Rowland and Comcare
[2008] AATA 208
•18 March 2008
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2008] AATA 208
ADMINISTRATIVE APPEALS TRIBUNAL )
)No 2007/5716 & 2007/1809
GENERAL ADMINISTRATIVE DIVISION ) Re IAN ROWLAND Applicant
And
COMCARE
Respondent
DECISION
Tribunal Deputy President P E Hack SC Date18 March 2008
PlaceBrisbane
Decision The Tribunal
1. dismisses the application to reinstate application 2007/1809, and
2. refuses the application, made in 2007/5716, to extend time within which to seek a review of the decision of Comcare of 7 May 2007.
.......................[sgd].......................
Deputy President
CATCHWORDS
PRACTICE AND PROCEDURE – application for reinstatement – application for extension of time – original application not dismissed in error – original application withdrawn voluntarily – reinstatement refused - justice of the case does not require an extension of time – extension of time refused.
Administrative Appeals Tribunal Act 1975 (Cth) s 29(7), s 42A(10).
Australian Postal Corporation and Oudyn (2003) 73 ALD 659
Brown v FCT (1999) 99 ATC 4516
Comcare v A’Hearn (1993) 45 FCR 441
Goldie v Minister for Immigration and Multicultural and Indigenous Affairs (2002) 121 FCR 383
REASONS FOR DECISION
18 March 2008 Deputy President P E Hack SC 1.In August 1982 the Commissioner for Employees’ Compensation determined that the Commonwealth was liable to pay compensation to the applicant, Mr Ian Rowland, in respect of a condition described as “aggravation of a disease namely aggravation of a pre-existing condition of coronary artery disease resulting in myocardial infraction”.
2.Thereafter in June 2002 Comcare, the statutory successor of the Commissioner, determined,
“pursuant to section 14 of the Safety Rehabilitation and Compensation Act, 1988 that all liability to pay compensation under any section of the Act will cease on and from 4 July 2002.”
The letter to Mr Rowland informing him of this decision also informed him that he could ask for a reconsideration of that determination. Mr Rowland did not do so within 30 days of receipt of the request, the normal time for so doing. He did not request a reconsideration until his solicitors did so by letter dated 30 November 2006.
3.That request was treated by Comcare as a request for an extension of time within which to seek a reconsideration of the earlier determination. The request was refused on 7 May 2007. Comcare’s decision in relation to the extension of time is a “reviewable decision”, as that term is used in Part VI of the Safety Rehabilitation and Compensation Act 1988 (Cth) (the SRC Act) and thus able to be reviewed by this Tribunal.
4.Mr Rowland sought a review by an application filed by his solicitors on 8 May 2007. Those proceedings were given the number 2007/1809 and the application proceeded through the Tribunal’s ordinary conference processes.
5.On 3 August 2007 (by letter dated 2 August 2007) Mr Rowland’s solicitors gave the Tribunal “formal notice of our client’s withdrawal of the application”. It was common ground that the letter constituted the notification in writing required by s 42A(1A) of the Administrative Appeals Tribunal Act 1975 (Cth) (the AAT Act) and that by operation of s 42A(1B) of that Act,
“the Tribunal [was] taken to have dismissed the application without proceeding to review the decision.”
The Registry of the Tribunal notified the parties in those terms by letters dated 6 August 2007.
6.Subsequently, by correspondence dated 14 November 2007 and received in the Tribunal on 16 November 2007, the solicitors for Mr Rowland sought a review of the decision dated 7 May 2007. The “reasons for application”, which in some respects are inapt to Mr Rowland’s circumstances, were in the same form as the earlier application save that an extension of time was also sought. This application was allocated the number 2007/5716 in the Tribunal’s records.
7.Although in form the application was one to extend time, the argument for Mr Rowland was presented by Mr King-Scott of counsel as one for reinstatement. However, it was submitted, if reinstatement was refused for want of jurisdiction or on discretionary grounds, the application for an extension of time ought be considered.
