Osmen and DHL Supply Chain (Australia) Pty Ltd (Compensation)

[2022] AATA 59

Osmen and DHL Supply Chain (Australia) Pty Ltd (Compensation) [2022] AATA 59 (20 January 2022)

Division:GENERAL DIVISION

File Number:          2020/1201

Re:Michael Osmen

APPLICANT

AndDHL Supply Chain (Australia) Pty Ltd

RESPONDENT

DECISION

Tribunal:Senior Member A Poljak

Date:20 January 2022

Place:Sydney

The reinstatement application is refused.

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

Senior Member A Poljak

CATCHWORDS

PRACTICE AND PROCEDURE – reinstatement application – where the applicant withdrew – whether it is appropriate in the circumstances to reinstatement the application – whether the application was dismissed in error – where main reason for seeking reinstatement is to reignite settlement negotiations – reinstatement application refused

LEGISLATION

Administrative Appeals Tribunal Act1975(Cth) s 42A

REASONS FOR DECISION

Senior Member A Poljak

20 January 2022

1. On 2 March 2020, Mr Michael Osmen, the applicant, applied to this Tribunal for review of a decision of the respondent denying his claim for workers compensation.

2. On 21 October 2021, the applicant withdrew his application from the Tribunal.

3. These interlocutory proceedings concern the applicant’s request for reinstatement, which is opposed by the respondent.

   Background

4. At the time that the applicant lodged his application for review with the Tribunal, he was represented by solicitors Carroll & O’Dea Lawyers.

5. On 28 April 2021, the matter was listed for a two-day hearing on 12 and 13 August 2021, however, the hearing was adjourned and re-listed on 22 to 24 September 2021 due to COVID-19 restrictions.

6. I understand that numerous discussions took place between the parties in an attempt to resolve the matter. The discussions were unsuccessful.

7. On 9 September 2021, Carroll & O’Dea Lawyers ceased to represent the applicant. The applicant informed the respondent and the Tribunal that he was in the process of seeking new representation. In the interests of procedural fairness, the hearing was vacated on 17 September 2021. The applicant was advised that given the extensive costs implications for the respondent, should the applicant be ultimately successful, the respondent’s costs would need to be considered should costs be awarded.

8. At a directions hearing on 30 September 2021, the applicant again informed the Tribunal that he was in the process of seeking legal representation. The applicant was advised that it was in his best interest to assist the respondent and the Tribunal to progress the matter to hearing and a further directions hearing was listed three weeks later on 21 October 2021.

9. On 4 October 2021, the applicant sought to resume settlement discussions however the parties were unable to reach agreement and settlement discussions were ceased.

10. On 20 October 2021, the applicant emailed the Tribunal requesting that “the case be removed from the AAT so I can get the legal support that I need”. The Tribunal sought clarification from the applicant about whether he was seeking a further adjournment or whether he wished to withdraw his matter from the Tribunal. He was advised that if he was seeking an adjournment, this could be raised with the Tribunal member at the next directions hearing. The applicant responded by saying, “I definitely need to remove the case from the AAT its the only way I can get a legal team to help me”.

11. The applicant was then sent a Notice of Withdrawal and advised to complete the form if he wished to withdraw his matter. The Tribunal also advised, “Please note that a withdrawal will finalise your matter with the Tribunal - it will end your application and the decision under review will remain unchanged”. The applicant emailed a completed Notice of Withdrawal form to the Tribunal stating, “this will able [sic] me to get a new legal team and a fresh compensation claim”.

12. On 21 October 2021, the applicant’s matter was withdrawn from the Tribunal and the directions hearing of the same date was vacated. The applicant advised the respondent’s solicitors that he would be submitting a new claim for compensation once he obtained legal representation.

13. On 29 October 2021, the applicant sought to ask the respondent’s solicitors if a previous settlement offer was still open to accept, to which the respondent advised, “We received confirmation from the Tribunal that you withdrew your Application from the Tribunal and the Application was dismissed effective 21 October 2021. Accordingly, your claim for workers’ compensation has been closed, and any settlement which was previously offered to you is no longer available”.

