Wuoti and Military Rehabilitation and Compensation Commission

[2008] AATA 184

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2008] AATA 184

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No 2007/3723

GENERAL ADMINISTRATIVE DIVISION		)
Re		PETER WUOTI

Applicant

And MILITARY REHABILITATION AND COMPENSATION COMMISSION

Respondent

DECISION

Tribunal Deputy President P E Hack SC

Date25 January 2008

PlaceBrisbane

Decision THE TRIBUNAL ORDERS that the application dated 8 August 2007 for reinstatement pursuant to s 42A(10) of the Administrative Appeals Tribunal Act 1975 be dismissed.

................Signed...............

Deputy President

CATCHWORDS

PRACTICE AND PROCEDURE – reinstatement application – application had been voluntarily withdrawn – jurisdiction only if application has been dismissed in error – error can be on the part of one of the parties – no operative error in the circumstances – prejudice that arises through the effluxion of time – application dismissed

Administrative Appeals Tribunal Act 1975 (Cth) – ss 42A(1B), 42A(10)

Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541

REASONS FOR DECISION

25 January 2008 Deputy President P E Hack SC    

1.This is an application by Mr Peter Wuoti to reinstate an application for review, dismissed as long ago as October 1994. The application is opposed by the respondent, the Military Rehabilitation and Compensation Commission.

2.The history of the matter so far as can be ascertained is this. The decision sought to be reviewed is a decision on reconsideration of Comcare made in November 1993 which affirmed an earlier decision that Mr Wuoti was not eligible for rehabilitation assistance and weekly payments under s 37(5) of the Safety Rehabilitation and Compensation Act 1988 (Cth). Mr Wuoti’s application to review that decision was filed in January 1994 and progressed through the ordinary course of the Tribunal’s procedures at that time until October 1994. At that time it appears to have been set down for hearing before Deputy President Forgie, Ms Brennan and Dr Morley.

3.The material indicates that on 6 October 1994 the Tribunal dismissed the proceedings on the basis that on 5 October 1994 Mr Wuoti had lodged a notice stating that he did not wish to proceed with the application, and that he consented to it being dismissed pursuant to s 42A(1B) of the Administrative Appeals Tribunal Act 1975 (Cth) (the AAT Act). In those circumstances the application was taken to have been dismissed without proceeding to review the decision.

4.Late last year Mr Wuoti made the application to reinstate those proceedings.

5.The jurisdiction to reinstate is conferred by s 42A(10) of the AAT Act, which is in these terms:

“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.”

6.The jurisdiction thus can only be exercised if the Tribunal is satisfied that an application has been dismissed in error. The jurisprudence regarding that phrase demonstrates that what must be shown is that the order made by the Tribunal was brought about by an error, not necessarily that of the Tribunal. It is sufficient if it is an error on the part of one of the parties.

7.Mr Wuoti says that the error that was operative here was that at the time he was under considerable stress as a consequence of the medical conditions that then befell him. I accept that that was so but I am unable to conclude that that constituted an error as the expression is used in the AAT Act. A decision brought about by circumstances may be regretted subsequently but that does not constitute it as an operative error in the circumstances.

8.Moreover, and were it necessary for me to exercise the discretion, had the jurisdiction properly been attracted the present is not a case where I would have been minded to exercise the discretion. Without descending in any particular detail to the merits it does rather look as if there is little utility in the present proceedings. I have been told by Mr Crethary, the solicitor for the respondent, from the bar table that Mr Wuoti has an accepted dermatitis condition for which claim he is entitled to reactivate, and that his psychiatric ailments are the subject of a favourable determination.

9.There seems little utility in the circumstances in determining, on a merits review, questions as to Mr Wuoti’s entitlement to rehabilitation going back to 1993.

10.Moreover, the vintage of the matter is such that there is likely to be the type of prejudice spoken of by McHugh J in Brisbane South Regional Health Authority v Taylor[1], the type of prejudice that arises through the effluxion of time.

[1] (1996) 186 CLR 541 at 546

11.In the circumstances I will dismiss the application.

I certify that the 11 preceding paragraphs are a true copy of the reasons for the decision herein of Deputy President P E Hack SC

Signed:         .....................Signed..............................................
  Jacqueline Woods, Associate

Date of Hearing  25 January 2008
Date of Decision  25 January 2008 
Applicant  Self-represented
Solicitors for the Respondent    Dibbs Abbott Stillman