Evans and Australian Capital Territory (Compensation)
[2019] AATA 799
•17 April 2019
Evans and Australian Capital Territory (Compensation) [2019] AATA 799 (17 April 2019)
Administrative Appeals Tribunal
ADMINISTRATIVE APPEALS TRIBUNAL )
)General Division )
File Numbers: 2016/2524, 2018/6499, 2018/6587, 2018/6588, 2018/6589, 2018/6590, 2018/6591
Re: Timothy Evans
Applicant
And: Australian Capital Territory
RespondentDIRECTION
TRIBUNAL: Mr S Webb, Member
DATE OF CORRIGENDUM: 3 May 2019
PLACE: Canberra
The Tribunal directs the Registrar, pursuant to subsection 43AA(1) of the Administrative Appeals Tribunal Act 1975, to alter the text of the decision in this application:
1. On the cover page of the decision made by Mr S Webb, Member dated 17 April 2019 be amended to show the ‘Australian Capital Territory’ as the Respondent in place of ‘Comcare’.
2. Where the Respondent is referred to as ‘Comcare’ in paragraphs 106 and 107, it be amended to show the ‘Australian Capital Territory’.
...................................................................
Mr S Webb, Member
Division:GENERAL DIVISION
File Number(s):2016/2524
2018/6499
2018/6587
2018/6588
2018/6589
2018/6590
2018/6591
Re:Timothy Evans
APPLICANT
AndComcare
RESPONDENT
Decision
Tribunal:Mr S. Webb, Member
Date:17 April 2019
Place:Canberra
Applications dismissed.
........................................................................
Mr S. Webb, Member
PRACTICE AND PROCEDURE – applications for review of decisions rejecting compensation claims – delay – failure to comply with directions – failure to proceed – application for dismissal – meaning of ‘within a reasonable time’ - discretion enlivened – factors relevant to exercise of discretion - explanation for applicant’s failure to proceed and comply – fairness – prejudice - flexibility and latitude in the context of properly determined procedure - serial non-compliance and failure to proceed by applicant - Tribunal objectives – consideration of appropriate procedure – application dismissed
Administrative Appeals Tribunal Act 1975, s 2A, 33, 39, 42A, 42B
Safety, Rehabilitation and Compensation Act 1988, s 5A, 5B, 14
AMF15 v Minister for Immigration and Border Protection [2016] FCAFC 68
Andelman v Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2011] FCA 299
Beard v Telstra Corporation Ltd [1999] FCA 999
Goldie v Minister for Immigration and Multicultural Affairs [2002] FCAFC 367
Guse v Comcare [1997] FCA 961
Khan and National Australia Bank Limited [2018] AATA 4094
Spencer v Commonwealth of Australia [2010] HCA 28
Topalides and Tax Practitioners Board [2014] AATA 470
REASONS FOR DECISION
Mr S. Webb, Member
17 April 2019
Timothy Evans was physically injured in his employment as a physical education teacher by the ACT Department of Education. He claimed and was paid compensation. The physical injury prevented him from engaging in physical activities he had previously enjoyed. Some time later, he experienced psychological symptoms, including depression. Initially, Comcare denied liability for this ailment, but this determination was later revoked and he was paid compensation for resulting incapacity and medical treatment expenses.
Mr Evans returned to work and was transferred to a different school. This transfer did not go well – he complained of difficulties involving the school principal and other staff. His mental health was affected. He lodged a further claim for compensation. Comcare decided to reject the claim by primary determination and on reconsideration. Mr Evans applied for review.
The course of the resulting proceeding in the Tribunal has not been smooth. There have been many delays and much disputation.
Presently, the respondent, the Australian Capital Territory (the Territory), has applied for the application to be dismissed under s 42A(5) of the Administrative Appeals Tribunal Act 1975 (the AAT Act).
It is this matter, alone, that rose for hearing and determination. In this context, the Tribunal was given affidavits sworn by Mr Evans and by Ms Cains, a solicitor representing the Territory. Both parties were heard and oral submissions were made. In the result, today, I dismissed Mr Evans’ application and gave oral reasons. Written reasons have been requested, which follow. The written reasons are more expansive than those given orally, but the essential substance is the same.
In order to understand the reasons for the decision, it is helpful to set out the procedural history of the application.
Procedural history
On 3 May 2010, Mr Evans sustained a physical injury to his right hand.[1]
[1] T4.
He claimed compensation.[2] On 2 June 2010 Comcare accepted the claim under s 14 of the Safety, Rehabilitation and Compensation Act 1988 (the Act).[3]
[2] T5.
[3] T7.
Mr Evans became depressed.
On 21 January 2011, Dr George, a consultant psychiatrist, reported to Comcare and diagnosed “Probable major depression subsequent to a physical injury”.[4]
[4] Exhibit 2, page 30.
On 5 May 2011, Dr Gertler, another consultant psychiatrist, reported to Comcare that –
“Mr Evans suffers from an Adjustment Disorder with Depressed Mood…
…[His right hand] injury caused disability which prevented Mr Evans from pursuing his sporting activities as well as his teaching responsibilities. As the disability continued he had increasing difficulty coping and became depressed….
After Mr Evans injured his finger and was unable to fully assume the responsibilities of his teaching position, he allegedly was subjected to some criticism and harassment by other staff members that led to an aggravation of his feelings of helplessness and depression. Moreover the situation was further aggravated earlier this year when Mr Evans met with the school principal who was allegedly unsupportive of his requests and unempathic.”[5]
[5] Exhibit 2, page 52.
On 6 June 2011, Comcare determined to reject liability for ‘adjustment reaction with depressed mood’.[6] However, on 15 June 2011, this determination was revoked on reconsideration and Comcare accepted liability for ‘Adjustment Disorder with Depressed Mood” with a deemed date of injury being 19 August 2010.[7]
[6] Ibid, pages 57-59.
