Lewis and Department of Family and Community Services
[2002] AATA 576
•21 June 2002
DECISION AND REASONS FOR DECISION [2002] AATA 576
ADMINISTRATIVE APPEALS TRIBUNAL )
) No Q2001/1131
GENERAL ADMINISTRATIVE DIVISION )
Re CAMERON LEWIS
Applicant
And SECRETARY, DEPARTMENT OF FAMILY AND COMMUNITY SERVICES
Respondent
DECISION
Tribunal Mr B J McCabe, Member
Date21 June 2002
PlaceBrisbane
Decision The Tribunal refuses to grant the application for reinstatement.
..................(Sgnd).................
Mr B J McCabe
Member
CATCHWORDS
PRACTICE AND PROCEDURE – dismissal for failure to attend hearing – Tribunal's discretion to reinstate application - whether discretion should be exercised
Administrative Appeals Tribunal Act 1975
Re Oates and Secretary, Department of Social Security (1994) 37 ALD 241
Davies v Pagett (1986) 10 FCR 226
Lenijamar Pty Ltd v AGC (Advances) Ltd (1990) 27 FCR 388
WRITTEN REASONS FOR DECISION
12 July 2002 Mr B J McCabe, Member
Cameron Lewis filed an application for review of a decision of the Social Security Appeals Tribunal (the SSAT). The appeal arose out of the respondent's decision to impose a 24% reduction in the rate of the applicant's Newstart allowance in light of his failure to comply with the terms of an activity agreement. The hearing of the application was scheduled for 4 June 2002, but Mr Lewis failed to attend. The application was dismissed pursuant to s 42A(2) of the Administrative Appeals Tribunal Act 1975. He asked the Tribunal to reinstate the matter pursuant to s 42A(8) so he can pursue his appeal.
The principles governing applications for reinstatement were explained by Deputy President Forgie in Re Oates and Secretary, Department of Social Security (1994) 37 ALD 241. The Deputy President said that applications for reinstatement were analogous with applications to set aside a judgment entered in default of appearance. The primary obligation of the court (or, in this case, the Tribunal) in such cases is to do justice as between the parties. As the Full Federal Court explained in Davies v Pagett (1986) 10 FCR 226 at 232, "…the parties should each be allowed a proper opportunity to put their cases upon the merits of the matter."
Where a party has failed to attend a hearing and the matter has been dismissed, the excuse for the failure will obviously be relevant to the exercise of the discretion to reinstate. But the absence of a satisfactory excuse is not necessarily fatal. The Tribunal will also have regard to the merits of the case, and whether there is likely to be any prejudice to the other side: Davies, at 232. A history of failing to comply with time limits might also be relevant: see Lenijamar Pty Ltd v AGC (Advances) Ltd (1990) 27 FCR 388 at 395 per Wilcox and Gummow JJ.
The Full Court in Davies said (at 232) that judges should resist:
"the temptation to impose a limitation through motives of professional discipline or general deterrence…[but t]he problem of delays in the courts, egregious as it is, must be dealt with in other ways: for example, by disciplinary actions against offending practitioners and by a comprehensive system of directions hearings or other pre-trial procedures which enable the court to supervise progress – and, more pertinently, non-progress – in all actions."
However a party's failure to prosecute his or her own case must still be a relevant consideration, particularly where a case management system is in place to ensure that matters are dealt with quickly and efficiently: see Lenijamar at 395. The Tribunal has a case management system that affords applicants the opportunity to participate in a pre-hearing conference. The Tribunal's registry personnel are also helpful to unrepresented applicants in particular.
Mr Lewis did not give an adequate explanation for his failure to attend the hearing. He says he forgot. He conceded that he received notice of the hearing. He said he had other things on his mind at the time. That is not good enough, although the cases make it clear that a failure to justify non-attendance need not be fatal. But there is more. Mr McQuinlan, for the respondent, questioned the merits of the application that was struck out. Mr Lewis was accused of taking a CD player from the Lifeline shop where he was working as part of a Work for the Dole project. Rather than addressing the allegation head-on, he has made a series of objections to the way in which the allegation was put. At the reinstatement hearing, Mr Lewis persisted with this approach in his oral submissions. His approach has meant that Centrelink was required to chase up witnesses who made themselves available for the hearing.
Mr McQuinlan pointed out that this was not the first occasion on which Mr Lewis has failed to appear. He also failed to attend a pre-hearing conference. Mr Lewis explained that he rang the registry on the morning of the conference and told one of the personnel there that it was not convenient for him to attend. He said that the registry officer had said she would call him back to make other arrangements, but the officer failed to do so. Mr Lewis sought to turn his failure to attend the conference into a criticism of the Tribunal's staff.
Mr McQuinlan concedes the respondent will not suffer any prejudice as such if the matter were reinstated. But he says the respondent has already been put to considerable expense in dealing with this matter – greater expense than would other wise be the case because of the approach adopted by the applicant. He says that the manager of the Lifeline store in particular has been inconvenienced.
In all the circumstances, I am satisfied that the application to reinstate the matter should be declined.
I certify that the nine preceding paragraphs are a true copy of the reasons for the decision herein of Mr B J McCabe, Member
Signed: Sarah Oliver
AssociateDate of Hearing 21 June 2002
Date of Decision 21 June 2002
Date of Written Reasons 12 July 2002The Applicant Appeared in Person
For the Respondent Mr R McQuinlan
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