Abeysinghe Herath Mudiyanselage and Secretary, Department of Social Services (Social services second review)
[2024] AATA 1016
•6 May 2024
Abeysinghe Herath Mudiyanselage and Secretary, Department of Social Services (Social services second review) [2024] AATA 1016 (6 May 2024)
Division:GENERAL DIVISION
File Number: 2023/4165
Re:Susantha Ravindras Abeysinghe Herath Mudiyanselage
APPLICANT
AndSecretary, Department of Social Services
RESPONDENT
DECISION
Tribunal:Senior Member D. J. Morris
Date:6 May 2024
Date of written reasons: 9 May 2024
Place:Melbourne
Pursuant to s 42A(5)(a) of the Administrative Appeals Tribunal Act 1975, the application is dismissed for the Applicant failing to proceed, without the Tribunal proceeding to review the decision.
................................[signed]...................................
Senior Member D. J. Morris
Catchwords
PRACTICE AND PROCEDURE – applicant was self-represented - applicant objected to respondent being legally represented – Tribunal asked applicant if he wanted adjournment to seek legal representation – applicant said he wanted respondent to appear in person or be represented by an officer who was not a lawyer – Tribunal explained that parties are entitled to represent themselves or be represented by an advocate or lawyer – was another remedy available – was the applicant afforded procedural fairness – Tribunal decided condition imposed by applicant was intolerable – matter dismissed for applicant failing to proceed – written reasons provided
SOCIAL SERVICES – pensions, benefits and allowances – jobseeker payment cancelled because applicant failed to report – whether exceptional circumstances exist
Legislation
Administrative Appeals Tribunal Act 1975 (Cth)
Social Security Act 1991 (Cth)
Cases
Andelman vSecretary, Department of Families, Housing, Community Services and Indigenous Affairs (2011) 213 FCR 345
Charara v Commissioner of Taxation (2016) 69 AAR 97
Guse v Comcare (1997) 49 ALD 288Secondary materials
Administrative Appeals Tribunal 5th Edition; Dennis Pearce; Lexis Nexus 2020, pp 331-332
REASONS FOR DECISION
Senior Member D. J. Morris
9 May 2024
The Applicant, Mr Abeysinghe, was dissatisfied with a decision of the Social Services and Child Support Division (SSCSD) of the Tribunal dated 4 May 2023 which affirmed a decision of Services Australia (part of the Department of Social Services) on 4 November 2021 to cancel his jobseeker payment from 7 October 2021.
Procedural history
On 10 June 2023 the Applicant, as he is entitled to do, sought a second review of the first review decision, to be heard in the General Division of the Tribunal.
In accordance with the usual practice of the Tribunal, the parties engaged in alternative dispute resolution meetings before Conference Registrars of the Tribunal, without arriving at an agreed outcome. Accordingly the matter was listed for substantive hearing.
Commencement of hearing – 28 March 2024
On 28 March 2024, the Tribunal convened a hearing by video. The Applicant appeared by telephone, and the Respondent was represented by Ms Doslo, a legal officer employed by the Department of Social Services (the Department). An interpreter in the Sinhalese language provided assistance. At the commencement of the hearing, Mr Abeysinghe advised that he had requested a face-to-face hearing, and further advised that he did not have a computer to enable a video hearing. The Applicant also asked that the presiding member appear in person in the hearing room.
The Tribunal asked the Applicant why he wanted the presiding member to be present in person. Mr Abeysinghe said he felt that a Melbourne-based member would have a ‘better understanding of Centrelink matters.’ The Tribunal rejected that as a sufficient reason, but agreed that the matter would be adjourned to enable the hearing to be in person at the Tribunal’s hearing rooms in Melbourne. The Tribunal reiterated that the Applicant and Ms Doslo would appear in person at the resumed hearing, and that an associate of the Tribunal would be present to assist. The presiding member would appear by video link. The Applicant agreed to this arrangement.
The Respondent lodged documents as required under s 37 of the Administrative Appeals Tribunal Act 1975 (‘the AAT Act’), and supplementary documents under s 38AA of that Act. Mr Abeysinghe lodged a number of documents relating to his interactions with the Department and proof of past applications for employment.
Resumed hearing – 6 May 2024
On 6 May 2024, the hearing of the matter resumed. Again the Tribunal was assisted by an interpreter in the Sinhalese language. The Applicant was present, as was Ms Doslo. Also in the hearing room, but not at the table, was Mr James Henderson, another legal officer of the Department.
At the commencement of the hearing, Mr Abeysinghe said that there were two other people present and that, “I only want to speak in the presence of a Centrelink officer and the Member.”
The Applicant then asked the Tribunal who the other persons present were. The Tribunal explained that Ms Doslo was representing the Secretary of the Department, as she did at the first day of the hearing, and that Mr Henderson is a legal officer of the Department.
Mr Abeysinghe submitted that he had no knowledge of legal matters and only wanted to speak in the presence of a Centrelink officer who was not a lawyer.