[7] Ibid, pages 61-68.
Mr Evans returned to work. He obtained treatment from Dr Lean, treating psychiatrist, and Mr Nomchong, treating psychologist, and he continued to take antidepressant medications.[8]
[8] See clinical notes in Exhibit 3.
On 8 August 2014, Comcare determined to pay compensation for incapacity from 7 March 2014 to 1 April 2014 under Mr Evans’ accepted psychological injury from 2011.[9] The present documents do not reveal any further claim or determination of compensation for incapacity in respect of Mr Evans’ accepted injury. Nevertheless, Comcare continued to meet claims for compensation in respect of certain medical treatment of this injury to 5 April 2017. I note that on 6 April 2017, Comcare determined to reject claims for psychological treatment in respect of Mr Evans’ accepted 2011 psychological injury.
[9] Exhibit 2, pages 98-99.
The documents reveal that Mr Evans’ mental health fluctuated after July 2014[10] and deteriorated in April 2015.
[10] See T89 folio 266, for example.
On 2 November 2015, Mr Evans made a claim for compensation in respect of “Major Depression”.[11]
[11] T148 folio 416.
On 15 January 2016, Comcare determined to reject Mr Evans’ claim.[12] Mr Evans sought reconsideration.
[12] T166.
On 15 March 2016, Comcare issued a reconsideration decision.[13] The reconsideration decision maker said –
“I consider that allegations of misconduct against you for use of inappropriate language on 21 January 2015 was a legitimate human resource management action that was targeted at you and related to the terms and conditions of your employment and therefore a reasonable administrative action.
You believed the allegations were targeted at you in order to divert attention away from the ore serious issues with Mr Dickinson.
I consider that the medical evidence supports that you[r] perception of how your employer was treating you significantly contributed to your condition. I also consider that it was reasonably open to your employer to advise you of allegations of misconduct.
Your claim is therefore excluded as it was contributed to be reasonable administrative action taken in a reasonable manner in respect of your employment.”[14]
[13] T172.
[14] T172 folio 517.
Mr Evans applied for review. His application was lodged on 13 May 2016.
At the time, Mr Evans was legally represented by Maurice Blackburn Lawyers.
A number of preliminary conferences were listed and procedural directions were made. The application was prepared for hearing.
On 31 March 2017, a hearing was listed to occur on 28 to 31 August 2017.
On 28 June 2017, Maurice Blackburn notified the Tribunal that “we are formally ending our Retainer with the Applicant”.
At this time, Mr Evans had not complied with directions previously issued, and varied to grant additional time, by the Tribunal. A non-compliance directions hearing was listed.
On 4 July 2017, the Tribunal received notification that Lander and Co held instructions to represent Mr Evans. Mr Lander requested vacation of the listed hearing of the substantive application on grounds that he would be overseas at the time and needed time to properly prepare the case for hearing. Comcare (then the respondent) did not oppose the request, which was heard and granted on 7 July 2017. The listed hearing was vacated and procedural directions given. A telephone directions hearing was listed for 31 July 2017.
On 28 July 2017, Mr Lander sent an email to the Tribunal stating –
I withdraw as solicitor for the applicant for want of any instructions.
I’m aware the applicant is extremely fragile.
The Tribunal attempted to contact Mr Evans on several occasions, without success. A further telephone directions hearing was listed for 5 September 2017. Mr Evans was formally notified that failure to attend this hearing may result in his application being dismissed.
Representing himself, Mr Evans attended the directions hearing on 5 September 2017. A procedural timetable was agreed and given force by directions issued by the Senior Member then presiding. The records of this directions hearing are consistent with Ms Cains’ affidavit evidence, and establish that Mr Evans was squarely placed on notice that failure to comply with the procedural timetable and related directions may result in dismissal of his application. The directions required him to give the Tribunal all lay witness statements, reports, records and other documents on which he will rely, and a Statement of Facts, Issues and Contentions on or before 28 November 2017.
On 27 November 2017, Mr Evans sought an extension of time to 5 December 2017 in which to comply. Comcare acceded to the request and suggested a revised timetable, under which Mr Evans would have until 19 December 2017 to comply. The Senior member with carriage of the application issued directions in these terms.
On 19 December 2017, Mr Evans complied with these directions.
After some delay in the Tribunal, on 22 March 2018, the application was listed for hearing on 25 to 28 June 2018. A telephone directions hearing was set down for 3 April 2018 before a Deputy President of the Tribunal. Mr Evans and his mother attended this hearing. Matters relating to the preparation for and conduct of the substantive hearing were discussed.
A further telephone directions hearing was listed for 25 May 2018 at the Respondent’s request. Mr Evans attended this hearing. Matters relating to witnesses to be called at the hearing were discussed. Orders were made in respect of concurrent evidence procedure. It is noted that concerns were raised about Mr Evans’ welfare.
A further telephone directions hearing was set down for 18 June 2018. Mr Evans and his mother attended this hearing. Issues relating to Mr Evans’ health and the forthcoming hearing were discussed. Directions were issued in an attempt to accommodate Mr Evans’ express intention not to attend the hearing while key witnesses, with whom he strongly disagreed and declined to cross examine, were giving evidence.
On 25 June 2018, the substantive hearing commenced. An issue of jurisdiction arose in relation to proper construction of the compensation claim form Mr Evans lodged with Comcare. The parties were heard on this issue and a ruling was given. In the result, on 26 June 2018, Comcare sought an adjournment of the hearing in order to properly address the effect of the jurisdictional ruling. Mr Evans acceded to this request, albeit somewhat reluctantly. The hearing was adjourned to a date to be listed. Procedural directions were made, under which each party was required to provide further information and documents - Mr Evans was required to provide certain information by 10 July 2018 and all remaining documents on which he intended to rely by 18 September 2018.
On 20 July 2018, consequent to the Tribunal’s jurisdictional ruling, Comcare issued reconsideration decisions in respect of matters relating to Mr Evans’ compensation claims.
