Faulkner and Comcare
[2007] AATA 1541
•12 July 2007
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2007] AATA 1541
ADMINISTRATIVE APPEALS TRIBUNAL )
) No N2005/26;
) No N2005/1545
GENERAL ADMINISTRATIVE DIVISION ) Re DUANE FAULKNER Applicant
And
COMCARE
Respondent
DECISION
Tribunal Ms Robin Hunt, Senior Member Date12 July 2007
PlaceSydney
Decision The Tribunal reinstates the application pursuant to section 42A (9) ................. [Sgd] ...................
Ms Robin Hunt
Senior Member
CATCHWORDS
PRACTICE AND PROCEDURE - COMPENSATION – application for re-instatement of application for review – application previously dismissed - s 42A Administrative Appeals Tribunal Act – merits of claim - application reinstated
Administrative Appeals Tribunal Act 1975 sub-s 42A(2), (8), (9)
Acts Interpretation Act 1901
Evidence Act 1995
Secretary, Department of Social Security v Murphy [1998] 809 FCA (29 June 1998)
Ajka Pty Ltd v Australian Fisheries Management Authority [2003] FCA 248
Bantick and Secretary, Department of Family and Community Services [2003] AATA 472
Bramwell v Repatriation Commission (1998) 51 ALD 56
Collins v Minister for Immigration and Ethnic Affairs (1981) 36 ALR 598
REASONS FOR DECISION
12 July 2007 Ms Robin Hunt, Senior Member Background
1. The applicant, Mr Duane Faulkner, is seeking to have his application for review reinstated after it was dismissed under section 42A(2) of the Administrative Appeals Tribunal Act 1975 (“the Act”). His application was dismissed on Monday, 19 February 2007, as Mr Faulkner did not appear or have any representative appear on his behalf at the hearing set down before the Tribunal on that date. Mr Faulkner’s former solicitors had filed and served a notice of ceasing to act on the previous Friday, 16 February 2007. Mr Faulkner made an application for re-instatement to the Tribunal on Friday, 23 March 2007.
Issues
2. The issue for me to decide is simply whether Mr Faulkner’s application should be reinstated.
consideration
3. I dismissed Mr Faulkner’s application on 19 February 2007 due a failure to appear by Mr Faulkner or any representative. Since I dismissed his case, I have become aware that the Tribunal on Friday, on 16 February 2007, received a notice from Mr Faulkner’s former solicitor sent by facsimile transmission, that he had ceased to act for Mr Faulkner. However, this was not passed on to me in my capacity as presiding member and when I dismissed the case, on Monday, 19 February 2007, I was unaware of the former solicitor’s notification.
4. Nevertheless, the dismissal of Mr Faulkner’s matter was within the power given to the Tribunal under section 42A (2) where a person fails to appear. Mr Faulkner’s application was dismissed pursuant to section 42A(2) of the Act, which provides:
(2)If a party to a proceeding before the Tribunal in respect of an application for the review of a decision (not being the person who made the decision) fails either to appear in person or to appear by a representative at a directions hearing, or an alternative dispute resolution process under Division 3, held in relation to the application, or at the hearing of the proceeding, the Tribunal may:
(a)if the person who failed to appear is the applicant – dismiss the application without proceeding to review the decision…
5. Section 42A (8) gives the Tribunal power to reinstate applications which have been dismissed under sub-s (2). The first question, therefore, is whether Mr Faulkner’s application for reinstatement was made within 28 days after receiving notification that the application has been dismissed. This requirement is set out in section 42A (8) as follows:
(8)If the Tribunal, under subsection (2), has dismissed an application (other than an application in respect of a proceeding in which an order has been made under subsection 21(2)), the person who made the application may, within 28 days after receiving notification that the application has been dismissed, apply to the Tribunal for reinstatement of the application.
6. Mr Faulkner’s written submissions acknowledge that he does not recall the date of receipt or have any record of the actual date on which he received notification that his application was dismissed. Tribunal records show the direction dismissing his application and the accompanying letter notifying him of the dismissal are both dated 19 February 2007. The respondent argued that this meant the last day for lodging a reinstatement application was 28 days after that date, which would bring the relevant day to 19 March 2007.
7. I do not agree with this submission. The Acts Interpretation Act 1901 and the Evidence Act 1995 contain provisions which affect the deemed date of receipt of letters sent by post. Section 29 of the Acts Interpretation Act 1901 states:
(1) Where an Act authorises or requires any document to be served by post, whether the expression “serve” or the expression “give” or “send” or any other expression is used, the unless the contrary intention appears the service shall be deemed to be effected by properly addressing prepaying and posting the document as a letter, and unless the contrary is proved to have been effected at the time at which the letter would be delivered in the ordinary course of post.
(2)This section does not affect the operation of section 160 of the Evidence Act 1995.
8. The Tribunal sent Mr Falkner the dismissal notification by post. Section 160 of the Evidence Act 1995 provides that a letter sent by post is received on a day presumed in accordance with that section. Section 160 states, in part:
160 Postal Articles
(1)It is presumed (unless evidence sufficient to raise doubt about the presumption is adduced) that a postal article sent by prepaid post addressed to a person at a specified address in Australia or in an external Territory was received at that address on the fourth working day after having been posted. [emphasis added]
(2) …
(3) In this section:
working day means a day that is not:
(a) a Saturday or a Sunday; or
(b) a public holiday or a bank holiday in the place to which the postal article was addressed.
