Ahmed and Secretary, Department of Education, Employment and Workplace Relations
[2008] AATA 962
•29 October 2008
CATCHWORDS – SOCIAL SECURITY – PRACTICE AND PROCEDURE – notice of “Interlocutory hearing – Dismissal application” – whether a proceeding in respect of an application for the review of a decision – failure to attend hearing of proceeding – whether notice given – Tribunal advised of change of address by respondent – history of failure to attend – application for review of decision dismissed.
Administrative Appeals Tribunal Act 1975 ss 3(1), 25(1), 28(1AC), 33(2), 34A(1), 29(1), 29(7), 39, 41, 42A(2),42A(3), 42A(3A), 42A(7), 68AA, 69A(2), 69A(3)
Administrative Appeals Tribunal Regulations 1976 r 18(1)
Federal Proceedings (Costs) Act 1981, s 10A
Freedom of Information Act 1982, s 62(2)
Safety, Rehabilitation and Compensation Act 1988 s 67
Social Security Act 1991 ss 629(1)(b) and (4)
Federal Commissioner of Taxation v Scully (2000) 201 CLR 148; 74 ALJR 504; 169 ALR 459; 2000 ATC 4111; 43 ATR 718
Sherritt Gordon Mines Ltd v Federal Commissioner of Taxation (1976) 10 ALR 441
DECISIONS AND REASONS FOR DECISIONS [2008] AATA 962
ADMINISTRATIVE APPEALS TRIBUNAL )
) 2008/2002
GENERAL ADMINISTRATIVE DIVISION )Re:LIBAN MOHAMED AHMED
Applicant
And:SECRETARY, DEPARTMENT OF EDUCATION, EMPLOYMENT AND WORKPLACE RELATIONS
Respondent
DECISION
Tribunal: Deputy President S A Forgie
Date: 29 October 2008
Place: Melbourne
Decision:The Tribunal:
dismisses the application lodge on 8 May 2008 by the applicant for review of a decision of the respondent affirmed by the Social Security Appeals Tribunal on 18 April 2008.
S A FORGIE
Deputy President
When Mr Ahmed failed to appear, either in person or by a representative at a conference listed for hearing on 4 July 2008, the Tribunal’s Registry sent him notice of another conference to be held on 25 July 2008. He also failed to appear at that and the Registry sent him a notice that a proceeding described as “Interlocutory hearing – Dismissal application” had been listed on 27 August 2008. That notice is intended to convey to an applicant that, at that hearing, the Tribunal will consider whether it should exercise its power to dismiss an application under s 42A(2)(a) of the Administrative Appeals Tribunal Act 1975 (AAT Act) for his failure to appear at the conferences. It specified the time, date and place of the hearing and was sent to him at an address Mr Ahmed gave the Tribunal in his application. Mr Ahmed also failed to attend on that day but I understood from
Todd, who appeared on behalf of the Secretary for the Department of Education, Employment and Workplace Relations (Secretary) at the hearing, that Mr Ahmed had notified Centrelink of a change in his address. I arranged for another notice of what was again described as “Interlocutory hearing – Dismissal application” to be sent to that address. The hearing was held on 22 September 2008. Mr Ahmed did not appear although he had contacted the Tribunal’s Registry before the hearing date.
Noonan, who attended the hearing on that day on behalf of the Secretary, advised that Centrelink’s records showed that Mr Ahmed had changed his address from 17 July 2008.
Mr
Mr
I decided that Mr Ahmed had been given appropriate notice of the conference, which is an alternative dispute resolution process (ADR process) listed for 4 July 2008 and dismissed his application for review under s 42A(2)(a) of the AAT Act on 22 September 2008. At the time, I had some doubt whether a hearing described as an “Interlocutory hearing – Dismissal application” could be regarded as a hearing of a proceeding in respect of an application for review when the AAT Act makes no provision for an application of that sort. I advised Mr Noonan, who appeared on behalf of the Secretary at the hearing, that I would consider that matter further.
BACKGROUND
Mr Ahmed applied to the Tribunal for review of a decision that newstart allowance was not payable to him for an eight week period because he was unemployed due, either directly or indirectly, to his voluntary act and his voluntary act was not reasonable. The decision was made under s 629(1)(b) having regard to s 629(4) of the Social Security Act 1991 (SS Act) by a delegate of the Secretary.
also applied for a stay of the operation or implementation of the decision pending the hearing and determination of the application for review. He made that application under s 41 of the Administrative Appeals Tribunal Act 1975 (AAT Act) and later telephoned to ask that both matters be heard quickly as he was in straitened circumstances.
Mr Ahmed
Mr Ahmed gave an address in the boxes marked “Your address” on both of his applications. The hearing of his application for a stay was listed and he was sent a notice of the hearing. He attended the hearing and the Tribunal ordered that the implementation of the decision be stayed until the hearing and determination of Mr Ahmed’s application.