The substantive hearing was listed to resume on 29 October to 1 November 2018.
A telephone directions hearing was set down for 5 October 2018. Mr Evans and his mother attended this hearing. He informed the Tribunal that he had engaged a lawyer, Mr Johannessen, to represent him. Mr Johannessen confirmed this to be correct. The Tribunal’s records were updated with him as solicitor of record, representing Mr Evans.
On Mr Johannessen’s application, the telephone directions hearing was stood over to 12 October 2018 in order to allow him more time to prepare, having newly entered the proceedings.
Mr Johannessen attended the resumed directions hearing with Mr Evans and his mother. Matters of procedure were discussed. Procedural directions were made that required Mr Evans to give the Tribunal all further materials on which he intended to rely by 19 October 2018 if the application was not settled by agreement of the parties. The application did not settle by agreement, and Mr Evans did not provide the Tribunal with any further materials.
On 25 October 2018, Mr Johannessen informed the Tribunal that settlement discussions were proceeding and, if these were not successful, an application would be made for vacation of the substantive hearing.
On 26 October 2018, Mr Johannessen sent an email to the Tribunal, stating that the matter had not settled by agreement and seeking “a short adjournment in order to prepare to conduct the hearing”. Mr Johannessen proposed a timetable. Efforts were made to schedule an urgent telephone directions hearing for 5pm that day, a Friday. Ultimately, this hearing was held over to 8.00am the following Monday, 29 October 2018.
At this hearing, Comcare strenuously opposed the vacation request and applied for dismissal of the application on grounds Mr Evans had failed to proceed with the application in a reasonable time and the resulting delays were prejudicial – witnesses on whom Comcare intended to rely may no longer be available (or able) to give oral evidence. Mr Evans had not sought review of Comcare’s 20 July 2018 reconsideration decision consequent upon the jurisdiction ruling given on 25 June 2018. Mr Johannessen’s explanation for this was that he had not been given instructions to do so. Ultimately, the vacation request was granted and the application for dismissal was refused. Counsel for Comcare, Ms Katavic, placed Mr Evans on notice that a further application for dismissal would be made if the application “fell off the rails”.
A directions hearing was listed for 1 November 2018. Directions were made requiring Mr Evans to inform the Tribunal of all further evidence that would be obtained, a timetable for filing all additional materials, including an amended Statement of Facts, Issues and Contentions, and a list of witnesses to be called. Mr Evans complied with this direction on 30 October 2018.
Mr Johannessen attended the directions hearing on 1 November 2018. Matters of procedure were discussed and directions were made in the following terms –
1. on or before 5 November 2018, the parties are to file hearing certificates for relisting this application for hearing between 1 February 2019 and 1 August 2019;
2. if the applicant intends to apply for review of Comcare’s 20 July 2018 reconsideration decision, he is to do so on or before 9 November 2018;
3. on or before 23 November 2018, the applicant is to file and serve all further materials on which he intends to rely and an amended Statement of Facts, Issues and Contentions;
4. on or before 24 December 2018, the respondent is to file and serve all further materials on which it intends to rely;
5. on or before 24 January 2019, the respondent is to file and serve an amended Statement of Facts, Issues and Contentions;
6. on or before 31 January 2018, the applicant is to file and serve a response to the respondent’s amended Statement of Facts, Issues and Contentions, or inform the Tribunal that no response will be made.
This direction included the following notes –
NOTES TO DIRECTION
1. If you do not comply with a direction, the Tribunal will list the application for a directions hearing. You will be required to attend the directions hearing in person and explain why you have not complied with the direction.
2. The Tribunal can dismiss an application if an Applicant fails within a reasonable time to comply with a direction made by the Tribunal. This power is set out in section 42A(5)(b) of the Administrative Appeals Tribunal Act 1975. If you are the Applicant and you fail to comply with a direction, you may also be asked to explain at the directions hearing why your application should not be dismissed.
3. If a party fails to comply with this direction, the Tribunal will not necessarily decide to adjourn, or delay the listing of, an alternative dispute resolution process or hearing.
4. Where the Tribunal has the power to award or recommend the payment of costs, failure by a party to comply with this direction may be taken into account in making a decision relating to costs.
5. If you do not believe you will be able to comply with a timeframe or any other aspect of this direction, you must apply to the Tribunal for an extension of time to comply or a variation of the direction. You must seek the views of the other party before making such an application, and advise the Tribunal of the other party’s views. You should make the application well before the date by which you are required to comply with the direction.
6. If you have been directed to give the Tribunal a Hearing Certificate, in accordance with the General Practice Direction, the Tribunal may list your application for hearing without further consultation if you do not provide the Hearing Certificate by the specified date.
Hearing certificates were returned by Mr Evans on 5 November 2018 and by Comcare on 8 November 2018.
On 8 November 2018, Mr Evans lodged six further applications for review of reconsideration decisions – applications 2018/6499, 2018/6587, 2018/6588, 2018/6589, 2018/6590 and 2018/6591. Each of these applications was out of time. Extensions of time were granted under s 29 of the AAT Act with Comcare’s consent. These applications were linked with Mr Evans’ original application, to be heard together. In view of this, no resumption of the hearing was listed.
Mr Evans did not file any further materials within the time specified by Direction 3.
On 24 December 2018, Comcare requested a directions hearing “to discuss whether this matter should progress”. A telephone directions hearing was set down for 14 January 2019.
Ms Cains, Mr D’Onofrio (another solicitor representing Comcare), Mr Johannessen and Mr Evans attended the hearing. Ms Cains initially pressed for the applications to be dismissed, but later resiled from this, pressing only for Mr Evans to progress his applications. Nonetheless, Ms Cains firmly informed Mr Evans that further non-compliance or failure to proceed would result in dismissal action. Mr Johannessen stated that it was not necessary for Mr Evans to provide an amended Statement of Facts, Issues and Contentions “as the application had been amended”. He indicated that Mr Evans would obtain further expert reports form Dr Lean and another doctor whose name he did not recall. I noted Mr Evans’ failure to comply with Direction 3 of 1 November 2018 and informed him that the direction would remain in force and his non-compliance with it would be a relevant factor in any future application for dismissal of his applications.
