Palmer Aviation Pty Ltd and Air Services Australia The Age newspaper OTHER PARTY

[2015] AATA 258

[2015] AATA 258 

Division	GENERAL ADMINISTRATIVE DIVISION
File Number	2014/5090
Re	Palmer Aviation Pty Ltd
APPLICANT
And	Air Services Australia
RESPONDENT
And	The Age newspaper
OTHER PARTY

DECISION

Tribunal	Deputy President P E Hack SC
Date	24 April 2015
Place	Brisbane

The application is dismissed pursuant to s 42A(5) of the Administrative Appeals Tribunal Act 1975 (Cth).

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Deputy President P E Hack SC

CATCHWORDS

PRACTICE AND PROCEDURE – failure to attend hearing – whether application should be dismissed – application dismissed

REASONS FOR DECISION

Deputy President P E Hack SC

24 April 2015

1. This is an application by Palmer Aviation Pty Ltd to review a decision, originally made by the respondent, Air Services Australia Pty Ltd, which responded to a request by the Other Party, The Age newspaper. That request sought access to documents held by Air Services Australia giving details of the flight movements of an aircraft with tail number M-ATAR during 2011, 2012 and 2013. Palmer Aviation is the operator of that aircraft.

2. The decisional history is chequered. For present purposes it is sufficient to say that the antecedent decision is the decision of the Information Commissioner holding that the Age newspaper was entitled to access to the one document identified.

3. These proceedings were commenced as long ago as 1 October 2014. The history of the applicant to date has been one that has created considerable difficulties in the case management of the proceedings. On its face, the issue is fairly simple and needs no great preparation, yet at the directions hearing in early December of last year I was informed by the representative of the applicant it would need six weeks to prepare its material. I gave that period of time and directed that the applicant “lodge and serve any witness statements and any other evidence on which it intended to rely on at the hearing together with a Statement of Facts, Issues and Contentions by 30 January 2015”. On that day, the applicant lodged a document which did not, by any stretch of the imagination, comply with the Tribunal’s General Practice Direction about what is required in a Statement of Facts and Contentions; it did nothing more than recite the decisional history and contend in three paragraphs that, for example “the applicant maintains that the documents should not be released according to the FOI Act s 47 or otherwise”. It was not accompanied by any witness statements or any other evidence.

4. As a consequence of my dissatisfaction with the state of that document and after hearing from the parties, I made a direction requiring the applicant to lodge a Statement of Facts, Issues and Contentions that complied with the General Practice Direction. A somewhat more fulsome document was lodged by the applicant on 31 March 2015. It is slightly more informative but does not articulate the argument to any great extent.

5. More recently, on Monday 20 April 2015 the applicant’s representative, who I gather is a solicitor with a practising certificate and employed by Mineralogy Ltd, wrote to the Tribunal advising that Palmer Aviation Pty Ltd would not be appearing at the hearing and would rely on its written submissions. The email then went on, curiously, to say that Palmer Aviation would abide by the decision of the Tribunal. It appears to me, with respect, that the author of the document does not understand the meaning of that phrase. In order to deal with that request and with the request by the other party, who is a journalist with The Age newspaper, not a lawyer, to appear by telephone, I conducted a directions hearing in the afternoon of 20 April 2015. After hearing from the applicant as to why it sought not to appear I refused the application to be absent at the hearing and warned, or made them the solicitor aware, of the Tribunal’s power to dismiss if a party failed to attend.

6. The hearing commenced this morning, Ms Stewart, the solicitor representing the respondent, is present having travelled from Canberra and for that courtesy I thank her. Mr Vedelago, representing The Age newspaper, is present by telephone. There has been no appearance from the applicant. Tribunal staff who have contacted the applicant’s representative have been informed that that is a conscious choice on the part of the applicant not to be present and that it is aware of the potential for the proceedings to be dismissed.  Again, its representative says, it relies upon its submissions.

7. Proceedings in the Tribunal of this nature are proceedings where it is expected that an applicant will attend and articulate its argument. Whilst there is no onus of proof in the Tribunal, in the strict sense, the settled jurisprudence is that it is for the party who wishes a decision to be changed to demonstrate why that should be. It is for that reason that I declined the request by the applicant not to be present today and why at the outset I said that it was not the sort of case that I considered was capable of being determined on the papers under s 34J of the Administrative Appeals Tribunal Act 1975 (Cth).

8. The inference overwhelmingly is that the applicant does not seek to prosecute the matter and has made a conscious choice not to attend.

9. There is undoubtedly power under s 42A(2) to dismiss an application if a party fails to appear. There is also a power under subsection (5) of that section to dismiss an application if an applicant fails within a reasonable time to proceed with the application. As it seems to me the applicant here has failed within a reasonable time to proceed with the application by its non-appearance today. I propose in the circumstances to dismiss the application pursuant to s 42A(5) of the Administrative Appeals Tribunal Act 1975 (Cth). I make it plain that had I not dismissed the application under that section I would certainly have dismissed it under subsection (2) of that section.

10. There will be orders accordingly.

I certify that the preceding 10 (ten) paragraphs are a true copy of the reasons for the decision herein of Deputy President P E Hack SC

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Associate

Dated 24 April 2015

Date of hearing	24 April 2015
Applicant	No appearance
Respondent	Ms K Stewart, In person
Joined Party	Mr C Vedelago, In person