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.

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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PRACTICE AND PROCEDURE – reinstatement – application for review withdrawn – application for reinstatement – whether application could be reinstated – whether application dismissed in error – application to reinstate refused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

1. 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.

2. 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.

3. 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. 

4. 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for review may at any time notify the Tribunal in writing to the effect that the application is discontinued or withdrawn: s 42(1A).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

5. 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”.

6. 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.  At the time I withdrew the application due to my overwhelming personal circumstances of state of Injury/Health.

7. In support of his application, Mr Walton has made written and oral submissions.  He describes 2011, when he withdrew his application, as a turbulent time in his life.  In particular, he says he was suffering the effects of the injury for which he claimed compensation.  He says he had legal advice at the time that he should withdraw his application, but he was not advised about the effects of doing so; he intended to withdraw at that time only and to revisit his application once his health had improved.  Further, Mr Walton says, he was not afforded procedural fairness by Comcare in making its decision and he has now obtained new information that supports his claim.  He asks that consideration be given to his special circumstances.

8. Comcare opposes Mr Walton’s application.

   Relevant legislation

9. Section 42A of the AAT Act concerns the discontinuance, dismissal and reinstatement of applications.  Sub-sections 42A (8), (8A), (9) and (10) concern reinstatement.

10. Sub-sections 42A(8), (8A) and (9) concern reinstatement of an application that has been dismissed under s 42A(2) of the AAT Act for failure by the applicant to appear before the Tribunal.  In such cases, the applicant may apply within 28 days of notification of the dismissal for reinstatement of the application, and the Tribunal may reinstate the application if it considers it appropriate to do so.

11. Mr Walton’s application was not dismissed under s 42A(2). It follows that the power in

    
    

    s 42A(9) is not enlivened.

12. The only power by which the Tribunal can reinstate an application that has been dismissed under s 42A(1B) comes from s 42A(10) which provides:

    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.

13. As the language of s 42A(10) makes clear, the discretion to reinstate under that provision relies on the Tribunal first identifying an error in the dismissal of the application. 

14. The meaning of dismissed in error was considered in Goldie v Minister for Immigration and Multicultural and Indigenous Affairs (2002) 72 ALD 652. Prior to Goldie, there had been differing views as to whether error in s 42A(10) was limited to an administrative error on the part of the Tribunal.  In Goldie, Wilcox and Downes JJ concluded (at [27]) that the provision “does not impose any qualification or limitation on the word ‘error’”. It is to be given broad interpretation; any sort of error, whether administrative or not, may enliven the power in s 42A(10).

    Was Mr Walton’s application dismissed in error?

15. In Re Myers and Commissioner of Taxation [2004] AATA 1337, the applicant withdrew his application and subsequently sought reinstatement. The Tribunal found, in circumstances including the applicant’s mental ill-health, that he had misapprehended the effect of

    
    

    s 42A(1B) when he withdrew his application. It concluded that, together with an administrative error on the part of the Tribunal in treating his letter as a withdrawal, his misapprehension induced the dismissal of the application.

16. In Walls and Comcare [2015] AATA 697, the Tribunal accepted that the applicant withdrew his application on the basis of incorrect legal advice. It found relevant error for the purposes of s 42A(10) and reinstated the application.

17. In Wicke-Fitzgerald and Secretary, Department of Education, Employment and Workplace Relations [2008] AATA 811; 104 ALD 662, the Tribunal found no error in the dismissal of an application that had been withdrawn by the applicant. The applicant asserted that she understood that, by withdrawing her application she could “continue with the appeal” at a later time at [19]. The Tribunal found no evidence that the applicant was wrongly or badly advised about the effects of withdrawing her application. Rather, she decided to withdraw her application for reasons related to stress. There was no evidence to suggest that her mental capacity to make that decision was impaired. In all likelihood, the Tribunal said at [20], “she was simply unaware of the effect of withdrawing her application”. It said at [22]:

    Acting to withdraw an application in an ill-informed or precipitate manner, ignorant of the effect of the withdrawal, does not mean that the application was dismissed in error.  Ignorance may lead to error.  It does not follow, however that action taken in ignorance is action predicated on error

18. I accept that Mr Walton had legal advice to the effect that he should withdraw his application.  However, there is nothing to suggest that he was wrongly or badly advised about the effects of withdrawing.  His email to the Tribunal on 6 September 2011 could be read as suggesting some disappointment or reluctance on his part, but there is nothing to suggest that he did not understand what he was doing.  The Tribunal’s letter the following day could have left him in no doubt that his application had been “finalised”.

19. I accept that Mr Walton may have been in poor physical or psychological health when he withdrew his application but that is not to say that he did not understand what he was doing. 

20. 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

21. 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. 

I certify that the preceding 21 (twenty -one) paragraphs are a true copy of the reasons for the decision herein of Senior Member J F Toohey

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Associate

Dated 11 February 2016

Date of hearing	14 December 2015
Date final submissions received	27 January 2016
Advocate for the Applicant	Ms C O'Farrell
Solicitors for the Respondent	Australian Government Solicitor