No evidence of Mr Evans’ alleged action in this regard has been provided to the Tribunal and, with the exception of Dr Lean’s brief report that was sent to the Tribunal after the dismissal hearing on 17 April 2019, Mr Evans has not filed any further medical reports. His affidavit evidence is that, on Mr McEnaney’s advice, he asked Dr Lean for a report on 15 April 2019. It is quite clear that this was done for the purposes of the dismissal hearing then on foot. I am not persuaded that Mr Evans or Mr Johannessen took any action to obtain further expert medical reports, as alleged on 14 January 2019.
In view of the six new applications Mr Evans lodged, a telephone preliminary conference was listed for 6 March 2019.
On 1 March 2019, the Territory became the respondent, in place of Comcare. Ms Cains remained as solicitor of record in all the applications, as representative of the Territory.
Ms Cains and Mr Johannessen attended the conference. Mr Evans did not attend. On Ms Cains’ affidavit evidence (paragraph [171]), Mr Johannessen “advised that the only instructions he had was that there would be a change in representation of the Applicant by the end of the day. He was further instructed that the new representation would seek a mediation. He advised that he had made it clear to the Applicant that the Tribunal’s timetable and deadlines are paramount”. In the result, the conference registrar issued the following direction -
On or before 13 March 2019, the Applicant must advise the Tribunal and the Respondent as to whether he intends to represent himself in his applications to the Tribunal or whether he has engaged legal representation, and if so, the details of his representative.
This direction included the following notes –
NOTES TO DIRECTION
1. If you do not comply with a direction, the Tribunal will list the application for a directions hearing. You will be required to attend the directions hearing in person and explain why you have not complied with the direction.
2. The Tribunal can dismiss an application if an Applicant fails within a reasonable time to comply with a direction made by the Tribunal. This power is set out in section 42A(5)(b) of the Administrative Appeals Tribunal Act 1975. If you are the Applicant and you fail to comply with a direction, you may also be asked to explain at the directions hearing why your application should not be dismissed.
3. If a party fails to comply with this direction, the Tribunal will not necessarily decide to adjourn, or delay the listing of, an alternative dispute resolution process or hearing.
4. Where the Tribunal has the power to award or recommend the payment of costs, failure by a party to comply with this direction may be taken into account in making a decision relating to costs.
5. If you do not believe you will be able to comply with a timeframe or any other aspect of this direction, you must apply to the Tribunal for an extension of time to comply or a variation of the direction. You must seek the views of the other party before making such an application, and advise the Tribunal of the other party’s views. You should make the application well before the date by which you are required to comply with the direction.
6. If you have been directed to give the Tribunal a Hearing Certificate, in accordance with the General Practice Direction, the Tribunal may list your application for hearing without further consultation if you do not provide the Hearing Certificate by the specified date.On 8 March 2019, the Territory applied for dismissal of Mr Evans’ applications under s 42A and s 42B of the AAT Act.
Mr Evans did not comply with the 6 March 2019 direction.
On 13 March 2019, a directions hearing to deal with the dismissal application was listed before me on 12 April 2019.
On 12 April 2019, prior to commencement of this hearing, the Tribunal received an email from Mr McEnaney, stating –
“I have this morning received instructions from Mr Evans to appear in this matter only for the purposes of today’s directions hearing.
…
At this stage, I would be seeking an order that the Applicant advise the Tribunal and Respondent by 26 April 2019 whether:
1) Carroll & O’Dea will accept instructions to accept formally; or, in the alternative
2) Whether the Applicant will discontinue all on foot proceedings.
In the event that we accept instructions to act, we would then put forward a proposed timetable for the filing of any material still required, and to take a hearing date.”
Ms Katavic, Ms Cains and Mr McEnaney attended the hearing.
Ms Katavic, informed me that the Territory’s application for dismissal is confined to s 42A(5) of the AAT Act and no issue is pressed under s 42B.
Mr McEnaney was in a difficult position, having very limited instructions and not having access to all relevant information. He informed me that Mr Evans was unwell. In view of this and in order to allow him a reasonable opportunity to present Mr Evans’ case against dismissal, I stood the matter over to resume on 17 April 2019.
Just prior to the resumption of the hearing, the Tribunal received an affidavit of Mr Evans.
The hearing resumed. Mr McEnaney and Ms Katavic made further submissions, including in respect of Mr Evans’ affidavit.
Dismissal
Ms Katavic submitted that Mr Evans had failed to progress his application in a serial manner. He had failed to provide sufficient or timely instructions to legal representatives and he had failed to comply with Tribunal directions on several occasions. The consequence of these failings caused significant delay and prejudice to the Territory. She asserted that Mr Evans was placed on notice of the risk of his applications being dismissed on a number of occasions, and still he failed to comply with directions and to progress his applications within a reasonable time - his failings amount to a failure to engage with the Tribunal proceedings and to prosecute his application. This, so the argument goes, stands contrary to his obligation to assist the Tribunal and the Tribunal’s statutory objectives, more generally.
Furthermore, she asserted that Mr Evans’ affidavit evidence raises a number of inconsistencies that are troubling in respect of his awareness of the significance of Tribunal directions and the risk of dismissal attendant upon failure to comply. In her submission, Mr Evans was fully capable of comprehending such matters and he had been squarely placed on notice of them by the Tribunal over a long period, and his non-compliant conduct should be viewed in this frame.
