Young and Australian Postal Corporation - [2000] AATA 808

DIRECTION AND REASONS FOR DIRECTION [2000] AATA 808

ADMINISTRATIVE APPEALS TRIBUNAL      )
  )  No N2000/868
GENERAL ADMINISTRATIVE DIVISION          )                   and N1998/821
           Re      Rosemary YOUNG
  Applicant
           And    AUSTRALIAN POSTAL CORPORATION
  Respondent

DIRECTION

Tribunal Mrs M T Lewis, Senior Member

Date12 September 2000
PlaceSydney

Decision      1.        The Tribunal refuses to grant an extension of time for Rosemary Young to lodge an application for review, pursuant to s29 of the Administrative Appeals Tribunal Act 1975 ("the AAT Act") as amended by s65(4) of the Safety, Rehabilitation and Compensation Act 1988. The Tribunal therefore has no jurisdiction in respect of the application N2000/868. 2.      The Tribunal refuses the request of Rosemary Young to reinstate her application N1998/821, pursuant to s42A(10) of the AAT Act.
  ..............................................
  M T Lewis
  Senior Member
CATCHWORDS
PRACTICE AND PROCEDURE – Workers Compensation - Tribunal dismissed application for review by consent - Applicant subsequently lodged fresh application for review and applied for extension of time for lodging application - whether fair and equitable to grant extension of time - application to reinstate proceedings previously dismissed by consent

Administrative Appeals Tribunal Act 1975 ss 29(7), 37, 42A(10)
Safety, Rehabilitation and Compensation Act 1988
Motor Accidents Act 1998

Comcare v A'Hearn (1993) 45 FCR 441
Telstra v Razmovski (1994) 36 ALD 22
Re Petkovska and Telstra Corporation Ltd (1993) 31 ALD 767
Re Schramm and Repatriation Commission (1998) 28 AAR 164
Re Storrie and Repatriation Commission (1988) 16 ALD 31
Hunter Valley Developments Pty Ltd v Cohen, Minister for Home Affairs & Environment (1984) 3 FCR 344
Re Deighton v Telstra Corporation Limited AAT No. 10958 (23 May 1996)

REASONS FOR DIRECTION

12 September 2000 Mrs M T Lewis, Senior Member

This is an application for an extension of time lodged by Rosemary Young ("the Applicant") pursuant to s29(7) of the Administrative Appeals Tribunal Act 1975 ("the AAT Act") in respect of N2000/868. In the alternative, the Applicant seeks to reinstate proceedings N1998/821 pursuant to s42A(10) of the AAT Act.
The following documents were tendered on behalf of the Applicant:

Reports of Dr Y. A. E. Ghabrial, orthopaedic and spinal surgeon, dated 14 August 1998 and 4 May 1999 (exhibit A);
Sundry documents relating to the Applicant's bus accident (exhibit B);
Letters from the Applicant's solicitor to Dr Peter Mitchell dated 20 February 1998 and 13 May 1998 (exhibit C); and
Applicant's statutory declaration with annexures (exhibit D).

The following documents were tendered on behalf of the Respondent:

Documents lodged pursuant to s37 of the AAT Act in application N1998/821 (exhibit 1);
Report of Dr Neal L Thomson, orthopaedic surgeon, dated 28 September 1998 (exhibit 2);
Copy of Recognisance Order dated 11 December 1998, with Information and Summons dated 4 June 1998 (exhibit 3); and
Report of Dr T Savio, general practitioner, dated 2 December 1998 and certificate from Dr T Savio dated 4 October 1998 (exhibit 4);

