Lower v Comcare

applicant's case 9 In essence the applicant's case is that his request for withdrawal of the earlier proceeding was erroneously treated by the Tribunal as a consent for dismissal of his application within the meaning of s 42A(1) as it stood prior to 1993. This is because it is said that the applicant had not in fact consented to dismissal of the application but had consented only to withdrawal. Further, it is said that the Tribunal had no power to dismiss the original application unless with the consent of all parties and no consent to dismissal had been given. It is then said that the Tribunal member hearing the application for reinstatement should have considered that the original application was before the Tribunal and simply directed that it be referred for hearing on the basis that there had been no dismissal.

approach by the tribunal 10 The reasoning of the Tribunal in relation to the dismissal is encapsulated in the following extracts from the reasons for decision: "29. In the present matter, the applicant had been represented by a solicitor who attended the scheduled hearing on 17 August 1992, and informed the Tribunal that he was instructed to withdraw the application for review … 30. I consider that the applicant's stated inability to afford his solicitors' services and conduct the Hearing on his own behalf did not negate his consent … The application was not dismissed in error, and cannot be reinstated therefore, pursuant to sub-section 42A(10) of the Act. 31. In the course of the Hearing the possibility of the applicant's application being treated as an application for extension of time was canvassed. … 34. … The applicant has not lodged an application in writing for extension of time, and the question is not properly before the Tribunal. In any event, however, much of the evidence and the submissions in relation to the question of reinstatement, are relevant also to consideration of the question of extension of time. I am of the view that if the applicant were to lodge a written application, such application should not succeed. … 37. … In my view, on the whole of the evidence, there was no conduct by the applicant, known to Comcare, to indicate that the 1992 dismissal was not final, and that Comcare's liability was still an issue. …. 40. … I consider that in the circumstances surrounding such an extensive delay in pursuing this matter, it would not be in the public interest that an extension of time be granted." (Emphasis added)