In these circumstances, Ms Katavic submitted that it would be wrong for the Tribunal to allow Mr Evans’ applications to proceed. She relied upon two decisions of the Tribunal – Topalides and Tax Practitioners Board[15] and Khan and National Australia Bank Limited.[16]
[15] [2014] AATA 470.
[16] [2018] AATA 4094.
Mr McEnaney argued that Mr Evans did not fully understand the import of Tribunal directions and the risk of dismissal he faced by failing to comply with them. In his submission, Mr Evans is quite unwell and this bears upon his ability to understand, as well as his ability to properly engage with, Tribunal proceedings and provide instructions.
In his submission, dismissal of Mr Evans’ applications would cause insurmountable prejudice, as it would deny Mr Evans the opportunity to properly test adverse decisions denying him compensation – he would lose his right to merits review of those contested decisions. While he acknowledged Mr Evans’ past conduct may have raised some prejudice for the Territory, that prejudice is not presently made out by probative evidence and, in any event, it is only asserted in respect of the availability of witnesses who have either given evidence or could be summonsed to do so.
Mr McEnaney was not able to speak to the conduct of Mr Evans’ previous legal representatives, but sought to distinguish his conduct, in prospect, from what had gone before.
There is some force to these submissions, but Mr McEnaney conceded that no decision had yet been made about him acting for Mr Evans in his substantive applications before the Tribunal. Mr McEnaney’s submissions in respect of prospective conduct are, therefore, somewhat speculative.
The application for dismissal is in respect of s 42A(5) of the AAT Act –
42A(5) If an applicant for a review of a decision fails within a reasonable time:
(a) to proceed with the application; or
(b) to comply with a direction by the Tribunal in relation to the application;
the Tribunal may dismiss the application without proceeding to review the decision.
As can be seen, the discretion to dismiss an application under this provision is essentially precondition by an applicant’s failure to proceed with the application, or failure to comply with a direction of the Tribunal, within a reasonable time. The following questions arise –
(a)has the applicant failed to proceed with the application within a reasonable time?
(b)has the applicant failed to comply with a direction of the Tribunal in relation to the application within a reasonable time? And, if the answer to either question is Yes,
(c)is it appropriate to exercise the discretion to dismiss the application?
Quite clearly, each case is to be determined on its particular facts.
Failure to proceed
Mr Evans has failed to proceed with his application in any substantive way since 8 November 2018.
Mr Johannessen’s participation in the 14 January 2019 telephone directions hearing, listed at Comcare’s request to consider if the applications should progress, and his attendance at the 6 March 2019 telephone preliminary conference with very limited instructions do not represent any substantive effort on Mr Evans’ part to proceed with his applications.
The next question is whether his failure to proceed is within a reasonable time. About this, in this context, there are two things to say immediately.
Firstly, the phrase ‘reasonable time’ is not given any special meaning for the purposes of s 42A(5). It is not an abstract concept amenable to a fixed or arbitrary assessment of time; nor is it something that can be properly assessed on the passage of time, alone. The amount of time that may be considered reasonable is to be assessed in each case, having regard to all relevant circumstances.
Secondly, it should not be assumed that the time in which an applicant is expected to proceed with an application must necessarily be short for it to be ‘reasonable’. A proper assessment of relevant circumstances may lead to a different conclusion. In this regard, consideration should be given to the Tribunal’s objectives set out in s 2A of the AAT Act –
2A Tribunal’s objective
In carrying out its functions, the Tribunal must pursue the objective of providing a mechanism of review that:
(a) is accessible; and
(b) is fair, just, economical, informal and quick; and
(c) is proportionate to the importance and complexity of the matter; and
(d) promotes public trust and confidence in the decision‑making of the Tribunal.
As can be seen, quickness is but one objective, coupled with fairness, justice, economy and informality, where considerations of accessibility, proportionality and public trust also arise. I accept that these are considerations relevant to an assessment of ‘reasonable time’ for the purposes of s 42A(5) in any particular case, as well as exercise of the discretion to dismiss the section confers.
Mr Evans has been given time and opportunity to progress his application. On several occasions, the Tribunal has issued procedural directions under s 33 which have subsequently been varied to accommodate Mr Evans’ particular circumstances. Latitude has been given in view of his mental health condition and his efforts to obtain legal representation.
Presently, Mr Evans and those representing him have not provided any substantiated reasons for his failure to proceed. Mr Evans, today, provided an affidavit in which he asserts that he is very unwell –
9. … I have a diagnosed depression condition. It is the condition in these proceedings.
10. The effect of my depression on me has been catastrophic.
11. Most of the time, I try to sleep. I take sleeping tablets daily and constantly so that I am mostly sleeping.
12. My recollections of events after 7 March 2019 are therefore not precise.
13. It is common for me to do this lately. During these low periods, I do not have the motivation to do anything at all, and complex or stressful tasks are simply beyond my capacity.
Mr Evans did not, however, provide medical evidence to support his account before or during the dismissal application hearing. This is despite further time being allowed from 14 to 17 April 2019. I note the following in his affidavit –
32. Following the hearing [on 14 April 2019], Mr McEnaney contacted me. He told me the matter would be stood over until Wednesday following, at 11am. He told me that the Tribunal might be assisted in understanding my failure to comply against a background of my medical condition and its day to day effect on me.
33. Mr McEnaney advised me to contact my doctors and ask if one of them could prepare a report or letter setting out the condition I am being treated for and its effects on my [sic], and in particular any effects on my motivation/drive/functional capacity.
34. I contacted the office of my psychiatrist Dr Bruce Lean on Monday, 15 April 2019.
35. I asked Dr Lean’s office if Dr Lean would be able to write a letter about the condition he is treating me for, and the effect my depression has on me. Dr Lean was with patients and they said they would let me know once they spoke to him.
36. Dr Lean’s office contacted me back on the morning of 16 April 2019, saying Dr lean would most likely not be able to prepare any documents at such short notice but that he would try to write a note about my condition and send it to me on 17 April 2019.
