Walton and Comcare (Compensation) - [2016] AATA 70

Walton and Comcare (Compensation) [2016] AATA 70 (11 February 2016)

Division

GENERAL DIVISION

File Number(s)

2011/2833

Re

Ian Walton

APPLICANT

And

Comcare

RESPONDENT

DECISION

Tribunal
Senior Member J F Toohey

Date 11 February 2016

Place Sydney
Mr Walton’s application for reinstatement is refused.
...............................[sgd].........................................
Senior Member J F Toohey
CATCHWORDS
PRACTICE AND PROCEDURE – reinstatement – application for review withdrawn – application for reinstatement – whether application could be reinstated – whether application dismissed in error – application to reinstate refused
LEGISLATION
Administrative Appeals Tribunal Act 1975, ss 42A
CASES
Goldie v Minister for Immigration and Multicultural and Indigenous Affairs (2002) 72 ALD 652
Re Myers and Commissioner of Taxation [2004] AATA 1337
Re Walls and Comcare [2015] AATA 697
Re Wicke-Fitzgerald and Secretary, Department of Education, Employment and Workplace Relations [2008] AATA 811; 104 ALD 662
REASONS FOR DECISION
Senior Member J F Toohey
11 February 2016
Background

On 19 July 2011, Mr Walton sought review by the Tribunal of a determination by Comcare to reject his claim for compensation under the Safety Rehabilitation and Compensation Act 1988 for a psychological injury sustained at work in September 2010.
On 6 September 2011, the Tribunal received an email from Mr Walton in which he stated:
I am writing to inform you that due to a number of changes in personal circumstances and my imminent separation from the Department of Defence … I am unable to continue with my application to the Administrative Appeals Tribunal.
Please find attached my notice of withdrawal Reference file No. 2011/2833.
On 7 September 2011, the Tribunal sent Mr Walton a letter confirming receipt of his “request” to withdraw his application and advising that, in accordance with s 42A(1B) of the Administrative Appeals Tribunal Act 1975 (AAT Act), his application had been finalised by way of dismissal on 6 September 2011.
The reference in the Tribunal’s letter to Mr Walton’s “request” for withdrawal suggests some form of approval by the Tribunal was required, but that is not so. A person who has made an application for review may at any time notify the Tribunal in writing to the effect that the application is discontinued or withdrawn: s 42(1A). Where such notice is given, the application is dismissed by operation of s 42(1B).
Application to reinstate
On 23 September 2015, Mr Walton wrote to Comcare requesting reconsideration of his claim on the basis that he had new evidence. Comcare replied to the effect that he would need to contact the Tribunal to discuss whether he could “reactivate his application”.
On 21 October 2015, Mr Walton wrote to the Tribunal by email as follows:
I wish to reinstate and register my matter which I withdrew on 6/9/2011, due to the current advice provided to me by Comcare on the 15 October 2015. …
I have in October 2015 provided new evidence to Comcare in regards to this matter and would appreciate the opportunity to have it reopened. The matter was never reviewed by the Administrative Appeals Tribunal.…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Walton and Comcare (Compensation)

Details

AGLC: Walton and Comcare (Compensation) [2016] AATA 70
Case: [2016] AATA 70
Decision Date: 11 February 2016

CaseChat Overview and Summary

In Walton and Comcare, the Federal Circuit and Family Court of Australia was tasked with determining whether Mr Walton's application for reinstatement of his withdrawn claim could be granted. Mr Walton had originally withdrawn his application in 2011, citing personal reasons, and subsequently sought to reinstate it in 2015, claiming he had new information. The central issue before the Court was whether Mr Walton's application for reinstatement was permissible under the relevant provisions of the Safety, Rehabilitation and Compensation Act 1988, particularly section 42A(10), and whether there was any error in the dismissal of his application in 2011.

The Court examined the circumstances surrounding the withdrawal of the application and Mr Walton's subsequent request for reinstatement. It noted that Mr Walton had not sought to reinstate his application for over four years, only doing so after claiming he had new information regarding his claim. The Court held that the delay and the nature of the claimed new information did not support a finding that Mr Walton had misapprehended the effect of withdrawing his application. Additionally, the Court found no error in the dismissal of the application in 2011, as it was properly withdrawn. Given these findings, the Court concluded that the discretion under section 42A(10) was not activated, and there were no special circumstances warranting reinstatement.

Consequently, the Court refused Mr Walton's application for reinstatement. The Court held that the delay and the lack of any misunderstanding or error in the original dismissal meant that the application could not be reinstated. The Court's decision was based on a careful consideration of the statutory provisions and the circumstances of the case. The final orders of the Court were that Mr Walton's application for reinstatement was dismissed, and no special circumstances were found to justify the reinstatement of his withdrawn application.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

The fact that Mr Walton did not seek to reinstate his application for over four years, and only then because he had “new information” concerning his claim, supports that the conclusion that he did not misapprehend the effect of withdrawing his application in 2011 and nor was there error the dismissal.Conclusion For these reasons, I am not satisfied that Mr Walton’s application was dismissed in error. It follows that the discretion in s 42A(10) is not enlivened. There is, therefore, no room to consider his request on the ground of any special circumstances and his application for reinstatement must be refused.

Ratio Decidendi

Legal Principle Established

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Division	GENERAL DIVISION
File Number(s)	2011/2833
Re	Ian Walton
APPLICANT
And	Comcare
RESPONDENT

Tribunal	Senior Member J F Toohey
Date	11 February 2016
Place	Sydney