Smith and Secretary, Department of Social Services (Social services second review)

[2020] AATA 1326

Smith and Secretary, Department of Social Services (Social services second review) [2020] AATA 1326 (19 March 2020)

Division:GENERAL DIVISION

File Number:           2019/8080

Re: Jarrah Smith

APPLICANT

AndSecretary, Department of Social Services

RESPONDENT

DECISION

Tribunal:Member R West

Date:19 March 2020

Date of written reasons:        30 April 2020

Place:Melbourne

The application for reinstatement is refused

………………[sgd]……………………………..

Member

Catchwords

PRACTICE AND PROCEDURE  – dismissed for non-appearance – application for reinstatement – no appearance at reinstatement hearing – merits of original application – lack of reason for non-appearance – application refused

Legislation

Administrative Appeals Tribunal Act 1975 (Cth)

REASONS FOR DECISION

Member R West

30 April 2020

BACKGROUND

1. On 6 December 2019, the Applicant applied for an extension of time to review a decision of the Administrative Appeals Tribunal (Social Services and Child Support Division) dated 11 October 2019, regarding the recalculation of her Newstart Allowance debt[1] (AAT1 Decision).

   [1] Unreported decision of Member Nalpantidis in Matter 2019/M13943, dated 11 October 2019.

2. The extension of time application was listed for a hearing by telephone on 31 January 2020 but was adjourned at the Applicant’s request.  It was re-listed for a hearing on 11 February 2020. 

3. The Applicant failed to attend the hearing on 11 February 2020 and the application was dismissed pursuant to subsection 42A(2) of the Administrative Appeals Tribunal Act 1975 (AAT Act).

4. On 10 March 2020, the Applicant applied under subsection 42A(8) of the AAT Act for reinstatement of the application. In her application for reinstatement the Applicant contended that the matter had been dismissed in error on three grounds:

   a.the parties had filed detailed written submissions ahead of the hearing;

   b.the parties had given written consent to the hearing being heard on the Applicant’s papers in lieu of her active participation; and

   c.there were sufficient substantive issues to warrant the matters proceeding to hearing.

5. The application for reinstatement was listed for a hearing on 19 March 2020.  The Applicant failed to attend the hearing.

6. By order dated 19 March 2020, the Tribunal refused to reinstate the application pursuant to subsection 42A(9) of the AAT Act.

7. On 14 April 2020, the Applicant requested reasons for the Tribunal’s decision to refuse the reinstatement application.

   CONSIDERATION

8. Pursuant to s.28 of the AAT Act, the following is a statement of the reasons for the decision as delivered orally on 19 March 2020.

9. The application for reinstatement was listed for hearing by telephone at 9.30 am on 19 March 2020. 

10. The Respondent attended the hearing but there was no attendance by the Applicant.  The Respondent opposed reinstatement.

11. The Tribunal ascertained from its records that proper notice of the hearing was given to the Applicant.  She was sent a notice of listing to her email address on 12 March 2020 and an SMS reminder was sent to her mobile phone number on 18 March 2020.

12. At approximately 9.30 am on 19 March 2020 the Tribunal associate called the Applicant on the number she had provided for the purpose of facilitating her participation in the telephone hearing.  The phone rang out and went to voicemail.  The associate left a voicemail message confirming with the Applicant that the hearing was to proceed and requesting the Applicant to call back.  When no response was received the associate again called the Applicant at approximately 9.45 am.  Again the phone rang out and went to voicemail.

13. The Respondent submitted that the application for reinstatement should be refused.

14. The Tribunal notes that the discretion available to the Tribunal under section 42A(9) of the AAT Act is a broad discretion. It provides that if the Tribunal considers it appropriate to do so it may reinstate an application which has been dismissed pursuant to subsection 42A(2). In the circumstances of this case the Tribunal does not believe it is appropriate to do so.

15. The Tribunal has considered the reasons raised in the application for reinstatement filed by email on 10 March 2020.

16. In the application, the Applicant claimed that the Applicant and the Respondent had consented to the hearing on 11 February 2020 being heard without the active participation of the Applicant and relying on her written submissions. While the parties had initially given such consent in relation to the hearing on 31 January 2020 the Applicant subsequently made a written request for an adjournment by email dated 31 January 2020. The Tribunal adjourned the hearing on 31 January 2020 in response to that request. There was no further discussion regarding the re-scheduled hearing on 11 February 2020 and the Tribunal did not determine that it should proceed without a hearing pursuant to s.34J of the AAT Act.

17. The Tribunal has also reviewed the substantive application for an extension of time itself and the written submissions of the Applicant filed on 29 January 2020.  The Application and supporting submissions do not disclose any proper reason for the Applicant not having filed her substantive application on time.  Further, the grounds relied on for the review of the AAT1 Decision set out in the Applicant’s submissions do not indicate that the substantive application itself has substantial merit.

18. The Applicant’s written application for reinstatement does not give any explanation for her failure to attend the hearing on 11 February 2020.  The Applicant’s failure to attend the reinstatement hearing on 19 March 2020 means that the Applicant has not advanced any reasons why she didn’t attend the hearing on 11 February 2020, when the matter was dismissed for her failure to attend.

19. The Tribunal is also mindful of the fact that this matter was initially listed for a telephone hearing on the 31 January 2020 and was adjourned to 11 February 2020 at the Applicant’s request because it was inconvenient to her. 

20. Taking all of those matters into account the Tribunal does not consider it appropriate to reinstate the application.

    DECISION

21. The application for reinstatement is refused.

22.     I certify that the preceding 21 (twenty-one) paragraphs are a true copy of the reasons for the decision herein of Member R West

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

Associate

Dated: 30 April 2020

Date of hearing:	19 March 2020
Solicitors for the Respondent:	Services Australia