reasoning on this appeal 11 Generally, a withdrawal of an application or proceeding in whole or part will not affect a party's right to commence new proceedings against the same party based on the same complaint. On the other hand, an order dismissing a proceeding my give rise to a res judicata or issue estoppel. This consequence may arise even where no evidence or argument is heard by a court or tribunal: see Barber v Staffordshire County Council [1996] 2 All ER 748 at 756; Khan v Golechha International Ltd [1980] 1 WLR 1482; SCF Finance Co Ltd v Masri (No 3) [1987] QB 1028 at 1047 and The Owners of the Cargo of the "Kronprinz" v The Owners of the "Kronprinz" (1887) 12 App Cas 256 at 259-260. 12 In support of his submissions on the effect of the dismissal order, counsel for the applicant referred to the decision of the Tribunal in Re Stevenson and Commonwealth of Australia (1987) 7 AAR 343. In that case the applicant applied in 1981 for review of a determination that he was no longer entitled to compensation but withdrew his application before it was heard. In 1985, he requested the Commissioner to reconsider his earlier determination but the Commissioner decided not to vary or revoke it. The applicant sought review of the Commissioner's later decision by the Tribunal. However, the Tribunal decided that the 1981 application was no longer a subsisting or effective application and considered it had no power to review it. That finding is, in my view, applicable in the present circumstances. The Tribunal considered that the applicant could bring a new application for review of the 1981 decision provided he could obtain an extension of time under s 29(7) of the Act. In the circumstances of that case, the Tribunal decided that no extension should be granted because no satisfactory explanation was given for delay and the respondent would suffer prejudice. The Tribunal noted that an application for an extension had been made in that case and it proceeded to determine that issue adversely to the applicant. 13 There is an important and well settled principle that a withdrawal of a proceeding is not the same as a determination of a proceeding, as the New South Wales Court of Appeal pointed out in Schipp v Herfords Pty Ltd (1975) 1 NSWLR 412. That case concerned a claim for workers' compensation where, shortly prior to decision by the District Court, the applicant had sought to withdraw the application. The primary Judge refused the application and proceeded to make a decision adverse to the applicant. The Court of Appeal upheld the appeal and decided that the primary Judge was not entitled to make the determination because upon withdrawal, the application ceased to exist and therefore the Judge's decision should be set aside as there was nothing upon which it could operate. 14 After analysing the authorities on this point, Samuels JA (with whom Reynolds JA agreed) said at 423-424: "It seems correct to say that, in the superior courts at least, there has commonly existed the right to withdraw a claim before decision. Certainly, the right has been restricted in various ways, no doubt in pursuance of a policy designed to prevent the vexation of defendants. … It may be regarded as a substantive right, in the sense in which I have sought to interpret that term, although on occasions required to yield to the exigencies of particular policy. But, unless in a particular court at a particular time it has been thought to restrict it, I would regard it as a right which every claimant is entitled to exercise. … In my opinion, therefore, the worker here was entitled to withdraw his application without leave. Accordingly, in refusing to permit him to do so the learned judge fell into error of law." 15 Mahoney JA also reviewed the authorities and concluded at 430-431: "There is … strong authority which would be applicable to the present case, for the view that, if the matter be governed by the general law, the applicant had the right to withdraw the original application, without first obtaining the leave of the Commission." 16 See also Boal Quay Wharfingers Ltd v King's Lynn Conservancy Board [1971] 1 WLR 1558 at 1569; R v Hampstead and St Pancras Rent Tribunal; Ex parte Goodman [1951] I KB 541. The principle in general terms is applicable to both courts and tribunals: see Boal Quay at 1569, where Salmon LJ said: "Whenever an application is made to a tribunal or to the courts for that matter, as a rule, there is nothing to compel you to go on with it." 17 In the present case there is nothing in the Act as it stood at the relevant time in 1992 to prevent or restrict withdrawal of an application before the Tribunal. Such withdrawal is a unilateral act and does not require the consent of the other party. Accordingly, consistent with the above principles, once the withdrawal was presented to the Tribunal the application ceased to exist and therefore could not be dismissed. 18 The dismissal of the original application purported to be by consent in circumstances where in my opinion, on the material before me, there was no consent to dismissal, but only a request to withdraw. It was argued that there is no substantive difference having regard to the evidence before the Tribunal, but, in my view, the distinction is significant because s 42A, as it then stood, expressly required consent of all parties where the Tribunal seeks to dismiss the application in circumstances where no review had been undertaken. Accordingly, the order dismissing the application was, in my view, based on an erroneous premise. It was contrary to the section and was ineffective. 19 However, the above conclusion does not advance the applicant's case because the power to reinstate which is sought to be invoked by the applicant is that in s 42A(10) and this is conditioned on there having been a dismissal of the application. In my view, since there has been no dismissal, the power to reinstate is not available to the applicant. On analysis, the position is that because the application has been withdrawn, there is no longer any subsisting application which can be reinstated or listed for hearing by the Tribunal. 20 The amendments to the Act which became operative in 1993 and in particular ss 42A(1A) and 42A(1B), in my view, have no bearing on the determination of the present appeal. They are not relevantly inconsistent with the law as it stood prior to that date. Rather, the amendments in ss 42A(1A) and (1B) go further by providing that, upon notification of withdrawal, the proceeding is to be treated as if it were a dismissal of the proceedings with the ensuing consequences which are set out in subss (6), (8), (9) and (10). That is to say s 42A proceeds on the basis that thereafter what is not in fact a dismissal shall be deemed to be a dismissal. The provision is not expressed to have a retrospective effect. 21 The applicant has succeeded on the basis that there was an error of law by the earlier Tribunal in purporting to make an order of dismissal by consent when there was no consent to such an order and therefore no dismissal. Accordingly, the determination of the later Tribunal should be set aside because it proceeded on the incorrect basis that there had been a dismissal by the earlier Tribunal. 22 The orders of the Court are that the decision of the Tribunal should be set aside and the matter be remitted to the Tribunal for determination in accordance with these reasons. In view of the above reasons I make no order as to costs. I certify that the preceding twenty-two (22) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Tamberlin.

Solicitor for the Respondent: Australian Government Solicitor