Tribunal: Senior Member L Kirk
The AAT refused Comcare’s interim application for dismissal of the review application for abuse of process. While the applicant’s conduct, and that of her solicitors, failed to meet some of the legal obligations they owed to the AAT, these did not meet the threshold for abuse of process.
The power to summarily dismiss an application is provided for under the AAT Act to prevent unmeritorious matters from proceeding. The question for the AAT in this matter was whether the applicant’s conduct fell within one of the categories of conduct that warranted the exercise of the Tribunal’s power to dismiss the review application for abuse of process.[1]
Comcare claimed that misleading and inaccurate information contained in medical reports before the Tribunal were the consequence of incomplete information provided to medical practitioners by the applicant and her solicitors. No steps had been taken to correct these inaccuracies and they had been subsequently relied on in contentions contained in the applicant’s written submissions to the Tribunal.
The applicant argued she had a right to a review, and that her evidence and submissions were a ‘work in progress’ with medical reports continuing to be gathered in the period prior to the hearing.
The AAT refused to dismiss the review application. The issues to be determined in the review were not yet fully defined and the parties could still submit additional evidence and amend any statements already lodged with the Tribunal. A cautious approach should be taken to dismissal of a review application at an early stage of proceedings. The deficiencies in the applicant’s evidence and written contentions were insufficient to meet the threshold required for dismissal for abuse of process under the Act.
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N.B. The applicant was ultimately unsuccessful in her substantive application for a review of the compensation claim, with the AAT upholding Comcare’s decision not to compensate her for her psychological injuries.
[1] Administrative Appeals Tribunal Act 1975 (Cth), s 42B(1)(c).