Koseler and National Disability Insurance Agency

[2024] AATA 2223

Koseler and National Disability Insurance Agency [2024] AATA 2223 (3 July 2024)

Division:NATIONAL DISABILITY INSURANCE SCHEME DIVISION

File Number(s):      2022/3588

Re:Feyza Koseler

APPLICANT

AndNational Disability Insurance Agency

RESPONDENT

DECISION

Tribunal:Member L Proske

Date:3 July 2024

Date of written reasons:        3 July 2024

Place:Adelaide

The Applicant failed to appear at the directions hearing by telephone held on 3 July 2024 at 10:00AM (SA time) / 10:30AM (VIC time).

For the reasons given orally at the conclusion of the directions hearing by telephone held on 3 July 2024, the Tribunal dismisses the application pursuant to section 42A(2) of the Administrative Appeals Tribunal Act 1975 (Cth).

.................[sgnd].......................................................

Member L Proske

CATCHWORDS

PRACTICE AND PROCEDURE – applicant failed to appear at directions hearing – appropriate notice given to the applicant as required by s 42A(7) of the AAT Act – application for review dismissed pursuant to s 42A(2) of the AAT Act

LEGISLATION

Administrative Appeals Tribunal Act 1975 (Cth)

REASONS FOR DECISION

Member L Proske

3 July 2024

1. At the conclusion of the directions hearing on 3 July 2024, the Tribunal dismissed the application pursuant to s 42A(2) of the Administrative Appeals Tribunal Act 1975 (Cth) (AAT Act) and gave oral reasons for that decision.

2. Whilst the parties have not requested a statement in writing of the reasons of the Tribunal for its decision, the Tribunal considers the provision of written reasons for its decision appropriate in this matter.

3. These are the reasons the Tribunal gave orally at the conclusion of the directions hearing on 3 July 2024.

4. This application is listed for a substantive hearing on 12 and 13 August 2024.

5. Direction 4 made 11 April 2024 required that on or before 31 May 2024, the Applicant must give the Tribunal and the Respondent any further material on which they intend to rely; and a witness statement from any witness proposed to be called to give oral evidence at the hearing. The Applicant has not complied with this Direction, nor sought an extension of time. This is not the first time the Applicant has failed to comply with a Direction made by the Tribunal. The Applicant has not filed a hearing certificate, despite Directions made on 26 March 2024 and 11 April 2024 requiring her to do so.

6. On 17 June 2024, the Tribunal emailed the Applicant regarding her non-compliance with Direction 4 made 11 April 2024. The Applicant did not respond to that email. A listing notice was therefore emailed to the Applicant on 21 June 2024, advising her that a directions hearing would take place by telephone on 25 June 2024 at 2:00PM (SA time) / 2:30PM (VIC time). The listing notice made clear that the purpose of the directions hearing was to discuss the Applicant’s non-compliance with Direction 4 made 11 April 2024; and put the Applicant on notice that:

   a) If the Applicant does not appear at the directions hearing, the Tribunal may dismiss the application under s 42A(2) of the AAT Act.

   b) The Tribunal may dismiss an application under s 42A(5) of the AAT Act if an Applicant fails within a reasonable time to comply with a direction.

7. The Tribunal emailed a pre-hearing check to the Applicant on 24 June 2024, reminding her that a directions hearing by telephone would take place on 25 June 2024 at 2:00PM (SA time) / 2:30PM (VIC time).

8. The Applicant failed to appear at the directions hearing on 25 June 2024. The Tribunal telephoned the Applicant on 3 occasions between 2:00PM and 2:04PM (SA time), and on each of those occasions her phone diverted to voicemail. The Tribunal adjourned the directions hearing for 10 minutes and during that adjournment a Tribunal associate tried to telephone the Applicant, however her phone diverted to voicemail. The associate left a message on the Applicant’s voicemail, advising that the Tribunal was trying to contact her and would telephone her again in 5 to 10 minutes. The directions hearing resumed at 2:14PM (SA time) and again the Tribunal made 3 attempts to telephone the Applicant. On each of those occasions, the Applicant’s telephone diverted to voicemail. The Tribunal did not exercise its discretion under s 42A(2) of the AAT Act to dismiss the application.

9. The Tribunal emailed the Applicant a listing notice on 25 June 2024, advising her that a directions hearing by telephone would take place on 3 July 2024 at 10:00AM (SA time / 10:30AM (VIC time). The listing notice made clear that the purpose of the directions hearing was to discuss the Applicant’s non-compliance with Direction 4 made 11 April 2024; and put the Applicant on notice that:

   c) The Tribunal may dismiss the application under s 42A(2) of the AAT Act if an Applicant does not appear at the directions hearing,

   d) The Tribunal may dismiss an application under s 42A(5) of the AAT Act if an Applicant fails within a reasonable time to comply with a direction.

10. The Tribunal emailed a pre-hearing check to the Applicant on 1 July 2024. That reiterated that a directions hearing would take place by telephone on 3 July 2024 at 10:00AM (SA time) / 10:30AM (VIC time), and that the review application may be dismissed under s 42A(2) of the AAT Act if the Applicant failed to appear.

11. The Applicant failed to appear at today’s directions hearing. The Tribunal telephoned the Applicant on 2 occasions. On each of those occasions, the Applicant’s phone diverted to voicemail. On the first occasion, the Tribunal associate left a message on the Applicant’s voicemail that the Tribunal was trying to contact her for today’s directions hearing and would try to telephone her again shortly.

12. After the Applicant failed to appear at today’s directions hearing, the Respondent was given an opportunity to make oral submissions regarding their view on whether the Tribunal should exercise its discretion in s 42A of the AAT Act, to dismiss the application. The Respondent was neutral in relation to this issue. The Respondent did however advise the Tribunal that since the directions hearing on 25 June 2024, they have attempted to contact the Applicant by phone and email, however they had had no response. The Respondent also advised the Tribunal that they had records of the Applicant having attended a particular medical centre, and they had contacted that medical centre to ensure that they had the same contact details as the Respondent had for the Applicant. Whilst they confirmed that the contact details they held for the Applicant were the same as those held by the Respondent, they could not share any further information due to privacy reasons.

13. In accordance with s 42A(7) of the AAT Act, the Tribunal is satisfied that the Applicant was given appropriate notice of the time and place of today’s directions hearing, which was held by telephone on 3 July 2024 at 10:00AM (SA time) / 10:30AM (VIC time).

14. Pursuant to s 42A(2) of the AAT Act, the Tribunal dismisses the application.

I certify that the preceding fourteen (14)

paragraphs are a true copy of the reasons

for the decision herein of Member L Proske

……[sgnd]………………………..
Associate

Dated: 3 July 2024

Date of hearing:  3 July 2024

Advocate for the Applicant:      Self-Represented

Advocate for the Respondent:  Michael LaVista

Sparke Helmore