Simon and Australian Capital Territory (Compensation)

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 Mr Simon sought to reinstate an earlier application for review that he had withdrawn, or alternatively, to lodge a new application for review. The core dispute revolved around whether the withdrawn application could be revived or if a new application was permissible and appropriate.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 Firstly, whether the earlier withdrawn application could be reinstated, either under provisions allowing reinstatement within 28 days in special circumstances, or where a matter was dismissed in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The Tribunal reasoned that the earlier application was not dismissed in error but was deliberately withdrawn based on legal advice.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.