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

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PRACTICE AND PROCEDURE – compensation – reinstatement of application earlier withdrawn – whether earlier application dismissed in error – where application withdrawn on legal advice - application for extension of time so as to reactivate previous application or lodge new application – lodgement of application for review of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

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 May 2015. On 14 July 2015 Comcare denied liability under the SRC Act. Mr Simon requested reconsideration of that decision through his then solicitor, and Comcare affirmed the earlier decision in a reconsideration determination dated 16 October 2015. On 29 October 2015 Mr Simon made an application for review of Comcare’s reconsideration determination by this tribunal. On 9 February 2016 Mr Simon’s solicitor withdrew that application, under subsection 42A(1A) of the Administrative Appeals Tribunal Act 1975 (the AAT Act). Under subsection 42A(1B) of that Act, the tribunal is taken to have dismissed an application that is withdrawn, and the tribunal notified the parties accordingly.
On 22 June 2018 Mr Simon lodged a new claim with Comcare in respect of a condition (a psychological condition) which appears to be the same as or similar to the condition under the claim in respect of which he had withdrawn his review application in 2016. Comcare rejected the new claim. At the request of his new (and still current) solicitor, Mr Simon requested that Comcare reconsider that decision. On 17 August 2018 Comcare affirmed its earlier decision, on the basis that Mr Simon’s claim was for the same injury as his earlier claim. On 23 August 2018 Mr Simon’s solicitor lodged an application for review of Comcare’s decision by this tribunal (the new application – matter number 2018/4785).
Mr Simon also sought to reactivate the earlier appeal. This was done through an extension of time application (dated 23 August 2018), on the basis either that the earlier application could thereby be reactivated, or else if the extension were granted a new appeal against the earlier decision would be lodged. As is explained below, in the event the previous matter was pressed as an application for reinstatement of the earlier withdrawn application (the earlier application – matter number 2018/4781). Reinstatement of a withdrawn matter can occur under two differing pathways: by application within 28 days or such longer period as the tribunal, in special circumstances, allows; or because the matter was dismissed in error. These two pathways are considered below.
Mr Simon has made two applications and has asked that the two matters travel and are heard together. That appears to be necessary only for this interlocutory stage. It is apparent that the two applications before the tribunal are alternatives to each other: if the earlier application were to be reinstated, the new application would presumably fall away. If the earlier application were not reinstated, the new application would remain on foot unless it too were dismissed. Whether that is the intention or not, however, does not matter in the light of the outcome at which I have arrived.
The tribunal held an interlocutory hearing on 2 October 2018 but the matter was adjourned immediately at the submission of Comcare, which had not had a proper opportunity to engage with the materials provided by Mr Simon. The hearing resumed on 29 January 2019. Mr Simon was represented by Mr Allan Anforth of Counsel, instructed by Mr David Healey of David Healey Solicitors. Mr Peter Woulfe of Counsel represented Comcare, instructed by Mr Luke Woolley of Sparke Helmore Lawyers. No evidence was led apart from cross-examination of the applicant. The tribunal was able to draw on the documents provided by Comcare under section 37 of the AAT Act (the T-documents), a number of papers provided by Mr Simon, and submissions by both parties.
As noted above, during the history of this matter up to and including the hearing, Comcare was the respondent. That changed on 1 March 2019, when the decision to grant a licence to the Australian Capital Territory (ACT) under the SRC Act took effect. With that decision liability under the SRC Act in both the present matters transferred to the ACT, which became the respondent. In anticipation of that change, the ACT was alerted to the case and invited to apply to be joined in the matters; it did not do so and made no other representations to the tribunal in respect of the two matters. This decision applies to the ACT as respondent despite Comcare having been the respondent that appeared in the proceedings.
ISSUES
The issues before the tribunal are:
·whether the earlier application in matter 2015/5670 can or should be reinstated as matter 2018/4781;
·if not, whether an extension of time should be granted to allow a fresh application for review of the 2015 decision to be lodged;
·whether the new application should be dismissed under section 42B of the AAT Act as an abuse of process; and
·if not, whether there are any jurisdictional obstacles to the consideration of either the earlier or the new application by the tribunal.
