Mayer and National Disability Insurance Agency
[2020] AATA 3720
•22 September 2020
Mayer and National Disability Insurance Agency [2020] AATA 3720 (22 September 2020)
Division:NATIONAL DISABILITY INSURANCE SCHEME DIVISION
File Number: 2019/1502
Re:Owen Mayer
APPLICANT
AndNational Disability Insurance Agency
RESPONDENT
DECISION
Tribunal:Senior Member Dr M Evans-Bonner
Date:22 September 2020
Place:Perth
The Tribunal dismisses the Applicant’s application seeking review of the Reviewable Decision:
(a)under s 42A(5)(a) of the AAT Act because the Applicant failed within a reasonable time to progress with his application; and
(b)in the alternative, under s 42A(5)(b) of the AAT Act because the Applicant failed within a reasonable time to comply with the Tribunal’s Direction of 17 July 2020; and
(c)in the alternative, under s 42A(2) of the AAT Act because the Applicant failed to appear at the non-compliance directions hearing on 4 September 2020, having had appropriate notice of the time and place of the hearing.
........................................................................
Senior Member Dr M Evans-Bonner
CATCHWORDS
PRACTICE AND PROCEDURE – dismissal of application for review – whether Tribunal satisfied that it is appropriate to dismiss the application – Applicant failed within a reasonable time to progress with his application - Applicant failed within a reasonable time to comply with a procedural direction of the Tribunal – Applicant failed to appear at second non-compliance directions hearing – procedural fairness – explanation for delay – substantive merits of the application – prejudice to the parties if application dismissed - application failed to proceed past preliminary stages in an 18 month period – Applicant given numerous opportunities to provide further evidence in circumstances where his application had poor prospects of success without it – Respondent attempted to assist Applicant to obtain further evidence and to pay for medical reports – Applicant sent numerous offensive, abusive and aggressive emails to the Tribunal Registry and the Respondent which included threatening and discriminatory language, including racist and misogynistic language – application dismissed under s 42A(5)(a), and in the alternative, ss 42A(5)(b) and 42A(2) of the Administrative Appeals Tribunal Act 1975 (Cth)
LEGISLATION
Administrative Appeals Tribunal Act 1975 (Cth) – ss 2A, 33(1AB), 40(1)(b), 42A(2), 42A(5), 42A(5)(a), 42A(5)(b), 42A(7)
National Disability Insurance Scheme Act 2013 (Cth) – ss 20, 24, 24(1)(c), 24(1)(e), 25(1)(b), 100(6)
CASES
Andelman v Secretary, Department of Families, Housing, Community Services and Indigenous Affairs (2011) 213 FCR 345
Beard v Telstra (1999) 57 ALD 376
Bringolf and Secretary, Department of Human Services [2018] AATA 2004
Charara v Commissioner of Taxation (2016) 160 ALD 57
Evans and Australian Capital Territory [2019] AATA 799
REASONS FOR DECISION
Senior Member Dr M Evans-Bonner
22 September 2020
OVERVIEW
The Applicant is seeking access to the National Disability Insurance Scheme (NDIS). He made an application seeking access on 27 June 2018 (T6/51-58).
On 10 October 2018, a delegate of the CEO of the Respondent refused the Applicant’s request for access to the NDIS under s 20 of the National Disability Insurance Scheme Act 2013 (Cth) (NDIS Act).
The decision letter to the Applicant stated that, “[u]nfortunately, based on the information provided, you do not meet the access requirements set out in the National Disability Insurance Scheme Act 2013 (NDIS Act) to become a participant of the NDIS”.
The letter continued to explain that, based on the information provided, the Applicant did not meet the requirements of s 24(1)(c) of the NDIS Act:
… which requires that you must have an impairment or impairments that result in substantially reduced functional capacity to undertake, or psychosocial functioning in undertaking, one or more of the following activities:
· communication
· social interaction
· learning
· mobility
· self-care
· self-management
The letter then explained that the Applicant also did not meet the early intervention requirements in s 25(1)(b) of the NDIS Act. Specifically:
Unfortunately you do not meet the early intervention requirements as outlined in section 25 of the NDIS Act. This is because, based on the information provided, you do not meet:
· Section 25(1)(b), which requires that the provision of early intervention supports must be likely to benefit you by reducing your future needs for supports in relation to your disability.
This information provided by the Applicant in support of his access application will be addressed further below.
On 14 March 2019, a delegate of the CEO of the Respondent made an internal review decision under s 100(6) of the NDIS Act, confirming the earlier decision of 10 October 2018. This is the Reviewable Decision currently before the Tribunal.
On 20 March 2019, the Applicant lodged an application for review of the Reviewable Decision in the Administrative Appeals Tribunal (Tribunal).
INFORMATION PROVIDED BY THE APPLICANT
In support of his application to access the NDIS, the Applicant provided reports, medical certificates and assessments relating to a workplace incident on 7 August 2017, which resulted in the Applicant injuring his eye (T3-T4B), as well as documents relating to an injury to his right arm. The Tribunal will now discuss this medical evidence because it is relevant to the Applicant’s prospects of success in this application.
Specifically, in a letter from Dr Evan Jenkins dated 9 August 2017, Dr Jenkins stated that, “I do not believe that Mr Mayer has a rateable impairment of binocular vision, despite his symptoms in this regard.” Dr Jenkins continued to state, with respect to the Applicant’s work capacity, that (T3/32):
Mr Mayer continued working in a nominally unrestricted capacity for two weeks after the initial injury until he was forced to cease because of his severe left eye symptoms. He has not returned to work since that time. In my opinion he would have been fit for work of a restricted nature. Noting his loss of confidence due to his visual symptoms I would not have expected him to work at heights or operate cranes but he could certainly have done ground level simple labouring tasks from soon after the accident to the present time. I tend to agree, given his reported loss of confidence, that he is not fit for rigging/scaffolding duties currently although it is expected that with the fullness of time he will be able to return to this work, possibly within several months.
