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

[2023] AATA 2836

Stanes and Secretary, Department of Social Services (Social services second review) [2023] AATA 2836 (4 September 2023)

Division:GENERAL DIVISION

File Number(s):      2022/5717

Re:Deborah Stanes

APPLICANT

AndSecretary, Department of Social Services

RESPONDENT

DECISION

Tribunal:Member Lee Benjamin

Date:4 September 2023

Place:Brisbane

Pursuant to subsection 42A(5) of the Administrative Appeals Tribunal Act 1975 (Cth), the Tribunal dismisses the application for failure to proceed.

...............................[SGD].........................................

Member Lee Benjamin

Catchwords

PRACTICES AND PROCEDURES – Applicant’s failure to proceed with application for review of a decision made by the Social Services and Child Support Division of the Administrative Appeals Tribunal

Legislation

Administrative Appeals Tribunal Act 1975 (Cth)

REASONS FOR DECISION

Member Lee Benjamin

4 September 2023

1. Ms Deborah Stanes filed an application with the General Division of the Administrative Appeals Tribunal on 4 July 2022. Ms Stanes is seeking review of a decision made by the Social Services and Child Support Division of the Administrative Appeals Tribunal (AAT1) dated 24 June 2022. The AAT1 affirmed a Services Australia decision not to waive the Applicant’s outstanding Newstart allowance (NSA) debt of $13,333.91[1] for the period 30 June 2015 to 19 September 2016.[2]

   [1] Ms Stanes previously had an NSA debt of $20,833.91 for the period 30 June 2015 to 19 September 2016 (2015-2016 debt). On 21 August 2017, the Commonwealth waived its right to recover $7,500 of the 2015-2016 debt, reducing the 2015-2016 debt from $20,833.91 to $13,333.91.

   [2] The AAT1 determined there was no basis for waiving recovery of part or all of the debt in the Applicant's special circumstances and the debt must be recovered in full. The original 2015-2016 debt of $20,833.91 arose because Ms Stanes serially under-reported her income and otherwise knowingly failed to comply with her reporting obligations resulting in an overpayment of NSA benefits.    

2. Ms Stanes has, over the course of around 10 months, repeatedly sought extensions of time, adjournments, vacation of Tribunal events, and other delay in relation to her review application. I set out below some, but not all, of Ms Stanes’ actions to retard progression of her application.    

3. On 3 November 2022, Ms Stanes requested (via the Respondent) that the Tribunal “adjourn” the matter to “the middle week or so of December [2022]”.

4. On 13 November 2022, Ms Stanes requested that the Tribunal “adjourn” the matter until “at least February 2023”.  

5. On 19 September 2022, Ms Stanes requested that the Tribunal vacate and reschedule a conference listed for 5 October 2022.

6. On 28 November 2022, Ms Stanes requested that the Tribunal vacate and reschedule a conference listed for 30 November 2022.

7. On 30 November 2022, the Tribunal put in place a direction requiring Ms Stanes to file materials in the matter by 27 January 2023. Ms Stanes failed to comply with the direction.

8. On 1 February 2023, Ms Stanes requested that the Tribunal vacate and reschedule a conference listed for 23 February 2023.

9. On 20 March 2023, Ms Stanes requested an “adjournment” of the matter until “at least mid-May [2023]”.

10. On 5 May 2023, Ms Stanes requested that the Tribunal “adjourn” the matter until “approximately September or October [2023]”.

11. On 30 May 2023, in response to a 9 May 2023 Tribunal direction for a case management directions hearing on 4 September 2023, Ms Stanes requested that the Tribunal “defer” the matter until “likely November [2023]”.

12. On 16 August 2023, Ms Stanes requested that the Tribunal “postpone” the case management directions hearing scheduled for 4 September 2023 “until much later [in 2023]” due to personal interstate travel arrangements.

13. On 17 August 2023, the Tribunal wrote to Ms Stanes and offered to vacate the case management directions hearing to a date before her proposed interstate travel arrangements:

    You have requested that we vacate the case management hearing scheduled for 4 September 2023. We have previously indicated the hearing is for case management only - to determine a timetable for filing of materials in the matter and should take no more than 10 minutes. To accommodate you, we are willing to vacate the 4 September 2023 hearing for a date in August 2023. Please let us know your availability for a date in August 2023.

