Cohen and Secretary, Department of Education, Employment and Workplace Relations & Anor

[2013] AATA 636

[2013] AATA  636

Division	GENERAL ADMINISTRATIVE DIVISION
File Number(s)	2012/5058
Re	Deborah Cohen
APPLICANT
And	Secretary, Department of Education, Employment and Workplace Relations
RESPONDENT
And	Simon Strum
OTHER PARTY

DECISION

Tribunal	Senior Member J L Redfern
Date of Decision	29 August 2013
Date of Reasons	6 September 2013
Place	Sydney

The Tribunal refuses the application for reinstatement.

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

Senior Member J L Redfern

CATCHWORDS

SOCIAL SECURITY - practice and procedure - application dismissed under s 42A(2) of the Administrative Appeals Tribunal Act 1975 - application for reinstatement under s 42A(9) - principles to be applied - failure to appear - failure to comply with directions – prejudice to respondent and other party - application for reinstatement refused.

LEGISLATION

Administrative Appeals Tribunal Act 1975 (Cth); ss 42A(2), 42A(9)

CASES

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

Re Oates and Secretary, Department of Social Security (1994) 36 ALD 241

SECONDARY MATERIALS

-

REASONS FOR DECISION

Senior Member J L Redfern

1. This was an application by Ms Deborah Cohen for reinstatement of her application for review of a decision about her entitlement to parenting payment. Her application was dismissed by the Tribunal pursuant to section 42A(2) of the Administrative Appeals Tribunal Act 1975 (the ‘AAT Act’) because of her failure to appear at the hearing. The Tribunal gave an oral decision refusing Ms Cohen’s application for reinstatement at the conclusion of the hearing of this matter. The following are my written reasons for decision.

   BACKGROUND

2. Ms Deborah Cohen and Mr Simon Strum are the parents of a young boy who is now seven years old. They separated in 2007 and have shared care. On 17 June 2010 the Social Security Appeals Tribunal (the ‘SSAT’) determined that Mr Strum qualified to receive a parenting payment from 17 December 2009.

3. On 3 February 2012 Ms Cohen made an application to Centrelink for the parenting payment. Her application was rejected and Ms Cohen sought review by an authorised review officer at Centrelink and then by the SSAT. On 18 October 2012 the SSAT affirmed the decision of the authorised review officer.

4. Ms Cohen lodged an application for review of the decision of the SSAT with this Tribunal.

5. Directions were made by the Tribunal on 22 March 2013 for Ms Cohen to file and serve the evidence on which she intended to rely at the hearing, including any witness statements and reports, records or other documents, by 9 April 2013.

6. Ms Cohen did not comply with this direction and sought an extension of time to file her evidence. On 16 April 2013, the Tribunal amended its previous directions and directed Ms Cohen to provide her evidence by 7 May 2013. The matter was listed for hearing on 18 June 2013.

7. Ms Cohen did not comply with the amended direction and did not appear at the hearing which was listed before me on 18 June 2013. I dismissed the application under section 42A(2) of the AAT Act on that day.

8. On 24 July 2013, Ms Cohen applied for the matter to be reinstated. In her application she stated that she did not attend the hearing because she “did not have enough evidence to support [her] case”. According to her application, Ms Cohen received a notice from Child Support on or about 11 July 2013 to the effect that their records showed Mr Strum had income for the year 2011/2012 of $133, 383. Ms Cohen stated that this was evidence Mr Cohen had greater income and assets than her. He was, therefore, not entitled to receive the parenting payment and she was entitled to receive the payment instead.

   CONSIDERATION

9. Section 42A(9) of the AAT Act allows the Tribunal to reinstate an application that has been dismissed under section 42A(2). There is no indication as to what matters are to be taken into account by the Tribunal when exercising this discretion. In Re Manoli and Secretary, Department of Social Security (1994) 35 ALD 133 the Tribunal followed the approach adopted for considering applications for the extension of time. In Re Oates and Secretary, Department of Social Security (1994) 36 ALD 241, the Tribunal followed the approach adopted by courts in considering applications to set aside judgment, which can be characterised as a lower test. Whatever test is applied, it is clear that relevant factors to be considered in determining applications for reinstatement include the conduct of the applicant in relation to the proceedings, any explanation for their failure to attend, any prejudice to the other parties and, importantly, the merits of the application sought to be reinstated.

