Martin and Secretary, Department of Social Services

[2020] AATA 416

Martin and Secretary, Department of Social Services [2020] AATA 416 (5 February 2020)

Division:GENERAL DIVISION

File Number(s):      2018/0230

Re:John Martin

APPLICANT

AndSecretary, Department of Social Services

RESPONDENT

DECISION

Tribunal:Mr S Evans, Member

Date:5 February 2020

Date of written reasons:         6 March 2020

Place:Sydney

This application was dismissed on 20 September 2019 pursuant to subsection 42A(5) of the Administrative Appeals Tribunal Act 1975 (Cth) (“AAT Act”).

Pursuant to subsection 42A(9) of the AAT Act the Tribunal refuses to reinstate this application.

............................[sgd]........................................

Mr S Evans, Member

CATCHWORDS

PRACTICE AND PROCEDURE – application for reinstatement – social security – claim for disability support pension – multiple adjournment requests – failure to proceed – merits of substantial application – reinstatement refused

LEGISLATION

Administrative Appeals Tribunal Act 1975 (Cth) s 42A(5), (10)

SECONDARY MATERIALS

Administrative Appeals Tribunal, General Practice Direction – Direction given under section 18B of the Administrative Appeals Tribunal Act 1975

WRITTEN REASONS FOR DECISION

Mr S Evans, Member

6 March 2020

INTRODUCTION

1. On 15 January 2018 John Martin (“the Applicant”) applied to the General Division of the Administrative Appeals Tribunal (“the Tribunal”) to review a decision made by the Social Services and Child Support Division (“AAT1”) of the Tribunal, that Mr Martin’s application for disability support pension which was lodged on 18 March 2016 should be rejected.

2. Mr Martin’s application for review was dismissed after he failed to attend the hearing which was scheduled for 20 September 2019.

3. On that same date Mr Martin was sent a letter notifying him that his application had been dismissed. He sought review of that decision some two months after the application for review was dismissed. Since this was more than 28 days after he was notified of the dismissal Mr Martin was also required to apply for an extension of time in order for the reinstatement of his application to proceed.

   BACKGROUND

4. The matter was originally scheduled for hearing on 1 July 2019. This hearing date was vacated shortly before the hearing after Mr Martin informed the Tribunal that he had not received any documents from the Respondent including the T-documents.

5. That same day the application was relisted for hearing on 20 September 2019. The day before the relisted hearing the Applicant sought to have the hearing vacated again but the application was refused.

6. The Tribunal’s General Practice Direction states that an application for an adjournment will not be granted if it is made less than ten working days before the hearing, unless there are particular and compelling reasons for the hearing to be adjourned (paragraph 4.41). No such reasons were presented to the Tribunal

7. On 20 September 2019 the Applicant failed to attend the hearing and the matter was dismissed pursuant to section 42A(5) of the Administrative Appeals Tribunal Act 1975 (Cth) (“the Act”) on the grounds that the Applicant failed to proceed with the application.

8. On 13 November 2019 Mr Martin lodged an application for reinstatement with the Tribunal, and on 20 December 2019 the Respondent informed the Tribunal that it opposed the reinstatement application.

9. On 24 December 2019 the Applicant lodged medical evidence with the Tribunal which consisted of medical reports from 2019.

10. Mr Martin’s application for reinstatement was rejected on 5 February 2020. I gave my reasons for doing so orally at the time. Upon request of Mr Martin I now give my reasons in writing.

    LEGISLATION

11. The power to reinstate an application dismissed under section 42A(5) of the Act is provided by subsection 10. That section provides that if it appears to the Tribunal that an application has been dismissed in error, the Tribunal may, on the application of a party to the proceeding or on its own initiative, reinstate the application.

    CONSIDERATION

12. The hearing that took place on 5 February 2020 was originally scheduled for 10 January 2020. Mr Martin requested a two week adjournment prior to 10 January which was granted by the Tribunal.

13. Mr Martin did not attend the interlocutory hearing that was held on 5 February but was instead represented by Legal Aid. No explanation as to Mr Martin’s failure to appear was presented to Tribunal. His application for reinstatement was made some two months after the scheduled hearing and dismissal of his application.

14. His Legal Aid representative was provided an opportunity to make a case for reinstatement on behalf of Mr Martin.

15. The discretion to reinstate an application for review should be exercised as the justice of the circumstances requires it.

16. In Mr Martin’s case the application was not dismissed in error, but dismissed because the Applicant failed to appear at the substantive hearing of his application before the Tribunal.

17. In this application the substantive matter relates to a disability support pension claim which dates back nearly 4 years. Having considered the additional evidence provided in December 2019, it is difficult for the Tribunal to conceive that Mr Martin would be able to provide additional evidence relating to that application which would demonstrate he was eligible during the qualification period given the time that has since passed.

18. To reinstate an application for review in circumstances where there is no reasonable prospect that the application, if reinstated, would succeed is to give false hope to the Applicant as well as a waste of the resources of both the parties and Tribunal.

    CONCLUSION

19. On that basis, the application to reinstate the application to review the decision, being the application lodged on 15 January 2018, was refused.

I certify that the preceding 19 (nineteen) paragraphs are a true copy of the reasons for the decision herein of Mr S Evans, Member

...........................[sgd].........................................

Associate

Dated: 6 March 2020

Date of hearing:	5 February 2020
Solicitors for the Applicant:	Ms S Grey, Legal Aid NSW
Solicitors for the Respondent:	Ms G Heggen, Department of Human Services