Walls and Comcare
[2015] AATA 697
•10 September 2015
Walls and Comcare (Compensation) [2015] AATA 697 (10 September 2015)
Division
GENERAL DIVISION
File Number(s)
2014/5255
Re
Scott Walls
APPLICANT
And
Comcare
RESPONDENT
INTERLOCUTORY DECISION
Tribunal Deputy President Gary Humphries
Date 10 September 2015 Place Canberra The application is reinstated pursuant to s 42A(10) of the Administrative Appeals Act 1975.
.............................[sgd].........................................
Deputy President Gary Humphries
Catchwords
PRACTICE AND PROCEDURE – application to reinstate dismissed application – whether “dismissed in error” – meaning of “error” in s 42A(10) – provision of incorrect legal advice – application to reinstate allowed.
Legislation
Administrative Appeals Act 1975 (Cth) s 42A
Cases
Emeco Australia (NSW) Pty Ltd and Commissioner for ACT Revenue (1993) 30 ALD 725
Goldie v Minister for Immigration and Multicultural and Indigenous Affairs (2002) 121 FCR 383
Grass and Minister for Immigration and Citizenship (2011) 126 ALD 580
Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344
Novosel and Comcare [2011] AATA 182
Schramm and Repatriation Commission [1998] AATA 797White and Secretary, Department of Families, Community Services and Indigenous Affairs (2007) 97 ALD 204
REASONS FOR DECISION
Deputy President Gary Humphries
10 September 2015
Application before the Tribunal
Mr Scott Walls has applied to the Tribunal for the following orders:
(a)under s 42A(10) of the Administrative Appeals Tribunal Act 1975 (the Act) that application 2014/5255 (the original application) be reinstated;
(b)in the alternative, that an order under s 29(7) of the Act that he be granted an extension of time in which to make an application to the Tribunal for review of the decision of Comcare dated 13 August 2014.
Background
The circumstances surrounding these applications can be briefly stated. Mr Walls, an Australian Federal Police officer, made an application to the Tribunal on 10 October 2014 for review of a decision by Comcare to deny liability for an adjustment reaction which he asserted arose from victimisation at his work (the original application). He engaged lawyers to assist with his application. His lawyers obtained written advice about his claim from two barristers.
In early November 2014 Mr Walls’ lawyers arranged an appointment to see Dr Diamond, a psychiatrist, to obtain an expert opinion about his condition. An appointment was not available with Dr Diamond until May 2015.
Mr Walls told the Tribunal that, on the basis of the advice he received from the barristers, he believed that he was obliged to choose between proceeding with the application in the Tribunal for review of Comcare’s decision and bringing a common law action against his employer. On the basis of that belief, he withdrew his original application in the Tribunal on 4 December 2014. By virtue of s 42A(1B), his withdrawal was deemed to be a dismissal of the application by the Tribunal.
Notwithstanding this withdrawal, Mr Walls’ employer directed him to attend an appointment with a psychiatrist, Dr Jetnikoff, in March 2015. In April 2015, after two requests, he received a copy of Dr Jetnikoff’s report. In May 2015 he attended his appointment with Dr Diamond, and his solicitors received a copy of Dr Diamond’s report on 9 June 2015.
On 17 June 2015 Mr Walls attended a conference with his solicitors and a third barrister, Mr Pappas. Mr Pappas advised him that he should reinstate his original application to the Tribunal, in order to preserve his entitlement under the Safety, Rehabilitation and Compensation Act 1988 for lost wages.
On 3 July 2015, some 7 months after withdrawal of his original application for review, he applied to the Tribunal for the orders set out in paragraph 1 above.
Relevant legislation
Section 42A of the Act provides:
Deemed dismissal–applicant discontinues or withdraws application
(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.
Reinstatement of application
(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 29 of the Act provides:
(7) The Tribunal may, upon application in writing by a person, extend the time for the making by that person of an application to the Tribunal for a review of a decision (including a decision made before the commencement of this section) if the Tribunal is satisfied that it is reasonable in all the circumstances to do so.