Reinstatement
8.The Tribunal has a wide discretion, conferred by s 42A(10) of the AAT Act, to reinstate an application that has been dismissed, but the exercise of that power is conditioned upon the Tribunal being satisfied that the proceedings had been dismissed “in error”. The ambit of the expression “in error” was considered by the Full Court of the Federal Court in Goldie v Minister for Immigration and Multicultural and Indigenous Affairs[1].
[1] (2002) 121 FCR 383.
9.Whilst there was not unanimity as to the result, all members of the Court agreed that it was wrong to restrict the operation of s 42A(10) to error on the part of the Tribunal. Wilcox and Downes JJ put the matter in this way[2]:
“We do not think it is necessary, in order to enliven the Tribunal’s power under s 42A(10), that the Tribunal, or a member or employee of the Tribunal, should have been at fault in relation to the dismissal. The fault may have lain elsewhere, provided it induced the error. For example, because of a mistake as to his or her instructions, a solicitor or other representative of a party might have wrongly consented to a dismissal order or filed a notice of discontinuance. No fault would attach to the Tribunal; but, if the solicitor’s mistake induced the dismissal of the action, it could properly be said the application had been “dismissed in error”.
[2] (2002) 121 FCR 383 at 388 [29]; see per Carr J at 397 [73].
10.To understand the nature of the “error” said to be operative here it is necessary to set out a little more of the background by reference to the affidavit of the solicitor who now has the conduct of the matter on behalf of Mr Rowland. That indicates that on 26 July 2007 Mr Hampton, who then had conduct of the matter, telephoned the solicitor acting for Comcare and informed her, according to his diary note, that the application in the Tribunal “is being withdrawn” and that consideration was being given to seeking a “re-assessment” from Comcare.
11.The next note shows a conversation between Mr Hampton and Mr Rowland, recorded as having occurred on 6 August 2007. It says
“Call from client. Discussed the state of the claim and that the best thing we can do now is withdraw from the AAT and apply for re-assessment on the medical evidence we have. On the basis of Oudyn[[3]] they can’t withdraw an[[4]] acceptance of liability. He said he was happy to hear that I am across the claim and have matters under control.”
[3] Australian Postal Corporation v Oudyn (2003) 73 ALD 659.
[4] In the original note this word is “and” but it seems likely to be a typographical error.
12.There is a degree of incongruity about this note given that, on its face, it would seem to suggest that the instructions from Mr Rowland to withdraw were given after the withdrawal was communicated to the Tribunal on 3 August 2007, some days earlier. But the matter was not argued on the basis that the withdrawal was effected without explicit instructions to do so. The basis on which the matter was advanced appears from the following extracts from the affidavit of Mr Mills, Mr Rowland’s current solicitor:
“7. On or about 6th August 2007 matter Q2007/1809 was withdrawn by the Applicant.
8. The Applicant was under the belief that he could apply for the matter to be re-assessed on the basis of the decision in Australian Postal Corporation and Oudyn [2003] FCA 318.
9. I am unable to clarify further the basis under which the decision to withdraw application Q2007/1809 was made as the information either does not exist or is unable to be determined as the decisions were the subject of communications between former employees of Slater and Gordon, the Applicant Mr Rowland and representatives of the respondent and or its legal representatives.
10. I am informed by the Applicant and verily believe that at no time did he give instructions to abandon the claim.”
13.I am unable to see how it could be said that the proceedings were dismissed in error, that is, what mistake on the part of Mr Rowland or the solicitor then acting induced the dismissal of the application. The inference that I draw from the material was that Mr Rowland thought, advisedly, that
there was no merit in the application then on foot. The solicitor appears to have correctly understood the decision in Oudyn[5]. I infer that the view taken was that so long as there was an acceptance by Comcare of liability under s 14 of the SRC Act it was open to Mr Rowland to submit a fresh claim for compensation under one or other of the several sections that create the entitlement to compensation for particular losses.
[5] (2003) 73 ALD 659.
14.I am thus not satisfied that the proceedings were dismissed in error and would not order reinstatement of application 2007/1809.