Dr Jenkins concluded that further treatment was not necessary although the Applicant could have Lasik treatment to improve his refractory error (T3/33):
I do not feel further treatment is required other than ongoing use of lubricant drops. It is noted however that he has had a normal tear film assessment so I am not sure whether these drops are still required. While not mandated, I feel there is scope for further Lasik treatment to improve the astigmatism and refractory error in the left eye, if and when Mr Mayer feels ready. The estimated cost of Lasik treatment of the eyes is of the order of $3,000.00 and in my opinion is likely to have a high rate of success in improving his refractory error. Whether it improves his other symptoms is less clear.
In a letter from Dr Andrew Fairhurst dated 21 August 2017, Dr Fairhurst described the Applicant’s eye injuries as mild. Dr Fairhurst stated (T4/35; see also T4A/37-38):
[The Applicant’s] injuries can be classified as mild. He has been deemed by an Approved Medical Specialist (Ophthalmologist) to have sustained a 5% Whole Person Impairment for the eye injury and by an Approved Medical Specialist (Psychiatrist) to have sustained a 5% Whole Person Impairment for the psychiatric sequelae of the injury, combined equating to a 10% Whole Person Impairment.
This letter commented that the Applicant’s “future work capacity has been compromised for the foreseeable future on account of the eye injury” (T4/35). Dr Fairhurst stated that the Applicant “is unlikely to be required to retire prematurely from the workforce as a result of the injuries” and considered that employment in a managerial capacity or in project management “would be a suitable alternative pathway for career progression” for the Applicant (T4/35).
Dr Fairhurst concluded by recommending “ongoing treatment for the physical and psychological components of the injury” including lubricant eyedrops at an estimated cost of $300 per year, and “corrective lenses in spectacles and safety glasses and provision for replacement eyewear” at an annual cost of $500 per year. Dr Fairhurst also recommended antidepressant medication for up to 18 months, as well as recommending 12 sessions of clinical psychotherapy (T4/36).
Excerpts from a report of Dr Con Anastas, reviewing ophthalmologist, dated 3 July 2017 were reproduced in Dr Fairhurst’s Report on Evaluation of the Degree of Permanent Impairment (T4B/39-48). The relevant part of Dr Anastas’ Report was quoted as saying (T4B/45):
Mr Mayer with reported and documented excellent uncorrected vision prior to his injury suffered on the 7th of August 2016 is now required to wear spectacles (distance and near) to achieve close to that same level of vision due to presumed induced astigmatism. Additionally, Mr Mayer is now required to utilise preservative free lubricants to stabilise the left pre-corneal tear film as an aftermath of the chemical component of his injury.
A report from the Applicant’s treating Psychiatrist, Dr De Felice, dated 11 August 2017, was also referenced in Dr Fairhurst’s report (T4B/46). Dr De Felice was quoted as having diagnosed the Applicant with “an adjustment disorder with depressed mood” which arose “in response to the stressor of his left eye problems”.
The Tribunal also notes a discharge summary dated 16 November 2018 from Sir Charles Gairdner Hospital showing that the Applicant was admitted to hospital for two days on
15 November 2018. The discharge summary stated that the Applicant “has had a repair of his ruptured Right distal biceps tendon” (T1H/23). A Perth Radiological Clinic Report of an MRI on the Applicant’s “right elbow/left elbow/forearm” collected on 26 October 2018 states, under the heading, “clinical details”:
Clinically right distal biceps rupture following assault. Also left elbow/forearm pain.
Medical certificates show that the Applicant had time off work from 26 October 2018 to what appears to be 8 December 2018 (with the handwriting on this medical certificate being difficult to decipher) (T1D/15; T1F/18; T1G/19).
Since providing the above documentation to the Respondent as part of his NDIS access application, and since filing his application for review in the Tribunal on 20 March 2019, the Applicant has only lodged a single page of evidence, being part of a medical report (numbered page two of three) dated 8 April 2020 from a general practitioner (Exhibit 4).
This medical certificate states a diagnosis of: “corneal keratitis (left)” with symptoms of “light sensitivity, pain. Glare with computer screen”; “corneal scarring” with symptoms of “‘socially blind’ save double vision”; and “dry eyes” with the symptoms of “dry eyes, blurred vision”. The past and current treatment for all these conditions is stated as “eyedrops” and the planned treatment for all of these conditions is stated as “nil else”.
The section in the form titled, “[o]ther medical conditions — Give details of any other conditions which significantly impact on the patient’s capacity to work or study” has been crossed through. The “[r]ecommended assistance — List any interventions that could help the patient into work or stay in a job” part of the form states, “return to work programme/vocational training”.
INTERLOCUTORY DISMISSAL APPLICATION HEARING OF 16 JULY 2020
An interlocutory dismissal application hearing was held on 16 July 2020 following a dismissal application being made by the Respondent. On 25 June 2020 the Tribunal Registry emailed a listing notice to the Applicant. The Applicant responded on 26 June 2020 as follows:
What happened to via post lying scum?
See attached.
The “attached” were screen shots of emails sent from the Applicant to the Respondent’s legal representative on 26 June 2020:
12.07pm
However Sara,
If you are talking about the NDIS and my vision disability, I am still awaiting all the information required by post, just like everyone continually seems to forget…. I’ve been awaiting months for postals that we all agreed too… That’s abuse isn’t it!
Scum.
12.25pm
So…
Is it you that is lying or is it NDIS that is lying?
BECAUSE, the last conversation that we had, the NDIS people said they would post the request all of the information required.
So you are barking up the wrong tree Sara, get them to confirm that they sent the required information by our required timeframes (scheduled around our last Tele conference call) or just immediately NDIS approve…
Lying scum get it right.
12.27pm
And when I say confirm, I mean registered postproof!
Get you act together, you are supposed to be a government solicitor, supposed.
(In this decision, errors in the original emails have been retained.)
In response, the Respondent’s solicitor confirmed in an email dated 30 June 2020, that she had received these three emails from the Applicant and that she had been sending copies of all correspondence to the Applicant by letter.
The Applicant emailed the following response on the same date, 30 June 2020, at 3.47pm:
Bullshit!
In an email dated 9 July 2020, the Respondent’s legal representative emailed submissions to the Tribunal Registry in support of their dismissal application. The Applicant was copied into this email, which also confirmed that a copy had been sent to the Applicant by post.
The Applicant sent the following email in response on 10 July 2020 at 1.23pm:
Dear Register,
I call bullshit and use this as evidence, that if they actually sent me the request for more information, as we discussed during the last teleappointment, that more information would have been provided.