Issues
This application obliges me to consider the following issues:
(a)whether the application of 10 October 2014 was “dismissed in error”, such that a discretion to reinstate the application arises pursuant to s 42A(10) of the Act;
(b)if the discretion does arise, whether it should be exercised in Mr Wall’s favour;
(c)whether, in the event I do not reinstate the application under s 42A(10), I am able to consider the grant of an extension of time to lodge a fresh application under s 29(7);
(d)if I am so able, whether to grant an extension of time.
Was the original application “dismissed in error”?
Ms Johnston, a lawyer employed by Mr Wall’s solicitors, gave evidence of incorrect advice which the firm had given him in relation to his application to the Tribunal. In an affidavit she swore that:
I advised Mr Walls that if he was successful in a claim for negligence or breach of contract against the AFP his damage would include his economic loss, being lost wages and future loss of earning capacity. I did not know and did not advise Mr Walls that section 44 of the Comcare Act would prevent him from recovering his economic loss. Neither counsel retained at that point had explained that that was the situation.
The evidence was that this incorrect advice led to the withdrawal of the original application. Mr Pappas’s advice of June 2015 corrected that earlier advice, and precipitated the present applications.
I accept that the earlier advice provided to Mr Walls was erroneous, and that he acted upon it to his detriment. But did the withdrawal of his original application – constructively a dismissal under s 42A(1B) – pursuant to that erroneous advice constitute dismissal in error under s 42A(10)? In Goldie v MIMA (2002) 121 FCR 383, the Federal Court clarified the scope of s 42A(10) to make it clear that “error” does not refer merely to administrative error on the part of the Tribunal, but may include other error, for example error on the part of an applicant’s legal adviser. The majority there, Wilcox and Downes JJ, said (at [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”.
My attention has not been drawn to any decisions dealing with this subsection where the error in question was shown to originate in the advice provided by a legal adviser. In White and Secretary, Department of Families, Community Services and Indigenous Affairs (2007) 97 ALD 204, Deputy President Forgie considered whether supposedly incorrect advice offered to the applicant by a conference registrar, leading to the withdrawal of an application, might constitute “error” under s 42A(10). She found, as a determination of fact, that there was no incorrect advice by the conference registrar, but the implication of the decision appears to be that, had there been such incorrect advice leading to a withdrawal, it would constitute error under the subsection. If that is so, pursuant to Goldie, incorrect advice that induces a dismissal would be “error” whether it is proffered by a Tribunal official or by a privately retained lawyer.
The situation in White and Goldie is to be distinguished from one where withdrawal is brought about by other influences on the applicant, such as stress or ignorance: Wicke-Fitzgerald and Secretary, Department of Education, Employment and Workplace Relations (2008) 104 ALD 662. Similarly, in Novosel and Comcare [2011] AATA 182 Senior Member Creyke found that no error under s 42A(10) existed in that the applicant’s legal advisers had adopted a cautious approach (at [27]) to the applicant’s prospects of success but not given erroneous advice, leaving open the inference that, had they done so, the provisions of s 42A(10) might have been activated.
Counsel for Comcare in the present instance suggested that a distinction is to be drawn between a mistake as to instructions and tactical decisions taken in the course of a proceeding. To the extent that Comcare is here suggesting that a mistake by a legal adviser as to their instructions is different to a mistake by a legal adviser with respect to the true state of the law, I am unpersuaded that the available authorities make such a distinction. A mistake is a mistake and, when made by one’s professional advisers, will understandably lead to one making decisions founded in error.
The general principles motivating s 42A(10) were discussed by Carr J in Goldie. Although in the minority, his summary of the principles at work here holds good (at [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.
I am satisfied that the dismissal of the original application occurred in error, and that therefore a discretion arises under s 42A(10) to reinstate the application.
Should the discretion under s 42A(10) to reinstate the application be exercised?
