O'Loughlin and Secretary, Department of Families, Community Services and Indigenous Affairs and Anor

[2007] AATA 1633

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2007] AATA 1633

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No T2006/34

GENERAL ADMINISTRATIVE  DIVISION		)
Re		ANASTASIA O'LOUGHLIN

Applicant

And

SECRETARY, DEPARTMENT OF FAMILIES, COMMUNITY SERVICE & INDIGENOUS AFFAIRS

         1^st Respondent

SECRETARY, DEPARTMENT OF EMPLOYMENT AND WORKPLACE RELATIONS

2^nd Respondent

DECISION

Tribunal Ms A F Cunningham (Senior Member)

Date2 August 2007

PlaceHobart

Decision The application for reinstatement is dismissed.

.(Sgd)  Ms A F Cunningham

Senior Member

CATCHWORDS

Application for reinstatement of application dismissed under Section42A(5) – failure to proceed with application – not dismissed in error – application refused

LEGISLATION

Social Security Act 1991

Administrative Appeals Tribunal Act 1975, Sections 42A(2), 42A(5), 42A(8), 42A(9), 42A(10)

REASONS FOR DECISION

2 August 2007 Ms A F Cunningham (Senior Member)   

1.      An application has been made for reinstatement of an application for review of a decision of the Social Security Appeals Tribunal (SSAT) dated 10 January 2006.  The SSAT affirmed decisions made by a Centrelink Officer to raise and recover pension overpayments on the basis that the applicant was in a marriage-like relationship and therefore a member of a couple for the purposes of the Social Security Act 1991.

2.      The Application for Review was filed with the Tribunal on 14 March 2006.  The application was finally listed for hearing on 23 March 2007 after the convening of three pre-hearing conferences, the determination of an application to join the proceedings and other interim issues associated with the application.

3.      The Tribunal has the benefit of a transcript of the hearing of the proceedings which took place in Burnie on 23 March 2007. The transcript shows that the hearing commenced at 10.26 a.m. and concluded at 10.44 a.m. Due to the applicant’s failure to proceed with the hearing following a short adjournment the Tribunal determined to dismiss the application pursuant to the provisions of section 42A(5) of the Administrative Appeals Tribunal Act 1975.

4.      The applicant’s application for reinstatement was received by the Tribunal on 27 April 2007.  In her written application the applicant states that she has been under a great amount of stress lately, that her children have been sick, her son has been having serious asthma attacks and she has had ‘a great deal of trouble getting a lawyer to stay with me until the date of any meeting, they all pull out or retire just as there is due to be a meeting.’  The applicant also seeks time to find a lawyer as she feels she is unable to represent herself.  The applicant concedes that she has already had plenty of time to do this but submits that her case had been transferred from lawyer to lawyer.  The applicant apologizes for her ‘disappearance at the hearing’ but states that she was ‘frustrated and stressed to the extreme where I just didn’t care anymore’.

5.      The application for reinstatement is opposed by the respondent who provided written submissions.

6.      The transcript reveals that the Tribunal granted a recess for ten minutes at 11.00 a.m.  When the Tribunal resumed at 11.33 a.m. there was no appearance by the applicant.  Contact was made with the applicant by her mobile telephone.  The applicant was in tears and said that she was sorry but was unable to continue with the hearing.

7. Section 42A(5) of the Act provides:

“42A(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.”

8.      There are two provisions within Section 42A that provide for reinstatement of an application that has been dismissed. Subsection 42A(8) in conjunction with subsection 42A(9) refer to an application that was dismissed under the operation of section 42A(2) which states as follows:

“42A(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

(b)       in any other case – direct that the person who failed to appear shall cease to be a party to the proceeding.”

9.      Subsections 42A(8) and (9) read as follows:

“42A(8)          If the Tribunal, under subsection (2), has dismissed an application (other than an application in respect of a proceeding in which an order has been made under subsection 41(2), the person who made the application may, within 28 days after receiving notification that the application has been dismissed, apply to the Tribunal for reinstatement of the application.

42A(9)           If it considers it appropriate to do so, the Tribunal may reinstate the application and give such directions as appear to it to be appropriate in the circumstances.”

10.     The Tribunal accepts the respondents submission that both subsections 42A(8) and (9) relate to the reinstatement of an application that has been dismissed under Section 42A(2) for failure of an applicant to appear.  This proposition is endorsed by the full Federal Court in its decision Brehoi v Minister for Immigration and Multicultural Affairs (1999) 58 ALD 385 at 389 where it is stated.

“It will be noticed that, although S42A(8) only deals with dismissals under Section 42A(2), S42A(10) is not so limited.  It therefore applies to dismissals, not only under Section 42A(2), but also under Section 42A(1), (4) and (5).”

11.     The applicant’s application was not dismissed under Section 42A(2) but under Section 42A(5) on the basis that she failed to proceed with her application. The only other relevant section relating to reinstatement of an application is subsection 42A(10) which reads as follows:

“42A(10)        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 and give such directions as appear to it to be appropriate in the circumstances.”

12.     There is nothing in the applicant’s application for reinstatement that persuades the Tribunal that the decision to dismiss her application was made in error.  The Tribunal’s determination to dismiss the application was made on the basis that the applicant failed within a reasonable time to proceed with her application.  The applicant was afforded and agreed to a ten minute adjournment of the proceedings in order to attend to her child.  The applicant left the premises where the hearing was being conducted and failed and refused to return despite a request to do so made by telephone contact on her mobile phone.  She offered no reasonable excuse or explanation for her refusal to return except an apology that she was unable to do so.

13.     The Tribunal is not persuaded that there are any circumstances that justify a reinstatement of this application.  The hearing was listed some twelve months after the filing of the application for review, three conferences were held prior to the hearing, the last being convened on 7 November 2006.  The applicant provided no witness statements and the transcript indicates that she offered little by way of evidence in support of her application for review.  The party joined to the proceedings, Tony Lockett who is also the alleged partner of the applicant, failed to attend the hearing to give evidence in support of the applicant’s appeal.  There was no explanation for his failure to appear and the Tribunal ordered that Tony Lockett no longer be joined as a party to the proceedings.  The hearing of the appeal was convened in Burnie for the convenience of the applicant.

14. This application for reinstatement is to be determined by the Tribunal in accordance with the provisions of subsection 42A(10). For the above reasons the Tribunal is not persuaded that the application was dismissed in error as required by the provisions of this subsection but is satisfied that the application was dismissed because the applicant failed within a reasonable time to proceed with her application for review in accordance with the provisions of section 42A(5) of the Act.

15.     Accordingly the applicant’s application for reinstatement is dismissed.

I certify that the 15 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member Ann Cunningham (Part-Time Member)

Signed:   H Healy (Administrative Assistant)

Date/s of Hearing  Decided on the Papers
Date of Decision  2 August 2007
Counsel for the Applicant          Ms A O’Loughlin
Solicitor for the Applicant           Self-represented
Counsel for the Respondent     Mr B Sparkes
Solicitor for the Respondent      Centrelink Legal Services