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

[2020] AATA 77

Kjoller and Secretary, Department of Social Services (Social services second review) [2020] AATA 77 (29 January 2020)

Division:GENERAL DIVISION

File Number:          2019/2275

Re:Sophia Kjoller  

APPLICANT

Secretary, Department of Social ServicesAnd  

RESPONDENT

DECISION

Tribunal:Senior Member D O'Donovan

Date:29 January 2020

Place:Canberra

The application is dismissed pursuant to section 42A(5)(b) of the Administrative Appeals Tribunal Act 1975.

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Senior Member D O'Donovan

CATCHWORDS

SOCIAL SECURITY - Dismissal for failure to comply with a direction – direction to file evidence – failure to comply – failure to proceed with application considered – failure to proceed with application not made out – failure to appear at a directions hearing or an alternative dispute resolution process considered – failure to appear not made out – application dismissed for failure to comply with direction

LEGISLATION

Administrative Appeals Tribunal Act 1975 (Cth) ss 42A(2), 42A(5)(a) and (b)

CASES

Beard v Telstra Corporation Ltd [1999] FCA 999

Re McGrath and Inspector General in Bankruptcy [2011] AATA 27

REASONS FOR DECISION

Senior Member D O'Donovan

29 January 2020

INTRODUCTION

1. The applicant is seeking review of a decision made by the Administrative Appeals Tribunal, Social Services and Child Support Division (the Tier 1 AAT decision) on 7 March 2019.

2. The Tier 1 AAT decision set aside a decision made by an Authorised Review Officer (ARO) of the Department of Human Services (the Department), and in substitution decided that the applicant’s rate of disability support pension (DSP) was to be assessed from 14 July 2017, on the basis that:

   (a)The applicant is the sole owner of a property on M St in Orange NSW (M St).

   (b)The value of the M St property as at 14 July 2017 was $250,000.

   (c)The applicant has an interest of 50% in the property at K St, March NSW (K St).

   (d)The value of K St as at 14 July 2017 was $550,000. Half of the value, or $275,000, is an asset of the applicant.

3. The applicant’s key contention in the Tier 1 AAT proceedings was that the properties at M St and K St were not hers but belonged to her children. The Tribunal determined otherwise.

4. On 26 April 2019, the applicant applied to have the Tier 1 AAT decision reviewed. That application has been the subject of a number of conferences and directions and is presently listed for hearing on 4 February 2020. The applicant has failed to comply with directions made by the conference registrar and failed to attend a conference listed by the conference registrar and failed to attend a non-compliance directions hearing. She has also advised that she cannot attend the hearing listed for 4 February 2020 and asked that it be re-listed in April 2020.

5. On 6 December 2019, at the non-compliance directions hearing, the respondent made an oral application for dismissal of this application.

6. As the applicant failed to appear at the non-compliance directions hearing, the Tribunal declined to hear the interlocutory application ex-parte and instead made a direction for the filing of written submissions and adjourned the directions hearing.

7. On 6 December 2019, the Tribunal wrote to the applicant providing notice of the respondent’s application for dismissal.

8. On 13 December 2019, the respondent filed written submissions in support of its application for dismissal.

9. On 13 December 2019, the Tribunal directed the applicant to file written submissions in reply on or before 10 January 2020 and in the accompanying letter advised the applicant that this interlocutory application would be dealt with on the papers given the applicant’s lack of access to a telephone and general difficulty in appearing in person.

10. The applicant filed written submissions in response on 10 January 2020.

11. The respondent has applied to have the matter dismissed on two alternative bases. The first basis is the applicant’s failure to appear at the preliminary conference listed on 8 October 2019, the non-compliance directions hearing listed on 6 December 2019 and the foreshadowed non-attendance at the hearing of 4 February 2020. I do not accept that the applicant’s application should be dismissed on that basis. The applicant has provided explanations for her failure to attend which I accept and accordingly I do not consider it is appropriate to exercise my discretion to dismiss based on the applicant’s failure to appear on those occasions.

12. The respondent also seeks to have the application dismissed on the basis of the applicant’s failure to proceed with the application or failure to comply with a direction by the Tribunal in relation to the application.

13. I note that a determination that the applicant has failed to proceed with an application is a very high threshold (see Beard v Telstra Corporation Ltd [1999] FCA 999) and I am not satisfied that the applicant meets that threshold in this case.

