The Taxpayer and Commissioner of Taxation
[2002] AATA 523
•28 June 2002
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2002] AATA 523
ADMINISTRATIVE APPEALS TRIBUNAL )
) No NT 2000/154-159
Taxation Appeals DIVISION ) Re The Taxpayer Applicant
And
Commissioner of Taxation
Respondent
DECISION
Tribunal Mr J Block, Deputy President Date28 June 2002
PlaceSydney
Decision The applications are reinstated under section 42A(10) of the Administrative Appeals Tribunal Act 1975 and the matter should be set down for hearing.
[SGD] Mr J Block
Deputy President
CATCHWORDS
PRACTICE AND PROCEDURE - reinstatement – application dismissed for failure to comply with directions - consideration of sections 42A(8), 42A(9) and 42A(10) of the Administrative Appeals Tribunal Act 1975 – whether section 42A(9) has an independent existence such that it can apply to a dismissal under section 42A(5) – meaning of “error” in section 42A(10)
Administrative Appeals Tribunal Act 1975 section 42A
The Taxpayer v Commissioner of Taxation (AAT 12330, 22 October 1997); (1997) 37 ATR 1120; (1997) 97 ATC 470
Brehoi v Minister for Immigration and Multicultural Affairs [1999] FCA 772; (1999) 58 ALD 385
Re Karakus and Comcare [2001] AATA 588; (2001) 65 ALD 744
Re Bell and Deputy Commissioner of Taxation [2001] AATA 598; (2001) 48 ATR 1001
Re Greening and Repatriation Commission (AAT 13224, 27 August 1998): (1998) 52 ALD 110
Re Mulheron and Australian Telecommunications Corporation (1991) 23 ALD 309
REASONS FOR DECISION
28 June 2002 Mr J Block,
Deputy President1. (a) The Applicant made application, under section 42A(8) of the Administrative Appeals Tribunal Act 1975 (“the Act”) for the reinstatement of applications numbered NT2000/154-159 (“the applications”) which were dismissed by me on 8 February 2002 (“dismissal date”) pursuant to section 42A(5) of the Act.
(b) The Applicant was represented by Mr Charles Robinson of Counsel instructed by Blake Dawson Waldron, Solicitors while Ms Virginia Rands who is employed by the Australian Taxation Office, represented the Respondent.
(c) This application was originally (and mistakenly) brought under section 42A(8) of the Act. The matter was first heard by me on 6 June 2002 (“first hearing date”) and argued at some length. To enable the Applicant to reply in writing as to certain relevant issues and to hear further argument it was postponed until 13 June 2002 (“second hearing date”). At the first hearing date Mr Robinson applied for an amendment of the application so as to bring it within section 42A(9) and/or section 42A(10) of the Act; that application was not opposed by Ms Rands and was granted.
(d) Ms Rands on the first hearing date furnished the Tribunal with lengthy and helpful written submissions; they were helpful in particular because they contained a detailed chronology of “Relevant Facts”. Clauses 8 to 35 (inclusive) of the Respondent’s submissions (omitting clause 36 because its content is dealt with separately in these Reasons) are reproduced in these Reasons as follows:
“Relevant Facts
8The facts in respect of the applications up to and prior to the directions hearing of 8 February 2002 are set out in the affidavit of David Morris dated 8 March 2002.
9 In summary the history of the applications is as follows:
10 The Applicant commenced the proceedings in the Tribunal on 20 April 2000.
11 The proceedings were listed for a telephone conference on 21 July 2000.
12On 17 July 2000 the Respondent filed its Statement of Issues in the Tribunal in these proceedings. The Applicant did not file a statement of issues prior to the first telephone conference.
13On 21 July 2000 Registrar Mussett of the Tribunal noted an agreement of the parties as to a timetable for the proceedings which required:
(a)the Applicant to file his Statement of Facts, and Contentions by 1 October 2000;
(b)the Respondent to file his Statement of Facts, and Contentions by 27 October 2000;
(c) the Applicant to file any evidence by 24 November 2000; and
(d) the Respondent to file any evidence by 15 December 2000
14On 1 October 2000 the Applicant failed to file and serve his Statement of Facts and Contentions.
15On 4 October 2000 the Tribunal listed this matter for a telephone conference on 10 January 2001.
16 On 6 October 2000 the Australian Government Solicitor (the “AGS”) wrote to the Applicant’s accountant asking when the Applicant’s Statement of Facts and Contentions would be served.
17On 10 November 2000 the Applicant served his Statement of Facts and Contentions and his Statement of Issues on the AGS.
18On 20 December 2000 the Respondent filed his Statement of Facts and Contentions.
19On 22 December 2000 the Applicant contacted the AGS and sought agreement to adjourn the telephone conference scheduled for 10 January 2001 to 1 March 2001.
20On 22 December 2000 the AGS forwarded a facsimile to both the Tribunal and the Applicant advising the basis on which the Respondent agreed to adjourn the preliminary conference. The facsimile read:
“…based on the assurance of the Applicant’s representatives that (The Taxpayer’s) evidence will be filed and served by late February 2001 the Commissioner consents to the preliminary conference being adjourned to 1 March 2001…”
21The Tribunal adjourned the telephone conference from 10 January 2001 to 12 March 2001.
22On 8 March 2001 the Applicant again sought to adjourn the telephone conference scheduled for 12 March 2001 on the basis that he wished to “ensure that a comprehensive Statement of Evidence is lodged prior to the telephone conference”.
23On 8 March 2001 the Tribunal notified that the telephone conference listed for 12 March 2001 had been vacated and was now set down for 2 April 2001 “to allow the ‘A’s rep. to prepare a comprehensive statement of evidence”.
24On 20 March 2001 the Tribunal by its own motion adjourned the telephone conference set down for 2 April 2001 to 17 April 2001.
25On 17 April 2001 the telephone conference was conducted by Registrar Richards, in attendance were Charles Robinson of Counsel and Don Page, accountant for the Applicant. Lyn Wild of the AGS appeared for the Respondent. Counsel for the Applicant asked for a further 28 days to file evidence and requested that the next conference be a face to face conference. The Applicant’s representatives were advised by the Registrar that if the evidence was not in on time the matter would be placed in the call-over list on 30 May 2001.
On 17 April 2001 the Tribunal forwarded a notice advising that the matter was set down for a conference on 25 May 2001 and callover on 30 May 2001. The notice also advised that all evidence to be relied upon by the Applicant was to be filed and served prior to the conference.
26The conference on 25 May 2001 and the call-over for 30 June 2000 were vacated by the Tribunal at the Applicant’s request. No evidence had been filed.
27On 5 June 2001 the Tribunal wrote listing the matter for directions hearing on 18 June 2001.
