Amidiong-Otyaluk and Australian Capital Territory (Compensation)
[2021] AATA 4777
•22 December 2021
Amidiong-Otyaluk and Australian Capital Territory (Compensation) [2021] AATA 4777 (22 December 2021)
Division:GENERAL DIVISION
File Number(s): 2019/0574
2019/0575
Re:Grace Amidiong-Otyaluk
APPLICANT
AndAustralian Capital Territory
RESPONDENT
DECISION
Tribunal:Senior Member Linda Kirk
Date:22 December 2021
Place:Canberra
The application for reinstatement is allowed.
......................................[sgd]..................................
Senior Member Linda Kirk
Catchwords
PRACTICE AND PROCEDURE – reinstatement application – application dismissed for no appearance – consideration of Applicant’s conduct to date – whether prejudice to parties – merits of substantive review applications – reinstatement allowed.
Legislation
Administrative Appeals Tribunal Act 1975 ss 2A, 33, 42A, 42B
Safety, Rehabilitation and Compensation Act 1988Tribunals Amalgamation Act 2015
Cases
Briginshaw v Briginshaw (1938) 60 CLR 336
CDJR and Australian Research Council [2012] AATA 525
Fitzgibbon and Secretary, Department of Social Services [2018] AATA 2385
John Oates and Secretary, Department of Social Security [1994] AATA 252; (1994) 37 ALD 241
Re De Simone and Commissioner of Taxation [2017] AATA 1005
Rob and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] AATA 1.
Serpinli v Secretary, Department of Social Services [2019] FCA 2029
Somba and Minister for Home Affairs (Migration) [2020] AATA 425
Weinrichova and Secretary, Department of Social Services [2018] AATA 4254Zablotsky and Secretary, Department of Social Services [2019] AATA 4367
REASONS FOR DECISION
Senior Member Linda Kirk
22 December 2021
APPLICATION FOR REINSTATMENT
This is an application by the Applicant under s 42A(9) of the Administrative Appeals Tribunal Act 1975 (Cth) (AAT Act) for reinstatement of her applications for review which were dismissed by the Tribunal under s 42A(2)(a) of the AAT Act following her failure to appear at an interlocutory hearing of the Tribunal on 14 July 2021.
BACKGROUND
Reviewable Decisions
On 30 September 2018, Grace Amidiong-Otyaluk (‘the Applicant’) made a claim for compensation under the Safety, Rehabilitation and Compensation Act 1988 (Cth) (SRC Act) for ‘anxiety, stress, high blood pressure, diabetes and depression.’[1] The Applicant attributed her condition(s) to a combination of stressors in her employment by the Australian Capital Territory (‘the Respondent’) at the Canberra Hospital. She claimed to have first noticed her symptoms on 24 September 2018, and to have first sought medical treatment from her GP on 26 September 2018.[2]
[1] Section 37 Documents, 12.
[2] Ibid 13–14.
The Reviewable Decisions dated 29 January 2019 affirmed two decisions of Comcare: the first dated 12 November 2018 which determined a rehabilitation program was not required at that time under section 37 of the SRC Act, and the second dated 4 December 2018 which declined initial liability for major depressive disorder, single episode pursuant to section 14 of the SRC Act. [3]
[3] Ibid 174.
Application for review
The Applicant, by her representative, Mr Peter Kolya, filed an application for review of the Reviewable Decisions with the Tribunal which was received on 4 February 2019.
The Tribunal listed the matters for hearing on three separate occasions. Listing notices for were issued on 27 November 2019, 9 June 2020 and 22 October 2020.
On 22 October 2020, the Tribunal issued an updated listing notice for the hearing between 27-30 April 2021. A pre-hearing telephone directions hearing was also listed for 19 March 2021.
On 6 April 2021, Mr Kolya sent an email to the Tribunal and the Respondent which was a copy of an email he had sent to the Applicant on 2 April 2021, advising her that he was unable to continue representing her as he was required to take a leave of absence and sick leave from work. He further requested that the Tribunal vacate the hearing listed for 27-30 April 2021 to allow the Applicant time to find alternative representation.
On 14 April 2020, the Tribunal wrote to the Applicant requesting she advise the Tribunal of the following by 19 April 2020:
1.whether she proposed to engage alternative legal representation, and if so, when she expected to engage that representation; or
2.that she intended to proceed with the application as a self-represented Applicant.
By way of an email dated 20 April 2021, the Applicant made a further application for an adjournment of the hearing scheduled for 27-30 April 2021. She did not provide a response to the matters contained in the Tribunal’s request in [8] above.
On 22 April 2021, after having received submissions from both parties, the Tribunal vacated the hearing listed for 27-30 April 2021. The Tribunal issued a direction to the Applicant which required her to provide the following documents and/or information on or before 20 May 2021:
1.A medical report from a qualified medical practitioner that provided expert opinion with respect to the Applicant’s ability to proceed with her application before the Tribunal, with explicit reference to:
a)whether the Applicant was fit to instruct a representative or advocate;
b)whether the Applicant was fit to give evidence at a hearing of this proceeding and be subject to cross-examination by the Respondent;
c)whether the Applicant was fit to correspond with the Tribunal generally; and
d)the risk of self-harm to the Applicant in proceeding with the application before the Tribunal.
The Applicant did not comply with the Tribunal’s direction.
Dismissal application
On 22 May 2021, the Respondent made an application for dismissal of the Applicant’s review applications pursuant to sections 42A(5) and 42B of the AAT Act.
