Soraya Ayoub and Comcare
[2013] AATA 397
[2013] AATA 397
Division General Administrative Division File Numbers
2012/5364
Re
Soraya Ayoub
APPLICANT
And
Comcare
RESPONDENT
DECISION
Tribunal Deputy President RP Handley
Date 13 June 2013 Place Sydney Ms Ayoub’s application to the Tribunal lodged on 27 November 2012 is reinstated.
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Deputy President RP Handley
CATCHWORDS
POLICY AND PROCEDURE - application for reinstatement of application – application withdrawn by solicitor – no written authority to withdraw – whether there was a misunderstanding between applicant and solicitor about withdrawing application – whether application dismissed in error – whether appropriate to reinstate application in circumstances of particular case - application reinstated
LEGISLATION
Administrative Appeals Tribunal Act 1975 s 42A
Safety Rehabilitation and Compensation Act 1988 ss 5A, 14
CASES
Briginshaw v Briginshaw (1938) 60 CLR 336
Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541
Goldie v Minister for Immigration and Multicultural and Indigenous Affairs (2002) 121 FCR 383
Grass and Minister for Immigration and Citizenship [2011] AATA 495 (2011) 126 ALD 580
Jackamarra v Krackouer (1998) 195 CLR 516RE White and Secretary, Department of Families, Community Services and Indigenous Affairs (2007) 97 ALD 204
REASONS FOR DECISION
Deputy President RP Handley
Date 13 June 2013
Ms Ayoub applied to the Tribunal for a review of a decision of Comcare (the Respondent) dated 7 September 2012 affirming a determination which denied liability to pay compensation to Ms Ayoub under s 14 of the Safety Rehabilitation and Compensation Act 1988 (the SRC Act).
On 4 April 2013, the Tribunal received a notice of withdrawal of the application from Ms Ayoub’s solicitors signed on that day. Acting on this notice of withdrawal, by letter of the same date, the Tribunal notified the parties that the application had been dismissed. The notification sent to Ms Ayoub was sent care of her solicitors. Ms Ayoub provided the Tribunal with a copy of a letter from her solicitor dated 11 April 2013 in which her solicitor, referring to their telephone conversation on 4 April 2013, stated: “We further confirm your instructions to withdraw the first claim for injury which fell within the exclusionary provisions as discussed.”
By email sent on 22 April 2013, Ms Ayoub requested that her application be re-instated, stating:
My case was withdrawn against my wishes by a solicitor that was previously acting on my behalf. This solicitor said that my case wasn’t worth his time or money as I have had my second claim with Comcare accepted (which was an aggravation of the claim that was withdrawn). I wish to please have your consideration in this matter as I am in the process of finding new legal representation and will represent myself if necessary. I am severely financially disadvantaged by the rejected compensation claim with Comcare, and as a single mother of two children I wish to have my case re-instated so that I have a chance to appeal their decision.
Comcare opposed Mr Ayoub’s request to re-instate her application. The parties attended a Directions Hearing at the Tribunal on 4 June 2013 to discuss the matter. After hearing evidence from Ms Ayoub, at the Respondent’s request, the Tribunal adjourned the Hearing until 7 June 2013 to enable the Respondent to obtain further evidence.
THE RELEVANT LAW
Section 42A of the Administrative Appeals Tribunal Act 1975 (the AAT Act) provides relevantly:
…
(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 so given, the Tribunal is taken to have dismissed the application without proceeding to review the decision.
…
(6) If, under this Act, the Tribunal dismisses an application or an application is dismissed on its behalf, the proceeding to which the application relates, unless it is reinstated under subsection (9) or (10), is taken to be concluded.
…
(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.
Thus, pursuant to s 42A(10), the Tribunal has a discretion to reinstate an application if the application was dismissed in error. It follows that the Tribunal must first be satisfied that the application was dismissed in error and, if it is so satisfied, secondly, consider whether reinstatement is appropriate in the circumstances of the particular case.
