Avetmiss Easy Pty Ltd and Australian Skills Quality Authority
[2014] AATA 99
[2014] AATA 99
Division GENERAL ADMINISTRATIVE DIVISION File Number(s)
2013/5304
Re
Avetmiss Easy Pty Ltd
APPLICANT
And
Australian Skills Quality Authority
RESPONDENT
DECISION
Tribunal Deputy President J W Constance
Date 24 February 2014 Date of written reasons 27 February 2014 Place Melbourne The application for an extension of time to review the decision of the respondent Authority made 2 August 2012 is dismissed in accordance with s 42A(2) of the Administrative Appeals Tribunal Act 1975 by reason of the applicant’s failure to attend the telephone directions hearing on 24 February 2014.
.......................[sgd].................................................
Deputy President J W Constance
CATCHWORDS
PRACTICE AND PROCEDURE – application for extension of time – power of Tribunal to dismiss an application under s 42A(2) - whether extension of time application is a proceeding for the purposes of section 42A(2) - application dismissed by reason of the applicant’s failure to appear at a directions hearing.
LEGISLATION
Administrative Appeals Tribunal Act 1975 (Cth) ss 3(1), 29(7), 33(1)(a), 42A(1B), 42A(2), 42A(8)
National Vocational Education and Training Regulator Act 2011 (Cth)
CASES
Re Confidential and Child Support Registrar (2010) 116 ALD 623
REASONS FOR ORAL DECISION MADE 24 FEBRUARY 2014
Deputy President J W Constance
27 February 2014
INTRODUCTION
On 24 February 2014 I dismissed an application by the applicant Company for an extension of time in which it could apply to the Tribunal to review a decision of the respondent Authority made on 2 August 2012. I now provide my reasons for this decision.
BACKGROUND
In August 2012 the applicant Company applied to the Tribunal to review a decision of the respondent Authority refusing to register the Company as a registered training organisation under the National Vocational Education and Training Regulator Act 2011 (Cth) (“the NVR Act”). The Company attached to its application a copy of the decision it was seeking to have reviewed in the form of a copy letter dated 2 August 2012 from the Authority to the Company.
In August 2013, when the matter was part-heard before the Tribunal the Company withdrew its application. At the time the Company was represented by Counsel. In accordance with subsection 42A(1B) of the Administrative Appeals Tribunal Act 1975 (Cth) the Tribunal was taken to have dismissed the application.
The Company then applied to re-instate the application. In September 2013 I heard and refused this application. The Company’s appeal against this refusal is presently before the Federal Court of Australia.
The present application before me was lodged by the Company on 15 October 2013. It seeks an extension of time to lodge an application to review the same decision as the subject of the application lodged by the Company in August 2012 to which I have referred earlier in these reasons. A copy of the letter of 2 August 2012 was attached to the application for an extension of time and was identified as the reviewable decision.
After clarification by the Company as to the orders being sought, the application for an extension of time was listed for hearing on 12 December 2013. On 20 November 2013 the Company applied for an adjournment of the hearing on the ground of Mr Smith’s illness. Mr Smith is a Director of the Company and represents the Company in this matter. The hearing was adjourned to a date to be fixed.
On 12 February 2014 a member of the staff of the Tribunal telephoned Mr Smith and enquired whether he was ready to have the hearing of the application relisted. Mr Smith advised that he was and it was agreed that the application would be listed for a telephone directions hearing at 10am on 24 February 2014. Mr Smith was advised that at the telephone directions hearing he would be asked if the Company wished to proceed with its application and if it did, the application would be set down for hearing.
The matter was listed for a telephone directions hearing at 10am on 24 February 2014. Just prior to 10am on that day my Associate telephoned Mr Smith to establish the necessary telephone hook-up to allow the directions hearing to proceed. Mr Smith informed my Associate that he had sent an email to the Authority and to the Tribunal that morning and that it was essential that I read this email before the directions hearing. Mr Smith asked if the directions hearing would proceed; my Associate advised him that after I had read his email she would telephone him to proceed with the directions hearing or to let him know if the situation was otherwise. She requested that he remain available to be contacted by telephone for the next half an hour. During this discussion Mr Smith stated that he objected strongly to the matter proceeding and that he objected to Mr Cribb (the Solicitor for the Authority) and myself being involved in the directions hearing.