The considerations which the Tribunal should undertake in relation to the exercise of this discretion under s 42A(10) are very similar to those to be addressed in granting an extension of time under s 29(7) for an application. Those considerations, in the context of s 42A(10), were outlined in White’s case:
(a) respect for the efficiency of the case management practices of the tribunal;
(b) consistency in the manner in which people in like positions are treated;
(c) the prejudice caused to the respondent by a reinstatement; and
(d) whether the applicant has an arguable case.The analogous principles in relation to the granting of an extension of time for a late application were outlined by Wilcox J in Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344 (at 348-349, citations omitted):
1. Although the section does not, in terms, place any onus of proof upon an applicant for extension an application has to be made. Special circumstances need not be shown but the court will not grant the application unless positively satisfied that it is proper so to do. The 'prescribed period' of twenty-eight days is not to be ignored … Indeed, it is the prima facie rule that proceedings commenced outside that period will not be entertained …
It is a pre-condition to the exercise of discretion in his favour that the applicant for extension show an 'acceptable explanation of the delay' and that it is 'fair and equitable in the circumstances' to extend time …
2. Action taken by the applicant, other than by making an application for review under the Act, is relevant to the consideration of the question whether an acceptable explanation for the delay has been furnished. A distinction is to be made between the case of a person who, by non-curial means, has continued to make the decision-maker aware that he contests the finality of the decision (who has not 'rested on his rights' …) and a case where the decision-maker was allowed to believe that the matter was finally concluded. … The reasons for this distinction are not only the 'need for finality in disputes' … but also the 'fading from memory' problem …
3. Any prejudice to the respondent including any prejudice in defending the proceedings occasioned by the delay is a material factor militating against the grant of an extension....
4. However, the mere absence of prejudice is not enough to justify the grant of an extension... In this context, public considerations often intrude.... A delay which may result, if the application is successful, in the unsettling of other people …or of established practices … is likely to prove fatal to the application.
5. The merits of the substantial application are properly to be taken into account in considering whether an extension of time should be granted...
6. Considerations of fairness as between the applicants and other persons otherwise in a like position are relevant to the manner of exercise of the court's discretion…
The interval between dismissal and reinstatement in the present instance is a relatively long one: seven months. This would place it at the upper end of extensions of time hitherto granted by the Tribunal. Without systematically addressing each of the criteria referred to above, I note the following with respect to Mr Walls’ application.
With respect to an acceptable explanation of the delay, Mr Walls of course relies upon the erroneous legal advice which actuated the withdrawal of the original application. Those seven months were spent prosecuting his claim for compensation, albeit down a different path. I note that his employer continued during that period to deal with the condition which was the basis for that claim, sending him for a psychiatric examination. Although these steps might be said not to have been connected with a formal claim for compensation, it equally could be said that his employer was aware he was not “resting on his rights”. So, for instance, his employer would have kept his work-related injury files very much open during this seven month period.
It would be incongruous if, having decided that his original application was dismissed in error, the Tribunal then chose to discount the contribution that same error made to the length of time between discontinuing and reviving his application.
Prejudice to the respondent is a serious consideration, one that cannot lightly be set aside where it is shown to exist. Comcare here submitted that there was prejudice in reviving a matter that it was led to conclude was finalised, as well as prejudice arising more generally. In Hunter Valley Developments Wilcox J said of these concerns (at 349-350):
It is in relation to the former category of cases, that is, those 'which affect only the immediate parties' that the approach adopted by Bray CJ in Lovatt v Le Gall (1975) 10 SASR 479 at 485 in respect of private litigation but adopted in this context in both Doyle at 287 and Duff at 485, is apposite namely:
'If the defendant has suffered no prejudice, as when he was well within the limitation period of the plaintiff's claim, or where the excess period of time is small, or where he cannot show that he has lost anything by reason of the delay, it may well be that the court will not find it difficult to come to the conclusion that it is fair and equitable in the circumstances to grant extension.'
By contrast, in cases involving public administration, especially day to day matters such as personnel management, the public interest may well dictate refusal of an extension even after only a short delay.
