White and Repatriation Commission

[2005] AATA 75

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2005] AATA 75

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No  Q2001/935

VETERANS’ APPEALS DIVISION		)
Re		ROBERT WHITE

Applicant

And  REPATRIATION COMMISSION

Respondent

DECISION

Tribunal Senior Member McCabe

Date21 January 2005

PlaceBrisbane

Decision Application for review reinstated.

....................[sgd]..........................

Senior Member McCabe

CATCHWORDS

PRACTICE AND PROCEDURE – application for review – application withdrawn in error – discretion to reinstate application exercised

REASONS FOR DECISION

21 January 2005

introduction

1. Robert White asked the Tribunal to review a decision of the Repatriation Commission. He subsequently withdrew his application on or about 20 October 2003. He now says the application was withdrawn in error. He says the Tribunal should exercise its discretion under s 42A(10) of the Administrative Appeals Tribunal Act 1975 to reinstate the application.

2. The matter came before the Tribunal late in 2003. Mr White’s counsel did not rely on s 42A(10) on that occasion. I decided the application should be reinstated. The decision was appealed to the Federal Court. The application was remitted to the Tribunal. The parties now agree the matter should be dealt with under s 42A(10).

the factual background

3.      Mr White says he was in difficult circumstances at the time he made the decision to withdraw the application. His daughter was diagnosed with cancer in August 2003, which caused him significant stress that militated against good decision-making. He also suffers from a psychiatric condition. He says he was not taking his medication at the time. (Dr Danisi, his treating psychiatrist, suggested his medication had been changed around the relevant time. Either way, it is clear there was some sort of disruption to Mr White’s treatment which appeared to impact on his ability to think clearly.)

4.      The applicant also says he received a large bill from his solicitor. Dr Danisi suggests the bill came from the tax office, but it does not make any difference: I accept the applicant received notice of some form of demand that distressed him. He says his representative told him the legal aid office would not continue to fund the matter, and that he should withdraw. The applicant said he felt obliged to withdraw in light of this advice. He regrets that decision.

the legislation

5. The power to reinstate applications that have been dismissed in error is found at s 42A(10). The sub-section says:

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 discretion to reinstate is clearly available where the error leading to dismissal lies with the Tribunal. To that extent the sub-section merely restates the “slip rule” – a common law rule giving courts the power to correct irregularities resulting from a mistake. Senior Member Dwyer assumed the slip rule also applied to the Tribunal in Pontin and Repatriation Commission (1991) 22 ALD 191 at 199 in cases where the parties consent or do not object, and where there is no injustice.

7.      The Full Federal Court explained in Goldie v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCFCA 367 that the power to reinstate in s 42A(10) was not limited to cases in which the Tribunal made an error. As Wilcox, Carr and Downes JJ explained (at paragraph 29):

We do not think it is necessary, in order to enliven the Tribunal's power under s.42A(10), that the Tribunal, or a member or employee of the Tribunal, should have been at fault in relation to the dismissal. The fault may have lain elsewhere, provided it induced the error. For example, because of a mistake as to his or her instructions, a solicitor or other representative of a party might have wrongly consented to a dismissal order or filed a notice of discontinuance. No fault would attach to the Tribunal; but, if the solicitor's mistake induced the dismissal of the action, it could properly be said the application had been "dismissed in error".

8. Their Honours noted the text of the Explanatory Memorandum that accompanied the amending legislation which introduced s 42A(10). The Memorandum appears to support a narrower interpretation of the reinstatement power. Their Honours suggested the reference in the Memorandum to the provision being used to correct administrative errors was itself an error. If the parliament intended to limit the operation of the sub-section to administrative errors, it would have added the word “administrative” as a qualifier: at paragraph 34.

9. It is doubtful whether an applicant who simply makes an unwise decision to withdraw proceedings could be said to be acting in error in the relevant sense. It may be that a decision made on the strength of bad advice might not justify the exercise of the discretion either. I do not need to express a concluded view on this point because I am satisfied the applicant’s mental state was such as to preclude him making a rational and considered decision when he instructed his solicitors to withdraw the proceedings. Other events caused him to be in a state of distress which was compounded by problems in his medication. While the evidence does not suggest he was incapable of rational thought at the relevant time, the applicant’s judgement was apparently so flawed that it could be said the instructions to the solicitor were given in error within the meaning of s 42A(10).

10. Having reached the view that the discretion under s 42A(10) is available, it remains for me to consider whether it should be exercised in the circumstances. Ms Barker for the respondent emphasised it was necessary for me to have regard to the applicant’s prospects of success. The substance of the applicant’s claim was outlined in the earlier proceedings. The applicant claims to suffer from post traumatic stress disorder and alcohol abuse as a result of his experiences while on operational service. A number of statements were tendered which, on their face, support his claim. The respondent has foreshadowed disputes over the facts, but it is not appropriate to ventilate that dispute at this stage. I am satisfied he has an arguable case, and there is no evidence that reinstatement would be unfair to the Commission.

conclusion

11. I am satisfied the application ought to be reinstated pursuant to s 42A(10) of the Act.

I certify that the 11 preceding paragraphs are a true copy of the reasons for the decision herein of  

Signed:         .....................................................................................
  Associate:  Sam J Appleton

Date/s of Hearing  19 January 2005
Date of Decision  21 January 2005
The applicant was represented by Ms Haney
The respondent was represented by Ms Barker