QZXS and Comcare (Practice and procedure)

[2025] ARTA 2269

QZXS and Comcare (Practice and procedure) [2025] ARTA 2269 (25 September 2025)

Decision and Reasons for Decision

Applicant/s:  QZXS

Respondent:  Comcare

Tribunal Number:                2023/4983

Tribunal:  General Member M. Carey

Place:  Perth

Hearing date:  10 September 2025 Date of written decision:     25 September 2025

Decision:

The application for reinstatement of matter number 2023/4983 made pursuant to subsections 102(5) and 102(9) of the Administrative Review Tribunal Act 2024 is refused.

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

General Member M. Carey

Catchwords

APPLICATION FOR REINSTATEMENT FOLLOWING DISMISSAL – dismissal for failure

to appear at Tribunal case event – failure to appear at resumed hearing following notification of date, time and place of resumed hearing – consideration of circumstances – history of proceeding – no error attended the dismissal – not appropriate to reinstate application in the circumstances

Legislation

Administrative Review Tribunal Act 2024 (Cth)

Safety, Rehabilitation and Compensation Act 1988 (Cth)

Cases

Goldie v Minister for Immigration [2002] FCAFC 367; (2002) 121 FCR 383

Statement of Reasons

1. At 10.37am (AWST) on 12 May 2025, this application was dismissed because the applicant, QZXS, failed to appear, having been provided with appropriate notice of the date, time and place of the Tribunal case event.

1. That case event was the continuation of the hearing of her application that had made a faltering start owing to her very late attendance of the Tribunal on the opening day of hearing on 13 February 2025, a refusal on the applicant’s part to resume on the following day, 14 February 2025, setting aside that hearing date and substituting 18 February 2025, which, when the hearing proceeded, was adjourned before the end of the full day’s hearing. At the end of that hearing on 18 February 2025, it was decided that the hearing would resume on 12 and 15 May 2025 to conclude the evidence and then hear submissions. The applicant expressly agreed to that as well as to completing her Statement of Facts Issues and Contentions by 30 April 2025.

1. On the morning of Monday, 12 May 2025 the hearing commenced with the respondent in attendance but QZXS absent. The respondent did not immediately make an application for dismissal but allowed time to determine whether QZXS was within area of the ART Perth hearing rooms, where arrangements had been made for her to continue her evidence in the same manner as had been given on 13 and 18 February 2025. After Tribunal officers checked the public areas of the building, and in the absence of any communication to

explain the absence, the respondent made its application for dismissal pursuant to section 99 of the Administrative Review Tribunal Act 2025 on the grounds that the applicant had failed to appear at a Tribunal case event.

1. Written reasons for the decision to dismiss the proceeding were provided to the parties the following day, Tuesday, 13 May 2025. The decision clearly records that the failure to attend the Tribunal case event on Monday 12 May 2025 as the reason for the dismissal, notwithstanding the fact that at paragraph 11 of the reasons for decision mistakenly mentions the hearing date as Monday 9 May 2025. That mistaken reference is clearly a typographical error and does not in any way affect the clarity of reasons given for the decision.

1. That same day, QZXS made a written application to the Administrative Review Tribunal (ART) for reinstatement pursuant to subsection 102(5) of the ART Act which permits the Tribunal to reinstate an application where the dismissal was made in error. That provision does not limit the error to the acts or omissions of any party or the Tribunal. As noted in Goldie v Minister for Immigration [2002] FCAFC 367; (2002) 121 FCR 383, dealing with the equivalent provision in section 42(10) of the Administrative Appeals Tribunal Act 1975 (AAT Act), there is no limitation on the word ‘error’ in the section. It needs to be shown that the proceedings were dismissed, and the dismissal was ‘attended with error.’1

1. However, where a matter has been dismissed pursuant to section 99, a party to the proceeding may apply to the Tribunal pursuant to subsection 102(7) of the ART Act for reinstatement within a specified time period following receiving notice of dismissal. That time requirement is satisfied in the present case.

1. Subsection 102(9) of the ART Act states that the reinstatement may be made if ‘the Tribunal considers it appropriate’ to do so and to make such other orders as would be appropriate in the circumstances.

1. For the reasons that follow, the Tribunal does not consider the dismissal was attended by error for the purposes of subsection 102(5) of the ART Act and does not consider it

1 [2002] FCAFC 367; (2002) 121 FCR 383, 388 [27]-[28], per Wilcox and Downes JJ.

appropriate to reinstate the application in proceedings 2023-4983 pursuant to section 102(9) of the ART Act.