14. However, I am satisfied that the applicant has failed to comply with directions made by the Tribunal and in the present circumstances it is appropriate to exercise my discretion to dismiss the application pursuant to section 42A(5)(b) of the Administrative Appeals Tribunal Act 1975 (AAT Act).

    HISTORY OF DIRECTIONS IN THE PROCEEDINGS

15. On 26 April 2019, the applicant lodged an application with the Tribunal.

16. The matter was listed for a first preliminary conference by telephone on 24 July 2019. Following that conference, directions were made including the following:

    On or before 20 September 2019, the applicant must give to the Tribunal and the respondent any witness statement, reports, records and any other documents, including any property valuations, on which she wishes to rely.

17. The notes to the directions set out what the consequences of non-compliance with the directions would be in the following terms:

    1.If you do not comply with a direction, the Tribunal will list the application for a directions hearing. You will be required to attend the directions hearing in person and explain why you have not complied with the direction.

    2.The Tribunal can dismiss an application if an Applicant fails within a reasonable time to comply with a direction made by the Tribunal. This power is set out in section 42A(5)(b) of the Administrative Appeals Tribunal Act 1975. If you are the Applicant and you fail to comply with a direction, you may also be asked to explain at the directions hearing why your application should not be dismissed.

    3.If a party fails to comply with this direction, the Tribunal will not necessarily decide to adjourn, or delay the listing of, an alternative dispute resolution process or hearing.

    4.Where the Tribunal has the power to award or recommend the payment of costs, failure by a party to comply with this direction may be taken into account in making a decision relating to costs.

    5.If you do not believe you will be able to comply with a timeframe or any other aspect of this direction, you must apply to the Tribunal for an extension of time to comply or a variation of the direction. You must seek the views of the other party before making such an application, and advise the Tribunal of the other party’s views. You should make the application well before the date by which you are required to comply with the direction.

    6.If you have been directed to give the Tribunal a Hearing Certificate, in accordance with the General Practice Direction, the Tribunal may list your application for hearing without further consultation if you do not provide the Hearing Certificate by the specified date.

18. The applicant did not comply with the direction. Nor did she attend a conference listed on 8 October 2019. On 9 October 2019 the applicant was sent a letter advising that she was required to attend a non-compliance directions hearing where she would be required to explain why she failed to comply with the direction. The letter also set out the Tribunal’s power to dismiss an application pursuant to section 42A(5) of the AAT Act.

19. The applicant attended the non-compliance hearing by telephone and according to the Tribunal file the applicant explained the non-compliance on the basis that ‘she was sick – experiencing chest pains – spent some time in hospital’.[1]

    [1] Tribunal File, folio 28.

20. On 21 October 2019, a second preliminary conference was listed to take place on 31 October 2019. The applicant appeared by telephone and the conference proceeded as listed. The conference registrar explained to the applicant the importance of complying with directions. Following the conference on 31 October 2019 directions were made which relevantly provided as follows:

    1.On or before 22 November 2019, the applicant must give to the Tribunal and the respondent a witness statement from the applicant OR advise that she will not provide a statement.

    2.On or before 22 November 2019, the applicant must give to the Tribunal and the respondent witness statements from her sons and daughter OR advise that she will not provide witness statements.

    3.On or before 22 November 2019, the applicant must give to the Tribunal and the respondent all reports, records and any other documents on which she intends to rely at the hearing OR advise that she will not provide such documents.

21. Again, the notes included with those directions included a note setting out the Tribunal’s powers if directions were not complied with. The applicant did not comply with the directions made on 31 October 2019. As a consequence the matter was listed for a non-compliance directions hearing on 6 December 2019 to give the applicant an opportunity to explain her non-compliance. The applicant failed to attend, but managed, through an agent, to explain that she would not be able to attend. At that directions hearing, the respondent made an application to have the application dismissed.

22. On 13 December 2019, at the direction of the Tribunal, the respondent filed written submissions in support of its application.

23. The applicant responded by a letter dated 9 January 2020. In so far as non-compliance with the directions is concerned the parts of that letter which raise matters relevant to the failure to comply with the directions are as follows:

    My health has deteriorated extremely in 2019. I was supposed to have two knee replacements on 2 November 2018 but the Orange Hospital refused to do them because I was in poor health. I was also assaulted by a complete stranger …on 30 April 2019. I had all the trauma of doctor’s visits, police visits, statements, AVO’s and court appearances etc.

    I have had uncontrollable sugar levels (up to 23) with my diabetes (caused by extreme stress I was told) very painful osteo-arthritis, am on morphine patches and tramadol for pain. I have had several hospital stays, last on 26 December 2019 and also had shingles for most of last year.

