 18 November 2019. He cavilled with the late service of the Company’s written submissions before the 18 November 2019 directions hearing, arguing that this did not allow him time to obtain legal advice or to make a considered response. Mr O’Sullivan explained that he was not amenable to participate further as he was not legally represented and he was affected by anxiety and the side effects of medication recently prescribed by Dr Price. He has adduced no medical or other evidence to support this latter assertion.
I am satisfied that Mr O’Sullivan had sufficient time, exceeding 12 days, in which to consider the Company’s submissions and to seek legal advice. He has not provided any evidence of efforts he has made to obtain legal advice about the Company’s written submissions that were frustrated by lack of time. It must be noted that the Company’s written submissions were largely in response to Mr O’Sullivan’s request (and related submissions) for his application to be dismissed for want of jurisdiction.
I accept that Mr O’Sullivan was not feeling well during the directions hearing on

18 November 2019, but I am satisfied that over the preceding weeks and months since

23 September 2019 at least, he has been provided with a reasonable opportunity to present his case and to be heard on pertinent issues. That he has declined to do so is a matter of his choosing. While the 19 September 2018 report of Dr Price suggests that Mr O’Sullivan’s mental processing abilities might be affected by medications he was taking at that time, tDr Price’s brief report of 25 October 2019 does not establish that

Mr O’Sullivan’s health, or the effects of medications he has been taking, are such that these prevented him from participating effectively in the directions hearing or proceeding with his application.
I note that the directions hearing was listed after two earlier unsuccessful attempts to hear Mr O’Sullivan on the matters he raised when seeking dismissal of his application under

s 42A(4) of the AAT Act.
No doubt, should his application be dismissed, this will result in some unfairness to

Mr O’Sullivan as it will bring the proceedings to an end and leave in place the deemed decision under review, rejecting his compensation claim. No different result would be obtained if his application was to be dismissed on jurisdictional grounds – the primary determination by which his compensation claim was originally rejected would remain in place. Any unfairness to Mr O’Sullivan must be viewed in this light.
Mr O’Sullivan’s failure to proceed with his application has resulted in delay, uncertainty and some unfairness to the Company. This must be taken into account, when considering issues of equal justice.
Generally, as I have explained in a previous interlocutory decision rejecting an earlier request for dismissal of Mr O’Sullivan’s application,[60] dismissal of an application should be the last resort, once other procedural options have been properly considered or attempted. As the procedural history of Mr O’Sullivan’s application clearly demonstrates, many procedural options have been adopted and attempted since February 2015.

On 8 February 2019, I refused to dismiss the application and issued directions setting out a procedure and a timetable to progress the matter to hearing. This was not successful and presently, 10 months later, once again, it is necessary to determine if the application should be dismissed. In these circumstances, it is difficult to know what else could reasonably be done to progress the application to hearing.
[60] O’Sullivan v P & O Maritime Services Pty Ltd [2019] AATA 126.
I have considered the option of allowing Mr O’Sullivan more time in which to recover his health, to marshal his materials and, perhaps, to obtain legal representation. Even if I were to do so, I am not persuaded that any different result would be obtained than has occurred previously, when additional time has been allowed. To my mind, it is not appropriate to grant an indefinite stay of the proceedings in the present circumstances; nor am I persuaded that staying proceedings for a time, such as 4 weeks for example, would have any positive result should it be granted. Mr O’Sullivan could not give an undertaking that he would progress his application or comply with the 21 June 2019 direction should this occur. There is simply no evidence to suggest his health might improve or that he might obtain legal advice or legal representation within such a period.

Furthermore, considering the extensive procedural history, the option of granting an indefinite stay, or even staying proceedings for a period, would be likely to result in uncertainty and related unfairness to the Company, and it would not be consistent with the Tribunal’s objectives under s 2A of the AAT Act.
It is also not possible to proceed, forthwith, to determine the application at a hearing. To do so would result in unfairness to the Company unless a reasonable opportunity was given for the Company to prepare and present its case.
It is not appropriate to proceed without Mr O’Sullivan.
I have carefully considered relevant authorities. In Beard’s case the Tribunal fell into error as failure to provide documents is not determinative of failure to proceed. In O’Sullivan v P&O Maritime Services Pty Ltd,[61] the Tribunal erroneously dismissed Mr O’Sullivan’s application without giving him a reasonable opportunity to be heard. In Charara’s case, the Tribunal fell into error when it dismissed Mr Charara’s application ex parte. The present circumstances of Mr O’Sullivan’s case are distinguished on factual grounds from these cases.
[61] [2016] FCA 969.
I am satisfied that Mr O’Sullivan has been afforded a reasonable opportunity to be heard, and his failure to proceed does not turn on him failing to provide documents.
On balance, weighing the various options, interests and consequences, and considering the particular circumstances, as a last resort, I am satisfied that it is appropriate to exercise discretion to dismiss Mr O’Sullivan’s application under s 42A(5)(a) of the AAT Act.
Even so, had I come to a different conclusion, no different result would eventuate as