1. QZXS submitted a reinstatement application on 13 May 2025, the day following the dismissal claiming that her failure to attend on Monday, 12 May 2025 for the resumption of her hearing was due to her mistakenly entering the wrong date in her diary at the conclusion of the hearing on 18 February 2025. She stated:

   Yesterday, 12 May 2025, I was preparing for the Resumed Hearing from February 2025, and I noted an email from the Respondents Solicitor, in regard to a Hearing for yesterday, 12 May 2025. I realised at that time (on afternoon of 12 May 2025) that I may have mistakenly written the wrong date in my diary at the February Hearing, and looked to correspondence, of which the last one that I received in regard to this matter was on 25 February 2025, from ART Perth advising of the transferring of my case to the Melbourne ART Office, and on that email, although it correctly referred to the listing in May 2025, but did not provide the actual date. I had been preparing to appear at the ART Perth Office, next Tuesday 22 May 2025, which I may have written down on the wrong page of my diary - for next week, instead of this week.

1. She pointed to an earlier email she sent to the Tribunal on the afternoon of the resumed hearing date, 12 May 2025 at 2.22pm, that stated:

   … I wrote down in my diary that the Hearing would be listed for Tuesday 20th May and Thursday 22 May 2025, as this would be scheduled after the 2 weeks following my lodging a Facts, Issues and Contention by 30 April 2025. I also received an email on 25 February 2025, as per above, advising my case has been transferred to Melbourne ART Office, for listing in May 2025, but with no specific date given in the email. As I had not heard from the ART, I have been progressing towards what I thought was the Hearing date, next week, 20th and 22nd May 2025.

1. I have no faith in the truth of this explanation. As the transcript of 18 February 2025 noted, the dates for resumed hearing were identified during the hearing with QZXS’s participation. QZXS advised the Tribunal that she would be available and prepared. The transcript reads:

   MR CLARK: I understand, sir, at the moment I am free in that week of 12 May. I have got hearings either side the week before that, and then the week after. But it would not be difficult to find two days in that week of 12 May.

   GENERAL MEMBER: Good. If we set it down for the 12th and 15th. MR CLARK: Okay.

   QZXS: I’m just having a look. I’ve got enough.

   GENERAL MEMBER: That is the Monday 12th and Thursday 15 May.

   QZXS: Would it go the Friday? So, the Monday and the Friday to give me a good break in between?

   GENERAL MEMBER: Mr Clark?

   QZXS: So, Monday 12th, and then Friday 16th.

   MR CLARK: I prefer the 15th, in light of my other commitments in the following week.

GENERAL MEMBER: I appreciate that. That is going to give you three days from the 12th to come back on the Thursday, QZXS. I think Mr Clark has - - -

QZXS: Two days.

GENERAL MEMBER: Well, - - -

QZXS: Two days. Two days between.

GENERAL MEMBER: It is the third day after, and I think Mr Clark has gone out of his way to try and accommodate this. And I am inclined to grant him that spread of days. That accommodates you, who told me that you cannot do consecutive days.

QZXS: Yes.

GENERAL MEMBER: And you, who insisted on giving yourself until 30 April to do statement of facts, issues and contentions.

QZXS: Yes.

GENERAL MEMBER: And you have solemnly told me today that you can do that, handle that.

QZXS: Yes.

GENERAL MEMBER: Mr Clark will have some time in between to deal with all that. And then we resume on the 12th. And if necessary, we may finish on the 12th. But if necessary, on the 15th. They will be full days of hearing, QZXS.

1. There is no suggestion in that exchange that QZXS was mistaken about the identity of Monday, 12 and Thursday, 15 May 2025, or confused it with Tuesday, 20 and Thursday, 22 May 2025, when those dates were settled at the Tribunal hearing on 18 February 2025.

1. QZXS further suggested in her reinstatement submission that she only became aware of the date of the resumed hearing on that afternoon of 12 May 2025, some hours after the dismissal.

1. The earlier dismissal decision referred to the evidence of notification from the Tribunal of the video link for the resumed hearing setting out the date, time and place of the resumed hearing that was sent to QZXS on Friday, 9 May 2025.

1. QZXS further claimed in respect of this knowledge:

   Unfortunately, I had not seen the email of 09 May 2025. Due to health reasons, I did not open my email until the afternoon of 12 May 2025. This was because I was attending my regularly scheduled medical appointment with my treating Clinical Psychologist, Dr Sophie Henshaw, on the afternoon of Friday 09 May 2025, where I discussed with her my upcoming attendance at the ART for a Hearing and that I would be opening my emails on Monday 12 May 2025, because I was managing my mental health in preparation for attending the ART. I discussed with my Psychologist, the IME Reports, and found that the IME Report by the Rheumatologist captured succinctly my Fibromyalgia and causation. However, I felt that the IME Report from the Psychiatrist needed some clarifications from me for the ART where it is inconsistent with the submitted evidence, but I felt that this could be objectively assessed by

the Presiding Tribunal Member on the submitted facts that had not been included in the Psychiatrists IME.

