Kerferd and Secretary, Department of Families, Community Services and Indigenous Affairs
[2007] AATA 1324
•16 May 2007
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2007] AATA 1324
ADMINISTRATIVE APPEALS TRIBUNAL )
) No V200601175
GENERAL ADMINISTRATIVE DIVISION ) and V200700047 Re DAVID KERFERD Applicant
And
SECRETARY, DEPARTMENT OF FAMILIES, COMMUNITY SERVICES AND INDIGENOUS AFFAIRS
Respondent
No 200700705
Re LOUISE KERFERD Applicant
And
SECRETARY, DEPARTMENT OF FAMILIES, COMMUNITY SERVICES AND INDIGENOUS AFFAIRS
Respondent
DECISION
Tribunal Mr John Handley, Senior Member Date16 May 2007
PlaceMelbourne
Decision The applications be dismissed pursuant to s 42A(2) and (5) (a) and (b) of the Administrative Appeals Tribunal Act 1975. ..............................................
John Handley
Senior Member
PRACTICE AND PROCEDURE – Directions issued to lodge Statement of Facts and Contentions – refusal by applicant to comply – listed for Directions hearing – request to adjourn refused – no appearance by applicants – applications dismissed – written reasons requested
Administrative Appeals Tribunal Act 1975 (Cth) s 2A and s 33 (2) (a) and s 33 (7) and s 37 and s 42A (2) and s 42A (5)
REASONS FOR DECISION
16 May 2007 Mr John Handley, Senior Member 1. On 3 May 2007 I directed that the above three applications be dismissed. The following reasons have been prepared following a request on 15 May 2007 by Mr Kerferd for full written decision and reasons for decision documents for each of the appeals.
2. The history of the three applications may be summarised as follows.
3. All three appeals seek review of decisions made by the Social Security Appeals Tribunal (SSAT) on 6 December 2006 and 11 and 18 January 2007. In applications V200601175 and V200700047 where Mr Kerferd is the applicant, the SSAT decided to affirm decisions made by an authorised review officer of the respondent to cancel family tax benefit (FTB). In application 200700705, Mrs Kerferd is the applicant. She sought review of a decision of the SSAT which affirmed a decision made by an authorised review officer to pay FTB to her. That is to say, she appealed against a decision which was in her favour.
4. In all of the applications, Mr Kerferd appears on his own behalf and as the representative of his wife.
5. The three applications were listed for a preliminary conference on 16 March 2007. Following the conference it was decided to issue Directions to both parties to lodge a Statement of Facts and Contentions. In each application the applicants were directed to lodge their Statement of Facts and Contentions on or before 13 April 2007. The Directions were made by an authorised conference registrar, she being empowered to do so by the combined provisions of s 33 (2) (a) and (7) of the Administrative Appeals Tribunal Act 1975 (the AAT Act).
6. In anticipation of there being compliance with the Directions, the Tribunal decided to list the applications for hearing on 25 May 2007.
7. On 19 April 2007, the Tribunal decided to list the applications for a Directions Hearing on 3 May 2007 because there had not been compliance with the Directions made on 16 March 2007. Mr Kerferd was notified that the three applications would be listed.
8. On 23 April 2007, Mr Kerferd telephoned the Tribunal and spoke with a registry officer. The conversation was recorded in a memorandum which appears on the Tribunal files in the following terms:
Mr Kerferd rang to ask why there was a HDIS listed. I told him that it was because he hadn't lodged his SFC. He told me he wasn't intending to lodge any documents and that any doc's relevant he would bring on the day. I told him that he needs to lodge any documents before the Hearing. He said that he didn't want to do this.
I told him that the HDIS would give him a chance to talk to SM Handley about this. He said that he wouldn't be attending the HDIS because he had to look after his kids. I asked him if he could attend by telephone - he didn't want this.