Mr O’Sullivan’s application is dismissed for other reasons.
Dismissal – Failure to comply with a direction within a reasonable time
Mr O’Sullivan asserts that he has not failed to comply with a direction of the Tribunal within a reasonable time. He maintains that he is up to date.
The Company argues that Mr O’Sullivan has serially not complied with directions within a reasonable time and his application should be dismissed.
This issue is to be decided under s 42A(5) of the AAT Act:
Dismissal if applicant fails to proceed or fails to comply with Tribunal’s direction
(5)If an applicant for a review of a decision fails within a reasonable time:
(a)…; 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.
The principles to which I have already referred in relation to s 42A(a) of the AAT Act are applicable in this context, so I will not repeat them.
Failure to comply
In consideration of the procedural history, I note but do not need to repeat what I said on this subject when refusing an earlier request by the Company for Mr O’Sullivan’s application to be dismissed.[62]
[62] O’Sullivan v P & O Maritime Services Pty Ltd [2019] AATA 126 at [88]-[101].
I am satisfied that Mr Sullivan failed to comply with the directions made on 21 June 2019. He has not given the Tribunal all further materials of the nominated kinds from 1993 to the present on which he seeks to rely at hearing.
By his own account, Mr O’Sullivan has explained in writing and orally that he is not willing to provide such materials without first obtaining legal advice or legal representation. In the directions hearing on 21 June 2019, Mr O’Sullivan informed me that he was in the process of attempting to obtain relevant documents from a former lawyer. It was on this basis, over the objections of the Company, that I allowed him more time in the 21 June 2019 direction, until 19 July 2019, than had previously been provided in directions issued on

20 May 2019 in which to give the Tribunal materials specified.
On 17 July 2019, Mr O’Sullivan requested vacation of the directions made on

21 June 2019. He informed me that he was seeking legal representation and had not yet made enquiries about documents he wanted to obtain from his previous lawyer. He informed me that he could not give any assurance he would comply with amended directions, should additional time be granted. I refused the request to vacate the

21 June 2019 directions.
That being so I am satisfied that Mr O’Sullivan failed to comply with a direction for the purposes of s 42A(5)(b) of the AAT Act.
Reasonable time
Mr O’Sullivan has not yet provided further materials of the kinds referred to in the

21 June 2019 directions. He has provided three explanations for this – his efforts to obtain legal representation, his attention on issues relating to summonses, and his poor health.
On the information available, it appears that Mr O’Sullivan has not yet obtained legal advice. In the directions hearing on 18 November 2019, he informed me that he was still in the process of seeking legal representation and he hoped to speak to a lawyer suggested by his local church in the next few days. Presently, Mr O’Sullivan has not provided any further information about the result of any such discussions. There is nothing to suggest that this circumstance is likely to change in the near future.
I am not persuaded that Mr O’Sullivan’s failure to obtain legal advice or legal representation has prevented him from complying with the 21 June 2019 direction within a reasonable time. Although, as I have also said, I accept that this may have caused him some difficulties.
I accept that Mr O’Sullivan’s attention may have been focused upon issues relating to summonses sealed by the Tribunal on 28 June 2019 to which he objected. These matters were dealt with by Deputy President Boyle at an interlocutory hearing on

13 August 2019.[63] Mr O’Sullivan did not lodge an appeal against this decision.
[63] O’Sullivan and P&O Maritime Services Pty Ltd [2019] AATA 2966.
Four months have elapsed since that decision was made, during which time Mr O’Sullivan has not complied with the outstanding direction from 21 June 2019. The time for compliance with this direction was 19 July 2019. His failure to comply commenced thereafter and it is that period, from 20 July 2019 to the present that must be considered when determining is his failure to comply is within a reasonable time.
With regard to Mr O’Sullivan’s poor health, there is scant documentary evidence to go on. Nevertheless, I accept that he experiences physical symptoms as a result of a back condition to which Dr Price referred in a previous report in September 2018 and, on