After I attended my treating psychologist, I shut down mentally over the weekend because of my psychological injuries, and I did not check my email until yesterday, 12 May 2025. For this same reason, I could not attend mother’s day on Sunday 11 May 2025, as I was still mentally shut down and my fibromyalgia symptoms were severe and on the higher end of risk of choking. Because I have to carefully manage my mental health – as recognised by the recent Psychiatrist’s IME Report, I had not checked my email since sending the Facts, Issues and Contention on 30 April 2025, for this reason. I checked my emails for any ART notification on the 12th of May 2025 - because I wanted to be well prepared for the Hearing which I had wrongly thought was for next week.

1. QZXS does not, by this statement, deny that she was notified of the date, time and place of the Tribunal hearing, only that she did not read it.

1. Also, the Tribunal was given a copy of an email of Friday, 9 May 2025 sent from the respondent’s legal representatives to the Tribunal seeking out any Statement of Facts, Issues and Contentions that QZXS was to have provided by 30 April 2025. That email was copied to QZXS. The Tribunal replied to the respondent with a copy of the document that QZXS lodged on 30 April 2025 in accordance with the direction made on 18 February 2025.

1. The respondent drew attention to the words in the Friday, 9 May 2025 email: ‘We note that the resumed hearing is listed for Monday, 12 May 2025’.

1. It is a general obligation of all parties to the Tribunal to assist the Tribunal in coming to its decision on any review. One of the very things that a party is specifically required to do by clause 2.4 of the Administrative Review Tribunal (Common Procedures) Practice Direction 2024 is to provide a current telephone number and email address. Clause 2.5 states that the Tribunal ‘will send documents and notices about an application for review to the most recent email address provided in connection with the review …’ and that implicitly requires parties to read Tribunal notices and respond to them in a timely manner.

1. In any event, both the applicant, QZXS, and respondent received notification of the Tribunal’s directions of 18 February 2025 along with notification of the time, date and place of the resumed hearing by email sent at the conclusion of the last hearing date, 18 February 2025. This was clearly well before the period when QZXS claims to have ‘shut down’ from 9 May to 12 May 2025. QZXS responded to this evidence merely by stating that she did not receive this notification.

1. Again, I do not accept this explanation. The notifications to both parties were sent simultaneously. The respondent received the notifications. The email address to QZXS is the same email address used for all other notifications, including those of 9 May 2025 which she acknowledged she received, but allegedly didn’t read. It is well within the period when she had not ‘shut down’ and was using her computer to provide a Statement of Facts, Issues and Contentions.

1. I do not accept that this dismissal was attended by any error. There was no administrative error in failing to notify her of the hearing and no denial of procedural fairness since the resumed hearing date was set down in order to hear her evidence and submissions going to the entitlement to compensation pursuant to the Safety, Rehabilitation and Compensation Act 1988 that was in dispute. That hearing had not been denied to her. She simply failed to participate.

1. Further, I do not find that it is appropriate to reinstate the matter in the circumstances. The respondent had a year earlier in the proceedings sought to have the matter dismissed for failure to proceed with the matter in a reasonable period pursuant to section 100 of the ART Act. In the decision of 19 December 2024, it was noted:

   6.    The Respondent’s application for dismissal is grounded on repeated delays in the proceedings. There were requests by the Applicant to vacate Tribunal conferences convened to progress the matter towards hearing on 31 August, 3 November 2023, 7 June, 9 July and 24 July 2024. There were failures to attend the medical assessments arranged by the Respondent for Dr Jansen on 8 February 2024 which caused a further conference on 2 April 2024 because of the absence of that doctor’s report. The Respondent makes an effective point at 5.7 of its submissions that a single conference has been convened between the parties in over 12 months.

   7.  The Respondent points out that significant delay in the last 6 months have been attributed to the Applicant’s stated incapacitation and psychological unpreparedness to proceed with her review application and her need to obtain lawyers to represent her. She has not, to the present date, obtained legal representation although she has had 18 months within which to do so.

1. At that stage, the matter was not dismissed but only on the basis that QZXS promised to properly participate, to appear at the hearing and provide those necessary documents promptly. It was noted in that 19 December 2024 decision:

   17. From today, the parties can expect orders for the provision of hearing certificates to be completed so that the availability of witnesses and representatives covering the early months of 2025 can be determined. Those certificates must be completed within the designated time limits. The matter will be fixed for a hearing and will proceed on the appointed date and time.

1. What transpired was nothing like the promised efficient progression of the matter and timely response to Tribunal directions. In the dismissal decision of 12 May 2025, sufficient detail of the history of QZXS’s failure to appear, and excuses for not progressing were provided.

1. There is no good basis for thinking that QZXS will now properly engage in the Tribunal’s processes, and it is not appropriate to reinstate this proceeding.

1. For the foregoing reasons, the application for reinstatement of the proceeding in matter number 2023/4983 is refused.

Hearing date: 10 September 2025 Appearances:

Applicant:                   QZXS, self-represented.

Respondent:               Mr Charles Clarke, instructed by Sparke Helmore Lawyers.