background

The Applicant commenced work with Australia Post ("the Respondent") in 1991. She was employed for 15 hours per week until June 1996, after which time she was employed 10 hours per week. During that period her duties included vacuuming and floor polishing which required "repetitive twisting, bending and lifting". The Applicant was involved in a bus accident on about 10 December 1996. There is no contention that the bus accident was related to her work.
The Applicant first sought medical treatment for her back in January 1997 and X-rays were taken then. She ceased work with the Respondent on 28 January 1997. She then saw Dr Kirkham, an orthopaedic registrar, on 10 February 1997.
The Applicant has a severe spinal condition including stenosis and a prolapse of two levels of the lumbar spine that required surgery in March 1998. She alleges that her back condition is at least partly related to her work as a cleaner while working for the Respondent from 1991 until 28 January 1997.
On 25 February 1998 the Applicant lodged a claim for compensation with the Respondent. This claim was rejected on 23 March 1998. On 5 June 1998 a Reconsideration Officer affirmed the primary decision. On 1 July 1998 the Applicant lodged an application for review by this Tribunal (N1998/821). In March 1999 the Applicant's solicitor sought to have those proceedings discontinued.
In the following months the Applicant pursued action in the District Court in respect of her back condition under the Motor Accidents Act 1998, on the basis that she was involved in a bus accident on or around 10 December 1996. Those proceedings were discontinued on 24 May 2000.
On 6 June 2000 the Applicant applied for an extension of time to lodge another application with the Tribunal to review the reconsideration determination of the Respondent dated 5 June 1998.
the applicants evidence
In her statutory declaration (exhibit D) the Applicant stated –
…the reason for the delay in me bringing a claim under the Motor Accidents Act and the reason for me instructing Mr Evers to discontinue the previous application to the Administrative Appeals Tribunal and the delay in bringing a further application was the confusing and incorrect advice I was first given by Dr Kirkham at the Royal Newcastle Hospital in February 1997. It has always been my position that I sustained some form of back injury in the bus accident and I could not understand why my back got worse when I returned to work after the accident but again because of the advice I was given by Dr Kirkham I was not aware that I could bring a claim for work related injury.
In cross-examination the Applicant said "on the advice of the solicitor we changed our mind" about bringing a claim for worker's compensation. Further, she said her decision to discontinue the previous proceedings in the Tribunal, the decision to pursue a remedy in the District Court, and then the decision to come back to the Tribunal, were all based on the advice of her solicitor. In her statutory declaration the Applicant said she was advised that she would not succeed in bringing an action against the nominal defendant given the delay in having brought the claim under the Motor Accidents Act 1998. In cross-examination the Applicant said that her only reason for discontinuing the previous proceedings in this Tribunal, and then seeking to recommence those proceedings, was because of the advice of her solicitor.
The Applicant agreed that Dr Kirkham told her that he did not believe that her back problems were related to the incident in December and that the only incident that occurred in December 1996 was the bus accident. She noted, however, that she was still working at the time but she could not recall any particular incident at work during that month. The Applicant said that Dr Kirkham told her that her back condition was not related to her work or the bus accident. In cross-examination she said she accepted Dr Kirkham's advice that her back condition was not related to her work. However, she did not accept that her back condition was not related to the bus accident because when she "continued working after the bus accident my back started to play up".
The Applicant agreed that she saw Dr Kirkham on or about 10 February 1997. She agreed that by that stage she had resigned from her employment with the Respondent. She said she told Dr Kirkham that she continued to have back pain at work. The Tribunal notes, however, that she left her employment with the Respondent in January 1997 and she had not worked for the Respondent since December 1996.
The Applicant agreed that at the time she discontinued the proceedings before the Tribunal, Dr Kirkham's evidence was not the only medical evidence she had available. She also had reports from Dr Mitchell and Dr Ghabrial, and she was aware that both reports supported a relationship between her work and her back condition. It was put to the Applicant that the reason she did not rely on their opinions was because her solicitor advised that their reports would not be accepted because she did not tell those doctors about her bus accident. The Applicant's response was "I'm not quite sure what you are talking about …".
When the Applicant first reported in her claim (exhibit 1, T4) to the Respondent that she had sustained an injury to her lower back she did not mention the bus accident. She said this was because her back was "killing" her at work as well.
The Applicant said when she first sought treatment from Dr Lim she was concerned only about the fact that her back was aching and she had "pins and needles in it". She said that "after a while" she told Dr Lim she was a cleaner. She could not recall whether she had told him that she hurt her back at work.
The Applicant said that she told Dr Savio about the bus accident when she sought treatment from him, but he did not record it. She did not tell Dr Thompson, whom she saw at the request of the Respondent, about the bus accident, because she was sent to see him by the Respondent. She did not tell Dr Ghabrial about her bus accident because "he knew I was a cleaner".
The Applicant agreed that she had not disclosed the fact of the bus accident at any stage while the previous proceedings before the Tribunal were alive. She also agreed that she had previously been convicted of offences involving dishonesty in relation to social security payments.
submissions
Applicant
It was submitted for the Applicant that the opinion of Dr Kirkham, an orthopaedic registrar, should be disregarded. It was submitted that he misdiagnosed the Applicant's condition when she consulted him on 10 February 1997, finding that she did not have anything wrong with her back and he had not seen any X-rays.
It was submitted that although the Applicant cannot use Dr Kirkham's report as the reason why she discontinued the first proceedings in the Tribunal, it generated a degree of confusion about her rights in respect of her back condition.

