Active Sports Management Pty Ltd and Industry Innovation and Science Australia

[2022] AATA 3646

Active Sports Management Pty Ltd and Industry Innovation and Science Australia [2022] AATA 3646 (1 November 2022)

Division:TAXATION AND COMMERCIAL DIVISION

File Number(s):      2019/8208

Re:Active Sports Management Pty Ltd

APPLICANT

AndIndustry Innovation and Science Australia

RESPONDENT

Decision

Tribunal:Senior Member A Poljak

Date:1 November 2022

Place:Sydney

The applicant’s reinstatement application is granted.

.................................[SGD].......................................

Senior Member A Poljak

Catchwords

PRACTICE AND PROCEDURE – interlocutory application – reinstatement of application – where application was dismissed pursuant to subsection 42A(5) of the Administrative Appeals Tribunal Act 1975 (Cth) (the AAT Act) – whether matter may be reinstated pursuant to subsection 42A(10) of the AAT Act – relevant law and circumstances considered – application reinstated.

Legislation

Administrative Appeals Tribunal Act 1975 (Cth)
Industry Research and Development Act 1986 (Cth)

Cases

Goldie v Minister for Immigration and Multicultural and Indigenous Affairs (2002) 72 ALD 652

REASONS FOR DECISION

Senior Member A Poljak

1 November 2022

1. Active Sports Management Pty Ltd, the applicant, has sought review of a decision of the delegate of the respondent made on 8 November 2019. The delegate confirmed the decision notified on 6 May 2019, that pursuant to section 27J of the Industry Research and Development Act 1986 (Cth) all the activities registered by the applicant (1.1, 1.2 and 1.3 for the 2015/16 and 2016/17 financial years) are neither core nor supporting R&D activities.

2. The matter was originally listed for hearing on 8 to 10 September 2021 but was reconstituted and subsequently vacated. The matter was relisted for hearing on 26 to 28 April 2022.

3. The applicant requested that the in-person hearing in Melbourne listed for 26 to 28 April 2022 be adjourned due to financial constraints. The respondent was agreeable to the vacation request as long as the matter was re-listed no later than September 2022 and for directions to be made: ‘

   … that your client's application is dismissed if your client does not file its written opening submissions and a list of objections, if any, to the Respondent's evidence on or before the date that is 28 days prior to the first date of the relisted hearing.

4. The hearing was vacated, and directions were made by consent on 8 April 2022, which relevantly provided:

   …

   4. On or before the date that is 28 days prior to the first date listed for hearing, the Applicant must lodge with the Tribunal and provide to the Respondent:

   a. written opening submissions; and

   b. a list of objections, if any, to the Respondent’s evidence.

   5. If the Applicant does not comply with Direction 4, the matter will be dismissed pursuant to s 42A(5) of the Administrative Appeals Tribunal Act 1975 (the AAT Act). [Definition and emphasis added]

5. The applicant did not comply with direction 4 and as such the matter was dismissed on 23 August 2022, pursuant to subsection 42A(5) of the AAT Act.

6. On 20 September 2022 the applicant filed a reinstatement application within 28 days as required by subsection 42A(11) of the AAT Act. The respondent neither opposes nor consents to the reinstatement request.

   Consideration

7. Subsection 42A(5) of the AAT Act provides:

   (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 by the Tribunal in relation to the application;

   the Tribunal may dismiss the application without proceeding to review the decision.

8. Subsection 42A(9) of the AAT Act provides that the power to reinstate is discretionary and will be exercised when the Tribunal is satisfied it is appropriate to do so. However, contrary to the applicant’s written submissions, there is no broad discretion under subsection 42A(9) of the AAT Act empowering the Tribunal to reinstate the application when it has been dismissed under subsection 42A(5).

9. The provision must be read as a whole. Subsections 42A(8) and 42A(8A) identify the circumstances when a party may apply for a matter to be reinstated, namely, those dismissed under subsections 42A(1B) and  subsection 42A(2), where the application for reinstatement was made within 28 days or a longer period as the Tribunal allows, in special circumstances. As the original application was not dismissed under either of these provisions, there is no right of application for reinstatement.

10. The only means by which this matter may be reinstated when dismissed under subsection 42A(5) is if it was dismissed in error pursuant to subsection 42A(10) of the AAT Act. In Goldie v Minister for Immigration and Multicultural and Indigenous Affairs (2002) 72 ALD 652 Justice Carr discussed how broad the concept, or the notion of ‘error’ is in the context of subsection 42A(10) the AAT Act. His Honour observed at paragraph [77]:

    In my view, there is a significant degree of desirability of persons being able to rely on the ordinary meaning conveyed by the word “error”. More importantly, s 42A(10) provides a mechanism of avoiding prolonging legal or other proceedings without compensating advantage. The mechanism is a relatively informal method of bringing a matter back to the Tribunal for reconsideration with a view to it being considered on the merits. It can be seen as a convenient, prompt and inexpensive means whereby errors which may have occurred in the exercise of the Tribunal’s default jurisdiction can be rectified. That is, any sort of error in dismissing an application summarily, whether the error be administrative error or any other error. (Emphasis added).

11. In this matter, I note that the applicant consented to the directions made on 8 April 2022, which clearly stated that the matter would be dismissed under subsection 42A(5) if it failed to comply with direction number 4. The intention of this direction was also clearly articulated to the applicant in correspondence from the respondent dated 1 April 2022, prior to the direction being made.

12. However, while the Tribunal has previously expressed that the matter was not dismissed in error, having careful consideration to the history of this matter and the applicant’s written submissions, I do not consider that this is a case where the applicant has failed to proceed with its application for review, or otherwise not progressed the matter with appropriate diligence and care. While there has been some delay in progressing the matter due to the applicant’s financial constraints, the respondent has been accommodating.

13. The applicant has obtained expert evidence and prepared submissions in support of its case, largely in line with the directions of the Tribunal. Regarding the direction not complied with, what was not provided to the Tribunal, related to objections to evidence and submissions, items which are not strictly necessary to the hearing, and the Tribunal could proceed with its review without these items.

14. When dismissing this matter, the Tribunal failed to have regard to these considerations and failed to offer the applicant an opportunity to provide submissions prior to dismissal. For these reasons, on the Tribunal’s own initiative, I find this error is sufficient to enliven subsection 42A(10) of the AAT Act.

15. The applicant’s reinstatement application is granted.  

I certify that the preceding 15 (fifteen) paragraphs are a true copy of the reasons for the decision herein of Senior Member A Poljak

..................................[SGD]......................................

Associate

Dated: 1 November 2022

Date(s) of hearing:	On the papers
Solicitor for the Applicant:	Mr H Hope, Monotti & Hope Lawyers
Solicitor for the Respondent:	Mr Z He, Clayton Utz