9. Section 163 of the Evidence Act 1995 contains further provisions about letters sent by government agencies. The section states:
163 Proof of letters having been sent by Commonwealth agencies
(1)A letter from a Commonwealth agency addressed to a person at a specified address is presumed (unless evidence sufficient to raise doubt about the presumption is adduced) to have been sent by prepaid post to that address on the fifth business day after the date (if any) that, because of its placement on the letter or otherwise, purports to be the date on which the letter was prepared. [emphasis added]
(2)In this section:
Business day means a day that is not:
(a) a Saturday or a Sunday; or
(b) a public holiday or bank holiday in the place in which the letter was prepared.
Letter means any form of written communication that is directed to a particular person or address, and includes:
(a) any standard postal article within the meaning of the Australian Postal Corporation Act 1989; and
(b) any envelope, packet, parcel, container or wrapper containing such a communication; and
(c) any unenclosed written communication that is directed to a particular person or address.
10. The Tribunal letter was sent to Mr Faulkner by ordinary post as is the Tribunal’s usual practice and as contemplated by section 29 of the Acts Interpretation Act and the above provisions of the Evidence Act 1995. By my calculation, pursuant to the sections 160 and 163 of the Evidence Act 1995, the cumulative effect of these provisions is to make the presumed date of receipt by Mr Faulkner of the notice of the dismissal is Friday, 2 March 2007. The calendar shows that 19 February 2007 was a Monday, making the following Monday, 26 February 2007, the date on which the letter was sent, according to the presumption in section 163. As well, the presumed date of receipt is the fourth working day after the letter was posted, by virtue of section 160. That makes the presumed date of receipt Friday, 2 March 2007. It then follows that Mr Faulkner was entitled to make his application for reinstatement 28 days after 2 March 2007, that is, on or before 30 March 2007.
11. If I am wrong about including the presumption expressed in section 163 of the Evidence Act, as it is not expressly referred to in section 29 of the Acts Interpretation Act, section 160 of the Evidence Act would result in the presumed date of receipt being 23 February 2007, that is, four working days after posting on 19 February 2007. If the presumed date of receipt is the early date of Friday, 23 February 2007, Mr Faulkner had until 23 March 2007 to lodge his re-instatement application. That is because 23 March 2007 falls 28 days after the date of receipt presumed under section 160. As the Tribunal received Mr Faulkner’s application on Friday 23 March 2007, he made his application within the permissible time of 28 days as set out in section 42A (8) of the Act.
12. Accordingly, I find that Mr Faulkner did make his application for reinstatement within time. This does not mean his application must be reinstated. The next matter on which his application for reinstatement turns is whether it is appropriate to do so, as provided in section 42A (9).
Merits of the Application
13. In determining whether I should reinstate an application that has been dismissed under section 42A, I must have regard to subsection 42A(9) of the Act, which states:
(9)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.
14. One of the tests I have applied in considering the appropriateness of reinstatement concerns the merits of Mr Faulkner’s claim. As well, I have taken into account the history of the mater. The respondent has provided written submissions setting out the history of delays in this matter. The accuracy of the events recounted in these submissions was not contested by Mr Faulkner, who sought to excuse the delays because of his ill health and the short notice of his former solicitor’s ceasing to act for him.
15. Mr Faulkner has caused considerable delay in the review of his case. He initially delayed taking action to commence review of the decision and then he discontinued the hearing of his case when it was underway. He failed to notify the Tribunal or the respondent that he would not be attending the resumed hearing on 19 February 2007. The result is that the respondent and the Tribunal have been put to unnecessary inconvenience and expense.
16. The situation is that Mr Faulkner is appealing a reviewable decision made on 9 May 2000. Mr Faulkner originally sought an extension of time in which to lodge his application for review of the decision with this Tribunal on 5 July 2000. The respondent consented to the extension of time sought and the Tribunal extended the time for lodgement of his application to 2 August 2000. Mr Faulkner did not, however, take advantage of this opportunity and failed to lodge any application.
17. Next, on 30 December 2004, Mr Faulkner again sought an extension of time for the filing of an application for review of the decision made on 9 May 2000. This second application seeking more time was opposed by the respondent but was granted by the Tribunal following a preliminary hearing. The Tribunal, on 31 May 2005, granted an extension of time to 30 December 2005. Mr Faulkner subsequently lodged an application for review through his then solicitors almost one year after his second extension of time application, on or about 6 December 2005.
18. The matter was part heard by the Tribunal on 19 and 20 April 2006 and was listed for further hearing of the parties’ submissions on 19 September 2006. Mr Faulkner once again failed to pursue his case. The Tribunal on 18 September 2006 vacated the further hearing date of 19 September 2006 as Mr Faulkner’s former solicitor advising the Tribunal and the respondent he had lost contact with Mr Faulkner. In addition, Mr Faulkner made no contact with the Tribunal or the respondent.
