White and Repatriation Commission

[2003] AATA 1323

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2003] AATA 1323

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No Q2001/935

VETERANS' APPEALS DIVISION		)
Re		ROBERT WHITE

Applicant

And REPATRIATION COMMISSION

Respondent

DECISION

Tribunal Mr B J McCabe, Senior Member

Date22 December 2003

PlaceBrisbane

Decision The Tribunal directs that the application be reinstated pursuant to section 42A(9) of the Administrative Appeals Tribunal Act 1975. 

(Sgd) Senior Member

CATCHWORDS

PRACTICE AND PROCEDURE – application for reinstatement – application withdrawn – psychiatric condition impacted on ability to decide whether application should be withdrawn – other stressors impacting on applicant’s ability to make decisions – factors to be considered – reasonable excuse – merits of case – lack of prejudice - application reinstated

Administrative Appeals Tribunal Act 1975, s 42A

Goldie v Minister for Immigration and Multicultural Affairs [2002] FCAFC 367
Re Manoli and Secretary, Department of Social Security (1994) 35 ALD 133

REASONS FOR DECISION

22 December 2003 Mr B J McCabe, Senior Member

1.      Robert White has applied for an order reinstating his application for review of a decision of the Repatriation Commission. His former solicitors had discontinued the proceedings, apparently at his instruction, on or about 20 October 2003. He has new solicitors now.  He says the decision to withdraw was a mistake. The Repatriation Commission says the Tribunal should refuse the application for reinstatement.

2. Mr Clutterbuck for the applicant said the application for reinstatement was made under s 42A(9) of the Administrative Appeals Tribunal Act 1975.. He did not rely on the power to reinstate under s 42A(10). That power is available where an application is dismissed in error. The error in question might be an error on the part of the Tribunal or the parties, and would include a situation in which the solicitor for the applicant misunderstands his or her instructions and files a notice in error: see Goldie v Minister for Immigration and Multicultural Affairs [2002] FCAFC 367. It is unclear whether the power would be available where the applicant’s solicitors have given bad legal advice. In any event, the applicant is this case does not rely on s 42A(10).

3. That leaves s 42A(9). The subsection says I may reinstate an application if I consider it appropriate to do so. The discretion is therefore very wide. What factors should guide the exercise of that discretion?

4.      In Re Manoli and Secretary, Department of Social Security (1994) 35 ALD 133, Senior Member Hallowes said the Tribunal should be guided by the same factors that would guide the exercise of the discretion under s 29(7) of the Act, which creates a power to give extensions of time.

5.      After reviewing the authorities relating to s 29(7) applications, it seems the following matters are relevant:

§There is a reasonable excuse for the delay. The applicant says he was under considerable stress at the time because of his family situation and health problems. Medical reports were filed in support of his claim. His psychiatrist said the applicant had changed his medication shortly before the decision was made, and was almost certainly affected by that. The applicant says, in effect, he was not thinking straight. I am satisfied this is not simply a case where the applicant changed his mind, or got different advice.

§The case appears to have merit. Mr Clutterbuck outlined the substance of the applicant’s case in his oral submissions, and I was provided with a number of statements prepared by the applicant.  He claims to suffer from post traumatic stress disorder and alcohol abuse as a result of his experiences while on operational service.  It will of course be necessary to test the various assertions of fact. Mr McAninly, for the respondent, indicated there were naval records that were inconsistent with the applicant’s claims, but I think those are matters that can only be determined definitively at a hearing.  I am satisfied he has an arguable case.

§There is no prejudice apparent to the Commonwealth.

6.      I think it is appropriate in all the circumstances to grant the application for reinstatement.

I certify that the 6 preceding paragraphs are a true copy of the reasons for the decision herein of Mr B J McCabe, Senior Member

Signed:         .......................................................................................
  Associate

Date of Hearing  22 December 2003
Date of Decision  22 December 2003

Counsel for the Applicant         Mr Clutterbuck
Solicitor for the Applicant          Streeting Haney
For the Respondent                  Mr McAninly, Departmental Advocate