In Fitzsimmons and Comcare  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
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
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
Mr Fitzsimmons also argued that his withdrawal was also
compounded by his depression, which affected his understanding of
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
Mr Fitzsimmons's reliance on the authority in Re
Stevenson and Comcare  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  FCAFC
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 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
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.
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.
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