Holmes and Secretary, Department of Social Services (Social services second review)

[2021] AATA 3642

Holmes and Secretary, Department of Social Services (Social services second review) [2021] AATA 3642 (13 October 2021)

Division:GENERAL DIVISION

File Number(s):      2021/6799

2021/6800

Re:Paul Holmes

APPLICANT

AndSecretary, Department of Social Services

RESPONDENT

DECISION

Tribunal:Senior Member D. J. Morris

Date:13 October 2021

Date of written reasons:        22 October 2021

Place:Melbourne

At the conclusion of the hearing, the Tribunal DECIDED that no special circumstances as are required by section 42A(8B)(b) of the Administrative Appeals Tribunal Act 1975 exist as would warrant the extension of time for a second review of the February 2019 decisions; and even if special circumstances had been found, noting the history of the Applicant in failing to attend mediation conferences on four occasions and failing to attend hearings, it cannot be found that there was an error in the dismissal of his matter for failing to appear on 6 April 2020, so the application for reinstatement is refused under section 42A(10) of the Act.

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Senior Member D. J. Morris

Catchwords

PRACTICE AND PROCEDURE – where the applicant sought review of two decisions by the respondent – where those decisions were reviewed and affirmed by the Social Services and Child Support Division of the Tribunal – where written reasons were provided to the applicant – where the applicant sought further review by the General Division of the Tribunal – where the matters were listed for mediation before a conference registrar – where the applicant failed to attend three mediation conferences – where the matters were listed for dismissal – where the matters were dismissed – where matters subsequently reinstated – where the applicant failed to attend a mediation conference – where the matter was subsequently listed for dismissal – where the applicant failed to attend dismissal hearing – where the matter was dismissed – where the applicant applied for reinstatement and an extension of time – where the Tribunal refused both reinstatement and to extend time – where the applicant again applied for reinstatement – where Tribunal found no special circumstances exist to extend time and no error in dismissal of application – oral decision – written reasons provided

Legislation

Acts Interpretation Act 1901 (Cth), s 29

Administrative Appeals Tribunal Act 1975 (Cth) s 29, 33A, 42A, 43

REASONS FOR DECISION

Senior Member D. J. Morris

22 October 2021

PRELIMINARY

1. On 12 October 2021, the Tribunal held an interlocutory hearing by telephone, as is permitted by section 33A of the Administrative Appeals Tribunal Act 1975 (‘the AAT Act’) to consider two requests by the Applicant, Mr Paul Holmes. The first request was to reinstate two applications he had lodged for a ‘second tier’ review of two decisions of the Social Services and Child Support Division of the Tribunal made on 22 February 2019, and the second request was for the Tribunal to extend time to allow those applications to be lodged outside the 28-day statutory time period.

2. Mr Holmes represented himself at the hearing and made submissions. The Respondent was represented by Mr Brian Sparkes, a legal officer from the Department of Social Services, who also made submissions and who lodged a written submission opposing both the reinstatement application and the extension of time request.

3. At the conclusion of the interlocutory hearing, the Tribunal made an oral decision and refused to extend time and found there were no special circumstances that would mean the dismissal of the request for reinstatement was in error.

4. A short form written decision was sent to the parties on 13 October 2021. These written reasons are now provided to the parties under section 43(2) of the AAT Act in the interests of providing a fuller explanation of the decision.

   The written reasons

5. In Negri v Secretary, Department of Social Services (2016) 70 AAR 103 (‘Negri’), Bromberg J considered a matter before the Tribunal where an oral decision had been made and a statement of written reasons had been subsequently supplied. In considering the extent to which the Tribunal could edit or elaborate its oral reasons when producing written reasons, His Honour said at [27]:

   … as long as the reasoning remains consistent, there can be no objection to the provision of a more-elaborate exposition of the same reasoning that was orally explained. What is not permissible is altered or new reasoning. The Tribunal is not permitted to substantially divert from the reasoning upon which its decision was made, but is permitted to explain that reasoning differently and, in doing so, is required to address the matters specified in s 43(2B).

6. In preparing the written reasons which follow, the Tribunal is satisfied that they reflect the oral reasons given on 12 October 2021, consistent with the approach suggested in Negri. New reasoning for the decision has not been introduced, but this written statement is a fuller explanation of the reasons given orally.

   The background to the matters

7. On 11 February 2019, Mr Holmes lodged two applications for review with the Social Services and Child Support Division (‘SSCSD’) of this Tribunal seeking review of two decisions of the Chief Executive, Centrelink, relating to:

   (a)a non-attendance penalty for an event on 2 May 2018; and

   (b)a serious failure non-payment period of eight weeks commencing on 8 June 2018.

8. On 22 February 2019, Senior Member Benk, having heard the matters by telephone and considered oral submissions by the Applicant, affirmed the two decisions under review. The two decisions and separate written reasons for the decisions were sent to the Applicant on or about 22 February 2019.

9. On 19 March 2019, Mr Holmes sought a second review by the General Division of the Tribunal of the two decisions, which then were assigned the application numbers 2019/1480 and 2019/1634.

10. The matters were listed together for mediation conference before a Conference Registrar and advised to the Applicant on 17 May 2019, 11 June 2019 and 12 July 2019.  Mr Holmes failed to attend each of those mediation conferences.

11. A directions hearing was listed before Member Burke on 14 August 2019. The Applicant and the Respondent were given notice of the time and day of that hearing.

12. Mr Holmes failed to attend the 14 August 2019 directions hearing and the presiding Member, being satisfied that the Applicant was given notice of the hearing, on that day dismissed the substantive applications under section 42A(2)(a) of the AAT Act without proceeding to review the decisions.

13. On 16 January 2020, Mr Holmes applied to the Tribunal for reinstatement of his applications.

14. On 5 February 2020, Member Burke decided she was not satisfied the Applicant had been notified of the 14 August 2019 hearing. Being satisfied that special circumstances exist, she reinstated the applications and appended a note that the matter would be listed for appropriate face to face alternative dispute resolution. That decision, with the note, was sent to Mr Holmes and the Respondent.

15. The matter was listed for mediation conference before a Conference Registrar and advised to the Applicant on 5 March 2020.  Mr Holmes failed to attend the mediation conference.

16. On 6 April 2020, the applications were listed for a directions hearing before Senior Member Fenwick of the Tribunal. On that day, the learned Senior Member, being satisfied that the Applicant was given appropriate notice of the time of the directions hearing but failed to attend, again dismissed the substantive applications under section 42A(2)(a) of the AAT Act. That decision was notified to Mr Holmes by post.

17. On 13 June 2021, Mr Holmes lodged a further application under section 42A(8A) of the Act for reinstatement of the applications and, under section 29(7) of the Act for an extension of time in which to apply for review of the decisions.

18. On 15 July 2021, Senior Member Fenwick, under to section 42A(9) of the AAT Act, refused to reinstate the applications and, under section 29(7) of the Act refused to extend the time for applying for review of the decisions.

19. On 20 September 2021, the Applicant sought reinstatement of his applications and an extension of time.

20. The matter was then constituted to me.

    At the 12 October 2021 hearing –

21. Mr Holmes told the hearing that he had been frustrated by the processes of the Tribunal.  He submitted that he never received written reasons for Senior Member Benk’s two decisions of 22 February 2019 and said that, when he telephoned the Tribunal, he was told that there were ‘no written reasons’ and ‘no notes of his evidence’.

22. He gave an example to the Tribunal.  He said that he had told the Senior Member Benk that in relation to failing to attend an appointment, he had received a text message from his job provider and told him he might be a bit late. He said he was told not to come in and he would be contacted later in the day, which did not occur. He then rang the provider and was told it was too late.  Mr Holmes said that the Tribunal Senior Member had ignored this evidence.

23. The Tribunal then referred Mr Holmes to Senior Member Benk’s decision of 22 February 2019 decision in relation to that matter. The decision relevantly records:

    [Mr Holmes] contacted his provider on receipt of the SMS and said he would attend the appointment but he might be half an hour late. He said that he was told “don’t come in yet, I will get your case manager to ring you back and see if that is OK.”  Mr Holmes said he then telephoned at 4.30 pm ant was told, “it was too late.”

24. I told Mr Holmes that, contrary to his assertions, the Senior Member hearing the first-tier review fairly recorded his evidence to her, but ultimately decided she was not persuaded that the original decision was wrong.  I did not accept that he had been told by an unnamed person at the Tribunal that there were ‘no notes’ or no record of the decisions.

25. Mr Holmes said that he never received the decisions and, further, has still not received them. I told Mr Holmes that I did not find this plausible but I would nonetheless ensure that fresh copies of the February 2019 decisions were sent to him.  Mr Sparkes submitted that the Applicant had received copies of the decision, because they had recently been sent to him in relation to this interlocutory hearing.

26. The Respondent submitted that the Applicant was aware of the processes of the Tribunal, having twice in the past applied for reinstatement of his applications.

