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

[2021] AATA 1258

Blundell and Secretary, Department of Social Services (Social services second review) [2021] AATA 1258 (10 May 2021)

Division:GENERAL DIVISION

File Number(s):      2020/8224

Re:Matthew   Blundell

APPLICANT

AndSecretary, Department of Social Services

RESPONDENT

DECISION

Tribunal:Senior Member Damien O’Donovan

Date:10 May 2021

Place:Canberra

The Tribunal dismisses the application pursuant to section 42A(5) of the Administrative Appeals Tribunal Act 1975.

…….…..[sgd]………..

Senior Member Damien O’Donovan

Catchwords

PRACTICE AND PROCEDURE – dismissal under section 42A(5) of the Administrative Appeals Tribunal Act 1975 – applicant failed to comply with direction to notify Tribunal of intention to proceed – applicant’s representative indicated that she did not want to communicate with the Tribunal about the matter – whether discretion should be exercised to dismiss application – application dismissed.

Legislation

Administrative Appeals Tribunal Act 1975 ss 33, 42A

Cases

Administrative Appeals Tribunal Social Services & Child Support Division; Review Number 2020/153953

REASONS FOR DECISION

10 May 2021

1. The decision under review is a decision made by the Social Services & Child Support Division of the Administrative Appeals Tribunal (Tribunal) on 12 November 2020. That decision affirmed the decision made by the then Department of Human Services - Centrelink, concerning whether the Applicant qualified for a disability support pension.[1]

   [1] Paragraph 1, Administrative Appeals Tribunal Social Services & Child Support Division; Review Number 2020/153953.

2. On 15 December 2020, the applicant filed an application for review in the General and Other Division of the Tribunal and  the matter was listed for a conference by telephone on 27 January 2021.

3. On 15 January 2021, the Respondent’s representative received a telephone call from the Applicant’s representative Ms Blundell, who stated that the Applicant wanted to withdraw his application. The Respondent subsequently wrote to the Applicant and the Tribunal advising that the Applicant had intentions to withdraw his application. The Tribunal called Ms Blundell to discuss the application. In this conversation, the Tribunal advised Ms Blundell that the Applicant could stay his application pending the outcome of a new claim with Centrelink, which he intended on making. The Tribunal then informed Ms Blundell that if the Applicant wanted to withdraw his application, he needed to do so in writing. Following the telephone conversation, the Tribunal sent the applicant a ‘Notice of Withdrawal’ form by post but received no response.

4. On 21 January 2021, the Tribunal vacated conference listed for 27 January 2021 due to the Tribunal receiving no correspondence from the Applicant in relation to that listing.

5. On 16 March 2021, the Tribunal directed that the Applicant inform the Tribunal in writing whether he had decided to withdraw his application on or before 23 March 2021. The Applicant did not comply with this direction.

6. On 3 May 2021, the Tribunal attempted to call Ms Blundell twice to discuss the future progress of the matter, with no answer. That afternoon, Ms Blundell contacted the Tribunal by telephone, advising that she was not interested in speaking to the Tribunal.

7. Pursuant to section 42A(5) the Tribunal may dismiss an application without proceeding to review the decision if the Applicant fails, within a reasonable time, to proceed with the application or to comply with a direction by the Tribunal in relation to the application.

8. The Tribunal made a direction that the applicant inform the Tribunal in writing whether he had decided to withdraw his application on or before 23 March 2021. The applicant has not complied with that direction. I am satisfied that the applicant has failed within a reasonable time to comply with a direction of the Tribunal. Since that date his representative has made clear that the applicant no longer wishes to pursue review of the decision. In those circumstances I am satisfied that I should exercise my discretion to dismiss the application.  

9. Pursuant to section 42A(5) of the AAT Act, the Tribunal dismisses the application.

10.      

11.      

12.     I certify that the preceding 9 (nine) paragraphs are a true copy of the reasons for the decision herein of Senior Member Damien O’Donovan.

13.      

................................[sgd] .......................................

Associate

Dated: 10 May 2021