Under s 34A(1)(a) of the AAT Act, the President may “direct the holding of a conference of the parties or their representatives in relation to the proceeding”. In light of the opening words to s 34A(1), the reference to the “proceeding” must be taken to be a reference to the application for review. Section 34A(1)(a) goes on to make it clear, though, that the proceeding may be in relation to a “part of the proceeding or any matter arising out of the proceeding” and not necessarily in relation to every issue raised by the application for review. The Tribunal gave Mr Ahmed notice of the conference when it wrote to him at the address he had provided:
“This application has been listed as shown below:
Conference
Date: 4 July 2008
Time: 2.00PM
Location: Southbank”
The Tribunal’s address at Southbank appeared at the foot of the letter.
When Mr Ahmed did not attend the conference, the Tribunal sent him another notice in a similar form to the same address. It referred to a “Conference by Telephone” on 25 July 2008 and the location as a “Conference Registrar … by telephone”. It was dated 7 July 2008. The following statement was made after these details had been given:
“Failure to appear or be available by telephone may result in the matter being dismissed for non-appearance.”
When, at the appointed time, Mr Ahmed did not answer the telephone when he was called on the number he had written on both of his application forms, the Tribunal sent Mr Ahmed the following notice to the address he had given:
“This application has been listed as shown below:
Interlocutory hearing – Dismissal application
Date: 27 August 2008
Time: 10.30AM
Location: Southbank”
Mr Ahmed did not attend the Tribunal at the time stated on the notice. Mr Todd who appeared for the Secretary advised me that Mr Ahmed had a new address according to the records kept by Centrelink. That was not the address that
had shown against the words “Your address” on the application forms and not an address he had told the Tribunal about. I did not dismiss the application on that day but directed that there be another hearing on 22 September 2008 and that
be sent another notice about the hearing but that it be sent to his new address.
Mr Ahmed
Mr Ahmed
Mr Ahmed called the Tribunal on 16 September 2008 regarding the notice he had received about the hearing on 22 September 2008. He was told that he would be asked why he had not attended the earlier proceedings and he advised that he would attend. Mr Ahmed did not attend the hearing of the proceeding and did not answer his telephone when he was called after the hearing had started. I dismissed his application for failure to appear at the conferences listed for 4 July and 25 July 2008. After the conclusion of the hearing, Mr Ahmed telephoned the Tribunal’s Registry to advise that he was thinking about withdrawing his application. He was told that the Tribunal had tried to call him without success and that his application had been dismissed.
CONSIDERATION
The power to dismiss an application for review
The Tribunal’s power to dismiss an application for review of a decision is found in s 42A of the AAT Act. It takes two forms although there are circumstances in which the Tribunal is taken to have dismissed an application for review.[1] Section 42A(2)(a) is the form relevant in this case and, in so far as it is relevant, it provides:
“If a party to a proceeding before the Tribunal in respect of an application for the review of a decision (not being the person who made the decision) fails either to appear in person or to appear by a representative at a directions hearing, or an alternative dispute resolution process under Division 3, held in relation to the application, or at the hearing of the proceeding, the Tribunal may:
(a)if the person who failed to appear is the applicant – dismiss the application without proceeding to review the decision; …
(b)…”
[1] e.g. If the applicant notifies the Tribunal in writing to the effect that the application is withdrawn, it is taken to have dismissed the application without proceeding to review the decision: AAT Act, s 42A(1B). If there are proceedings before the Tribunal relating to the recovery of a debt and the Secretary agrees with other parties to them that the proceedings be settled, they may all reach an agreement but it must be a written agreement. If the Secretary gives a copy of that agreement to the Tribunal, the application for review of the decision is taken to have been dismissed: Social Security (Administration) Act 1999, s 182
Before exercising its powers under s 42A(2)(a), the Tribunal must be satisfied that “appropriate notice was given to the person who failed to appear at the time and place of the directions hearing, conference, mediation or hearing, as the case may be.” That limitation is imposed by s 42A(7).
There are four criteria to be met before the Tribunal may exercise power under s 42A(2)(a):
there is a “proceeding before the Tribunal in respect of an application for the review of a decision”;
a person “fails either to appear in person or to appear by a representative”;
“at a directions hearing, or an alternative dispute resolution process under Division 3 [of Part IV of the AAT Act] held in relation to the application, or at the hearing of the proceeding”;
“appropriate notice was given to the person who failed to appear of the time and place of the directions hearing, conference, mediation or hearing, as the case may be.”
These criteria raise a number of issues. I will touch on some of them as it is not relevant to undertake an exhaustive analysis of the power in this case.
What is a proceeding?