Despite the lack of medical evidence addressing Mr Evans’ present state of health, I accept his evidence about the effect of his depression on his motivation and capacity.
I note in passing that later on 17 April 2019, after conclusion of the dismissal hearing and ex tempore delivery of the decision, a brief report by Dr Lean was provided to the Tribunal. This report supports Mr Evans’ account of the effects of his depression on his motivation and capacity. As I accepted Mr Evans’ evidence on this point, I do not consider it is necessary to recall the parties to hear further submissions addressing Dr Lean’s report.
The effect of Mr Evans’ mental illness on his motivation and ability to function does not explain his failure to proceed with his applications from 9 November 2018 to 6 March 2019 when he was legally represented by Mr Johannessen. There is a conflict in the evidence concerning Mr Johannessen’s representation: on one hand, on and from 5 October 2018 to 6 March 2019, on information provided by Mr Evans and Mr Johannessen, Mr Johannessen was the solicitor of record, representing Mr Evans; on the other hand, on Mr Evans’ affidavit includes the following –
14. Mr Johannsen’s involvement in my matter was necessarily brief because he is a friend of mine, and was doing me a favour on the day of the phone conference. Mr Johannsen knew of the difficulties I have had securing a solicitor as I had told him.
Mr Evans’ evidence on this point is not consistent with the Tribunal records of Mr Johannessen’s involvement and representation of Mr Evans, and it cannot be given much weight. Whatever arrangement might have existed between Mr Evans and Mr Johannessen, I am satisfied that, in the period from 5 October 2018 to 6 March 2019, Mr Johannessen operated in a professional capacity as Mr Evans’ solicitor of record, acting on instructions Mr Evans provided from time to time.
There is no evidence from Mr Johannessen that he had difficulty obtaining instructions from Mr Evans as result of Mr Evans’ mental illness, or for any other reason.
Thus, while it may be accepted that Mr Evans encountered difficulties proceeding with his applications while representing himself from 7 March 2019 to 14 April 2019, when Mr McEnaney was first instructed to act for him, I am not persuaded (and there is no probative evidence to establish) that similar difficulties arose during the period he was legally represented by Mr Johannessen.
On balance, I am satisfied that Mr Evans has failed to proceed with his application within a reasonable time.
Failure to comply with a direction
Mr Evans has not complied with Direction 3 issued on 1 November 2018. He failed to comply with the direction issued on 6 March 2019 until 14 April 2019, the first day of the dismissal hearing.
Once again, it is necessary to determine if Mr Evans’ failure to comply with these directions was within a reasonable time.
The terms of each direction specify the time for compliance. As a matter of principle, it may be accepted, generally, that failure to comply within a reasonable time will only arise once this temporal limit is exceeded. Where the Tribunal has extended the time for compliance, this may be a relevant consideration when assessing the limit of ‘reasonable time’ in the particular circumstances.
Even though, for the purposes of s 42A(5), the phrase ‘within a ‘reasonable time’ does not refer to the duration of the applicant’s proceedings in the Tribunal, this may be a relevant matter to consider in the particular circumstances of any case. The assessment of ‘reasonable time’ requires consideration of all relevant circumstances, including previous non-compliance by the person and delays arising from the conduct or circumstances of the person, as well as the interests of other parties. This involves close consideration of the applicant’s circumstances that bear upon his or her capability to comply with the direction. Should it be established that the applicant’s mental health, for example, is such that renders him or her unable or incapable of complying with the direction for an uncertain time reaching into the future, this would be relevant when assessing the amount of time that may be considered reasonable for compliance.
Presently, no substantial explanation has been given by Mr Evans or those representing him for his failure to comply with Direction 3 issued on 1 November 2018. The time for compliance was 23 November 2018. The notes to that direction clearly place Mr Evans on notice of the possible consequences of non-compliance. The telephone directions hearing on 14 January 2019 addressed this issue and firmly placed Mr Evans on notice, through his legal representative, Mr Johannessen, that his non-compliance may be a relevant consideration in any future application for dismissal.
It was open for Mr Evans to achieve a level of compliance, albeit out of time, thenceforth. This did not occur and, as I have said, there is no probative evidence that any further action was taken to obtain medical reports or to provide an amended statement of facts, issues and contentions; nor is the present state of evidence sufficient to support the drawing of any such inference.
Considering Mr Evans’ circumstances, including his mental health and related difficulties, I am not persuaded that any reasonable or substantial explanation has been given for his failure to comply with Direction 3 during the period in which he was legally represented by Mr Johannessen up to 6 March 2019.
In view of the notice of possible consequence given on several occasions, including in the notes to the Direction and on 14 January 2019, I am satisfied that Mr Evans’ failure to comply with the Direction by 6 March 2019 exceeded a ‘reasonable time’ for compliance.
Mr Evans failed to comply with the Tribunal Direction issued on 6 March 2019. He achieved compliance on 14 April 2019. During the intervening period he was not legally represented. While his failure to comply is established as a fact, in view of his mental health during a period in which he was representing himself, some latitude is desirable when assessing a reasonable time for compliance. But this does not extend to his previous failure to comply within Direction 3 issued on 1 November 2018 when he was legally represented.
Exercise of discretion to dismiss
The facts necessary to precondition the discretion to dismiss Mr Evans’ application under s 42A(5) is, therefore, enlivened.
The next step is to determine if it is appropriate to exercise the discretion. For this purpose, once again, all relevant circumstances should be considered, including the incidents of the proceedings, other remedial options and the interests of, and consequential effect upon, other parties or affected persons. Powers for summary dismissal must always be exercised with great caution.[17] Generally, summary dismissal of an application is a remedy of last recourse.[18]
[17] Spencer v Commonwealth of Australia [2010] HCA 28, per French CJ and Gummow J at [24].
[18] Guse v Comcare [1997] FCA 961.
