Safety, Rehabilitation and Compensation Act 1988 ss 5B, 14, 19

Goldie v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 367

Lower v Comcare [2002] FCA 1394

Ristic and Secretary, Department of Social Services [2017] AATA 2

Walls and Comcare [2015] AATA 697

White and Secretary, Department of Families, Community Services and Indigenous Affairs [2007] AATA 1712 at [42]

1. Luke Gregory lodged two applications for review of Comcare decision in respect of compensation claims: applications 2023/3745 and 2023/5728. He subsequently withdrew application 2023/5728. After doing so, he applied for reinstatement of this application on grounds of error.
2. It is this issue, alone, which is the subject of this interlocutory decision.
3. For ease of understanding, it is necessary to touch on the subject of each application.
4. Application 2023/3745 is in respect of a reconsideration decision accepting liability for an injury under s 14 of the Safety, Rehabilitation and Compensation Act 1988 (SRC Act), namely aggravation of post-traumatic stress disorder (PTSD) and major depressive disorder. Mr Gregory cavils with the deemed date of the injury in this decision (26 August 2022) and asserts he sustained the injury in 2008.
5. Application 2023/5728 is in respect of a reconsideration decision which addressed Mr Gregory's entitlement to periodic compensation for incapacity to work as a result of the injury. Under s 19(2) of the SRC Act, the amount of periodic compensation for incapacity to work as result of the injury hinges on the AE amount, namely the amount Mr Gregory actually earns in employment or the amount he is deemed able to earn in suitable employment, whichever is greater.
6. For completeness I note Mr Gregory previously applied for review of a Department of Veterans' Affairs reconsideration decision to deny liability for a number of physical injury claims: application 2022/4355. This application was finalised in 2022.
7. Each party provided detailed written submissions, referencing relevant authorities (to which I will return). Relevant materials were taken into evidence when the reinstatement application was heard.
8. Mr Gregory asserts application 2023/5728 was dismissed in error. He asserts a cascade of erroneous events led him to withdraw the application. In his submission, 3 errors occurred which were causally instrumental in the act of withdrawal. Firstly, he alleges his lawyer, Lawrence Dent of Arnold, Thomas & Becker, failed to notify Comcare he retained instructions to represent Mr Gregory in the Tribunal proceedings. Secondly, he alleges an email he received from McInnes Wilson, Comcare's legal representative in the proceedings, was sent in error after Comcare was notified by the Tribunal Mr Dent was representing Mr Gregory in the proceedings. Thirdly, he alleges following receipt of the email from McInnes Wilson he became stressed and confused, and he mistakenly believed Mr Dent was no longer representing him in the proceedings, in consequence of which, shortly thereafter, he sent an email to the Tribunal withdrawing application 2023/5728.
9. Mr Gregory argues these errors are material causes of his action to withdraw the application, without which he would not have done so. The email he was sent by McInnes Wilson, so the argument goes, was instrumental in upsetting his state of mind and shaking his belief he was legally represented by Mr Dent in the proceedings and, but for the email, he would not have taken the action to withdraw application 2023/5728. Mr Gregory points to the effects of the PTSD he suffers and asserts he was not behaving rationally at the time. It is for this reason he contends he did not attempt to contact Mr Dent to clarify his position or to seek advice.
10. In Mr Gregory's submission, the Tribunal's discretion to reinstate application 2023/5728 is enlivened by the presence of material error and it is appropriate to do so in circumstances where no prejudice to Comcare is asserted or apparent, no delay has been occasioned by the withdrawal and he has, at least, an arguable case. These considerations, Mr Gregory asserts, must be weighed against the loss of his right to review of Comcare's reconsideration decision should the application not be reinstated.
11. Comcare informed me it adopts a neutral position on the reinstatement application. In attempting to assist the Tribunal, nevertheless, Comcare asserts Mr Gregory's withdrawal of application 2023/5728 is not occasioned by error. In Comcare's submission, Mr Dent's failure to notify Comcare of his instructions to represent Mr Gregory in the application is at a remove from Mr Gregory's act of withdrawal. To the extent Comcare was notified by the Tribunal Mr Dent was acting for Mr Gregory, Comcare asserts the notification was under the heading Application 2023/3745, in consequence of which it was not clear Mr Dent was acting for Mr Gregory in application 2023/5728. In this circumstance, Comcare argues sending Mr Gregory an email directly in respect of requests for the Tribunal to summons documents was not an error. Comcare contends the evidence does not establish the email Mr Gregory was sent was instrumental in causing him to withdraw application 2023/5728, rather Mr Gregory set out his reason for withdrawing the application in his own words at the time.
12. Comcare argues the threshold for enlivenment of the Tribunal's discretion to reinstate an application under s 42A(10) of the Administrative Appeals Tribunal Act 1975 (AAT Act) is not conditioned by a 'but for' test of causation, rather the applicable threshold is whether the application was dismissed in error. The factual precondition of error leading to dismissal must be established, Comcare asserts, in order to enliven the discretion to reinstate the application.
13. These submissions notwithstanding, should the Tribunal find Mr Gregory's action to withdraw application 2023/5728 was occasioned by error, Comcare submits the Tribunal should exercise the discretion to reinstate the application.
14. The issue of reinstatement following withdrawal is to be decided under s 42A of the AAT Act, which relevantly provides:

Deemed dismissal - applicant discontinues or withdraws application > > (1A) A person who has made an application to the Tribunal for a review of a decision may, in writing lodged with the Tribunal, at any time notify the Tribunal to the effect that the application is discontinued or withdrawn. > > (1AA) ... > > (1B) If notification is given in accordance with subsection (1A) or (1AA), the Tribunal is taken to have dismissed the application without proceeding to review the decision. > > Reinstatement of application > > ... > > (10) 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 made within the period referred to in subsection (11) or on its own initiative, reinstate the application and give such directions as appear to it to be appropriate in the circumstances. > > ...

15. In a case of the present kind, as can be seen, four questions arise for determination:

(a) did Mr Gregory notify the Tribunal the application is withdrawn or discontinued; and if so > > (b) was the notification given in accordance with s 42A(1A) such that the application is taken to have been dismissed under s 42A(1B); and if so > > (c) was the application dismissed in error; and if so > > (d) is it appropriate to exercise the discretion to reinstate the application?

1. At 12.11pm on 28 September 2023, Mr Gregory sent the following email to the Tribunal:

Please be advised that I wish to discontinue my appeal in relation to the below. Since lodging the appeal I have commenced work which is productive and flexible which suits my situation and therefore see it unnecessary to proceed with my appeal. > > Please advise when u receive this email and u withdraw my appeal.[1]

2. I am satisfied the email is written notification of discontinuance and withdrawal of application 2023/5728 in accordance with s 42A(1A) of the AAT Act.
3. That being so, the application is taken to have been dismissed by operation of s 42A(1B).
4. Subsequent events, including the Tribunal listing and holding a preliminary conference before a conference registrar in both applications 2023/3745 and 2023/5728, including any comments or observations communicated by the conference registrar, and an email from Mr Dent on 2 October 2023[2] are not determinative.
5. Notice of the dismissal of application 2023/5728 was issued on 18 October 2023.[3]

1. Mr Gregory asserts receipt of the email sent to him in error by McInnes Wilson on 28 September 2023 contributed to reactive psychological symptoms and led him to discontinue application 2023/5728. On this assertion, his reaction to the McInnes Wilson email informed the choice he made to discontinue the application shortly thereafter. It is on this basis he asserts McInnes Wilson's error is an essential link in a chain of causation which led to dismissal of the application: but for the error, Mr Gregory would not have acted to discontinue the application. While such a proposition might be attractive at first blush or on the basis of common sense, as will appear, it relies on assumptions and speculation not supported by reliable evidence.
2. Comcare asserts the McInnes Wilson email is not directly related to the dismissal of application 2023/5728 and it does not amount to an error for the purposes of s 42A(10) of the AAT Act.
3. The conception and construction of the phrase dismissed in error requires some elucidation in the context of s 42A(10) of the AAT Act. The phrase was considered in Goldie v Minister for Immigration and Multicultural and Indigenous Affairs,[4] in which Wilcox and Downes JJ said:

28 The only limitations that we can see in s.42A(10) are: > > (i) that the Tribunal has dismissed the application; and > > (ii) that the act of dismissal was attended with error. > > 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".

