Nolan and Secretary, Department of Social Services (Social services second review)

[2023] AATA 3885

Nolan and Secretary, Department of Social Services (Social services second review) [2023] AATA 3885 (24 November 2023)

Division:GENERAL DIVISION

File Number(s):      2022/4383

Re:Judith Nolan

APPLICANT

AndSecretary, Department of Social Services

RESPONDENT

DECISION

Tribunal:

Date:24 November 2023

Place:Adelaide

The application for reinstatement under s 42A of the Administrative Appeals Tribunal Act 1975 (Cth) is refused.

....................[Sgnd]...........................

Senior Member George

CATCHWORDS

PRACTICE AND PROCEDURE – application for reinstatement – application for extension of time dismissed for non-attendance – reinstatement refused

REASONS FOR DECISION

Senior Member George

24 November 2023

1. Ms Judith Nolan (“the Applicant”) lodged an application for review of a decision with the Tribunal on 1 June 2022. Mr Tomaiuolo acted as her Advocate.

2. On 28 February 2023, the Tribunal sent Mr Tomaiuolo a Listing Notice as the Applicant had not complied with the Tribunal’s Directions. The Listing Notice contained the following passage:

   “The above listing is in relation to the Applicant's non-compliance with the Tribunal direction to provide material dated 15 September 2022 (and in two subsequent amended directions).

   Further directions will be established by the Tribunal for the provision of this material and all other material necessary for the matter to progress to hearing.”

3. Registry records show that on 6 March 2023, the Tribunal contacted Mr Tomaiuolo by telephone to remind him of the upcoming Directions Hearing by telephone on 7 March 2023.

4. On 7 March 2023, the Tribunal contacted Mr Tomaiuolo by telephone on 045*****51 and he did not answer. The Tribunal proceeded to dismiss the application for non-appearance and sent out a formal Order to the Parties on 8 March 2023.

5. On 8 March 2023, Mr Tomaiuolo applied for reinstatement of the application stating the following:

   “1. I did not receive any call whatsoever

   2. I did not receive any voicemails

   3. I wish to apply for reinstatement asap.”

6. On 16 March 2023, the Respondent informed the Tribunal that they do not oppose the Applicant’s request for reinstatement and said the following:

   “The Secretary does not oppose the application for reinstatement of this matter. Please find the signed notice attached.

   Noting that the last listing in this matter was a non-compliance hearing in relation to a direction for the Applicant to provide evidence, we respectfully request that should this matter be reinstated, a further directions hearing be listed to establish a timetable for the provision of further evidence by the Applicant.”

7. On 21 March 2023, the Tribunal sent out a Listing Notice to Mr Tomaiuolo for a Directions Hearing by telephone which was listed to be held on 27 April 2023.

8. On 26 April 2023, the Tribunal contacted Mr Tomaiuolo by telephone and reminded him of the upcoming Directions Hearing by telephone on 27 April 2023. The Tribunal explained to Mr Tomaiuolo that when he receives the call from the Tribunal it may appear as an international number.

9. On 27 April 2023, the Tribunal contacted Mr Tomaiuolo by telephone on 045*****51 and he did not answer the telephone. The Tribunal contacted the Applicant herself on 041*****79, and she also did not answer her telephone. The Tribunal proceeded to dismiss the application for non-appearance and sent out a formal Order to the Parties on 12 May 2023.

10. On 1 October 2023, Mr Tomaiuolo contacted the Tribunal seeking reinstatement of the application. He said the following in his email:

    “Hi mark,

    In regards to judith nolan, please accept my apologies as ive had past 3 months  shocking lethargy due to my leukemia treatment not enabling me to follow up .

    On last occassion the member somehow never contacted me on [045*****51] and as a result  the matter was dismissed unfairly

    I put in a request to 2 medical experts for judith but unfortunately 1 expert was conflict of interest whilst other left practice without advising creating all this mess

    I request this matter be reheld as a matter of respect so judith gets a fair hearing.”

11. On 24 October 2023, the Respondent opposed the Applicant’s request for reinstatement and lodged with the Tribunal their detailed submissions. The Respondent submitted that the Tribunal had been correct to dismiss the matter for non-appearance, that the Applicant had actively failed to proceed with the application, that the Respondent would suffer prejudice were the application reinstated, that the application lacked merit, and that the Applicant had an alternative avenue of relief. There is strength to all of these submissions.  

12. On 26 October 2023, the Tribunal emailed Mr Tomaiuolo the following:

    “Dear Mr Tomaiuolo,

    I write in relation to the abovementioned matter and in particular, the Applicant's request for reinstatement.

    So the Tribunal can consider the request, could the Applicant please file and serve any written submissions in reply on or before 9 November 2023.

    Please note that the issue of granting an extension of time under s 42A(11)(b) of the AAT Act will be decided on the papers.

    Yours sincerely,”

13. No submissions were received and on 14 November 2023, the Tribunal emailed Mr Tomaiuolo the following:

    “Dear Mr Tomaiuolo,

    On 26 October 2023 we sent you an email with the following:

    "I write in relation to the abovementioned matter and in particular, the Applicant's request for reinstatement.

    So the Tribunal can consider the request, could the Applicant please file and serve any written submissions in reply on or before 9 November 2023.

    Please note that the issue of granting an extension of time under s 42A(11)(b) of the AAT Act will be decided on the papers."

    Please provide your written submissions or contact the Tribunal on 08 8128 8000.

    Yours sincerely,”

14. To date, the Tribunal has not received any submissions or had any further contact from Mr Tomaiuolo or the Applicant herself.

15. The Tribunal has considered the submissions of both parties, the history of this matter, and the Tribunal’s objectives. Under section 2A(b) of the Administrative Appeals Tribunal Act 1975 (Cth) (“the Act”) it is incumbent on the Tribunal to act in a manner that is fair, just, economical, informal and quick.

16. The material before the Tribunal does not support a submission that there was any unfairness in the dismissal of the application, or injustice for that matter. The Applicant has a history of non-compliance with the Tribunal’s directions and has failed to progress this matter. The Applicant was not quick in seeking reinstatement on the second occasion and the Tribunal is satisfied that the Applicant rested on their rights. To re-instate the application now would place a burden on the Respondent, and indeed the Tribunal, that is not economical. Indeed, the Respondent would suffer prejudice were the application reinstated.

17. These are circumstances where the Applicant may simply make a new claim with updated material. On the material before it, the Tribunal regards the making of a new claim as the preferable course of action.

18. For these reasons, the application for reinstatement under s 42A of the Act is refused.

I certify that the preceding 18 paragraphs are a true copy of the reasons for the decision herein of Senior Member George

............................[Sgnd]...................................

Associate

Date of Decision:	24 November 2023
Date of Hearing:	7 March & 24 April 2023
Advocate for the Applicant:	Mr P Tomaiuolo
Solicitor for the Respondent:	Ms N Markov Services Australia