Parnell and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs

[2009] AATA 963

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2009] AATA 963

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No 2009/3292

General Administrative DIVISION		)
Re		Bradley Parnell

Applicant

And Secretary, Dept of Families, Housing, Community Services and Indigenous Affairs

Respondent

DECISION

Tribunal Senior Member Jill Toohey

Date11/12/2009

PlaceSydney

Decision For the reasons given both orally and in writing, the Tribunal dismisses the application pursuant to s 42A(2)(a) of the Administrative Appeals Tribunal Act 1975 (Cth).

.................[sgd].............................

Senior Member

CATCHWORDS

SOCIAL SECURITY - disability support allowance - compensation preclusion period - failure by applicant to comply with Tribunal’s directions to lodge documents in support of application - failure by applicant to appear at hearing - whether application should be adjourned or proceed in absence of the applicant - whether application should be dismissed - application dismissed pursuant to s 42A(2)(a)

RELEVANT ACTS:

Administrative Appeals Tribunal Act 1975 (Cth)

Protected Estates Act 1983 (NSW)

REASONS FOR DECISION

11/12/2009 Senior Member Jill Toohey           

1.Bradley Parnell suffered serious injuries at work in April 2000 when a horse kicked him in the head.  His claim for compensation was settled in September 2008 for approximately $815,000 plus costs.  After deductions for workers compensation payments, legal fees, and money owed to the Child Support Agency, Mr Parnell received approximately $213,700.  It has been difficult to establish the precise amount and it appears that Mr Parnell may have subsequently received around $150,000 on account of his legal costs.  In any event, by January 2009 only about $8000 remained and that too was gone within a short time.

2.In December 2008 Mr Parnell applied for a Disability Support Pension.  Centrelink refused his application on the ground that his compensation payment meant he was subject to a preclusion period during which he was not entitled to a pension or benefit.  Centrelink calculated the preclusion period to be from 15 September 2008 to 1 May 2016.

3.The Social Security Appeals Tribunal (SSAT) reduced the preclusion period by four years so that it would end on 1 May 2012.

4.On 16 July 2009 Mr Parnell asked this tribunal to review the SSAT’s decision.  After several directions hearings, the matter was listed for hearing on 11 December 2009 in Gosford.  Mr Parnell did not appear at the hearing.

5.For the following reasons, I have dismissed Mr Parnell’s application under s 42A(2)(a) of the Administrative Appeals Tribunal Act 1975 because of his failure to appear at the hearing.

The SSAT’s decision

6.The SSAT decided there were special circumstances that made a reduction in the preclusion period to 1 May 2012 appropriate.  The special circumstances were, firstly, a medical report stating that Mr Parnell suffers a permanent cognitive deficit which, although not requiring the application of the (then) Protected Estates Act1983 (NSW), would markedly reduce his efficiency in managing his settlement funds. The SSAT also took into account what it described as Mr Parnell’s “extraordinary” legal costs.

7.The SSAT expressed its concern that Mr Parnell may have a gambling problem.  In particular, his bank statements showed over $52,000 withdrawn at automatic teller machines at local clubs between mid-November 2008 and mid-January 2009.  The decision records that Mr Parnell told the SSAT that he began gambling on Keno, but only in small amounts, and the rest would go towards other costs.  The SSAT expressed its concern about this but decided it could not take the matter further.

Mr Parnell’s application for review – directions hearings

8.The Tribunal received Mr Parnell’s application for review on 16 July 2009 and listed it for a preliminary conference on 1 September 2009.  At that conference, Mr Parnell asked for an expedited hearing on the ground that he had no money, no income and his situation was dire.  The Tribunal agreed to his request and listed his application for hearing on 10 September 2009.

9.Shortly after the hearing started on 10 September 2009, Mr Parnell had to leave the hearing room.  He explained that he was having a panic attack because he was in a high rise building, in a room without windows.  The hearing was adjourned to a telephone directions hearing the following day so that arrangements could be made for a more suitable venue.

10.At the telephone directions hearing on 11 September 2009, Mr Parnell outlined the basis of his application.  He said he had to borrow a total of about $200,000 from family and others over the eight years that his claim took to finalise just to survive financially; by the time he had repaid these loans, paid other debts, and bought himself and his two sons cars, nothing was left of his settlement monies. 

11.Mr Parnell was adamant that he could provide statements from family members and friends about monies lent to him as well as proof of his repayments to them, proof of all other debts he had paid, and the receipts for purchase of the motor vehicles.

12.The respondent’s solicitor advised that she had been trying for some months, without success, to obtain this information from Mr Parnell.  She said, and Mr Parnell did not dispute, that he had been on notice of the information the respondent was seeking since January 2009 when he contacted Centrelink seeking to have the decision to impose the preclusion period reviewed.

13.As Mr Parnell insisted he could provide all the information quickly, I made an order that he provide all relevant information and documents by 16 September 2009.  The terms of the order set out in detail the information to be provided and I emphasised to Mr Parnell the importance of complying with the order.  He insisted he would have no difficulty complying.

14.Mr Parnell did not provide any information or documents by 16 September 2009.  At a further telephone directions hearing on 17 September 2009, he gave assurances that family members were preparing statements about monies they lent him, that he would obtain bank statements as evidence of his repayments, and that he had all the receipts for other payments.

15.Mr Parnell also assured me he could attend a hearing as long as it was on the ground floor in a room with windows to the outside.  A suitable room was found at the Gosford Court House and the application was listed for hearing on 11 December 2009. 

