Walls and Comcare

[2015] AATA 697

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 797

White 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

1. 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

2. 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.

3. 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.

4. 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.

5. 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…