The word “proceeding” is given a very wide definition in s 3(1) of the Act where:
“proceeding, in relation to the Tribunal, includes:
(a)an application to the Tribunal for review of a decision; and
(b)an application to the Tribunal under subsection 28(1AC); and
(c)an application to the Tribunal for review of a decision by the Registrar, a District Registrar or a Deputy Registrar taxing any costs ordered by the Tribunal to be paid; and
(d)an application to the Tribunal for a costs certificate under section 10A of the Federal Proceedings (Costs) Act 1981; and
(e)an application to the Tribunal under subsection 62(2) of the Freedom of Information Act 1982; and
(f)any other application to the Tribunal under this Act or any other Act; and
(g)any matter referred to the Tribunal for inquiry and/or review under this Act or any other Act; and
(h)an incidental application to the Tribunal made in the course of, or in connection with, an application or proposed application, or a matter, referred to in a preceding paragraph.”
On its face, the definition is not expressed in exhaustive terms as it is expressed in terms of “includes” and not in terms of “means”. Among the ordinary meanings of the word “include” are “… to contain or be made up of something, or to have as parts of its contents The price includes postage and packing. …”.[2] Those meanings certainly suggest that the word has the meanings stated in s 3(1) but that it has other meanings as well. As McInerney J explained in Sherritt Gordon Mines Ltd v Federal Commissioner of Taxation,[3] the fact that Parliament has chosen to express
the definition in that way usually means that:
“… the definition adds the meanings given in the definition clause to the natural meaning of the word. The added meaning is often one not otherwise within the natural meaning, so that the natural meaning of the word is to that extent amplified.”[4]
[2] Chambers 21st Century Dictionary, 1999, reprinted 2004, Chambers
[3] [1977] VR 342; (1976) 10 ALR 441; 76 ATC 4130; 6 ATR 344
[4] [1977] VR 342; (1976) 10 ALR 441; (1976) 10 ALR 441; 76 ATC 4130; 6 ATR 344 at 353; 455; 4139; 355
When regard is had to the AAT Act as a whole, there is no indication that I should adopt a contrary meaning in this case. Provision is made in the legislation for various applications, requests and steps to be taken. In light of that, it would seem that the word “proceeding” is intended to be given its ordinary meanings as well as those set out in s 3(1). Those ordinary meanings include:
“… 1 an action; a piece of behaviour. ... 3. (proceedings) legal action begin divorce proceedings.”[5]
[5] Chambers 21st Century Dictionary, 1999, reprinted 2004, Chambers
What is an application for review of a decision?
Section 42A(2)(a) refers to a person’s being a party to a proceeding before the Tribunal “in respect of an application for the review of a decision”. What is an “application for review of a decision”? Section 25(1) of the AAT Act states that an enactment may provide “that applications may be made to the Tribunal … for review of decisions made in the exercise of powers conferred by that enactment; or … conferred, or that may be conferred, by another enactment having effect under that enactment.” Where provision for those applications is made, they are clearly applications for review of a decision.
Not every application that is made to the Tribunal is for the review of a decision. The distinction between applications for review of a decision and other applications is clear from the definition of “proceeding” itself. Paragraphs (b) and (e) of the definition provide two examples of applications that are clearly not applications for review of a decision and that are treated separately in the definition. One is an application under s 28(1AC) of the AAT Act and the other is an application under s 62(2) of the Freedom of Information Act 1982 (FOI Act).
Section 28(1AC) requires the Tribunal to decide whether certain persons are, or are not, entitled to be given a statement of reasons by the person who made a decision. The certain persons are those who are entitled to apply to the Tribunal for review of a decision, who have requested the decision-maker for a written statement of reasons,[6] who have been given a notice that, in the decision-maker’s opinion they are not entitled to a statement in relation to a decision[7] and who have made an application to the Tribunal.[8] An application under s 28(1AC) is an application to decide an entitlement. Section 62(2) of the FOI Act is concerned with an application for a declaration that a statement made under s 26 of that legislation does not contain adequate particulars of, in general terms, the reasons for the decision. Neither s 28(1AC) nor s 62(2) provides for an application for review of a decision.
[6] AAT Act, s 28(1)
[7] AAT Act, s 28(1AA)
[8] AAT Act, s 28(1AC)
The same conclusion can be reached in relation to an application to the Tribunal for a costs certificate under s 10A of the Federal Proceedings (Costs) Act 1981. That is a proceeding described in paragraph (d) of the definition of that word in s 3(1) of the AAT Act. Quite apart from its being treated separately from an application for review of a decision in paragraph (a), its essential character is not one for the review of a decision but one of the grant of a costs certificate in respect of an application for review in the Tribunal.
Paragraph (f) of the definition of “proceeding” refers to “any other application to the Tribunal under this Act or any other Act” as a “proceeding” (emphasis added). The reference to “other” would seem to distinguish such an application from an application for review referred to in the paragraphs of the definition preceding paragraph (f) i.e. (a) to (e). That would suggest that the application for review of a decision under paragraph (a) is an application provided for under an enactment as contemplated by s 25(1) and not an application provided for under an enactment in a way other than that contemplated in s 25(1). Whether that is so is something to be resolved on another day.