28At the directions hearing on 18 June 2001 attended by the Applicant’s accountant, the Deputy President directed the Applicant to file his witness statements within two months. The Respondent was directed to file his evidence within six weeks of receipt of the Applicant’s evidence. On 18 June 2001 Tribunal confirmed the directions in writing as follows:
“The Directions are issued by way of confirmation of directions given at a directions hearing on 18 June 2001 and in particular that:
1The Applicant must file the statements of any witnesses upon whose evidence he seeks to rely by no later than 20 August 2001;
2The Respondent must file the statements of any witnesses (if any) upon whose evidence he seeks to rely within 6 weeks of the Applicant’s compliance with Direction 1.”
29The Applicant failed to file his evidence by 20 August 2001 and on 21 August 2001 the AGS wrote to the Applicant advising that he intended to have the matter relisted before the Tribunal.
30On 4 October 2001 the Tribunal relisted the matter for a further directions on 18 October 2001.
31On 18 October 2001 Charles Robinson of Counsel and Don O’Brien, accountant appeared on behalf of the Applicant at the directions hearing. The Applicant was also present. The Deputy President was advised that the Applicant’s difficulties with his evidence were attributable inter alia to marital difficulties and certain other legal proceedings in which he was involved. In his written direction the Deputy President noted that “it was made clear to the Tribunal that the Applicant’s professional advisers were hampered by the Applicant’s failure to furnish instructions”.
The Tribunal directed, at the request of the Applicant’s counsel, to allow the Applicant a further opportunity within which time to comply with direction 1 given on 18 June 2001. Moreover the Tribunal decided again at the request of the Applicant’s counsel to allow the full period requested, namely, two months, notwithstanding that having regard to what has transpired, such period may appear unduly long.
The Deputy President advised that if the matter came before him again and there had been another failure to comply with the timetable he would consider any application for dismissal.
The Tribunal made the following directions:
1The Applicant must within two months of 18 October 2001, furnish the statements of all witnesses upon whom he intends to rely;
2The Respondent must furnish the statements of such witnesses (if any) upon whom he seeks to rely, within six weeks of compliance by the Applicant with Direction 1;
3The Tribunal made it clear to the Applicant that it would be reluctant to grant him, any further extensions or indulgences, and so that failure may, in the absence of good and proper cause such as severe illness in respect of which evidence is produced, result in dismissal.
32On 17 December 2001 the day before his evidence was due to be filed, the Applicant personally contacted Lyn Wild of the AGS and indicated that he had a draft statement available which he could either file or have settled by counsel. The Applicant requested more time in which to file and Ms Wild agreed to allow him until close of business on 20 December 2001 to file his evidence. Ms Wild advised the accountant representing [The Taxpayer] that she had been contacted by his client.
33No evidence was filed or served by the Applicant by close of business on 20 December 2001.
34On 8 January 2002 the AGS sent a facsimile to the Tribunal advising that the Applicant had not complied with the directions of 18 October 2000 (sic) and sought to have the matter relisted. The AGS also advised that the Respondent would at the next directions hearing seek an order that the proceedings be dismissed pursuant to Section 42A(5) of the Act. A copy of the facsimile was sent to the Applicant’s accountant.
35On 9 January 2002 the Applicant’s representative was served with a copy of the affidavit of David Morris and again advised that the Respondent would be seeking to have the applications dismissed.
…”
(e) In dismissing the applications on the dismissal date, I commenced by setting out the content of an affidavit by David William Morris dated 8 January 2002 (which is set out in the transcript and need not be repeated in these Reasons), and then went on to say:
“I do not propose to read into the transcript the annexures, save and except, the direction dated 18 October 2001, which reads:
A direction hearing was held on 18 October 2001, at the request of the respondent. Counsel for the applicant accepted and advised the Tribunal accordingly that the applicant has failed to comply with direction 1, given by the Tribunal on 18 June 2001, and requiring the applicant to furnish the statements of all witnesses upon whose evidence he intends to rely by not later than 20 August 2001. The Tribunal was advised that the applicant's failure was attributable inter alia to marital difficulties in certain proceedings, not specified in the Federal Court. It was made clear to the Tribunal that the applicant's professional advisers were hampered by the applicant's failure to furnish instructions. It was noted also that the objection decision in question relates to the 1987 to 1992 tax years. The Tribunal decided at the request of his counsel to allow the applicant a further opportunity within which to comply with direction 1, given on 18 June 2001. Moreover, the Tribunal decided again, at the request of the applicant's counsel, to allow the full period requested, namely 2 months, notwithstanding that having regard to what has transpired, such period might appear to be unduly long. Accordingly, the directions of the Tribunal are:
1.the applicant must within 2 months of 18 October 2001 furnish the statements of all witnesses upon who he intends to rely;
2.the respondent must furnish the statements of such witnesses, if any, upon whom he seeks to rely within 6 weeks of compliance by the applicant with direction 1;
3.the Tribunal made it clear to the applicant that it would be reluctant to grant him any further extension for indulgences and so that a further failure may, in the absence of good and proper cause, such as severe illness, in respect of which medical evidence is produced, result in a dismissal.
The applicant appeared in person today. He advised the Tribunal that his counsel is not available. He said that he had certain documents, which were nearing completion, and he also informed the Tribunal as to certain criminal proceedings, in which apparently he was successful. However, he did not advance any reason of the nature set out in direction 3 of the direction dated 18 October 2001, as to why he should be granted yet further extensions, more particularly having regard to the fact that he has a history of failing to comply with directions by this Tribunal, going back for a very lengthy period indeed.
I note in particular that on 18 October 2001, when the applicant was represented by counsel and as set out in the direction, I made it clear that I would grant one further and final extension of a very lengthy period, namely 2 months, within which the applicant could comply with the direction. Again, as set out in that direction I made it perfectly clear that in the absence of a very good reason I would be disinclined to grant any further extensions. It is my view that this Tribunal has already been over-indulgent to this applicant, who has failed not once, but repeatedly, to comply with directions of this Tribunal.
The respondent has applied for the dismissal of this application pursuant to the Administrative Appeals Tribunal Act and it appears to me that this is a proper case for dismissal in all the circumstances. Accordingly, it is dismissed pursuant to section 42A(5) of the Administrative Appeals Tribunal Act. The Tribunal is adjourned.”
(f) Pages 2, 3 and 4 of the transcript record the hearing before me on the dismissal date; they are also reproduced as follows:
“THE D.PRESIDENT: Well, what has happened since the last directions hearing?
MS WILD: The directions weren't complied with.
THE D.PRESIDENT: They were?
MS WILD: Were not - - -
THE D.PRESIDENT: At all?
MS WILD: - - - complied with, Deputy President.
THE D.PRESIDENT: Todd, where is the statement of facts, issues - where is the latest directions? How many directions have I issued here, Ms Wild?
MS WILD: There should be an affidavit on file now from David Morris, which actually sets out the history of the matter.
THE D.PRESIDENT: Give me the affidavit please. Where is that affidavit, Ms Wild, please?
MS WILD: It was filed on 5 January, that is a copy there.