16.I extended to 26 November 2009 the time for Mr Parnell to provide the information and documents he was relying on and listed the matter for a further directions hearing on 27 November 2009 to ensure that all was ready for the hearing on 11 December 2009.

17.Neither the Tribunal nor the respondent received any material from Mr Parnell by 26 November 2009.  At the telephone directions hearing on 27 November 2009, he again assured the respondent and me that he had all the necessary information and documents and said that family members would be bringing their statements to the hearing. 

18.At each directions hearing I impressed on Mr Parnell the importance of providing his material on time and the possible consequences of his failure to do so; in particular that it would be open to the respondent to apply for his application to be dismissed. 

19.On each occasion Mr Parnell was adamant that he had all the information to support his claims, or that others had the information, and that it would be provided in accordance with the Tribunal’s directions.  The only exception was his brother to whom he said he had repaid $50,000 by cheque but with whom he had fallen out.  However, even after the Tribunal explained to Mr Parnell that his own bank statement should show this cheque being cleared, he has not produced evidence of the repayment.

The hearing on 11 December 2009

20.On the afternoon of 10 December 2009, Mr Parnell’s mother telephoned the Tribunal to say she was worried that he was suffering from stress at the prospect of the hearing and was mentally unwell.  Later that afternoon Mr Parnell himself contacted the Tribunal stating that he would not be able to attend the hearing and that he would provide a medical certificate to confirm this; in fact, he said, he would be able to provide two medical certificates.  However, he could not provide them before the hearing. 

21.Mr Parnell was advised by the Tribunal that the respondent had indicated it would seek to have his application dismissed if he did not appear and that, in the absence of a medical certificate, the hearing would proceed, if only to give the respondent the opportunity to make any application and to decide how to proceed.

22.Mr Parnell’s mother and Mr Robert Martin, both of whom Mr Parnell claimed had lent him large sums of money over the years, appeared at the hearing under a summons issued at the request of the respondent.  Both said he was under severe stress at the prospect of the hearing.  

23.The respondent submitted that, in light of its history, Mr Parnell’s application should be dismissed under s 42A(2)(a) of the Administrative Appeals Tribunal Act 1975 (the Act) for his failure to appear; alternatively, it should be dismissed under s 42A(5) for his failure to comply within a reasonable time with the Tribunal’s direction to file and serve documents.

24.Two further possibilities presented themselves, one being to adjourn the hearing to another date, the other to proceed in Mr Parnell’s absence by virtue of the power in s 40(1)(b) of the Act.

25.Both s 40(1)(b) and s 42A(2)(a) require the Tribunal to be satisfied that Mr Parnell has had notice of the hearing. Section s 40(1)(b) requires “appropriate” notice; s 42A(2)(a) requires “reasonable” notice. There is no question that Mr Parnell has had appropriate and reasonable notice of the hearing.

Reasons for dismissing the application under s 42A(2)(a)

26.The Tribunal must pursue the objective of providing a mechanism of review that is fair, just, economical, informal and quick: s 2A of the Act.    

27.The Tribunal must afford parties procedural fairness.  In particular, the Tribunal must ensure that every party to a proceeding is given a reasonable opportunity to present his or her case including the opportunity to inspect any documents to which the Tribunal proposes to have regard in reaching its decision: s 39(1).

28.I do not think that an adjournment is appropriate in the circumstances.  The history of the proceedings strongly suggests that relisting the matter to a later date will make little, if any, difference.  Mr Parnell’s mother says he will be obtaining a medical certificate about his inability to appear at the hearing, but even that is questionable given his failure to produce any other form of documentation to date.

29.I do not think that proceeding in Mr Parnell’s absence is a satisfactory way to deal with this matter.  The respondent has raised repeatedly the kind of inquiries it would want to make of him about his bank accounts and related matters.  Proceeding in his absence would likely only lead to a range of questions without answers.  The outcome would almost certainly be a decision that there is no evidence on which to be satisfied that the decision under review should be set aside and the hearing would have a sense almost of farce about it. 

30.Taking into account the history of the proceedings, in particular Mr Parnell’s repeated assurances that he would provide material on support of his application, that he has been on notice throughout of the importance of producing material in support of his claims but has failed in almost 12 months to produce a single document, and that the Tribunal and the respondent have gone to some lengths to make the proceedings as fair as possible to him, I am satisfied that his application should be dismissed. 

31.In other circumstances I would dismiss Mr Parnell’s application under s 42A(5) for failure to comply within a reasonable time with the Tribunal’s directions to lodge documents.  However, I have taken into account that, for whatever reason, Mr Parnell clearly feels under pressure at the prospect of the Tribunal hearing.  He may even be mentally unwell on account of stress.  I have no details about his cognitive impairment but accept that it may affect his ability to represent himself even if it does not affect him to the extent that he needs a financial manager appointed. 

32.Dismissal under s 42A(2)(a) leaves open the opportunity (which s 42A(5) does not) for Mr Parnell to apply under s 42A(8) to have his application reinstated which the Tribunal may do if it considers it appropriate. In all the circumstances, I think it fair to leave that opportunity open.

Order

33.The application is dismissed under s 42A(2)(a)

I certify that the 33 preceding paragraphs are a
true copy of the reasons for the decision
herein of Senior Member Jill Toohey

Signed:         ...............[sgd].................................................................
           Diana Weston  Associate

Date of Hearing  11 December 2009
Date of Decision  11 December 2009
Date of Written Reasons          16 December 2009
Applicant  No appearance
Solicitor for the Respondent     Glenda Heggen, Centrelink