It has now been made clear of their negligence, and I’d say on purpose, considering my disability.
And use this as proof of automatic approval of NDIS assistance, lock it in.
It’s very disappointing that Australians are lining the pockets of which I now view ‘the very corrupt Australian Government Solicitor’ caught out red handed.
Thank you in advance Registrar for your support and approval.
The Respondent’s dismissal application outlined that it was seeking dismissal under
s 42A(5) of the Administrative Appeals Tribunal Act 1975 (Cth) (AAT Act) on the basis that the Applicant had failed to proceed with the application within a reasonable time and failed to comply with several directions of the Tribunal. These included directions made on:
(a)
5 August 2019 that the Applicant provide specified further evidence by
11 October 2019;
(b)18 September 2019, revoking the directions of 5 August 2019 and giving the Applicant further time – until 13 December 2019 – to provide evidence; and
(c)16 December 2019, revoking the directions of 18 September 2019 and giving the Applicant even more time – until 13 March 2020 – to provide further evidence.
The Conference Registrar sent three emails to the Applicant to follow up progress of his application. The Conference Registrar emailed the Applicant on 14 November 2019 at 2:49pm:
Dear Owen
I did not have an opportunity in the phone this morning to follow up our conversation in September about Legal Aid.
Legal Aid WA can provide an appointment to discuss your NDIS appeal with you. At that discussion the Legal Aid lawyer may be able to give advice on your appeal. In some circumstances, Legal Aid may approve funding to assist you through the appeal process at the AAT.
There is of course no obligation for you to see Legal Aid, but if you would like to have an appointment, please call the Registry on 6222 7200 and ask to speak to a Tribunal Officer who can make arrangements for an appointment.
Otherwise, there are currently directions in place for you to provide further material to assist consideration about your access to NDIS. This material is due by
13 December 2019.
Yours sincerely
The Tribunal also notes that on 17 March 2020 the Conference Registrar sent the following reminder to the Applicant by email (Exhibit 5):
Dear Mr Mayer,
I refer to your review application in the Tribunal and your last telephone conference with Conference Registrar [name omitted] on 14 November 2019.
I confirm the Tribunal's Direction of 16 December 2019 which required you to file further evidence by 13 March 202, which I note has not occurred.
Would you please advise by return email how you wish to proceed with this matter given that significant time has now passed since the making of that Direction.
Should I not here from you within 7 days, I will be listing the matter for a telephone conference with a view to making programming orders for the hearing of the matter.
On 14 April 2020 at 11:33am the Conference Registrar sent the further following email:
Dear Owen
We have a telephone conference listed on Thursday this week at 2.15pm to discuss your NDIS appeal. I have had some difficulty contacting you by phone in the past.
Would you let me know what telephone number you want me to call on Thursday?
The Applicant did not provide any evidence to the Tribunal in accordance with any of these directions or after being reminded to do so by the Conference Registrar. Each of these directions, as well as the Direction made by the Tribunal on 17 July 2020 (July Directions), contained notes. The notes to each of these directions were identical and provided that if a direction was not complied with, the Tribunal would list the application for a directions hearing. Note 2 stated that the Tribunal can dismiss an application under s 42A(5)(b) of the AAT Act if a person fails within a reasonable time to comply with a direction, and that the person who did not comply may be asked to explain at a directions hearing why their application should not be dismissed.
The Tribunal also notes from the Respondent’s “submissions in support of dismissal application” dated 9 July 2020, that the requirement of further evidence in support of the Applicant’s application was discussed at the first case conference on 5 June 2019, with the plan recording that the Applicant was to provide further evidence by 5 July 2019. Additionally, the Respondent attempted to assist the Applicant by writing to him on
25 June 2019 to give him a series of questions that he could provide to his medical practitioners to assist him to obtain evidence for his application.
Therefore, in support of its dismissal application, the Respondent relied upon the Applicant’s failures to produce any evidence or to further his application by the due date of
13 March 2020, despite previously being given opportunities to do so on four separate occasions.
However, at the hearing on 16 July 2020, the Tribunal declined to dismiss the Applicant’s application. The Applicant’s evidence was that he had not received any of the directions that he was alleged not to have complied with. This was because the Tribunal’s Registry had forwarded correspondence to the Applicant by email, despite his request and a notation from the Conference Registrar on the Tribunal’s electronic file, that all correspondence should be posted to the Applicant.
The Tribunal notes that during the hearing on 16 July 2020, the Applicant was disruptive and often interrupted the Tribunal and the Respondent. The Applicant expressed his frustration with the Tribunal and the Respondent throughout the hearing. For example, he asserted “that the NDIS, the Australian solicitor and dare I say the AAT have repeatedly been called out and caught out red handed”, and that “you’ve all been caught out red-handed, I’m going to call corruption…” (transcript/6). He demanded “automatic approval” of his NDIS access application (transcript/6, 17 and 24) three times during the hearing, and further asserted on one of these occasions “that we do it my way” (transcript/24).
Upon reflection, the Tribunal now has cause to doubt the Applicant’s evidence that he did not receive the three Directions made by the Tribunal. This is due to the Applicant’s conduct, specifically his various email replies to the emails he received from the Tribunal and the Respondent. This tends to suggest that the Applicant did receive emails and could read their content sufficiently to be able to respond, but regardless chose not to take notice of the directions. However, on 16 July 2020, the Tribunal gave the Applicant the benefit of the doubt, accepted his evidence that he had not received the three directions because the Tribunal had not posted them to him and did not dismiss his application.
Instead, the Tribunal made the July Directions whereby the Respondent would facilitate (and pay for) the provision of medical reports from the Applicant’s treating medical practitioners. This was an outcome that was beneficial for the Applicant because his application remained on foot and he was being helped to obtain further evidence, in the absence of which, his application was unlikely to succeed.
In summary, the July Directions stated that the Respondent would send the Applicant a letter seeking confirmation of the names of his treating practitioners and giving permission for the Respondent to contact them to facilitate the provision of reports. The July Directions also provided for a self-addressed express post envelope to be sent to the Applicant so he could return his written confirmation to the Respondent.