THE D.PRESIDENT: You mean 5 January this year?
MS WILD: Yes.
THE D.PRESIDENT: Well, what do you have to say , [The Taxpayer]?
THE TAXPAYER: Mr Deputy President, just before the following comments. I was present the last time when you - - -
THE D.PRESIDENT: I remember, you are an easily rememberable figure.
THE TAXPAYER: Thank you. I was clearly present and I clearly understood what you asked us to do and, in particular, asked me to do. Before I start counsel - - -
THE D.PRESIDENT: Not for the first time.
THE TAXPAYER: Not for the first time. I must put forward my counsel's apology, he is in Court in Canberra and couldn't attend today, so I have come here in his absence personally. I just want to bring to your attention some of the comments you made last time and you said that, barring me being in a hospital bed, not to come before you again.
THE D.PRESIDENT: I didn't say that. I said - - -
THE TAXPAYER: Well, something to the effect that I had to be gravely - - -
THE D.PRESIDENT: In the absence of good and proper cause, such as severe illness in respect of which medical evidence is produced.
THE TAXPAYER: I apologise.
THE D.PRESIDENT: That is in the direction.
THE TAXPAYER: Yes, it is. In the circumstances, I think you also made it known that should Don O'Brien, or Charles have any problem as time, then they should contact Ms Wild, personally, rather than leave it to the last minute to upset the system. I just want to inform you that what they didn't tell you at the time was that I was involved in a Criminal Appeal case which was set down for hearing on 6 and 14 December. I had to attend and I basically put a lot of my efforts into that to make sure I didn't end up as a guest of Her Majesty, which I was successful thankfully in doing.
As a result of the fact that I could not complete the review to submit in time of your direction, I personally rang Ms Wild before the due date and made my position known so that she could inform the Australian Tax Office. Charles could not review the document - the statement that I had prepared in time and could not do it until early in the New Year. I then contacted the Registry here and informed my position and sent a fax through, basically stating, that I had not complied because of that position. I was then served with this document which I can understand the ATO taking that view. The ATO, through Ms Wild, came back to me and granted me two extra days to do it before Christmas.
THE D.PRESIDENT: We are now in February.
THE TAXPAYER: That is correct.
THE D.PRESIDENT: And you still haven't filed anything.
THE TAXPAYER: No, I have prepared a statement. I have worked on this statement - the applicant's facts and contentions, which I believe, is before you, or is in the file I would imagine. I don't have anything vastly different to this to add to this matter because I've spent half of what I'm fighting for on lawyers and accountants to put this case up and, quite clearly, if it is for me to rely on this, I'm happy to rely on this, Deputy President. There is not - there is only one other person that we tried to contact and that was the manager at KPMG.
THE D.PRESIDENT: But you were ordered to file, not only your statement of facts, issues and contentions, you had to file the statements of witnesses.
THE TAXPAYER: The only statement of witness that we were trying to find was the manager at KPMG that prepared the draft return.
THE D.PRESIDENT: What about your own witness statement?
THE TAXPAYER: Sorry?
THE D.PRESIDENT: What about your own witness statement?
THE TAXPAYER: My own written statement is - - -
THE D.PRESIDENT: Witness statement, [The Taxpayer].
THE TAXPAYER: That is the one that has not been completed by counsel. I understand that I have to swear that statement, as does this manager which has now been found. I have a letter from him which came yesterday and he is not an employee of KPMG and they could not locate the files, Mr Deputy President. Now, the only person that I will rely on is myself, these facts and I would be asking your permission to call this person, [M], who is now in private industry. He is not at KPMG any longer, and that will be the extent of what I put before you.
THE D.PRESIDENT: Do you have anything else to say?
THE TAXPAYER: No, I don't, I'm sorry.
THE D.PRESIDENT: Ms Wild, what do you say?
MS WILD: I will just get my instructions for these matters, sir. My instructions are that we want to proceed with the application, Deputy President.
THE D.PRESIDENT: For a dismissal?
MS WILD: Yes”
(Transcript edited, and edits appear in square brackets, for reasons of confidentiality).
(g) The subsections of Section 42A of the Act, which are of particular relevance, are (2), (5), (8), (9) and (10); they are set out as follows:
“…
(2) If a party to a proceeding before the Tribunal in respect of an application for the review of a decision (not being the person who made the decision) fails either to appear in person or to appear by a representative at a directions hearing, a conference mentioned in section 34, or a mediation under section 34A, held in relation to the application, or at the hearing of the proceeding, 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.
…
(5) If an applicant for a review of a decision fails within a reasonable time:
(a) to proceed with the application; or
(b) to comply with a direction by the Tribunal in relation to the application;
a presidential member or senior member, on behalf of the Tribunal, may dismiss the application without proceeding to review the decision.
…
(8) If the Tribunal, under subsection (2), has dismissed an application (other than an application in respect of a proceeding in which an order has been made under subsection 41(2)), the person who made the application may, within 28 days after receiving notification that the application has been dismissed, apply to the Tribunal for reinstatement of the application.
(9) If it considers it appropriate to do so, the Tribunal may reinstate the application and give such directions as appear to it to be appropriate in the circumstances.
(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.”
2. (a) The matter was originally scheduled to be heard on 30 May 2002. Mr Wiseman of Blake Dawson Waldron appeared on that date in order to seek an adjournment until the first hearing date, so that Mr Robinson could appear. That adjournment application was foreshadowed by a fax from Blake Dawson Waldron which stated inter alia that witness statements would be furnished by the Applicant by the first hearing date and on the basis that a failure to do so would be a relevant factor in determining the application.
(b) On the first hearing date, Mr Robinson tendered, with some reluctance, two very brief statements, and in addition hand-written notes by the Applicant; to dignify those hand-written notes by calling them a statement as required by the relevant Tribunal direction would not be apposite; there was no signature or any other indication that they were prepared by the Applicant, although Mr Robinson told the Tribunal from the bar table on the second hearing date that they were. The Tribunal notes that this “document” will require considerable work before it will be possible to categorise it as a witness statement. On the second hearing date, Mr Robinson tendered another short witness statement, which had been inadvertently omitted on the first hearing date.
(c) Mr Robinson also tendered an affidavit by the Applicant which purports to be an explanation for the lengthy delays which have occurred; the Tribunal does not believe that it needs to refer to it further except to note that it is an explanation of a sort, but not a very satisfactory explanation.
(d) There is one other aspect which is perhaps worthy of mention. On the day proceeding the first hearing date, I had been advised that the Applicant would seek yet another adjournment until the second hearing date because his presence was required elsewhere in connection with certain criminal proceedings and in respect of which he was on bail. It was in these circumstances that I did not, as I usually do, prepare for the first hearing date. In the result, no adjournment was sought but some of the discussion on the first hearing date was, for this reason, of marginal relevance.
