Naylor and Secretary, Department of Social Services (Social services second review)
[2018] AATA 4574
•10 December 2018
Naylor and Secretary, Department of Social Services (Social services second review) [2018] AATA 4574 (10 December 2018)
Division:GENERAL DIVISION
File Number: 2016/5200
Re:Garth Naylor
APPLICANT
AndSecretary, Department of Social Services
RESPONDENT
DECISION
Tribunal:Brigadier AG Warner, Member
Date:10 December 2018
Place:Perth
The Applicant’s application for a review of the decision of the Social Security and Child Support Division of the Administrative Appeals Tribunal dated 6 September 2016 is dismissed.
...................[sgd].....................................................
Brigadier AG Warner, Member
CATCHWORDS
PRACTICE AND PROCEDURE – Secretary’s request to dismiss the Applicant’s application for review of decision of the Social Security and Child Support Division of the Administrative Appeals Tribunal – whether applicant fails within a reasonable time to proceed with the application – substantive application has poor prospects of success – application for review dismissed
LEGISLATION
Administrative Appeals Tribunal 1975 (Cth) – s 2A – s 33(1)(b) – s 42A(5) – s 42A(5)(a) – s 42B(1)(b)
Social Security Act 1991 (Cth) – s 94(1)(b)
CASES
Berry v Commissioner of Taxation [2015] FCA 1244
Charara v Commissioner of Taxation [2016] FCA 451
REASONS FOR DECISION
Brigadier AG Warner, Member
10 December 2018
INTRODUCTION
Mr Naylor has applied for review of a decision of the Social Security and Child Support Division of the Administrative Appeals Tribunal (AAT1), made on 6 September 2016, which affirmed the decision of a Centrelink Authorised Review Officer (ARO) to reject Mr Naylor’s claim for Disability Support Pension (DSP) which he had lodged on 11 January 2016.
The matter was listed for hearing before this Tribunal on 17 August 2017 but did not proceed because Mr Naylor travelled to the United Kingdom due to the failing health of his father. Mr Naylor’s father subsequently died and Mr Naylor has not returned to Australia.
In the course of the proceedings in the Tribunal, the Respondent has requested that the Tribunal dismiss the application under s 42A(5) of the Administrative Appeals Tribunal Act 1975 (Cth) (the AAT Act).
An interlocutory hearing was conducted in Perth on 16 October 2018 at 2:00pm WST. Attempts to establish telephone contact with Mr Naylor prior to and on commencement of the hearing were unsuccessful. Mr Burgess of Spark Helmore Lawyers represented the Respondent and attended the interlocutory hearing in person.
BACKGROUND
On 6 September 2016, the AAT1 affirmed the ARO decision to reject Mr Naylor’s DSP claim (para 1 above refers). The AAT1 determined that Mr Naylor’s medical conditions generated no impairment points and he did not satisfy s 94(1)(b) of the Social Security Act 1991 (Cth) (the Act).
On 29 September 2016, Mr Naylor lodged his Application for Review to the Tribunal (T2) and on 9 June 2017 the Tribunal listed the matter for hearing on 17 August 2017.
On 14 August 2017, Mr Naylor requested an adjournment, stating as follows:
Sorry, but due to health concerns with my ageing parents, I have had to return to the UK and will not be able to attend on that date.
I do NOT wish to attend by phone, I wish to attend in Person. so will need a postponement (Exhibit 1, Annex A).
On 14 August 2017, the Tribunal requested from Mr Naylor the timeframe for the postponement and Mr Naylor replied as follows:
Sorry [reference omitted].
But I don't have one,
I could ask my farther (sic) to hurry up and die, if that would make it easier for the member!
Cheers Garth (Exhibit 1, Annex A).
On 15 August 2017, the Respondent consented to Mr Naylor’s request for an adjournment (Exhibit 1, Annex B), and the Tribunal advised the parties that the hearing listed for 17 August 2017 was vacated (Exhibit 1, Annex C).
