Canning and National Disability Insurance Agency

[2024] AATA 429

Canning and National Disability Insurance Agency [2024] AATA 429 (13 March 2024)

Division:NATIONAL DISABILITY INSURANCE SCHEME DIVISION

File Number(s):      2023/2449

Re:Toby Canning

APPLICANT

AndNational Disability Insurance Agency

RESPONDENT

DECISION

Tribunal:Member L Proske

Date:13 March 2024

Date of written reasons:        14 March 2024

Place:Adelaide

The Applicant failed to appear at the case management directions hearing by telephone held on 13 March 2024 at 11:00AM.

For the reasons given orally at the conclusion of the case management directions hearing by telephone held on 13 March 2024, the Tribunal dismisses the application pursuant to section 42A(2) of the Administrative Appeals Tribunal Act 1975 (Cth).

.................[sgnd]......................................................

Member L Proske

CATCHWORDS

PRACTICE AND PROCEDURE – applicant failed to appear at directions hearing – appropriate notice given to the applicant as required by s 42(A)(7) of the AAT Act – application for review dismissed pursuant to s 42A(2) of the AAT Act

LEGISLATION

Administrative Appeals Act 1975 (Cth)

REASONS FOR DECISION

Member L Proske

14 March 2024

1. At the conclusion of the directions hearing on 13 March 2024, the Tribunal dismissed the application pursuant to s 42A(2) of the Administrative Appeals Tribunal Act 1975 (Cth) (the Act) and gave oral reasons for that decision.

2. Whilst the parties have not requested a statement in writing of the reasons of the Tribunal for its decision, the Tribunal considers the provision of written reasons for its decision appropriate in this matter.

3. These are the reasons the Tribunal gave orally for its decision at the conclusion of the directions hearing on 13 March 2024.

4. The Applicant made an application to the Tribunal on 18 April 2023 for review of a decision made by the National Disability Insurance Agency (the Respondent) on 16 November 2022.

5. The Applicant has a history of non-attendance in relation to this review application. Since the review application was made on 18 April 2023, the Applicant has failed to appear at 4 scheduled Tribunal events.

6. The Applicant failed to appear at 2 alternative dispute resolution (ADR) events that were held on 19 July 2023 and 1 November 2023. Prior to each of those ADR events, the Tribunal emailed the Applicant a listing notice which advised him that a case conference would take place by telephone on a specified date at a specified time. Those listing notices also put the Applicant on notice that if he failed to appear at the case conference, the Tribunal may dismiss the application under s 42A(2) of the Act.

7. The Tribunal emailed the Applicant a listing notice on 14 December 2023 which advised him that a directions hearing would take place by telephone on 16 January 2024 at 11:00AM. That listing notice also put the Applicant on notice that if he failed to appear at the directions hearing, the Tribunal may dismiss the application under s 42A(2) of the Act.

8. The Applicant failed to appear at the directions hearing on 16 January 2024. The Tribunal telephoned the Applicant on four occasions between 11:00AM and 11:05AM, and his telephone diverted to voicemail each time. The Tribunal adjourned the directions hearing for a short period, to afford the Applicant a further opportunity to answer his telephone. The directions hearing resumed at 11:24AM, and again the Tribunal telephoned the Applicant on four occasions. On each of those four occasions, the Applicant’s telephone diverted to voicemail. Despite the Applicant’s failure to appear at the directions hearing held on 16 January 2024, and the Respondent’s submission on that occasion that the application should be dismissed for non-appearance, the Tribunal did not on that occasion exercise its discretion under s 42A(2) of the Act to dismiss the application.

9. The Tribunal emailed the Applicant a listing notice on 27 February 2024 which advised him that a directions hearing would take place by telephone today at 11:00AM. That listing notice also put the Applicant on notice that if he failed to appear at today’s directions hearing, the Tribunal may dismiss the application under s 42A(2) of the Act. Further, the Tribunal emailed a pre-hearing check to the Applicant on 12 March 2024. That pre-hearing check reiterated that a directions hearing would take place by telephone on 13 March 2024 at 11:00AM, and that the review application may be dismissed under s 42A(2) of the Act if the Applicant failed to appear.

10. On 8 March 2024, the Respondent emailed submissions to both the Tribunal and the Applicant. In those submissions, the Respondent suggested it would be open to the Tribunal to dismiss the Application under s 42A(2) of the Act if the Applicant failed to appear at today’s directions hearing. In the alternative, the Respondent submitted that the review application should be dismissed under s 42A(5) of the Act.

11. The Applicant failed to appear at today’s directions hearing. The Tribunal telephoned the Applicant today at 11:01AM and at 11:05AM. On each of those occasions, the Applicant’s telephone diverted to voicemail. On the first occasion, the Tribunal associate left a message on the Applicant’s voicemail that the Tribunal was trying to contact him for today’s directions hearing and would try to telephone him again shortly.

12. The Respondent relied on their submissions dated 8 March 2024 that given the Applicant’s failure to appear at today’s directions hearing, in circumstances where he was given appropriate notice of the time and place of the listing, the review application should be dismissed under s 42A(2) of the Act.

13. In accordance with s 42A(7) of the Act, the Tribunal is satisfied that the Applicant was given appropriate notice of the time and place of today’s directions hearing, which was held by phone on 13 March 2024 at 11:00AM.

14. Pursuant to s 42A(2) of the Act, the Tribunal dismisses the application.

I certify that the preceding fourteen (14)

paragraphs are a true copy of the reasons

for the decision herein of Member L Proske

………[sgnd]……………………..
Associate

Dated: 14 March 2024

Date of hearing:  13 March 2024

Advocate for the Applicant:      Self-Represented

Advocate for the Respondent:  Corine Penny

Sparke Helmore