Andelman v Administrative Appeals Tribunal - [2011] FCA 815

FEDERAL COURT OF AUSTRALIA
Andelman v Administrative Appeals Tribunal [2011] FCA 815

Citation: Andelman v Administrative Appeals Tribunal
[2011] FCA 815

Appeal from: Application for extension of time: Andelman v Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2011] FCA 299

Parties: MIKHAIL ANDELMAN v ADMINISTRATIVE APPEALS TRIBUNAL and SECRETARY, DEPARTMENT OF FAMILIES, HOUSING, COMMUNITY SERVICES & INDIGENOUS AFFAIRS

File number: NSD 608 of 2011

Judge: NICHOLAS J

Date of judgment: 4 July 2011

Legislation: Administrative Appeals Tribunal Act 1975 (Cth)

Cases cited: Jess v Scott (1986) 12 FCR 187

Date of hearing: 4 July 2011

Place: Sydney

Division: GENERAL DIVISION

Category: No Catchwords

Number of paragraphs: 20

Counsel for the Applicant: The Applicant appeared in person with the assistance of an interpreter

Solicitor for the Second Respondent: Mr A Markus of Australian Government Solicitor

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

GENERAL DIVISION

NSD 608 of 2011

BETWEEN:
MIKHAIL ANDELMAN
Applicant

AND:
ADMINISTRATIVE APPEALS TRIBUNAL
First Respondent

SECRETARY, DEPARTMENT OF FAMILIES, HOUSING, COMMUNITY SERVICES & INDIGENOUS AFFAIRS
Second Respondent

JUDGE:

NICHOLAS J

DATE OF ORDER:

4 JULY 2011

WHERE MADE:

SYDNEY

THE COURT ORDERS THAT:
1.Secretary, Department of Families, Housing, Community Services & Indigenous Affairs be joined as the second respondent.
2.The service of any amended application is dispensed with.
3.The application is dismissed.
4.The applicant is to pay the second respondent’s costs of this application.

Note:Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
The text of entered orders can be located using Federal Law Search on the Court’s website.

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

GENERAL DIVISION

NSD 608 of 2011

BETWEEN:
MIKHAIL ANDELMAN
Applicant

AND:
ADMINISTRATIVE APPEALS TRIBUNAL
First Respondent

SECRETARY, DEPARTMENT OF FAMILIES, HOUSING, COMMUNITY SERVICES & INDIGENOUS AFFAIRS
Second Respondent

JUDGE:

NICHOLAS J

DATE:

4 JULY 2011

PLACE:

SYDNEY

REASONS FOR JUDGMENT
(Revised from Transcript)
BACKGROUND

This is an application for an order extending the time within which the applicant may file an appeal against the decision of a Judge of this Court (Jagot J) given on 31 March 2011: see Andelman v Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2011] FCA 299. Any notice of appeal from that decision should have been filed by 21 April 2011. The application for an extension of time was not filed until 11 May 2011. The applicant appeared for himself before me, though he was represented before the primary judge by counsel who accepted a referral under Order 80 of the Federal Court Rules.
The present application, as filed, is deficient in that the sole respondent in the proceeding before the primary judge, the Secretary, Department of Families, Housing, Community Services & Indigenous Affairs (the Secretary) was not joined as a respondent to the application. I indicated at the commencement of the hearing that I would make an order joining the Secretary as the second respondent.
The application for an extension of time…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Keep reading for free

Create a free CaseChat account to read Andelman v Administrative Appeals Tribunal and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2011] FCA 815
Decision Date: 4 July 2011

CaseChat Overview and Summary

In the matter of Andelman v Administrative Appeals Tribunal, the applicant contested the decisions made by the Tribunal. The central issues revolved around the interpretation and application of sections 21A and 42A(5) of the Act, particularly concerning the Tribunal's authority to dismiss an application for review without proceeding to review the decision if the applicant fails to comply with the Tribunal's directions or proceed within a reasonable time. The applicant argued that the Tribunal erred in dismissing his application without review, claiming procedural unfairness and an improper interpretation of the relevant statutory provisions.

The court carefully examined the statutory provisions and relevant case law to determine whether the applicant's requests for the Tribunal to be reconstituted constituted an application under s 21A(1) of the Act. The court concluded that the applicant's requests did not meet the criteria of s 21A as they were based on the ground of bias rather than matters of public importance. Furthermore, the court found that the Tribunal was not precluded by procedural fairness from dismissing the application due to the applicant's conduct, which included walking out of the hearing before the Tribunal could provide any meaningful assistance or understanding of its procedures.

Given the applicant's lack of challenge to the primary judge's findings and the clear authority supporting the Tribunal's actions, the court found no merit in the applicant's appeal. The court upheld the Tribunal's dismissal of the application without review, emphasizing that the applicant's failure to proceed within a reasonable time and his conduct during the hearing justified the Tribunal's exercise of its power under s 42A(5) of the Act.

ORDERS:
1. Secretary, Department of Families, Housing, Community Services & Indigenous Affairs be joined as the second respondent.
2. The service of any amended application is dispensed with.
3. The application is dismissed.
4. The applicant is to pay the second respondent’s costs of this application.

Orders

Orders of the court

1. Secretary, Department of Families, Housing, Community Services & Indigenous Affairs be joined as the second respondent.

2. The service of any amended application is dispensed with.

3. The application is dismissed.

4. The applicant is to pay the second respondent’s costs of this application.

Note:

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

The first and second questions of law considered by the primary judge concern the operation of s 21A and s 42A(5) of the Act. Section 21A of the Act provides:(1)At any time during the hearing of a proceeding before the Tribunal (other than a proceeding in which the Tribunal is constituted by a presidential member who is a Judge and 2 other members), a party to the proceeding may apply to the Tribunal as constituted for the purposes of the proceeding requesting that the Tribunal be reconstituted for the purposes of the proceeding.(2)Upon the making of an application under subsection (1), the Tribunal as constituted for the purposes of the proceeding shall, after receiving the submissions made in support of the application and any submissions made in opposition to the application, notify the President of the making of the application and give him or her particulars of those submissions.(3)The President may, after taking the submissions into account, if he or she considers that the matters to which the proceeding relates are of such public importance as to justify him or her in so doing, give a direction that the Tribunal as constituted for the purposes of the proceeding be reconstituted by:(a)adding one or more members; or(b)removing one or more members; or(c)substituting one or more other members;(or any combination of these).Section 42A(5) of the Act relevantly provides: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.THE PRIMARY JUDGE’S DECISION The primary judge found that neither the applicant’s written nor his oral requests that another member of the Tribunal hear his case purported to be, or was, an application under s 21A(1) of the Act. Her Honour reviewed various authorities concerned with s 21A and concluded that the applicant’s letter of 8 October 2010 was not an application for the purposes of that section. Her Honour said at [30]:… Ordinarily, an application that a decision-maker disqualify himself or herself on the ground of bias (apprehended or actual) must be made in the first instance by the decision-maker in question. Section 21A is not a substitute for the ordinary common law position. The section has a limited operation. The touchstone of it[s] operation is that the matters to which the proceeding relates be matters which the President might consider of such public importance as to justify the giving of a direction for reconstitution of the Tribunal. Accordingly, if a party requests reconstitution of the Tribunal merely on the ground of bias (actual or apprehended) then, in the ordinary course, the Tribunal would be entitled to treat that application as one based on the common law principles by which the Tribunal is bound and not as an application under s 21A of the AAT Act. Nothing in such an application, in the ordinary course, would engage the provisions of s 21A. This conclusion is consistent with the recent decision of Downes J in Kowalski and Repatriation Commission [2011] AATA 197.

Ratio Decidendi

Legal Principle Established

The second and third questions with which the primary judge was concerned were fully considered by her Honour. After reviewing various authorities concerned with the matter of procedural fairness in the context of a hearing at which a party is self-represented (as the applicant was at the hearing before the Tribunal) the primary judge concluded that she was not satisfied that the requirements of procedural fairness precluded the Tribunal from exercising this power in all of the circumstances which confronted it on 29 October 2010. Her Honour added (at para [37]):In reaching this conclusion I have given full weight to Mr Andelman’s lack of legal representation, age (he is in receipt of an old age pension), difficulties with the English language (he speaks and understands some English but it is clearly not his first language), and emotional state (he appeared from the transcript to have been in emotional distress at the Tribunal hearing and exhibited similar distress in the course of the appeal before this Court). All of these factors indicate that Mr Andelman needed substantial help from the Tribunal in order to understand its procedures and to enable him to obtain a fair hearing. The conclusion which I have drawn is that nothing the Tribunal did operated to deprive Mr Andelman of the help he required. To the contrary, by his own conduct, Mr Andelman disabled the Tribunal from providing him with any explanation of its procedures or with any assistance so as to ensure a fair hearing of his application for review on its merits.CONSIDERATION The applicant made no real attempt to point to any error on the part of the primary judge and his proposed notice of appeal does not do so either. Nevertheless, for the purpose of considering the merits of the application for an extension of time, I have looked at the primary judge’s reasons for decision more broadly. Mr Markus, who appeared for the Secretary (and who also appeared for her below), approached the present application and the primary judge’s reasons for decision in a similar spirit. The proposition that s 21A is directed to circumstances where a party applies to have the Tribunal reconstituted on the basis that the matters to which it relates involve an element of public importance is clear from s 21A as a whole including, in particular, sub-section (3) which provides, in effect, that the President may only make a direction (or combination of directions) pursuant to that sub-section if he or she is so satisfied. Neither the applicant’s letter nor his oral submission to the Tribunal suggested that any of the matters to which the proceeding before the Tribunal related were of public importance. Accordingly, I do not think that any challenge to her Honour’s answer to the first of the questions raised by the amended notice of appeal has any prospect of success. As to the primary judge’s consideration of the second and third questions, her Honour found that the applicant disabled the Tribunal from providing him with any explanation of its procedures or with any assistance so as to ensure a fair hearing of his application for review on its merits. The applicant has not challenged that finding before me. In any event, it is a finding that was clearly open to the primary judge and one which was in my view fully justified having regard to the transcript of what occurred at the 29 October 2010 hearing. In essence, the applicant walked out of the hearing of 29 October 2010 before the Tribunal had any real opportunity to gain a proper appreciation of the application being made or the strength of the reasons behind it or for the Tribunal to provide assistance to the applicant in allowing him to understand the procedures that ought to be followed with a view to ensuring that he obtained a fair hearing. Any challenge to her Honour’s findings to this effect would have no prospect of success. By walking out as he did, the applicant failed to proceed with his application within a reasonable time and the Tribunal’s power to dismiss the application without reviewing the decision was thereby enlivened. The Tribunal was entitled to dismiss the application pursuant to s 42A(5) of the Act without reviewing the decision. CONCLUSION

Citation:	Andelman v Administrative Appeals Tribunal [2011] FCA 815
Appeal from:	Application for extension of time: Andelman v Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2011] FCA 299
Parties:	MIKHAIL ANDELMAN v ADMINISTRATIVE APPEALS TRIBUNAL and SECRETARY, DEPARTMENT OF FAMILIES, HOUSING, COMMUNITY SERVICES & INDIGENOUS AFFAIRS
File number:	NSD 608 of 2011
Judge:	NICHOLAS J
Date of judgment:	4 July 2011
Legislation:	Administrative Appeals Tribunal Act 1975 (Cth)
Cases cited:	Jess v Scott (1986) 12 FCR 187
Date of hearing:	4 July 2011
Place:	Sydney
Division:	GENERAL DIVISION
Category:	No Catchwords
Number of paragraphs:	20
Counsel for the Applicant:	The Applicant appeared in person with the assistance of an interpreter
Solicitor for the Second Respondent:	Mr A Markus of Australian Government Solicitor

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION	NSD 608 of 2011

JUDGE:	NICHOLAS J
DATE OF ORDER:	4 JULY 2011
WHERE MADE:	SYDNEY

JUDGE:	NICHOLAS J
DATE:	4 JULY 2011
PLACE:	SYDNEY