Additionally, the July Directions gave the Applicant a further opportunity to file any further evidence that he intended to rely upon at the final hearing by 7 August 2020. To date, he has not done so.
Specifically, the July Directions were:
The Tribunal DIRECTS:
1.On or before 24 July 2020, the Respondent must send the Applicant a letter by post seeking written confirmation from the Applicant of the names and contact details of his treating psychiatrist, psychologist, physiotherapist and eye specialist (‘the treaters’) and his permission for the Respondent to write to the treaters seeking written reports from them. The Respondent will enclose a self-addressed Express Post envelope in which the Applicant must return this written confirmation.
2.On or before 7 August 2020 the Applicant must give to the Tribunal and the Respondent any further evidence upon which the Applicant intends to rely at the hearing of this matter.
3.On or before 14 August 2020 the Applicant will post to the Respondent the written confirmation of his treaters and his permission for the Agency to seek written reports from them in the Express Post envelope, as referred to in Direction 1 above.
4. On or before 28 August 2020 the Respondent will:
a.provide letters of instruction to the Applicant’s treaters seeking written reports from them; and
b.give copies of the letters of instruction and an indication as to when the treaters have indicated the reports can be expected to the Applicant by post and email and to the Tribunal by email.
After these directions, the Tribunal noted under a separate “notation” section:
And the Tribunal notes that:
A.The Respondent has agreed to fund the cost of the reports referred to in direction 4.
B.Following review of the reports referred to in direction 4, if the Respondent is unable to determine if the Applicant meets all of the access criteria under s24(1) of the National Disability Insurance Scheme Act 2013, the Tribunal notes that the Respondent intends to commission a functional assessment of the Applicant by an Occupational Therapist, which the Respondent has agreed to fund.
On the morning of 17 July 2020 at 5:58am, the Applicant sent the following email to the Tribunal Registry:
I’m calling corruption and collusion.
I want the decision yesterday stood down.
I want the woman who made the decision stood aside.
I want a full investigation into the epic failure that has happened over the last 2 years.
I want the transcript from yesterday.
EVERYONE at the meeting admitted fault, I need them to know what pain they have caused me and my family, none of it is legal.
Immediately get the director to call me, with those transcripts.
My application for ndis should have been approved already.
Later, at 7:19am, he emailed:
Registry,
Our discussion will include Includes Incompetence and procedural fairness.
At 9:34am, the Applicant sent a further email as follows:
Because the neglect of what you did to a disabled person, the lack what happened, the lack of reinforce ment over the last 2 years.
Unlawful.
Get the director to call me immediately.
A Registry Team Leader telephoned the Applicant on 17 July 2020. The file note records that he was not content to speak with her and requested a call from “senior management”.
The Applicant sent the following email to the Tribunal Registry on 17 July 2020 at 3:35pm:
I cannot enter into a contract with confirmed admittance of negligent individuals, disgusting discrimination comes to mind, and it is disgusting the fact that it was admitted by all.
Get the most senior person to contact me on my mobile to make an appointment with me to discuss this, don’t cover it up.
Due to all the parties confirming negligence, this needs to be cleared up before any contract is made.
Let’s get the transcripts.
At 5:28pm, on 17 July 2020, the Direction was emailed to the Applicant. The email confirmed that the Direction had also been posted to the Applicant. The Applicant replied to this email at 5:48pm as follows:
Corrupt aat & all that admitted negligence.
I am ordering you there is no direction.
I can not enter into a contract with admittedly filthy corrupt negligent discriminatory cunts.
Get the senior manager/director to call me to make an appointment.
You’ve disgraced yourself in my presence and that of Australia.
You are all fired.
On 22 July 2020, the Registry Manager telephoned the Applicant. The file note records the following:
I contacted Mr Mayer at 2:40pm, given his request recently to speak to a Senior Manager at the AAT. He was driving and it was difficult to hear and he hung up the phone.
I called him again at 2:41pm and asked him how I can assist him. It was difficult to hear him in parts as he was still driving. He said that the AAT and AGS have conducting themselves in a ‘f***ing disgusting manner’ throughout his matter. He said that his matter relates to disability and he had ‘never had a ‘ruder’ experience than when dealing with the AAT’. I said that I understood that he was seeking a transcript and that a letter has gone out to him setting out how he can request the transcript - this has been sent to him by post as requested and also by email. He said that even though he had asked the correspondence by post it has only been done recently. Then he started to become abusive and said the ‘AAT can’t seem to get things through their thick skulls’ and threatened to ‘sue the f*** out of all of you’. I said that if he is going to continue speaking in this way I would have to terminate the call and he continued to be abusive. I then said I would terminate the call and as I hung up the phone he said that I should get my boss to call him.
On 24 July 2020, the District Registrar, who is the most senior manager in the Perth Registry, sent the Applicant a letter noting his “aggressive and disruptive” conduct and telling the Applicant that his “behaviour and tone in [his] interactions with AAT staff members is unacceptable”.
NON-COMPLIANCE DIRECTIONS HEARING OF 4 SEPTEMBER 2020
A directions hearing was held on 4 September 2020 to consider the Applicant’s
non-compliance with Directions made by the Tribunal on 17 July 2020.
The Tribunal Registry sent the Applicant notice of this non-compliance directions hearing by registered post and by email on 28 August 2020. The Applicant responded by email on 29 August 2020. The email stated:
I DO NOT MAKE CONTRACTS WITH FILTHY LYING DISCRIMINATORS Full stop
Owen
Formal complaints need to be made… How?
On 1 September 2020, the Tribunal Registry emailed the Applicant a letter, which also advised that it had been sent by post, providing him with information about how to make a complaint. The Applicant responded by email on 2 September 2020 as follows:
To tribuneral.
You know the complaint. From day 1, you and ndis have failed in your agreement to send everything by post to me.
2 years this has gone on for… 2.
I will not make a contract with filthylyingniggers.
Instant ndis approval is imminent.
Fuckyourlying cunts.