Further enquiries revealed that an email from Mr Smith had been received in the Tribunal Registry email mailbox at 9.49am that day. I read the email and decided to hold the directions hearing.
The relevant sections of the email read as follows:
I refer to today's directions hearing forced upon me against my verbal submissions which will be held by the AAT I believe at 10am this morning. First of all thank you to the tribunal for moving this hearing due to my Nov/Dec surgery (gastrointestinal bypass) and I have since recovered quite well. Since that time as you can appreciate related matters have been brought to the Federal Court and I [sic] as this is a directions hearing I happily and willingly participate in the hearing by telephone. I make the following requests of certain parties:
…
3. Directed to the Registrar of the Victorian AAT -
a) I solely re-object to this hearing or any further part of this hearing taking place until the final determination of VID 1102 2013 as there may be relevance in the reasons for the decision that could potentially prejudice either party. It is also inappropriate as the AAT is a 2nd respondent in that very proceeding. I will make submissions however on the merit of why at this directions hearing to any member other than the President (if available) should hear these reasons. To reiterate, I am further requesting that not solely dependent on Her Honour's Justice Mortimer's current judgement that is reserved, his Honour the President hold and coordinate any and all potential future hearings if any hearings in relation to this entire matter occur within this tribunal. I further state that I may request a judicial review directly to the Federal Court and it would prejudice my case to do so at this present time. I therefore ask for reconstitution of this directions hearing by the President, and rely upon Division 3, 21A, 23B and 23D of the Administrative Appeals Tribunal Act 1975. I further restate now in writing I am asking for a stay until a full and final decision is made by Her Honour Justice Mortimer (including any interlocutory or related future request or order) either I or the other party make. The evidence I rely on will be summarised verbally if this proceeding is to go ahead, but as the AAT is a respondent in the reinstatement of this decision whose time was lost due to what I believe to be errors of law and other reasons caused by the regulator, it may require a full hearing or order from the Federal Court. I simply want a fair trial and the ability to reserve my rights based on commentary in the Federal Court and conflicting issues with the Presidents 'Reason for Decision', in the reinstatement of this same exact appeal (which must hold some weight). The AAT are of course a respondent.[1]
[1] Email from Mr Smith sent 24 February 2014 at 9:49am
The directions hearing commenced and at approximately 10:14am my Associate attempted to call Mr Smith. He did not answer the call. She called again approximately two minutes later and again he did not answer the call. I spoke to the Solicitor for the Authority and then dismissed the application by reason of the failure of the Company to appear at the directions hearing.
REASONING
Subsection 42A(2) provides:
(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) in any other case—direct that the person who failed to appear shall cease to be a party to the proceeding.
I am satisfied that Mr Smith, representing the Company, was aware that the directions hearing was listed for 10am on 24 February 2014. The Company was advised of the listing by notice dated 12 February 2014. In the telephone conversation between Mr Smith and my Associate and in his email of 24 February 2014 Mr Smith confirmed that he was aware of the listing.
Despite Mr Smith’s allegation in the application for an extension of time that there were two reviewable decisions made by the Authority, it is clear that the decision in respect of which an extension of time is sought, is the same decision as that which the Tribunal considered in the application which was withdrawn by the Company and which is the subject of the proceedings presently being considered by the Federal Court.
The only reason the directions hearing did not proceed at 10am on 24 February 2014 (when it was listed to commence) was Mr Smith’s request that I read the email he had sent a few minutes earlier. His request for delay in commencing the directions hearing was granted and he did not indicate that there would be any difficulty in the Tribunal contacting him within the following 30 minutes. Mr Smith had previously indicated that he opposed the directions hearing proceeding and he confirmed this in the email. I note that when the August 2012 application by the Company was being heard by the Tribunal, Mr Smith failed to appear before the Tribunal without providing a proper explanation for so doing. He was in the process of giving evidence at the time.
Subsection 42A(8) provides that an applicant may apply to the Tribunal for the reinstatement of an application dismissed under subsection 42A(2). Such an application may be made within 28 days after the applicant received notification that the application has been dismissed.