The requirement for procedural fairness and natural justice is an important consideration. The Federal Court set out relevant principles in AMF15 v Minister for Immigration and Border Protection.[19] While the matters before the Court in that matter arose in respect of the Federal Circuit Court under different legislation, the underlying principles apply equally to the Tribunal and they are apposite in the present case -
[19] [2016] FCAFC 68.
44. The main relevant principles … may be summarised as follows:
(a) The power of the FCCA summarily to dismiss an application under s 17A of the FCCA Act is subject to the obligation to provide procedural fairness, which includes the provision of a reasonable opportunity for the appellant to present evidence and to make submissions.
(b) This obligation lies at the heart of the judicial function. As Gageler J observed in Condon v Pompano Pty Ltd [2013] HCA 7; 252 CLR 38 at [194] (footnotes omitted):There should be no doubt and no room for misunderstanding. Procedural fairness is an immutable characteristic of a court. No court in Australia can be required by statute to adopt an unfair procedure. If a procedure cannot be adopted without unfairness, then it cannot be required of a court. ‘[A]brogation of natural justice’, to adopt the language of the explanatory notes to the Bill for the COA, is anathema to Ch III of the Constitution.
(c) In assessing whether a process meets the necessary standards of procedural fairness it is always necessary to examine the particular circumstances in which that process occurs, including (but not limited to) the legislative setting, the characteristics of the parties involved, what is at stake for them, the nature of the decision to be made, and steps already taken in the process.
(d) The well-established requirement that a power of summary dismissal must be exercised with caution and is “not to be exercised lightly”, reinforces the proposition that procedural fairness in the exercise of judicial power is usually afforded by a party having access to the ordinary and full range of processes available within the jurisdiction which that party has invoked.
(e) Recognition must be given to the pressure of high volume decision-making, such as in the FCCA’s migration jurisdiction and the tools which are available to manage such a high volume of cases, which includes the show cause process in Pt 44 of the FCCA Rules. However, these processes:... do not obviate the need to consider the material before the Tribunal (rather than simply its reasons), nor to explain in plain terms to unrepresented applicants that they must identify to the Court why the Tribunal’s decision was not made lawfully and by a fair process. Insisting to an unrepresented applicant that she or he identify a “jurisdictional error” is a pointless, and unfair, exercise. Further, the processes in s 17A and Pt 44 do not remove the obligation to give parties, whether represented or unrepresented, some reasonable time to regularise their materials and present their arguments.
(f) In a high volume jurisdiction such as that conferred upon the FCCA under the Migration Act where there is also much at stake for an individual litigant in terms of fundamental rights, including the consequences of the mandatory detention regime in Australia, and removal from Australia, the high volume of cases “should if anything give rise to extra caution to ensure no injustices are being done because of judicial workload pressures”.
(g) The relevant circumstances which bear upon the requirements of procedural fairness in a particular case include that there is an unrepresented applicant whose primary language is not English and who may be assumed to be unfamiliar with court processes and that person is called upon, without notice, to mount arguments resisting the summary dismissal of the applicant’s application. In our respectful view, those observations are equally applicable to a situation where inadequate notice is given to the applicant.
(h) Merely because an applicant has been provided with pro forma information on the relevant form applicable to proceedings under s 476 of the Migration Act (which includes a statement that, at the first Court date, the FCCA “may hear and determine all interlocutory or final issues, or may give directions for the future conduct of the proceeding”) is relevant but not determinative as to whether procedural fairness obligations have been discharged. That is because:... There can reasonably be no such presumption, in relation to unrepresented parties, unfamiliar with the Australian legal system and in particular without knowledge about the nature, purpose and processes of judicial review, most of whom have little or no adequate command of the English language and certainly no command of English as used by and in the courts. In any event, the terms of the statement on this form, expressed as they are in the alternative and without any advertence to the permanency of the consequences of final dismissal, lack sufficient clarity to be used in the way the primary judge has purported to use them.
(i) A statement on such a form does not relieve individual judges of their obligation to exercise summary dismissal powers reasonably and conformably with procedural fairness requirements.
(j) At the very least, prior notice of the risk of an application being summarily dismissed at the first Court date must be given and, although there is no rigid rule in this regard, some indication of the amount of notice is indicated in the requirement identified in r 6.19(a) of the FCCA Rules that three days’ notice be given by a respondent who seeks summary dismissal:In circumstances where an applicant is unrepresented, to deal with a matter on short notice like that may still be procedurally unfair, especially if there are communication and language difficulties, but that will be circumstance-dependent. Notice is fundamental to a fair process in a court: in an adversarial system, it allows parties time to prepare, to meet what is to be put against them, to understand and consider the significance of what is proposed to occur, and to be in a position to present evidence and argument if they so wish. In a practical sense, it is the giving of reasonable notice which facilitates and protects the exercise of these entitlements by a litigant.
[Citations removed].
It was with these principles in mind that I stood over the dismissal hearing on 14 April 2019, allowing additional time and a reasonable opportunity for Mr McEnaney to present Mr Evans’ case against summary dismissal of his applications.
Mr Evan’s relevant circumstances include the effect of his mental health condition and prescribed medications on his motivation and functional capacity. This circumstance bears upon his ability to proceed with his applications and to comply with directions while representing himself. Considering this circumstance, I am mindful of the additional burden on the Tribunal to ensure procedural fairness in proceedings in which one party is not legally represented.[20] This weighs against exercise of the discretion.
[20] Andelman v Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2011] FCA 299 at [21].
The present state of the evidence does not establish that Mr Evans’ mental health condition impeded Mr Johannessen’s ability to properly represent him, or to progress his application in compliance with Tribunal directions. His failure to proceed with his applications and to comply with Tribunal Direction 3 of 1 November 2018 in this circumstance weighs in favour of exercising the discretion to dismiss his applications.