3. At the very core of this matter are the following central issues:-
(a)bearing in mind that the dismissal was made under subsection (5) and not subsection (2) of section 42A of the Act, is an application under subsection (9) of section 42A of the Act competent ?
(b)in relation to subsection (10) of section 42A of the Act what is meant by the words “in error”, and is “error” confined to a “slip-rule” error? Did the Tribunal, in dismissing the applications, do so in error?
4. In The Taxpayer v Commissioner of Taxation (AAT 12330, 22 October 1997); (1997) 37 ATR 1120; (1997) 97 ATC 470 and in reinstating the relevant application, I found that the term “error” in subsection (10) of section 42A of the Act is not confined to a slip-rule error; moreover I found also that on one construction of subsection (9) it could operate independently of subsection (8); clauses 7 to 13 inclusive of the unreported AAT decision are repeated in these Reasons as follows:
“7. The Tribunal was referred to the Explanatory Memorandum referable to subsections (3) to (10) inclusive; clauses 52 to 56 of the Explanatory Memorandum are set out in full (although they are not particularly helpful), as follows:
“52. Clause 16(d) will insert new subsections 42A(3)-(10). New subsection 42A(3) will define an appearance, for the purpose of a dismissal for failure to appear under subsection 42A(2), to include participation in a proceeding by telephone or other means as allowed under new section 35A.
53. New subsection 42A(4) will give the Tribunal the power to dismiss an application where the applicant fails to disclose a reviewable decision after a written request by the Registrar or Deputy Registrar within a prescribed time. New subsection 42A(5) will give a presidential member or senior member the power to dismiss an application for failure to pursue the application in a timely manner.
54. New subsection 42A(6) provides that where an application is dismissed the proceeding is concluded unless the application is reinstated. New subsection 42A(7) provides that before dismissing an application on the ground of the applicant’s failure to appear under subsection 42A(2), the Tribunal must satisfy itself that the party was served with notice of the time and place of the directions hearing, conference, mediation or hearing.
55. New subsection 42A(8) provides that in cases other than where the Tribunal has made an order staying a decision the applicant may apply for reinstatement within 28 days of receipt of notification of dismissal. New subsection 42A(9) provides that the Tribunal may, if it is appropriate to do so, reinstate the application by restoring it to its pre-dismissal state and give such directions as the Tribunal considers necessary to enable it to proceed with the review of the decision.
56. New subsection 42A(10) provides for the Tribunal, on its own initiative, to reinstate an application which has been dismissed through administrative error on the part of the Tribunal.”
8. (a) The Respondent’s main submission is that the Tribunal does not (leaving aside for the moment subsection (10)) have the power to reinstate an application dismissed under subsection (5)(b) although it does have the power where the application was dismissed under subsection (2). This raises questions of the relative importance of dismissals under either subsection; the Tribunal does not think that it is possible to say that a dismissal under subsection (5) occurs in circumstances which are more serious than is applicable to a dismissal under subsection (2), and so that the legislature intended that a dismissal under subsection (5) would have the result that the application could not be reinstated. On the contrary, it is the view of the Tribunal that a subsection (2) dismissal could be made in circumstances as serious, if not more so, and to construe section 42A in this fashion would lead to a result, which is decidedly odd, and in all probability unintended. Paragraph 55 of the Explanatory Memorandum does deal with both of sections (8) and (9) in one paragraph, but does not state that these subsections are confined to a subsection (2) dismissal. A dismissal under subsection (5) can be made only by a presidential or senior member, but this does not, in the Tribunal’s opinion, have the result that in consequence a subsection (5) dismissal is incapable of reinstatement.
(b) It appears to the Tribunal furthermore that although subsection (9) is arguably referable only to a dismissal under subsection (8), which in turn cross-refers to a dismissal under subsection (2), it is also and equally arguably referable to dismissals under both subsection (2) and subsection (5). This view is supported by subsection (6) which, given its placing in the section, clearly refers to a dismissal under either subsection and indeed, would but for such an interpretation, appear to serve no useful purpose.
9. (a) Had the Tribunal dismissed the application under subsection (2) or both of subsections (2) and (5), the Tribunal would clearly and under subsection (9) have had discretion to reinstate. On one view of subsection (9) the discretion is available also where the dismissal was made under subsection (5).
(b) It has been held that this discretion is to be exercised in accordance with the principles developed in the context of applications for extension of time under s.29(7) of the Act; Re Manoli and Secretary, Department of Social Security (1994) 35 ALD 133. When applied to an application for reinstatement, these principles are as follows:
(1) reinstatement will be granted if it is proper to do so;
(2)it is relevant whether the Applicant rested on his rights or took action to make the decision-maker aware that the decision was being contested;
(3)any prejudice that would be caused by granting the extension of time is relevant;
(4)any wider prejudice to the general public in terms of disruption to established practices is relevant;
(5) the merits of the substantial application are relevant;
(6)fairness of granting reinstatement as between the applicant and other persons in a like position is relevant.
(c) Applying these principles, it is the view of the Tribunal that the principles should overall be answered in favour of the Applicant; in particular the Applicant has not rested on her rights; there would be substantial prejudice, to her if she were precluded from arguing her case and there is no prejudice so far as the Tribunal can perceive, to the Respondent or the general public. As to the merits of the substantive application, the Tribunal notes only that it would appear that as indicated in the Respondent’s submissions, the matter is one of some duration, that it appears to be complex, and that it relates to an assessment under section 108 of the Income Tax Assessment Act, a section in respect of which the relevant tests can be difficult to apply; see in this context the decision of this Tribunal in Case 3/96 96 ATC 139.
(d) It is relevant to note that in Re Oates and Secretary, Department of Social Security (1995) 37 ALD 241, Deputy President Forgie held that an application for reinstatement is more analogous to an application for the setting aside of a judgment against a party for failure to take a step in the proceeding, than it is to an application for an extension of time. The Tribunal notes that, assuming that the correct principles are set out in Re Oates, it would nevertheless exercise its discretion in favour of the Applicant.
10. I refer next to an unreported judgment of Burchett J in Jacek Guse v Comcare, unreported, Federal Court, 5 June 1997, as follows:
(a) On 4 June 1997, Burchett J made orders in this case on a point of law from the Administrative Appeals Tribunal, allowing the appeal with costs, and setting aside the order of the Tribunal which had dismissed the Applicant’s proceeding under section 42A(5) of the Administrative Appeals Tribunal Act 1975, and remitting the matter to the Tribunal, differently constituted, to be dealt with according to law.