During 1997 the Applicant also saw Dr Mitchell, who noted the severity of her complaint. The Applicant had an MRI in July 1997 and an operation in March 1998. The Reconsideration Decision of 5 June 1998 (T17) noted –
The only medical evidence provided by Ms Young are two certificates from general practitioner, Dr Mitchell, which state that she is suffering from spinal stenosis.
It was submitted that as Dr Mitchell was an orthopaedic surgeon there was an error on the face of the decision that referred to him as a general practitioner. The Reconsideration Officer noted the possibility that the Applicant's back condition was related to her employment, but he was not satisfied on the evidence that it was probable. On 1 July 1998 the Applicant lodged an application for review by the Tribunal (N1998/821).
On 8 March 1999 the Applicant discontinued those proceedings, and turned to the motor accident jurisdiction and by 20 March 1999 her solicitor had written to the nominal defendant in order to make a claim. Correspondence from Newcastle Buses in November 1998 indicates that there was no record of an incident or accident during the period in which the Applicant stated she was involved in an accident. The proceedings in the District Court were discontinued by consent on 24 May 2000. It was submitted that the primary reason why those proceedings failed was the delay in attempting to identify the particular bus involved and the details concerning the accident.
It was submitted for the Applicant that it is clear she suffers from a severe spinal condition involving stenosis and a prolapse of two levels of the lumbar spine for which she has had surgery. At least one of her doctors considers that she will be unable to work in the future. It was submitted that Dr Mitchell's report of 14 April 1997 gives the initial diagnosis of spinal stenosis and recommended an MRI only two months after Dr Kirkham had come to a different and erroneous conclusion.

It was submitted that the report of Dr Mitchell dated 26 March 1998 notes-
Her work duties here may have contributed somewhat to her symptoms requiring surgery, however this lady appears to congenitally predisposed to developing spinal stenosis in that she has a very tight spinal canal with little available room for compromise when degenerative changes started to develop in her lumbar spine.

Dr Mitchell also noted that the Applicant's "symptoms and the need for surgery would have occurred despite her employment with Australia Post during the above period of time". It was submitted that whilst Dr Mitchell believed the Applicant's employment could have contributed, it was not causative. In his report dated 15 May 1998 Dr Mitchell noted –

Work as a cleaner is undoubtedly strenuous and undoubtedly can cause a great deal of damage to the lumbar spine. It is likely that Ms Young's work as a cleaner between 1993 and 1997 would have aggravated and accelerated the underlying degenerative changes in her lumbar spine resulting in her developing symptomatic spinal stenosis.

Dr Ghabrial opined in his report of 14 August 1998 –
From the history given to me by Mrs Young, I believe that her present clinical features, residual disabilities and permanent impairment are the result of her injuries sustained during the course of her employment.

Dr Thomson agreed that the Applicant has a spinal stenosis at the L4/5 area, but considered that this condition was not caused or contributed to by her employment.