On 4 June 2021, the Tribunal directed the Respondent and the Applicant to make submissions by 18 June 2021 and 9 July 2021 respectively in relation to the Respondent’s dismissal application which was listed for an interlocutory hearing on 14 July 2021. The listing notice was emailed to the Applicant by the Canberra Registry at or about 2:25 pm on 4 June 2021.[4]
[4] Documents to accompany the Affidavit of Daniel D'Onofrio dated 11 June 2021, filed by Respondent on 15 June 2021, 810.
On 11 June 2021, the Respondent lodged written submissions in support of its application for dismissal together with two affidavits detailing the history of the matter since the lodgement of the Applicant’s review applications.[5] Copies of those materials were emailed to, and electronically accessed by, the Applicant on the same day.
[5] Respondent’s Submissions in Support of Dismissal under ss 42A(5) and/or 42B of the Administrative Appeals Tribunal Act 1975, dated 11 June 2021, filed by Respondent on 15 June 2021.
On 9 July 2021, Ms Famata Holmes of the Trustee for the President Nelson Mandela Advocacy Project sought to query on behalf of the Applicant whether the interlocutory hearing had been or would be vacated. Whilst she conceded that she had access to the Applicant’s emails, Ms Holmes asserted that they had not received nor been able to view the Respondent’s interlocutory hearing submissions.
The Respondent’s solicitors wrote to the Tribunal on 9 July 2021 providing proof that its interlocutory hearing submissions had been downloaded by the Applicant on 11 June 2021 at or about 6:48 pm. By its solicitors’ correspondence, the Respondent advised that it remained of the view that the interlocutory hearing should proceed on 14 July 2021 and gave its reasons for that position.
On 12 July 2021, at or about 11:57 am, the Canberra Registry wrote to the Applicant and confirmed that the interlocutory hearing would proceed as per the listing notices sent to the parties on 4 June 2021.
On 13 July 2021, the Applicant provided her submissions to the Tribunal and the Respondent which were stated to have been ‘prepared and submitted under the ACT Public Trustee and Guardianship Act 2006 by Trustee for President Nelson Mandela Advocacy Project’. The following documents were attached to the submissions:
·a medical certificate dated 1 July 2021 certifying the Applicant is unable to legally represent herself;
·a fee notice dated 27 May 2021 for payment of strata fees in the sum of $12,413.18; and
·a letter of demand dated 8 June 2011 from the Commonwealth Bank in relation a loan contract requiring payment within seven days of $16,004.11.
The relevant parts of the Applicant’s submissions stated:
The Applicant Ms. Grace Amidiong-Otyaluk does not have the capacity to self-represent nor can she afford to both instruct or hire a legal practitioner.
Her medical evidence as well as evidence of her financial hardship enclosed make out her case for a decision to by (sic) taken on the papers pursuant to section 34 J of the Administrative Appeals Tribunal Act 1975 and for the interlocutory relief hearing on the 14 July 2021 be dispensed with in its entirety.
An application to the AAT by decision-maker for a dismissal citing it as interlocutory relief lacks substance and its so unreasonable that no reasonable person would consider making such an application.[6]
[6] Submission dated 12 July 2021, filed by Applicant on 13 July 2021, 4.
Interlocutory hearing
On 14 July 2021, the Applicant failed to appear at the interlocutory hearing. The Respondent was represented by its solicitors and counsel.
At the commencement of the hearing, the Tribunal informed the Respondent’s representatives that it had made two attempts to call the Applicant on her landline and then on her mobile telephone, but she did not answer the calls. During the interlocutory hearing, the Tribunal made a third attempt to contact the Applicant, which also was unsuccessful. The Tribunal informed the Respondent’s representatives during the interlocutory hearing that the Tribunal had sent the Applicant a SMS reminder to her mobile on 12 July 2021, in addition to the email sent to the parties on 12 July 2021, to confirm that the interlocutory hearing would proceed as listed.
At the interlocutory hearing, the Respondent made a further application for dismissal on the basis of the Applicant’s failure to appear at the hearing, pursuant to s 42A(2)(a) of the AAT Act. The Tribunal allowed that application and dismissed the applications for review. In these circumstances, the Tribunal did not need to hear, nor did it decide, the substantive dismissal application made by the Respondent.
Application for reinstatement
On 19 July 2021, Mr Kolya, made a request for the Applicant’s review applications to be reinstated. He submitted this request via the following post on the Tribunal’s online complaints portal:
Member William Frost in particular has been acting with "venom" against all persons I have represented at the AAT. He has either made a decision that is visibly wrong for us to pick up unnecessary costs and charges going to an appeal court in complete disregard of International covenants to which Australia is a Signatory. See (Michael Adaji Inoo vs Minister of Home Affairs) or he has used a flimsy excuse despite complaints made known to him of our apprehended bias regarding him to dismiss a long running Comcare application before the AAT of a psychologically injured applicant who is now impoverished, legally and mentally incapacitated and unable to instruct another or new legal representative when I ceased to act for her due to my own mental health leave of absence that I had to take in the matter of (Grace Amidiong-Otyaluk vs Australian Capital Territory). Please refer to email correspondence for more details on dates and relevant names.
An Immediate reinstatement of the Application and for the Appeal to be handled by a reconstituted Tribunal in which he can no longer adjudicate on the matter or matters. The tribunal case number in question is 2019/0574. Thank you.[7]
[7] Email from Peter Kolya to Administrative Appeals Tribunal Canberra Registry, 19 July 2021.
