JOSHUA BEAGLEY and SECRETARY, DEPARTMENT OF EDUCATION, EMPLOYMENT AND WORKPLACE RELATIONS

[2009] AATA 886

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2009] AATA 886

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No 2008/4811

GENERAL ADMINISTRATIVE DIVISION		)
Re		JOSHUA BEAGLEY

Applicant

And SECRETARY, DEPARTMENT OF EDUCATION, EMPLOYMENT AND WORKPLACE RELATIONS

Respondent

DECISION

Tribunal Senior Member Bernard J McCabe

Date17 November 2009

PlaceBrisbane

Decision The Tribunal refuses to reinstate the application.

.....................[Sgd].........................

Senior Member

CATCHWORDS

PRACTICE AND PROCEDURE – Application for reinstatement – whether application dismissed in error – whether failure to proceed with application – no error – reinstatement refused

Administrative Appeals Tribunal Act 1975 (Cth) ss 2A, 33, 34J, 35A, 42A(5), 42A(10)

REASONS FOR DECISION

17 November 2009 Senior Member Bernard J McCabe         

1.      

Mr Joshua Beagley sought review of a Centrelink decision to raise and recover a debt in respect of youth allowance that was paid to him in 2007. His review application was lodged with the Tribunal on 15 October 2008. The application was dismissed pursuant to s 42A(5) of the Administrative Appeals Tribunal Act 1975

(“the Act”) on 16 September 2009. Mr Beagley has asked that the application be reinstated. He says the application was dismissed in error.

2.      Mr Beagley has also asked that I disqualify myself from hearing the reinstatement application. He says a different member of the Tribunal should deal with the application for reinstatement because it is, in effect, an appeal from the decision to dismiss the proceedings. That is wrong. The reinstatement application is not an appeal. The delegate of the President of the Tribunal saw fit to constitute me as the presiding member for the purposes of conducting the original hearing and the reinstatement application. There is nothing remarkable in that practice. I have not said or done anything that would cause a reasonable person to apprehend bias against the applicant, and the applicant has not pointed to any evidence to that effect other than the rulings to which he has objected. I therefore decline to disqualify myself.

3.      I will begin by explaining the background to this application before considering the arguments of the parties which have been provided to me in written form. I am satisfied the application should not – indeed, cannot – be reinstated. I explain my reasons below.

Background to the application

4.      Mr Beagley was a student in receipt of youth allowance. The history of his dealings with Centrelink is recorded in the decision of the Social Security Appeals Tribunal (“the SSAT”). Suffice to say there is a dispute over what Mr Beagley told Centrelink about his studies. The SSAT found Centrelink paid Mr Beagley money that he was not entitled to receive as the result of a misunderstanding. Mr Beagley says the misunderstanding is Centrelink’s fault. The SSAT was not convinced and the decision under review was affirmed.

5.      The SSAT did not hear from Mr Beagley in person. He was overseas when the hearing was conducted. Given that the decision turned on different accounts of what Mr Beagley told Centrelink, his credit was obviously relevant to the SSAT’s task. The SSAT did the best it could with the material before it and reached a view. Mr Beagley then applied to this Tribunal for a review of the decision.

6. I conducted several directions hearings in relation to this matter. Mr Beagley, who remained overseas, asked that the matter be dealt with on the papers without a hearing. Section 34J of the Act permits the Tribunal to dispense with a hearing if two conditions are satisfied. Firstly, the Tribunal must be satisfied the matter can be adequately dealt with in the absence of the parties. Secondly, all of the parties must agree to that course.

7.      

The Secretary of the Department of Employment, Education and Workplace Relations, the respondent to these proceedings, did not agree that the matter should be dealt with on the papers. The Secretary’s views were set out in a letter dated

29 October 2008. The advocate appearing on the Secretary’s behalf at the various directions hearings repeated that view. But I would have been unwilling to accede to Mr Beagley’s request in any event. A cursory glance at the file – particularly the decision of the SSAT – suggests this Tribunal’s decision would depend in part on an assessment of credit. This was clearly a case where it would have been appropriate for me to hear from the applicant in person so that I might assess his story.

8. Mr Beagley asked that he be able to participate in the proceedings by telephone or videolink. Section 35A of the Act says the Tribunal may allow a party to participate in proceedings in this manner. The section makes explicit that which is implicit in s 33 of the Act. The latter provision says the Tribunal has the discretion to conduct its proceedings as it sees fit having regard to its statutory function and the objective of “providing a mechanism of review that is fair, just, economical, informal and quick”: s 2A of the Act. The parties are not entitled to participate by telephone. They must obtain the leave of the Tribunal to do so.

9.      Telephone evidence plays an important role in the Tribunal, but it has its limitations. It is particularly difficult to make an assessment of a witness’s credit when he or she appears by telephone. As I have already indicated, credit was likely to be a central issue in this case. Videolink addresses some of these shortcomings. It is expensive, especially when the videolink in question is an overseas link. Mr Beagley appears not to have the wherewithal to meet what may be a considerable cost associated with establishing a videolink. Neither medium for giving evidence is particularly convenient if the witness is to be asked for his reaction to documents that might be put to him in cross-examination. That was likely to occur here. In all the circumstances, I formed the view that it would be preferable if Mr Beagley appeared at the hearing in person. I did not grant leave to appear by telephone.