EVIDENCE
Ms Ayoub
Ms Ayoub denied having authorised the solicitor who was previously acting for her, Jonathan Pitt of Maurice Blackburn Lawyers, to withdraw her application. She said she never signed a written authorisation to this effect. She described a telephone conversation with Mr Pitt, which (according to Mr Pitt) took place on 4 April 2013, during the course of which she states Mr Pitt informed her that it was not worth pursuing her application, as a later application for compensation had been accepted by Comcare. Ms Ayoub said that contrary to Mr Pitt’s claim, she never wanted her application to be withdrawn: she wanted to continue pursuing her claim for compensation.
Ms Ayoub said that Maurice Blackburn Lawyers agreed to represent her on a ‘no win, no fee’ basis. She denied that it had been initially explained to her that representation would be on a full fee basis if she acted against Maurice Blackburn’s advice. She said that in a telephone conversation with Mr Pitt on 31 January 2013, he described continuing with her application as ‘like flogging a dead horse’. She said she had more evidence to produce to support her case but Mr Pitt would not consider this evidence: he was convinced the application did not have good prospects of success. Ultimately, he agreed to postpone making a decision until the second application with Comcare had been decided. Ms Ayoub denied having told Mr Pitt that she did not want to run the case herself or that she could not afford to pay him.
Ms Ayoub said she received Mr Pitt’s letter dated 11 April 2013 (a Thursday) the following week, possibly not until Thursday 18 April 2013. She was very upset to learn her application had been withdrawn against her wishes. She thinks that when she went to work the next day, she telephoned the Tribunal – probably, therefore, on Friday 19 April 2013 – to ask how to go about having her application reinstated. The following Monday (22 April 2103), she emailed the Tribunal asking that her application be reinstated and explaining her reasons.
Mr Pitt
At the Directions Hearing on 4 June 2013, Comcare’s solicitor, Mr Lehmann, sought an adjournment in order to obtain further evidence from Ms Ayoub’s former solicitor, Mr Pitt, about his instructions and Ms Ayoub agreed to waive any legal professional privilege attaching to her communications with Mr Pitt relating to the withdrawal of her application to enable Mr Lehmann to do so. Mr Lehmann subsequently filed an email response from Mr Pitt, dated 6 June 2013, in which he said that he had received instructions to withdraw her application in the telephone call with Ms Ayoub on 4 April 2013.
Mr Pitt also gave oral evidence by telephone at the Hearing. He agreed that Ms Ayoub’s case had been taken on a ‘no win, no fee’ basis. Mr Pitt said he inherited the case from another solicitor with his firm but denied holding a different opinion of Ms Ayoub’s case from that of his predecessor. He said he had many conversations with Ms Ayoub about the relevant facts, and explained to her that the prospects of her succeeding were very limited, albeit not nil, because of the ‘reasonable administrative action’ exclusion in the definition of ‘injury’ in s 5A of the SRC Act. In their telephone conversation on 4 April 2013, Mr Pitt said Ms Ayoub indicated that she understood his advice but instructed him to proceed with her application. He told her that pursuant to the original fee agreement, he could not continue to act on a ‘no win, no fee’ basis because she would be instructing him to act against his advice. She therefore instructed him to discontinue her application. He refuted the suggestion that he could have misunderstood Ms Ayoub’s instructions which he said were clear. He also refuted the suggestion that he discontinued her application because of his firm’s financial interests. He disputed Ms Ayoub’s contention that she told him she had further evidence to refute the claimed reasonableness of her employer’s actions.
Mr Pitt provided copies of his file notes of telephone conversations with Ms Ayoub on 31 January 2013, 19 March 2013 and 4 April 2013, which he said were taken contemporaneously. These file notes support Mr Pitt’s evidence: that he advised Ms Ayoub (on 31 January 2013 and 19 March 2013) that her first claim might come within the s 5A exclusionary provisions, that (on 31 January 2013) she stated that she did not want to run the claim herself and could not afford to do so, and that (on 4 April 2013) she was “happy to discontinue 1st claim as previously discussed” and he said he would email the AAT today to discontinue the claim.