It was submitted that the evidence shows the Applicant has a severe spinal injury, but the issue of causation has not been properly investigated. The Tribunal is entitled to take into account the fact that heavy cleaning duties over a long period of time may cause or impact on degenerative changes in the lumbar spine. It was submitted that this gave weight to the Applicant's prospect of success if this matter proceeded to hearing.
It was submitted that the first proceedings in the Tribunal were commenced shortly after the Reconsideration Decision. When the Applicant's solicitor became aware of Dr Kirkham's report and the bus accident he advised her to pursue a remedy under the Motor Accidents Act.
It was submitted that an acceptable reason for delay is not a prerequisite for success in this type of application, and regard must be had to all of the other factors, including the possibility of prejudice to the Respondent. It was submitted that the delay or fault of a solicitor should not be visited upon the client: Comcare v A'Hearn (1993) 45 FCR 441; Telstra v Razmovski (1994) 36 ALD 22.
It was submitted that Re Petkovska and Telstra CorporationLtd (1993) 31 ALD 767 is similar to that of the Applicant. In that case the Applicant had pursued a common law claim in the alternative to seeking redress in the Tribunal and after a delay of four years applied for an extension of time. That case also notes that the Safety Rehabilitation and Compensation Act 1988 is:
beneficial legislation …it is not, in the Tribunal's opinion, appropriate that a narrow approach be adopted in the exercise of the discretion to grant an extension of time; the discretion should be exercised so as to reflect what is just and equitable between the parties on the facts of the individual case …
It was submitted that under s42A(10) of the AAT Act, if it appears to the Tribunal that an application has been dismissed in error the Tribunal may reinstate the application. It was submitted for the Applicant that the error in this matter is that of the solicitor. The interpretation of the word "error" in this section should be a liberal one - it is not confined to the error of the Tribunal and may be the result of the error of a party. In Re Schramm and Repatriation Commission (1998) 28 AAR 164 the Tribunal reinstated an application which had been dismissed with the consent of the Applicant, on the basis that the Applicant lacked the necessary clarity of mind when signing the consent. The Tribunal noted that s42A(10) was "intended to provide the means to correct situations in which applications have been dismissed in error, ie dismissed upon grounds which are untrue – the dismissal occurring because of that which is ultimately shown not to be the case". Furthermore, the Tribunal considered that such a situation could arise when "a belief in a state of facts proposed by one or both of the parties … is untrue". In other words the error "may well lie in error on behalf of one or more of the parties". The Tribunal then considered matters relevant to the exercise of discretion, such as whether the application was made in bad faith, the reasons for any delay, whether the Applicant rested on his/her rights, the substantive merit of the application, prejudice to either party and the wider public interest.
It was submitted that the discretionary factors in the reinstatement application are similar to those in the extension of time application.
It was submitted that once it was determined that an error had occurred, the Tribunal can exercise its discretion as to whether to reinstate the Application, and that this is a two step process.
It was submitted that the Respondent has not established prejudice. The Respondent is entitled to a general presumption of prejudice, but in this case a full investigation was undertaken when the Respondent's doctor examined the Applicant. It was submitted that since the time of the withdrawal of the previous application very little prejudice has occurred to the Respondent because of the further 18 month delay.

Respondent

The Responded submitted that the application for reinstatement must fail. The previous proceedings were dismissed pursuant to s42A(1B) of the AAT Act. Section 42A(8) allows an Applicant to apply to the Tribunal for reinstatement of an application dismissed under s42A(2) provided the application is made in 28 days. Subsection (9) gives the Tribunal discretion to reinstate such an application if it considers it appropriate to do so. Subsection (10) gives the Tribunal an unfettered discretion to reinstate an application that has been dismissed in error. It was submitted that there is no power under the AAT Act to reinstate an application which has been dismissed under s42A(1B): Re Storrie and Repatriation Commission (1988) 16 ALD 31.
It was submitted that the principles applicable to the Tribunal in considering an application for an extension of time are set out in Hunter Valley Developments Pty Ltd v Cohen, Minister for Home Affairs & Environment (1984) 3 FCR 344. The Applicant has to rebut the prima facie rule that proceedings should not be entertained outside the prescribed time. To do so the Applicant must offer an acceptable explanation of delay and persuade the Tribunal that it would be fair and equitable in the circumstances to extend time.
It was submitted that the Applicant's explanation is manifestly unacceptable. The Applicant initially discontinued the proceedings in the Tribunal because she was confused by the advice given to her by Dr Kirkham. It was for the Respondent that the Applicant said she relied upon the advice that Dr Kirkham gave her, notwithstanding the submission made on her behalf that his evidence should be disregarded because it represented a misdiagnosis. It was submitted that the history given to Dr Kirkham by the Applicant is more important than his diagnosis, and it does not accord with the history given to any other doctor who examined her.
The Applicant acknowledged that she had legal advice at the time she discontinued the previous proceedings. She acted upon that advice and she did so on the basis of a conscientious decision pursue a remedy in an alternative jurisdiction. It was submitted that it is significant that the opinion of Dr Kirkham was not the only medical opinion available to the Applicant at the time she decided to withdraw her application. There were also the reports of Dr Mitchell and Dr Ghabrial, both well qualified orthopaedic surgeons. That medical evidence supported a connection between her work and the back injury that she suffered.