(b) The second, third and fourth paragraphs of the judgment read as follows:
“The case has an extremely unfortunate history. Mr Guse sustained a whiplash injury on 21 April 1982, in respect of which it was initially accepted that he was entitled to compensation under the provisions of the legislation then in effect, the Compensation (Commonwealth Government Employees) Act 1971. That Act has since been replaced by the Safety, Rehabilitation and Compensation Act 1988. Mr Guse’s original claim was made on 18 May 1982, but a further claim for partial incapacity was made on 13 August 1987, in which Mr Guse sought compensation for impairment of his earning capacity as a pianist, a capacity additional to that exercised by him in his Commonwealth employment at the time of his injury. Determinations and redeterminations followed, culminating in an application to the Administrative Appeals Tribunal, made on 3 August 1992 and decided on 19 November 1993. Comcare appealed to this Court against that decision, and Mr Guse cross-appealed. On 5 July 1994, Einfeld J set aside the decision, remitting the matter to the Administrative appeals Tribunal. A number of interlocutory hearings followed.
From 8 March 1995, Comcare appears to have been attempting to obtain from Mr Guse, by summons in the nature of a subpoena, employment records and tax material going back to 1 January 1981. However, the summons first issued appears to have been irregular. Apart from the irregularity of the summons, Mr Guse relied on arguments about the relevance of the documents, which were simply wrong. Unfortunately, although at times he had legal advice, at other times Mr Guse appeared for himself. His intelligence and articulateness do not compensate for lack of understanding of the legal issues involved. It is very probable that any documents he may now have falling within the terms of the summonses that were issued are incomplete, and it may be that documents falling outside of those terms may ultimately be found to be more pertinent, if they can be produced. That does not deny the relevance of the material that is referred to in the summonses; and it does not reduce Mr Guse’s obligation to comply, so far as he is able.
On 1 June 1995 and again on 28 June 1995, there was a lengthy debate, mainly between the presiding Tribunal member and Mr Guse, concerning the validity of the then current summons to produce documents. In the course of that debate, Mr Guse used some language, which was rude in the extreme. He, of course, having regard to the history of the case, may well have been in a very emotional state, and he was at all the disadvantage of a litigant conducting his own case, a case moreover involving allegations of his own psychiatric disabilities. However, the situation also put the Tribunal in a position of great difficulty. Heated debate is not conducive to calm decision-making, and the Tribunal might have been well advised to have adjourned to formulate its decision in a calmer atmosphere. What it did do was to make an order on the spot in Draconian terms.”
(c) Towards the end of his judgment, Burchett J said:
“Furthermore, s42A(5)(b) cannot, consistently with the observance of the principle of natural justice, be implemented upon an ex parte statement that an applicant has not complied with a direction, without giving the applicant any opportunity to explain, or advance reasons why the matter should nevertheless proceed. It stands to reason that, whatever the merits of Mr Guse’s objections to the direction in the first place, some supervening circumstances might have occurred to justify, or at least palliate, the eventual non-compliance. Particularly was this so in the light of the solicitor’s letter. Apart altogether from that letter, calmer reflection should have revealed that the direction, as formally issued, was seriously deficient. A bankruptcy notice involving similar difficulties would have been set aside. For it required Mr Guse both to serve on Comcare and to lodge with the Tribunal a possibly very large number of documents of which he would have been most unlikely to have had more than one copy. The direction did not require him to make copies, and it might have been quite unreasonable to have imposed such a requirement on him, particularly in the short time allowed. In any case, the direction did not tell him who should receive the originals and who the copies. It is clear that Mr Guse might well have had serious contentions to urge if he had been afforded an opportunity to make them.
Having pointed out that there were, or might have been, issues which Mr Guse could reasonably have advanced, had he been given the opportunity, why the application should not have been dismissed, I should add that the principle of natural justice does not place on him any onus to show that an opportunity to be heard would in fact have proved fruitful. Natural justice stands on a higher plan than that. Many cases support the proposition which I stated in Colpitts v Australian Telecommunications Commission (1986) 9 FCR 52 at 71:
‘The principles of natural justice are designed to ensure that the voice of the defence is heard, which is never more necessary than when the Tribunal is in danger of feeling that defence would be useless.’
To construe s42A(5) as requiring an applicant to be given an adequate opportunity to be heard, before the proceeding may be dismissed, is to construe it in a manner consistent with the principles laid down by the High Court in Tanos v The Commissioner of Police (1958) 98 CLR 383 at 395-396. Indeed, the application of Tanos is a fortiori, for, unlike the provision there in question, s42A(5) is not at all concerned with a situation of urgency.”
11. The Tribunal does not agree with the Respondent’s submissions that subsection (10) is confined to an error of the “slip-rule” type. It is true that the Explanatory Memorandum in respect of subsection (10) refers to an administrative error, but the subsection in its terms is not so confined, referring as it does merely to an error, and thus encompassing, in the view of the Tribunal, any type of error whether or not of the “slip-rule” type. As Deputy President McDonald stated in Thomson and Comcare (AAT 10552, 24 November 1995):
“The words ‘in error’ used in s.42A(10) do not have a technical meaning and should not be given a narrow interpretation.”
12. (a) In dismissing the application under subsection (5)(b), the Tribunal noted that the Applicant had failed to comply with directions, and that she had failed despite an undertaking to file her affidavits as promised. The Tribunal has previously ruled that clause 12 of Mr Vella’s affidavit contains an undertaking which has also not been complied with.
(b) The Tribunal, although it dismissed the application under subsection (5)(b) for cause, considers it desirable to note two aspects of that dismissal, in the context of subsection (10), as follows:
(1)In the first instance the Tribunal might have dismissed the application under subsection (2) or both of subsection (2) and subsection (5)(b), thus affording the Applicant an opportunity if so advised to seek reinstatement. The Tribunal might perhaps have taken this course had it appreciated that reinstatement is possible (assuming that this is indeed so) only in relation to a subsection (2) dismissal. This aspect is dealt with for the sake of completeness. The Tribunal does not consider that it was in error merely because it dismissed under one subsection when it could have dismissed under another.
(2)In the second place, the Tribunal considers on reflection (having regard to the judgment of Burchett J in Jacek Guse previously referred to) that it would have been better advised, in the absence of the Applicant’s representatives, to make an attempt either through the Respondent’s representatives or through the presiding member’s Associate to contact the Applicant’s solicitor or alternatively perhaps to stand the matter over for a brief period for this purpose. The Tribunal is not unmindful of the fact that the Applicant has contributed in no small measure to the predicament in which she finds herself. Nor is the Tribunal unmindful of the fact that clause 12 of Mr Vella’s affidavit contains yet another unfulfilled undertaking. It is possible also (although the Tribunal has formed no such view) that her application has little chance of success, but in the words of Burchett J, “the principles of natural justice are designed to ensure that the voice of the defence is heard, which is never more necessary than when the Tribunal is in danger of feeling that defence would be useless”. Put in other words, the principles of natural justice must have the result that the Tribunal should lean towards an interpretation, which permits the Applicant to be heard.
13. The Tribunal considers that it does have the power to grant a reinstatement order under subsection (9) and moreover that it is proper for it do so. However, and in the alternative, and if the Respondent’s submissions as to the non-applicability of subsection (9) are correct, the Tribunal considers that it should reinstate the application under subsection (10) in that the Tribunal in dismissing the application may have been in error in relation to the second of the two bases set out in clause 12. The Tribunal accepts that any such error in this regard cannot be categorised as an error of the “slip-rule” type but does not consider that subsection (10) is so confined.”
