David Cremona and Secretary, Department of Social Services
[2014] AATA 836
•14 October 2014
[2014] AATA 836
Division GENERAL ADMINISTRATIVE DIVISION File Number
2014/2322
Re
David Cremona
APPLICANT
And
Secretary, Department of Social Services
RESPONDENT
DECISION
Tribunal Deputy President F J Alpins
Date 14 October 2014 Date of written reasons 6 November 2014 Place Melbourne For the reasons given orally at the conclusion of the hearing of this matter, the Tribunal dismisses the application for reinstatement made pursuant to s 42A(8) of the Administrative Appeals Tribunal Act 1975 (Cth).
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Deputy President F J Alpins
PRACTICE AND PROCEDURE – application for reinstatement – application for review of decision concerning cancellation of carer payment under Social Security Act 1991 (Cth) – application dismissed for failure to appear at hearing of proceeding – applicant failed to appear because Tribunal not constituted as requested prior to hearing – whether reasonable excuse for failure to appear – whether application for review had sufficient prospects of success – application for reinstatement dismissed
Legislation
Administration Appeals Tribunal Act 1975 (Cth) ss 10A, 21A, 42A; Pt III Div 3
Social Security Act 1991 (Cth) ss 198, 198AC
Social Security (Administration) Act 1999 (Cth) s 80Cases
Andelman v Secretary, Department of Families, Housing, Community Services and Indigenous Affairs (2011) 213 FCR 345
Andelman v Administrative Appeals Tribunal [2011] FCA 815
Mellor and Australian Postal Corporation (2010) 51 AAR 498
REASONS FOR DECISION
Deputy President F J Alpins
6 November 2014
Written statement of oral reasons
On 14 October 2014, the Tribunal heard and dismissed the applicant’s application for reinstatement of application no. 2322 of 2014, which was dismissed when he failed to appear at the hearing on 25 August 2014. After a brief adjournment, the Tribunal gave reasons orally for its dismissal of the application for reinstatement. The applicant has requested a written statement of those reasons. That statement, set out below, is an edited version of the transcript of the Tribunal’s oral reasons, with headings added for convenience.
Introduction
This is an application made by Mr Cremona under s 42A(8) of the Administrative Appeals Tribunal Act 1975 (Cth) (the “AAT Act”) for reinstatement of his application for review, which was dismissed by me pursuant to s 42A(2) of the AAT Act.
Mr Cremona gave oral evidence under affirmation in support of his application for reinstatement, although he initially declined to do so.
Nature of application for review
The application in issue was an application for review of a decision of the Social Security Appeals Tribunal made on 4 April 2014 to affirm a decision made on 23 December 2013 by an authorised review officer under the Social Security (Administration) Act 1999 (Cth) (the “Administration Act”) concerning the cancellation of a carer payment made to Mr Cremona in respect of care provided by him to his wife since the year 2000 (see s 198 of the Social Security Act 1991 (Cth) (the “Act”), s 80 of the Administration Act).
The authorised review officer cancelled the carer payment with effect from 26 October 2013, on the basis that Mr Cremona had commenced paid employment on 8 June 2013 and the limit for temporary cessation of care of 63 days in the calendar year had been reached (see ss 198AC(1), 198AC(3)(a) of the Act). The authorised review officer exercised the discretion in s 198AC(3)(b) of the Act to allow Mr Cremona to remain qualified for a carer payment until 25 October 2013, thus extending the period beyond the limit of 63 days that would otherwise apply. The carer payment was cancelled on the basis that Mr Cremona no longer qualified for the payment, as he no longer provided "constant care" for his wife for the purposes of s 198(2) of the Act.
Reason for failure to appear at hearing
Refusal of prior request as to constitution of Tribunal
I turn now to the relevant provisions governing reinstatement of an application. As I have indicated, Mr Cremona has applied pursuant to s 42A(8) of the AAT Act for the dismissed application to be reinstated. Section 42A(9) provides that:
“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.”
One of the issues that is relevant in terms of the appropriateness of reinstating an application is whether there is a reasonable excuse or reason for the applicant not having appeared at the hearing of the proceeding. In his oral evidence, Mr Cremona confirmed that, when he was asked by telephone on the day of the hearing, he had informed the Tribunal that he would not be appearing at the hearing because the Tribunal had not been constituted in accordance with his prior request and that the refusal of his request was in fact the reason why he had not appeared.
