//
you're reading...
Australian Law and Politics

Second Thoughts Do Not Justify Reinstatement


In Fitzsimmons and Comcare [2008] AATA 919, the Administrative Appeals Tribunal (Tribunal) rejected Mr Fitzsimmons’s application to reinstate his claim on the basis that it was ‘dismissed in error’ under section 42A(10) of the Administrative Appeals Tribunal Act 1975 (AAT Act).

BACKGROUND

Mr Fitzsimmons appealed a decision by Comcare that it was not liable to pay compensation for viral hepatitis B, allegedly contracted as a result of his employment with the Australian Customs Service.

In August 2006, Mr Fitzsimmons’s lawyer, Mr Stockley, wrote to the Deputy Registrar of the Tribunal seeking withdrawal of his application on the basis that there was insufficient evidence to directly support the claim.

On 25 August 2008, Mr Fitzsimmons wrote to the Tribunal requesting that his application be reinstated.

Mr Fitzsimmons argued that the application should be reinstated on the basis that it had been dismissed in error because Mr Stockley had not investigated all possible causes of hepatitis B.

Mr Fitzsimmons also argued that his withdrawal was also compounded by his depression, which affected his understanding of the withdrawal.

DECISION

The Tribunal found that Mr Fitzsimmons had full knowledge of the reasons and consequences of withdrawing his application.

In coming to this conclusion, the Tribunal considered the following matters:

Mr Fitzsimmons’s reliance on the authority in Re Stevenson and Comcare [2005] AATA 870 that if an applicant has an arguable case, they should not be denied the opportunity to have their claim reviewed.

The scope of section 42A(10) of the AAT Act extends to errors by a party or a party’s representative: Goldie v Minister of Immigration and Multicultural Affairs [2002] FCAFC 367.

  • Whether Mr Stockley was at fault for not fully investigating the possibility that the hepatitis B may have been contracted through sweat exchanges.
  • Whether Mr Fitzsimmons had an awareness of the consequences of withdrawing his application and had given fully informed consent to the withdrawal.
  • The relevance of Mr Fitzsimmons’s depression.

The Tribunal noted that Re Stevenson was a case that was decided in relation to applications for extension of time rather than applications for reinstatement.

Despite the fact that his solicitor had not fully investigated all possible ways in which the virus could have been contracted, the Tribunal considered that at the time of the withdrawal there ‘was no decisive evidence either way’. Therefore, it noted, Mr Stockley had recommended that Mr Fitzsimmons pursue a claim for depression instead.

The Tribunal found that Mr Fitzsimmons accepted Mr Stockley’s advice, and had discussed it with his wife. The Tribunal did not accept that any subsequent medical evidence, or legal advice to the contrary, did not amount to an error in relation to the decision to withdraw the application.

Mr Fitzsimmons’s depression was not found to have influenced his knowledge of the consequences of withdrawal.

IMPLICATIONS

This case demonstrates that merely having second thoughts about a decision to withdraw is not a sufficient ground to have a claim reinstated. If an applicant is fully aware of the reasons for withdrawal and its implications and proceeds to withdraw the application in that knowledge, the Tribunal is unlikely to allow reinstatement of their application.

About Craig Hill

Teacher and Writer. Writing has been cited in New York Times, BBC, Fox News, Aljazeera, Philippines Star, South China Morning Post, National Interest, news.com.au, Wikipedia and others.

Discussion

No comments yet.

Leave a Reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out /  Change )

Twitter picture

You are commenting using your Twitter account. Log Out /  Change )

Facebook photo

You are commenting using your Facebook account. Log Out /  Change )

Connecting to %s

If you liked what you just read, click "Subscribe" to become a follower of the Craig Hill site. You will receive an email each time a new post is published.

