Katterns v Comcare

REASONS FOR JUDGMENT 1 The appellant was injured in a motor vehicle accident which occurred on 18 August 1990. He was at that time involved in military service. I do not mean by that to indicate any determination as to liability for his injury. He applied for compensation. On 28 February 2001, the relevant authority refused his claim. He applied to the Administrative Appeals Tribunal (the "Tribunal") for review of that decision. The Tribunal gave directions as to the conduct of the matter, but for reasons into which I need not go, the appellant failed to comply with them. As a result the application was dismissed on 20 May 2002. In dismissing the application, the Tribunal purported to act pursuant to subs 42A(5) of the Administrative Appeals Tribunal Act 1975 (Cth), which provides: If an applicant for a review of a decision fails within a reasonable time: (a) to proceed with the application; or (b) to comply with a direction by the Tribunal in relation to the application; a presidential member or senior member, on behalf of the Tribunal, may dismiss the application without proceeding to review the decision. 2 In dismissing the application, the Tribunal proceeded ex parte without notice to the parties. As a result they were not heard on the question of whether or not the application should have been dismissed. The appellant was given no opportunity to explain his failure to comply with the directions or to demonstrate the strength of his case, matters which would normally have been relevant to such a decision. The Tribunal must have proceeded upon the basis that it was entitled to proceed ex parte and ex mero motu pursuant to subs 42A(5). I see no justification for that view. I do not go so far as to say that the Tribunal may not, in an appropriate case and of its own notion, give notice of an intention to proceed to dismiss the proceedings. It could only do so after giving notice to the relevant parties and extending to them an opportunity to be heard. It seems to me that the Tribunal erred in proceeding as it did. Subsection 42A(10) 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. 3 An application was made to the Tribunal pursuant to this subsection, but it was unsuccessful. Although there is a little uncertainty as to the nature of proceedings before the Tribunal on that occasion, it seems to be common ground that the application was unsuccessful because the Tribunal member was unable to identify any error of law in what had happened. As I have said, I consider that there was certainly a significant procedural error. I have no difficulty in categorising it as an error for the purposes of subs 42A(10). It seems to me, therefore, that the Tribunal erred in proceeding upon the basis that there was no demonstrated error. 4 The matter is now before me pursuant to s 44 of the Administrative Appeals Tribunal Act 1975 (Cth), which provides for appeals on questions of law. There is, in my view, a question of law, namely, the correctness or otherwise of the Tribunal's decision that there was no demonstrated error. I consider that the Tribunal erred in law in so finding and that a question of law is therefore raised for the purposes of subs 44(1). The proper order is to set aside the decision of 20 May 2002 and to remit the matter to the Tribunal in order that it may proceed further with the application to reinstate the proceedings. There will be no order as to costs. I certify that the preceding four (4) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Dowsett.