Summers and Secretary, Department of Employment and Workplace Relations

[2007] AATA 1977

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2007] AATA 1977

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No   2007/2830

GENERAL ADMINISTRATIVE DIVISION		)
Re		LAHTEYSHA SUMMERS

Applicant

And SECRETARY, DEPARTMENT OF EMPLOYMENT AND WORKPLACE RELATIONS

Respondent

DECISION

Tribunal J.W. Constance, Senior Member

Date5 November 2007

PlaceCanberra

Decision The Tribunal decides not to reinstate Ms Summer's application.

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J.W. Constance. Senior Member

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TRANSCRIPT OF PROCEEDINGS

O/N 67528

ADMINISTRARIVE

APPEALS TRIBUNAL

MR J. CONSTANCE, Senior Member

No A2007/2830

LAHTEYSHA SUMMERS

and

SECRETARY, DEPARTMENT OF EMPLOYMENT
AND WORKPLACE RELATIONS

CANBERRA

2.59 PM, MONDAY, 5 NOVEMBER 2007

Continued from 15.8.07

No appearance by the applicant
MR A. DILLON appears for the respondent

MR CONSTANCE:   Thank you for attending.  It’s certainly – in future, whilst I appreciate your attendance, it’s not necessary if for any reason it’s difficult.  I just note too for the record that Ms Summers – I’ll note she’s not in attendance, but Ms Summers hasn’t been notified;  the tribunal was unable to contact her, so – but we will ensure that both parties are provided with a copy of the transcript of what I’m about to say.

MR DILLON:   Thank you.

MR CONSTANCE: This is an application to have a previous application reinstated; that application having been dismissed by the tribunal under section 42A of the Administrative Appeals Tribunal Act following upon the non-attendance of Ms Summers at the hearing of her application. The application for review of a decision of the Social Security Appeals Tribunal was made by Ms Summers to this tribunal on 22 January 2004, and it was an application to review a decision of the tribunal refusing Ms Summers’ application for certain benefits. On 19 May 2005, the tribunal dismissed Ms Summers’ application, as she did not appear at the hearing on that day, the matter being part-heard, and as I’ve said, this is an application for reinstatement of that earlier application.

To deal briefly with the statutory background of the present application, section 42A(2) of the Administrative Appeals Tribunal Act 1975 provides that the tribunal may dismiss an application if the applicant fails to appear at a hearing. Subsection (8) provides for an application for reinstatement within 28 days of the party being notified of the dismissal. Subsection (9) says that the tribunal may reinstate the application if it considers it appropriate to do so. And subsection 42A(10) provides, and I quote:

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.

Following the dismissal of the application on 19 May 2005, the applicant, Ms Summers, was notified by telephone by a staff member of the tribunal of that dismissal on the same day, that is 19 May 2005. On 20 June 2005, the tribunal received a letter from Ms Summers, dated 14 June 2005, indicating that she wished to appeal the decision to dismiss her application. Accepting for the moment that that letter could be taken as an application for reinstatement, it was just outside the 28‑day period, and therefore it’s necessary to look to section 42A, subparagraph (10) for the power to reinstate the application.

It should be noted for the record that the tribunal wrote to Ms Summers shortly after receiving her letter, referring to the various options open to her, including an application for reinstatement, and I note that she did refer in her letter to an appeal.  But I am of the opinion that that letter of 14 June 2005 should be taken as an application for reinstatement.  However, it was not until 21 February 2007, almost two years later, that the tribunal received a letter from Ms Summers, indicating that she wished to proceed with an application for reinstatement, and the hearing by the tribunal in this matter proceeded on the basis of that letter.

The application being outside the 28-day period, the issue before me was whether the application was dismissed in error when it was dismissed by the tribunal on 19 May 2005.  It’s necessary then to look at the history of the matter, and as well the proceedings of 9 May 2007, when the application was dismissed.  The original application first came on for hearing in the tribunal on 25 August 2004.  At that hearing the applicant appeared late and the matter was not completed.  Ms Summers and her mother gave evidence.  However, neither Ms Summers nor her mother were cross-examined, and Ms Summers was directed to file and serve all additional evidence before 22 September 2004.

The applicant failed to comply with the direction of the tribunal, and on 27 September 2004, the tribunal wrote to Ms Summers and asked her to show cause why the matter should not be struck out pursuant to section 42A(5) of the Act. Telephone directions were held on 11 October 2004, and on that occasion further directions were issued, requiring her to file and serve all additional evidence on or before 25 October 2004. The matter was set down to resume on 2 December 2004, and both parties were formally notified of this. On 25 October 2004, Ms Summers requested vacation at the resumed hearing, which had been set down for 2 December that year.

The applicant failed to comply with the direction of 11 October 2004, and a telephone direction took place before me on 2 November 2004 to consider dismissal for failure to comply with the tribunal’s earlier directions.  The matter was not dismissed on that occasion, and further directions were made, requiring Ms Summers to file and serve all additional evidence by 9 November 2004, and the matter was listed to resume on 7 December 2004.  Ms Summers filed a bundle of documents on 9 November 2004.  On 2 December 2004, the application requested a vacation of the resumed hearing, on the basis that she had obtained new employment.

Telephone directions took place on 6 December 2004, at which Ms Summers did not appear but was belatedly represented by her mother.  The hearing was vacated.  As the application failed to progress the matter, a telephone directions hearing took place on 10 February 2005.  The matter was set down to resume on 9 March 2005 for one day.  On 7 March 2005, the associate to the member who was to hear the matter contacted the parties and confirmed that Ms Summers and her mother, who was to represent her, would attend at the hearing.  Ms Summers failed to attend that hearing, but was represented by her mother.  Her mother tendered a letter from Ms Summers, in which Ms Summers stated:

I’m happy for my mother to manage this hearing on my behalf.

