Pinheiro and University of Queensland
[2006] AATA 1053
•8 December 2006
CATCHWORDS – PRACTICE AND PROCEDURE – reinstatement – principles relevant to consideration of application – application refused.
Administrative Appeals Tribunal Act 1975 ss 3, 25, 41 and 42A
University of Queensland Act 1998 s 4
Re Oates and Secretary, Department of Social Security (1994) 37 ALD 241
Re Manoli and Secretary, Department of Social Security (1994) 35 ALD 133
Hunter Valley Developments Pty Ltd and Others v Minister for Home Affairs and Environment (1984) 58 ALD 305
Jackamarra v Krakouer (1998) 195 CLR 516; 153 ALR 276
R v Secretary for the Home Department; Ex parte Mehta [1975] 1 WLR 1087
Hunter Valley Developments Pty Ltd v Minister for Home Affairs and Environment (1984) 3 FCR 344; 58 ALR 305
Re Emeco Australia (NSW) Pty Ltd and Commissioner for ACT Revenue (1993) 30 ALD 725
Re Naupoto, Viliami and Commissioner for Housing [1996] ACTAAT 145
DECISION AND REASONS FOR DECISION [2006] AATA 1053
ADMINISTRATIVE APPEALS TRIBUNAL )
) V2006/848
GENERAL ADMINISTRATIVE DIVISION )
Re MARCIA PINHEIRO
Applicant
AndUNIVERSITY OF QUEENSLAND
Respondent
DECISION
Tribunal: Deputy President S A Forgie
Date: 8 December 2006
Place: Melbourne
Decision:The Tribunal refuses the applicant’s application to reinstate her application to extend the time within which she may lodge an application to review a decision by the respondent.
S A FORGIE
Deputy President
REASONS FOR DECISION
The Tribunal dismissed the application lodged by Ms Marcia Pinheiro under s 42A(2) of the Administrative Appeals Tribunal Act 1975 (AAT Act) when she failed to appear at a hearing held to determine her application to extend the time within which she might lodge an application for review of a decision made by the University of Queensland (UQ). A hearing to consider whether the Tribunal has jurisdiction to review UQ’s decision was listed for hearing at the same time. Ms Pinheiro was travelling at the time and, although she had told the Tribunal of that when she lodged her application, the information was overlooked. She has now applied for reinstatement of her application. I have refused her application because the Tribunal does not have jurisdiction to review UQ’s decision.
The Tribunal’s power to reinstate an application
Where the Tribunal has dismissed an application under s 42A(2), an applicant may apply for reinstatement within 28 days of receiving notification of the dismissal.[1] The Tribunal may reinstate the application “… if it considers it appropriate to do so … and give such directions as appear to it to be appropriate in the circumstances.”[2] No express guidance is given in the AAT Act as to the manner in which the Tribunal’s discretion should be exercised.
[1] AAT Act, s 42A(8) An exception occurs where the AAT has made an order under s. 41(2) giving the applicant temporary relief from the implementation of the decision while the application for review is on foot.
[2] AAT Act, s 42A(9)
In Re Oates and Secretary, Department of Social Security,[3] I attempted to identify some principles that might be taken into account. I did so after canvassing the various authorities relating to the consideration of applications for extension of time generally and, in the courts, applications to reinstate proceedings or to set aside a default judgment. I concluded that an application under s 42A(8) is more akin to the latter type of applications rather than to applications to extend the time within which to initiate proceedings at all. A different view was earlier expressed in Re Manoli and Secretary, Department of Social Security.[4]The difference lies, in the main, in respect of whether principles similar to those gathered in Hunter Valley Developments Pty Ltd and Others v Minister for Home Affairs and Environment[5] in relation to an extension of time should be applied or whether other criteria are relevant.
[3] (1994) 37 ALD 241
[4] (1994) 35 ALD 133
[5] (1984) 3 FCR 344; 58 ALR 305. The essential features of those principles are set out in the head note to the case which reads:
“(a) the fact that the applicant bears the onus of rebutting the prima facie rule that no ... proceedings commenced outside the prescribed period will be entertained by the court by showing an ‘acceptable explanation of the delay’ and that it would be ‘fair and equitable in the circumstances’ to extend the time;
(b)any action taken by the applicant, apart from the actual making of an application for review under the ADJR Act, which continues to make the decision-maker aware that the finality of his decision is being contested;
(c)any prejudice to the respondent which may have resulted from the delay;
(d)any unsettling of people, other than the respondent, or of established practices;
(e)the merits of the substantial ... application;
(f)considerations of fairness as between applicants and other persons in like positions: it is not only prejudice vis-a-vis the parties but against the wider public interest which must also be taken into consideration.”
Reinstatement applications begin from the premise that:
“… the person whose proceedings have been dismissed should not be prevented from presenting his or her case provided the person’s misconduct has not prejudiced the other party.”[6]
[6] (1994) 37 ALD 241 at 246
Notions of fairness between the parties are also relevant. In civil proceedings in the court, wider notions of fairness are not relevant as the action is viewed simply as a matter between the parties concerned. In the review of administrative decisions, it is arguable that wider notions of fairness are relevant. An administrative decision affecting an individual may be only one of many made under a legislative scheme and affecting a number of other individuals. This fact draws in the need to have regard to notions of what is fair not merely between the parties but also between the applicant and those in a like position. In Re Oates, I described those who are in a like position:
“(20) When compared with applications for an extension of time, the group of persons in a position like that of an applicant seeking reinstatement of his application, will be substantially smaller. The group does not comprise those in respect of whom a particular type of administrative decision has been made but those who have actually sought review but failed to appear at the appropriate time and whose applications have been dismissed. Arguably, the public interest shifts from ensuring certainty in administrative decision making and consistency of treatment of those affected by decisions to ensuring the efficient operation of a case management scheme and consistency of treatment of those affected by that scheme. Having had regard to the cases of Davies v Pagett[[7]] and Lenijamar Pty Ltd and Ors v AGC (Advances) Ltd,[[8]] I do not think that the public interest in this sense is directly relevant in its own right. What will be relevant is the regard which the parties have paid to that case management system. It will be relevant in assessing whether the respondent has been prejudiced and whether the respondent is likely to be prejudiced again in the future by the applicant's conduct.”[9]
[7] (1986) 10 FCR 226
[8] (1990) 27 FCR 388
[9] (1994) 37 ALD 241 at 246-247
I would add to these two principles, a third. That is whether the application, if reinstated, would have merits. That does not require an exhaustive consideration of the merits but it does require a consideration of whether the application would have any chance of success if reinstated. To reinstate an application in circumstances in which there can be no chance at all of its being successful is to give false hope to an applicant as well as to waste the resources of both parties let alone of the Tribunal.
Consideration of the merits of an application is common place in considering applications to extend time.[10] In Jackamarra v Krakouer[11], Brennan CJ and McHugh J adopted a statement by Lord Denning MR in R v Secretary for the Home Department; Ex parte Mehta[12] to the effect that, on an application to extend time, the court would “…never go into much detail on the merits, but we do like to know something about the case before deciding whether or not to extend the time.”[13] Brennan CJ and McHugh J explained the reason for this approach:
“[9] One reason that an appellate court does not go into ‘much detail on the merits’ in considering whether the time for an appeal should be extended is because ordinarily it only has ‘limited materials and argument’. Unless motions to extend time for appeals are to turn into full rehearsals for those appeals, appellate courts can only assess ‘the merits’ in a fairly rough and ready way. In most cases, that assessment will be made from the statement of the applicant’s case rather than from the opposing arguments or any detailed examination of the proofs of the argument. The merits are merely one of the factors that must be considered in determining whether the discretion to extend time should be exercised... The court needs to remind itself also that the parties do not expect to argue the merits issue as elaborately as if they were arguing the appeal itself.
[10] It is one thing to conclude that counsel’s statement of the appeal argument contains the ground for its rejection. It is another matter altogether to hold that, although the logic of the argument is impeccable, the appeal has no merits because the applicant has not taken the Court to the detail of the evidence, the statutes or the case law. Given the practice in hearing applications for extension of time, the rules of procedural fairness require that an appellate court should not determine the application on the details of the evidence (if they have been provided) or the lack thereof unless counsel has been given fair notice that the court intends to take that course.”[14]
[10] It is one of the factors to which Wilcox J draws attention in Hunter Valley Developments Pty Ltd v Minister for Home Affairs and Environment (1984) 3 FCR 344; 58 ALR 305
[11] (1998) 195 CLR 516; 153 ALR 276
[12] [1975] 1 WLR 1087
[13] [1975] 1 WLR 1087 at 1091. Cited with approval by Brennan CJ and McHugh J in Jackamarra v Krakouer (1998) 195 CLR 516; 153 ALR 276 at 519; 295
[14] (1998) 195 CLR 516; 153 ALR 276 at 521-522; 279-280 (omitting footnotes)
Professor Curtis, President of the Administrative Appeals Tribunal of the Australian Capital Territory adopted a similar approach in Re Emeco Australia (NSW) Pty Ltd and Commissioner for ACT Revenue:[15]
“… I think that the proper test is to be put no higher than that the applicant has or can have an arguable case.”[16]
In Re Naupoto, Viliami and Commissioner for Housing,[17] he noted that it is not essential that there be some material before the Tribunal with regard to prospects of success. There may, though, be practical reasons for there being so:
“21. Because the Tribunal must weigh up all of the relevant factors, it will generally be in an applicant’s interest, if his or her case for an extension of time is otherwise weak, to put material to the Tribunal to show that the substantive application has a good prospect of success. Where there are otherwise good grounds for granting an extension of time, and there is nothing in the material before the Tribunal to show that the substantive matter has little or no prospect of success, it is not necessary for an applicant to show that the substantive application has reasonable prospects of success in order to obtain an extension of time. …”
[15] (1993) 30 ALD 725
[16] (1993) 30 ALD 725 at 732
[17] [1996] ACTAAT 145
The principles regarding the prospects of success or merits of the applicant’s case were stated in the context of applications for an extension of time but are equally applicable to an application for reinstatement. In both instances it is futile to reinstate an application when the Tribunal has no power to review the decision concerned.
When does the Tribunal have jurisdiction to review a decision?
In determining the Tribunal’s jurisdiction, the starting point is s 25 of the AAT Act. The Tribunal may only review a decision if it is specifically given the power to do so by either the AAT Act or another piece of legislation. This is the effect of s 25 of the AAT Act. Section 25(1) provides that:
“An enactment may provide that applications may be made to the Tribunal:
(1)for review of decisions made in the exercise of powers conferred by that enactment; or
(2)for review of decisions made in the exercise of powers conferred, or that may be conferred, by another enactment having effect under that enactment.”
The enactment must specify the person or persons to whose decisions the provision applies and may be expressed to apply to all decisions of a person or to a class of such decisions and may also specify the conditions which must be met before applications for review may be made.[18]
[18] AAT Act, s 25(3)
It is not enough that an enactment provide for review of specified decisions for the Tribunal must also be given power to review specified decisions. That power is given by s 25(4) which is the necessary corollary to s 25(1). It provides:
“The Tribunal has power to review any decision in respect of which application is made to it under any enactment.”
A reference in the AAT Act to a “decision” includes:
“(a) making, suspending, revoking or refusing to make an order or determination;
(b)giving, suspending, revoking or refusing to give a certificate, direction, approval, consent or permission;
(c)issuing, suspending, revoking or refusing to issue a licence, authority or other instrument;
(d)imposing a condition or restriction;
(e)making a declaration, demand or requirement;
(f)retaining, or refusing to deliver up, an article; or
(g)doing or refusing to do any other act or thing.”[19]
[19] AAT Act, s 3(3)
The practical effect of these provisions is that I have to take two steps to determine whether or not the Tribunal has the power to review a particular decision. The first step is to identify precisely the decision of which review is sought and the second is to identify whether there is an enactment providing that an application may be made to the Tribunal for review of that decision or class of decision. If there is such an enactment, it is necessary to determine the limits of the power that it gives to the Tribunal to review the decision.
Ms Pinheiro asks the Tribunal to review decisions made by UQ centring on her academic transcript at that University and the award it made to her on the completion of her studies. UQ is a body established by s 4 of the University of Queensland Act 1998 as a body corporate. There is no provision in that legislation that provides for review of UQ’s decisions by the Tribunal. Although I have checked both Queensland and Commonwealth legislation, I have been unable to find any legislative provision, and so any enactment, giving the Tribunal jurisdiction to review decisions made by UQ. Therefore, I have decided that the Tribunal does not have jurisdiction to review UQ’s decisions in relation to Ms Pinheiro’s academic transcript or in relation to the award it made to her on the completion of her studies.
As the Tribunal does not have jurisdiction, it would be futile to reinstate her application. For that reason, I have decided to refuse her application.
I certify that the fifteen preceding paragraphs are a true copy of the reasons for the decision herein of
Deputy President S A Forgie,
Signed: ...............................................................
Jayne Rathjen Associate
Date of Reinstatement Hearing 29 November 2006
Date of Decision 8 December 2006
For the Applicant self represented
For the Respondent no appearance
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