SUBMISSIONS
At the resumed Directions Hearing on 7 June 2013, Comcare was represented by Counsel, Peter Woulfe. Mr Woulfe submitted that the claim that a solicitor has not acted in accordance with his instructions is a grave allegation and the Tribunal should take this into account in making any findings: Briginshaw v Briginshaw (1938) 60 CLR 336, at 361-362. Comcare submits that there was no ‘error’ in this case and Mr Pitt’s version of events, which is corroborated by his contemporaneous file notes, should be preferred. Mr Woulfe likened this matter to that of Grass and Minister for Immigration and Citizenship [2011] AATA 495 (at [16]), where the applicant’s solicitor withdrew her application in accordance with the applicant’s instructions. It should, however, be noted that there was nothing in that case to suggest that the applicant’s solicitor had not acted in accordance with his instructions nor was there anything to indicate the applicant’s decision to withdraw was made under a misapprehension about its implications.
Mr Woulfe said that if the Tribunal is satisfied that the application was dismissed in error, in exercising its discretion, it should have regard to the presumption of finality – Comcare has an interest in knowing matters have reached their final conclusion: Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541, at 552.
Ms Ayoub, who was assisted by her brother, Mr Joab, reiterated that she did not give permission to Mr Pitt to withdraw her application at any stage and referred to Mr Pitt’s interest in dropping her case. Mr Joab contended that this gave rise to a misunderstanding by Mr Pitt. With respect to the question raised by Mr Woulfe as to why on receiving confirmation that her application had been withdrawn she did not immediately telephone Mr Pitt and tell him he had made a mistake, Mr Joab pointed out that Ms Ayoub is still suffering from anxiety and depression and it is not everyone’s reaction to immediately confront one’s solicitor over a mistake.
DISCUSSION
As stated above, there are two relevant issues: first, was Ms Ayoub’s application dismissed in error and, second, if so, should the Tribunal exercise its discretion to reinstate her application.
In Goldie v Minister for Immigration and Multicultural and Indigenous Affairs (2002) 121 FCR 383 (Goldie), the Full Federal Court discussed the application of s 42A(10) of the AAT Act, noting, at 388 [27], that “The subsection does not impose any qualification or limitation on the word ‘error’”, and stating [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 Re White and Secretary, Department of Families, Community Services and Indigenous Affairs (2007) 97 ALD 204, Deputy President Forgie made reference to the considerations that should be taken into account by the Tribunal in deciding whether to exercise its discretion. These include fairness to the parties, including whether the respondent is likely to be prejudiced by reinstatement, and the merits of the application if reinstated, meaning in this context, whether the applicant has or can have an arguable case. However, with regard to the merits of an application, the courts have made clear in similar situations that this does not require elaborate argument. Nevertheless, an obviously untenable or manifestly groundless application would not succeed. (See the discussion in: Jackamarra v Krakouer (1998) 195 CLR 516 at 527 [31]-[32]: per Brennan CJ and McHugh J.)
I have carefully assessed both Ms Ayoub’s and Mr Pitt’s evidence. In relation to the first, whether there was an ‘error’, on the one hand, Ms Ayoub maintains that she never instructed Mr Pitt to withdraw her application. On the other hand, Mr Pitt maintains that he had verbal instructions from Ms Ayoub to do so.
I am satisfied from Mr Pitt’s oral evidence that he formed the view that his instructions were to withdraw Ms Ayoub’s application. It was following the last of his telephone conversations with Ms Ayoub, on 4 April 2013, that he signed a withdrawal form and sent this as an attachment under cover of an email, to the Tribunal.
The next communication between Mr Pitt and Ms Ayoub was his letter to her dated 11 April 2013 confirming her instructions to withdraw her application. In my view, admittedly with the benefit of hindsight, it would have been wise and, in accordance with my understanding of best professional practice, for Mr Pitt to have obtained written confirmation of what he understood to be Ms Ayoub’s instructions to withdraw. This would have avoided any misunderstanding of the kind that I find happened in this case. Moreover, even had he not done so, best practice suggests that following what he perceived to be Ms Ayoub’s verbal instructions to withdraw in the telephone conversation on 4 April 2013, he should have as soon as practicable written to Ms Ayoub to confirm her instructions. As it was, he informed her of the withdrawal one week later, on Thursday 11 April 2013, and Ms Ayoub’s evidence is that she did not receive the letter until about Thursday 18 April 2013.