Join 15,358 other followers

An archive of all my old posts

Follow me on Twitter

Most Recent Posts Post on My Blog About China: China News

China’s new aircraft carrier Fujian: Hit or miss 

China’s new aircraft carrier Fujian: Hit or miss 

While the United States was wrapping up its Valiant Shield 2022 exercise on 17 June, China launched its third aircraft carrier with all the fanfare. The launch was postponed twice due to logistical and technical issues. The aircraft carrier has been named Fujian with the hull number 18. It has been under construction at the world’s largest […]

In Beijing’s BRICS summit, Putin is back on the world stage

In Beijing’s BRICS summit, Putin is back on the world stage

When Russian President Vladimir Putin dials into the virtual BRICS summit hosted by Beijing on Thursday, it will be his first time attending a forum with the heads of major economies since launching an invasion of Ukraine earlier this year. For Putin, this could offer a welcome picture: his face beamed onscreen alongside other leaders […]

U.S. not seeking to create “Asian NATO,” defense secretary says

U.S. not seeking to create “Asian NATO,” defense secretary says

The U.S. Defense Secretary emphasized partnership as the main priority for the American security strategy in the Indo-Pacific during a keynote speech on Saturday. However, Lloyd Austin stressed that the U.S. does not seek to create “an Asian NATO.” Austin spoke for half an hour at the First Plenary Session of the Shangri-La Dialogue 2022 […]

Why Chinese warplanes are ‘playing chicken’ with US allies

Why Chinese warplanes are ‘playing chicken’ with US allies

Chinese warplanes are targeting US allies in a high-stakes “game of chicken” over the Asia-Pacific that risks spiraling out of control — raising the risk of an incident that could spark war. That is the view of analysts who warn increasingly aggressive maneuvers by Chinese fighter jets — accused of endangering both Canadian and Australian […]

Has China lost Europe?

Has China lost Europe?

In April and May, as Russia’s war in Ukraine entered its third month, China sent a special envoy to meet with officials in eight central and eastern European countries. The timing was not coincidental: in the two months since Russia had launched its invasion, China’s standing in Europe had sunk to new lows. European governments […]

Xi’s re-election: Opportunity for the world, curse for China

Xi’s re-election: Opportunity for the world, curse for China

China is gearing up for the 20th National Congress of the Chinese Communist Party to be held later this year. According to the consensus view, President Xi Jinping’s historic bid for a third term as the party’s General Secretary is assured. The Chinese President and General Secretary of the Chinese Communist Party (CCP), Xi Jinping, doesn’t have much […]

China: A political view

China: A political view

I read Dr Mohamad Zreik[2] interesting and comprehensive article on the growth of China’s economy. It has come a long way since the days of Mao Tse Tung and the days of his communist experiment, the Long March, when millions died. The years that followed Mao set the path from which the economy took off […]

Math books outrage China with ‘ugly, sexually suggestive, pro-American’ images

Math books outrage China with ‘ugly, sexually suggestive, pro-American’ images

China has ordered a nationwide review of school textbooks after illustrations deemed ugly, sexually suggestive and secretly pro-American caused public uproar. The news has alarmed some experts and parents who fear the campaign is turning into a political witch hunt and represents an unnecessary tightening of the country’s already stringent censorship of cultural publications. The […]

Why Biden didn’t mean what he said about Taiwan

Why Biden didn’t mean what he said about Taiwan

The White House has been left scrambling a little after President Joe Biden suggested on May 23, 2022, that the US would intervene militarily should China attempt an invasion of Taiwan. The comment, which Biden made during a trip to Japan, was taken by some observers as a deviation from the official US line on […]

United States outmanoeuvres Russia once again? 

United States outmanoeuvres Russia once again? 

In a recent briefing, the US Director of National Intelligence (DNI), Avril Haines warned, “I would characterize it as the Russians aren’t winning, and the Ukrainians aren’t winning, and we’re at a bit of a stalemate here.” So, where is the Russia-Ukraine war heading? What is Russian President Putin planning next? Is Europe ready for […]

%d bloggers like this: