Fitzgerald and Secretary, Department of Social Services (Social services second review)
[2017] AATA 1094
•13 July 2017
Fitzgerald and Secretary, Department of Social Services (Social services second review) [2017] AATA 1094 (13 July 2017)
Division:GENERAL DIVISION
File Number: 2017/0632
Re:Nadine Fitzgerald
APPLICANT
AndSecretary, Department of Social Services
RESPONDENT
DECISION
Tribunal:Senior Member J Sosso
Date:13 July 2017
Place:Brisbane
The Tribunal dismisses, effective 10 July 2017, the application for review without proceeding to review the decision in respect of which the application is made.
............................[Sgd]............................................
Senior Member J Sosso
CATCHWORDS
SOCIAL SECURITY – hearing vacated – applicant failed to provide evidence of ill health - applicant failed to appear at hearing and directions hearing – applicant unable to be contacted - application dismissed.
LEGISLATION
Administrative Appeals Act 1975
CASES
Bragge and Repatriation Commission [1986] AATA 206
AAT Case 4427 (1988) 19 ATR 3598
BRL15 v Minister for Immigration and Border Protection (No 2) [2016] FCA 1478
Manoli and Secretary, Department of Social Security (1994) 35 ALD 133
REASONS FOR DECISION
Senior Member J Sosso
13 July 2017
INTRODUCTION
Ms Nadine Fitzgerald (the Applicant) applied for a review of a decision of the Social Services & Child Support Division of this Tribunal (AAT1) dated 20 January 2017 which affirmed a decision of the Department of Human Services (the Department) to commence paying her a higher rate of the Newstart Allowance (NSA) from 2 September 2016.
The Applicant is the principal carer and distance educator of her daughter. She contended that the higher rate should commence from April 2015 when her daughter commenced home schooling.
The application for review was listed for hearing in Brisbane on 21 June 2017 by means of notice issued on 12 April 2017.
On 20 June 2017 Ms Maleah Underhill, a lawyer in the FOI and Litigation Branch of the Department telephoned the Applicant to ascertain if she would consent to receiving a copy of a form lodged with Centrelink by email.
Ms Underhill kept a file note of her conversation with the Applicant, and a copy was provided to the Tribunal. The key parts of the file note are set out below:
“The Applicant said things have been up in the air and that she was evicted from her house because of a miscommunication of 5 June 2017. She has been in temporary accommodation since then. She said that she has lost track of the ‘Tribunal stuff’ and hasn’t heard from anyone about it. I told her that the matter is scheduled for a hearing tomorrow morning at 10am, and the Tribunal will be calling her about that time. The Applicant mentioned working, and maybe not being able to attend because she’s been working on and off for the Department of Transport and Main Roads. Later in the call the Applicant expressly said she would be able to attend by telephone for up to two hours when I indicated hearings are usually between 1-2 hours long.
I told the Applicant that if she is concerned about attending tomorrow’s hearing, or is not able to attend, then she needs to contact the Tribunal directly. I told her that the Tribunal may dismiss her application if she fails to appear by telephone and makes no attempt to contact the Tribunal to make alternative arrangements prior to the hearing.”
Later at 12:37 pm, Mr Nicholas Warren, Senior Government Lawyer in the FOI and Litigation Branch of the Department emailed the Applicant and again alerted her of the hearing the next day and her obligations in relation thereto:
“I understand that my colleague Ms Underhill phoned you earlier about your AAT application.
I also understand that you may have difficulties with attending the hearing tomorrow. You will need to call the Tribunal asap to discuss this – the contact number for the Tribunal is 1800 228 333.”
Subsequently the Applicant contacted the Tribunal seeking to reschedule the hearing claiming that there were medical issues that necessitated this course of action.
Mr Polson, on behalf of the Tribunal, telephoned the Applicant. The file note of this conversation reads as follows (“A” refers to the Applicant):
“A confirmed that she sought a vacate and was unwell, noted that she intended to see a doctor this afternoon. She said she is very stressed and has been house shopping because her landlords are kicking her out of the property she has been living in…”
I was informed on the afternoon of 20 June 2017 by Mr Polson that the Applicant was seeking the vacation of the hearing of 21 June and a relisting for a later date. The basis of this request was supervening medical issues. I consented to this course of action, subject to the Applicant supplying a copy of a medical certificate within seven days.
Later that day Mr Joe Polson emailed the Applicant as follows:
“You have requested that the hearing tomorrow be vacated and indicated that you do not intend to attend.
The Senior Member has consented to your request to vacate (cancel) the hearing tomorrow and therefore you will not be required to attend it will not go ahead. He has requested that you evidence (via a medical certificate) your medical condition, and to do so within 7 days by close of business next Tuesday).
If you evidence the reason you cannot attend, the matter will be relisted for hearing at a later date.
If you cannot evidence a reason why you cannot attend, the matter will be listed for a directions hearing to discuss the progress of the matter.
Please contact us if you would like any clarity on this 07 3361 3000 (phones close at 5 – please email after that). Please advise us if it is instead your intention not to proceed with the matter.”
By close of business 27 June 2017 the Tribunal had not received a medical certificate or further explanation from the Applicant.
One week later, on 4 July 2017, Mr Polson emailed the Applicant informing her that a telephone directions hearing would be convened at 9:30 am on Friday 7 July 2017. The stated purpose of the hearing was to discuss the progress of the matter and if, or when, a hearing should be listed.
Further reminder emails were sent to the Applicant on 5 July and at 8:42 am on the morning of the hearing.
The Applicant did not answer her telephone, and although Mr Polson left messages for her to contact the Tribunal, she did not do so either at the time of the hearing, or subsequently.
The telephone number used to contact the Tribunal is the same number that the Respondent has used to contact her, and has been the nominated contact number for the Applicant since 13 June 2014.
ISSUE
The sole issue is whether the Applicant’s review application should be dismissed pursuant to s 42A(2) of the Administrative Appeals Tribunal Act 1975 for failure to appear.
CONSIDERATION
Subsection 42A(2) provides that an application may be dismissed if a party, other than the decision-maker, fails to appear personally or by representative at the hearing of the proceeding, a directions hearing, or an alternative dispute resolution process.
Before exercising the power to dismiss the Tribunal must be satisfied that the applicant was given appropriate notice of the time and place of, inter alia, the directions hearing. – s 42A(7).
Pursuant to s 42A(8A), if an application has been dismissed under s 42A(2), the applicant can apply for reinstatement within 28 days of being notified. – s 42A(8B)
There are a number of Tribunal determinations on the exercise of the dismissal power in s 42A(2). One of the earlier decisions is that of Deputy President Hall in Bragge and Repatriation Commission [1986] AATA 206. Deputy President Hall made the following pertinent observations (paras 14 – 16):
“14 In the present case, the date for hearing was fixed some four months ago. There have been preliminary conferences held by telephone, and there has been other correspondence between the Registry and Mr. Bragge, principally on 15 May and 11 June, 1986 finalising the arrangements with respect to this hearing date and time.
15 The respondent prepared for the hearing, as is evidenced by the attendance of Mr. Johannes, as the Departmental advocate, and I understand that arrangements were also made for the attendance of a medical witness. Despite the steps the Tribunal took to endeavour to ensure that the matter could proceed if Mr. Bragge was serious in his desire to have the decision of the Commission reviewed, he appears, so far as I can tell, to have treated the Tribunal and the proceedings with casual disregard.
16 With the enormous case load that is now facing this Tribunal since the acquisition of the taxation jurisdiction, it is imperative that all parties realise that, when a matter is set down for hearing, it must proceed, unless there is a very good reason to the contrary. The Tribunal simply cannot afford the luxury, if it ever could, of having a matter set down for hearing, withal the work that entails – both from a Registry point of view and the expenses of the Tribunal being ready, and allocating the time to do the case- only to find that a party, at the last moment, on some flimsy pretext, seeks to have the matter adjourned.”
In AAT Case 4427 (1988) 19 ATR 3598 Senior Member Roach set out at length all of the different types of factors that could cause an Applicant to neither attend nor be represented at a hearing. Senior Member Roach set out four broad categories: ignorance, inadvertence, impossibility and indifference.
A few observations can be made about the operation of s 42A(2).
First, it is a discretionary power granted to the Tribunal to facilitate the timely, efficient and fair disposition of its caseload. It is a power that “may” be exercised. Accordingly, there is no basis for assuming that the mere non-appearance of a party at a hearing will result in the automatic exercise of the power.
Second, the Tribunal can dismiss an application pursuant to s 42A(2) immediately, or, as in this case, determine to extend the activation of the dismissal to a nominated later point in time. This may be preferable if the Tribunal wishes to provide maximum leeway to enable an Applicant to explain the reason for their non-appearance.
Third, whilst an application can be reinstated under s 42A(8A) the jurisprudence on the exercise of like provisions in the Federal Circuit Court suggests that such reinstatement will not occur as a matter of course and that exceptional reasons would need to be advanced – BRL15 v Minister for Immigration and Border Protection (No 2) [2016] FCA 1478 per Pagone J. See also for the preferable Tribunal approach: Re Manoli and Secretary, Department of Social Security (1994) 35 ALD 133. Accordingly, when exercising the power to dismiss it is appropriate to recognise that while the opportunity for reinstatement of the application exists, an applicant faces a significant hurdle.
Fourth, the conduct of the Applicant is central to the exercise of the power. An applicant who treats the Tribunal with “casual disregard” cannot expect that the inconvenience and costs which visits on the Tribunal and the other party or parties will be rewarded by allowing the application to proceed.
Fifth, the Tribunal when exercising this dismissal power, needs to consider, inter alia, the following matters:
(a)The history of the proceedings;
(b)The nature of the proceedings (e.g. is it a complicated commercial matter);
(c)The personal circumstances of the Applicant (age, infirmity, location, medical condition etc);
(d)The reasons, if any, adduced for non-attendance;
(e)The submissions of the Respondent and the impact of non-attendance on that party.
Finally, the other key issue is the manner in which the Tribunal has notified the parties, how much notice has been provided and how much information was contained in that notification.
Accordingly, a contextual analysis is required before determining whether, and how, the power to dismiss in s 42A(2) should be exercised.
In this matter the Applicant has been afforded every courtesy by the Tribunal. She has received proper notice of each step in the proceedings.
At the last moment she informed the Tribunal that she could not attend the substantive hearing because of medical issues. In contrast, she informed Ms Underhill on 20 June 2017 that she had “lost track of the ‘Tribunal stuff’”.
The Tribunal did not proceed with the 21 June 2017 substantive hearing based on the good faith acceptance that the Applicant had a medical condition. However, she was asked to provide a medical certificate within 7 days.
After 14 days it was determined to convene a directions hearing so she could inform the Tribunal what happened and to set the matter down again for a hearing. The Applicant did not appear by telephone at the 7 July 2017 directions hearing.
The Applicant did not answer her telephone, nor did she subsequently contact the Tribunal. I determined not to automatically dismiss her application on 7 July, but instead determined to only exercise this power if no contact was made by the Applicant by midday 10 July 2017. The Applicant has not since made contact with the Tribunal.
Ms Brazier, on behalf of the Respondent, submitted that it was appropriate in the circumstances that the application be dismissed pursuant to s 42A(2). The Tribunal agrees with the following submission of Ms Brazier:
“The Applicant had been given notice by email of both the substantive hearing on 21 June 2017 and of the directions hearing of 7 July 2017. She failed to attend both hearings. For her substantive application, she gave differing information to the respondent and the Tribunal- indicating to the Respondent she would attend, and then advising the Tribunal that she was unwell. The Respondent (sic) then failed to provide the Tribunal with evidence within the 7 days as requested. For the telephone directions hearing of 7 July 2017 the applicant was properly notified of the listing and could not be contacted by the Tribunal. No explanation for non-attendance was provided by the Applicant at the time.”
The Applicant’s behaviour in this matter amounts to casual disregard of the Tribunal and the Respondent. Her excuses for not being able to attend the substantive hearing of 21 June 2017 appear to be without any truthful foundation. Her inability to provide a medical certificate and her absence from the directions hearing of 7 July 2017 are consistent with an unacceptable pattern of behaviour.
In these circumstances it is appropriate and desirable that the dismissal power be exercised. It is very unfortunate at a time when this Tribunal, like many other public institutions at both a federal and state level, are under strain from workload and resources, that persons such as the Applicant view these proceedings with such obvious lack of regard. The power to dismiss in s 42A(2) was inserted to deal with this type of behaviour. Should the Applicant seek either to reinstate her application or commence further proceedings, it is hoped that the relevant decision-makers have the contents of this determination brought to their attention.
DECISION
The Applicant, having failed to appear in person or by her representative at the telephone directions hearing of 7 July 2017, the Tribunal, pursuant to s 42A(2) of the Administrative Appeals Tribunal Act 1975 dismisses the application for review without proceeding to review the decision in respect of which the application is made. The dismissal is effective from 10 July 2017.
I certify that the preceding 38 (thirty-eight) paragraphs are a true copy of the reasons for the decision herein of Senior member J Sosso
...........................[Sgd].............................................
Associate
Dated: 13 July 2017
Date of directions hearing: 7 July 2017 Applicant: Non Appearance Solicitors for the Respondent: Department of Human Services
0
1
0