Simon and Australian Capital Territory (Compensation)

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Simon and Australian Capital Territory (Compensation) [2019] AATA 527 (22 March 2019)

Division:GENERAL DIVISION

File Number(s):      2018/4781, 2018/4785

Re:Anthony Simon

APPLICANT

Australian Capital TerritoryAnd  

RESPONDENT

DECISION

Tribunal:Mark Hyman, Member

Date:22 March 2019

Place:Canberra

The application in matter 2015/5670 is not reinstated; the application for an extension of time made in matter 2018/4781 is denied.

The application in matter 2018/4785 may be entertained by the tribunal.

.......................................................................

Mark Hyman, Member

Catchwords

PRACTICE AND PROCEDURE – compensation – reinstatement of application earlier withdrawn – whether earlier application dismissed in error – where application withdrawn on legal advice - application for extension of time so as to reactivate previous application or lodge new application – lodgement of application for review of new decision relating to the earlier injury – whether new application an abuse of process - whether prevented or constrained by jurisdictional considerations – earlier application may not be reinstated – new application not an abuse of process and not excluded by jurisdictional considerations

Legislation

Acts Interpretation Act 1901, s 15AB
Administrative Appeals Tribunal Act 1975, ss 2, 25, 29, 33, 37, 42A, 42B

Safety, Rehabilitation and Compensation Act 1988, ss 5A, 5B, 62, 65

Cases

Abrahams and Comcare [2006] FCA 1829

Australian Postal Corporation v Sellick [2008] FCA 236

Brehoi v Minister for Immigration and Multicultural Affairs (1999) 58 ALD 385

Comcare vBromham [2017] FCA 174

Comcare v Farrell (2016) 250 FCR 432; [2016] FCAFC 115

Comcare v Grimes [1994] FCA 1054

Comcare v Muir [2016] FCA 346

Comcare v Wuth (2018) 159 ALD 1; [2018] FCAFC 13

Dranichnikov v Centrelink [2003] FCAFC 133

Durham and TNT Australia [2011] AATA 802

Goldie v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 367 (2002) 121 FCR 383

Grimsley and Telstra Corporation (2010) 51 AAR 401

Hunter Valley Developments v Minister for Home Affairs and Environment (1984) 58 ALR 305

Kennedy v Comcare [2014] FCA 82

Lees v Comcare [1999] FCA 753

Lees and Repatriation Commission (2004) 82 ALD 150

Matusko and Australian Postal Corporation [1995] AATA 14

Minister for Immigration and Multicultural Affairs v Bhardwaj (2002) 209 CLR

Mulheron and Australian Telecommunications Corporation [1991] AATA 673

Nicholson and Secretary, Department of Social Security [1990] AATA 212

Novosel and Comcare [2011] AATA 182 (2011) 121 ALD 172

Novosel v Comcare [2017] FCA 722

Pavlovic and Telstra Corporation [1994] AATA 187

Quinn and Australian Postal Corporation (1992) 15 AAR 519

Rodriguez v Telstra Corporation Ltd (2002) 66 ALD 579; [2002] FCA 30

Smith v Comcare [2013] FCAFC 65

Szabo v Comcare [2012] FCAFC 129

VYRP and Comcare [2018] AATA 3202

Walls and Comcare [2015] AATA 697

REASONS FOR DECISION

Mark Hyman, Member

22 March 2019

  1. This decision is about whether a review application by Mr Anthony Simon can or should be heard by the tribunal. Mr Simon, who worked for the ACT Ambulance Service, lodged a claim for compensation under the Safety, Rehabilitation and Compensation Act 1988 (the SRC Act) on 1…

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Details
Case
[2019] AATA 527
Decision Date

CaseChat Overview and Summary

The Administrative Appeals Tribunal considered an application by Mr Simon concerning a compensation matter against the Australian Capital Territory. Mr Simon sought to reinstate an earlier application for review that he had withdrawn, or alternatively, to lodge a new application for review. The core dispute revolved around whether the withdrawn application could be revived or if a new application was permissible and appropriate.

The Tribunal was required to determine several legal issues. Firstly, whether the earlier withdrawn application could be reinstated, either under provisions allowing reinstatement within 28 days in special circumstances, or where a matter was dismissed in error. Secondly, if reinstatement was not possible, whether an extension of time should be granted to allow Mr Simon to lodge a fresh application for review of a decision made in 2015. Finally, the Tribunal had to consider whether the new application constituted an abuse of process or was otherwise excluded by jurisdictional limitations, particularly concerning the scope of the injury being addressed.

The Tribunal reasoned that the earlier application was not dismissed in error but was deliberately withdrawn based on legal advice. Consequently, the provisions for reinstatement due to error were not enlivened. Regarding reinstatement under special circumstances, the Tribunal found that the significant delay of approximately two years and six months meant the initial 28-day period had long expired. While the Tribunal considered the possibility of extending this time, it concluded that Mr Simon's circumstances did not meet the threshold of "special circumstances" required by the legislation, drawing on established case law such as *Dranichnikov v Centrelink*. As the Tribunal's powers under section 42A were exhausted, it became *functus officio* in relation to the earlier application.

