Avetmiss Easy Pty Ltd and Australian Skills Quality Authority
[2013] AATA 732
[2013] AATA 732
Division GENERAL ADMINISTRATIVE DIVISION File Number
2012/3728
Re
Avetmiss Easy Pty Ltd
APPLICANT
And
Australian Skills Quality Authority
RESPONDENT
DECISION
Tribunal Deputy President J W Constance
Date 17 September 2013 Place Melbourne The application of the Applicant to re-instate the application made by it on 29 August 2012, is refused.
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Deputy President J W Constance
Catchwords
VOCATIONAL EDUCATION AND TRAINING – application for reinstatement – whether application dismissed in error – fairness of the decision to abandon proceedings – whether applicant company informed of the effect of dismissal – application for reinstatement refused
Legislation
Administrative Appeals Tribunal Act 1975 (Cth)
National Vocational Education and Training Regulator Act 2011 (Cth)
Cases
Goldie v Minister for Immigration and Multicultural and Indigenous Affairs (2002) 121 FCR 383
Katterns v Comcare [2002] FCA 1366
Re Oates and Secretary Department of Social Security (1994) 37 ALD 241
Re White and Secretary, Department of Families, Community Services and Indigenous Affairs (2007) 97 ALD 204
REASONS FOR DECISION
Deputy President J W Constance
11 October 2013
BACKGROUND
On 29 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 application progressed through the usual pre-hearing and alternative dispute resolution processes of the Tribunal and was listed for hearing on 20-23 August 2013, inclusive.
At the hearing the Company was represented by Counsel instructed by Mr Smith, the Chief Executive Officer of the Company. The hearing commenced on 20 August 2013. Mr Smith was called as the first witness for the Company and was being cross-examined on behalf of the Authority when the hearing was adjourned to resume at 10am the following day, 21 August 2013.
When the hearing resumed Mr Smith was not present to continue giving evidence. Counsel for the Company informed the Tribunal that she was instructed:
·to seek to have the Tribunal decide a particular legal issue which was in contention between the parties; and
·if the Tribunal was not able to confine its decision to the legal issue alone, the application was to be withdrawn in its entirety.[1]
[1] Transcript 21/08/13 p.3; exhibit R1, exhibit A.
After considerable discussion[2] between the Senior Member, Counsel for the Company and Counsel for the Authority, the Senior Member informed the parties that in order to decide the legal issue as requested by the Company, it would be necessary to continue to hear the matter. This would have required a resumption of the taking of Mr Smith’s evidence. The Senior Member indicated that he would do this if that was the wish of the Company. At this point Counsel for the Company advised the Tribunal that in those circumstances she was instructed to withdraw the application.
[2] The transcript shows the discussion proceeded for 36 minutes.
Whilst the hearing was still being conducted Counsel for the Company completed and lodged with the Tribunal a written notice in accordance with sub-section 42A(1A) of the Administrative Appeals Tribunal Act 1975 (Cth) withdrawing the application. The notice was signed by Counsel for the Company and was dated 21 August 2013. The relevant part of the document read:
In accordance with section 42A (1A) of the Administrative Appeals Tribunal Act 1975, I hereby advise the application is discontinued/withdrawn.[3]
[3] Exhibit R1, exhibit B.
On 23 August 2013 the Company applied to have the application re-instated in accordance with sub-section 42A(10) of the Act.
On 17 September 2013 I dismissed the application for reinstatement and gave my reasons for so doing orally. These written reasons are provided at the request of the Company in accordance with section 43 of the Act.
LEGISLATION
Section 42A of the Act relevantly provides:
(1A)A person who has made an application to the Tribunal for a review of a decision may, in writing lodged with the Tribunal, at any time notify the Tribunal to the effect that the application is discontinued or withdrawn
(1B)If notification is so given, the Tribunal is taken to have dismissed the application without proceeding to review the decision
…
(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.
THE COMPANY’S ARGUMENT
On 6 September 2013 the Tribunal made the following direction:
On or before 13 September 2013, the applicant file with the Tribunal and serve on the respondent a written statement of the facts and the grounds on which he (sic) intends to rely in support of this application.