    We need to put you on notice that if a party to a proceeding fails to appear at a hearing, the Tribunal may: (a) if the person who failed to appear is the applicant - dismiss the application without proceeding to review the decision; or (b) in any other case - direct that the person who failed to appear shall cease to be a party to the proceeding. This power is set out in subsection 42A(2) of the Administrative Appeals Tribunal Act 1975. Notwithstanding this, the Tribunal may also dismiss an application if an Applicant fails, within a reasonable time, to (a) proceed with their application or (b) comply with the Tribunal's direction. This power is set out in subsection 42A(5) of the Administrative Appeals Tribunal Act 1975.

14. On 18 August 2023, Ms Stanes wrote to the Tribunal to indicate that she was scheduled to depart today, “so this will be the last reliable communication until [she] return[ed], date still to be confirmed.”

15. On 18 August 2023, the Tribunal wrote to Ms Stanes and again offered to vacate the case management directions hearing:

    You have indicated that you are scheduled to depart today.…

    We have earlier indicated that the Tribunal is willing to accommodate you by rescheduling your 4 September 2023 directions hearing to a date in August 2023. The directions hearing should take no longer than 10 minutes. Please let us know your availability for a time/date in August 2023.  If you are unwilling to provide a time/date in August 2023, the Tribunal proposes to proceed with the scheduled hearing on 4 September 2023. 

    You will recall that you made your application in July 2022. Based on a brief review of the procedural history in this matter, we note that you have repeatedly requested (i) extensions of time to comply requests/directions to file materials; and (ii) variation of conferences/hearing dates. It appears as if the Tribunal has accommodated your requests in September 2022, November 2022, February 2023, March 2023 and May 2023. Subject to what we have said above, the Tribunal is unwilling to entertain further requests that would delay proceeding with your review application.

    In carrying out its functions, the Tribunal has a statutory obligation to provide a mechanism of review that is economical and quick. Parties in the Tribunal also have a legal duty to assist the Tribunal in this regard. We have put you on notice in the past, and we do so again today, that if a party to a proceeding fails to appear at a hearing, the Tribunal may: (a) if the person who failed to appear is the applicant - dismiss the application without proceeding to review the decision; or (b) in any other case - direct that the person who failed to appear shall cease to be a party to the proceeding. This power is set out in subsection 42A(2) of the Administrative Appeals Tribunal Act 1975. Notwithstanding this, the Tribunal may also dismiss an application if an Applicant fails, within a reasonable time, to (a) proceed with their application or (b) comply with the Tribunal's direction. This power is set out in subsection 42A(5) of the Administrative Appeals Tribunal Act 1975.

16. On 4 September 2023, the Tribunal telephoned Ms Stanes for the case management directions hearing. After answering the call, Ms Stanes quickly ended the call. The Tribunal called Ms Stanes a further two times, and Ms Stanes cancelled the calls. Accordingly, I find that Ms Stanes failed to appear at the hearing.  

17. The Tribunal proceeded with the hearing in Ms Stanes’ absence. At the hearing, I asked the Respondent’s representative whether she had any instructions from her client about dismissing Ms Stanes’ application. The Respondent’s representative indicated that the Respondent takes a “neutral position” in terms of dismissal as Ms Stanes “may have cultural reasons that…hinder her from attending the hearing.” The Respondent’s representative did not elaborate on what these “cultural reasons” are and how they may hinder Ms Stanes from attending the hearing and otherwise proceeding with her application.                 

18. In my view, the Tribunal has repeatedly accommodated Ms Stanes’ requests for additional time to prepare, and proceed with, her application. In this regard, I am satisfied that Ms Stanes has had ample opportunity to progress her application but has deliberately chosen not to do so.

19. Ms Stanes has repeatedly been put on notice that her application becomes liable for dismissal in circumstances where she fails, within a reasonable time, to proceed with her application. In my view, the conditions for the exercise of the dismissal power in subsection 42A(5) are easily made out, and such power should be exercised in this case. Accordingly, I dismiss Ms Stanes’ application under subsection 42A(5) of the Administrative Appeals Tribunal Act 1975 (Cth) for failure to proceed.

    I certify that the preceding 19 (nineteen) paragraphs are a true copy of the reasons for the decision herein of Member Lee Benjamin.

    ................[SGD]..........................

    Associate

    Dated: 4 September 2023