77. In my view, there is a significant degree of desirability of persons being able to rely on the ordinary meaning conveyed by the word "error". More importantly, s 42A(10) provides a mechanism of avoiding prolonging legal or other proceedings without compensating advantage. The mechanism is a relatively informal method of bringing a matter back to the Tribunal for reconsideration with a view to it being considered on the merits. It can be seen as a convenient, prompt and inexpensive means whereby errors which may have occurred in the exercise of the Tribunal's default jurisdiction can be rectified. That is, any sort of error in dismissing an application summarily, whether the error be administrative error or any other error.

5. It can readily be understood, therefore, the Tribunal's discretion under s 42A(10) is essentially preconditioned by any error which induced or attended dismissal of the application. For the discretion to be enlivened, a causal relationship between the error and dismissal of the application must be established. So much has been accepted in successive decisions of the Tribunal.[5] In other words, the error must be a material factor in the dismissal. Clearly enough, the question of the materiality of the error must be viewed through the lens of the dismissal. An error which is of peripheral or contextual significance may not be sufficient unless the Tribunal is satisfied the error induced the dismissal.
6. Mr Dent stated he received instructions to act for Mr Gregory on 10 August 2023.[6] Albeit not expressly stated, it is open to infer Mr Dent was instructed to act for Mr Gregory in both applications 2023/3745 and 2023/5728. I will proceed on that basis.
7. There is no evidence Mr Dent notified McInnes Wilson or Comcare he was acting for Mr Gregory in each application. Mr Dent's failure to do so was an error.
8. On 13 September 2023, Mr Dent's legal assistant sent an email to the Tribunal which the Tribunal forwarded to McInnes Wilson on 14 September 2023. The email is in the following terms:

Subject: 2023/5728 - Luke Gregory and Comcare > > Date: Wednesday, 13 September 2023 10:04:32 AM > > ... > > Good morning, > > Our office confirms Mr Larry Dent represents Mr Luke Gregory for this matter. > > We are seeking the next telephone conference date for this application, please advise. > > Thank you

9. As can be seen, the legal assistant's email is in respect of application 2023/5728, alone.
10. Comcare's submission that the Tribunal's 14 September 2023 email refers only to application 2023/3745 is correct. The heading is in the following terms:

2023/3745 - RE Gregory and Comcare - General Correspondence

11. While this material might raise a doubt about the extent of Mr Dent's instructions in respect of application 2023/3745, the information communicated in respect of Mr Dent acting for Mr Gregory in application 2023/5728 is unequivocal. From this it follows, as of 14 September 2023 Comcare and McInnes Wilson were squarely on notice Mr Dent was representing Mr Gregory in application 2023/5728.
12. At 10.05am on 28 September 2023, McInnes Wilson sent the following email to the Tribunal:

Subject: 2023/5728 - Luke Gregory and Comcare ... > > ... > > Good afternoon > > We have uploaded the following summonses to the AAT portal: > > 1. Request to issue summons to Australian Tax Office; > > 2. Request to issue summons to Rock Walls Melbourne; > > 3. Request to issue summons to RSL Victoria; > > 4. Request to issue summons to Two Trowels Bricklaying Ltd; and > > 5. Summons for production. > > The transaction number for this is CLL98W. > > We look forward to receiving the stamped summonses for service. > > The applicant has been copied into this email for their information. > > If you have any questions please contact us.