What is a proceeding in respect of an application for review?
As wide as the meaning given to the word “proceeding” is, s 42A(2) relates only to a “proceeding …in respect of an application for review of a decision”. Of the expression “in respect of”, Gaudron ACJ, McHugh, Gummow and Callinan JJ have said:
“… It is well accepted that such words take their meaning from their context. Thus, in Workers’ Compensation Board (Q) v Technical Products Pty Ltd,[[9]] Deane, Dawson and Toohey JJ said:[10]
Undoubtedly the words ‘in respect of’ have a wide meaning, although it is going somewhat too far to say, as did Mann CJ in Trustees Executors & Agency Co Ltd v Reilly,[11] that ‘they have the widest possible meaning of any expression intended to convey some connection or relation between the two subject matters to which the words refer’. The phrase gathers meaning from the context in which it appears and it is the context which will determine the matters to which it extends.
…”[12]
[9] (1988) 165 CLR 642 at 653-654
[10] (1988) 165 CLR 642 at 653-4; 81 ALR 260 at 267
[11] [1941] VLR 110 at 111
[12] Federal Commissioner of Taxation v Scully (2000) 201 CLR 148; 74 ALJR 504; 169 ALR 459; 2000 ATC 4111; 43 ATR 718; at 171; 513; 471-472; 4121; 720-730
In light of that meaning, I must find a connection between the proceeding and the application for review for the proceeding to be “a proceeding in respect of an application for review of a decision” within the meaning of s 42A(2). That does not mean that every proceeding before the Tribunal is “a proceeding in respect of an application for review of a decision”. An application for an extension of the time within which to lodge an application for review of a decision is a “proceeding” for the purposes of paragraph (h) of the definition of that term in s 3(1). It does so because it is “an incidental application to the Tribunal made … in connection with, a … proposed application … referred to in a preceding paragraph” being paragraphs (a) to (g). The distinction between an application and a proposed application is clearly drawn in paragraph (h). The fact that it is clearly drawn leads me to conclude that s 42A(2) has been carefully drafted to omit reference to a proceeding that is made in connection with a proposed application. That is the meaning that appears on its face. It is also the meaning that makes sense in light of the power given to the Tribunal by s 42A(2)(a). That power is to “dismiss the application without proceeding to review the decision”. Until an application to extend the time has been heard and decided, there is no application for review and so no power in the Tribunal to proceed to review the decision. If I am correct and an application for an extension of time within which to make an application for review is not an application in respect of an application for review so that the Tribunal cannot dismiss should the applicant fail to appear, it may still bring the matter to an end in such circumstances. Provided it were satisfied that the applicant had been given proper notice of the hearing and an opportunity to make submissions and present a case as required by s 39 of the AAT Act, the Tribunal could hear and determine the application for extension of time in the applicant’s absence. If it were to refuse the application, that would be an end of the matter.
The hearing of an application for review of a decision also raises an interesting issue when s 42A(2) is read solely by reference to the definition of “proceeding” in s 3(1). It is itself a proceeding for the purposes of the definition. Adopting that interpretation would lead to the conclusion that the first criterion in s 42A(2)(a) effectively requires a finding that there is an application to the Tribunal for review of a decision “in respect of an application for the review of a decision”. That is an odd result and might have the effect of denying the Tribunal any power to dismiss an application for review were the applicant to fail to attend the day on which the application is to be heard. Denial would follow from the fact that the hearing is not an incidental application within the meaning of paragraph (h) of the definition of “proceeding” and is not a proceeding of the sort mentioned in paragraphs (b) to (g). The problem is solved when it is remembered that the meanings set out in the definition of “proceeding”. If a party to a “proceeding” in its wider sense of an action or even an occasion before the Tribunal in respect of an application for review of a decision fails to attend that action or occasion and that person is the applicant, the Tribunal may dismiss that person’s application for review.
Regardless of the form that the proceeding takes, there must be a connection between something that can be described as a proceeding and an application for review of a decision so that the proceeding can be said to be in respect of that application. It is not always so.
To illustrate that, I will refer again to the two meanings of “proceeding” given in (b) and (e) of the definition of “proceeding”. Neither would be a “proceeding… in respect of an application for the review of a decision …” within the meaning of s 42A(2). They are applications to the Tribunal under ss 28(1AC) of the AAT Act and 62(2) of the FOI Act respectively. Neither is dependent upon the applicant’s having made an application for review of a decision or doing so in the future. Each is concerned with the statement of reasons for a decision that has already been made. There need be no connection between either of the proceedings and an application for review of a decision that may or may not be made in the Tribunal.
