Stephen Ripszam and Minister for Infrastructure and Regional Development
[2014] AATA 216
[2014] AATA 216
Division GENERAL ADMINISTRATIVE DIVISION File Number(s)
2013/3788
Re
Stephen Ripszam
APPLICANT
And
Minister for Infrastructure and Regional Development
RESPONDENT
DECISION
Tribunal Mr S. Webb, Member
Date 11 April 2014 Place Canberra Application for reinstatement refused.
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Mr S. Webb, Member
PRACTICE AND PROCEDURE – application for reinstatement – original application found to be frivolous or vexatious and dismissed – scope of discretion to reinstate – meaning of error –jurisdictional fact – possibility of error – discretion to reinstate not enlivened – application refused
Administrative Appeals Tribunal Act 1975, s 27, 29, 42A, 42B, 43
Motor Vehicle Standards Act 1989, s 5, 5A, 19
Motor Vehicle Standards Regulations 1989, r 11
ALH Group Property Holdings Pty Limited v Chief Commissioner of State Revenue [2012] HCA 6
Minister for Immigration and Multicultural Affairs v Bhardwaj (2002) 209 CLR 597
Freeman v National Australia Bank Ltd [2006] FCAFC 67
Goldie v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 367
Katterns v Comcare (2002) 36 AAR 277Ripszam and Minister for Infrastructure and Regional Development [2013] AATA 918
REASONS FOR DECISION
Mr S. Webb, Member
11 April 2014
Stephen Ripszam attempted to import five Segway-like vehicles called ‘Electric Chariot People Transporters’ (the Vehicles). The Vehicles were intercepted and held at the border by the Australian Border Protection and Customs Service. Mr Ripszam applied for approval to import them. The Minister decided not to grant approval. Application was made for review. In the course of the proceedings, the application was dismissed as frivolous or vexatious under s 42B(1)(a) of the Administrative Appeals Tribunal 1975 (the AAT Act) - Re Ripszam and Minister for Infrastructure and Regional Development [2013] AATA 918.
Mr Ripszam applied for reinstatement on grounds of error.
The Minister opposed the application.
The reinstatement application came on before me, even though I did not make the decision to dismiss the application.[1] An unforeseen issue arose in the hearing, concerning jurisdictional error and the principle in Minister for Immigration and Multicultural Affairs v Bhardwaj.[2] Time was allowed for each party to make written submissions addressing this point after the hearing. Materials were filed by each party, to which I have had regard.
[1] The dismissal decision was made by Senior Member Creyke.
[2] (2002) 209 CLR 597.
In the circumstances there are two primary issues –
(a)whether and in what circumstances an application dismissed under s 42B(1)(a) may be reinstated; and if so
(b)whether it is appropriate to reinstate Mr Ripszam’s application.
Reinstatement of an application dismissed under s 42B(1)
In submissions addressing the reinstatement application, Trevor McPherson, Mr Ripszam’s (non-legal) representative, argued for reinstatement under s 42A(10). He identified three errors that, he maintains, are sufficient to warrant exercise of the discretionary power conferred by s 42A(10) to reinstate the application. The alleged errors are –
(a)the Tribunal of first instance decided that Mr Ripszam had no standing as, in the course of the proceedings, he arranged for the Vehicles to be moved to New Zealand where they were sold, whereupon the Minister’s decision ceased to affect his interests – Mr Ripszam says that his ownership of the Vehicles has no bearing on his application for import approval or on his standing to apply for review of the Minister’s decision;
(b)the Tribunal of first instance proceeded on the understanding that there was no ‘datum’ for the Vehicles – Mr Ripszam says that the specifications of the Vehicles covered by his application were in evidence before the Tribunal. Each of the five vehicles is of the same specific make and model, conforming to manufacturer specifications, without individual vehicle identification numbers or serial numbers. In other words, each vehicle conforms to a class of vehicles and is the same as any other vehicle in that class; and
(c)the Tribunal’s dismissal decision was based on evidence of confidential discussions in the conduct of an alternative dispute resolution process, namely a conference – Mr Ripszam says that under s 34E of the AAT Act such evidence should not have been admitted without the express agreement of the parties.