THE LEGISLATIVE FRAMEWORK
The critical legislative provisions are in sections 42A and 42B of the AAT Act. Both sections provide for matters to be disposed of summarily by the tribunal without proceeding to carry out a review. There are five bases on which a matter can be dismissed in this way under section 42A, and the section also provides for reinstatement of a dismissed matter under some circumstances. The five bases are: where the parties consent to the dismissal (subsections (1) and (1A)); where an applicant unilaterally withdraws a matter (subsections (1A), (1AA), (1B), (8), (8B) and (9)); where an applicant fails to appear at a hearing (or at an alternative dispute resolution process) (subsections (2), (7), (8A), (8B) and (9)); where a decision is not reviewable (subsection (4)); and where within a reasonable time either an applicant fails to proceed with an application or fails to comply with a direction of the tribunal (subsection (5)). At the end of the section subsection (10) provides generally for reinstatement where a matter has been dismissed in error. The subsections relevant in present circumstances read as follows:
(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.
(8) If the Tribunal is taken to have dismissed an application under subsection (1B), a party to the proceeding (other than the applicant) may, within the period referred to in subsection (8B), apply to the Tribunal for reinstatement of the application.
(8B) For the purposes of subsections (8) and (8A), the period is:
(a) 28 days after the party receives notification that the application has been dismissed; or
(b) if the party requests an extension—such longer period as the Tribunal, in special circumstances, allows.
(9) If it considers it appropriate to do so, the Tribunal may reinstate the application and give such directions as appear to it to be appropriate in the circumstances.
(10) If it appears to the Tribunal that an application has been dismissed in error, the Tribunal may, on the application of a party to the proceeding or on its own initiative, reinstate the application and give such directions as appear to it to be appropriate in the circumstances.
Section 42B also allows the tribunal to dismiss an application without proceeding to undertake a review. Subsection 42B(1) allows dismissal where the tribunal is satisfied that an application is frivolous, vexatious, misconceived or lacking in substance; or where it has no reasonable prospects of success; or where it is otherwise an abuse of process.
Section 33 of the AAT Act provides that the procedure of the tribunal is at the discretion of the tribunal; the proceedings are to be with as little formality and technicality and with as much expedition as possible, given the requirements of relevant legislation; and the tribunal is not bound by the rules of evidence but may inform itself as it thinks fit.
Section 29 of the AAT Act governs the process for making applications for review. Subsection 29(1) specifies (relevantly) that the application must be made within the prescribed time; subsection 29(2) provides that, subject to exceptions not presently relevant, the prescribed time is 28 days after the decision for which review is sought is given to the applicant. Subsection 29(7) provides that the tribunal may, on written application, extend the time for making an application for review if satisfied that “it is reasonable in all the circumstances to do so”. Subsection 29(9) allows the tribunal to ensure that a person affected by an application for an extension of time is notified of the application; and subsection 29(10) requires the tribunal to hold a hearing on an extension of time application if that application is opposed by whoever was notified under subsection 29(9).
Subsections 65(1) and (4) of the SRC Act modify subsection 29(2) of the AAT Act by providing that an application for review of a reviewable decision under the former Act may be made within 60 rather than 28 days.
Section 5A of the SRC Act defines an injury for the purposes of the Act, relevantly as follows:
(1) In this Act:
injury means:
(a) a disease suffered by an employee; or
(b) an injury (other than a disease) suffered by an employee, that is a physical or mental injury arising out of, or in the course of, the employee’s employment; or
(c) an aggravation of a physical or mental injury (other than a disease) suffered by an employee (whether or not that injury arose out of, or in the course of, the employee’s employment), that is an aggravation that arose out of, or in the course of, that employment;
but does not include a disease, injury or aggravation suffered as a result of reasonable administrative action taken in a reasonable manner in respect of the employee’s employment.
Section 5B of the SRC Act then defines “disease”, relevantly:
(1) In this Act:
disease means:
(a) an ailment suffered by an employee; or
(b) an aggravation of such an ailment;
that was contributed to, to a significant degree, by the employee’s employment by the Commonwealth or a licensee.
…
(3) In this Act:
significant degree means a degree that is substantially more than material.