In the end, I said I would pass this conversation on to SM Handley
9. On 1 May 2007, Mr Kerferd again telephoned the Tribunal and spoke with a registry officer. The conversation has been recorded in a memorandum which appears on the Tribunal file in the following terms:
David Kerferd rang - he cannot attend the HDIS on the 3/5 as he will be working. The only date he is available for the month of May is the 25th, for the Hearing.
10. On 2 May 2007 the Tribunal officer who spoke with Mr Kerferd on 1 May 2007 telephoned him, at my request, following the conversation of the previous day. The officer recorded the reasons for the conversation in a memorandum of 2 May 2007 which appears on the Tribunal files and is in the following terms:
I rang David Kerferd and said that if he couldn't come to the HDIS on the 3rd, and he was asking for an adjournment, then he needed to fax this to the Tribunal today, setting out his reasons why he needs it to be adjourned.
He said that he understood this.
11. On the afternoon of 2 May 2007, Mr Kerferd sent a letter to the Tribunal by facsimile transmission which is reproduced in the following terms:
I contacted [name of officer] on 23rd April 2007 saying that I could not attend a hearing set down for 3rd May 2007 due to employment commitments.
I told her that I had received a letter dated 26th March 2007 which I has [sic] assumed was a response to my letter dated 20th March 2007 which was a response to a letter dated 16th March 2007 from the AAT. The letter dated the 26th March 2007 listed a hearing for the above appeal number on the 25th May 2007 at 10:00am. I have allocated the 24th and 25th May 2007 to prepare and attend the hearing. I am unable to attend another hearing on such short notice and said that the hearing for the 3rd May 2007 would have to be adjourned to the 25th May 2007 and the 25th May 2007 hearing be rescheduled.
I understood that [name of officer] was going to pass this information to a senior member but did not hear back from her so I called again yesterday. She said she had passed the details of our call to a senior member and would follow it up again. Today she has called and asked me to put my request in writing.
Further issues are as follows:-
1.The AAT has not followed the application process as per the website AAT/ApplicationProcess.htm.
2.The AAT has not arranged for a solicitor to meet or represent me.
3.Centrelink has still not released documents requested under FOI.
4.The AAT has scheduled additional unrelated appeals at the same time including my wife’s and an unrelated appeal of mine to be heard at the same time.
12. At 15:59pm on 2 May 2007 the District Registrar of the Tribunal forwarded a letter to Mr Kerferd by facsimile transmission in the following terms:
I refer to your letter of 2 May 2007 received today by facsimile.
The applications will remain listed tomorrow morning at 9:30 am.
Failure to appear may result in the applications being dismissed.
13. The applications remained listed for Directions on 3 May 2007. Neither Mr or Mrs Kerferd appeared. Mr Perdon, an advocate representing Centrelink, appeared on behalf of the respondent. I decided that the applications should be dismissed and Directions were issued in the following terms:
1.On 16 March 2007 the Tribunal Directed (‘the Directions’) the applicant to file and serve a Statement of Facts and Contentions on or before 13 April 2007.
2.The applicant did not comply with the Directions and the application was listed on 3 May 2007, for a Directions hearing.
3.The applicant was aware of the Directions hearing. He did not appear. A Statement of Facts and Contentions has not yet been filed or served.
4.By the combined provisions of s 42A(2) and s 42A(5)(a) and (b) of the Administrative Appeals Tribunal Act 1975 IT IS DIRECTED by reason of the applicant failing –
(i)to appear on 3 May 2007; and
(ii)failing within a reasonable time –
· To proceed with the application; and
· comply with the Directions
· that the application be dismissed.
14. Section 2A of the AAT Act compels the Tribunal to pursue the objective of providing a mechanism of review that is fair, just, economical, informal and quick.
15. Allied to those objectives is the convening of a conference between the parties shortly after applications have been lodged and in anticipation that the respondent will lodge documents pursuant to s 37 of the AAT Act in the interim. Such a conference was convened in these applications and by reason of the matters not then being resolved, it was decided to:
(i) list the matter for hearing; and
(ii) issue Directions to both parties.
