Berthelsen and Secretary, Department of Social Services (Social services second review)

[2024] AATA 1975

Berthelsen and Secretary, Department of Social Services (Social services second review) [2024] AATA 1975 (24 June 2024)

Division:GENERAL DIVISION

File Number:          2023/3083

Re:Derek Berthelsen

APPLICANT

AndSecretary, Department of Social Services

RESPONDENT

DECISION

Tribunal:Senior Member Theodore Tavoularis

Date:24 June 2024

Place:Brisbane

Pursuant to section 42A(5)(a) of the Administrative Appeals Tribunal Act 1975 (Cth), the Tribunal dismisses this review application.

........................[SGD].............................

Senior Member Theodore Tavoularis

Catchwords

PRACTICE AND PROCEDURE-application for review of decision made by Social Services and Child Support Division (SSCSD) of this Tribunal (‘Tier 2 review’)- where Applicant has repeatedly been non-compliant with Tribunal’s Directions-where Applicant intended to discontinue and withdraw his application- where Applicant was put on notice that failure

to withdraw within the stipulated time would lead to a dismissal- Applicant failed to withdraw his application within the stipulated time-application for review dismissed.

Legislation

Administrative Appeals Tribunal Act 1975 (Cth)

REASONS FOR DECISION

Senior Member Theodore Tavoularis

24 June 2024

ADMINISTRATIVE ISSUE BEFORE THE TRIBUNAL

1. At issue before the Tribunal is whether or not this application should be dismissed consequent upon the Applicant’s failure to prosecute it in accordance with duly made procedural Directions compelling him to do so.

2. On 24 November 2023, this Tribunal made certain procedural Directions. Relevant for present purposes, one of those Directions stipulated that ‘On or before 5 January 2024, the Applicant must lodge with the Tribunal and give to the Respondent medical reports in support of his application, or a letter indicating no further evidence to file.’

3. The Applicant failed to comply with this Direction. In fact, this failure comprised the Applicant’s third non-compliance event with specific procedural Directions previously made the Tribunal.

   RELEVANT CHRONOLOGY DEMONSTRATING NON-COMPLIANCE

4. His lack of engagement with the procedural requirements relevant to this matter becomes more readily apparent when one has regard to the following chronology:

   ·on 4 May 2023, the Applicant sought Tier 2 review of a Tier 1 decision made by this Tribunal’s SSCSD.[1]

   ·on 10 July 2023, this Tribunal facilitated an ADR[2] conference as a result of which he was directed to file and serve submissions by 21 August 2023. The Applicant failed to comply with this duly made Direction (first non-compliance event);

   ·on 20 September 2023, a second ADR conference was scheduled at which the Applicant failed to appear;

   ·the immediately preceding failure spawned a subsequent Directions hearing before Senior Member Kelly of this Tribunal on 28 September 2023 at which the Applicant again failed to appear (second non-compliance event);

   ·on 26 October 2023, the Applicant attended a telephone Directions hearing before Senior Member Fairall of this Tribunal at which he requested further time to liaise with a Legal Aid Solicitor for the purposes of finalising submissions to the Tribunal. The Tribunal allowed the Applicant a further month to obtain legal advice and to file his submissions. He failed to file those submissions (third non-compliance event);

   ·the immediately preceding failure spawned a further telephone Directions hearing on 24 November 2023. The Applicant appeared at this hearing and requested additional time to gather medical evidence in support his application. Senior Member Fairall issued the following Direction:

   ‘…..

   2. On or before 5 January 2024, the Applicant must lodge with the Tribunal and give to the Respondent medical reports in support of his application, or a letter indicating no further evidence to file.’

   [1] Denoting ‘Social Services & Child Support Division’.

   [2] Denoting ‘Alternative Dispute Resolution’.

5. The Applicant failed to comply with the Tribunal’s Direction made on 24 November 2023 and no medical or other evidence was filed by 5 January 2024 or at any time thereafter (fourth non-compliance event).

   APPLICANT’S STATED INTENTION TO WITHDRAW HIS APPLICATION

6. Consequent upon the abovementioned four-non-compliance events, this Tribunal listed this matter for a telephone Directions hearing on 9 April 2024 before Senior Member Tavoularis. During this interlocutory hearing, the Applicant unequivocally stated an intention to withdraw this application and to take it no further.

7. Consequent upon that stated intention, the Tribunal did on 9 April 2024, at the request of the Applicant (1) forward a ‘Notice of Withdrawal’ form to him by prepaid post together with a stamped self-addressed envelope for the return of the duly signed form to the Tribunal; and (2) allowed him the period of one month to do this.

8. The Applicant has been duly warned about the consequences of failing to proceed with this application. On at least two occasions the Tribunal Directions issued to him[3] notified him in these written terms:

   ‘The Tribunal can dismiss an application if an Applicant fails within a reasonable time to comply with a direction made by the Tribunal….If you are the Applicant and you fail to comply with a direction, you may also be asked to explain at the directions hearing why your application should not be dismissed.’[4]

   [3] Note to reader: Directions dated 20 September 2023 and 24 November 2023.

9. Despite the Applicant’s clear indication of (1) intending to withdraw his application; and (2) intending to sign the Notice of Withdrawal form and return it to the Tribunal, the subject form has never been received by this Tribunal’s Registry.

10. Further, the correspondence dispatching the Notice of Withdrawal form has at no material time been returned to the Tribunal as ‘Undelivered’ and nor has the Applicant otherwise indicated an intention to continue with his application.

    DISMISSAL OF THE INSTANT APPLICATION

11. The Applicant’s failure to sign and return the Notice of Withdrawal form to the Tribunal compels the Tribunal to now administratively deal with the instant application.

12. Section 42A(5) of the Administrative Appeals Tribunal Act 1975 (Cth) (‘AAT Act’) provides as follows:

    ‘(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.

13. I am mindful that the Tribunal did not make ‘a Direction’ for the Applicant to sign the Notice of Withdrawal form and it would thus be unsafe to dismiss this application pursuant to section 42A(5)(b) AAT Act.

14. However, there is little or nothing to cavil with the proposition (and finding) that the abovementioned four-non-compliance events are clearly and obviously demonstrable of an applicant who has failed to proceed with the instant application.

    DECISION

15. I will therefore dismiss this application pursuant to section 42A(5)(a) of the AAT Act due to the Applicant’s failure to proceed with it.

I certify that the preceding 15 (fifteen) paragraphs are a true copy of the reasons for the decision herein of Senior Member Theodore Tavoularis

...............[SGD]..................

Associate

Dated: 24 June 2024

Date of hearing:	9 April 2024
Representation for Applicant:	Self-represented litigant
Solicitor for the Respondent:	Ms Alicia Henderson (Government Lawyer)
Services Australia