THE FACTS OF THE MATTER
The facts set out below are not intended to represent findings. I do not need to make findings about these matters, and the facts are presented largely for the purposes of context.
Mr Simon worked from 2010 in the ACT Ambulance Service (ACTAS), having previously been in service with its Victorian equivalent from 2005 to 2010. Paramedics in ACTAS worked a shift arrangement whereby in a fortnight they worked a four days on, four days off cycle; each four day duty cycle comprised two 10-hour day shifts followed by two 14-hour night shifts; the working week totalled 42 hours. Remuneration included shift loadings and overtime.
The Enterprise Agreement under which Mr Simon worked provided for some flexibility in staff’s allocation to the work roster (the Agreement was updated during the period that is relevant here, but for the purposes of this decision nothing appears to turn on any differences in the two versions). Mr Simon met with human resources staff on 9 February and again on 23 February 2015 because he wished to avoid night shifts. In support of his case he took supporting documentation to those meetings, including from his doctors. It became clear that if he stopped working the standard hours, including night shifts, he would see a reduction in his remuneration because of the loss of shift loadings and overtime, and also a reduction in hours.
Interim arrangements were put in place following the meeting on 23 February under which Mr Simon could use personal leave to avoid working night shifts. After two months, on 20 April 2015 ACTAS advised Mr Simon that it could not offer an arrangement whereby he received the remuneration of an operational paramedic while working in an office position, and offered him a part-time (35-hours per week) position involving only day shifts, which would see some reduction in remuneration. Mr Simon submitted a medical certificate relating to a psychological condition (attributed to employment-related factors) on 30 April 2015. The certificate identified 22 April as the date of onset and 24 April as the date on which he had sought medical attention. Mr Simon lodged a claim for workers’ compensation in respect of the condition on 5 May 2015.
Following the lodgement of his claim Mr Simon continued to rely on his sick leave and annual leave to avoid night shifts. The claim was declined by Comcare, and arrangements were then entered into by which Mr Simon was able to avoid night shifts. Mr Simon returned to work under those arrangements on 26 August 2015. Comcare’s reconsideration determination of 16 October 2015 affirmed the rejection of his claim, on the basis that it was excluded under the reasonable administrative action provision in subsection 5A(1) of the SRC Act.
Under the two applications for review Mr Simon is seeking recrediting of his leave for the period 21 April to 25 August 2015, with a few days in addition during the preceding period.
The papers include a number of medical reports, some at least of which touch on the question of when Mr Simon’s condition first became apparent and when it first reached various levels of medical significance. How these reports are to be used depends on the way in which the parties choose to present their cases, assuming the matter were to proceed to a hearing before the tribunal. During the interlocutory hearing both parties adverted to some of the medical reports in support of their contentions, and I therefore need to consider whether those reports help me in deciding the issues before me at this stage of the process. The apparent outline of the applicant’s case is that Mr Simon’s condition was contributed to, to the requisite degree required by the SRC Act, by his night shift work, and was apparent before the particular events of late April 2015. The respondent’s case, based on Comcare’s 2015 denial of Mr Simon’s claim, is apparently that Mr Simon’s condition may have been contributed to by his employment, but the precipitating events occurred in late April 2015, involved denial of his preferred shift arrangements, and fall under the heading of reasonable administrative action taken in a reasonable manner; his condition is therefore excluded under subsection 5A(1) of the SRC Act. The medical reports are clearly likely to be important for the outcome of the substantive matter, if the parties proceed along those or similar lines, but for present interlocutory purposes I have found them to be of limited relevance. Their potential relevance is in the context of the jurisdictional arguments raised by Mr Woulfe, and with regard to Mr Simon’s prospects of success; but in the event I have not needed to pay them anything beyond cursory attention.
THE ARGUMENTS OF THE PARTIES
Mr Anforth submitted that:
·the earlier application should be reinstated under subsection 42A(10) of the AAT Act because the application had been misunderstood by Comcare and the advice to withdraw, in 2015, was clearly in error; and
·in the alternative, the new application should be entertained, as the matters covered by it have never been agitated before the tribunal.
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.