19. The Tribunal consequently re-listed Mr Faulkner’s case. The new resumed hearing day was several months later, on 19 February 2007. Mr Faulkner again failed to appear or to proceed in any manner and offered no explanation to the Tribunal or the respondent. The Tribunal therefore dismissed the proceedings due to Mr Faulkner’s failure to appear, giving rise to the present application.
20. It is the respondent’s submission that the applicant has failed to provide an acceptable explanation for his failure to attend the resumed hearing on 19 February 2007. As well, he has advanced no adequate explanation for his not proceeding on 19 September 2006. The respondent incurred considerable costs in responding to the applicant’s claims and especially in preparing for and appearing on 19 and 20 April 2006. It suffered more costs in preparing for the further hearing on 19 September 2006 and again in preparing for the resumed hearing on 19 February 2007. In addition to these costs and the overall inconvenience of reviving a case after several lapses, through no fault of its own, the respondent has been put to more expense in preparing for the current application to once again reinstate the matter.
21. At paragraph 4 of the Mr Faulkner’s affidavit sworn on 31 May 2007 he states that in the three to four months leading up to 19 February 2007 he was suffering the effects of uncontrolled diabetes as well as back pain and other, unspecified, disabilities which rendered him bedridden “most of the time”. Mr Faulkner, nevertheless, concedes he was able to leave his home to buy necessities. He does not explain what he considers necessities and whether he thought the pursuit of his case before the Tribunal fell into that category. He does not explain whether he simply overlooked the continued hearing of his case or he felt unable to deal with it.
22. Mr Faulkner attests that he was taken to hospital by ambulance on 5 March 2007. This is about 2 weeks after the scheduled hearing day on 19 February 2007. I have been provided with a copy of a letter from the Hunter New England NSW Health dated 31 May 2007 confirming that Mr Faulkner presented to the Emergency Department at the Armidale Referral Hospital on 5 March 2007.
23. While I do not accept that Mr Faulkner is blameless in failing to notify anyone that he did not intend to come to the Tribunal as scheduled, I do not agree with the respondent’s contention that Mr Faulkner’s attendance at hospital on that day is irrelevant. Mr Faulkner’s ill health may be some excuse for his failure to attend the hearing on 19 February 2007 and for his ignoring his obligations to the Tribunal and the respondent thereby causing unnecessary costs to both. The implication in Mr Faulkner’s present application is that he relied on his then solicitor although he had not paid him the courtesy of contacting him.
24. The further question is whether Mr Faulkner’s poor health was so dire that he was unable to act responsibly about pursuing his claim or contacting the Tribunal in an appropriate fashion. The answer to this may become apparent if the Tribunal reinstates the matter and takes further evidence and submissions from Mr Faulkner.
25. The respondent has not argued that Mr Faulkner’s case should not be reinstated on the basis it has no merit and admits it cannot point to prejudice in the nature of missing witnesses and the like. The respondent is certainly prejudiced to the extent of the costs incurred in relation to the vacated hearing dates on 19 September 2006 and 19 February 2007, together with the costs incurred in relation to the current reinstatement application. This should not, in my view, prevent the matter form proceeding but should be taken into account in any award of costs in favour of the applicant if he should ultimately succeed in establishing the merit of his case and be awarded a decision that he is entitled to compensation from the respondent.
26. Without forming any concluded view on the merits of Mr Faulkner’s case, I note that his case has sufficient substance to warrant two days of hearing, which have already taken place, and a further day set down for the matter to be concluded. This suggests a case of some substance.
27. The role of the Tribunal is to review the merits of the decision before it as set out in section 43 of the Administrative Appeals Tribunal Act 1975 (also see Secretary, Department of Social Security v Murphy [1998] 809 FCA Drummond J.) The Tribunal aims to reach the correct and preferable decision on the basis of the material before it: Ajka Pty Ltd v Australian Fisheries Management Authority [2003] FCA 248 at [33] and often is said to stand in the shoes of the original decision-maker and consider all evidence again and from the beginning. (See Bantick and Secretary, Department of Family and Community Services [2003] AATA 472 at [23] and Bramwell v Repatriation Commission (1998) 51 ALD 56 at 60 per Weinberg J.) The Tribunal must base its decision upon the material that is logically probative of the existence of facts that emerge from the evidence before it: Collins v Minister for Immigration and Ethnic Affairs (1981) 36 ALR 598 at 602.
28. On balance, taking all the above matters into account, I have decided that Mr Faulkner should have another opportunity to present the rest of his case and that his application should proceed. It follows that I have decided to reinstate the matter pursuant to section 42A (9).
decision
29. The Tribunal reinstates the application pursuant to section 42A (9).
I certify that the 29 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member Hunt
Signed: T. Collis
AssociateDate/s of Hearing 25 May 2007
Date of Decision 12 July 2007Solicitor for the Applicant Mr Christopher Serow –
Rice More & Gibson Solicitors
Counsel for the Respondent Mr Brendan Kelly
Solicitor for the Respondent Ms Anella Bortone –
Sparke Helmore Lawyers
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