As neither an application under s 28(1AC) of the AAT Act nor under s 62(2) of the FOI Act can be said to be a proceeding before the Tribunal in respect of an application for review, the first criterion specified in s 42A(2) would not be fulfilled. Therefore, if the applicant failed to appear at a hearing of either application, the Tribunal could not dismiss his or her application under that section.
Section 33 of the AAT Act gives the Tribunal power to give directions “as to the procedure to be followed at or in connection with the hearing of a proceeding before the Tribunal”. The power encompasses a proceeding of the sort under s 28(1AC) of the AAT Act and 62(2) of the FOI Act. Section 33(1) does not refer to the expression “directions hearings” and does provide that the power is exercised at a proceeding held for the particular purpose of giving directions. It seems to presuppose that the power may be exercised at any proceeding. The reference to a directions hearing appears in s 33(1A) and s 33(2) prescribes those who may give directions. It is feasible that the Tribunal could give directions without hearing from the parties but that would not be the usual course. It would not be the usual course because of the requirement imposed by s 39 that the Tribunal ensure that every party to the proceeding before the Tribunal is given a reasonable opportunity to present his or her case. The opportunity to hear from them takes the form of a hearing and so, when directions are under consideration, takes the form of a directions hearing. A directions hearing is an action of the sort contemplated by the ordinary meaning of the word “proceeding”.
If an applicant to an application under s 28(1AC) of the AAT Act or s 62(2) of the FOI Act were to fail to attend a hearing held to consider directions under s 33, that applicant would have failed to appear at a directions hearing as contemplated by s 42A(2). The applicant would not, however, be a “party to a proceeding before the Tribunal in respect of an application for review of a decision”. Therefore, the Tribunal could not dismiss the application because the first criterion specified in s 42A(2) has not been satisfied even though the second has been. An application under s 28(1AC) fails because it is an application to determine an entitlement and not for review of a decision. That under s 62(2) fails because it an application for a declaration that a statement made under s 26 of the FOI Act does not contain adequate particulars of, in general terms, the reasons for the decision. It also is not an application for review of a decision.
A proceeding of the sort mentioned in paragraph (c) is less clear. It encompasses within the meaning of “proceeding” an application to the Tribunal for review of a decision by the Registrar and others taxing any costs ordered by the Tribunal to be paid. An order that costs be paid will have been made under a provision such as s 67 of the Safety, Rehabilitation and Compensation Act 1988 (SRC Act). The Tribunal may only make that order if it has made a decision more favourable to the claimant than the decision in respect of which he or she sought review. Under s 67(8), the Tribunal may, subject to the other provisions in s 67, order that the costs of the proceedings incurred by a claimant, or part of them, be paid by the responsible authority. Under s 67(8A), the Tribunal may make an order for costs against Comcare or the Commonwealth, as appropriate, in favour of a claimant if the Tribunal makes a decision less favourable to him or her when it is the Commonwealth, and not the claimant, which has sought review. In the absence of an agreement between the parties as to the amount of the costs ordered to be paid,
s 67(13) of the SRC Act provides that “… the Tribunal may … tax or settle the amount of the costs or order that the costs be taxed by the Registrar, a District Registrar or a Deputy Registrar of the Tribunal”.
Section 69A of the AAT Act sets out the procedure for taxing costs. When the costs have been taxed, either of “the parties may apply to the Tribunal for review of the amount so taxed.”[13] If an application of that sort is made, “the Tribunal must review the amount taxed”.[14] At one level, it could be thought to be an application for review of a decision. After all, a taxation of costs necessarily leads to a decision as to the amount of the costs that the person has already been ordered to pay. That there is a decision of that sort is expressed in paragraph (c) of the definition of “proceeding” when it refers to an application “for review of a decision by the Registrar … taxing any costs ordered by the Tribunal to be paid”. That language does not precisely reflect the language of s 69A(2) in providing for an application to be made to the Tribunal or of s 69A(3) in stating the Tribunal’s obligation and powers when the application is made. The application is not for the review of a decision taxing costs but for the review of the amount so taxed. They are different even if they lead to the same practical result. Their difference would seem to be highlighted by the separate references that are made to them in the definition of “proceeding”. That difference suggests that an application to review the amount so taxed is not an application for review of a decision.
[13] AAT Act, s 69A(2)
[14] AAT Act, s 69A(3)
Assuming that it is not an application for review of a decision, it is clearly a proceeding. The next question would be whether it is a proceeding in respect of an application for review. That is a difficult question to answer. At one level, it might be thought to have the necessary connection with the application even though the application has been heard and decided. That connection would come from the fact that an order for costs could not have been made without the applicant’s having first made an application for review of the decision. At another level, the very fact that the application for review of the decision has been heard and decided may be the feature that breaks the connection between the proceeding to review the amount so taxed and the application for review. The application to review the amount so taxed is in respect of the order to pay costs and not in respect of the application for review of the decision.