Dr Price’s recent short report in November 2019, I accept that he experiences anxiety. I also accept that medications Mr O’Sullivan is taking may have an adverse effect on his mental processing ability. The reports of Dr Price do not establish that Mr O’Sullivan has been unable to comply with the 21 June 2019 direction for medical reasons within a reasonable time. Allowances have been made for his medical conditions by extending time for Mr O’Sullivan to comply.
In these circumstances, a good deal of latitude has been given in allowing more time for Mr O’Sullivan to marshal materials on which he seeks to rely and to obtain legal advice or legal representation.
To my mind, considering all the relevant circumstances in the five months since 19 July 2019, the amount of time that may be considered reasonable for him to comply with the 21 June 2019 direction has been surpassed. I am satisfied that Mr O’Sullivan has failed to comply with the 21 June 2019 direction within a reasonable time.
Discretion
It follows that the discretion to dismiss his application is enlivened.
I have already discussed, and it is not necessary to repeat, the applicable legal principles.
Mr O’Sullivan has been granted opportunities to be heard on the issue of dismissal, and the possibility of that result has been explained to him, most recently during the directions hearing on 18 November 2019. I have carefully considered explanations Mr O’Sullivan has provided.
I note that the 21 June 2019 direction was, itself, in effect, a grant of additional time for

Mr O’Sullivan to comply with the directions made on 20 May 2019. Much time has subsequently elapsed.
There is no certainty or even a reasonable assumption that Mr O’Sullivan will comply with the 21 June 2019 direction should additional time be allowed. By his own account,

he could give no such assurance.
There is no evidence that Mr O’Sullivan’s health is likely to improve in the near future and there is nothing to suggest he may soon obtain legal advice or legal representation.
I am mindful that this circumstance leaves the Company in a position of uncertainty in respect of delay, as well as in respect of evidence that might arise to be dealt with should the application proceed to hearing, forthwith. Should further time be allowed for

Mr O’Sullivan to comply with the 21 June 2019 direction, it is likely that the Company will face further uncertainty. Unfairness of these kinds must be weighed in the balance.
To my mind, having regard to the Tribunal objectives set out in s 2A of the AAT Act, reasonable options to enable Mr O’Sullivan’s compliance in his particular circumstances have been attempted and exhausted, without a positive result.
Considerations of procedural fairness and equal justice apply. It is not necessary to repeat what I have already said about these matters. If Mr O’Sullivan’s application is dismissed for want of compliance within a reasonable time, he will lose the opportunity for review of the deemed decision refusing his claim. If the matter is allowed to proceed without discipline, the Company will face persisting uncertainty and related unfairness. I have considered procedural options available to restore discipline, but I am not persuaded that any such options are likely to be effective or feasible.
On balance, it is not preferable to allow more time and it is not feasible, for reasons of procedural fairness to both parties, to proceed forthwith to hear and determine the application.
In this case, dismissing the application is an option of last resort.
On balance, having carefully considered the interests of the parties and the available options in the particular circumstances, I am satisfied that the preferable course is to exercise the discretion conferred by s 42A(5)(b) to dismiss Mr O’Sullivan’s application.
CONCLUSION
Mr O’Sullivan’s purported revocation of his application for review may amount to withdrawal of his application for the purposes of s 42A(1A) of the AAT Act.
Whether or not this is correct, his application is dismissed for three other distinct reasons, which have been separately considered and determined in the particular circumstances.
Mr O’Sullivan’s application is dismissed under s 42A(2), it being appropriate to do so in consideration of the notice given and the explanations provided in the particular circumstances.
His application is also dismissed under s 42A(5)(a), it being appropriate to do so in consideration of the circumstances in which Mr O’Sullivan failed to proceed with his application within a reasonable time.
Furthermore, his application is dismissed under s 42A(5)(b), it being appropriate to do so in consideration of the circumstances in which Mr O’Sullivan failed to comply with a direction of the Tribunal within a reasonable time.
DECISION
Mr O’Sullivan’s application is dismissed.

I certify that the preceding 237 (two hundred and thirty seven) paragraphs are a true copy of the reasons for the decision herein of Mr S. Webb, Member.

..........................[sgd]..............................................
Associate
Dated: 24 December 2019

Date of hearing: 18 November 2019

Applicant: In person

Counsel for the Respondent: Mr J Lencsner

Solicitors for the Respondent: Mr B Buckhurst, Holman Fenwick Willan

Date of hearing:	18 November 2019
Applicant:	In person
Counsel for the Respondent:	Mr J Lencsner
Solicitors for the Respondent:	Mr B Buckhurst, Holman Fenwick Willan