27. The Respondent submitted that the Applicant was advised in writing of the dismissal on 6 April 2020 and received a notice advising him that he could apply to have his applications reinstated but must do so within 28 days unless more time is allowed in special circumstances.

28. The Respondent submitted that in the ordinary course of post the Applicant is presumed to have received the notice no later than 16 April 2020 and the 28-day period would therefore have expired on 14 May 2020.

29. The Applicant applied for reinstatement on 13 June 2021, which the Tribunal notes is 396 days more than the 28-day period provided in section 42A(8B)(1) of the Act.

30. The sole reason the Applicant appears to cite in his handwritten reason for seeking an extension of time is the effect of the current pandemic in gathering documents to seek reinstatement.

31. The Respondent submitted that this is not an adequate explanation for a delay of around one year and one month, given that the Applicant had previously sought reinstatement in the past so should be familiar with Tribunal processes.

32. Mr Holmes said he had visited the Tribunal registry and found it was closed because of the lockdown occasioned by the pandemic. The Tribunal said it might accept the registry offices were closed owing to the lockdown when he visited, but he could contact the Tribunal by telephone or on-line. Mr Holmes said that he telephoned the Tribunal ‘every two weeks’ but his calls went unanswered.

33. Even if I accept Mr Holmes’ submissions that there have been difficulties in the Tribunal making contact with him, he advised a different number in his most recent application lodged on 20 September 2021 from the telephone number he now cites. The Tribunal is entitled to rely on contact information provided by an applicant as being accurate.

34. During the hearing Mr Holmes confirmed his postal address, which was the address on the Tribunal’s letter to him dated 6 April 2020, but he denied receiving the letter. The Tribunal finds that the presumption of this letter having been received by ordinary service of post has not been rebutted.[i]

35. In any event, this does not adequately explain why the Applicant delayed for more than a year seeking reinstatement and an extension of time, and then, in relation to the refusal decision of 15 July 2021 (presumed to have been received by the Applicant no later than 25 July 2021), delayed until 20 September 2021 seeking reinstatement of the most recent decision in this matter, a period of 68 days, again outside the 28-day period in section 42A(8B) of the Act.

36. I do not accept Mr Holmes’s oral submission at the hearing that he telephoned the Tribunal ‘every two weeks’, but that his calls went unanswered, as plausible.

37. Even if were to accept that Mr Holmes may for some reason have not received the reasons accompanying the February 2019 decisions, I do not accept the Applicant’s submissions that he still has not received them, because they were sent to him by the Respondent’s representative on 1 July 2021.

38. The reason time periods to lodge applications for review are in the Act and in other related legislation is to provide a reasonable framework to allow parties to seek review of decisions but also give some finality to the process. There is a record of the Applicant not attending mediation conferences for which he had been duly notified and not attending other hearings.  He complained that the Tribunal had got his telephone number wrong.  On one occasion the presiding Member accepted that and allowed him a further opportunity, and then he again failed to attend a mediation conference.

39. Reinstatement of an application after such a period of time has elapsed requires special circumstances (section 42A(8B)(b)).  For there to be a second reinstatement would require the special circumstances to be even more exceptional.  The Tribunal finds in this case that the Applicant has had several opportunities to pursue his applications in terms of a second review, including one reinstatement of his applications, but has for whatever reason chosen not to then pursue those opportunities. Such dilatory conduct brings an inconvenience to the Respondent and, more particularly, a cost to the public purse.

    DECISION

40. At the conclusion of the hearing, the Tribunal DECIDED:

    (a)that no special circumstances as are required by section 42A(8B)(b) of the AAT Act exist as would warrant the extension of time for a second review of the February 2019 decisions; and

    (b)even if special circumstances had been found, noting the history of the Applicant in failing to attend mediation conferences on four occasions and failing to attend hearings, it cannot be found that there was an error in the dismissal of his matter for failing to appear on 6 April 2020, so the application for reinstatement is refused under section 42A(10) of the Act.

I certify that the preceding 40 (forty) paragraphs are a true copy of the written reasons for the decision of Senior Member D. J. Morris

..................[sgd]......................................................

Associate

Dated: 22 October 2021

Date of interlocutory hearing:	12 October 2021
Applicant:	Self-Represented
Advocate for the Respondent:	Mr Brian Sparkes
Solicitors for the Respondent:	Services Australia

[i] Section 29 of the Acts Interpretation Act 1901 provides that where an Act authorises or requires any document to be served by post, then the service shall be deemed to be effected by prepaying and posting the letter and, unless the contrary is proved, at the time at which the letter would have been received in the ordinary course of post.