In oral evidence, Mr Cremona initially said that his request had been that the proceeding be heard before a Deputy President and two members. However, upon being shown a copy of correspondence from the Tribunal to him dated 18 July 2014, Mr Cremona accepted that, as that correspondence indicates, he had in fact requested that the Tribunal be constituted by the President of the Tribunal and two members. In any event, ultimately nothing turns on that discrepancy.
Mr Cremona initially indicated that he believed he had sent an email to the Tribunal before the hearing to similar effect, although when it was put to him that there was in fact no indication of such an email on the Tribunal file, he accepted that he had perhaps instead approached the Tribunal by telephone in July this year. Again, nothing turns on that distinction. It is apparent from the letter from the Tribunal to which I have referred that Mr Cremona had reiterated such a request in a telephone conversation the previous day, having previously made such a request to a Conference Registrar of the Tribunal. Mr Cremona was informed in that letter that his request had been refused by a Deputy President of the Tribunal.
In giving oral evidence, Mr Cremona said that he believed that he was entitled to specify the constitution of the Tribunal “under legislation”, as he put it. As I have indicated, irrespective of whether the request was that the matter be heard before the President and two members, or a Deputy President and two members, the point remains the same - the constitution of the Tribunal for the purposes of a particular proceeding is not in fact a matter to be determined, demanded or requested by a party, save for in limited circumstances I will come to shortly. The constitution of the Tribunal is a matter to be determined by the President or the President's delegate (see s 10A of the AAT Act) in accordance with Div 3 of Pt III of the AAT Act and any relevant guidelines that apply in that regard (see Tribunal’s “Guidelines for Constituting Tribunal” dated 14 November 2011).
Section 21A of AAT Act
I note that s 21A of the AAT Act does permit, in certain circumstances, the reconstitution of the Tribunal at the request of a party. In particular, s 21A(1) provides that:
“At any time during the hearing of a proceeding before the Tribunal (other than a proceeding in which the Tribunal is constituted by a presidential member who is a Judge and 2 other members), a party to the proceeding may apply to the Tribunal as constituted for the purposes of the proceeding requesting that the Tribunal be reconstituted for the purposes of the proceeding.”
However, it follows from the terms in which that provision is expressed that, in order for such an application requesting reconstitution to be properly made, it can only be made to the Tribunal during the hearing of the proceeding (Andelman v Secretary, Department of Families, Housing, Community Services and Indigenous Affairs (2011) 213 FCR 345 at [30] per Jagot J; Mellor and Australian Postal Corporation (2010) 51 AAR 498 at [11] per Downes J). Furthermore, such an application must be made to the Tribunal as it is constituted for the purposes of the proceeding.
Neither of those requirements were satisfied in this case. No such application was made to the Tribunal during the hearing of the proceeding – Mr Cremona failed to appear at the hearing. Furthermore, Mr Cremona did not make any such application to the Tribunal as constituted for the purposes of the proceeding.
More significantly, s 21A could not assist Mr Cremona in any event. First, that provision does not enable or permit a party to request, demand or otherwise dictate that the Tribunal be constituted or reconstituted on any particular basis or by particular persons. In other words, Mr Cremona cannot on the basis of that provision insist that the Tribunal be constituted by the President and two other members, nor by a Deputy President and two other members.
Section 21A requires that certain procedures be followed, including that particulars of submissions concerning the application requesting reconstitution be given to the President (s 21A(2)). If the President, after taking the submissions into account, “considers that the matters to which the proceeding relates are of such public importance as to justify him or her in so doing”, the President may give a direction that the Tribunal as constituted for the purposes of the proceeding be reconstituted (s 21A(3)). The basis upon which the Tribunal is to be reconstituted is to be determined by the President.