The power to dismiss an application given to the Tribunal by subsection 42A(2) is discretionary. In deciding that the failure of the Company to appear warranted dismissal of the proceedings, I have taken into account also the nature of the application before me and its progress thus far. The application is for an extension of time to lodge an application to review a decision of the Authority made on 2 August 2012. This is the same decision which the Tribunal was in the process of reviewing when the previous application was withdrawn on the instructions of Mr Smith on behalf of the Company. The Company has proceedings before the Federal Court seeking to set aside the decision of the Tribunal refusing to re-instate the withdrawn application. If that appeal is successful the present application to the Tribunal will be unnecessary. If it is not, subject to the decision of the Court, the Company will be in a position to lodge another application for an extension of time if it wishes to do so.
It is clear from correspondence from Mr Smith that the Company did not wish to have this application for an extension of time heard by the Tribunal at this stage. Rather it was seeking that the Tribunal stay its application for an extension of time until after the Federal Court proceedings have been determined. Only in exceptional circumstances (which are not established in this case) would the Tribunal not proceed to determine an extension of time application as expeditiously as possible. If the extension of time is granted it may be appropriate in some circumstances for the Tribunal to grant a request to delay the further conduct of the application for review. However, proceedings are usually delayed only after the Tribunal has ordered an extension of time and an application to review a decision has been made. In fairness to the Authority it should be in position to be aware as soon as possible whether a request to commence proceedings out of time will be granted or refused.
It appears that those advising the Company see some advantage to the Company in its having this application remain before the Tribunal without proceeding to have it determined. This is not a situation which the Tribunal should allow to continue. Section 2A of the Act requires the Tribunal to “pursue the objective of providing a mechanism of review that is fair, just, economical, informal and quick.” To have allowed this application to proceed in the manner proposed by the Company would be contrary to the requirements of this section.
In reaching my decision I have given careful consideration to the decision of Deputy President Forgie in Re Confidential and Child Support Registrar.[2] Regretfully I am unable to agree with the decision of the Deputy President that the Tribunal does not have the power to dismiss an application for an extension of time by reason of the applicant’s failure to appear at a directions hearing. I note that Deputy President Forgie decided that while such an application is a “proceeding before the Tribunal” within the opening words of subsection 42A(2), it is not a proceeding before the Tribunal “in respect of an application for the review of a decision.”[3]
[2] (2010) 116 ALD 623; [2010] AATA 577.
[3] (2010) 116 ALD 623, 626.
“Proceeding” is defined in subsection 3(1) of the Act to include:
(a) an application to the Tribunal for review of a decision;
…
(f) any other application to the Tribunal under this Act or any other Act;
…
(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.
In my view it is not necessary to consider the wording of sub-paragraph (h). An application for an extension of time to make an application to review a decision is an application under the Act other than any of the applications listed in sub-paragraphs (a) to (e) inclusive. Subsection 29(7) provides for the making of an application for an extension of time and is therefore “an application to the Tribunal under this Act.”
Subsection 42A(2) requires that the “proceeding” be “in respect of an application for the review of a decision.” In my view an application for an extension of time to review a decision is such a proceeding. If it was intended that an application for an extension of time be excluded from subsection 42A(2) the opening words would have read “if a party to a proceeding before the Tribunal to review a decision…”
Considering all of the powers given to the Tribunal in the Act and reading the Act as a whole I have reached the conclusion that it was not the intention of Parliament to deny the Tribunal power to dismiss one particular type of application when the applicant fails to appear. I find support for this view in the provisions of subsection 33(1)(a) of the Act which provides:
(1) In a proceeding before the Tribunal:
(a) the procedure of the Tribunal is, subject to this Act and the regulations and to any other enactment, within the discretion of the Tribunal;
For these reasons I decided that the application for an extension of time to review the decision of the respondent Authority made 2 August 2012 was dismissed in accordance with s 42A(2) of the Administrative Appeals Tribunal Act 1975 by reason of the applicant’s failure to attend the telephone directions hearing on 24 February 2014.
I certify that the preceding 24 (twenty -four) paragraphs are a true copy of the reasons for the decision herein of .....................[sgd]...................................................
Associate
Dated 27 February 2014
Date(s) of hearing 24 February 2014 Representative for the Applicant Mr S Smith Advocate for the Respondent Mr P Cribb
2