Mr McPherson says that errors of this kind, leading to dismissal under s 42B, are sufficient precondition to enliven the s 42A(10) discretion.
Considering these matters and the submissions of the parties, the first question is whether the s 42A(10) discretion to reinstate an application extends to an application that has been dismissed under s 42B. If so, it is necessary to decide whether an alleged error of the kind raised by Mr Ripszam is condition precedent to the exercise of the discretion conferred by s 42A(10). This section is in the following terms –
42A(10) If it appears to the Tribunal that an application has been dismissed in error, the Tribunal may, on the application of a party to the proceeding or on its own initiative, reinstate the application and give such directions as appear to it to be appropriate in the circumstances.
The word ‘error’ in this context is not defined in the legislation, and it has been given a broad meaning consistent with its meaning in common usage. This is not confined to an administrative error, but extends to include a procedural error by the Tribunal when dismissing an application under s 42A, such as occurred in Katterns v Comcare[3]. In that case, the Tribunal summarily dismissed Mr Katterns’ application under s 42A(5) without providing notice to or hearing from the parties. This was a procedural error in the exercise of the Tribunal’s default jurisdiction that enlivened s 42A(10). Errors of this kind do not involve an assessment of the merits of the application, but arise in the circumstances covered by the specific provisions of s 42A.
[3] (2002) 36 AAR 277 at 278.
Section 42A(10) was considered in Goldie v Minister for Immigration and Multicultural and Indigenous Affairs[4], by which the Tribunal is bound. Wilcox and Downes JJ said at [31]-[32] –
31. In the course of argument, it was suggested that it is unlikely that Parliament intended that one member of the Tribunal could sit in judgment on a decision of another member. It was said that the appropriate course, envisaged by the Act, was appeal under s.44 of the Act. However, it is not uncommon for rules of courts to allow one member of the court to set aside an order (especially a default order) made by another member. As a matter of practice, no doubt, the application to set aside the original order will usually be heard by the person who made it. But this is not always practicable and there is usually no rule to that effect. The suggested inconsistency with s.44 must be considered in the light of the fact that s.42A(10) only covers default dismissals under s.42A, not dismissals after a hearing on the merits.
32. The considerations to which we have referred suggest it is erroneous to place any limitation on the "error" referred to in s.42A(10)…
[4] [2002] FCAFC 367.
Carr J reached the same conclusion –
77. In my view, there is a significant degree of desirability of persons being able to rely on the ordinary meaning conveyed by the word "error". More importantly, s 42A(10) provides a mechanism of avoiding prolonging legal or other proceedings without compensating advantage. The mechanism is a relatively informal method of bringing a matter back to the Tribunal for reconsideration with a view to it being considered on the merits. It can be seen as a convenient, prompt and inexpensive means whereby errors which may have occurred in the exercise of the Tribunal's default jurisdiction can be rectified. That is, any sort of error in dismissing an application summarily, whether the error be administrative error or any other error.
78. As a matter of construction, I would confine s 42A(10) in its operation to dismissals under s 42A itself which have been made in error, not dismissals generally.
As can be seen, s 42A(10) applies to ‘default dismissals’, where an application has been dismissed in error under s 42A without a hearing on the merits. This is not such a case.
Dismissal of an application under s 42B(1) has a different character, which requires different considerations and findings, than a default dismissal under s 42A. Even though the power to dismiss an application under s 42B is located in Division 5 of Part IV of the AAT Act, being a procedural power of the Tribunal, it does not follow, and it should not be assumed, that an order of dismissal under s 42B is amenable to subsequent reconsideration by the Tribunal.