On 4 May 2018, the Respondent requested that the matter be relisted for hearing (Exhibit 1, Annex D). Mr Naylor subsequently requested that the Tribunal hold the matter in abeyance indefinitely, stating as follows:
Sorry, but I am still in the UK, as advised, my Father passed away.
As you are aware, I have my own health problems. And my Mother is old, and not well, not coping with the loss of her partner of more than 50 years.
I do not have a date that I am planning to return yet, and would like you to hold off on re-listing till (sic) I return.
Cheers Garth (Exhibit 1, Annex E).
On 10 May 2018, the Respondent requested that the matter be listed for hearing and suggested that Mr Naylor be given leave to appear by telephone. It was also submitted that to hold the matter in abeyance for an indefinite period of time is contrary to the Tribunal’s objectives as set out in s 2A of the AAT Act (Exhibit 1, Annex F).
On 12 June 2018, Mr Naylor requested that the hearing be postponed until he returned to Australia, but did not provide details as to when he was expected to return to Australia (Exhibit 1, Annex I).
On 13 June 2018, the Tribunal requested that Mr Naylor advise his availability to attend a directions hearing so that both parties could discuss a way forward. Mr Naylor replied that “I am not real keen on agreeing to a Telephone Directions Hearing”. He also advised that he was pursuing a claim under the Scheme for Compensation for Detriment caused by Defective Administration (the CDDA Scheme):
Please ask the member to delay any action, and I will over the next few months, put a letter together. I will engage the Secretary, (and I believe that) Michael Keenan is now Minister for Human Services, with the intention to resolve my CDDA claim. As this is the best way to make this Tribunal hearing, ‘no longer necessary’ for me (Exhibit 1, Annex J).
On 19 July 2018, the Respondent requested that the matter be listed for a final hearing and in the alternative, if the Tribunal was not minded to list the matter for a final hearing, then the matter should be listed for a directions hearing (Exhibit 1, Annex J). Mr Naylor declined to participate in a directions hearing, and in an email on 19 July 2018 stated as follows:
Sorry, but I have to stay my course…I can not (sic) agree to rushing it through …just for the sake of rushing it through.
But you might ask the Secretary to reply to my emails…It might turn out to be in ‘their’ mutual benefit. I’ll spell it out, I could offer them information that would save them ten foaled (sic) what they owe me. But realize ‘normally’ I am a moral abiding person, that would have offered this information out freely, but as I feel that the department has lied and cheated ‘me’. I am not feeling very ‘morally motivated’, Yet! (and when I say ten foaled (sic)…I know that they and the tax man, are losing, paying out over $40k per year for at least the last 10 years that I know of, that I could prove.. So another couple of years, that will be half a mill.)
So tell the Secretary to keep messing me about, and they will never know… (Exhibit 1, Annex K).
On 8 August 2018, the Respondent requested that Mr Naylor’s application be dismissed under s 42A(5) of the AAT Act, and the Tribunal subsequently listed the matter for an interlocutory hearing on 16 October 2018 to hear the application for dismissal (Exhibit 1, Annex N).
ISSUE
The Respondent has requested that the Tribunal dismiss Mr Naylor’s application for review of a DSP decision made by the AAT1 on 6 September 2016 (paras 1 and 5 above refer). The following issues arise for consideration:
(i)Has Mr Naylor failed to proceed with his application?
(ii)If so, has he failed to proceed within a reasonable time?
(iii)If so, should the discretion to dismiss be exercised?
LEGISLATION AND AUTHORITIES
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.
Section 2A of the AAT Act details the Tribunal’s objectives and states that:
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.
Section 33(1)(b) of the AAT Act provides:
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.
The Respondent cites Berry v Commissioner of Taxation [2015] FCA 1244 at [35] in submitting that “The power to dismiss an application without proceeding to a hearing is one of the means available to the Tribunal to assist in achieving this objective” (Exhibit 1, para 3.4).
