Brett Wild and Director, Australian Defence Force Reserves Employer Support Payment Scheme

[2014] AATA 587

[2014] AATA  587

Division	GENERAL ADMINISTRATIVE DIVISION
File Number(s)	2014/2566; 2009/2431
Re	Brett Wild
APPLICANT
And	Director, Australian Defence Force Reserves Employer Support Payment Scheme
RESPONDENT

DECISION

Tribunal	Senior Member A K Britton
Date	22 August 2014
Place	Sydney

1. The application lodged with the Administrative Appeals Tribunal by Mr Brett Wild on 23 May 2014, for review of the decision made by the Director, Australian Defence Force Reserves Employer Support Payment Scheme on 12 December 2008, is dismissed under s 42A(4) of the Administrative Appeals Tribunal Act 1975 (Cth).

2. The application made by Mr Brett Wild to reinstate the application for review dismissed by the Administrative Appeals Tribunal on 26 May 2009, is refused.

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

   Senior Member A K Britton

   CATCHWORDS

   PRACTICE AND PROCEDURE — Jurisdiction of AAT ― power to reinstate application for review dismissed under 42A(5) of the AAT Act ― meaning of “error” in s 42A(10) of AAT Act ― scope of S 42A(9)

   LEGISLATION

   Administrative Appeals Tribunal Act 1975 (Cth) – ss 42A(4); 42A(5); 42A(9); 42A(10)

   CASES

   Goldie v Minister for Immigration and Multicultural and Indigenous Affairs (2002) 121 FCR 383

   SECONDARY MATERIALS

   Defence (Employer Support Payments) Determination 2005 (Cth)

   Defence (Employer Support Payments) Determination 2012/68, Reserve employer support payments (Cth)

   REASONS FOR DECISION

   Senior Member A K Britton

   22 August 2014

3. In December 2008, the Director, Australian Defence Force Reserves Employer Support Payment Scheme, refused the claim made by Mr Brett Wild for “employer support payments” (the December 2008 decision). Mr Wild challenged that decision and in May 2009 applied for it to be reviewed by the Administrative Appeals Tribunal (AAT). In March 2011 the Tribunal (differently constituted) dismissed that application.

4. In May 2014 Mr Wild made a further application to the AAT for review of the December 2008 decision. In addition, he applied for an extension of time to make that application. Section 29(7) of the Administrative Appeals Tribunal Act 1975 (Cth) (the AAT Act) gives the Tribunal power to extend the time for making an application for review (generally 28 days), if the Tribunal is satisfied it is reasonable in all the circumstances to do so.

5. These reasons address whether the power to extend time can be exercised, and, if not, whether the application lodged by Mr Wild in the AAT in 2009 (the original application) can be reinstated. The merits of the decision made by the Director are irrelevant to both questions and are not examined in these reasons.

   CAN THE POWER TO EXTEND TIME BE EXERCISED?

6. When Mr Wild lodged the original application, the Defence (Employer Support Payments) Determination 2005 (Cth) (the 2005 Determination) conferred power on the Tribunal to review decisions relating to claims made for employer support payments. The December 2008 decision fell within that class of decisions and, when Mr Wild made the original application, was reviewable by the Tribunal.

7. In 2012 the 2005 Determination was repealed by the Defence (Employer Support Payments) Determination 2012/68, Reserve employer support payments (Cth) (the 2012 Determination). Under the 2012 Determination the Tribunal does not have power to review decisions relating to claims for employer support payments, unless the application for review was made before 1 January 2013 (ss 56 and 57 of the 2012 Determination). 

8. It follows that in 2014 the Tribunal does not have the power to review the December 2008 decision and therefore the application for review of that decision must be dismissed.

   CAN THE POWER TO REINSTATE THE ORIGINAL APPLICATION BE EXERCISED?

9. In March 2011 the Tribunal (differently constituted) made the following decision:

   As the Applicant has issued common law proceedings and has failed to progress this matter before the Administrative Appeals Tribunal, pursuant to section 42A(5) of the Administrative Appeals Tribunal Act 1975, this application for review is dismissed.

10. Section 42A(5) of the AAT Act provides:

    Dismissal if applicant fails to proceed or fails to comply with Tribunal's direction

    (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.

11. Sections 42A(9) and (10) give the Tribunal power to reinstate an application in limited circumstances. I will examine each provision and decide whether the power conferred can be exercised in the circumstances of this matter.

    Can Mr Wild’s original application be reinstated under s 42(9)?