5. (a) Mr Robinson contended in relation to subsection (9) of section 42A of the Act that its linkage to subsection (8) and thus to subsection (2) arises only if one first reads subsection (8) (which is in its terms linked to subsection (2), and unlike subsection (9) which is not so linked. If one reads subsection (9) (without first reading subsection (8)) of section 42A of the Act, it is capable of standing on its own and so that it can apply to a dismissal under subsection (5) as well as to a dismissal under subsection (2). There is no need then in his view to resort to the explanatory memorandum because the wording of subsection (9) of section 42A of the Act is clear in its terms.
(b) Mr Robinson contended also that the judgment of the Full Federal Court in Brehoi v Minister for Immigration and Multicultural Affairs [1999] FCA 772; (1999) 58 ALD 385 as to this aspect is obiter and in any event distinguishable because it dealt with a different fact situation.
(c) I consider on reflection that my view as to subsection (9) of section 42A of the Act as expressed in The Taxpayer v Commissioner of Taxation (supra) was incorrect. The word “the” before the word “application” in subsection (9) of section 42A of the Act (rather than the word “an”) indicates, in my view, having regard in particular to the position of subsection (9) in the section, an intention to refer to a particular application (which can only be one to which subsection (8) refers) rather than any application; the use of the definite article is significant. If there is any doubt, that doubt is resolved by reference to the explanatory memorandum and the report, which preceded it. Clauses 22 to 30 (inclusive) of the judgment in Brehoi v Minister for Immigration and Multicultural Affairs (supra) are set out in these Reasons as follows:
“[22] Before concluding these reasons for judgment, there is one further matter which emerged from the materials before the court and which was raised by the court itself during the course of argument. It is a procedural matter of some importance that we consider we should advert to in these reasons.
[23] Section 42A of the AAT Act, under subs (2) of which the tribunal acted when dismissing Mr Brehoi's application to it, contains provisions in subss (8) to (10) thereof which enable the reinstatement by the tribunal of an application it has dismissed under that section. Those provisions are (relevantly) as follows:
(8) If the Tribunal, under subsection (2), has dismissed an application ..., the person who made the application may, within 28 days after receiving notification that the application has been dismissed, apply to the Tribunal for reinstatement of the application.
(9) If it considers it appropriate to do so, the Tribunal may reinstate the application....
(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....
[24] It will be noticed that, although s 42A(8) deals only with dismissals under s 42A(2), s 42A(10) is not so limited. It therefore applies to dismissals, not only under s 42A(2), but also under s 42A(1), (4) and (5).
[25] The three provisions which we have set out in par 23 above were inserted into the AAT Act in 1993 by the Administrative Appeals Tribunal Amendment Act 1993 (Cth). As was made plain by the Attorney-General at the time (see, for example, p 2 of the Senate Explanatory Memorandum for the Bill which became the 1993 Act), most of the provisions to be inserted by the amending Act (including the ones presently under discussion) were being enacted in order to give effect to the recommendations of the Report of the Review of the Administrative Appeals Tribunal, which report had been presented to both the Attorney-General and the president of the tribunal in November 1991.
[26] In that report, what became s 42A(8) and (9) had been dealt with together and what became s 42A(10) had been dealt with separately.
[27] As to what became s 42A(8) and (9), the report had identified as a problem (see App 9, Proposal 28) the following: "An application which has been dismissed for failure to appear cannot at present be reinstated although such failure is found to be excusable". Its proposed amendments to overcome that problem had been to provide (relevantly): first, that "the applicant may apply to the tribunal within 28 days of receipt of notification of dismissal for a direction that the dismissal be vacated"; and, secondly, that "if the tribunal is satisfied that it is appropriate to do so, it may so direct".
[28] As to what became s 42A(10), the report had identified as a problem (see App 9, Proposal 29) the following:
"The amendment proposed by proposal 28 would deal with the situation of vacation of a dismissal after failure to appear, and that failure is later found to have been excusable. There remains a need, both generally and if proposal 23 [which was that an applicant be permitted to `discontinue' an application in writing] be enacted, for there to be a power to vacate a dismissal where the application has been dismissed by administrative error on the part of the AAT."
In other words, the problem identified was the absence of a "slip" rule. The report’s proposed amendment to overcome that problem had been to provide that "the tribunal may vacate the dismissal of any application for review where such dismissal has occurred through administrative error on the part of the tribunal".
[29] The Senate explanatory memorandum for the bill which became the 1993 Act, in explaining the clause which became, without debate or amendment, s 42A(10), adopted (at p 11) the language which had been used in the report, saying that the clause provided for the tribunal "to reinstate an application which has been dismissed through administrative error on the part of the tribunal".
[30] Having said something of s 42A(8) to (10) of the AAT Act, it is necessary for us now to set out more of the circumstances in which the original application to this court was made.”
(d) Even if the judgment in Brehoi v Minister for Immigration and Multicultural Affairs (supra) on this point is obiter and even if it is distinguishable on its facts, it is a judgment of the Full Federal Court and as such strongly persuasive. It follows then that insofar as in The Taxpayer v Commissioner of Taxation (supra) I considered that subsection (9) of section 42A of the Act could have an independent existence and could apply to a dismissal under subsection (5), the view of the Full Federal Court in the light of Brehoi v Minister for Immigration and Multicultural Affairs (supra) must be preferred. Accordingly this application cannot be entertained under subsection 42A(9) of the Act.
6. (a) Subsection (10) of section 42A of the Act speaks merely of an of “error”. There is in my view, because there is no ambiguity, no need to refer to the explanatory memorandum which would suggest that it was intended that error be confined to one of the slip-rule type. It is not necessary to resort to Section 15AB of the Acts Interpretation Act 1901.
(b) Stroud’s Judicial dictionary (6 th edition, Sweet & Maxwell, London, 2000) at page 829 (Volume 1) in a lengthy entry for the word “error” commences with these words: ERROR. “’Errour’ is a fault in a judgment, or in the process or proceeding to judgment…”
(c) In Re Karakus and Comcare [2001] AATA 588; (2001) 65 ALD 744 Deputy President Wright found that “error” in this context is confined to error of the slip-rule type. In paragraphs 10 to 21 (at ALD 746-748) of that decision he said:
“...