The Federal Court detailed the principles applicable to an application to dismiss under s 42A(5) of the AAT Act in Charara v Commissioner of Taxation [2016] FCA 451. The Court referred to the following principles at paragraphs [112] to [115] which are applicable in this matter:
(1) the discretionary power is only enlivened if an applicant fails to proceed with the application and fails to do so ‘within a reasonable time’;
(2) the discretion is to be used ‘sparingly and as a matter of “last resort”’;
(3) the applicant must be afforded procedural fairness;
(4)the explanations and arguments put forward by the applicant are mandatory relevant considerations.
EVIDENCE
The Tribunal had before it the following evidence:
·Respondent’s Submissions in Support of Application to Dismiss, dated 27 August 2018, including Annexures A-N (Exhibit 1);
·the T Documents (T1-T64, pp 1-371) (Exhibit 2);
·Supplementary T Documents (ST2-ST13, pp 375-437) (Exhibit 3);
·Applicant’s Submission dated 10 April 2017 (Exhibit 4);
·Secretary’s Statement of Facts, Issues and Contentions, dated 19 December 2016, including Annexures A-E (Exhibit 5); and
·Secretary’s Supplementary Submissions under covering letter dated 16 May 2017 (Exhibit 6)
CONSIDERATION
The Respondent is not seeking dismissal of Mr Naylor’s application under s 42B(1)(b) of the AAT Act – “has no reasonable prospects of success” – and it is not necessary or appropriate for the Tribunal to conduct a merits review of Mr Naylor’s substantive application in the present interlocutory proceedings. However, having regard to Mr Naylor’s circumstances and to afford him procedural fairness (see paragraph 21), the Tribunal considers it prudent to look at the prospects of success in the context of the present dismissal application.
Accordingly, the Tribunal has reviewed the AAT1 decision made on 6 September 2016 (T2, pp 3-9) together with the material which would have been before the Tribunal on 17 August 2017 had the hearing not been vacated (Exhibits 2-6). The Tribunal notes that the relevant period for the determination of Mr Naylor’s qualification for DSP is 11 January 2016 to 10 April 2016 (Exhibit 5, para 14). The Tribunal also notes that the sole reason for Mr Naylor not proceeding with the matter on 17 August 2017 was his departure from Australia due to the deteriorating health of his father. There was no indication then, nor since, that Mr Naylor intended to provide further evidence or material relevant to the consideration of his substantive DSP claim. Having carefully considered the evidence and the circumstances, the Tribunal concludes that Mr Naylor’s substantive application has very poor prospects of success.
Tribunal now turns to the issues for consideration (see para 16 above).
Has the Applicant failed to proceed with his application?
The Respondent submits that Mr Naylor has failed to proceed with his application and relies on the following:
Following the Applicant’s refusal to attend a hearing by telephone the Tribunal requested that the Applicant provide his availability to attend a directions hearing so that both parties could discuss a way forward.
The Applicant has refused to engage in a directions hearing by telephone to allow the parties to progress the application and his explanation does not provide substantive reasons for not proceeding with a directions hearing. The Applicant relevantly stated per his email dated 13 June 2018 that he is ‘not real keen on agreeing to a Telephone Directions Hearing’ (Exhibit 1, para 3.7).
Having regard to the evidence and being cognisant of Mr Naylor’s circumstances, the Tribunal is satisfied that Mr Naylor has failed to proceed with his application.
Has the Applicant failed to proceed with his application “within a reasonable time”?
The Respondent submits that Mr Naylor has failed to proceed with his application within a reasonable time and relies on the following (Exhibit 1, para 3.8(e)):
·The Application for Review was lodged on 29 September 2016. The Application for Review will have been on foot for more than two years as at the date of the upcoming interlocutory hearing listed for 16 October 2018.
·In circumstances where the Applicant has filed further evidence and submissions and the Secretary has filed SFICs and supplementary SFICs, the Secretary submits that this matter has been ready for hearing since the previous listing of the substantive application namely, since 17 August 2017, approximately one year ago.