However, the Tribunal then turned to the application for an extension of time to lodge a new application. It acknowledged that where a matter cannot be reinstated, a new application may be lodged, typically requiring an extension of time. The Tribunal considered the well-established factors for granting such extensions, including the explanation for delay, whether the applicant had "rested on his rights," prejudice to the respondent, prospects of success, and fairness. Despite the considerable delay, the Tribunal found that Mr Simon had an arguable case, and while the delay was significant, it was not convinced of substantial prejudice to Comcare. The Tribunal indicated it was inclined to accept that Mr Simon had an arguable case, suggesting the new application was not an abuse of process and was not excluded by jurisdictional considerations.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

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Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

No error has been demonstrated, of any kind, in the present matter. In the absence of an error, the discretion in subsection 42A(10) is not enlivened. The tribunal has no jurisdiction to act. Once the powers in section 42A have been exhausted the tribunal is functus officio (Pavlovic at [18]). I therefore do not need to consider Comcare’s arguments regarding the exercise of the discretion to reinstate the matter.Should an extension of time be granted to allow a fresh application for review of the 2015 decision? An extension of time application was lodged on 23 August 2018, attaching the reviewable decision dated 16 October 2015 and the original application for review of that decision dated 29 October 2015. At that time it appears that the intent was to reactivate the earlier application, but at the hearing on 29 January 2019 the matter was argued by both sides, in written and oral submissions, as a question whether or not the earlier matter should be reinstated, rather than whether the time for lodging an application should be extended so that a new review application could be entertained. The extension of time application appears to remain on foot, but it has not been pressed, and every indication is that Mr Simon decided to pursue reinstatement of the original application rather than an extension of time to make a new application. It does not appear that Comcare has at any stage opposed the extension of time. Given the uncertainties, it seems appropriate that I at least turn my mind to the extension of time application. Where a matter is withdrawn and cannot be reinstated, it is accepted that a new application can be lodged, although it will usually require that an extension of time is granted. That makes the decision inevitably a matter of the tribunal’s discretion, taking into account the issues that such extensions raise. Those well understood issues, as set out in cases such as Hunter Valley Developments v Minister for Home Affairs and Environment (1984) 58 ALR 305, include whether an explanation for delay has been offered, whether the applicant has “rested on his rights”, whether there is prejudice to the respondent, the prospects of success of the substantive application, and fairness between the applicant and others in a similar position. In this instance the extension sought is very considerable: the sixty day period for application for review of the decision of 16 October 2015 expired in December 2015, and the extension of time was lodged some two years and eight months out of time, in August 2018. Meanwhile Mr Simon was not continuing to agitate his matter, apparently on the basis that the legal advice he had received was to the effect that he was unlikely to succeed. That is the explanation provided for the delay, but it could not be said that in the past couple of years Mr Simon has been continuing to press the matter – or if so, it has not been brought to my attention. I am not sure that there is substantial prejudice to Comcare, in that all compensation matters have the possibility of reappearing even when they appear to have come to finality, and the prospects of success appear to depend very much on the jurisdictional issue considered below. On the last point, as will become clear, I am inclined to accept that Mr Simon has an arguable case.

Ratio Decidendi

Legal Principle Established

Mr Woulfe submitted that:·the attempt to reinstate the earlier application should be rejected; that application had been withdrawn not in error but deliberately on the basis of legal advice received at the time, and the case law was against reinstatement in those circumstances; ·in the alternative, if the tribunal considers that the discretion to reinstate the earlier application is enlivened, the tribunal should not exercise that discretion because of the lapse of time, the prejudice to Comcare and the limited prospects of success;·the tribunal should not entertain the new application because it is an attempt to relitigate a matter that has already been part of the earlier proceeding and the application is therefore an abuse of process; and·the tribunal should entertain neither the new nor the earlier application as presently agitated because the applicant is attempting to recast the scope of the matter to address an injury in 2014; the tribunal’s jurisdiction under either application is limited to an injury arising in 2015; the applicant hopes by recasting the scope to secure a more favourable outcome and the case law disapproves of such attempts.CONSIDERATIONShould the earlier application be reinstated? The tribunal dismissed Mr Simon’s earlier application for review under subsections 42A(1A) and (1B) or, more properly, the application came to be dismissed under those subsections: the subsections provide that an applicant may withdraw an application, and if so the application is taken to be dismissed by the tribunal without a review having occurred. That is what happened in the present case. A dismissed application can be reinstated under one of two scenarios:·subsections (8), (8B) and (9), which allow reinstatement if an applicant seeks it within 28 days or such longer period as the tribunal allows, in special circumstances; or ·subsection 42A(10), which allows reinstatement where a matter is dismissed in error. In the present instance it was not submitted by Mr Simon that the tribunal should reinstate the application under subsections 42A(8), (8B) and (9); the period of 28 days for application for reinstatement expired on 8 March 2016, and an extension of time by about two years and six months would be necessary. For completeness’ sake, I have considered the question of a grant of an extension of time for reinstatement under subsection 42A(8B). That subsection allows the time to be extended in “special circumstances”. Subsection 42A(9) then allows reinstatement where the tribunal considers it appropriate. The “special circumstances” phrase has an ambit that is well understood, as it appears in a number of legislative contexts. The Federal Court and this tribunal have adopted the position that the phrase has no fixed meaning but must be applied according to the individual circumstances of the case. Special circumstances exist where circumstances distinguish the case from the usual and it would be unjust, unreasonable or inappropriate for the relevant discretion not to be exercised. That reasoning derives from cases such as Dranichnikov v Centrelink [2003] FCAFC 133. I cannot see in this case that Mr Simon’s circumstances stand out sufficiently from the usual run of such cases that the special circumstances threshold is met. I therefore do not allow a longer period for seeking reinstatement.