The Respondent noted that there is no evidence from the solicitor as to the basis on which he gave her advice. It is open to the Tribunal to infer from the material put to the Applicant in cross-examination and her responses to it, that the reason why the proceedings were discontinued was because her solicitor advised her that she would not succeed because she had not disclosed the bus accident to anyone and ultimately it might be found that her back condition was related to the bus accident and not to her work.
It was submitted that the remedy the Applicant pursued in the District Court was available to her regardless of whether the proceedings in the Tribunal continued.
It was submitted that whilst the Applicant should not necessarily be penalised by reason of poor advice given to her by her legal representatives, likewise the Respondent should not be disadvantaged by this.
In respect of prejudice to the Respondent, it was noted that Dr Thompson saw the Applicant in 1998, two years after she said she first experienced symptoms in October 1996. Dr Thompson was not able to assess the situation prior to the Applicant undergoing surgery. There was a delay of at least a year before the Applicant made any report of injury or submitted a claim for compensation, which were made after she had ceased work with the Respondent. It was submitted that the Respondent is prejudiced by the fluxion of time and the fact that witnesses' memories fade.
The first application to the Tribunal was built upon a delay in lodging a claim at the outset, and then superimposed on that has been the delay occasioned by her going to the District Court. Despite the original delay the Respondent was prepared to deal with it. However, two years after she made the claim she discontinued it, and now four years after the alleged injury the matter is back at the Tribunal.
It was submitted that the reasons the Applicant gave for discontinuing the last proceedings were illogical. In Dr Kirkham's opinion, the Applicant's back condition was not related in any way to her employment, or her bus accident. It was submitted that it is more likely that the decision to abandon the previous Tribunal proceedings and pursue the motor accident proceedings was because her solicitor had not previously been aware of the bus accident. The Applicant conceded that her solicitor became aware of the bus accident only through documents produced by Dr Kirkham under summons, issued at the request of the Respondent.
It was submitted that even if the Tribunal found that the Applicant's explanation was reasonable, she would then need to persuade the Tribunal that it is fair and equitable in the circumstances to extend time. The Respondent submitted that the Applicant was seeking a second chance to pursue litigation that she knowingly and deliberately abandoned in order to pursue proceedings in another jurisdiction. Those proceedings were pursued on the basis of a claim that the same injuries occurred in completely different circumstances to those that she has alleged before the Tribunal. Indeed, these were circumstances that she did not disclose to the Tribunal, or to any of the doctors examining her other than Dr Kirkham. She has returned to the Tribunal because those proceedings have failed. It was submitted that they failed specifically because the Applicant was advised that she would be unlikely to obtain an extension of time in those proceedings.
In relation to the merits of the case, the Respondent submitted that there is not one doctor out of all the medical evidence before the Tribunal, who supports an association between the Applicant's employment and her back condition who has been given the correct history regarding the bus accident. Dr Savio was not told about the bus accident. This was made clear by the certificate he issued on 4 October 1998. He was not told anything about the Applicant's work until 26 February 1998, one year after she resigned. There is nothing in Dr Mitchell's reports about work prior to the date of the first of the two letters from the Applicant's solicitors dated 20 February 1998 (exhibit C) giving a work history and seeking comment on it.
In relation to prejudice, the Respondent referred to the decision of the Tribunal Re Deighton and Telstra Corporation Limited AAT No. 10958 (23 May 1996). In that decision Senior Member Hotop noted –
In addition to the weakness of the Applicant's case for review on the merits, the Tribunal notes that the Respondent will suffer substantial prejudice if the Applicant is granted the necessary extension of time for lodging his application for review. There is, of course, the general prejudice that the Respondent would suffer in being called upon to appear as a party in a Tribunal review proceeding where it had good reason to believe would not take place by virtue of the Tribunal's consent dismissal.
It is submitted that the present application is not a case where the Applicant has delayed bringing proceedings because of ignorance or otherwise. There has been no attempt on behalf of the Applicant to put the Respondent on notice that the decision to pursue action in another jurisdiction should not be taken necessarily as having abandoned her pursuit for compensation against the Respondent. In this case the Applicant specifically abandoned these proceedings and the Respondent is entitled, by that fact, to presume that it is not going to be called upon to participate in proceedings in the future.
The Respondent noted that when the Applicant put in her claim, more than a year after her resignation, she named "Jim Calwell" as a witness (T3) but stated that she did not know his work or home address. When the claim was investigated by Mr Adam Lowe, an Occupational Health and Safety Officer, he noted (T3) –
This claim cannot be verified or supported. Investigations reveal that during her employment Ms Young did not report any incidents of any kind. Nor is there any evidence (verbal or otherwise) to suggest she complained of back pain.