(10) I was also referred by counsel to a number of previous tribunal decisions in which the scope and purpose of s42A(10) has been discussed. It was common ground that s42A(9) does not provide an alternative means to that created by s42A(10) for the tribunal to review questioned dismissal orders. As Senior Member Lewis said in Re Booth and Secretary, Department of Social Security (1998) 53 ALD 123 at 125-6:
“9. When reading subs (9) in conjunction with subs (8), the tribunal notes that subs (8) refers in the first instance to the dismissal of “an” application and later in the same subsection reference is made to “the” application, whereas subs (9) provides that the tribunal may reinstate “the” application. Although there is no conjunction joining the two subsections, and although there is no specific reference in subs (9) to subs (8) , it is arguable that subs (9) is only referable to a dismissal under subs (2). In consulting the Explanatory Memorandum to the Administrative Appeals Tribunal Bill 1992, clauses 55 and 56 state –
55. New s 42A(8) provides that in cases other than where the tribunal has made an order staying a decision the applicant may apply for reinstatement within 28 days of receipt of notification of dismissal. New s 42A(9) provides that the tribunal may, if it is appropriate to do so, reinstate the application by restoring it to its predismissal state and give such directions as the tribunal considers necessary to enable it to proceed with the review of the decision.
56. New s 42A(10) provides for the tribunal, on its own initiative, to reinstate an application which has been dismissed through administrative error on the part of the tribunal.
10. When considering the relevant subs (8) and (9) in the context of the Explanatory Memorandum, the tribunal interprets that subs (9) applies only to applications dismissed pursuant to s 42A(2) where the applicant seeks to have the matter reinstated pursuant to subs (8). This is consistent with the position held by the tribunal Re Pavlovic and Telstra Corporation Ltd (1994) 34 ALD 800 in respect of those subsections.
(11) A similar opinion was expressed by Senior Member Barbour in Butler and Secretary, Department of Social Security (unreported, AAT No 12455, 3 December 1997):
10. It is clear that s 42A(8) does not apply as the application was not dismissed pursuant to s 42A(2) of the Act. In any event, Ms Butler’s application is well outside the 28 day time limit set out in that subsection. The discretion in s 42A(9) only applies to applications that seek to be reinstated under s 42A(8).
(12) Senior Member Barbour then proceeded to consider the scope of s 42A(10) and whether or not it permitted a broad review of an apparently wrong decision by a tribunal member. He made the following observations:
Therefore, it appears that s 42A(10) is the only applicable subsection.
11. Section 42A(10) permits an application to be reinstated by the tribunal if the dismissal was made in error. However, in this instance the tribunal did not dismiss the application in error. Under s 42A(1A) an applicant has a statutory right to withdraw their application at any point in time. In this instance the applicant’s representative, Mr. Howard, wrote a clear and deliberate letter to the tribunal stating that Ms Butler did not wish to proceed with her appeal. Once the tribunal received this notification, the application was taken to have been dismissed pursuant to s 41A(1B) without proceeding to review the decision. In determining the meaning of the words “in error”, the tribunal has considered parliament’s choice of language used in s 42A(10). The subsection does not expressly state who must dismiss the application in error, however, given that the tribunal is the only authorised body that is able to dismiss an application, and not either of the parties, it follows that the subsection requires the tribunal to have made the error in dismissing the application. This interpretation of the legislation is strengthened by reference to the Explanatory Memorandum to the 1992 Amendment Bill which states:
“…new s 42A(10) provides for the tribunal, on its own initiative, to reinstate an application which has been dismissed through administrative error on the part of the tribunal.”
12. In the tribunal’s view the wording of the subsection is not ambiguous and reference to the Explanatory Memorandum suggests the same intention as stated above. Accordingly, it is not possible for the tribunal to reinstate an application pursuant to subsection 42A(10) where there was no error made by the tribunal in dismissing the application.”
(12) Views consistent with this were also put forward by Deputy President Forgie in Re McKenzie and Secretary, Department of Social Security (1998) 52 ALD 281 at 285:
That brings me to the second power of reinstatement given in s 42A(10). Parliament has chosen to adopt the passive voice in describing the application i.e. it refers to “an application … dismissed in error” but makes no specific reference to the person by whom or body by which it has been dismissed. It seems clear, however, that the body by which it has been dismissed must be the tribunal, for it is the only person or body which has that power. It equally follows that the error must have been made by the tribunal for it is the only person or body which can dismiss an application in error.
It may be that the tribunal has acted upon a consent to dismiss an application given by the parties in circumstances in which the consent was given unintentionally by the parties, or one of them, or without realisation of its significance. Even if that were to occur, it could not be said to be an error of the tribunal.
(13) It seems to me that in the final sentence of this passage Deputy President Forgie has put her finger upon the central issue in the present case that is the nature of the “error” which will permit the tribunal to exercise the jurisdiction provided for in s 42A(10). I am aware that what I am about to say is not consistent with the broad approach taken to this issue by Senior Member Handley in Re Greening and Repatriation Commission (1998) 52 ALD 110 and by Deputy President Burns in Re Schramm and Repatriation Commission (1998) 54 ALD 501. In each of those cases the tribunal member concerned took the view that s 42A(10) gave a discretionary power to intervene where “error” was established, but neither of them critically considered the nature of the “error” contemplated by the subsection.
(14) When I questioned the history of s 42A counsel for the respondent drew my attention to the decision of President O’Connor J in Re Mulheron and Australian Telecommunications Corporation (1991) 23 ALD 309 in which Her Honour commented upon the complete absence of any power in the Act for the tribunal to order the reinstatement of an application once dismissed. It seems clear enough that the 1993 Amendments to s 42A which included new subss (8), (9) and (10), were in part brought about in response to this perceived deficiency in the legislative scheme.
(15) It was properly conceded by counsel for the applicant that in giving meaning to these amendments it is proper and permissible to consider the minister’s explanatory memorandum, the relevant parts of which have been set out in two of the decisions already quoted above.
(16) I am left in little doubt that an “error” of the kind mentioned in s 42A(10) is very limited indeed. I agree with counsel for the respondent that “error” has its ordinary meaning as “something unintended or inadvertent”. This is consistent with the minister’s reference to “an application which has been dismissed through administrative error on the part of the tribunal” (my emphasis).
(17) The tribunal does not have a structured appellate hierarchy such as that found, for example, in a state supreme court, where there is usually a right of appeal from a master to a judge and from a judge to a full court or Court of Appeal. There is no such system in the tribunal. Although there are members with different grades of seniority or status there is no internal review mechanism allowing a general right of appeal from one member to another or to a group of others. The only appellate avenue provided is to the Federal Court on a point of law.
(18) How strange it would be if s 42A(10) were construed as providing a mechanism for review of one member’s decision by another, not only on the basis of a legal “error” perceived in the first member’s reasons, but also on the basis of identified factual “errors” made by him or her. Furthermore, as s 42A(10) permits the tribunal to act “on its own initiative”, we could have over-zealous members prying uninvited into the decisions of their colleagues in the hope or expectation that mistakes justifying intervention may be discovered and exposed. I find it impossible to subscribe to an interpretation of s 42A(10) which could have such startling consequences.
(19). In my opinion s 42A(10) is in the nature of a statutory “slip” rule which permits obvious and uncontroversial clerical and similar mistakes to be rectified with a minimum of fuss and bother: see re Hogarth Estate; Crisp v Hogarth [1962] Tas SR 17). A direction by a member deliberately and intentionally made is not within the scope of s 42A(10).