The Respondent emailed the Tribunal on 2 September 2020 to confirm appearances and attaching written submissions. The email also stated that submissions had been sent to the Applicant by express post. The Applicant was copied into this email. The Applicant replied by email on 2 September 2020 to both the Tribunal and the Respondent’s legal representative by stating:
Getfuckedscumbag
At approximately 10:56am on 4 September 2020, a Tribunal Hearing Attendant telephoned the Applicant for the non-compliance directions hearing, which was to be held by telephone at 11:00am. The Applicant answered, swore at the hearing attendant, and then hung up the telephone line. Two further attempts were made to contact the Applicant at approximately 11:00am. The Applicant did not answer his telephone and so the Tribunal stood the matter down until 11.25am when the Applicant was telephoned for a fourth time. Again, he did not answer his telephone. The Tribunal, pursuant to s 40(1)(b) of the AAT Act, proceeded to hear the application in the absence of the Applicant.
Prior to the hearing the Respondent filed evidence dated 29 July 2020 to show that they had complied with Direction 1 of the July Directions (Exhibit 4). The Tribunal accepts the Respondent’s evidence that the letter dated 23 July 2020 (seeking confirmation of the names of his treating practitioners and the permission to contact them) was express posted to the Applicant on 24 July 2020, and that a search of the tracking number showed that it was received by the Applicant on 28 July 2020 (Exhibit 2, para [7]-[8]).
The Respondent also emailed a copy of this letter and the July Direction to the Applicant on 24 July 2020 (with a copy of the email being attached to Exhibit 2 as Annexure 1).
The Applicant responded to this email (with a copy of the email being attached to Exhibit 2 as Annexure 2). His email response to the Respondent, sent on 26 July 2020 at 1:31pm stated:
i am not making a contract with negligent cunts such as yourselves that have discriminated against me for 2 years…,.
get that through your thick twats.
get your senior bosses to send me a post with their contact details, because im gunna sort you lying cunts out fullstop
The Tribunal infers from this email response that, as well as receiving the letter of
24 July 2020 by express post, the Applicant received the emailed copy of the letter and the July Direction.
The Respondent also submitted (see Exhibit 2, para [13]) that a search of the express post tracking number on the self-addressed express post envelope that the Applicant was meant to send back to the Respondent, indicated that it is “pending”, which the website indicated had not been scanned as being in the Australia Post system yet. The Respondent confirmed that as of the morning of the non-compliance directions hearing on 4 September 2020, this was also the case when the tracking number was entered into the relevant section of the Australia Post website. The Tribunal accepts this evidence and finds that although the Applicant received the July Direction on 28 July 2020, he had still not posted the
self-addressed express post envelope as at 4 September 2020, as required by Direction 3 of the July Direction. Thus, as Direction 3 stated that the Applicant had to post the envelope on or before 14 August 2020, at the time of the non-compliance directions hearing on 4 September 2020, he was 21 days overdue in complying with Direction 3 of the July Direction.
The Tribunal finds that the Applicant failed to comply with Direction 3 of the July Direction.
DISMISSAL PURSUANT TO S 42A(5) OF THE AAT ACT
The Tribunal’s objectives are stated in s 2A of the AAT Act:
In carrying out its functions, the Tribunal must pursue the objective of providing a mechanism of review that:
(a)is accessible; and
(b)is fair, just, economical, informal and quick; and
(c)is proportionate to the importance and complexity of the matter; and
(d)promotes public trust and confidence in the decision-making of the Tribunal.
The Tribunal further notes s 33(1AB) of the AAT Act which imposes a duty on a party to assist the Tribunal to fulfil its objectives in s 2A of the AAT Act:
Parties etc. must assist Tribunal
(1AB)A party to a proceeding before the Tribunal, and any person representing such a party, must use his or her best endeavours to assist the Tribunal to fulfil the objective in section 2A.
Section 42A(5) of the AAT Act provides that:
(5)If an applicant for a review of a decision fails within a reasonable time:
(a)to proceed with the application; or
(b)to comply with a direction by the Tribunal in relation to the application;
the Tribunal may dismiss the application without proceeding to review the decision.
In Andelman v Secretary, Department of Families, Housing Community Services and Indigenous Affairs (2011) 213 FCR 345, Jagot J stated, at 357 [32]:
In the present case the real question is whether, in the circumstances of the case, the Tribunal was able to dismiss the proceeding under s 42A(5). This involves two sub-questions. The first is whether the factual conditions of s 42A(5) were satisfied. The second is whether the circumstances were such as to make dismissal of the proceeding under s 42A(5) a breach of the Tribunal’s obligation, in accordance with the laws of natural justice, to give Mr Andelman a fair hearing.
Further clarification regarding the power to dismiss under s 42A(5) was given in Charara v Commissioner of Taxation (2016) 160 ALD 57 (Charara). Wigney J, at 75 [75] stated that, “[t]he discretionary power to dismiss an application under s 42A(5) is in aid of the objective in s 2A(b) of the AAT Act: Berry v Commissioner of Taxation (2015) 149 ALD 270; [2015] FCA 1244 at [35].”
In Charara, Wigney J further stated that s 33(1)(b) of the AAT Act “is also relevant” to have regard to in considering whether to dismiss an application. Section 33(1)(b), in part, provides:
(1)In a proceeding before the Tribunal:
...
(b)the proceeding shall be conducted with as little formality and technicality, and with as much expedition, as the requirements of this Act and of every other relevant enactment and a proper consideration of the matters before the Tribunal permit; ...
In Charara Wigney J summarised the principles that are relevant when considering whether an application should be dismissed under s 42A(5) of the AAT Act. Wigney J stated, at
76-7 [78]-[82]:
78The discretionary power in s 42A(5)(b) of the AAT Act is only in enlivened [sic] if the applicant fails “within a reasonable time” to comply with the direction. Thus, before the Tribunal exercises the discretion, it must consider and determine not only whether there has been a failure to comply with the direction; it must also consider and determine whether a reasonable time has elapsed since the relevant failure. An omission to do so would constitute a misapplication of s 42A(5).
79The discretion must only be exercised sparingly and as a matter of “last resort”: Guse v Comcare (1997) 49 ALD 288 at 291 (Guse v Comcare). That is because it involves denying an applicant a hearing of the merits of the application. Because dismissal under s 42A(5) is a matter of last resort, the Tribunal must consider whether dismissal is the proper remedy, or whether it would be more appropriate to take some other course, such as adjourning the proceeding or making some other order to secure compliance: Guse v Comcare at 291. Again, a failure to do so would most likely constitute a misapplication of s 42A(5).