What is failure to appear?
A reading of ss 42A(3) and (3A) make it clear that a person who has participated in a directions hearing or at the hearing of a proceeding[15] or in an ADR process[16] by telephone, closed-circuit television or any other means of communication, will be taken to have appeared at the directions hearing, hearing or ADR process as the case may be. That does not mean that a person has a right to appear by one of those means rather than personally. Sections 35A and 34G, to which ss 42A(3) and (3A) refer respectively, make it clear that appearance in one of those ways is a matter within the discretion of the Tribunal or of the person conducting the ADR process. If the Tribunal or the person does not allow it, then an applicant must “… be present …”[17] at the directions hearing, hearing or ADR process and so “appear” if he or she does not wish to be said to have failed to appear.
[15] AAT Act, s 35A
[16] AAT Act, s 34G
[17] Chambers 21st Century Dictionary, 1999, reprinted 2004, Chambers
What is a directions hearing, alternative dispute resolution process or hearing of the proceeding?
The person must fail to appear at a directions hearing, ADR process or at a hearing of the proceeding. This is the third criteria that must exist before the Tribunal may exercise its power under s 42A(2)(a). I have already set out what I understand by a “directions hearing”.[18] An ADR process is defined in s 3(1) of the AAT Act to mean conferencing, mediation, neutral evaluation, case appraisal, conciliation and procedures or services specified in the regulations. It does not include arbitration or court procedures or services.
[18] See [27] above
In the context of a process to resolve a dispute, the ordinary meaning of a “hearing” is that of:
“… 3 an opportunity to state one’s case We gave him a hearing. 4 a judicial investigation and listening to evidence and arguments, especially without a jury.”[19]
This would seem to be the sense in which the word is used in s 42A(2). The expression “the hearing of the proceeding” would seem to encompass the occasion on which the Tribunal considers the particular matters that are in issue or require consideration or determination by virtue of the particular proceeding and on which the parties are given the opportunity to state their positions or views as to what should be the outcome of that consideration or determination.
Mr Ahmed failed to appear but did he, on 22 September 2008, fail to appear at the “hearing of the proceeding”?
[19] Chambers 21st Century Dictionary, 1999, reprinted 2004, Chambers
I have set out the form in which the Tribunal’s Registry gave
notice that the “application has been listed”.[20] The listing was shown as “Interlocutory hearing – Dismissal application”. It was intended to be an occasion on which the parties gave the Tribunal any arguments or reasons as to why Mr Ahmed’s application seeking review of the Secretary’s decision should not be dismissed. In that sense, it was a “hearing” of the sort referred to in s 42A(2) but was it a “hearing of the proceeding” at which the applicant failed to appear? The reference to “the proceeding” in s 42A(2) is a reference to the proceeding referred to in the opening words of the section: i.e. to a “proceeding before the Tribunal in respect of an application for the review of a decision”.
Mr Ahmed[20] See [1] and [8] above
In considering the answer to that question, I have been mindful that s 42A(2)(a) does not provide that a person may apply to have the application for review to be dismissed for the person’s failure to appear. Nor does any other section make provision for that. Another way of saying that is that the exercise of the power given to the Tribunal by s 42A(2) is not dependent upon an application’s having been made to it. The Tribunal may exercise it if it considers it appropriate to do so and, in compliance with s 42A(7), it is satisfied that appropriate notice has been given to the applicant. In practice, a respondent will often ask the Tribunal to exercise its power under s 42A(2)(a) but that is different from making an application for which provision is made in the AAT Act.
The fact that the notice of the listing notice sent to the parties described the occasion as “Interlocutory hearing – Dismissal application”, when no such application is provided for, is not necessarily inconsistent with the occasion’s being described as an action or occasion and so a proceeding. Subject to the AAT Act and other enactments and regulations, the Tribunal’s procedure is within its own discretion.[21] If it chooses to require the parties to attend and make submissions as to why it should or should not exercise its power under s 42A(2) rather than exercising it immediately upon the applicant’s failure to attend at the directions hearing, ADR process or proceeding in connection with the application for review, that is a matter for it. It is a proceeding. A proceeding at which the continued existence of the application for review is considered would seem to come within the description of a proceeding in respect of an application for review. If an applicant fails to appear at the hearing of an occasion described as an “Interlocutory hearing – Dismissal application” after being given appropriate notice of it, the Tribunal has power to dismiss his or her application for review under s 42A(2)(a).