CONSIDERATION
Should 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.
Mr Simon contends that his matter was dismissed in error. According to his submissions the error lay with Comcare having misunderstood the case; this led to a rejection of his claim and subsequently the affirmation of the rejection in Comcare’s reconsideration determination. The applicant’s submission contemplates, however, a further error, namely an error by Mr Simon’s then solicitors in advising him to withdraw. Mr Simon asserts that his solicitors shared Comcare’s error in misunderstanding the true nature of his case and therefore were led into compounding that error.
Comcare contends that, although the “error” attending the dismissal does not need to be an administrative error, it cannot be an error that arises from a deliberate and intentional act, taken on informed legal advice, as occurred here. Mr Simon’s then solicitors gave him advice, on which he acted; their action is not, in Comcare’s submission, an error, or at least it is not an error of the kind that the subsection is established to deal with. Comcare submits that once it is clear that reinstatement cannot occur under subsection 42A(10), the tribunal has exhausted the possibilities under section 42A and is functus officio. There is no further action available in respect of the earlier application.
Mr Woulfe took me to Comcare v Wuth (2018) 159 ALD 1; [2018] FCAFC 13 and Rodriguez v Telstra Corporation Ltd (2002) 66 ALD 579; [2002] FCA 30, both of which point to the importance of the tribunal making use of expert opinion from doctors rather than attempting to arrive at its own clinical judgment. The point, in the present context, is to assert that it is not open to me, except with the support of the available medical reports, to arrive at the opinion Mr Anforth advances, that Comcare made “a fundamental error” in the way it dealt with Mr Simon’s claim. In the event, I have found my way to the conclusion that Mr Woulfe advances, but by a different path.
There is a line of authority relating to the operation of subsection 42A(10), and a number of cases were cited by one or both sides. These cases include Goldie v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 367 (2002) 121 FCR 383 (Goldie); Pavlovic and Telstra Corporation [1994] AATA 187 (Pavlovic); Novosel and Comcare [2011] AATA 182 (2011) 121 ALD 172 (Novosel); White and Secretary, Department of Families, Community Services and Indigenous Affairs [2007] AATA 1712 (2007) 97 ALD 204 (White); and Walls and Comcare [2015] AATA 697 (Walls).
Goldie is authority for the “error” in subsection 42A(10) extending beyond administrative error, which was a limitation arising from an earlier Full Federal Court judgment in Brehoi v Minister for Immigration and Multicultural Affairs (1999) 58 ALD 385. In Goldie Wilcox and Downes JJ offered an example of the kind of error they saw as enlivening the tribunal’s discretion under subsection 42A(10) (at 388 [29]):
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".
In the same case Carr J (who dissented in the ultimate outcome but agreed with the majority on the understanding of subsection 42A(10)) noted that subsection 15AB(3) of the Acts Interpretation Act 1901 refers to the desirability of people being able to rely on the usual meanings of words used in statutes and to the need to avoid prolonging proceedings without compensating advantage. His Honour went on to state (at 398 [77]):
In my view, there is a significant degree of desirability of persons being able to rely on the ordinary meaning conveyed by the word "error". More importantly, s 42A(10) provides a mechanism of avoiding prolonging legal or other proceedings without compensating advantage. The mechanism is a relatively informal method of bringing a matter back to the Tribunal for reconsideration with a view to it being considered on the merits. It can be seen as a convenient, prompt and inexpensive means whereby errors which may have occurred in the exercise of the Tribunal's default jurisdiction can be rectified. That is, any sort of error in dismissing an application summarily, whether the error be administrative error or any other error.
In White Deputy President (DP) Forgie noted (at [20]) that the formulation adopted by Wilcox and Downes JJ in Goldie implied that an error preceding the action of dismissal rather than being part of that action might enliven the discretion but stated that she did not need to explore that issue.
Pavlovic involved a course of events not dissimilar in some respects to the present matter; in that case the applicant’s solicitor lodged a notice of discontinuance with the tribunal and the matter was taken to have been dismissed (in accordance with subsection 42A(1B) of the AAT Act). The respondent in that matter, Telstra Corporation, sought to reinstate the review application in order to have the matter dismissed as frivolous and vexatious under section 42B of the AAT Act and obtain an order under that section to prevent the applicant from making subsequent applications. Senior Member (SM) Allen stated that the dismissal took effect by operation of law pursuant to subsection 42A(1B), following the “quite deliberate” letter from the solicitor and confirmation by him at a directions hearing. That deliberate and considered action meant that there was no error.