In a statement filed in response to this direction the Company identified several aspects of the manner in which the Tribunal conducted the hearing which it claimed were “errors”. In summary, the errors identified in the statement are:
·the application for a review of the Authority’s decision “was never heard either partially or in full”[4];
·the Tribunal refused the Applicant the right to a fair hearing;
·the Senior Member failed to address “the requirement to allow an unfair agreement to abandon proceedings without any inquisitive direction in [Mr Smith’s] absence” [5](sic).
[4] Applicant’s statement dated 11 September 2013 para.2.
[5] At para 10.
During the hearing of this application for re-instatement I afforded Mr Smith several opportunities to address the error or errors which he said were involved in the dismissal, rather than in the conduct of the hearing by the Senior Member. He continued to complain about the manner in which the hearing of the application for review was conducted.
Mr Smith did refer briefly to several other matters which I have considered as allegations of error in the dismissal of the application. These are:
·Counsel did not inform him of the effect of the dismissal[6];
·on withdrawal of an application with a right to re-instatement an applicant can return to the Tribunal and advise of the deficiencies in the previous hearing[7];
·based on advice he had been given by Counsel (not Ms Fitzgerald), he understood there was a difference between “withdraw” and “dismiss”.[8]
REASONING
A. Was the application dismissed in error?
[6] Transcript 17/09/13 p.6.
[7] Transcript 17/09/13 p.10.
[8] Transcript 17/09/13.
The alleged errors in the manner in which the hearing was conducted
The scope of the error which must be established to enable the Tribunal to exercise the discretion given to it by subsection 42A(10) of the Act is not limited to an administrative error made by the Tribunal or a member of its staff; any error sufficiently proximate to the dismissal under subsection 42A(1B) may enliven the discretion.[9] However it is the act of dismissal, and not the preceding hearing, which must be shown to have been attended by error.[10]
[9] Goldie v Minister for Immigration and Multicultural and Indigenous Affairs (2002) 121 FCR 383.
[10] Goldie v Minister for Immigration and Multicultural and Indigenous Affairs (2002) 121 FCR 383, 388.
If there was an error in the manner of the conduct of the earlier hearing, the Company had available to it the appropriate remedies and was represented by Counsel who could have (and may have) advised the Company in relation to them. However the conduct of that part of the hearing which affected the lodging of the notice of withdrawal is a relevant consideration.[11]
[11] In Katterns v Comcare [2002] FCA 1366 the Federal Court examined the process by which the Tribunal reached its decision to dismiss an application under subsection 42A(5).
The failure of the Tribunal to investigate the fairness of the decision to abandon the proceedings
As the company was represented by Counsel who precisely informed the Tribunal of her instructions prior to lodging the notice of withdrawal, there was no obligation on the Tribunal to address the “agreement” of the Company to take this step. There is nothing in the Act which imposes such a requirement, nor would it be possible, in many cases, for the Tribunal to exercise this role. Commonly, the first the Tribunal learns of a notice of withdrawal is when it is lodged in the Tribunal. Immediately it is lodged subsection 42A(1B) is enlivened and the Tribunal is taken to have dismissed the application.
The alleged failure of Counsel to inform the Company of the effect of dismissal
I am not satisfied that Mr Smith, as the representative of the Company, was unaware of the effect of the Company withdrawing the proceedings in the manner in which it did.
At the commencement of the hearing on 21 August 2013 Counsel for the Company advised the Tribunal in precise terms of the instructions she had been given. I have set out the effect of that advice at paragraph 4 of these reasons. After the discussion as to the course of the proceedings proposed by the Company the following exchange occurred:
SENIOR MEMBER: Yes, but then I’m sure Ms Fitzgerald will say, well yes, well what we ask you to do is to set aside and remit the matter for reconsideration according to the law.
MR CRIBB: Yes. And that is certainly an option.
SENIOR MEMBER: Yes, but see in order to do that I’ve got to hear the damn matter.
MR CRIBB: Exactly.