80In exercising the discretion, the Tribunal must also afford the applicant procedural fairness: Guse v Comcare at 291. Procedural fairness would ordinarily require the Tribunal to give the applicant the opportunity to make submissions as to why the discretion should not be exercised. That would include giving the applicant an opportunity to put forward submissions concerning whether there had been a failure to comply with a direction and, if so, whether a reasonable time had elapsed since that failure. It would also ordinarily extend to giving the applicant an opportunity to explain or justify any failure, or to advance any reasons why, despite the failure, the application should not be dismissed. Depending on the particular circumstances, it might also extend to giving the applicant a further opportunity to comply or to remedy the default.
81There may be some circumstances where this is difficult. For example, an applicant who simply absents himself or herself from the hearing room with no indication that he or she intends to return may, depending on the circumstances, be taken to have forfeited any right to make any submissions as to why his or her application should not be dismissed: cf Andelman v Secretary, Department of Families, Housing Community Services and Indigenous Affairs (2011) 213 FCR 345; 121 ALD 242; [2011] FCA 299. There may be no denial of procedural fairness in those circumstances. The particular facts and circumstances of each case must be separately considered to determine what procedural fairness required in the circumstances.
82If the applicant does provide an explanation for why a direction has not been complied with, or an argument as to why the discretion to dismiss the application should not be exercised, those explanations or arguments are mandatory relevant considerations: LVR (WA) Pty Ltd v Administrative Appeals Tribunal (2012) 203 FCR 166; 289 ALR 244; 128 ALD 489; [2012] FCAFC 90; (LVR) at [122]. Failure to take any such explanations or arguments into account would constitute an error of law in the exercise of the power: LVR at [143]. And, in order to take an explanation into account, the Tribunal must “engage in an active intellectual process, in which each relevant matter receive[s] [its] genuine consideration”: LVR at [145] citing Bat Advocacy NSW Inc v Minister for Environment Protection, Heritage and Arts [2011] FCAFC 59 at [44]–[45]; Tickner v Chapman (1995) 57 FCR 451 at 462; 133 ALR 226 at 238; Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507; 178 ALR 421; 65 ALD 1; [2001] HCA 17 (Jia Legeng) at [105].
Did the Applicant fail to proceed within a reasonable time?
In Evans and Australian Capital Territory [2019] AATA 799, at [76]-[79], Member Webb discussed that when determining what is a “reasonable time” within which to proceed with an application, consideration should be given to the objectives of the Tribunal in s 2A:
76.The next question is whether his failure to proceed is within a reasonable time. About this, in this context, there are two things to say immediately.
77.Firstly, the phrase ‘reasonable time’ is not given any special meaning for the purposes of s 42A(5). It is not an abstract concept amenable to a fixed or arbitrary assessment of time; nor is it something that can be properly assessed on the passage of time, alone. The amount of time that may be considered reasonable is to be assessed in each case, having regard to all relevant circumstances.
78.Secondly, it should not be assumed that the time in which an applicant is expected to proceed with an application must necessarily be short for it to be ‘reasonable’. A proper assessment of relevant circumstances may lead to a different conclusion. In this regard, consideration should be given to the Tribunal’s objectives set out in s 2A of the AAT Act…
79.As can be seen, quickness is but one objective, coupled with fairness, justice, economy and informality, where considerations of accessibility, proportionality and public trust also arise. I accept that these are considerations relevant to an assessment of ‘reasonable time’ for the purposes of s 42A(5) in any particular case, as well as exercise of the discretion to dismiss the section confers.
The Applicant lodged his application for review on 20 March 2019 (T1). Thus, at the time of writing these reasons, 18 months has elapsed since the Applicant lodged his application, and in that time, he has only filed one page of evidence (on 16 April 2020). As noted above, this was only part of a medical certificate (page 2 of 3) dated 8 April 2020. Despite having opportunities to file further evidence (by way of five formal directions, reminder emails from the Conference Registrar on 17 March 2020 and 14 November 2019, an informal agreement to provide evidence after the first case conference on 5 June 2019, and a second case conference on 16 April 2020), and instead of availing himself of the Respondent’s assistance to obtain the evidence needed to assess his eligibility to access the NDIS, the Applicant has instead directed offensive, abusive and aggressive correspondence to the Tribunal and the Respondent, including using language that is both racist and misogynistic. Further, and as noted above, at the time of the non-compliance directions hearing on 4 September 2020, he was 21 days overdue in complying with Direction 3 of the July Direction. No extension requests were made by the Applicant. Instead, after the July Direction was sent to him, the Applicant sent offensive and abusive emails to the Tribunal Registry on 17 July 2020, 29 August 2020, 2 September 2020, and to the Tribunal and the Respondent on 2 September 2020 (outlined above), rather than complying with the July Direction.
The Applicant has also demanded “automatic access” to the NDIS in his emails of
10 July 2020, 2 September 2020 as well as three times during the 16 July 2020 hearing. This further suggests an unwillingness to take reasonable steps to proceed with his application because the Applicant has an expectation that access will be automatically granted. The Applicant seems to be of the view that his offensive and abusive conduct may result in him being given the automatic access to the NDIS that he demands. It does not. The Tribunal finds that his conduct and his demands for automatic access are instead demonstrative of an intention not to proceed any further with his application.
The Applicant has ignored the Tribunal’s request to refrain from addressing Tribunal Registry staff using abusive language (transcript of 16 July 2020 proceedings, page 32-33). He has also ignored a letter from the District Registrar dated 24 July 2020 advising him that his aggressive and disruptive behaviour and tone in his interactions with Tribunal staff is unacceptable. He has persisted with this inappropriate and disrespectful conduct instead of taking any steps to proceed with his application.