[21] AAT Act, s 33(1)(a)
Address to which the Tribunal may send notices
Until the last notice, the Tribunal sent its notices of the various hearings to the address Mr Ahmed specified in his application for review. He did not advise of any change of address and it was not until the hearing on 27 August 2008 when, in response to my question, the Secretary’s advocate, Mr Todd, advised me that Mr Ahmed had changed his address. The Secretary has no obligation to advise the Tribunal of such changes but, once the Tribunal becomes aware of a change of address, it could become more difficult to form the view that appropriate notice has been given. What is appropriate will depend on several things including any statutory provisions regarding an address to be given and the personal circumstances of the applicant.
Starting with the statutory provisions, I note that Form 1 in Schedule 1 of the Administrative Appeals Tribunal Regulations 1976 (AAT Regulations) requires an applicant to provide an address and telephone numbers. That address is not necessarily the address to which the Tribunal should send notices. A person may choose to provide an address to which documents in relation to the proceeding in the Tribunal may be sent (address for service).[22] If a person gives the Tribunal an address for service in that way, the Tribunal may send a document, statement, notice or other notification to that address by post.[23] The document, statement, notice or other notification will be taken to have been given at the time when it would have been delivered in the ordinary course of post.[24]
[22] AAT Regulations, r 18(1)
[23] AAT Act, s 68AA(1)(a)(i)
[24] AAT Act, s 68AA(1)(b)
If the person has not provided an address for service, the document and the like can be sent to the address of the applicant’s place of residence or business last known to the person posting the document and so, in this case, the Tribunal.[25] Again, it will be taken to have been delivered in the ordinary course of business.[26]
[25] AAT Act, s 68AA(1)(a)(ii)
[26] AAT Act. s 68AA(1)(b)
If a person does not provide an address for service in an application, any address shown in the application may be taken to be an address provided by the person “at which documents in relation to the proceeding may be given”.[27] That is the effect of s 29(1A) of the AAT Act. That same provision also provides that a person may notify the Tribunal of an address at which documents may be given and it is that later notified address that is taken to be the address for service. In either case, that address is taken to be the address to which documents in relation to the proceeding may be sent. Therefore, if a document, statement, notice or other notification is sent by post to that address, the effect of s 68AA(1)(a)(i) is that it has been given.
[27] AAT Act, s 28(1A)
I note that it is unlikely that an application will show an address for service as such. When Form 1, which is the form for an application for review, provides space for the applicant’s address, it does not describe that as an address for service. It asks for “Your address” and that would seem to mean that it is asking for the applicant’s residential or business address rather than an address for service. The same is true of the other applications specified in the AAT Regulations.
What is appropriate notice?
Section 42A(7) requires me to be satisfied that “appropriate notice” was given to Mr Ahmed of the time and place of the hearing. Appropriate notice is notice that is “suitable or proper”[28] notice. It suggests notice that is suitable or proper having regard to various competing considerations that may apply in the case under consideration. Regard may be had to whether the applicant is required to attend in person at a particular place, whether to attend the hearing or to participate in it by means of closed-circuit television, or whether attendance is permitted by means of telephone. If the person is required to attend at a particular place, it may be relevant to consider whether the person was given sufficient time to enable him or her to travel to that place or to arrange his or her affairs in order to attend. That consideration may be conducted on a theoretical basis in light of the time between the giving of the notice of the hearing and the time set for the hearing and any information on the Tribunal’s file. If the applicant has contacted the Tribunal’s Registry beforehand, the consideration can be conducted in light of actual knowledge of the applicant’s stated difficulties in attending. In the case of genuine difficulty, the Tribunal invariably reschedules the hearing.
[28] Chambers 21st Century Dictionary, 1999, reprinted 2004, Chambers
Does an assessment of what amounts to “appropriate notice” require a consideration of the issues that would have been raised at the hearing of the directions hearing, ADR process or hearing of the proceeding? The complexity of the issues and the amount of preparation that the parties may feel that they have to undertake for it will be relevant in considering the date the Tribunal chooses and so the amount of notice that it gives the parties. Those matters are also relevant in considering whether the parties should be allowed further time when one or other or both ask for an adjournment. I do not consider that they are relevant in deciding whether or not “appropriate notice was given … of the time and place of the directions hearing, conference, mediation or hearing, as the case may be” as required by s 42A(7). The emphasis is upon notice of the “time and place” of, for example, the directions hearing and not upon notice of the issues to be raised or addressed at the directions hearing. If appropriate notice were not given of the directions hearing, ADR process or hearing of the proceeding, that might mean that the Tribunal did not give one or both of the parties a proper opportunity to present their cases as required by s 39 of the AAT Act. A failure of that sort might lead to an application to the Federal Court for judicial review. It seems to me that s 42A(7) is not directed to procedural fairness in the presentation of the parties’ cases. All that it is directed to is ensuring that the party who does not attend had a fair chance to attend.