Most significantly, dismissal under s 42B(1) requires the Tribunal to be satisfied that the application is, or has become, in fact, frivolous or vexatious. This requires a consideration, to some degree at least, of the prospective merits of the application and the grounds on which it is made.
The principles of law that apply when making such a determination are set out in Freeman v National Australia Bank Ltd[5] in respect of the Federal Court Rules 1979. Similar rules apply in respect of s 42B(1)[6]. Whether or not the application has reasonable grounds is an important element of the determination, and it requires an objective assessment. This requires a consideration, to some degree, of the merits of the application, albeit without determination and insofar as the available materials before the Tribunal at the time permit. Considerations of this kind are central to an assessment of the utility of the application.
[5] [2006] FCAFC 67 at [24]-[25].
[6] Singh v Secretary, Department of Education and Workplace Relations (2006) 95 ALD 569 at [49].
It is quite clear that Mr Ripszam disagrees with the reasoning and the findings of the Tribunal of first instance, and he is seeking to upset the decision dismissing his application under s 42B(1). This is not permissible under s 42A(10).
Disagreement about the Tribunal’s findings on a factual issue or the process of reasoning on a point of law, involving an issue of legislative interpretation when assessing the utility or reasonable grounds of an application for example, goes to the merits. If, having assessed the merits of an application, the Tribunal makes a determination under s 42B(1) dismissing the application, the Tribunal has exercised jurisdiction. The determination is not open to further reconsideration by the Tribunal unless there is jurisdictional error that renders the determination a nullity. The avenue for appeal against such a determination is to the Federal Court under s 44 on a question of law.
But this does not mean that an order of dismissal made under s 42B(1)(a) cannot be corrected or perfected by the Tribunal if it is the result of an administrative or procedural failing sufficient to cause jurisdictional error.[7]
[7] Minister for Immigration and Multicultural Affairs v Bhardwaj [2002] HCA 11; see Gleeson CJ at [14], for example.
If, for example, an order of dismissal under s 42B(1)(a) was made summarily, without notice and without hearing from the parties, as occurred in Katterns in respect of s 42A(5), it may be open for the Tribunal to correct such an error in proper exercise of jurisdiction. It is arguable that the failure to give notice and to hear the parties may be an error of the kind considered in Bhardwaj, such that the Tribunal may have failed to discharge its statutory function, and it may have the capacity to correct the error and to do again what was not properly done.
Furthermore, if an application was mistakenly dismissed under s 42B through an administrative processing error, perhaps by interchanging different applications from applicants with the same surname for example, it may be permissible for the Tribunal to correct an error of this kind. Having regard to the facultative character of the Tribunal and to the discretionary power to regulate procedure conferred by s 33(1), such that ‘proceedings shall be conducted with as little formality and technicality, and with as much expedition, as the requirements of this Act and of every other relevant enactment and a proper consideration of the matters before the Tribunal permit’, it is probable that the Tribunal is capable of rectifying administrative or procedural errors resulting in dismissal under s 42B.
With this in mind, it is necessary to determine whether the matters Mr Ripszam has raised as errors are of a kind that may be revisited and corrected by the Tribunal.
Can Mr Ripszam’s application be reinstated?
The first proposition he presses is that the Tribunal of first instance misconstrued or misapplied the relevant provisions of the Motor Vehicle Standards Act 1989 and the Motor Vehicle Standards Regulations 1989.
Even though Mr Ripszam believes this is a ‘serious and clear’ error, quite plainly, it raises an issue of law.
The Tribunal of first instance considered and construed the legislation. These matters are clearly set out in paragraphs 7 and 8 of the interlocutory decision.
Even if the legislation was misconstrued or misapplied, and I make no such finding, an error of that kind is not amenable to correction by the Tribunal. If pressed, the proper course is appeal to the Federal Court under s 44.
For this reason Mr Ripszam’s first argument fails.
Secondly, Mr Ripszam says that the Tribunal of first instance overlooked relevant material and misunderstood the character of the vehicles he is seeking permission to import.