Should Mr Evans’ applications be dismissed, he will lose the opportunity for merits review of Comcare’s decision refusing claims for compensation. As Mr McEnaney asserted, quite correctly, dismissal represents an insurmountable prejudice to Mr Evans. This weighs against exercise of the discretion.
Comcare pressed for dismissal on grounds of prejudice. There are two things to say about this. Firstly, the prejudice alleged relates to the unavailability of two witnesses – one who is unwell and the other, an expert, who has retired. The circumstances of those witnesses are not presently established by probative evidence. Even if the circumstances alleged are accepted as true, the present evidence does not establish that those circumstances and the prejudice alleged is attributable to Mr Evans’ failure to proceed with his applications since 9 November 2018 or his failure to comply with Direction 3 of 1 November 2018. No issue of prejudice relating to additional costs was raised or pressed.
This notwithstanding, I accept that delay, by its nature in proceedings of this kind, may give rise to prejudice. It can be accepted that memories fade with passing time and, where particular details of past events are in dispute, this may diminish Comcare’s ability to present its case, as alleged. To my mind, the same difficulty would apply to Mr Evans. To the extent that such prejudice lies against Comcare, it weighs in favour of dismissing Mr Evans’ applications.
Issues of relative merit, or the lack of it, in any of Mr Evans’ applications for review were not seriously agitated or pressed. To my mind, on a preliminary and cursory assessment, all that can be said is that the applications are not so wanting of merit that they should be dismissed, nor so meritorious that they should not.
As it is established as a fact that Mr Evans failed to proceed with his applications and he failed to comply with a Tribunal direction within a reasonable time, it follows that he has failed to meet the obligation to use his best efforts to assist the Tribunal under s 33(1AB) of the AAT Act. This weighs for exercise of the discretion.
These failings on Mr Evans’ part stand against the Tribunal’s responsibility to conduct proceedings in a controlled, orderly and appropriate manner. The power to make directions under s 33 of the AAT Act is for that purpose. Exercise of this power permits a great deal of flexibility in the particular circumstances of any case. As can be seen from the procedural history, the Tribunal has exercised this power with a good deal of flexibility, accommodating Mr Evans’ changing circumstances (and previous non-compliance) over a period of almost three years. There is, however, a limit to the latitude that can reasonably be given to one party in proceedings before the Tribunal. To my mind, that limit has been surpassed in this case. This consideration weighs for exercise of the discretion.
Nonetheless, any remedy of an applicant’s failure to proceed or failure to comply with a Tribunal direction within a reasonable time should be proportionate. The Tribunal is obliged –
(a)under s 33(1)(b), to ensure that ‘the proceeding shall be conducted with as little formality and technicality, and with as much expedition, as the requirements of this Act and of every other relevant enactment and a proper consideration of the matters before the Tribunal permit’; and
(b)under section 39(1), to ensure that each party ‘ is given a reasonable opportunity to present his or her case’.
In view of this, it is appropriate to consider procedural options when determining the appropriate remedy. This is not to suggest that the Tribunal is bound to act upon any such option when deciding upon the exercise of discretion conferred by s 42A(5) in any particular case,[21] rather that the consideration of options is desirable to ensure a proportionate and appropriate remedy in the administration of justice and fairness to both parties.
[21]Goldie v Minister for Immigration and Multicultural Affairs [2002] FCAFC 367 at [41].
One such option is to list Mr Evans’ applications for hearing and determination without further delay. Quite correctly, Comcare argues that doing so would result in unfairness to both parties if time is not allowed for each to properly investigate and present their case. Furthermore, substantive hearings have been listed in these proceedings on three occasions. On two of these occasions, the Tribunal acceded to Mr Evans’ applications for vacation or adjournment. Should a further hearing be listed, especially at short notice, there is no certainty it would proceed on the days set down. When the procedural history is considered, and the uncertain state of Mr Evans’ future legal representation by Mr McEnaney (or some other solicitor), is considered in the context of affording procedural fairness to the parties, that would appear unlikely. This is not a case in which an application for summary dismissal arises before an applicant has had an opportunity to have his or her case tested at hearing or where an alleged failure to proceed arises after a substantive hearing has been listed but not yet heard, as arose in Beard v Telstra Corporation Limited.[22]
[22] [1999] FCA 999.
Another option is to issue further procedural directions and attempt to manage the proceedings in an orderly fashion. To my mind, this option requires some certainty or reasonable prospect of being effective. Two factors stand against this likelihood. There is a good deal of uncertainty about Mr Evans’ future legal representation by Mr McEnaney (or a different solicitor) and the likelihood he would comply with such directions. The procedural history raises real questions about the likelihood of further non-compliance by Mr Evans.
In a case of this age, after almost three years on foot in the Tribunal, the option of simply allowing more time, in an open-ended way, such as standing the applications over, pending resolution of Mr Evans’ mental illness, is untenable. This option was not raised by either party.
Considering these matters, and weighing the various interests and options, the Tribunal is faced with a difficult decision. It is never entirely satisfactory or fair to an applicant to dismiss an application in circumstances such as this. But unfairness is a matter of relativity. It is a matter that requires competing interests to be weighed and rights to be considered. These are matters about which sensible people acting reasonably when dealing with identical facts and circumstances might differ. It is no easy task.
That said, balancing considerations of fairness and weighing other considerations, the particular circumstances of this case render it appropriate to dismiss Mr Evans’ applications.
Decision
Applications dismissed.
I certify that the preceding 118 (one-hundred eighteen) paragraphs are a true copy of the reasons for the decision herein of Member Simon Webb
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Associate
Dated: 17 April 2019
Date(s) of hearing: 17 April 2019
Applicant: Mr Timothy Evans
Solicitors for the Applicant: Mr James McEnaney, Carroll & O’Dea Lawyers
Solicitors for the Respondent: Ms Athena Cains, McInnes Wilson Lawyers
Counsel for the Respondent: Ms Kristy Katavic
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