Byron and Secretary, Department of Family and Community Services

[2004] AATA 949

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2004] AATA 949

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No T2002/1

GENERAL ADMINISTRATIVE  DIVISION		)
Re		TREVOR MARCUS BYRON

Applicant

And SECRETARY, DEPARTMENT OF FAMILY AND COMMUNITY SERVICES

Respondent

DECISION

Tribunal The Hon R J Groom (Deputy President)

Date10 September 2004

PlaceHobart

Decision The application for review which was dismissed pursuant to sub-section 42A(2) of the Administrative Appeals Tribunal Act 1975 is reinstated pursuant to sub-section 42A(9).

[Sgd R J Groom]

Deputy President

CATCHWORDS

Practice and Procedure - Application for review dismissed for failure to attend conferences pursuant to s42A(2) - application for reinstatement pursuant to s42A(8) - discretion to reinstate under s42A(9) - reasonable explanation for non-attendance - whether also necessary to establish prima facie case - application re-instated - appropriate directions given under s42A(9).

Administrative Appeals Tribunal Act 1975 – s42A(2)(9)

Re Oates and Secretary, Department of Social Security (1994) 37 ALD241.

Re Manoli and Secretary, Department of Social Security (1994) 35 ALD 133

Davies v Pagett (1986) 10 FCR 226

REASONS FOR DECISION

10 September 2004 The Hon R J Groom (Deputy President)

1. This is an application under s42A(9) of the Administrative Appeals Tribunal Act 1975 (“the Act”) to reinstate the applicant’s substantive application.

2.      On 19 August 2003 the substantive application was dismissed by direction of the Tribunal in the following terms:

“There being no appearance by the applicant at two conferences, the Tribunal therefore directs that the application be dismissed pursuant to s42A(2) of the Administrative Appeals Tribunal Act 1975 without the Tribunal proceeding to review the decision.” [Sgd S P Estcourt, Deputy President]

3.      At the hearing of the re-instatement application held in Hobart on 31 August 2004, the applicant, who now resides in South Africa, participated by telephone.   The Secretary of the Department of Family and Community Services was represented by Mr B Sparkes, a departmental advocate.

4.      In his evidence the applicant explained that the reason he could not attend the two conferences held on 21 March 2003 and 24 June 2003 was because from 8 or 9 March 2003 until 10 June 2004 he was in custody in a South African prison awaiting trial on a criminal charge.    He said the charge was eventually “dismissed due to insufficient evidence”.    The applicant said that whilst in custody he did not receive notification of the two conferences and was not aware they were being held.   The applicant’s explanation for his non-appearance at the conferences was disputed by the respondent.    I find on the evidence before me that the applicant was in prison on remand at the relevant times and was therefore unable to participate in the two conferences.    I consider this to be a reasonable excuse for his failure to appear.   The Tribunal was not aware that the applicant was in custody when it dismissed the substantive application on 19 August 2003.

5.      The respondent’s advocate argued that there were two possible grounds upon which the Tribunal might refuse the application for re-instatement.   These were:

(i)that the applicant had failed to apply for re-instatement within 28 days after receiving notification of the dismissal as required by s42A(8) of the Act; and

(ii)that, in any event, the substantive application has no merit and should not be re-instated.

6.      After the applicant had given his oral evidence explaining that he was in custody until 10 June 2004 and had forwarded his application for re-instatement by letter dated 23 June 2004, it was then properly conceded on behalf of the respondent that the applicant had complied with the 28 day limitation period.   I do find that the applicant applied for re-instatement within 28 days of receiving notification of the dismissal of the substantive application.

7.      The respondent’s second argument referred to in 5(ii) above, relies on the comprehensive reasoning in Re Oates and Secretary, Department of Social Security (1994) 37 ALD 241. After canvassing a wide range of cases on re-instatement and similar applications in other jurisdictions, Deputy President Forgie said of applications for re-instatement (at p.246):

“…provided the party seeking reinstatement can establish a prima facie case and it is fair to the other party to reinstate the application, it will be reinstated. If they do start from a premiss it is that the person whose proceedings have been dismissed should not be prevented from presenting his or her case provided that person’s misconduct has not prejudiced the other party.”

8.      The case now before me can be distinguished from Oates and also, for example, Re Manoli and Secretary, Department of Social Security (1994) 35 ALD 133. In those cases there were no satisfactory excuses for the failure to appear, whereas in the present case an acceptable excuse has been provided. Indeed one can think of few better excuses for not appearing at a conference than being incarcerated at the relevant time on a criminal charge which was subsequently dismissed.