The following comment from Senior Member Nikolic in Bringolf and Secretary, Department of Human Services [2018] AATA 2004 (Bringolf) at [22]-[23] is applicable to the Applicant in this application. In Bringolf, the Applicant’s conduct was similar to that of the Applicant in this application. The Senior Member observed that the conduct of the Applicant was contrary to s 33(1AB) of the AAT Act. However, in that case the Senior Member dismissed the application under another provision of the AAT Act, namely s 42B(1)(c) of the AAT Act. Paragraphs [22]-[23] state:
22. I find that Mr Bringolf’s conduct reflects a repeated unwillingness to act in accordance with his obligations as an Applicant under section 33(1AB) of the AAT Act. He has ignored repeated requests to cease using obscene and abusive language in his communications with the Respondent and the Tribunal, and to cease reflecting on the objectivity of the Tribunal. He failed to moderate his conduct after receiving a letter from the Tribunal’s Acting Registry Manager. He has also failed to comply with a subsequent formal direction from the Tribunal. He refused to participate in a TDH without reasonable excuse... His unacceptable conduct has hindered the progress of his application, and caused unnecessary delays and costs – to both the Tribunal and Respondent. His conduct actively inhibits the determination of his application consistent with the Tribunal’s objective at section 2A of the AAT Act.
23. Mr Bringolf has conducted himself under the misapprehension that his application before the Tribunal enables him to abuse, harass, and annoy the Respondent with impunity. It does not.
Having regard to the Tribunal’s objectives in s 2A of the AAT Act, both the Tribunal and the Respondent have given the Applicant a great deal of latitude and assistance to help the Applicant proceed with his application. The Tribunal has provided a mechanism of review to the Applicant that has been accessible and fair despite the lack of respect that the Applicant has demonstrated towards Tribunal Registry staff, the Respondent and the Respondent’s legal representative. The Tribunal has made five procedural directions to assist the Applicant file further evidence so that his application might succeed. The Applicant has had since March 2019 to progress his application. To allow the application to proceed further would not be in accordance with the Tribunal’s objectives to be informal, quick and proportionate to the complexity of the matter. It is also not economical (see s 2A of the AAT Act) for the Tribunal to continue to manage an Applicant whose application has not progressed in these circumstances. It would be far better for the Applicant to proceed with a new application at a future stage with the additional medical evidence that the Respondent and the Tribunal have attempted to help him to obtain.
Instead of progressing his application, the Applicant, who alleges discrimination himself, has directed offensive, abusive and discriminatory language towards the Tribunal Registry and the Respondent. The Applicant has made minimal, if any, progress with his application, and yet he has sent numerous of racist and misogynistic emails to the Tribunal and the Respondent. The Tribunal is of the opinion that continuing to tolerate such conduct, and maintaining an application where the sole progress is the sending of abusive and aggressive emails to the Tribunal Registry and the Respondent, would undermine public trust and confidence in the processes and the decision-making of the Tribunal, contrary to the Tribunal’s stated objectives in s 2A of the AAT Act.
Procedural fairness
Each of these directions, as well as the July Direction contained notes. The notes to each of these directions were identical. Note 1 provided that if a direction was not complied with, the Tribunal would list the application for a directions hearing. Note 2 stated that the Tribunal can dismiss an application under s 42A(5)(b) of the AAT Act if a person fails within a reasonable time to comply with a direction, and that the person who did not comply would be asked to explain at a directions hearing why their application should not be dismissed.
As detailed above, the Applicant was sent listing notices for both non-compliance directions hearings. He attended the first of these by telephone, where the Tribunal heard submissions regarding dismissal. The Applicant was also sent a copy of the Respondent’s submissions regarding dismissal prior to both the interlocutory dismissal application hearing and the
non-compliance directions hearing. The Tribunal is therefore satisfied that the Applicant was afforded procedural fairness and that he understood the consequences of failing to comply with a direction. It was clear from the interlocutory dismissal application hearing, and from these submissions, that a failure to proceed with his application and non-compliance with a direction could result in dismissal.
Explanation
There is limited information before the Tribunal that explains the reasons for the Applicant not proceeding with his application. In the Respondent’s submissions in support of the dismissal application, para [44], the Respondent refers to an email from the Applicant dated July 2019 where he stated that he was experiencing depression. In an email to the Conference Registrar on 18 September 2019, the Applicant referred to having a “significant commitment” on 12 November 2019 that was preventing him from focussing on his application. On Tuesday 19 November 2019 the Applicant stated, “I need more time (to process what happened to me).” He also requested copies of an NDIS booklet in this email, which may explain a slight delay.
In an email dated 10 December 2019, the Applicant requested an “extension of time due to ptsd. 4 months please.” At the hearing on 16 July 2020, the Applicant stated, “I have been suffering trauma for the last two years” (transcript/10). There is, however, no medical evidence before the Tribunal in support of these claims, with the medical evidence outlined above having specified a diagnosis of adjustment disorder for the Applicant.
At the hearing on 16 July 2020, he further stated that, “I just need sufficient time because I’ve got so much on my plate right now” and that, “once again it all comes down to timing for me. I always need more time” (transcript/19).
The Tribunal finds that the Applicant’s explanations do not adequately explain or excuse the delays in proceeding with his application. This is compounded by the increasingly abusive, aggressive and inappropriate nature of the Applicant’s email correspondence from at least 26 June 2020. From the tone of his emails, the Tribunal infers that the Applicant was frustrated that the Tribunal had sent him emails, instead of emailing and posting correspondence. As explained above, giving the Applicant the benefit of the doubt, and accepting his evidence that he did not receive and could not look at the email attachments, the Tribunal did not dismiss his application under s 42A(5) of the AAT Act on 16 July 2020. However, from the time of the non-compliance directions hearing on 16 July 2020, all correspondence was sent to the Applicant by both email and post. Thus, from this time, a failure to send items by post was no longer a satisfactory explanation for the delays in progressing the Applicant’s application, and as has been discussed above, the Applicant’s prolific offensive and aggressive email correspondence tends to suggest that he received and read the Tribunal’s email correspondence in any event.
Substantive merits
In Beard v Telstra Corp Ltd (1999) 57 ALD 376 (Beard) Spender J upheld an appeal against the dismissal of an application. Spender J stated, at 382 [32], that:
32The test under s 42A(5) of the Act is not whether there had been a failure within a reasonable time to comply with the matters which had been the subject of a successful application for an adjournment before the Tribunal at an earlier time; the test is whether, at the time of the decision made pursuant to that section, it had been demonstrated that the applicant had failed within a reasonable time to proceed with the application. In circumstances where the matter had been listed for hearing and the applicant had indicated through his solicitor that he was ready to proceed on the hearing dates (be that with or without the foreshadowed medical reports), the failure to provide the foreshadowed medical reports does not provide a basis on which the Tribunal could conclude that the applicant had failed within a reasonable time to proceed with the application. In my view, there was a misunderstanding by the Tribunal of the statutory test.
