Echelon National Security Agency Pty Ltd And Australian Skills Quality Authority

[2013] AATA 602

[2013] AATA 602 

Division	GENERAL ADMINISTRATIVE DIVISION
File Number(s)	2012/3733
Re	Echelon National Security Agency Pty Ltd
APPLICANT
And	Australian Skills Quality Authority
RESPONDENT

INTERLOCUTORY DECISION

Tribunal	Ms A F Cunningham (Senior Member)
Date	27 August 2013
Place	Hobart

The application for reinstatement of the application is dismissed.

[Sgd Ms A F Cunningham]

Ms A F Cunningham (Senior Member)

PRACTICE AND PROCEDURE – application for reinstatement – no evidence of error – application dismissed

Administrative Appeals Tribunal Act 1975, ss 42A(1A),(8),(9),(10), 42C(1)(a), 42(2), 43A(2)

Schramm and Repatriation Commission [1998] AATA 300

REASONS FOR INTERLOCUTORY DECISION

Ms A F Cunningham (Senior Member)

BACKGROUND

1. An order was made by the Tribunal on 4 December 2012 dismissing the applicant's application for review pursuant to section 42A(1A) of the Administrative Appeals Tribunal Act 1975 and entering the terms of an agreement reached between the parties. A copy of the Terms of Agreement dated 3 December 2012 signed by the solicitor for the applicant and the solicitor for the respondent was forwarded to the Tribunal. Paragraph 1 of the Terms of Agreement stated:

   "For the purposes of section 42A(1A) of the Administrative Appeals Tribunal Act 1975 both parties consent that the application 2012/3733 be dismissed without proceeding to a review of the decision on the basis of the following agreement reached between the parties".

   Paragraph 2 contained the terms of the agreement reached between the parties for the purposes of section 42C(1)(a) of the Administrative Appeals Tribunal Act 1975.

2. On 27 June 2013 the Tribunal received from Chris Boland Lawyers, solicitor for the applicant, a request to reinstate the original proceedings on the basis of the respondent’s claimed failure to abide by the Terms of Agreement. The application for reinstatement was made on the basis of "the general liberty for any party to apply to a court or Tribunal of competent jurisdiction and section 43(2) of the AAT Act”. The Tribunal directed that the applicant provide written submissions in support of his application for reinstatement addressing the relevant provisions of the Administrative Appeals Tribunal Act 1975 (the AAT Act).

3. Written submissions were subsequently received detailing how the respondent had  failed to abide by the Terms of Agreement and advising that the application for reinstatement was made on the following basis:

   "1. Pursuant to the inherent jurisdiction of the Tribunal on the grounds that it would, in all the circumstances of the case be unjust and unequitable not to do so.

   2. Pursuant to S. 42(8) and (9) of the AAT Act, when read broadly, to enable justice to be done and seen to be done."

4. The written submissions received in response from the respondent’s legal counsel, Tim Lloyd contended that the request for reinstatement was misconceived. He argued that as the applicant had withdrawn the proceedings prior to any review by the Tribunal, the grounds for reinstatement under section 42(8) and (9) of the AAT Act are not available in this instance. Mr Lloyd contended that these subsections must be read together and that the power of reinstatement is linked to a dismissal decision only under section 42(2) and not where there has been deemed dismissal by consent under section 42(1A) of the Act. It was submitted that the applicant's remedy for an alleged breach of an agreement lies with the Federal Court. Mr Lloyd went on to submit that even if the reinstatement application was successful, as the applicant is no longer a registered training organisation, the Tribunal has no jurisdiction to determine the issue.

   CONSIDERATION

5. The Tribunal’s powers of review are conferred by statute and Mr Boland‘s contention that the Tribunal possesses an inherent jurisdiction is misconceived. (Refer section 25 of the AAT Act). Section 42A contains provisions relevant to discontinuance, dismissal, reinstatement etc of application. Subsection (1) contains the provision for dismissal where parties consent and states:

   “Where all the parties to an application before the Tribunal for a review of a decision consent, the Tribunal may dismiss the application without proceeding to review the decision or, if the Tribunal has commenced to review the decision, without completing the review”.

6. The reinstatement provisions are contained in subsections (8), (9) and (10). Subsections (8) and (9) are not relevant to this matter as the application was not dismissed pursuant to subsection (2) which concerns dismissal if a party fails to appear.

7. The power provided in subsection (9) relates to the determination to reinstate under subsection (8) for this subsection uses the phrase "may reinstate the application" rather than the word "an" application. This view is consistent with the approach of Deputy President Burns where he considered these subsections in Schramm and Repatriation Commission [1998] AATA 300 at paragraph 35.

8. Thus the only potentially relevant provision is subsection 42A(10) which reads as follows:

   “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”.

9. Deputy President Burns in the above decision considered the meaning of the word “error” as it appears in this subsection and said at paragraph 45:

   "In the Tribunal's opinion, the result will be that which parliament intended i.e. the opportunity for the Tribunal to reinstate applications which could not have been dismissed if the true facts were known at the time”.

10. The Deputy President did not consider that the subsection was limited to administrative error solely on behalf of the Tribunal but that it could extend it to an error in the state of facts proposed by one or both of the parties which was untrue.

11. Neither party to this application submitted that the application for review was dismissed on grounds which were ultimately shown not to be the case or were untrue or incorrect. The basis of the applicant’s request for reinstatement was that the respondent had not abided by the Terms of Agreement reached between the parties. There was no suggestion that there was a misrepresentation about the accuracy or correctness of any factual matters that founded the Terms of Agreement. Indeed the issue of "error" was not raised or considered by the applicant in the written submission supporting the application for reinstatement. It was the applicant’s contention that the application for review of the respondent's decision should be determined by the Tribunal because the respondent has failed to abide by the Terms of the Agreement which were the basis for the consent order dismissing the Application for Review.

12. There is no basis for a finding that the Application for Review was dismissed in error either by the Tribunal or by the parties. Both parties were legally represented and presumably received legal advice before instructing their legal representatives to seek an order dismissing the application on the basis of the Terms of Agreement. The applicant’s remedy must lie elsewhere for the Tribunal has no general power to reinstate the application other than in accordance with the legislative provisions referred to above.

13. For these reasons the applicant’s application for reinstatement of the application is dismissed.

I certify that the preceding 13 (thirteen) paragraphs are a true copy of the reasons for the decision herein of Ms A F Cunningham (Senior Member)

[Sgd]

Administrative Assistant

Dated  : 27 August 2013

Date(s) of interlocutory hearing On the papers