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.