Extension of time
15.The decision of O’Connor J, as President of the Tribunal, in Re Mulheron and Australian Telecommunications Corporation[6] stands as authority for the proposition that where an application for review has been dismissed under s 42A(2) of the AAT Act, an applicant may bring a fresh application to review the same decision, subject, of course, to any necessary extension of time. There seems no reason to doubt that the same is true of a dismissal under s 42A(1B) of the AAT Act given the similarity of the language used to describe the result in both cases and the rationale of the President’s decision which was that in the case of a dismissal the Tribunal’s power to review had not been exercised.
[6] (1991) 23 ALD 309.
16.The discretion in s 29(7) of the AAT Act to extend the time for the making of an application is one to be exercised where the Tribunal is satisfied “that it is reasonable in all the circumstances to do so”. The principles that guide the exercise of that discretion are well known and need not be recited.
17.For the purposes of this application I must consider whether it is reasonable in all the circumstances to extend by about 5 months, that is from 28 days after 8 May 2007 when Mr Rowland’s solicitors received[7] Comcare’s letter of 7 May 2007, to 16 November 2007 when application 2007/5716 was lodged. Mr Pappas of counsel, who appeared for Comcare, submitted that it was relevant that there was no explanation for that delay. Whilst the cases suggest that “it is to be expected that such an explanation will normally be given”[8] I do not regard the present case as one where an explicit explanation of the delay is necessary. For about half of the time there were proceedings on foot in the Tribunal and I infer, although it is not said explicitly, that in November 2007 Mr Rowland experienced a change of heart.
[7] See the application in 2007/1809.
[8] Comcare v A’Hearn (1993) 45 FCR 441 at 444.
18.But it must be said that there is no material at all that explains that change of heart. I am of the view that the absence of that explanation has some significance.
19.The cases also suggest that it is relevant to have regard to the apparent strength, or otherwise, of the case. The case that Mr Rowland would seek to advance is not one that is self-evidently bound to succeed or bound to fail. Mr Rowland is seeking to review a decision to refuse an extension of a number of years, but it seems likely that the application to Comcare to extend time was prompted by the receipt of a medical report in October 2006. Ultimately I can do no more than say that the case Mr Rowland seeks to advance is arguable.
20.It is also relevant, in my view, that Mr Rowland had an application on foot which was withdrawn in circumstances that I have concluded were not brought about by any error on the part of Mr Rowland or his advisers. The case is one where I infer that Mr Rowland has had second thoughts.
21.The question of prejudice to Comcare is also relevant. There is no suggestion of prejudice to Comcare from missing witnesses and such like. Were an extension to be granted, Comcare will incur costs over and above those that would have been incurred had Mr Rowland brought a single application and pursued it, but these costs would be quite modest and could be reduced by the making of appropriate directions. The real prejudice to Comcare in my view is that which arises from the revival of a claim that Comcare was, in the circumstances, entitled to regard as being at an end. But again in the overall scheme of things, that prejudice is quite modest to an entity of Comcare’s size.
22.Ultimately, it seems to me that I ought refuse the application for an extension of time. In the words of Hill J in Brown v FCT[9] “the justice of the case” does not require an extension, having regard particularly to my view that Mr Rowland’s application is prompted by a change of heart.
[9] 99 ATC 4516 at 4525 [47]
23.I would, therefore,
1.dismiss the application to reinstate application 2007/1809, and
2.refuse the application, made in 2007/5716, to extend time within which to seek a review of the decision of Comcare of 7 May 2007.
I certify that the 23 preceding paragraphs are a true copy of the reasons for the decision herein of Deputy President P E Hack SC
Signed: .........................................[sgd].......................................
Jacqueline Woods, AssociateDate of Hearing 21 February 2008
Date of Decision 18 March 2008
Counsel for the Applicant Mr R King-Scott
Solicitor for the Applicant Slater and Gordon
Counsel for the Respondent Mr J Pappas
Solicitor for the Respondent Australian Government Solicitor
0
4
0