It is the Tribunal’s opinion that the current application differs from the application in Beard in that it has not sufficiently progressed to the point of being listed for a hearing. Indeed, it is most unlikely that the Applicant’s application could succeed at a hearing in the absence of further evidence. This is because there is not enough evidence for the statutory criteria regarding access to the NDIS to be assessed. That is why the Applicant has been given numerous opportunities by both the Respondent and the Tribunal to provide that evidence, culminating in the recent July Directions whereby the Respondent was going to assist him to obtain that evidence (as well as pay for it).
Additionally, s 2A was inserted into the AAT Act sometime after the Federal Court’s decision in Beard. The section was inserted by the Administrative Appeals Tribunal Amendment Act 2005 (Cth), and commenced on 16 May 2005. At that time, it read as follows:
In carrying out its functions, the Tribunal must pursue the objective of providing a mechanism of review that is fair, just, economical, informal and quick.
Thus, s 2A was not considered in Beard, and the authorities (including Charara), now make it clear that it is relevant to have regard to s 2A when deciding whether to dismiss an application.
The Applicant has also stated on several occasions that he seeks access to NDIS to
re-enter the workforce (T1, T6, T7). However, that is not consistent with the disability requirements in s 24 of the NDIS Act which, amongst other things, states that “the person is likely to require support under the National Disability Insurance Scheme for the person’s lifetime” (see s 24(1)(e) of the NDIS Act). In the Tribunal’s opinion, the medical evidence outlined by the Tribunal above does not support the disability requirements of s 24 of the NDIS Act being met, including that the Applicant’s condition is permanent, that it results in reduced functional capacity, and that the Applicant is likely to require support for his lifetime.
Prejudice to the parties
The Applicant would suffer minimal, if any, detriment if his application is dismissed. He would be free to make another application to the NDIA and to include further supporting evidence when he has been able to obtain it. Further, he is not precluded from making another application to the Tribunal for review in the future if that application was unsuccessful.
The Respondent submitted that “it would be prejudiced because of the delay in circumstances where the applicant’s impairments for which he is seeking access to the NDIS is unclear, and the preliminary steps in the proceedings have yet to be completed by the applicant” (Exhibit 5, para [46]). The Tribunal agrees. There have been three conferences, five directions, several reminders from the Conference Registrar, one interlocutory dismissal hearing and one non-compliance directions hearing in this application, and the Applicant’s application has not progressed, except for one page of evidence (referred to above) being filed. This frequency of contact with the Tribunal would most likely have contributed to increased costs for the Respondent, as well as consuming the Tribunal’s resources.
Conclusion regarding s 42A(5) dismissal
For the reasons outlined above the Tribunal dismisses the application under s 42A(5)(a) of the AAT Act because the Applicant has failed within a reasonable time to progress with his application.
In the alternative, the Tribunal dismisses his application under s 42A(5)(b) of the AAT Act because the Applicant has failed within a reasonable time to comply with a direction.
DISMISSAL FOR FAILURE TO APPEAR
Section 42A(2) of the AAT Act provides, in part, as follows:
(2)If a party to a proceeding before the Tribunal in respect of an application for the review of a decision (not being the person who made the decision) fails either to appear in person or to appear by a representative at a directions hearing, or an alternative dispute resolution process under Division 3, held in relation to the application, or at the hearing of the proceeding, the Tribunal may:
(a)if the person who failed to appear is the applicant--dismiss the application without proceeding to review the decision; or …
Section 42A(7) relevantly provides:
(7)Before exercising its powers under subsection (2), the Tribunal must be satisfied that appropriate notice was given to the person who failed to appear of the time and place of the directions hearing, alternative dispute resolution process or hearing, as the case may be.
As outlined above, the Applicant failed to appear at the non-compliance directions hearing on 4 September 2020.
The Tribunal is satisfied that he had appropriate notice of the time and place of the hearing. As outlined above, he was emailed and posted a listing notice by registered post and by email on 28 August 2020. He responded to this email on 29 August 2020, where he stated, in summary, that he did “not make contracts with filthy lying discriminators”. The Applicant received further notice of the hearing on 2 September 2020 when the Respondent emailed and posted submissions requesting revocation in anticipation of the hearing, to which he responded, “Getfuckedscumbag”. Additionally, as outlined above, the Applicant was telephoned on the morning of the hearing but swore at the hearing attendant and hung up. He was telephoned another three times after the commencement of the hearing but did not answer his telephone.
Consequently, and in the alternative, the Tribunal dismisses the Applicant’s application under s 42A(2) of the AAT Act because he failed to appear at the non-compliance directions hearing on 4 September 2020.
DECISION
For the reasons outlined above, the Tribunal is satisfied that it is appropriate to dismiss the Applicant’s application seeking review of the Reviewable Decision. As noted above, this does not preclude him from making a new application for access to the NDIS in the future, and if that application is not successful, from seeking review by the Tribunal in the future.
The Tribunal dismisses the Applicant’s application seeking review of the Reviewable Decision:
(a)under s 42A(5)(a) of the AAT Act because the Applicant failed within a reasonable time to progress with his application; and
(b)in the alternative, under s 42A(5)(b) of the AAT Act because the Applicant failed within a reasonable time to comply with the Tribunal’s Direction of 17 July 2020; and
(c)in the alternative, under s 42A(2) of the AAT Act because the Applicant failed to appear at the non-compliance directions hearing on 4 September 2020 having had appropriate notice of the time and place of the hearing.
I certify that the preceding 97 (ninety-seven) paragraphs are a true copy of the reasons for the decision herein of Senior Member Dr M Evans-Bonner
........................................................................
Associate
Dated: 22 September 2020
Date of hearing: 4 September 2020 Applicant: Self-represented Counsel for the Respondent: Ms S Anicic Solicitors for the Respondent: Australian Government Solicitor
11
0