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

In Kjoller and Secretary, Department of Social Services (Social services second review), the Administrative Appeals Tribunal (AAT) considered an application by Ms Kjoller to review a decision concerning her social security entitlements. The Secretary of the Department of Social Services sought the dismissal of Ms Kjoller's application due to her failure to comply with directions issued by the Tribunal.

The primary legal issue before the Tribunal was whether it should exercise its discretion under section 42A(5)(b) of the Administrative Appeals Tribunal Act 1975 (Cth) to dismiss Ms Kjoller's application for failing to comply with directions within a reasonable time. The Tribunal was required to determine if the circumstances warranted the summary termination of the proceedings.

The Tribunal, constituted by D O'Donovan SM, noted that the discretion to dismiss an application for non-compliance should be exercised sparingly. However, in this instance, Ms Kjoller had failed to comply with two sets of directions aimed at securing the timely filing of evidence to support her claims regarding the valuation of her assets. Despite the hearing date being set, no supporting material had been filed, nor had a clear indication of when it would be provided. Ms Kjoller's explanation for non-compliance, citing general poor health and distress, was deemed insufficient to explain the total disregard for the Tribunal's directions, especially given her capacity to attend conferences and meet with assistance providers. The Tribunal found no evidence that Ms Kjoller had taken steps to obtain the necessary evidence, and she had not sought extensions in a timely manner. Consequently, the Tribunal concluded that the discretion to dismiss the application was enlivened and should be exercised.