It was submitted for the Respondent that 'error' must be an error of fact. It does not go to the basis of the advice the solicitor gave the Applicant.
discussion of issues
It deciding whether to exercise the discretionary power to extend time conferred by the AAT Act the Tribunal must look to the principles enunciated by Wilcox J in Hunter Valley Developments Pty Ltd (supra). In that matter Wilcox J noted the necessity for the Applicant to give an acceptable explanation for the delay. He distinguished between an Applicant who, by non-curial means, has continued to make the decision-maker aware that they contest the finality of the decision, and the situation where the decision-maker has been allowed to believe that the matter has concluded. Wilcox J also notes that "any prejudice to the Respondent, including any prejudice in defending the proceedings occasioned by the delay is material factor militating against the grant of an extension". Furthermore, he notes that "the mere absence of prejudice is not enough to justify the grant of extension". Wilcox J notes that the merits of the substantial application should also be taken into account when considering whether an extension of time should be granted.
The Tribunal finds that the Applicant did not offer an acceptable explanation for the delay. The reasons the Applicant has offered for the delay include the confusing advice given to her by Dr Kirkham in the first instance and the advice of her solicitor to pursue a remedy in the District Court. The Tribunal finds that neither of these explanations is convincing. Dr Kirkham's opinion was not the only medical opinion available to the Applicant at the time she withdrew her previous application. While the other medical opinions provided prima facie support for her compensation claim, the Applicant apparently did not provide any history to those doctors of the bus incident. The advice the Applicant received from her solicitor to pursue a remedy in another jurisdiction was likely to have been affected by the lateness of the solicitor's awareness of the bus incident. Both of these explanations reflect negatively on the Applicant's apparent unpreparedness to disclose fully to all relevant people the circumstances of her back condition.
The Tribunal finds that the Applicant's right to pursue a remedy in the District Court and her right to pursue her application for review by this Tribunal of the decision of the Respondent were not mutually exclusive. The Tribunal finds that it was reasonable for the Respondent to conclude that when the Applicant withdrew her previous application she would not be seeking to resurrect it later.
Notwithstanding that the Respondent had obtained an opinion from Dr Thompson while the earlier application was on foot, the Tribunal finds that his opinion was limited by two important factors – firstly, because of the delay between the Applicant's employment with the Respondent and that consultation, she had in the meantime had back surgery, and therefore he was not well placed to consider the contribution of her employment to her condition; secondly, Dr Thompson was not advised by the Applicant of the bus incident.
Although it was submitted that the Applicant was confused by the opinion of Dr Kirkham, his opinion that her condition was not work-related was given prior to her lodging the application to the Tribunal. The Tribunal does not accept that submission.
The Tribunal finds that the Applicant was not a credible witness. She avoided providing direct answers to many questions. The Tribunal notes that in her statutory declaration she stated that she always believed her back condition was related to both her work and her bus accident. However she failed to disclose any information about that accident in the previous proceedings or to the doctors whom she consulted in respect of her compensation claim. As the Applicant is not a credible witness, it is of greater importance that in the event of her application proceeding, evidence be available to the Tribunal from her workplace about the work she was performing and about her behaviour at work. It would appear, prima facie, that the Applicant made no complaints at work about suffering from back pain.
The Tribunal finds that while it is possible that the Applicant's work could have aggravated her underlying constitutional condition, the lack of any evidence of her complaining at the workplace about back pain or consulting a doctor about it prior to her ceasing her employment, would not support an hypothesis that work was an aggravating factor.
The Tribunal notes the submission for the Applicant that the Tribunal's decision Re Petkovska (supra) is similar to this matter. The Tribunal does not agree with that submission. In Re Petkovska the delay in lodging an application for review to the Tribunal was because of a common law claim against the Respondent. There had not been a prior application that had been discontinued, as in this matter, and importantly in this matter the alternative action being pursued had nothing to do with the Respondent or with a work-related incapacity. The Tribunal notes the comments of the Tribunal Re Petkovska that discretion should be exercised so as to reflect what is just and equitable between the parties on the facts of the individual case. The matter now before the Tribunal turns on its own facts.
In summary, then, in relation to the Applicant's application for an extension of time in which to lodge a new application (N2000/868), the Tribunal finds that her reason for discontinuing the previous proceedings was unreasonable in that it was not necessary for those proceedings to be withdrawn in order for her to pursue damages in another jurisdiction in respect of the bus incident. The facts have not changed, and they are –