In Novosel the applicant withdrew his matter on the basis of his circumstances at the time, an unfavourable neutral evaluation and consequent advice from his solicitors. New solicitors whom he later engaged suggested that he seek reinstatement. SM Professor Creyke commented:
22 No administrative or other error was made by the Tribunal in dismissing Mr Novosel’s application, nor was this suggested. The decision was consented to by both parties and, on the facts before the Tribunal, was made consciously and freely by Mr Novosel.
…
24 … the reason for the withdrawal was a deliberate decision on the part of Mr Novosel, in light of his personal and financial circumstances, and following receipt of the evaluation and his solicitor’s advice, to discontinue his application. The decision was not based on any error by himself, or due to advice by solicitors or others.
A case similar in many respects to the present matter came before the tribunal in Walls. In that matter it was acknowledged by the applicant’s solicitors that they had omitted to inform him of some aspects of the way the law applied to him. DP Humphries concluded that that omission constituted error in the sense considered in Goldie, and distinguished the matter from Novosel on the basis that in the latter case the solicitors’ advice had been cautious rather than erroneous.
It is clear that the intent of subsection 42A(10), following the rather more prescriptive and constrained formulations in the earlier subsections, is to establish a broad discretion for the tribunal to manage the summary disposition process, with an opportunity to reinstate matters where that would serve the public purposes of the tribunal, as set out in section 2A of the AAT Act. Thus the discretion in subsection 42A(10) is enlivened when it “appears” to the tribunal that a matter has been dismissed in error; this is a noticeably lower bar than required in subsection 42B(1), for example, where the tribunal must be “satisfied” that an application meets criteria for dismissal. This is perhaps what Carr J intended when his Honour referred to “any other error” in the passage quoted above: the discretion is easily enlivened, but it then falls to the tribunal to determine whether or not the discretion should be exercised, in light of all the circumstances of the matter (applying criteria such as those outlined in White at [22]-[28]).
No matter how broad and easily enlivened the discretion, however, there must be an “error”. In the present instance, it is difficult to see how that could be the case. Mr Simon contends that Comcare misconstrued the claim. That is certainly the basis for an application for review, but it is the sort of contention that can only be demonstrated through the hearing process: the outcome would depend on the evidence brought, the submissions made, and the way in which the law applied to the facts ultimately found by the tribunal. Every application for review contains within it an assertion that the decision-maker has come to the wrong conclusion. But that assertion does not of itself demonstrate error on the part of the decision-maker; and even if the tribunal were to set aside the decision under review, it would not be usual to say that an applicant was “right” and a respondent “wrong” or “in error”. Nor would it be appropriate in an interlocutory context to arrive at a conclusion that an applicant’s case was so certain to prevail that an earlier and different opinion about the case must have been held erroneously.
Similarly, the earlier advice to Mr Simon to withdraw his application reflected a solicitor’s professional assessment. Mr Simon’s current solicitors disagree, but such matters are a difference of professional opinion, on exactly the sort of question on which well-informed minds might differ. And, as in Novosel, the decision to withdraw was made freely by the applicant based on the legal advice received; another solicitor might have disagreed with that advice, but that did not make the advice erroneous (I am reluctant to rely on Pavlovic as in that case it was the respondent that attempted to reinstate a matter after the applicant had voluntarily withdrawn it).
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.
Given that the extension of time is not pressed – the reinstatement argument having apparently supplanted it – and that a substantial period of time has elapsed with no further agitation of the matter, the application for an extension of time is denied.
Should the new application be accepted?
There are two reasons why the new application lodged by Mr Simon might be rejected: first, I might dismiss the application as an abuse of process, applying the principles of estoppel; and second, I might conclude that the tribunal does not have jurisdiction. If I were to accept the first argument, I would not need to consider the second.
Should the new application be dismissed for abuse of process?
There has been debate about whether this tribunal (and tribunals more generally) are subject to doctrines such as res judicata, cause of action estoppel and issue estoppel: see Quinn and Australian Postal Corporation (1992) 15 AAR 519 (Quinn); Matusko and Australian Postal Corporation [1995] AATA 14 (Matusko). It appears that the question is yet to be definitively determined (although it is perhaps the preferred position that estoppel does not apply to the tribunal, as an administrative decision maker: see Comcare v Grimes [1994] FCA 1054 (Wilcox J)), but it is a common position in the authorities that the powers given the tribunal by sections 33, 42A and 42B of the AAT Act provide the tribunal with very flexible means of controlling its own processes, and these powers can be used to address the concerns that doctrines such as res judicata and estoppel evolved to deal with in the courts.
In particular, it is clear that the tribunal has the power under section 42B of the AAT Act to dismiss a matter that has already been finally decided and to prevent its reagitation, and in general it should do so to prevent abuse of the tribunal’s processes. In appropriate cases, the tribunal can constrain the scope of its review to exclude matters already decided, for example under subsection 25(4A) of the AAT Act. A check in practice on the exercise of those powers, however, arises from the provision in some statutes, including the SRC Act, for continuing determination of a person’s entitlements. The SRC Act provides in section 62 for reconsideration of determinations, on the determining authority’s own motion or at the request of a claimant or another affected body. Thus a person who has a worsening compensable injury under the SRC Act, or an aggravation of an injury, or a new condition, or new evidence about an existing condition, can seek redetermination of their matter. That implies that the tribunal may be called on to review a matter already determined in the tribunal at an earlier time.
This requirement is recognised in Quinn and Matusko. In the latter case the tribunal reached the conclusion that while in general the tribunal should not allow the relitigation of issues already decided it might do so where:
·there is a new or different decision;
·there is a clear legislative intent;
·the reconsideration decision is not final;
·there has been a change in circumstances or new evidence; or
·justice to the parties requires a departure from the general rule.
The principles of estoppel (if not the doctrine as applied by the courts) as outlined above will prevent reagitation of a matter plainly where the tribunal has decided the matter on the merits (assuming the exceptions in Matusko have no application), and they also affect consent decisions. In Novosel v Comcare [2017] FCA 722 Perry J commented (at [103]) that:
… a consent decision made under s 34D of the AAT Act is no less final than a decision made on the merits following a hearing. As the respondent contends, “[i]t would be contrary to the intention of the legislature in enacting a range of alternative dispute resolution mechanisms to conclude that a consent decision is any less final than a decision that has been dealt with on the merits.”
Similar considerations apply to consent decisions reached under section 42C of the AAT Act: see the comments of D P Hack in Grimsley and Telstra Corporation (2010) 51 AAR 401, in finding that the applicant should not be allowed to reopen a matter already resolved in a consent decision: “Prima facie, the consent decision in the matter ought to be regarded as having determined the matters in controversy.”
In the present matter it is apparent that the new application fits the exceptions outlined in Matusko, in that there is a new decision and Mr Simon has brought new evidence forward; but a much more powerful argument is that the tribunal has not considered and determined the merits of the matter. The authorities clearly distinguish between decisions that have settled the issues in a matter and dismissals on other grounds. In Mulheron and Australian Telecommunications Corporation [1991] AATA 673 the then President of the Tribunal, O’Connor J, noted the differences between decisions under those provisions where a dispute has been determined, such as sections 43 and 42C, and dismissals on essentially technical grounds, where the tribunal has not exercised all its powers with respect to the matters in dispute (see also Nicholson and Secretary, Department of Social Security [1990] AATA 212; although both cases deal with the period when the AAT Act made no explicit provision for withdrawal, I do not think that the conclusions would be different in light of later amendments). It is also relevant to consider the thrust of the High Court’s decision in Minister for Immigration and Multicultural Affairs v Bhardwaj (2002) 209 CLR 597 and the remarks of DP Jarvis in Lees and Repatriation Commission (2004) 82 ALD 150 (at 161). The thrust of all these authorities is that as an administrative decision maker tasked with making the correct or preferable decision the tribunal should be reluctant to resort to unduly formal rules excluding matters from review where an applicant has not had a proper airing of relevant issues.