Ms Ayoub stated that on, probably, the day after receiving the letter, which upset her greatly, she telephoned the Tribunal to ask how she could seek to reinstate her application. This could have been on Friday 19 April 2013. On Monday 22 April, she sent an email to the Tribunal applying to reinstate her application.
Mr Woulfe questioned why Ms Ayoub did not immediately contact Mr Pitt, point out his mistake, and ask him to apply for reinstatement of her application. However, it should be remembered that Ms Ayoub was at this time and is still suffering from anxiety and depression. She is currently participating in a Return to Work program. In my view, the action she took, without delay, in contacting the Tribunal was reasonable in the circumstances. Certainly, she did not “rest on her laurels” in seeking reinstatement of her application.
The impression I formed of Ms Ayoub was of an intelligent person who is struggling to achieve what she perceives to be a just outcome in respect of a psychological injury. Ms Ayoub claims to have suffered this injury following an allegation being made that she had passed classified information, to which she was privy in the course of her employment, to another person who subsequently committed a criminal offence. Ms Ayoub said she has always denied the allegation and this has now been accepted by her employer. I found Ms Ayoub’s account of her communications with her solicitor and, in particular, of her telephone conversation with him on 4 April 2013 to be credible. She was unshaken on her evidence in cross-examination.
Thus, I am left with two different but credible accounts. It is trite to comment that there can often be misunderstandings in communications between individuals. However, the evidence available to me indicates that this is what happened here. In my view, there was a misunderstanding between Ms Ayoub and her solicitor and this led to her solicitor signing and filing with the Tribunal a notice of withdrawal. I find that as a result of the misunderstanding between Ms Ayoub and Mr Pitt, he mistakenly formed the view that she had instructed him to withdraw her application and subsequently acted upon this.
My reading of the Federal Court decision in Goldie leads me to conclude that such a misunderstanding can constitute an ‘error’ of the kind contemplated by section 42A(10) of the AAT Act.
Being so satisfied, I must then consider whether it is appropriate in the particular circumstances of this case to exercise the discretion to reinstate Ms Ayoub’s application. I note that Ms Ayoub sent an email to the Tribunal seeking reinstatement of her application on 22 April 2013. I am satisfied that she acted without delay in seeking reinstatement of her application within a short time of having received (on about 18 April 2013) confirmation of the withdrawal from her solicitor in his letter dated 11 April 2013. Notwithstanding Comcare’s interest in the finality of an outcome, any possible prejudice to Comcare in these circumstances is, in my view, minimal.
Ms Ayoub is not at this time legally represented. She has told me that she has further evidence which is relevant to the question of whether the exclusionary provisions of s 5A of the SRC Act apply. She states this evidence has not been considered by Mr Pitt. I note that Mr Pitt described her prospects of success as very limited albeit not nil. With further evidence, I am prepared to accept that she may have an arguable case.
In my view, accepting that an error was made as a result of a misunderstanding between her and her solicitor, it would be unfair in the circumstances not to reinstate her application. For the above reasons, I am satisfied that I should exercise the discretion in s 42A(10) of the AAT Act to reinstate Ms Ayoub’s application.
DECISION
Ms Ayoub’s application to the Tribunal lodged on 27 November 2012 is reinstated.
I certify that the preceding 30 (thirty) paragraphs are a true copy of the reasons for the decision herein of Deputy President RP Handley .............................[SGD]............................
Associate
Dated 13 June 2013
Date(s) of hearing 4 and 7 June 2013 Date final submissions received 7 June 2013 Applicant In person Counsel for the Respondent P Woulfe Advocate for the Respondent P Lehmann, Comcare
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