9. Dismissal of an application before it is heard on the merits is clearly a serious step to take. When an application is dismissed for the sole reason of non-appearance and at a later date the applicant satisfactorily explains his or her absence it would usually be proper for the Tribunal to exercise the discretion given to it under s42A(9) in favour of the applicant. In Davies v Pagett (1986) 10 FCR 226 the Full Court of the Federal Court said at p232:

“The fundamental duty of the court is to do justice between the parties.  It is, in turn, fundamental to that duty that the parties should each be allowed a proper opportunity to put their cases upon the merits of the matter.   Any limitation upon that opportunity will generally be justified only by the necessity to avoid prejudice to the interests of some other party, occasioned by misconduct, in the case of the party upon whom the limitation is sought to be imposed.”

10.     In my view it should be not be necessary for the applicant to establish a prima facie case when the only reason for dismissal was a failure to attend and an acceptable explanation is provided for that failure.  It is a very different matter, if failure to attend resulted from misconduct, an uncooperative attitude or other fault on the part of the applicant.   If the dismissal came about because of failure or fault by the applicant it is quite reasonable to examine the merits of the application to review before exercising a discretion to reinstate it.

11.     Although I do not consider it an essential ingredient in this application for re-instatement, I do nevertheless find that on the limited evidence before me there is a prima facie case.   A prima facie case is established if there is some evidence in support of the application.   It is not necessary to exhaustively consider all the facts or law in order to determine whether or not there is such a case.   I have had the opportunity to read the “T documents” and “The Secretary’s Statement of Facts and Contentions “ which were tendered in evidence on behalf of the respondent.   It is important for the parties to recognise  that in finding that there is a prima facie case I am not indicating whether the substantive application might eventually succeed.   The ultimate result would depend upon all of the evidence and arguments presented at a full hearing of the application.

12.     In deciding there is present a prima facie case, the central issue for consideration was whether the applicant was, at the relevant time, “severely disabled” for the purposes of indefinite payment of a disability support pension whilst overseas.   Although the respondent argues that the medical evidence provided at this point by the applicant is deficient, the fact is that Centrelink itself decided on 6 November 2000 that the applicant was severely disabled.   A letter was sent to him advising him that he could be paid a disability support pension indefinitely whilst overseas.   On or about 10 November the applicant left Australia to stay with his family in South Africa, perhaps comforted by the knowledge that he would receive the pension.   On 11 July 2001 an officer of Centrelink determined, contrary to the earlier decision, that the applicant was not severely disabled at the time he departed Australia.   As I said in (11) above although certainly not conclusive, I find that the evidence does disclose a prima facie case.

13.     Mr Sparkes for the respondent did concede at the hearing that the respondent had not suffered any prejudice which might be relevant to this application and to the exercise by the Tribunal of its discretion to reinstate.   There is no evidence before me of any prejudice which might be considered relevant.

14. Section 42A(9) of the Act, in part, that “… the Tribunal may reinstate the application and give such directions as appear to it to be appropriate in the circumstances.”    I consider it to be appropriate in this case to exercise the discretion provided for in s42A(9) to reinstate the application and also to give other directions.

15.     The substantive application was lodged in January 2002.   Very little progress has been made to ready the application for a hearing.   There is present here an added complication in that the applicant continues to reside with his family in South Africa.  He did say in evidence that he may be returning to Australia later this year, and that may assist  in progressing the application.   The applicant, of course, has a responsibility to progress his claim and to take active steps to produce the necessary medical reports and other evidence to support it.   A directions hearing is now needed to fix a firm timetable so that this application does not continue to drift, but is brought on for hearing within a reasonable period of time.

16.     I direct that the substantive proceedings be reinstated and that a telephone directions hearing be held on or before 30 September 2004.

I certify that the 16 preceding paragraphs are a true copy of the reasons for the decision herein of The Hon R J Groom (Deputy President)

Signed:  K L Miller (Administrative Assistant)

Date/s of Hearing  31 August 2004
Date of Decision  10 September 2004
Counsel for the Applicant         Applicant appeared on his own behalf
Solicitor for the Applicant           
Counsel for the Respondent     Mr B Sparkes
Solicitor for the Respondent     Centrelink