It could be said that a claim of prejudice to the respondent based on it having been led to believe that a matter was finalised can be made out no matter how short a period of extension might be. Although there are good public policy reasons why a government agency need not be called upon to demonstrate actual prejudice on each occasion that it seeks to resist a concluded matter being reopened, equally the absence of any actual prejudice needs to be weighed against the loss of an employee’s right to compensation.
The only actual prejudice to the respondent which it was put to the Tribunal would arise from the restoral of Mr Walls’ claim in the Tribunal was that the Commonwealth may now be subject to a common-law claim, or, as counsel for Comcare expressed it, is an option that keeps alive the common law proceeding. I note however that merely bringing an application for review in the Tribunal does not have the effect of sustaining a common law claim. Only a successful application for review could have that effect, and in that eventuality it must be said that fairness and equity stand firmly in favour of “unsettling” the Commonwealth.
Disadvantage to an applicant is a relevant factor. In Schramm and Repatriation Commission [1998] AATA 797 the Tribunal commented (at [26]):
Another matter which the Tribunal considers that it should weigh in the exercise of its discretion is the prejudice that may be caused to the applicant by non-reinstatement.
In Grass and Minister for Immigration and Citizenship (2011) 126 ALD 580 the Tribunal refused an application under s 42A(10), in part, because the applicant was capable of making a fresh application for citizenship at any time. In the present instance I note that Mr Walls’ application is, for him, the “last roll of the dice”.
The principles in Hunter Valley Developments require that I consider the merits of Mr Walls’ application for review. Guidance on the extent to which the Tribunal needs to be satisfied on this account was provided by the High Court in Jackamarra v Krakouer (1998) 195 CLR 516. There Brennan CJ and McHugh J said (at [9] – [10]):
One reason that an appellate court does not go into “much detail on the merits” in considering whether the time for an appeal should be extended is because ordinarily it only has “limited materials and argument”. Unless motions to extend time for appeals are to turn into full rehearsals for those appeals, appellate courts can only assess “the merits” in a fairly rough and ready way. In most cases, that assessment will be made from the statement of the applicant’s case rather than from the opposing arguments or any detailed examination of the proofs of the argument. The merits are merely one of the factors that must be considered in determining whether the discretion to extend time should be exercised … The court needs to remind itself also that the parties do not expect to argue the merits issue as elaborately as if they were arguing the appeal itself.
It is one thing to conclude that counsel’s statement of the appeal argument contains the ground for its rejection. It is another matter altogether to hold that, although the logic of the argument is impeccable, the appeal has no merits because the applicant has not taken the court to the detail of the evidence, the statutes or the case law.
President Curtis of the ACT AAT summarised the relevant test in Emeco Australia (NSW) Pty Ltd and Commissioner for ACT Revenue (1993) 30 ALD 725 (at [34]):
… I think that the proper test is to be put no higher than that the applicant has or can have an arguable case.
Counsel for Mr Walls assured the Tribunal that his application had a better than reasonable basis for success. This appears to be based on Mr Walls’ claim that his injury arose earlier than the administrative action which Comcare claims amounted to reasonable administrative action. This seems to me to be an arguable case. The report of Dr Diamond of 31 May 2015 seems to lend weight to that view.
I also take into account evidence that Mr Walls was in a stressed state during the period when the decision to discontinue was made, possibly inhibiting his judgment at that time. In all the circumstances, I think it fair and equitable that Mr Walls have the opportunity to make his case for review before the Tribunal.
Accordingly, I find that the original application of 10 October 2014 was “dismissed in error”, such that a discretion to reinstate the application pursuant to s 42A(10) of the Act arises. I order that the original application be reinstated. As such, it is unnecessary for me to determine the latter 2 issues referred to in paragraph 10 above.
I certify that the preceding 31 (thirty -one) paragraphs are a true copy of the reasons for the decision herein of Deputy President Gary Humphries ..........................[sgd]...................................
Associate
Dated 10 September 2015
Date(s) of hearing 26 August 2015 Counsel for the Applicant Jack Pappas Solicitors for the Applicant Griffin Legal Counsel for the Respondent Peter Woulfe
5
5
1