The Applicant suffers from spinal stenosis that left little room for compromise when degenerative changes started to develop in her lumbar spine. On the opinion of Dr Mitchell she was congenitally predisposed to developing spinal stenosis. This is an underlying condition, unrelated to the bus incident or her work with the Respondent.
Superimposed on that underlying condition, it is the Applicant's case that the bus incident in December 1996 (which was not work-related) made her back condition symptomatic.
Additionally, it appears to be her case that her employment over many years with the Respondent, which effectively ceased in late December 1996, contributed to making her back condition symptomatic but only on and from December 1996.

Given the last two factors, both of which allegedly contributed to exacerbate her back condition, it was unreasonable to abandon one trigger in order to pursue the other.

Additionally, the Tribunal does not find that it would be fair and equitable to extend time for the Applicant to lodge another application for review. The passage of time has impinged negatively on the Respondent. The medical evidence already available is flawed because of the Applicant's failure to provide a full and relevant history to the doctors who examined her. As an important part of her history is the nature and extent of any back disability she suffered while still working, and because of her poor credibility, evidence from supervisors and others with whom she worked would be an important part of the Respondent's case, and because of the passage of time this is now very unlikely to be available. Therefore there would be a significant disadvantage to the Respondent.
The merits of the case are quite limited when taking into account that the doctors who have supported the work-relatedness of her back condition apparently have not been appraised of the full history of her condition.
The Tribunal notes that the legislation under which the Applicant has made her claim is beneficial legislation and that it is inappropriate for the Tribunal to take a narrow approach to applications for extension of time: Re Petkovska (supra). However, taking all these relevant factors into account, the Tribunal considers in the particular circumstances of this case, that there are insufficient grounds to grant an extension of time for the Applicant to lodge a new application. The application for extension of time is therefore refused.
Reinstatement of application N1998/821
In respect of the alternative request of the Applicant that the Tribunal reinstate the old application on the basis of an error of the Applicant's solicitor and that the interpretation of the word "error" should be a liberal one, the Tribunal finds that any error by the solicitor was occasioned by the failure of the Applicant to appraise him and her doctors of all the relevant facts of her case. That is not the sort of error which the Tribunal considers is intended by s42A(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.

There was no error by the Tribunal in dismissing the application pursuant to advice from the Applicant's solicitor, apparently properly instructed, that she sought to withdraw her application (pursuant to s42A(1A) of the AAT Act). Any error based on poor professional advice (and there is no evidence to support such a finding in this case), while it may have caused the application to be dismissed subsequently, does not amount to the application having been dismissed in error. On the other hand, if the solicitor requested that an application be withdrawn on a misapprehension that instructions to that effect had been received, then such an error could fall for consideration under this provision.

The Tribunal notes the decision Re Schramm (supra) on which the Applicant relies. The matter now being considered by the Tribunal can be distinguished from Re Schramm on the facts. The Tribunal considers in the present matter that indeed there was no error. This is the case of the Applicant merely seeking to have "a second bite at the cherry". That is not the intention of s42A(10). The Tribunal is not prepared to exercise its discretion pursuant to s42A(10) to reinstate application N1998/821.
I certify that the 64 preceding paragraphs are a true copy of the reasons for the decision herein of Mrs M T Lewis, Senior Member.
Signed:         .....................................................................................
  Associate
Date/s of Hearing  16 August 2000
Date of Decision  12 September 2000
Counsel for the Applicant        Mr M Richardson
Solicitor for the Applicant         Michael Evers & Co. Solicitors
Counsel for the Respondent    Mr B Kelly
Solicitor for the Respondent    Sparke Helmore Solicitors