It appears, therefore, that technical dismissals are not affected by estoppel principles in the same way as final decisions on the merits. They cannot be reagitated, in that the dismissal completes the tribunal’s engagement with the matter (unless they can be reinstated under provisions such as subsection 42A(10) of the AAT Act); but a fresh application can be made without raising estoppel principles. In this instance, the withdrawal of the earlier application under subsection 42A(1A) led to the automatic outcome under subsection 42A(1B) that the tribunal was taken to have dismissed the application: no consideration has ever been given by the tribunal to the merits of Mr Simon’s matter.
I note that Mr Simon is apparently not seeking to make a fresh application to review the same decision (and I have denied an extension of time for him to do so); rather he has lodged a new claim which has been the subject of an initial determination and a reconsideration determination; it is that last decision for which Mr Simon is now seeking review. It is doubtful that the estoppel principles discussed above apply in any case to an application for review of a different decision from that sought in the earlier application (this is an example of the first exception in Matusko). Against that argument is the point that the substance of the claims, and therefore of the review applications, is closely similar: the injury is the same even if the causation argued is different.
Taking all of the above into consideration, my conclusion is that Mr Simon seeks to agitate questions which have not previously been considered substantively by the tribunal; the dismissal of the earlier application does not raise estoppel principles in a way that prevents him from doing so. That earlier application was taken to have been dismissed by operation of law. The matter cannot be regarded as having been settled on its merits by the tribunal. I therefore deny Comcare’s application to dismiss the matter as an abuse of process.
Is the tribunal prevented from hearing the matter for want of jurisdiction?
Mr Woulfe submitted that Mr Simon’s claim is being recast by his present representation so as to avoid the exclusion for reasonable administrative action in section 5A of the SRC Act. He points out that the claim in 2015 was for an injury said to have occurred in April 2015, with symptoms first reported on 22 April 2015 and medical treatment first sought on 27 April 2015. The new claim also identified April 2015 as the time of onset, giving 22 April 2015 as the date of both the onset of symptoms and first occasion when medical treatment was sought. The difference is that the new claim identifies not the refusal of the change to shift arrangements as the source of the psychological condition, but rather insomnia from working night shifts. Mr Anforth relies on VYRP and Comcare [2018] AATA 3202 in support of the contention that jurisdictional arguments do not exclude the evidence he wishes to adduce. Mr Woulfe points to references in the papers to the alleged onset of Mr Simon’s condition in late 2014 in support of his assertion that the application is being recast with an earlier date of injury implied.
The tribunal’s jurisdiction in any matter derives from the scope of the documents and decisions leading up to the review: the claim form, documents associated with it, such as medical certificates and statements by the claimant, the initial decision, the request for reconsideration, the reconsideration decision itself and the application for review. This is clearly set out in a line of cases. New claims entirely outside the scope of the reconsideration determination, introduced at the level of the tribunal’s review, will normally lie outside jurisdiction: Lees v Comcare [1999] FCA 753. But sometimes matters fall within an initial claim on one reading and outside it on another. In Abrahams and Comcare [2006] FCA 1829 (Abrahams), Madgwick J, asserting that it was reasonable to allow a claim to be flexibly interpreted, enunciated the following principles (at [18]):
1.    In construing a document purporting to be a notice of injury under the Act, a broad, generous and practical interpretation should be made, consistent with both the beneficial purposes of the Act and the likelihood that laypeople of differing levels of education, differing levels of medical advice and differing levels of legal advice (indeed in most cases they would not have any) will be giving the notice.
2.    In deciding what injury it is, as to which a claimant has given notice, the purposes of giving notice must be borne in mind. These are to enable Comcare, with the aid of the relevant employing agency, to determine whether the claim should be met.
3.    The powers of an original decision-maker would extend to regarding informal notice as having been given in amplification of a notice formally given.
4.    Those powers would further extend to enabling a consideration of a claim better explaining, or better justifying, a claim in respect of an injury in respect of which notice had been fairly given.
5.    There is not always a bright dividing line available to assist in the decision whether powers of the kinds mentioned are being exercised in aid of a better understanding of a claim made in respect of an injury of which notice has been given, or whether the changed notice is sufficiently fundamental as to indicate that a different injury is being asserted, which will require a different decision from a decision in respect of the originally claimed injury under consideration. In determining that matter, considerations of the purpose of giving notice of injury, and more generally of enabling the decision-maker to have a fair opportunity to investigate the claim properly, are paramount.