The Tribunal explained that the Applicant was entitled to represent himself, but he could also elect to be represented by a lawyer or another advocate. It was also explained that the Secretary is conventionally represented at these hearings because he logically cannot appear personally before the Tribunal in all social services matters.
Mr Abeysinghe said, “Let me know when the Secretary can come, and I will come that day.”
The Tribunal explained that the Secretary would not be appearing.
The following exchange then occurred:
Applicant:It is unreasonable to have two lawyers representing the Department. I am not prepared to continue this today.
Tribunal:Are you wanting to withdraw your application?
Applicant:No. I am not withdrawing. I want to postpone this to a future date.
Tribunal: It was made clear to you on 28 March that a lawyer would be representing the Secretary because the same lawyer represented the Secretary that day. Are you wanting to adjourn so you can have someone represent you?
Applicant:No, I want to represent myself.
Tribunal:Ok. So why can’t we proceed today?
Applicant: I am an ordinary citizen. I have no legal knowledge. I have no knowledge to argue with them.
Tribunal:Applicants are often self-represented. It is general practice that the Respondent is legally represented.
Applicant:I am not prepared to speak in the presence of lawyers.
Tribunal:Ms Doslo, is there any submission you would like to make?
Respondent: Prior to this hearing, the Applicant was represented by a solicitor and counsel in the ADR process. Mr Abeysinghe was aware I would be appearing in person today. One alternative is for the Respondent to appear by video. But we do think that today should go ahead.
Tribunal:Whether or not the Applicant was represented by lawyers at conference stage is not relevant to this hearing, except to the extent that the Applicant has had the benefit of legal advice on the questions before the Tribunal. I reassure you that you won’t be put at a disadvantage as far as I am concerned.
Applicant:Whatever you say, I am not prepared to continue with this in the presence of lawyers. I need an officer of the Department who is not a lawyer.
Tribunal:I understand what you say. Just as the Secretary cannot decide how you are represented; you cannot decide how the Secretary is represented. If you had a lawyer who the Respondent objected to, I would not entertain that either. The Secretary is entitled to defend his position that your jobseeker payment was correctly cancelled. You are entitled to say why you think that decision was unfair and that there are exceptional circumstances that it should not have occurred.
Applicant:I said repeatedly that I cannot be in the presence of lawyers. It is affecting me. The Department was wrong to cancel my payment. I am only prepared to speak in the presence of officers who are not lawyers.
Tribunal:In that case I am dismissing your application under s 42A(5)(a) of the AAT Act for failure to proceed. I will send you and the Respondent a copy of written reasons, so you know the basis of the reasons to dismiss.
Applicant:…. (inaudible)
Tribunal:Sit down, Mr Abeysinghe. The microphone cannot pick up what you say. Thank you.
Applicant:An ordinary person cannot argue with two lawyers. If you dismiss, I will go to a Member of Parliament.
Tribunal:That is your right. I reiterate that a party cannot determine how another party is represented. My decision is that, by your actions, you have failed to proceed, therefore I dismiss your application without proceeding to review the decision. That means that the Social Services and Child Support Division decision is itself affirmed. It is up to you whether you take matters to the Federal Court.
Applicant:Thank you very much, Department and the representatives. I am going to take it up and make representations to Parliament.
DISCRETIONARY POWER TO DISMISS
Section 42A(5) of the AAT Act provides:
Dismissal if applicant fails to proceed or fails to comply with Tribunal’s direction
(5) If an applicant for a review of a decision fails within a reasonable time:
(a)to proceed with the application; or
(b)to comply with a direction of the Tribunal in relation to the application;
the Tribunal may dismiss the application without proceeding to review the decision.
Generally, the Tribunal is reluctant to dismiss an application on the basis of an applicant failing to proceed. The case law generally focusses on s 42A(5)(b) where a party has persistently failed to comply with a direction. In Guse v Comcare (1997) 49 ALD 288, Burchett J held that the dismissal power should be regarded as one of last resort and only after giving the non-complying party an opportunity to indicate why the direction had not been followed. In Charara v Commissioner of Taxation (2016) 69 AAR 97 (‘Charara’), where Wigney J overturned a Tribunal decision dismissing an application, the Court set down the following principles as being applicable:
·The discretionary power is only enlivened if an applicant fails to proceed with the application and fails to do so ‘within a reasonable time;’
·The discretion is to be used ‘sparingly and as a matter of last resort;’
·The applicant must be accorded procedural fairness;
·The explanations and arguments put forward by the applicant are mandatory considerations.
The Court also held it is a relevant factor as to whether an applicant is self-represented, as this may increase the possibility that he or she might not understand the implications of their conduct. However, if it is apparent on the facts that an applicant is not pursuing the application, the Tribunal is entitled to exercise the power to dismiss: see the useful discussion of the principles by Jagot J in Andelman vSecretary, Department of Families, Housing, Community Services and Indigenous Affairs (2011) 213 FCR 345.