12. Section 42A gives the Tribunal power to dismiss an application where:

    ·the parties consent (s 42A(1))

    ·the applicant fails to appear (s 42A(2))

    ·the decision the subject of the application for review is not reviewable by the Tribunal (s 42A(4))

    ·the applicant fails within a reasonable time to proceed with the application or to comply with a direction of the Tribunal (s 42A(5))

13. The power to reinstate an application under s 42(9) must be read together with s 42(8):

    Reinstatement of application

    (8)If the Tribunal, under subsection (2), has dismissed an application (other than an application in respect of a proceeding in which an order has been made under subsection 41(2)), the person who made the application may, within 28 days after receiving notification that the application has been dismissed, apply to the Tribunal for reinstatement of the application.

    (9)If it considers it appropriate to do so, the Tribunal may reinstate the application and give such directions as appear to it to be appropriate in the circumstances.

14. The power to reinstate conferred by s 42(9) of the AAT Act does not extend to all classes of dismissal decisions, only those made under s 42A(2) ( applicant’s failure to appear). That is apparent from a reading of s 42A as a whole. Section 42A(8) identifies the class of applications that can be reinstated under s 42A(9), namely, those dismissed under s 42A(2) where an application for reinstatement was made within 28 days. As the original application was not dismissed under s 42A(2), the power to reinstate under s 42A(9) cannot be exercised.

    Can Mr Wild’s application be reinstated under s 42(10)?

15. Section 42A(10), provides

    (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.

16. In Goldie v Minister for Immigration and Multicultural and Indigenous Affairs (2002) 121 FCR 383, Wilcox and Downes JJ examined what constitutes a relevant “error” for the purpose of s 42A(10). Their Honours stated (at [27], [28]) that s 42A(10) “does not impose any qualification or limitation on the word ‘error’” and that the only limitations on the operation of the provision are:

    (i)       that the Tribunal has dismissed the application; and

    (ii)      that the act of dismissal was attended with error.

17. Their Honours commented (at [29]) that the Tribunal's power under s 42A(10) was not restricted to an error made in relation to the dismissal by a member or employee of the Tribunal: “The fault may have lain elsewhere, provided it induced the error”.

18. Mr Wild relies on two purported errors in his application for reinstatement.

    Error 1

19. Mr Wild contends that the original decision-maker misapplied the law and erred in deciding that he was ineligible for employer support payments. Even if Mr Wild is correct, there is no evidence to suggest that the purported error made by the original decison-maker played any role in the subsequent decision made by the Tribunal to dismiss the original application. As the majority in Goldie makes clear, s 42A(10) is concerned with the act of dismissal, not the decision the subject of the application for review.

    Error 2

20. Mr Wild contends that when the original application was dismissed by the AAT he was psychiatrically unwell, suffering from post-traumatic stress disorder and unable to manage his own affairs.

21. There is no evidence and nor is it suggested that the Tribunal erred in finding that Mr Wild had failed to proceed with the original application. That is not determinative because as the majority in Goldie made clear the concept of “error” in s 42(10) is not limited to errors made by the Tribunal but extends to any error, which was operative to the dismissal of the application.

22. There is little material before me about the reason Mr Wild failed to progress his original application in the AAT and decided to commence proceedings in the Local Court of NSW. Mr Reilly for the Director advises that Mr Wild was legally represented for part of the proceedings before the Local Court. Mr Wild’s application to the Local Court was dismissed with costs in July 2011.

23. On the available material I am unable to identify any error made by Mr Wild, which might have played a role in the dismissal of his original application. For current purposes I accept that at the time Mr Wild was psychiatrically unwell, however it is not apparent how this might have contributed to an error made by him or some third party in relation either to his conduct of the proceedings before the AAT, or, the dismissal of the original application. While a broad approach must be taken to the class of matters that constitute “error” for the purpose of s 42A(10), the available material does not disclose that the dismissal of the original application was attended by error. It follows that the power to reinstate that under s 42A(10) cannot be exercised.

    Summary

24. The Tribunal does not have power to: (i) entertain the application for review lodged by Mr Wild in May 2014 or (ii) reinstate the original application.

I certify that the preceding 24 (twenty -four) paragraphs are a true copy of the reasons for the decision herein of Senior Member A K Britton

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

Associate

Dated 22 August 2014

Date(s) of hearing	14 August 2014
Applicant	In person
Solicitors for the Respondent	HWL Ebsworth Lawyers