It is quite clear that the Tribunal of first instance considered and evaluated the materials before it. Consideration of these matters is set out in paragraphs 11 and 12 of the interlocutory decision. The Senior Member said, for example –
“11. …In the present situation it would be futile for the Tribunal to make a finding in the absence of evidence of the facts as to, for example, the make, and specifications of specific vehicles for which an import request has been made. The Tribunal lacks the datum on which to reach any conclusion. Any such outcome would only be hypothetical and of no practical benefit.”[8]
[8] Ibid, at paragraphs [8], [10] and [11].
While overlooking or misunderstanding evidence may lead to error, the error Mr Ripszam has identified, rightly or wrongly, hinges upon the first alleged error and it is not amenable to correction by the Tribunal. An alleged error of this kind may properly be challenged by appeal under s 44.
For this reason, I reject Mr Ripszam’s second argument.
Mr Ripszam’s third argument is that, without the consent of the parties, the Tribunal of first instance took account of information given in a preliminary conference when this is not permissible under s 34E.
This section provides that evidence of anything said or done at an ‘alternative dispute resolution process’ (which is defined in s 3 to include ‘conferencing’), is not admissible at the hearing of a proceeding before the Tribunal without the agreement of the parties.
As I understand Mr Ripszam’s point, the particular information concerned sale of the Vehicles.
Of this the Tribunal of first instance said –
2. On 15 October 2013, at a preliminary conference, the Tribunal was advised that the vehicles, which had been held in New Zealand pending the outcome of an application to the Tribunal, had been sold. On 30 October 2013, the Minister submitted that the application should be dismissed under the Administrative Appeals Tribunal Act 1975 (Cth) section 42B(1)(a) as being ‘frivolous or vexatious’. The applicant opposed the request.
An interlocutory hearing was listed for 3 December 2013. In the result, Mr Ripszam’s application was dismissed. The Tribunal found that once Mr Ripszam sold the Vehicles, he no longer had an interest affected by the reviewable decision –
“8. Mr Ripszam’s interests at the commencement of proceedings related to the refusal of permission for him to import five vehicles of a specific kind, make and specification, broadly described as electric chariot people transporters. He no longer owns those vehicles. So although Mr Ripszam had an interest affected at the commencement of the proceedings, once he had sold the vehicles he no longer had that interest…”
The evidentiary basis for this conclusion is not clear, but it did not appear to be in dispute. I note that the Minister provided written submissions for the interlocutory hearing,[9] in which he said -
“3. On 15 October 2013, the parties participated in a Tribunal conference in relation to the application. At the conference it emerged that, since the primary decision was made, the Applicant has sold the Vehicles to persons outside Australia. The Applicant therefore does not intend to, and cannot, import the Vehicles into Australia.
4. The Respondent submits that the Tribunal should dismiss the application…”
[9] Respondent’s Submissions, 30 October 2013.
Mr McPherson provided written submissions in response,[10] in which he said –
“5. At the interlocutory proceedings on 19 September 2013 [concerning a claim of legal professional privilege] it was known that the Vehicles had been exported to New Zealand for the purpose of avoiding bond holding costs in Australia. At the later conference on 15 October 2013, when discussion turned to prospective holding costs and economic losses, the Applicant (per McPherson), in the interest of maintaining transparency, advised that the vehicles originally intended for import had (recently) been sold to parties outside Australia, so that the urgency there had been in resolving the matter no longer existed. The matter itself was still as before and still needed resolution.”
[10] Applicant’s Submission, 8 November 2013.
Three conclusions can be drawn from this. Firstly, the Tribunal of first instance was constituted to deal with an interlocutory application of the Minister for dismissal of Mr Ripszam’s application following the conference on 15 October 2013. Secondly, it appears that the Tribunal of first instance proceeded to address the matters set out in the written submissions filed by each party. Thirdly, there was no dispute about the sale of the Vehicles, which the Tribunal of first instances appears to have accepted as a fact – no evidence was adduced or admitted on this point.