10. Ms Cohen agreed she had not previously complied with the Tribunal's directions. She could give no explanation for this.  She said that she failed to attend the hearing because she understood her prospects were poor but did not realise she would have to attend to advise the Tribunal. Ms Cohen referred to a conversation she reportedly had with an officer of the Tribunal about her application.  Ms Cohen said the reason why she wanted to have her application reinstated to pursue her claim was because of the “new evidence” she had now discovered about Mr Strum's earnings for 2011/2012.

11. The respondent opposed the application for reinstatement.  According to the respondent, the notice issued by Child Support was not relevant for the purposes of assessing entitlement to the parenting payment. The income assessed for the purposes of Child Support would not have taken into account deductions and exemptions which are allowed under the parenting payment provisions.  Furthermore, there was no evidence of the weekly income earned by Mr Strum for the relevant period.  The new evidence provided by Ms Cohen was unlikely to support her case.

12. Mr Strum opposed the application and provided his reasons in a letter to the Tribunal dated 30 July 2013.  Mr Strum also attended the hearing of the application.  Mr Strum submitted that his circumstances have not changed, the issue had been “going on for two years” and the litigation was a distraction that caused him hardship. He was the carer for his elderly mother who had dementia, terminal emphysema and lung cancer. Every time he was required to attend a hearing he incurred the cost of hiring an alternative carer.  The litigation was also a distraction for him in looking after his son.  Mr Strum said that the Child Support assessment included a compensation payment paid to him during that financial year, from which he had been required to make deductions.  This was a matter that had been disclosed to Centrelink and if the matter had proceeded to hearing and had been raised, he would have given evidence about these matters.  The delay in the proceedings and the attempt by Ms Cohen to reinstate application was prejudicial to him.

13. Taking these various submissions into account, I refused Ms Cohen's application for the reinstatement of the application for review of the decision of the SSAT in respect of the parenting payment.

14. Even if I accept that Ms Cohen did not understand she needed to attend the hearing on 18 June 2013, she has shown a lack of regard for the directions of the Tribunal by failing to comply with directions made.  Ms Cohen was served with a notice to attend the hearing, which she does not dispute, but chose not to attend the hearing or to make an enquiry about whether it was necessary to attend.  She said that she spoke with an officer of the Tribunal but there is no evidence, and indeed it would be unlikely, that she was told she did not need to attend the hearing. Her conduct delayed the proceedings and her failure to notify the respondent or Mr Strum that she was not proposing to proceed on 18 June 2013 caused them expense and inconvenience.

15. Mr Strum complied with all directions made by the Tribunal and it would be unfair for Mr Strum to be put to the expense of having to further respond to Ms Cohen's case given that Ms Cohen has had ample opportunity to present her case before the Tribunal.  This is particularly so having regard to the merits of Ms Cohen’s application for review − even taking into account the “new evidence”. Prior to the dismissal of the proceedings, Ms Cohen had not filed and served any evidence in support of her case.  She now seeks to reinstate her case on the basis of the Child Support assessment.  However, as the respondent has submitted, and I accept, the notification from Child Support is not evidence of Mr Strum's earnings for the purposes of assessing entitlement to the parenting payment as at February 2012.  The evidence submitted to the SSAT and to this Tribunal is that Mr Strum’s gardening business failed and that he became bankrupt on 2 July 2012.  Mr Strum provided the Tribunal with a notice from The Insolvency and Trustee Service Australia evidencing his bankruptcy on 2 July 2012.  Ms Cohen disputes the bankruptcy although she does not dispute the notice.  The evidence of Mr Strum’s failed business and his subsequent bankruptcy is consistent with the findings of the SSAT.

16. In summary, I was not satisfied about Ms Cohen's explanation for her non-appearance at the hearing or her conduct of the case. The respondent, but particularly Mr Strum, have been prejudiced by this and would be unfairly prejudiced if the case was reinstated. Furthermore, I was not satisfied that Ms Cohen’s case, if reinstated, would have sufficient prospects of success to warrant the reinstatement. 

17. Having regard to these matters, I refused Ms Cohen’s application under s 42A(9) of the AAT Act.

I certify that the preceding 17 (seventeen) paragraphs are a true copy of the reasons for the decision herein of Senior Member J Redfern.

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

Associate

Dated  6 September 20136 September 2013

Dates of hearing	29 August 2013
Applicant	In Person
Solicitors for the Respondent	Dept. Human Services
Other Party	In Person