13. The email was copied to Mr Gregory directly, not to Mr Dent or Arnold, Thomas & Becker. This was an error.
14. As the text of the email reveals, it did not require a response from Mr Gregory, and he was copied into the email for his information.
15. Mr Gregory gave the following uncontested evidence:

When I read the email, I was initially confused about why I received it. I believed that Mr Dent was still representing me. I thought that following our conference, he would be handling the matter for me. My feeling of confusion quickly turned to a feeling of being overwhelmed. I started to think that by receiving the email, Mr Dent was no longer acting on my behalf. I would now have to represent myself. I knew I was not capable of representing myself. As a result, I was in a state of very high stress. At the time, I was not thinking clearly or acting rationally. All I could think of was to get rid of the stress and get out of this situation as quickly as possible. This is consistent with my usual strategy for coping with stress. I thought the best thing to do was to get out of the situation as soon as possible and withdraw the application referred to in the email, being 2023/5728. I did not even think about application 2023/3745 when making this decision. > > I did not speak to anybody about my situation. I received no legal advice on the consequences of seeking to withdraw my Application. In hindsight, I should have called Mr Dent to clarify the situation, but I was so worked up that I wasn't thinking straight.

16. I do not accept the proposition advanced by counsel for Mr Gregory, Mr Joel Harris, that Mr Gregory believed Mr Dent was no longer representing him. The words "started to think" and Mr Gregory's subsequent evidence do not go so far, although on a fair reading a question arose in his mind about Mr Dent continuing to act for him.
17. Shortly thereafter, at 12.11pm Mr Gregory sent notification of discontinuance to the Tribunal in respect of application 2023/5728 without contacting Mr Dent or seeking his advice[7].
18. It is Mr Gregory's assertion this was the precipitant act of a confused mind in stressful circumstances, lacking rationality, reacting to avoid a perceived stressor. He asserts his action was conditioned by three alleged errors:

(a) Mr Dent failing to notify McInnes Wilson he was acting for Mr Gregory in applications 2023/3745 and 2023/5728; > > (b) McInnes Wilson sending him the summons request email at 10.05am on 28 September 2023; and > > (c) Mr Gregory's mistaken belief Mr Dent was no longer acting for him in application 2023/5728.

19. For Mr Gregory's assertion to be made out, sufficient probative material is required to enable factual findings to be made, at least on the basis of properly drawn inferences.
20. The significance of Mr Dent's error failing to notify McInnes Wilson he was acting for Mr Gregory in applications 2023/3745 and 2023/5728 falls away after McInnes Wilson was notified he was acting for Mr Gregory in application 2023/5728 on 14 September 2023.
21. McInnes Wilson's error on 28 September 2023, copying the request for summons email to Mr Gregory, does not lead directly to dismissal of application 2023/5728. The McInnes Wilson email did not require or suggest any action or response from Mr Gregory. The act which led to dismissal of the application is the notice Mr Gregory sent to the Tribunal shortly after receiving the email erroneously sent to him by McInnes Wilson.
22. I am satisfied Mr Gregory knew what he was doing when he sent the notice. Simply put, as his evidence makes clear, he acted to discontinue the application in order to bring it to an end and to reduce or avoid stress. Acting in this manner is not an error.
23. Mr Gregory asserts his adverse or irrational reaction to the McInnes Wilson email was instrumental in the action he subsequently took. There is no medical, psychological or reliable independent evidence of Mr Gregory's state of mind or his psychological symptoms on 28 September 2023, before or after his receipt of the email sent in error by McInnes Wilson. The only evidence of Mr Gregory's state of mind and any reactive psychological symptoms he allegedly experienced following receipt of the McInnes Wilson email is his own. While his evidence was not challenged or tested, some caution is required when making related factual findings on the basis of his subjective account.
24. I will proceed on the basis of Mr Gregory's evidence he experienced stress, confusion and avoidance shortly after receiving the email from McInnes Wilson. It was in this context Mr Gregory chose to discontinue application 2023/5728 on 28 September 2023, leading to dismissal of the application.
25. There is no dispute Mr Gregory suffers from psychiatric ailments, including PTSD and Major Depressive Disorder, which cause him to experience psychological symptoms. Nevertheless, Mr Gregory's insight into the causes of such psychological symptoms has a subjective quality. It is possible his insight is affected by the ailments or the symptoms themselves, or other factors at the time or subsequently. The nature and intensity of such symptoms, and any patterns of symptomatology in response to stressful circumstances, are matters best addressed by evidence from suitably qualified health professionals. I was not taken to any such evidence. The evidence does not establish that Mr Gregory's mind was so affected by stress, confusion or psychological symptoms on 28 September 2023 he was unfit to make decisions at the time, or he was incapable of making rational decisions or acting rationally in respect of application 2023/5728.
26. On Mr Gregory's own evidence, he was not thinking clearly when he made the decision to discontinue the application.[8] Nevertheless, he was thinking with sufficient clarity to draft the notice of discontinuance he sent to the Tribunal. Even though there is no requirement for reasons to be given by an applicant giving notice of discontinuance or withdrawal of an application for review, Mr Gregory did so:

Please be advised that I wish to discontinue my appeal in relation to the below. Since lodging the appeal I have commenced work which is productive and flexible which suits my situation and therefore see it unnecessary to proceed with my appeal.

27. The explanation he gave is cogent and relevant to application 2023/5728. It suggests Mr Gregory was thinking rationally at the time and he took deliberate action to discontinue the application. The explanation aligns with the central dispute in application 2023/5728, namely the AE amount: the amount of Mr Gregory's actual earnings or his deemed ability to earn. This strongly suggests Mr Gregory was not so confused about the subject matter of the application he was unable to consider it rationally. While it may be accepted generally a person suffering from PTSD might be prone to avoidance of stressful situations, without more, the present evidence is not sufficient to establish Mr Gregory's response to the email he received from McInnes Wilson on 28 September 2023 was irrational or induced by psychological disturbance.
28. Mr Gregory states he did not think about application 2023/3745 when making the decision to discontinue application 2023/5728. This evidence was not challenged or tested. Nevertheless, I note application 2023/3745 involves a dispute about Comcare's liability under s 14 of the SRC Act in respect of an injury in the form of psychiatric ailments within the terms of Mr Gregory's compensation claim. At the heart of the dispute is the date from which Comcare is liable for the injury. Mr Gregory's action to discontinue application 2023/5728 has no direct effect on the issues in dispute in application 2023/3745. In the event Mr Gregory succeeds in application 2023/3745 and an earlier date of liability is applied in respect of the injury, his consequent entitlement to compensation for incapacity to work would then rise to be decided, and in that context the amount of his actual or deemed earnings each week would be determined by Comcare. Deemed dismissal of application 2023/5728 under s 42A(1B) of the AAT Act, without determinative findings on review, does not limit determination of such matters on the materials then available or Mr Gregory's entitlement to apply for review.[9]
29. Mr Dent's evidence of his conversation with Mr Gregory at around 3.30pm on 28 September 2023 does not reveal any indication Mr Gregory acted irrationally or in a psychologically disturbed manner when withdrawing the application. Mr Dent simply requested Mr Gregory take no further action in respect of the withdrawal:

I was on leave on 28 September 2023. However, I had a brief telephone conversation with the Applicant on that day in which I requested that he take no further steps in relation to the withdrawal of application 2023/5728.

30. Mr Gregory gives a different account of this conversation. On his evidence, he instructed [Mr Dent] that I wished to reinstate my application.[10] If instructions of that kind were given, I would expect Mr Dent, an experienced lawyer, to have confirmed so much in his evidence. Mr Dent's evidence does not establish whether Mr Gregory resiled from his act of discontinuance and instructed Mr Dent to apply for reinstatement of the application at that time, or whether he adhered to his decision to discontinue the application, such that Mr Dent considered it necessary to request he take no further steps in relation to it. On Mr Dent's evidence, he received instructions four days later, on 2 October 2023, to press for reinstatement of application 2023/5728, which he then acted upon.
31. The proposition Mr Gregory would not have taken the action to discontinue application 2023/5728 but for receiving the email from McInnes Wilson proceeds on a number of assumptions. It assumes Mr Gregory had no intention of discontinuing the application before receiving the McInnes Wilson email. There is no evidence about Mr Gregory's state of mind or his intentions in respect of application 2023/5728 prior to receiving the email from McInnes Wilson. Mr Harris asserted Mr Gregory did not wake up that morning thinking he would discontinue the application. While that is possible, there is no evidence to support the assertion. Making assumptions about Mr Gregory's state of mind and his intentions is not helpful. It also assumes Mr Gregory would not have withdrawn the application had he not received the email from McInnes Wilson. There is no direct evidence of this from Mr Gregory. Mr Gregory stated:

Had I spoken with Mr Dent before I sent the email to the Melbourne registry, I would not have sent the email to withdraw my application.[11]

32. On this evidence, which is supported by the evidence of Mr Dent, it can be accepted, if Mr Gregory had spoken with Mr Dent before acting to withdraw application 2023/5728, he may not have done so.
33. On Mr Gregory's evidence, his action to withdraw application 2023/5728 without first discussing this with Mr Dent was taken in the context of uncertainty whether Mr Dent was representing him. About this, Mr Gregory stated:

In hindsight, I should have called Mr Dent to clarify the situation, but I was so worked up I wasn't thinking straight.[12]

34. These were choices Mr Gregory made in the circumstances at the time. Mr Gregory's choice to act without consulting Mr Dent may well have been made when he was not 'thinking straight', but it was a choice, nevertheless. While this might be considered an error of judgment from which, with hindsight, Mr Gregory regrets, it is not an error of the kind referred to in s 42A(10) of the AAT Act which led to dismissal of application 2023/5728. I am not satisfied Mr Gregory's uncertainty or confusion about Mr Dent continuing to represent him is an error which led to dismissal of application 2023/5728.
35. To the extent Mr Gregory was not thinking straight when he withdrew application 2023/5728, this is not properly characterised as an error which led to dismissal of the application. As the notice of discontinuance clearly reveals, Mr Gregory knew that by discontinuing application 2023/5728, the application would be withdrawn and brought to an end.
36. I am satisfied Mr Gregory's actions on 28 September 2023 are consistent with him making deliberate choices. He decided to discontinue application 2023/5728 for the reasons stated in the email notification he gave the Tribunal. Precisely when Mr Gregory made the decision to discontinue application 2023/5728 is not clear on the present evidence. Nevertheless, I am satisfied he chose to act on the decision shortly after receiving the email from McInnes Wilson on 28 September 2023, albeit in the context of stress when he was not thinking straight. He chose to do so without first discussing the matter with Mr Dent. Even though Mr Gregory's choices may have been made in the context of stress shortly after he received the McInnes Wilson email when he was not thinking straight, I am not persuaded McInnes Wilson's error sending Mr Gregory the email led to dismissal of application 2023/5728. On the available evidence, that is a step too far which accords anterior or peripheral events a causal character.
37. In conclusion on this point, I am satisfied the choices and decisions Mr Gregory made on 28 September 2023 which led to the withdrawal and deemed dismissal of application 2023/5728 occurred in the context of events on that day to which I have referred. I am not persuaded the errors Mr Gregory relies upon were material causal factors which induced or attended dismissal of application 2023/5728. The better conclusion is that Mr Gregory took deliberate action to discontinue the application for the reasons he gave in the notice, albeit at a time when he was not thinking straight and experiencing confusion and stress following his receipt of the McInnes Wilson email. Mr Gregory's action and the particular circumstances in which it was taken do not disclose an error in the dismissal of application 2023/5728.
38. That being so, I am satisfied application 2023/5728 was not dismissed in error for the purposes of s 42A(10) of the AAT Act.

1. As application 2023/5728 was not dismissed in error the discretion to reinstate the application under s 42A(1) of the AAT Act does not arise. The absence of prejudice to the Respondent and the shortness of the period in which Mr Gregory's application for reinstatement was made are not to the point. Where the Tribunal's discretionary power to reinstate an application under s 42A(10) of the AAT Act is not enlivened by material error, the power cannot be exercised.

1. Mr Gregory's application for reinstatement is refused.

1. I certify that the preceding 60 (sixty) paragraphs are a true copy of the reasons for the decision herein of Mr S. Webb, Member

....[sgn]....................................................................

[4] [2002] FCAFC 367.

[5] Walls and Comcare [2015] AATA 697 at [14]- [16]; Ristic and Secretary, Department of Social Services [2017] AATA 2 at [18]; White and Secretary, Department of Families, Community Services and Indigenous Affairs [2007] AATA 1712 at [42].

[9] Lower v Comcare [2002] FCA 1394 at [11].