14. On 1 November 2021, the applicant emailed the respondent solicitor’s stating the following:

    compensation claim is still valid the Tribunal process is closed.

    i didn't want it to come to this but i have witnessed plenty of coverups by DHL supervisors while working with DHL some involving their large clients. so keep pushing me

15. On 3 November 2021, the applicant requested and was provided with new claim forms from the respondent.

16. On 4 November 2021, the applicant emailed the Tribunal asking if he could re-open his case and on 6 November 2021, the applicant’s advocate, Ms Alison, emailed the Tribunal the following:

    “I am seeking clarification around the closure of this matter.

    The claimants only intention was to seek other legal representation.

    Under no circumstances was the matter to be closed as the matter is of a legal right to claim compensation.

    Please advise how this matter can be resolved through a fair and equitable settlement.”

17. On 10 November 2021, the applicant requested reinstatement of his application for review stating:

    “The matter was mistakenly closed as it was suggested that the matter be reassigned to another legal representative.

    Under the legal right for adequate compensation, we request reinstatement of this matter for discussion of appropriate payment for damages sought.

    Please advise the scheduled date of the next hearing so that we can prepare for the proceeding to be discussed, with a view to settling this matter in a fair equitable manner.”

    Consideration

18. Section 42A of the Administrative Appeals Tribunal Act1975 (Cth) (the Act) concerns the discontinuance, dismissal and reinstatement etc. of Tribunal applications. Sub-section 1A provides:

    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.

19. This is the provision under which the matter was withdrawn from the Tribunal by the applicant on 21 October 2021.

20. Sub-sections 42A(8), (8A), (9) and (10) of the Act deal with the reinstatement of applications. The respondent concedes that the applicant satisfies the 28 day time period stipulated in sub-section (8B)(a). As such, pursuant to sub-sections (9) and (10), the issues for determination in these proceedings are as follows:

    (a)Is it appropriate in the circumstances to reinstate the application?

    (b)Was the application dismissed in error?

21. Ms Alison appeared as advocate for the applicant at the interlocutory hearing. She submitted that the applicant withdrew his application from the Tribunal because he thought he could find a solicitor to take over the matter and because of his mental state. She said he had spoken to several people about the proceedings and said that he does need to proceed with his application for review. After the conclusion of the interlocutory proceedings, Ms Alison emailed the Tribunal stating:

    “Our only intention is to finalise this matter with a fair settlement and request again that this matter be re-opened in order for a final settlement to be completed without the need for any further action/hearing.” 

22. Ms Alison also referred to a previous email sent by the applicant to the Tribunal on 12 October 2021 which referred to his mental state. He said, “its very stressful as i suffer from depression and anxiety(medicated) and i want to settle the claim before i get too mentally sick”. While the applicant now points to his mental health as a basis for reinstating his application, no medical evidence has been provided about the impact his condition has on him nor whether it was a relevant factor back in October 2021, when he withdrew his application from the Tribunal.

23. The applicant was legally represented for a significant period up until just prior to the matter going to hearing. He has also subsequently received legal advice from other law firms. During the period in which he had legal representation, there appears to have been numerous settlement negotiations between the parties.

24. Looking at the history of the matter and the correspondence, the motive for the reinstatement application appears to not be to secure a further hearing and review of the matter, but to reignite settlement negotiations.

25. For all these reasons, I do not find it appropriate in the circumstances to reinstate the application.

26. As to whether the application was withdrawn in error, I do not accept that there was any error in the applicant withdrawing his application from the Tribunal. He was given the opportunity by the Tribunal to either request a further adjournment of the proceedings or withdraw his application. He was also told that he could discuss his intentions with the Tribunal member at an upcoming directions hearing and was advised that a withdrawal would finalise his application with the Tribunal and that the decision under review would be unchanged. The option of seeking an adjournment was not accepted by the applicant and he withdrew his application.

    Decision

27. The reinstatement application is refused.

I certify that the preceding 27 (twenty-seven) paragraphs are a true copy of the reasons for the decision herein of Senior Member A Poljak

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

Associate

Dated: 20 January 2022

Date of interlocutory hearing:	13 January 2022
Date final submissions received:	13 January 2022
Advocate for the Applicant:	A Alison
Counsel for the Respondent:	C Clark
Solicitors for the Respondent:	K Watson, HBA Legal