In this case, Mr Abeysinghe’s objection was that a legal officer of the Department represented the Respondent. Putting aside the first suggestion of the Applicant that he was content for there to be an adjournment to enable the Secretary himself to personally appear (a proposition that Mr Abeysinghe did not pursue), the Tribunal asked the Applicant if he would like the matter adjourned to enable him to obtain legal representation. He declined that offer.
Parties before the Tribunal are entitled to appear in person or be represented. This is clear from s 32 of the AAT Act which provides that, except in the SSCSD, parties may appear in person or be represented by another person. Section 32(4) of the AAT Act says further that where a person is required to appear in a proceeding, the Tribunal may give permission for that person to be represented by another.
Section 2A of the AAT Act sets out the objective of the Tribunal. Among the other elements of the objective is a requirement that a mechanism of review must be accessible, fair, just, economical, informal and quick. The Tribunal notes that it was an administrative error that the first day of the hearing of Mr Abeysinghe’s matter on 28 March 2024 was convened by video. A subsequent check of the records showed that he had clearly requested a face-to-face hearing. Such a hearing was therefore arranged for 6 May 2024. This delay was regrettable.
The Applicant knew that the Respondent would be represented by a legal officer, because the Secretary was so represented at the previous hearings, and it was emphasised to him that he and Ms Doslo would be present in the hearing room at the reconvened hearing. Although the Applicant in the transcript above refers to the Secretary being represented by two lawyers, Mr Henderson was not in fact appearing for the Respondent, he was sitting at the back of the hearing room as an observer.
But, in any event, as the Tribunal explained, it is not competent for a party to object to how another party is represented. The sole exception to this would be if a party wanted to raise a perceived conflict of interest, in which case that proposition should be put to the Tribunal for determination. The Tribunal stressed at the hearing that the representation of the Applicant was a matter for him, as was the representation of the Respondent.
The principles in Charara outlined above are, it is evident, mainly centred around the Tribunal exercising the discretion to dismiss a matter for non-compliance with a direction. (In that case, the direction the learned Senior Member in the Tribunal relied on was that Mr Charara, who had absented himself from the hearing room, should go back into the witness box.) That is not the case here. Mr Abeysinghe has been compliant and lodged relevant documents with the Tribunal for the hearing. But he declared that he would not proceed with the hearing because he insisted that the Respondent have a representative who was not a lawyer. That is a condition that the Tribunal cannot tolerate.
Given that the Applicant was given an opportunity to have the matter adjourned in order that he obtain legal representation, but declined, the Tribunal decided that the hearing of his application in these circumstances could not proceed. Mr Abeysinghe reiterated his position that he would not participate further unless the Respondent changed his representative.
In regard to exercising the discretion in s 42A(5), the learned Judge said in Charara at [79]:
The discretion must only be exercised sparingly and as a matter of “last resort”: Guse v Comcare [1997] FCA 140; (1997) 49 ALD 288 at 291. That is because it involves denying an applicant a hearing of the merits of the application. Because dismissal under s 42A(5) is a matter of last resort, the Tribunal must consider whether dismissal is the proper remedy, or whether it would be more appropriate to take some other course, such as adjourning the proceeding or making some other order to secure compliance: Guse v Comcare at 291. Again, a failure to do so would most likely constitute a misapplication of s 42A(5).
The Tribunal made clear at the hearing that applicants before it are often self-represented. The procedures of the Tribunal accommodate that, as well as the fact that many applicants are not legally trained, including those who choose to be represented by lay advocates. This does not, in the Tribunal’s view, instil an inherent disadvantage; any review of the outcomes of decisions shows that self-represented applicants succeed before the Tribunal in having decisions set aside or varied on a regular basis.
The Tribunal considers that, in this case, the Applicant was well aware the Respondent would be legally represented. He had the opportunity to seek an adjournment, which he declined. The condition he sought to impose on the conduct of the hearing could not be accepted. The Tribunal did not consider that there was another available remedy in the circumstances, the Applicant having declined the offer of an adjournment. It would be beyond power for the Tribunal to make any order regarding how a party is to be represented, and I consider it would be beyond power for the Tribunal to direct Mr Abeysinghe to continue his application. The burden for actively pursuing an application for merits review lies with an applicant.
In these circumstances, the Tribunal formed the view that it was satisfied the application should be dismissed for failure to proceed. The Applicant had fair opportunity to respond to that, and did not, other than to advise the Tribunal that he might take the matter further. The Tribunal is satisfied that he understood the implications of his conduct.
DECISION
Pursuant to s 42A(5)(a) of the Administrative Appeals Tribunal Act 1975, the application is dismissed for the Applicant failing to proceed, without the Tribunal proceeding to review the decision.
I certify that the preceding 29 (twenty -nine) paragraphs are a true copy of the reasons for the decision herein of Senior Member D. J. Morris
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Associate
Dated: 9 May 2024
Date(s) of hearing: 6 May 2024 Applicant: Self Represented Solicitor for the Respondent: Ms Stefana Doslo
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