MS FITZGERALD: And Member, my instructions are, if that’s your view, to withdraw the appeal.
SENIOR MEMBER: Yes, sorry…
MS FITZGERALD: My instructions are on the basis of that view, I have very firm instructions to withdraw the appeal.
SENIOR MEMBER: To withdraw the appeal.
MS FITZGERALD: And I’m comfortable that that option has been ventilated and I’m instructed to withdraw the appeal.[12]
[12] Exhibit R1 pp 12-13
Does the Company have a “right to re-instatement”
It is clear from the wording of subsection 42A(10) that there is no “right to re-instatement” upon withdrawal as argued by Mr Smith. The subsection states that the Tribunal “may” re-instate the application i.e. the Tribunal has a discretion to do so if it appears that the application has been dismissed in error.
Advice as to the difference between “withdraw” and “dismiss”
Mr Smith argued that he had been given advice that there is a difference between “withdraw” and “dismiss”. He did not elaborate on this argument. In any event, in relation to the operation of sub-sections 42(1A) and 42 (1B) this is correct advice. I have referred to this difference earlier in these reasons.
Conclusion
Having considered all of the issues raised on behalf of the Company I have decided that there was no error associated with the dismissal of these proceedings. The application was withdrawn by Counsel, in accordance with her instructions. This was done only after Counsel advanced the argument as to the manner in which the matter should proceed following Mr Smith’s decision to absent himself from the hearing. Prior to the application being withdrawn the Tribunal considered this argument and determined the question. It may be that Mr Smith’s expectations as to the time the argument would take and the likely outcome were not met. These are not relevant considerations.
B. The discretion to reinstate
As I have decided that the application was not dismissed in error, the discretion to reinstate the application is not enlivened. However, for completeness, I indicate that had I decided there was a relevant error, I would not have exercised the discretion to re-instate in favour of the Company.
The determination of the question of whether or not the Tribunal should exercise its discretion under subsection 42A(10) will depend on the facts of each particular application. However there are general principles which are applicable.
In Re White and Secretary, Department of Families, Community Services and Indigenous Affairs (2007) 97 ALD 204 the Tribunal set out three principles applicable to applications such as this. These are:
(i)the person whose proceedings have been dismissed should not be prevented from presenting his or her case provided the person’s misconduct has not prejudiced the other party[13];
(ii)fairness between the parties is relevant;
(iii)consideration should be given as to whether the application, if reinstated, has merit.
[13] Re Oates and Secretary Department of Social Security (1994) 37 ALD 241, 246.
In this matter the application of the first and second principles would have led me to the conclusion that the application should not be reinstated. On the material before me I am unable to determine whether the application, if reinstated, has merit. However in reaching my conclusion as to the exercise of the discretion I have assumed, for the benefit of the Company, that the application does have merit.
On 21 August 2013 the Tribunal heard argument from Counsel for the Company as to the manner in which the Company wished to have the hearing proceed. At the conclusion of this argument the Tribunal indicated that if the matter was to proceed further it would be necessary to continue to hear all of the relevant evidence. Without any justification, Mr Smith had absented himself from the hearing and was not available for his cross-examination to continue. Even if the notice of withdrawal had not been filed, the matter could not then have proceeded immediately.
The application for review was before the Tribunal for just under 12 months before it was withdrawn by the Company. The pre-hearing processes included two telephone conferences, three directions hearings and a conciliation conference. Both parties attended these conferences and hearings; substantial documentation was filed. In fairness to the Authority the administrative process should be finalised within a reasonable time and there should be certainty in administrative decision making.
Had it been necessary I would have decided that the Company’s conduct in the original application for review was prejudicial to the Authority and that to reinstate the Company’s application would have been unfair to the Authority.
I certify that the preceding 28 (twenty-eight) paragraphs are a true copy of the reasons for the decision herein of Deputy President J W Constance. ..........................[sgd]............................................
AssociateDated 11 October 2013
Date of hearing 17 September 2013 Advocate for the Applicant Mr S Smith Advocate for the Respondent Mr P Cribb, departmental advocate
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