She claimed that:

She was not aware that the hearing was on today.

The respondent submitted that the applicant was required for cross-examination, and requested the matter to be adjourned for that purpose.  The matter was adjourned and was set down to resume on 19 May 2005.  A directions hearing was held on 13 April 2007, and exhibit R1 in this application refers to that directions hearing.  I’m satisfied that it accurately records the following relevant facts in relation to that at that directions hearing.  Ms Summers’ mother, Ms Gwen Summers, took part in that hearing and indicated that Ms Summers would be available at the further hearing and available for cross-examination.  Ms Summers Senior indicated that she may not be available, as she would be in the Supreme Court the next day.

The member conducting that directions hearing informed Ms Summers Senior that Ms Summers, the applicant, could represent herself in those circumstances.  On 12 May 2005, the associate to the member to conduct the hearing contacted the parties to confirm that Ms Summers was required to attend.  Ms Summers Senior informed the associate that Ms Summers may not be willing to attend and may request an adjournment.  A telephone directions hearing took place on 13 May 2005, at which Ms Summers Senior confirmed that Ms Summers would attend the hearing at 10 am as listed.  I have considered the transcript of the proceedings on 9 May 2007.

On the basis of that transcript, I am satisfied that when the matter came on for hearing at 10 am that day, the respondent was represented by Mr Dillon, but there was no appearance by the applicant or by anyone on her behalf.  The tribunal indicated that the hearing would resume at 10.30 am.  It was resumed at 10.31 am, and the tribunal indicated that the registry had received - a short time before resuming the hearing, the registry had received a telephone call from a child, purportedly one of the children of Ms Summers Senior.  It was understood from that telephone conversation that Ms Summers and her mother had not yet left their home, as there had been some form of crisis, and the suggestion was that they could be in attendance in an hour or so.

The respondents then applied for the matter to be dismissed in view of the applicant’s non‑attendance.  The tribunal then considered the situation, and the following is a quotation from the presiding member:

So it seems to me that we are faced with a litany of problems, and I must say that my inclination is to dismiss the matter.  And as you said, that power needs to be exercised with great care and judiciously, but it seems to me that if indeed the Summers intend to proceed with this matter, and particularly the applicant rather than her mother, there is an avenue that can be pursued for reinstatement, if indeed there is a reasonable reason for the non-appearance this morning, and evidence of that can be provided to the tribunal, and can be taken into account.  So that is my inclination, to dismiss the matter forthwith, and see where we go from there.

The presiding member took into account that a half-hour period of grace had been provided, and that there had been clear notice formally given of the time and place of the hearing. The tribunal then dismissed the matter pursuant to section 42A(2) of the Act, which completed the hearing. Ms Summers appeared at the hearing and was assisted by her mother, Ms Summers Senior. Ms Summers argued that her mother’s illness had caused their inability to attend at 10 am on the day of the hearing, and she claimed that in fact they were travelling to the tribunal when they received advice by telephone, by mobile telephone, that the application had been dismissed. Ms Summers also argued that her mother, Ms Summers Senior, had been required to attend the hearing, but this is not borne out by the directions hearing which had been previously held, and to which I have referred.

Having considered the history of the matter and the proceedings which took place on 19 May 2005, I’m satisfied that there was no error in the message which was received by telephone in the registry about 10.30 am that day, apparently from a child.  It does appear, from what I was informed when I heard this application, that the message conveyed was accurate, in that there had been a delay and there was a possibility of attendance by Ms Summers later in the day. 

I’m satisfied that the tribunal is entitled to dismiss the application for non-attendance under the provisions of section 42A and I’m satisfied the tribunal gave additional time for Ms Summers to appear and in fact at 10 am there had not been an appearance and at that time there had been no explanation for that non-appearance.

I’m also satisfied that, prior to the dismissal of the application, there had been no direct contact from Ms Summers, although it appears that she had a mobile telephone in her possession whilst travelling to the tribunal, and on her own explanation, it appears that she could have contacted the tribunal had she wished to have done so.  I’m also satisfied that, prior to dismissing the application and in making the decision to dismiss, the presiding member was entitled to take into account the history of this matter.

Having considered the history of the matter and the circumstances of dismissal, I’m satisfied further that the discretion which the presiding member obviously had, as to whether or not the matter should be dismissed, did not miscarry. My decision on these issues is in accordance with the decision of the full Federal Court in Goldie v the Minister for Multicultural and Indigenous Affairs. It’s a decision of the Full Federal Court reported in (2003) 72 ALD 652. In that matter the court held that there was no power to reinstate under section 42A(9) once the 28 days had expired, as was the situation before me.

It was also held that error extends beyond administrative error, and that, in that case, the discretion to dismiss, when it was exercised, had not miscarried.  I’m satisfied that this is the situation in the matter now before me.  I have considered whether there was any error beyond administrative error in the tribunal.  I’m certainly satisfied there was no such error in the tribunal, but as I’ve indicated, I’ve considered whether there was any error in relation to the message conveyed to the tribunal, and I’m satisfied that there was no such error in that circumstance.

As I’ve also indicated, I’m satisfied that the discretion was properly exercised by the presiding member, and that, in the absence of a miscarriage of that discretion, there is no error on that basis.  For these reasons the application to reinstate the matter is dismissed.

Anything further, Mr Dillon?

MR DILLON:   No, thank you, Senior Member.

MR CONSTANCE:   Thank you again for your attendance and I’ll get the tribunal to make available a copy of that transcript to each of the parties.  I’ll adjourn the tribunal.

MATTER ADJOURNED at 3.18 pm INDEFINITELY

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