Rani Hurmiz and Secretary, Department of Education
[2014] AATA 443
•3 July 2014
[2014] AATA 443
Division GENERAL ADMINISTRATIVE DIVISION File Number
2013/3873
Re
Rani Hurmiz
APPLICANT
And
Secretary, Department of Education
RESPONDENT
DECISION
Tribunal Dr I Alexander, Member
Date 3 July 2014 Place Sydney The Tribunal is satisfied that the Applicant has failed within a reasonable time to proceed with the application and comply with a direction made by the Tribunal under section 33(2) of the Administrative Appeals Tribunal Act 1975 (AAT Act) in relation to the application.
Pursuant to section 42A(5) of the AAT Act, the Tribunal dismisses the application.
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Dr I Alexander, Member
CATCHWORDS
PRACTICE & PROCEDURE – application for review – no appearance at hearing – non compliance with direction of the Tribunal – failure to comply with direction of the Tribunal – application for dismissal of application – Tribunal dismisses application for review
LEGISLATION
Administrative Appeals Tribunal Act 1975 (Cth) ss 42A(2), 42A(5)
REASONS FOR DECISION
Dr I Alexander, Member
3 July 2014
Background
On 19 June 2013 the Social Security Appeals Tribunal affirmed a decision made by a Centrelink authorised review officer that Mr Hurmiz’s employment was terminated due to misconduct and that an unemployment eight week non-payment period should be imposed on his Newstart Allowance.
On 9 August 2013 Mr Hurmiz lodged an application to the Tribunal for review of the decision.
The matter was listed for hearing on 12 June 2014, a listing notice to advice of the listing was sent to Mr Hurmiz on 9 April 2014.
On 6 June 2013 the Tribunal attempted to contact Mr Hurmiz for a prehearing check but he did not answer his telephone and apparently it was not possible to leave a message at that time.
The Tribunal had no other contact information at that time.
On 11 June at approximately 5.00pm Mr Hurmiz contacted the Tribunal and said that he was not aware of the hearing on the 12 June as he did not receive the listing notice.
Mr Hurmiz claimed that he lived to far away to travel and asked to be heard by telephone.
Mr Hurmiz was advised that he should put his request in writing and that the Tribunal will contact him on the next morning and was warned that the matter can be dismissed if he does not appear.
At about 5.30pm the Tribunal received an email request to appear by telephone.
Mr Hurmiz stated that he did not have a car to travel to the City and that he usually has meetings with the Tribunal by phone.
On 12 June 2014, before the scheduled hearing time, the Tribunal attempted on three occasions to contact Mr Hurmiz to advise that his application to appear by telephone was approved but there was no answer.
The Tribunal was convened a 10:00am on 12 June 2014, a representative of the Respondent present.
The Tribunal tried to contact Mr Hurmiz at approximately 10:00am, 10.15am and 10.30am and on each occasion was transferred to voicemail.
The Tribunal left a message for Mr Hurmiz to contact the registry.
The respondent made an application for dismissal pursuant to Section 42A(2) of the Administrative Appeals Tribunal Act 1975.
The Tribunal decided to allow the applicant 24 hours to contact the registry to advise why he did not appear and why he was not contactable by telephone.
Mr Hurmiz called the registry later that day.
He was told that the Respondent had made an application for dismissal and the Tribunal would like to give him an opportunity to respond.
Mr Hurmiz explained that he had not been at home during the morning and had been confused about what was happening.
Mr Hurmiz was advised to provide a response in writing.
As at 3 July 2014 there has been no response from Mr Hurmiz.
DECISION
Despite being given every opportunity to provide a reasonable explanation for his failure to appear either in person or by telephone Mr Hurmiz has failed to do so.
Therefore, I have decided to dismiss Mr Hurmiz’s application without proceeding to review pursuant to section 42A(5) of the Act on the basis that he has failed to proceed with his application in a reasonable time.
I certify that the preceding 23 (twenty -three) paragraphs are a true copy of the reasons for the decision herein of Dr I Alexander, Member
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Associate
Dated 3 July 2014
Date of hearing 12 June 2014 Solicitors for the Respondent Mr D Maclaren, DHS Program Litigation and Review Branch
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