16. The applications were listed for hearing on 25 May 2007 in anticipation that there would be compliance by the parties with the Directions. It is not the usual practice of the Tribunal to direct unrepresented applicants to lodge a Statement of Facts and Contentions. I assume that such a Direction was made in the present applications because the conference registrar was satisfied that Mr Kerferd was able to articulate and present the applications as the representative. There was nothing on the Tribunal files to indicate that he had any objection to Directions being issued or that he was incapable of complying with Directions.
17. The power of the Tribunal to issue Directions is found at s 33 and particularly at ss 33 (2) and (2A). In the present case a footnote to the Directions issued on 16 March 2007 notified the applicants that failure to comply with this Direction is likely to result in this matter being listed for a Directions Hearing at which the party will be required to explain the failure to comply.
18. The memorandum of 23 April 2007 indicated to me that Mr Kerferd did not intend to comply with the Directions. He was given the opportunity to have the dismissal hearing listed by telephone to cause him minimal inconvenience but that offer was also rejected.
19. I was aware that the applicant sought an adjournment on 1 May 2007 of the Directions Hearing. The reasons articulated by his letter of 2 May 2007 did not in my view permit the exercise of a discretion to allow the matter to be adjourned.
20. The alleged failure on the part of the Tribunal to follow its own processes was obscure and the particular process not followed was not defined.
21. It is true that the Tribunal has not arranged for a solicitor to meet or represent the applicant. It is not obliged to do so. The applicant is capable of engaging his own legal representatives and has not ever sought any delay or deferral in the processing of his application in order that he might obtain legal representation or advice. I am not aware that any appointment was made with or assistance was sought from the duty lawyer scheme operating at the Tribunal, on Fridays, with the Victorian Legal Aid Commission.
22. The apparently unsatisfied request for documents pursuant to the Freedom of Information Act 1982 has no relevance to these applications.
23. I was of the view that it was appropriate that all three applications be listed and heard together. I was of that view because the benefits in issue related to entitlements to Mr Kerferd and Mrs Kerferd with respect to their children. The administration of the Tribunal and the resources of the public would have been wasted and fragmented by each application being heard separately.
24. The applicant was notified on the afternoon prior to the Directions Hearing of 3 May 2007 that the matter would continue to be listed. He was also notified that his failure to appear may result in the applications being dismissed.
25. A Statement of Facts and Contentions is an essential tool to ensure that each party is afforded procedural fairness. This Tribunal does not allow review by ambush. Rather, it ensures by the delivery and exchange of a Statement of Facts and Contentions as a consequence of Directions, that each party will be aware, prior to hearing, of the case that will be advanced by the other party. Failure to comply with Directions offends the authority of the Tribunal to issue Directions as to the procedure to be followed . . . . in connection with the hearing of a proceeding (s 33(2), (2A) of the AAT Act). Failure to attend the Tribunal when matters are listed offends the efficiency of the Tribunal and denies the opportunity for another application to be listed. These were the failings by the parties who initiated these applications and who had a duty to prosecute them. No reasonable explanation was given for failure to comply – indeed, the memorandum of 23 April 2007 suggests Mr Kerferd would refuse to comply.
26. As reflected by the Directions made on 3 May 2007 I was satisfied in the exercise of the discretion found in s 42A(2) and s 42A(5)(a) and (b) that by reason of the applicant failing to appear on 3 May 2007, by reason of him failing to comply with the Directions made on 16 March 2007 and by reason of him failing to proceed with the application that the applications should in the circumstances be dismissed.
I certify that the 26 preceding paragraphs are a true copy of the reasons for the decision herein of:
Mr John Handley, Senior MemberSigned: .....................................................................................
Personal AssistantDate of Hearing 3 May 2007
Date of Decision 16 May 2007
Departmental Advocate Mr David Perdon
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