    I’ve also survived all winter in a small caravan with no electricity or heating and suffered colds and flu repeatedly. Also lost a lot of weight and had to get help from Vinnies and Housing plus for my medication and some food because Centrelink deliberately reduced my Disability Pension to $14.10 in February 2019 without even notifying me beforehand. I have spoken to the Secretary, Department of Social Services about an extension of time and she said they would agree to this and at least two weeks was mentioned. So I would like to ask the Tribunal for an extension of time and I would like to ask for the hearing in February to be postponed to at least the end of April.

    I am suffering badly from smoke from the bushfires and heat at the present but I am hoping to get statements from my ex-husband in Newcastle and son’s in Coffs Harbour and Wollongong soon and I am trying to get information from the Judge in the Family Law Court.

24. The letter includes other relevant information which is directed at explaining the applicant’s non-attendance at previous directions hearings and conferences.

    I wish to state that I phoned the Tribunal from Orange Housing Plus before the conference on 8 October 2019 and asked could the time be changed to 10.30 am as I had lost my phone and had to use the phone at Orange Housing Plus. My bus does not arrive till 9.40am and then arrive in town at 10am, then I have to walking [sic] to Housing Plus and I am on crutches, I was told the time couldn’t be changed from 8.30am and I explained that I couldn’t take the call from the Tribunal anywhere till at least 10.30am.

    I also wish to state on the 4^th Dec 2019 I left home on the 1.30pm bus and returned home on the 5.30 pm bus at 6pm.

25. This material is relevant to considering the applicant’s health more generally.

    CONSIDERATION

26. Pursuant to section 42A(5)(b) of the AAT Act, if an applicant for review fails within a reasonable time to comply with a direction made by the Tribunal in relation to the application the Tribunal may dismiss the application without proceeding to review the decision.

27. There is no dispute that the discretion is enlivened in this case. I take the view that the discretion to summarily terminate proceedings, ought to be exercised sparingly and only in the clearest of cases.[2]

    [2] See Re McGrath and Inspector General in Bankruptcy [2011] AATA 27 at [20].

28. The applicant has failed to comply with two sets of directions made by the Tribunal. The directions were put in place to secure the timely filing of the applicant’s evidence in support of her claims that her assets were wrongly valued in the Tier 1 AAT decision. To date, notwithstanding that the matter is listed for hearing on 4 February 2020, the applicant has not filed any material in support of her application nor has she given a clear indication of when she will file such material. The applicant has asked that the hearing date be ‘postponed to at least the end of April’. In terms of commitment to providing any material to support her application, the most the applicant is prepared to say is that she is ‘hoping to get statements from my ex-husband in Newcastle and sons in Coffs Harbour & Wollongong soon and I am trying to get information from the Judge in the Family Law Court’.  No specifics have been provided as to what steps she has taken to date to progress the gathering of evidence to support her application.

29. The applicant’s explanation for non-compliance is in the most general terms. She refers to the generally poor state of her health, and distress arising from an assault in April last year.

30. What is set out in the submission, does not explain the total non-compliance with directions which were made following conferences in which the applicant was involved. The question of the value of the applicant’s assets has been an issue between the Department and the applicant since at least 14 July 2017 and yet statements from her children (who she claims own the properties) remain on a list of things she is ‘hoping’ to do. To date there is no evidence that the applicant has taken any steps to obtain any evidence which would advance the issue before the Tribunal. While I accept that her health is generally poor, it has not been so bad that she has been prevented from taking the some calls from the Tribunal to attend conferences, nor has it prevented her from taking public transport into Orange to meet with a person who provided assistance to her in communicating with the Tribunal.

31. Notwithstanding this level of capacity, the applicant has not complied with any aspect of the directions to which she has been subject nor has she sought extensions in a timely manner or indeed at all. The applicant’s submission does not explain the total disregard she has shown for the Tribunal’s directions.

32. The decision under review was made close to eleven months ago. The matter in question is identical to the issue considered in the first tier of AAT review. I am satisfied that the applicant has had some capacity to attend to the preparation of her case and despite this has disregarded the Tribunal’s directions.

33. In these circumstances, I am satisfied that it is appropriate to use my discretion to dismiss the applicant’s application for review.

I certify that the preceding 33 (thirty three) paragraphs are a true copy of the reasons for the decision herein of Senior Member D O’Donovan.

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Associate

Dated: 29 January 2020