Furthermore, given the terms of s 21A(3), the operation of s 21A is limited to circumstances where the matters to which the proceeding relates are matters which the President might consider to be of such public importance so as to justify the giving of a direction for reconstitution of the Tribunal (Andelman at [30]; Andelman v Administrative Appeals Tribunal [2011] FCA 815 at [18] per Nicholas J; Mellor at [10]-[13]). Neither the material before the Tribunal, the decision the subject of the application for review nor Mr Cremona’s oral evidence suggest that any of the matters to which the proceeding related were, or were thought by Mr Cremona to be, of such a nature.
Accordingly, I consider that Mr Cremona’s explanation of his failure to appear at the hearing of the proceeding, being that he did not appear because the Tribunal was not constituted in accordance his prior request, does not constitute a reasonable excuse for his failure to appear.
Merits of application for review
More importantly, it is necessary for me to turn to the prospects of success of the application for review. I consider that to be a consideration that ought to be taken into account in determining the appropriateness of reinstating that or any other application.
Mr Cremona gave evidence that he proposed to cross-examine the Centrelink officer who originally cancelled his carer payment, in order to demonstrate that it was “inappropriate” for them to have done so. He also gave evidence that he wanted the address of that officer, so that they could be served with a summons for the purpose of them giving evidence and being cross-examined. However, he then accepted that the fact he wanted the officer’s address was a matter that could only be of any possible relevance if the application were to be reinstated and did not in fact relate to his application for reinstatement.
Mr Cremona submitted that, if the application for review lacked sufficient prospects of success, it would have been dismissed before the hearing. Furthermore, he submitted that his application for reinstatement should be granted by virtue of the fact that he had applied for reinstatement within the period of 28 days prescribed by s 42A(8) of the AAT Act.
Furthermore, Mr Cremona gave evidence that various other issues would be raised by him if the application were reinstated, including issues such as, as he put it (or in words to similar effect), “constant care”, the “calculation of relevant periods”, the decision of the Social Security Appeals Tribunal, which he noted had been made in his absence, and “probably a few more issues”.
It may well be that Mr Cremona might seek to agitate many issues at the hearing of the proceeding if the application for review were to be reinstated. However, there was no material relied on in support of the application for reinstatement, nor any evidence given, which served to improve that application’s prospects of success beyond those apparent on the material already before the Tribunal.
The material before the Tribunal establishes that Mr Cremona ceased providing “constant care” for the purposes of s 198(2) of the Act according to the statutory meaning of that term – that is to say, according to the ordinary meaning of that term, read in its context - when he commenced his employment. Furthermore, it establishes that that cessation exceeded 25 hours per week, so that s 198AC(4), which might otherwise preclude him ceasing to be qualified for the carer payment (see s 198(1)), does not apply (see s 198AC(4)(c)), at least for that reason.
There is no material before the Tribunal (the same being found to be the case by the Social Security Appeals Tribunal), nor did Mr Cremona give any evidence, establishing that there is any “special reason in the particular case” for the purposes of s 198AC(3)(b) justifying any extension of the 63-day limit prescribed by s 198AC(3)(a) for the temporary cessation of care (see s 198AC(1)). In any event, as I have noted, the time period was nevertheless extended by the authorised review officer.
I also note that in his oral evidence Mr Cremona accepted that he had been employed by Nationwide Health & Aged Care Services since 8 June 2013, but said that he had ceased that employment in April 2014. However, that employment ended after the period the subject of the application for review.
Conclusion
The respondent did not rely on any evidence or submission to the effect that the respondent would suffer prejudice if the reinstatement application were granted.
Ultimately, as I have indicated, the question before the Tribunal is that dictated by s 42A(9) of the AAT Act – the Tribunal is required to consider it to be “appropriate” to reinstate the application in order to exercise its discretion to do so. Given the matters that I have referred to - not only the reason for Mr Cremona’s failure to appear at the hearing but, more significantly, the dismissed application’s prospects of success being insufficient to justify reinstatement – I do not consider it appropriate to reinstate the application and am not disposed to do so.
Accordingly, the application for reinstatement of the application for review is dismissed.
I certify that the preceding [28] (twenty-eight) paragraphs are a true copy of the reasons for the decision herein of Deputy President F J Alpins.
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Associate
Dated 6 November 2014
Date of hearing 14 October 2014 Applicant In person Advocate for the Respondent Mr T Noonan, Program Litigation and Review Branch
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