10.     Mr Beagley did not share my view of my role. In written submissions delivered in support of his application for reinstatement, he said:

The Senior Member is not qualified to determine how truthful an individual is being, and the fact that this was stated as a reason why it is necessary to attend the hearing in person, is ridiculous.

11.     That is wrong. A Tribunal member is often called upon to make assessments of credit. When one is presented with inconsistent accounts of events, one is inevitably required to decide which account one believes. The SSAT had to do it in this case. I would be called upon to undertake the same task in due course. I am not sure how one becomes “qualified” to evaluate the truthfulness of a witness, but that responsibility inevitably falls to those appointed to the nation’s courts and tribunals.

12.     While Mr Beagley had a preference for appearing by telephone, the requirement that he attend in person did not present an insuperable obstacle to his participation at the final hearing. Mr Beagley initially indicated that he planned to return to Australia to deal with the matter in May 2009. I agreed to delay listing the matter for a hearing in those circumstances. In April 2009, Mr Beagley says he was the victim of a robbery. He says he lost a quantity of money as a result of the incident. He did not provide a copy of a police report; however, he did provide a copy of a report with a police file number and a claim against his bank in respect of a loss he sustained. He said he would be unable to return to Australia as anticipated in May, because he had no money until he received a payout from his bank. At a directions hearing on 16 June 2009, Mr Beagley estimated his return to Australia would be delayed until August or September this year. I agreed to a further delay on the basis that a hearing would proceed in person in September.

13.     Mr Beagley also corresponded with the Tribunal during this period. In a letter to Mr Beagley dated 25 August 2009, the Registrar reiterated that Mr Beagley should be prepared to appear in person at the hearing. The letter acknowledged a representative might appear at the hearing on Mr Beagley’s behalf but the Registrar added that the representative would not be able to give evidence that should be given by Mr Beagley. The letter pointed out Mr Beagley’s application might be dismissed if he or his representative did not attend at the hearing. 

14. Mr Beagley did not return to Australia for the hearing in September 2009. No one appeared at the hearing on his behalf. After hearing from the respondent, I decided to dismiss the proceedings under s 42A(5) of the Act. I did not proceed to a review because that seemed pointless without a proper opportunity to review the evidence (including the evidence given on cross-examination) of Mr Beagley which would be central to my decision in the case. Mr Beagley has now asked the Tribunal to reinstate the application pursuant to s 42A(10) of the Act.

Should the application be reinstated pursuant to s 42A(10)?

15. Mr Beagley’s written submissions proceed on the basis that I made a mistake when I dismissed the proceedings under s 42A(5) of the Act. He said I was wrong to conclude he had failed to proceed with the application. He argues that he was ready and willing to proceed by way of written submission or telephone.

16. I do not think the error – if that is what it was – that Mr Beagley described is the sort of error the Parliament had in mind when it included the power in s 42A(10) of the Act to reinstate proceedings dismissed in error. I had all of the evidence relevant to the exercise of the discretion before me. I reached a view. Others may have reached a different view, but they were not making the decision. Mr Beagley is obviously unhappy with my conclusion. That does not mean it was a mistake in the sense intended by s 42A(10).

17. The Tribunal has flexible procedures that can be adapted to deal with the nature of the dispute and, to a significant extent, the circumstances and needs of the parties before it. The Tribunal must decide what is appropriate having regard to the requirements of the Act (notably ss 2A, 33 and 35A) and the principles of natural justice. That decision is made at first instance by the conference registrar and ultimately by the presiding member. I spoke with the parties in this case on several occasions to discuss the way I proposed dealing with the matter. Concessions were made to Mr Beagley’s circumstances – most obviously by delaying the hearing for several months to give him time to return to Australia, even after he encountered unexpected difficulties. I did not think it was appropriate to proceed in his absence because his evidence was necessary and relevant to my ultimate decision. Proceeding to a hearing without him being present would have been a waste of time.

18. Mr Beagley may have been ready to proceed with the application on his own terms, but that is not the test. He must proceed with the application according to the procedure that the presiding Tribunal member has determined will apply in that case. Mr Beagley did not do that. Of course, the Tribunal’s requirements in a given case stand to be assessed against the principles of natural justice and the provisions of the Act. If the tailored procedures in a particular case do not pass muster, the Federal Court has the power to correct the error. But an error in this sense is not necessarily a “mistake” for the purposes of s 42A(10) of the Act. If it were, the Tribunal would effectively be hearing appeals from itself. That is not the Tribunal’s role.

Conclusion

19.     

Since I do not have the power to reinstate an application dismissed under

s 42A(5) of the Act otherwise than in the case of a mistake under s 42A(10), I must decline the application for reinstatement.

I certify that the 19 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member Bernard J McCabe.

Signed:.............................[Sgd].................................................
  Michael Buckingham, Associate

Dates of Hearing on Papers     6 November 2009
Date of Decision  17 November 2009   
Solicitor for the applicant          Unrepresented   
Solicitor for the respondent      Centrelink Legal Services