I have also considered whether the notice should give the recipients an indication of the purpose of the proceeding. In some senses, this is another aspect of the matter I have just considered and the same reasoning leads to the conclusion that the notice need not do so. For all that, the Tribunal is not engaged in some sort of game where the aim is to try to catch the parties out. Indeed, among the principles that s 2A of the AAT Act exhorts the Tribunal to follow is that it must pursue the objective of providing a mechanism of review that meets certain criteria. Among those criteria are that it be fair and just. Those two criteria were met when the notice of the listing for the conference on 25 July 2008 concluded with the statement that “Failure to appear or to be available by telephone may result in the matter being dismissed for non-appearance.” They might also have been met by the notices of the hearings listed for 27 August 2008 and 22 September 2008 had they been sent to a party represented by a lawyer or a person versed in the Tribunal’s ways. It may be open to question whether a notice of a hearing described as “Interlocutory hearing – Dismissal application” does, on its own, meet those criteria when sent to a party who is not represented in that way.
Reasons for dismissing Mr Ahmed’s application for review
Having decided that I had the power to do so if Mr Ahmed had been given appropriate notice of the proceedings described as “Interlocutory hearing – Dismissal application”, I would have decided he had been given appropriate notice of the hearing held on 22 September 2008. It was sent to the address that Mr Todd advised was the address of Mr Ahmed’s residence as advised to Centrelink. That, therefore, was the address of the place of residence of Mr Ahmed last known to the Tribunal even though Mr Ahmed did not himself advise the Tribunal of it. As the Tribunal sent the notice of the hearing to Mr Ahmed at that address, the effect of s 68AA(1)(a)(ii) is that it is taken to have given him notice of the hearing. As the notice would have been sent on or shortly after 29 August 2008, which was the date on the notice, for a hearing on 22 September 2008, I consider that it is capable of being appropriate notice. There is more than enough time for it to be delivered to
Mr Ahmed in the ordinary course of post and more than enough time for him to make arrangements to attend or, if in genuine difficulty, to contact the Tribunal to request a variation of the date. Mr Ahmed did contact the Tribunal’s Registry but not to change the date. The substance of his call clearly indicates that he had received notice of the hearing. Having regard to all of these matters, I am satisfied that Mr Ahmed had appropriate notice of the hearing of the proceeding listed for 22 September 2008.
Had I not asked Mr Todd the question regarding Mr Ahmed’s residence, I would also have been satisfied on 27 August 2008 that Mr Ahmed had received appropriate notice of the hearing listed for that date. Notice of that hearing was sent to the address shown on Mr Ahmed’s application. As he had not advised the Tribunal of an address for service, the effect of s 29(1A) would have been that the address on his application would have been taken to be the address at which documents may be given. As that would have been the case, the effect of s 68AA(1(a)(i) would have been that notice of the hearing would have been given to him by posting the listing notice to him at that address. As the notice was posted on or shortly after the date it was generated, 4 August 2008, he would be deemed to have received it in the ordinary course of post. While it might have been technically correct to find that Mr Ahmed had been given appropriate notice of the hearing, it seems to me that it was not fair in a substantive sense once the Tribunal knew of his change of residence and that change had occurred on 17 July 2008 and so relatively close to the time at which he changed his residence.
I am satisfied that Mr Ahmed not only failed to attend the hearing on 22 September 2008 and, very likely, the hearing on 29 August 2008, he had failed to attend a conference listed for 25 July 2008. Notice of that ADR process had been sent to the address shown on his application on or shortly after 7 July 2008. It too might have been caught up with his change of address but the notice of the first conference is not attended by such doubts. It was held on 4 July 2008 and notice of it was sent on or shortly after 24 June 2008. None of the notices has been returned to the Tribunal as undeliverable and Mr Ahmed has not contacted the Registry after the event, as it were, to explain his failure to attend. He did contact the Registry on 16 September 2008 and it is clear that he did have notice of that hearing and of its purpose. Despite his statement that he would attend the hearing, he did not do so.
In light of the history of the matter, I consider that it is also appropriate to dismiss Mr Ahmed’s application for review when he failed to appear in person or by a representative at the hearing of the proceeding held on 22 September 2008. I relied at the time on his failure to attend the ADR process, which was a conference, held on 4 July 2008. I am satisfied that he was sent notice of it and that the notice was appropriate notice. He has failed to give any explanation for his failure to attend on that occasion or subsequently. In view of those matters, I consider that it was appropriate to dismiss Mr Ahmed’s application on the basis of his failure to attend the ADR process on 4 July 2008 and the hearing of the proceeding held on 22 September 2008 or either of them.
I certify that the forty nine preceding paragraphs are a true copy of the reasons for the decision herein of
Deputy President S A Forgie,
Signed: .......................................................................
Olympia Sarrinikolaou Associate
Date of Hearing 22 September 2007
Date of Decision 29 October 2008
Representative for the Applicant no appearance
Representative for the Respondents Mr T Noonan
Legal Services Branch
Centrelink
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