It does not follow, and it is not presently established, that the Tribunal of first instance admitted into evidence anything that was said or done during the preliminary conference on 15 October 2013 without the consent of the parties.
Furthermore, the issue of consent must be considered in the light of subsequent references to the sale of the Vehicles in the written submissions Mr McPherson filed, presumably on instruction of Mr Ripszam. He cannot assert the absence of consent under s 34E while at the same time expressly disclosing in written submissions the very information he seeks to protect. Action of this kind amounts to tacit consent – intention may be inferred by conduct.[11]
[11] ALH Group Property Holdings Pty Limited v Chief Commissioner of State Revenue [2012] HCA 6 at [31]-[32].
For these reasons, Mr Ripszam’s third argument fails.
In the course of the hearing, Mr McPherson argued that it would be manifestly unfair and unjust to put Mr Ripszam to the cost of proceeding to the Federal Court to correct the errors he has alleged.
This argument has no legs – the cost of proceeding with an appeal to the Federal Court has no bearing upon the Tribunal’s jurisdiction. Nor does it bear upon the issues I must decide in respect of reinstatement of Mr Ripszam’s application and the errors he has alleged.
It is germane, in this case, to bear in mind what Gleeson CJ said in Bhardwaj at [8] –
The requirements of good administration, and the need for people affected directly or indirectly by decisions to know where they stand, mean that finality is a powerful consideration. And the statutory scheme, including the conferring and limitation of rights of review on appeal, may evince an intention inconsistent with a capacity for self-correction. Even so, as the facts of the present case show, circumstances can arise where a rigid approach to the principle of functus officio is inconsistent with good administration and fairness. The question is whether the statute pursuant to which the decision-maker was acting manifests an intention to permit or prohibit reconsideration in the circumstances that have arisen. That requires examination of two questions. Has the tribunal discharged the functions committed to it by statute? What does the statute provide, expressly or by implication, as to whether, and in what circumstances, a failure to discharge its functions means that the tribunal may revisit the exercise of its powers or, to use the language of Lord Reid, reconsider the whole matter afresh?
It is quite clear that the Tribunal of first instance assessed the merits of Mr Ripszam’s application and made an order dismissing the application under s 42B(1)(a). In so doing, it discharged its functions under the AAT Act. It did so having given notice to and hearing from the parties. It considered and made findings about the merits of Mr Ripszam’s application, and it expressly dealt with issues relating to his standing under s 27 and the lack of any utility in proceeding, concluding that in the circumstances “any decision by the Tribunal in relation relating [sic] to the SW01 electric chariots or to another make of vehicle, or a vehicle with different specifications would be otiose”[12].
[12] Ibid, at paragraph [12].
Even if the Tribunal of first instance was wrong in the approach it adopted or in the findings it made leading to dismissal, errors of that kind do not precondition s 42A(10). Nor do they give rise to an error in the form of manifest procedural unfairness such that the decision is a nullity, leaving it open for the Tribunal to do over again what it previously did. No jurisdictional error is presently established. The dismissal decision is not a nullity and the Tribunal cannot re-open or reconsider it. There is no present basis to reinstate Mr Ripszam’s application.
If Mr Ripszam wants to challenge the dismissal decision, as he plainly does, the proper avenue for him to pursue is an appeal to the Federal Court under s 44.
For these reasons, the application for reinstatement of Mr Ripszam’s application is refused.
I certify that the preceding 48 (forty -eight) paragraphs are a true copy of the reasons for the decision herein of Mr S. Webb, Member
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Associate
Dated 11 April 2014
Date of hearing 3 March 2014 Date final submissions received 31 March 2014 Advocate for the Applicant Trevor McPherson Advocate for the Respondent David McLaren Solicitors for the Respondent Sparke Helmore
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