On 27 July 2021 the Tribunal as presently constituted made the following directions:
1.On or before 3 August 2021, the Applicant must advise the Tribunal and the Respondent:
a)whether she is represented in her application for review, and if so, the contact details of her representative; and
b)whether she wishes for her application for review to be reinstated.
By email dated 1 August 2021, Mr Kolya, confirmed that the Applicant was requesting reinstatement of her review applications. He advised that the Applicant intended to engage Madeleine Smith and Heidi Lewis of Shine Lawyers, Senior Counsel Quang Nguyen of Expert Court Lawyer and Nadia Baker and her solicitor Diana Farah of Carroll & O’Dea Lawyers and ‘such any other lawyer as the Applicant may appoint’.
By this email, Mr Kolya also made a request to the Tribunal under the Freedom of Information Act 1982 (Cth) for all documents relevant to the Applicant’s review applications. The request was stated to be for the following purpose:
… the supply of these documents to the legal team is to assist them: firstly to individually identify and determine whether they can take up the matter(s) and if so which one; secondly, to ascertain whether they can represent the Applicant on a No Win No Fee basis; and lastly if and where legal fees must be paid upfront, the legal team member or members in question will have the opportunity to determine their fee schedule and/or legal costs to be borne by the Applicant before they can act for Ms. Grace Amidiong-Otyaluk being the Canberra Hospital injured employee and the AAT Review Applicant.
Mr Kolya further advised that he had returned to the office on ‘light duties’ and he would be representing the Applicant at the telephone directions hearing listed for 6 August 2021. He digitally signed the email as the Applicant’s ‘Intending Legal Guardian’.
Telephone Directions Hearing
On 6 August 2021, the Tribunal conducted a telephone directions hearing with the parties. Mr Kolya appeared for the Applicant. He told the Tribunal:
· since 6 April 2021 he had been on mental health leave and will remain on leave until 6 September 2021
· he was unable to find anyone to cover for him while he was on leave
· he had since organised for three law firms, including Shine Lawyers, to take over the Applicant’s matters and they would represent her on a no win / no fee basis
· she also intended to engage counsel, Mr Nguyen, who required payment of $10,600
· he had made a FOI request to the Tribunal to obtain all the relevant documentation for the Applicant’s new legal representatives
· he expected that the Applicant’s new legal team would be in place by 20 August 2021
· he had joint ownership with the Applicant of their home in Melba and they were attempting to refinance this property through the Commonwealth Bank
· the Applicant remained unwell and was unable to represent herself
· she had a Centrelink and a Workcover certificate certifying her unfit until 4 September 2021
· her phone had been disconnected the previous day
· she was no longer receiving a salary from ACT Health and was now on Jobseeker payments
The Tribunal questioned Mr Kolya about the reasons why neither the Applicant nor any representative attended the interlocutory hearing on 14 July 2021. He stated:
· he was on leave on this date and was not representing the Applicant
· Ms Famata Holmes, a joint trustee of the President Nelson Mandela Advocacy Project, had prepared the Applicant’s written submissions dated 13 July 2021, but was not authorised to represent her at the interlocutory hearing
· the Applicant was going to appear unrepresented at the hearing, but she did not do so.
It was agreed that an extended timetable be set down for the parties to make written submissions in relation to the reinstatement application. This would allow time for the Applicant to secure her new legal representatives and for them to prepare submissions.
The Tribunal made the following directions:
1.On or before 3 September 2021, the Applicant and Respondent must give to the Tribunal and the other party written submissions with respect to the Applicant’s application for reinstatement of matters 2019/0574 and 2019/0575.
2.On or before 3 September 2021, the Applicant must advise the Tribunal and the Respondent the name and contact details of her legal representative.
On 3 September 2021, the Respondent provided written submissions opposing the application for reinstatement. On 7 September 2021 the Respondent advised the Tribunal that it was willing for the reinstatement application to be decided on the papers.
On 9 September 2021, the Applicant provided written submissions in support of her application for reinstatement.
RELEVANT LEGISLATION
Section 2A of the AAT Act provides that:
In carrying out its functions, the Tribunal must pursue the objective of providing a mechanism of review that:
(a) is accessible; and
(b) is fair, just, economical, informal and quick; and
(c) is proportionate to the importance and complexity of the matter; and
(d) promotes public trust and confidence in the decision-making of the Tribunal.
Section 33 of the AAT Act relevantly provides that:
(1AB) A party to a proceeding before the Tribunal, and any person representing such a party, must use his or her best endeavours to assist the Tribunal to fulfil the objective in section 2A.
Section 42A of the AAT Act relevantly provides:
Discontinuance, dismissal, reinstatement etc. of application
…
Dismissal if party fails to appear
(2)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; or
(b)…
…
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 by the Tribunal in relation to the application;
the Tribunal may dismiss the application without proceeding to review the decision.
…
(7)Before exercising its powers under subsection (2), the Tribunal must be satisfied that appropriate notice was given to the person who failed to appear of the time and place of the directions hearing, alternative dispute resolution process or hearing, as the case may be.
…
(8A)If the Tribunal dismisses an application under subsection (2) (other than an application in respect of a proceeding in which an order has been made under subsection 41(2)), a party to the proceeding may, within the period referred to in subsection (8B), apply to the Tribunal for reinstatement of the application.
(8B)For the purposes of subsections (8) and (8A), the period is:
(a) 28 days after the party receives notification that the application has been dismissed; or
(b) if the party requests an extension--such longer period as the Tribunal, in special circumstances, allows.
(9) If it considers it appropriate to do so, the Tribunal may reinstate the application and give such directions as appear to it to be appropriate in the circumstances.
(10)If it appears to the Tribunal that an application has been dismissed in error, the Tribunal may, on the application of a party to the proceeding or on its own initiative, reinstate the application and give such directions as appear to it to be appropriate in the circumstances.
Section 42B of the AAT Act relevantly provides:
Power of Tribunal if a proceeding is frivolous, vexatious etc.
(1) The Tribunal may dismiss an application for the review of a decision, at any stage of the proceeding, if the Tribunal is satisfied that the application:
(a) is frivolous, vexatious, misconceived or lacking in substance; or
(b) has no reasonable prospect of success; or
(c) is otherwise an abuse of the process of the Tribunal.
(2) If the Tribunal dismisses an application under subsection (1), it may, on application by a party to the proceeding, give a written direction that the person who made the application must not, without leave of the Tribunal, make a subsequent application to the Tribunal of a kind or kinds specified in the direction.
(3) The direction has effect despite any other provision of this Act or any other Act.
SUBMISSIONS
Applicant
The Applicant’s representative, Mr Kolya, provided submissions in relation to the Applicant’s reinstatement application which are reproduced in full below:
APPLICATIONS 2019/0574 AND 2019/0575 ACTUAL RELATE TO COMCARE DECISIONS
ADMINISTRATIVE APPEALS TRIBUNAL ACT 1975 - SECT 25
What happens if decision-maker ceases to hold office etc.
(7) Where:
(a) a person has made a decision in respect of which an application may be made to the Tribunal;
(b) the person made the decision by reason that he or she held or performed the duties of an office or appointment; and
(c) the person no longer holds or performs the duties of the office or appointment;
this Act has effect as if the decision had been made by:
(d) the person for the time being holding or performing the duties of that office or appointment; or
(e) if there is no person for the time being holding or performing the duties of that office or
appointment or the office no longer exists--such person as the President or an authorised member
specifies.Interlocutory is a legal term which can refer to an order, sentence, decree, or judgment, given in an intermediate stage between the commencement and conclusion of a cause of action, used to provide a temporary relief or provisional decision on an issue.
Thus, an interlocutory order is not final and is not subject to immediate appeal.
In many U.S. legal systems, interlocutory orders are not appealable, save for in a few extraordinary
cases.[1] Interlocutory orders are orders that are issued by a court while a case is still ongoing. These orders are not meant to be final.[2]
When the case is concluded, any aspect of an interlocutory order that has not become moot may be challenged in an appeal from the final judgment.[3] However, in other legal systems, such as in
England and Wales, in Hong Kong, and in Canada, interlocutory orders in civil matters can be appealed by leave of the appellate court.
In criminal matters in Canada, the general rule is that there are no interlocutory appeals, except where Parliament has expressly provided. Australian courts and tribunals generally discourage appeals against interlocutory decisions.[4]
The Australian Administrative Appeals Tribunal (the AAT) was not set out to be like a State or a
Territory Civil and Administrative Tribunal in Australia.
In fact it is the most “superiorio” Tribunal in the Land. It is a Tribune superiori. It is a Tribunal of the
Commonwealth of Australia. Furthermore, the Australian Parliament in 1975 did not envisage that Civil disputes would be brought within the anxilla of the AAT nor that such disputes are to be adjudicated by the AAT.
Criminal Matters are the province of Magistrates as well as Territory and State Supreme Courts. The AAT has no Jurisdiction over such matters, or does it?THE TRAJECTORY AND WHY THE APPLICANT MS. GRACE AMIDIONG-OTYALUK IS
NOT AMENABLE TO MAKING AN AN INTERIM APPLICATION
Applying for an interim order or an injunction (is applying for an order to do or stop doing something)
In the State of Victoria or in the State of Queensland and in some cases, VCAT or QCAT can make an order for a party to do or stop doing something that may cause damage to another party. This is called an injunction. The AAT on the other hand can only make Stay Orders.
Subsection 41(2) of the Administrative Appeals Tribunal Act 1975 provides that a party may request that the AAT make an order staying or otherwise affecting the operation of implementation of the decision to which the proceeding relates.
In Victoria You can apply for an injunction when you first apply to VCAT or at any time before VCAT makes a final decision.
You usually need to go to a hearing to get an injunction. If VCAT agrees with your application, they
order the injunction.
There are two main types of injunction:
•an interim injunction – temporary until the case is heard at VCAT
•a permanent injunction.Interim injunctions
Sometimes they order someone to do or stop doing something temporarily. This is called an interim
injunction. It’s used to stop someone doing something (or to make them do something) urgently, until the case is heard at VCAT.
An interim injunction could be used to, for example:
•prevent someone from selling property where ownership is in dispute
•stop someone disposing of goods where payment is in dispute.An interim injunction is not:
•a way to speed up your case or get an urgent hearing
•permanent or the final outcome.
You can apply for an interim injunction at any time during the case, up until the final hearing.
Before you apply for an interim injunction
Applying for an interim injunction is serious. You must:
•explain to VCAT why the situation is urgent - for example, items in a storage unit dispute are about to be sold or destroyed
•guarantee to pay the other party compensation for any financial losses caused by the interim
injunction, if VCAT orders you to pay.
Before VCAT decides to order an interim injunction, they must be confident that it is the best way to
deal with the situation.
The Applicants will be asked to explain the important reasons for their application when they apply, or be ready to explain them at the urgent hearing.
They must show that:
•their case is serious
•they will suffer damage that can’t be compensated by a payment
•the injury or inconvenience to them will be greater than the injury or inconvenience the other party
would experience.
The Applicants must provide a statutory declaration with their application that provides the information above. Making sure that the declaration is signed and witnessed.Important financial and legal consequences
When you get an interim injunction, you guarantee to pay the other party compensation for any
financial losses it causes (if VCAT orders you to pay). For example, compensation for loss of property
value when an interim injunction temporarily stopped the property’s sale.
You give this guarantee at the hearing when VCAT decides whether to grant the injunction. It is called ‘an undertaking as to damages’. You usually give the guarantee verbally at the hearing and it is included in VCAT’ s written order.
VCAT may order you to pay the compensation if your case is unsuccessful at final hearing. A member will decide on the compensation based on evidence about the damage caused by the interim injunction.
You can apply when you first make an application to VCAT. You may be asked in the application form whether you are seeking an injunction, or you can include it when the form asks what you want VCAT to order.
If you already have a VCAT application in progress and you want something stopped temporarily until the dispute is resolved, you use the Application for Directions Hearing or Orders form.
When you apply you must:
•clearly explain why you need one
•include a statutory declaration with all the facts, including why the situation is urgent. For example, it will cause serious damage
•say what you want VCAT to order
•include contact details for all parties and anyone else who might be affected by the injunction.
Make sure the declaration is witnessed and signed
You also need to pay an extra fee when you apply.
What happens next
After you apply for an interim injunction, you may need to come to:
•a hearing where VCAT makes a decision about the injunction
•a mediation or compulsory conference where you try to reach agreement about the issues involved.
In very urgent situations, VCAT can order an immediate injunction without hearing from the
respondent. This is called an ‘ex parte’ injunction and it’s only for a short time (a few days). If they do this, they then arrange a hearing so all parties can have their say.Permanent injunctions are not dismissals of an application
A permanent injunction makes a party do something or stop doing something.
A permanent injunction can be used to make, for example:
•a person do something in a contract (for example, stick to conditions when selling a business)
•someone return items after getting a refund.
You can apply for a permanent injunction in your application form or in your Points of Claim.
VCAT can only make a permanent injunction at the end of the case.
You can ask for a permanent injunction:
•when you complete the application form for your case type.
•at any time before VCAT makes a final decision in your case, using an application for directions
hearing or orders.CONCLUSION
The AAT does not have any recourse in the matters discussed above because it only deals with administrative decisions and not civil disputes.
References
1. ^ "Appeal and Error". Corpus Juris Secundum. 4. Thomson West. 2007. pp. 129, § 140.
2. ^ "Interlocutory - Definition, Examples, Cases, Processes". Legal Dictionary. 31 Oct 2018.
Retrieved 31 Oct 2018.
3. ^ "Appeal and Error". Corpus Juris Secundum. 4. Thomson West. 2007. pp. 136, § 146.
4. ^ "Fair Work Decision: Button v Sykes Australia Pty Ltd". Fair Work Commission. 22 May
2014. Retrieved 1 May 2015.PREPARED BY
PETER KOLYA
LITIGATION GUARDIAN FOR THE APPLICANTDATE: 08 SEPTEMBER 2021
Respondent
The Respondent submits that it would not be appropriate for the Tribunal to reinstate the Applicant’s review applications. The Applicant was given due notice that her review applications could be dismissed if she failed to appear at the interlocutory hearing (or any hearing before the Tribunal). For example, the Tribunal’s listing notice of 4 June 2021 advised her that her applications could be dismissed if she failed to appear.[8] Also, on 6 April 2021, the Respondent’s solicitors reminded the Applicant of the Tribunal’s power to dismiss an application under s 42A(2)(a) of the AAT Act and reserved the right to make an application under that provision, where appropriate, on a future occasion.[9]
[8] Documents to accompany the Affidavit of Daniel D'Onofrio dated 11 June 2021, filed by Respondent on 15 June 2021, 814.
[9] Email from Daniel D’Onofrio, McInnes Wilson Lawyers, to Administrative Appeals Tribunal Canberra Registry, 6 April 2021.
The Applicant was given appropriate notice of the time and place of the interlocutory hearing. That notice was given by the Tribunal’s listing notice of 4 June 2021.[10] The listing notice was emailed to the Applicant by the Canberra Registry on 4 June 2021.[11] The Tribunal also sent an SMS to the Applicant on 12 July 2021,[12] confirming that the interlocutory hearing would proceed as listed, and the Tribunal attempted to call her on at least three occasions on the morning of the interlocutory hearing on 14 July 2021.[13]
[10] Documents to accompany the Affidavit of Daniel D'Onofrio dated 11 June 2021, filed by Respondent on 15 June 2021, 814.
[11] Ibid 810.
[12] SMS from Alice Beer, Administrative Appeals Tribunal Canberra Registry to Applicant, 12 July 2021.
[13] Respondent’s Submissions with respect to Application for Reinstatement of Matters under section 42A of the Administrative Appeals Tribunal Act 1975, dated 3 September 2021, filed by Respondent on 3 September 2021, 3 [2.16]
The Applicant’s failure to appear at the interlocutory hearing without giving advance notice of that contingency did not comply with her obligation to use her best endeavours to assist the Tribunal to fulfil the objective in s 2A of the AAT Act: cf s 33(1AB) of the AAT Act. In any event, no evidence has been provided by or on behalf of the Applicant which would reasonably excuse her failure to appear on 14 July 2021.[14]
[14] Ibid 5 [4.4].
In the circumstances, the Applicant’s applications were dismissed appropriately and in accordance with the procedures in s 42A(2)(a) and (7) of the AAT Act. In that respect, it cannot be said that the Applicant’s applications were dismissed in ‘error’ (cf s 42A(10) of the AAT Act) or otherwise dismissed in such a manner as to make it appropriate to exercise the Tribunal’s discretion to reinstate them.[15]
[15] Ibid [4.5].
Further, or in the alternative, the Applicant has not provided any reasonable basis for reinstating her applications. The only basis advanced by or on behalf of the Applicant is that Member Frost acted with ‘venom against all persons’ or that there was an apprehension of bias in him continuing to constitute the Tribunal in her applications.[16] However, the Applicant made those allegations in circumstances where there was either no evidence to support them or insufficient evidence to support the serious nature of such allegations: cf Briginshaw (1938) 60 CLR 336. Accordingly, these allegations ought properly to be put to one side.[17]
[16] Email from Peter Kolya to Administrative Appeals Tribunal Canberra Registry, 19 July 2021.
[17] Respondent’s Submissions with respect to Application for Reinstatement of Matters under section 42A of the Administrative Appeals Tribunal Act 1975, 5 [4.6].
Further, or in the alternative, the Respondent submits that it would not be appropriate for the Tribunal to reinstate the Applicant’s applications as doing so would be unfair and uneconomical to the Respondent. This is given the necessary requirement for the Respondent to devote further time and resources to the issue which it came prepared to the Tribunal to address on 14 July 2021 and also to the matters generally if the Respondent’s substantial dismissal applications were unsuccessful. Such a course would unduly protract the time devoted to the matters, which would not serve the objective of providing a review mechanism that is quick, just and economical: cf s 2A(b) of the AAT Act.[18]
[18] Ibid [4.7].
Further or in the alternative, the Respondent submits that reinstatement would not be appropriate in the circumstances of the historically minimal efforts made by the Applicant to proceed with her applications and her continued failure to comply with a direction of the Tribunal within a reasonable time. In that respect, the Applicant was represented until 6 April 2021 by a person who professes to have experience running matters in the Tribunal, and other tribunals and courts. However, neither the Applicant nor her representative made any reasonable, efforts to assist the Tribunal to provide a review mechanism which accords with s 2A of the AAT Act. Likewise, the Applicant has had, since 6 April 2021, ample opportunity to obtain alternative representation and has still not done so. Thus, even if the applications were to be reinstated (which is opposed), the Tribunal cannot be satisfied that any further latitude extended to the Applicant would be met with cooperation or the proper advancement of her case. On the contrary, the Applicant appears to have treated the Tribunal and its processes with indifference. Such unacceptable conduct is likely to continue.[19]
[19] Ibid [4.8].
Finally, the Respondent submits that reinstating the Applicant’s applications would essentially amount to an exercise in futility, given her matters would remain liable to dismissal under s 42A(5) and/or 42B of the AAT Act. In that respect, the Applicant’s review applications were liable to dismissal on 14 July 2021 because she had, at least, failed to comply with the direction of the Tribunal dated 22 April 2021.[20] There is no evidence which shows that the Applicant has taken any steps to remedy her non-compliance with the Tribunal’s direction. Nor is there any evidence to explain why she was unable to comply with that direction, which was clearly drafted in such a way as to assist her given either her self-represented status or in circumstances where the status of her representation was ambiguous.[21]
[20] Respondent’s Submissions in support of Dismissal under ss 42A(5) and/or 42B of the Administrative Appeals Tribunal Act 1975, dated 11 June 2021, filed by Respondent on 3 September 2021, 2 [2.8]-[2.9].
[21] Ibid [4.9].
CONSIDERATION AND REASONS
Sub-section 42A(9) of the AAT Act permits the Tribunal to reinstate a review application ‘[i]f it considers it appropriate to do so’. The provision does not indicate what may be considered appropriate reasons for reinstatement.[22]
[22] Dennis Pearce, Administrative Appeals Tribunal (LexisNexis, 5th ed, 2020) [15.8].
In Re De Simone and Commissioner of Taxation,[23] the Tribunal noted that its power to reinstate an application under ss 42A(9) is not at large; it is only intended to complement the operation of ss (8) and (8A).
[23] [2017] AATA 1005 [17]–[20].
Sub-section 42A(9) was considered by O’Callaghan J in Serpinli v Secretary, Department of Social Services (‘Serpinli’) who observed:
24. The Tribunal, in considering the applicant’s application for reinstatement, had regard to the relevant test in s 42A(9) of the AAT Act and correctly identified that the question for determination was whether it was “appropriate” to reinstate the application.
25. At the outset of the hearing in this case, the Tribunal confirmed that the issue before it was whether or not “it’s appropriate that [the applicant’s] case be reinstated”. The Tribunal said that in doing so it needed to consider: whether the applicant had reasonable excuse for failing to attend the hearing, and whether the application had prospects of success.
26. In considering whether to reinstate the application, the Tribunal can have regard to a range of factors in determining whether it is “appropriate” to reinstate an application. These factors may vary from case to case, but include a consideration of the merits of the substantive application, and in circumstances where the application was dismissed for failure to appear at the hearing, the explanation for it.[24]
[24] [2019] FCA 2029 [24]–[26].
In Somba and Minister for Home Affairs (Migration) (‘Somba’),[25] Deputy President Boyle accepted the Respondent’s submission that the relevant question for the Tribunal in exercising the discretion conferred on it under s 42A(9) is whether it is ‘appropriate’ to reinstate the substantive application.[26] The Respondent in Somba submitted that whilst the Tribunal’s discretion in respect of s 42A(9) is ‘broad’,[27] the following factors are frequently considered:
(a)the explanation for the applicant’s failure to appear at a hearing;
(b)the applicant’s conduct in prosecuting their application generally;
(c)prejudice to the parties;
(d)the merits of the substantive application;
(e)the public interest.[28]
[25] [2020] AATA 425 [34]–[35].
[26] Serpinli v Secretary, Department of Social Services [2019] FCA 2029 (Serpinli) [24] (O’Callaghan J).
[27] Rob and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] AATA 1 (Rob) [6].
[28] See Serpinli at [26]; Rob [6]; Fitzgibbon and Secretary, Department of Social Services [2018] AATA 2385 at [8] (Fitzgibbon); Weinrichova and Secretary, Department of Social Services [2018] AATA 4254 [14]. See also Zablotsky and Secretary, Department of Social Services [2019] AATA 4367 where the Tribunal found that there is merit in applying the well-established principles relevant to extension of time cases.
In Somba, the Deputy President considered that the ‘critical factors to be taken into account’ are those that were identified by O’Callaghan J in Serpinli, namely, the merits of the substantive application and the explanation for the Applicant’s failure to appear at the hearing.[29] The Deputy President noted O’Callaghan J’s reference to the factors to be taken into account as ‘varying from case to case’, and that these ‘include’ the two factors His Honour specifically identified. The Deputy President determined that the Tribunal also would address the other considerations that were raised by the parties.[30]
[29] Somba [35] citing Serpinli [25].
[30] Ibid.
The Tribunal respectfully adopts the approaches of the Deputy President in Somba and O’Callaghan J in Serpinli and considers the following factors in determining whether to exercise its discretion under s 42A(9) to reinstate the Applicant’s review applications.
The explanation for the Applicant’s failure to appear at the interlocutory hearing
The Applicant failed to appear at the interlocutory hearing on 14 July 2021, and accordingly the Tribunal was duly empowered to dismiss her applications for non-appearance in accordance with s 42A(2)(a) and (7) of the AAT Act.
The medical evidence provided by the Applicant with her submissions dated 13 July 2021, indicates that she is suffering from a medical condition which she claims has resulted in her incapacity to legally represent herself.
On the basis of the evidence before it, the Tribunal accepts that the Applicant is suffering from a medical condition and is unable to represent herself. It further accepts that her representative, Mr Kolya, was on medical leave on the day of the interlocutory hearing. However, the Applicant did not advise the Tribunal or the Respondent that she was unable to represent herself at the interlocutory hearing, nor did she seek an adjournment to allow her time to obtain alternative representation. No explanation was given by the Applicant for her failure to appear at the interlocutory hearing until the telephone directions hearing held on 6 August 2021 at which Mr Kolya appeared for the Applicant. The Tribunal does not consider the explanation given by Mr Kolya for the Applicant’s non-appearance at the interlocutory hearing to be acceptable in circumstances in which she was apparently aware of the hearing, but failed to communicate to the Tribunal her inability to attend and represent herself, or to request an adjournment to give her the time she needed to secure representation. In making this finding, the Tribunal notes that Mr Kolya had not been the Applicant’s representative since 6 April 2021 and that she therefore had a period of some three months to find alternative representation prior to the interlocutory hearing on 14 July 2021.
The Tribunal finds that the Applicant’s explanation for the Applicant’s failure to appear at the interlocutory hearing is unsatisfactory, and that it is a factor that weighs against her application for reinstatement of her review applications.
The Applicant’s conduct generally in progressing her review applications
The Applicant’s review application was lodged with the Tribunal on 29 January 2019. The Respondent filed and served its Statement of Facts, Issues and Contentions on 30 September 2019. On 17 October 2019 the Applicant filed and served her Statement of Facts, Issues and Contentions and her Response to the Respondent Issues and Contentions.
The hearing scheduled for 27-30 April 2021 was vacated at the request of the Applicant after her then representative, Mr Kolya, was no longer able to represent her from 6 April 2021 due to him taking medical leave. The Applicant did not comply with the directions made by the Tribunal on 22 April 2021 outlined in [10] above which required her to provide documents and/or information on or before 20 May 2021 to demonstrate her capacity to proceed with her application before the Tribunal.
The Applicant also did not fully comply with the Tribunal’s directions on 6 August 2021 outlined in [31] above requiring her to provide written submissions in support of her application for reinstatement and provide the name and contact details of her legal representative(s), by 3 September 2021. On 9 September 2021, the Applicant made submissions prepared by Mr Kolya reproduced in [38] above, but she did not provide details of the names and contact details of her legal representative(s). The Applicant remains non-compliant with this direction as of the date of this decision.
The Applicant’s failure to comply with the Tribunal’s directions is consistent with a pattern of non-attendance at scheduled conferences and hearings throughout the course of the proceedings. The Applicant or her representative failed to appear at the following scheduled conferences and hearings of the Tribunal:
·6 May 2019 – conciliation conference by telephone
·5 March 2020 – telephone directions hearing
·14 July 2021 – interlocutory hearing for dismissal application.
The Tribunal considers that the Applicant’s failure to appear at these scheduled conferences and hearings are indicative of her apparent indifference to the importance of these events for the progression of her review application.
In making this finding, the Tribunal has had regard to the obligation imposed on parties by section 33(1AB) of the AAT Act. Section 33(1AB) was introduced into the AAT Act by the Tribunals Amalgamation Act 2015 (Cth). The Explanatory Memorandum to the Tribunals Amalgamation Bill 2014 explained:
398. Item 55 would insert a new subsection 33(1AB) after subsection 33(1AA) of the AAT Act, that would require parties and their representatives to use their best endeavours to assist the Tribunal to fulfil its statutory objective in section 2A (Item 1). This is intended to assist the Tribunal in managing the conduct of reviews, by encouraging parties and their representatives to conduct themselves in a manner that would facilitate the fair, just, economical, informal and quick resolution of the matter at hand (amongst the other aspects of the Tribunal’s objective).
The Tribunal finds that the Applicant’s conduct, and that of those who have purported to represent her during these proceedings, has not been consistent with their obligation ‘to use their best endeavours to assist the Tribunal to fulfil its statutory objective in section 2A’ of the Act, and thereby ‘facilitate the fair, just, economical, informal and quick resolution of the matter at hand.’ The Tribunal finds that the failure by the Applicant and her representatives to meet the obligation imposed on them by s33(1AB) is a factor that weighs against her application for reinstatement of her review applications.
Prejudice to the parties
The Respondent submits that the reinstatement of the Applicant’s applications would be unfair and uneconomical to the Respondent as it would be required to devote further time and resources to the matter.[31] The Applicant made no submission on the issue of any prejudice to her of the review applications not being reinstated.
[31] Respondent's Submissions with respect to Application for Reinstatement of Matters under Section 42a of the Administrative Appeals Tribunal Act 1975, dated 3 September 2021, filed by Respondent 3 September 2021, 5 [4.7].
The Tribunal finds that the time and resources the Respondent has committed to preparation of the matters to proceed to hearing are outweighed by the prejudice to the Applicant if she has a meritorious case which would not be heard and determined if the review applications are not reinstated. This is a factor that weighs in favour of the Applicant’s application for reinstatement of her review applications.
The merits of the substantive review applications
Neither the Applicant nor the Respondent addressed the issue of the merits of the review application in their written submissions in relation to the application for reinstatement. The Tribunal must make its assessment of the merits of the substantive review applications following a review of the Statements of Facts, Issues and Contentions filed by the parties and the evidence lodged by the parties to date.
In Somba, Deputy President Boyle considered the level of merit required of the substantive application in determining an application for reinstatement. He adopted the standard used by the Tribunal in Serpinli, which was not criticised by Justice O’Callaghan on appeal, namely whether it was demonstrated that there was a ‘reasonable case to advance’.[32]
[32] Serpinli [35].
In Fitzgibbon and Secretary, Department of Social Services, the Tribunal refused an application for reinstatement as it found that the review application ‘had little to no prospect of success’.[33]In CDJR and Australian Research Council, the Tribunal also refused a reinstatement application because it was not satisfied that ‘there are any reasonable prospects of success of his application’.[34] Similarly, in Rob and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs, the application for reinstatement was refused by the Tribunal as it found that the ‘application for review had no reasonable prospects of success’.[35]
[33] [2018] AATA 2385 [35].
[34] [2012] AATA 525 [19].
[35] [2020] AATA 1 [12].
In Somba, Deputy President Boyle found that even the test considered by Deputy President Forgie in John Oates and Secretary, Department of Social Security, namely, that ‘provided the party seeking reinstatement can establish a prima facie case and it is fair to the other party to reinstate the application, it will be reinstated’,[36] was not met by the Applicant in that case.
[36] [1994] AATA 252; (1994) 37 ALD 241 [18].
In its submissions in support of dismissal of the review applications under s 42A(5) or s 42B of the AAT Act, the Respondent addressed the issue of the merit of the review applications:
For present purposes, it may be accepted that [the Applicant’s] matter is not so wanting of merit that it should be dismissed nor so meritorious that it should not. In the circumstances of this matter, the issue of ‘merit’ may be given neutral weight in the exercise of the discretion to dismiss.[37]
[37] Respondent’s Submissions in Support of Dismissal Under ss 42A(5) and/or 42B of the Administrative Appeals Tribunal Act 1975, dated 11 June 2021, filed by Respondent on 15 June 2021 8 [4.35].
The Tribunal has reviewed the Statements of Facts, Issues and Contentions filed by the parties and the witness statements and evidence lodged by the parties to date.The Tribunal is satisfied, that applying the test outlined in the authorities cited in [67]-[69] above, that the Applicant has a ‘reasonable case to advance’.[38] Accordingly, the Tribunal finds that this factor weighs strongly in favour of her application for reinstatement of her review applications.
[38] Serpinli [35].
Having considered the factors the Tribunal considers relevant in this matter to the exercise of its Tribunal’s discretion under s 42A(9), the Tribunal finds on balance that they weigh in favour of the reinstatement of the substantive review applications. It therefore finds that it is appropriate to reinstate the applications and therefore it allows the Applicant’s application made under s 42A(9) of the AAT Act for the reinstatement of the applications for review of the Reviewable Decisions.
DECISION
The application for reinstatement is allowed.
I certify that the preceding 73 paragraphs (seventy-three) are a true copy of the reasons for the decision herein of Senior Member Linda Kirk..............................[sgd]...............................
Associate
Dated: 22 December 2021
Date of hearing:
13 October 2021
Date final submissions received:
7 September 2021
Non-Legal Advocate for Applicant:
Peter Kolya
Solicitor for Respondent:
Daniel D’Onofrio, McInnes Wilson Lawyers
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