·The substantive application concerns review of a decision of the Social Security and Child Support Division of the Administrative Appeals Tribunal, made on 6 September 2016 which affirmed a decision to reject the Applicant’s claim for Disability Support Pension. The Secretary submits that applications of this kind can reasonably be expected to be finalised within 12 months of lodgement of the Application for Review. This is supported by the fact that the matter was listed for a substantive hearing on 17 August 2017.
·The Secretary submits the Application for Review has been ready for hearing since 17 August 2017 and the delay since 17 August 2017 is wholly because the Applicant has refused to prosecute his application within a reasonable time. Further, to date the Applicant has not provided any indication as to when he will be ready to prosecute his application.
·The Secretary acknowledges that the Applicant wishes to hold the Application for Review in abeyance for an indefinite period but the Applicant has not provided any specific timeframe as to when he is expected to return to Australia and prosecute his Application for Review. In those circumstances the Secretary submits that it is inappropriate for the Tribunal to hold the matter in abeyance indefinitely. The Secretary relies on section 2A of the AAT Act which outlines the Tribunal’s objectives and states that:
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.
(Emphasis added.)
The Respondent submits “that the substantive matter was listed for hearing over one year ago on 17 August 2017. Considering the complexity of the substantive matter, the delay since 17 August 2017 does not accord with the Tribunal’s objective to provide a mechanism of review that is quick” (Exhibit 1, para 3.9). The Tribunal agrees.
The Tribunal notes that Mr Naylor has not acted on his advice of 13 June 2018 that “I will over the next few months, put a letter together” (Exhibit 1, Annex J), and having regard to all the material before it and careful and sympathetic regard for Mr Naylor’s personal situation, is satisfied that Mr Naylor has not proceeded with his application “within a reasonable time”.
Should the discretion to dismiss the application be exercised?
The Respondent submits that the Tribunal should exercise the discretion to dismiss Mr Naylor’s application for the following reasons:
·The Tribunal cannot be satisfied as to the likely time when the matter would be ready to proceed to final hearing given the Applicant’s refusal to attend a directions hearing.
·Further, the Applicant has not provided any indication as to when he might return to Australia and prosecute his application.
·To permit this matter to be held in abeyance indefinitely does not align with the Tribunal’s objectives to provide a mechanism of review that is ‘quick’ nor does it align with the requirement referred to in s 33(1)(b) of the AAT Act which provides: ‘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’.
·Further, to permit a matter of this kind to continue in the manner in which it has for more than two years would not align with the Tribunal’s objective of providing a mechanism of review that is ‘fair’ and ‘just’ (Exhibit 1, para 3.10).
The Tribunal is satisfied that the Respondent’s reasons immediately above are supported by the evidence and circumstances of this matter, and accordingly agrees that the discretion to dismiss Mr Naylor’s application should be exercised.
CONCLUSION
The Tribunal is satisfied that Mr Naylor has failed to proceed with his application “within a reasonable time” for the reasons outlined above, and consequently accepts the Respondent’s request to dismiss Mr Naylor’s substantive application for review dated 29 September 2016 (Exhibit 1, T1).
DECISION
Pursuant to s 42A(5)(a) of the AAT Act, the Tribunal dismisses Mr Naylor’s application for review of the decision of the AAT1 made on 6 September 2016 which affirmed the decision of the ARO to reject Mr Naylor’s claim for DSP.
I certify that the preceding 34 (thirty-four) paragraphs are a true copy of the reasons for the decision herein of Brigadier AG Warner, Member
..................[sgd]......................................................
Administrative Assistant
Dated: 10 December 2018
Date of hearing: 16 October 2018 Applicant: no appearance Representative for the
Respondent:Mr A Burgess Solicitors for the Respondent:
Sparke Helmore Lawyers
Key Legal Topics
Areas of Law
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Administrative Law
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Statutory Interpretation
Legal Concepts
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Appeal
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Procedural Fairness
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Judicial Review
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Standing
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Statutory Construction
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