Other cases dealing with related issues include Comcare v Muir [2016] FCA 346 (Muir); Szabo v Comcare [2012] FCAFC 129 (Szabo); Durham and TNT Australia [2011] AATA 802 (Durham); Kennedy v Comcare [2014] FCA 82 (Kennedy); Australian Postal Corporation v Sellick [2008] FCA 236 (Sellick) and Comcare vBromham [2017] FCA 174. To these cases might be added VYRP and Comcare [2018] AATA 3202, to which I was taken by Mr Anforth.
Although in each case the scope of jurisdiction turns on the particular facts of the matter, some general rules can be discerned (treating the authority as Comcare in each case):
·a broad approach should be taken to determining the scope of the claim (and therefore, potentially, the tribunal’s jurisdiction on review) (Abrahams at [18]; Kennedy at [53]);
·it is up to the tribunal to determine the scope of its jurisdiction; it is not constrained by the way Comcare has chosen to construe the claim (Durham at [51]-[53]);
·the tribunal on review has the same powers as the reviewing decision-maker and the original decision maker (Abrahams at [16]);
·the claim must be construed as a whole, drawing not only on the claim itself but also on the notice of injury, medical certificate and other documentation submitted at the time (Durham at [60]);
·the scope of the claim aligns with the claimant’s condition as determined through later investigations, rather than being limited to the condition originally nominated on the claim form (Abrahams at [20]-[23]);
·the circumstances of the case, and the nature of the condition for which compensation is claimed, may necessitate that the period in which causation is explored is well beyond the dates mentioned in the claim form (Smith v Comcare [2013] FCAFC 65 at [38] (Buchanan J, with whom Greenwood J agreed)).
But the scope to adjust the tribunal’s jurisdiction to accord with the claim and the development of the condition covered by the claim is quite constrained. Most cases involve either temporal extension (to dates before or after the date of initial injury notified on the claim form) or to conditions different from those nominated on the form:
·where the applicant has consistently claimed and pursued a claim on a narrow basis, that may have the effect of limiting the scope of the claim and therefore the tribunal’s jurisdiction on review (Szabo at [35]-[40], Muir at [37]);
·the flexibility available to the tribunal in determining its jurisdiction does not extend to allowing a claimant to re-characterise a claim to avoid the effect of exclusionary and other provisions (such as the “reasonable administrative action” exclusion in section 5A of the Act) (Muir at [30]);
·any extension of the scope of a matter must logically flow from the facts, and adequate reasons must be given, for example to justify inclusion of a secondary condition, or the tribunal is at risk of exceeding its jurisdiction (Sellick at [70]-[72]).
Mr Woulfe took me to Comcare v Farrell (2016) 250 FCR 432; [2016] FCAFC 115, a case that points out that the parties do not decide the scope of a matter that comes before the tribunal; that role is reserved for the tribunal itself. I do not believe, however, that the case takes me to a different outcome than that outlined below. Mr Simon’s new claim has been submitted, rejected and reconsidered. The scope of the current matter is now largely established by the claim itself and the documents that accompanied it and followed it. The reconsideration determination (T21 in matter 2018/4785) considered both the earlier application, noting its withdrawal, and the new application. The delegate noted that the new application was, or appeared to be, for the same injury as the earlier application, although the causal factors were differently identified. The original decision was affirmed on the basis that Mr Simon was claiming for a condition that had previously been determined. In effect, the delegate determined that the applicant was prevented from agitating the claim because that avenue was now exhausted, i.e. the delegate adopted the estoppel argument advanced in the present matter by Mr Woulfe and rejected earlier (in respect of this tribunal’s consideration of the matter) in this decision.
The scope of the new application does not derive, however, from the scope of the previous application, but rather from the scope of the claim now made. Mr Simon is making a new claim, not refashioning an existing one: cases such as Muir and Szabo do not assist Comcare. Mr Simon is not prevented from arguing that night shifts were the source of his condition, as that is the basis on which he made his new claim. In the course of that argument, he is entitled to adduce evidence about his history of night shift work. He may not recast the claim now to change its parameters in order to evade the reasonable administrative action exclusion, but he is not precluded from adducing the evidence available to him to support the case he has outlined in his claim.
Questions of jurisdiction may arise at any stage of a matter, although it is usual for them to be considered in the context of the substantial hearing. Should further jurisdictional issues arise later, or the matters presently contended for by Comcare re-emerge in some form, it will be for the member hearing the matter to resolve them in the light of the available evidence and submissions made at the time.

62. I certify that the preceding 61 (sixty-one) paragraphs are a true copy of the reasons for the decision herein of Member Mark Hyman

63.

............................................................
Associate
Dated: 22 March 2019

Date of hearing:

Counsel for the Applicant:

29 January 2019

Mr Allan Anforth

Solicitors for the Applicant:

Counsel for the Respondent:

David Healey Solicitors

Mr Peter Woulfe

Solicitors for the Respondent:
Sparke Helmore Lawyers