(20) It follows that the present application fails a threshold jurisdictional test and must be dismissed. Other avenues of challenge to Senior Member Allen’s direction may be more fruitful, but that remains to be seen.
(21) I direct that the application to reinstate the substantive proceedings be dismissed.”
(d) By contrast Senior Member Ettinger in Re Bell and Deputy Commissioner of Taxation [2001] AATA 598; (2001) 48 ATR 1001 found that the term is not so confined; Clauses 123 to 130 (inclusive) of the unreported AAT decision read as follows:
“...
123. Mr Connor made further submissions regarding what was intended by “error” in subsection 42A(10) of the AAT Act, submitting that it did not simply comprise matters of the “slip rule”. He compared it with the Rules of the NSW District Court and the body of principle developed in connection with setting aside of default judgments.
124. Mr Connor also submitted cases in which issues related to the “slip-rule” were raised, submitting they were there not confined the “slip” being that of the Court itself, (Charlie Brown Pty Limited v Green (Supreme Court of New South Wales, 25 August 1997, 4074/1194) and Tak Ming Co Ltd v Lee Sang Metal Supplies Co [1973] 1 WLR 300)). I am mindful of both these cases, noting that they do not in any way resemble the present case or consider reinstatement issues.
125. Mr Young, on the other hand, relying on Brehoi (supra), in particular on paragraphs 23-29 of the decision, submitted that it would have to be established that the application had been dismissed due to an error of the Tribunal on 21 February 2000 for reinstatement to be considered, and that it would then be through the application of section 42A(10) of the Act. It was not a question of error at large which was contemplated he said, but rather an error of the Tribunal.
126. Mr Young in the Respondent’s written submission of 19 July 2000, also submitted that error meant an administrative error or omission in the nature of the slip rule (L Shaddock & Associates Pty Ltd v The Council of the City of Parramatta [No 2] (1983) 151 CLR 590 at 594-5) but that in the instant case it was not a slip by the Tribunal but rather “continuing failure on the part of the Applicants as from 3 November 1999 to comply with the directions of the Tribunal and file a statement of facts contentions and evidence.”
127. I found that it was not entirely clear from the words of section 42A(10) of the AAT Act to whom the application “dismissed in error” was intended to be attributed, so in addition to considering their Honours in Brehoi (supra), I looked to section 15AB(1)(b)(i) and (ii) of the Acts Interpretation Act and the Explanatory Memorandum to the Administrative Appeals Tribunal Amendment Bill 1992. The latter states at paragraph 56 that the:
“New subsection 42A(10) provides for the Tribunal, on its own initiative, to reinstate an application which has been dismissed through administrative error on the part of the Tribunal.”
128. Sections 15AB(1)(b)(i) and (ii) of the Acts Interpretation Act, as relevant, provide:
“15AB Use of extrinsic material in the interpretation of an Act
(1) Subject to subsection (3), in the interpretation of a provision of an Act, if any material not forming part of the Act is capable of assisting in the ascertainment of the meaning of the provision, consideration may be given to that material:
(a) …
(b) to determine the meaning of the provision when:
(i) the provision is ambiguous or obscure; or
(ii) the ordinary meaning conveyed by the text of the provision taking into account its context in the Act and the purpose or object underlying the Act leads to a result that is manifestly absurd or is unreasonable.”
129. I agreed with Mr Connor’s submission that section 42A(10) of the AAT Act was not simply concerned with correcting clerical or accidental errors. I was mindful of the discussion of error in Brehoi (supra) and accepted also what Deputy President Block found held in Taxpayer v Commissioner of Taxation (AAT 12330, 22 October 1997) as follows:
“The Tribunal does not agree with the Respondent’s submission that subsection (10) is confined to an error of the ‘slip-rule’ type. It is true that the Explanatory Memorandum in respect of subsection (10) refers to an administrative error, but the subsection in its terms is not so confined, referring as it does merely to an error, and thus encompassing, in the view of the Tribunal, any type of error whether or not of the ‘slip-rule’ type. As Deputy President McDonald stated in Thomson and Comcare (AAT 10552, 24 November 1995):
“The words ‘in error’ used in s.42A(10) do not have a technical meaning and should not be given a narrow interpretation.”
130. I then proceeded to consider Mr Connor’s submissions with regard to what errors the Applicant submitted had been made pursuant to section 42A(10) of the AAT Act in the dismissal of the applications on 21 February 2000 by Senior Member Barbour. I have also considered the general discretion to reinstate below.”
(e) In Re Greening and Repatriation Commission (AAT 13224, 27 August 1998); (1998) 52 ALD 110, Senior Member Handley came to a conclusion which is in accord with that of Senior Member Ettinger in Re Bell and Deputy Commissioner of Taxation (supra); Clauses 19 to 25 (inclusive) of Senior Member Handley’s decision read as follows:
“…
(19) In the present application the claim of Mrs Greening was dismissed under s42A(5)(a) because it appeared that she had failed within a reasonable time to proceed with the application.
(20) An observation of the tribunal file would indicate that nothing was done after the second preliminary conference on 13 November 1997 until the dismissal on 29 April 1998. Her solicitor had not filed any reports nor had he complied with the tribunal’s Practice Directions with respect to lodging a statement of case. It must also be remembered that the second conference was convened some six months after the application was lodged. The tribunal had convened a conference on 22 September 1997 but it was adjourned so that the applicant’s solicitor might obtain some evidence in support.
(21) The delay in pursuing the claim of Mrs Greening became more obvious upon the submissions made from Mr DeMarchi at the directions hearing on 20 August when it appears, he had been in possession of information from his client since November or December 1997 which he said supported the case but over which he did nothing. It was not provided to the respondent nor was any submission made in support of his client’s case. Despite possession of information that he said supported the case he did not file any statement of case with the tribunal. He apparently obtained instructions not to withdraw the application yet he made no representation to the tribunal requesting that the application be re-listed for conference or for hearing. Mr DeMarchi made no representations to the tribunal nor communicated in any way at all on behalf of his client after November 1997. It is in the circumstances ironic that his first representation subsequent to the conference in November 1997 was after the tribunal notified him that his client’s case had been dismissed.
(22) At the directions hearing he was asked to comment upon whether the tribunal was in error in dismissing his clients application (refer s42A(10)). Having had handed to him the grail of relief, he treated it as a poisoned chalice and said that the tribunal “was probably not in error”.
(23) If the applicant’s solicitor cannot be relied on to prosecute his client’s case thereby causing it to have been dismissed it appears that this tribunal must at least take up his client’s cause and suggest why the application should be reinstated. The fact is, the application was dismissed “in error” and should be reinstated.
(24) The tribunal should have put Mrs Greening on notice that the in action on the part of her solicitor in advancing her case exposed her to the risk of dismissal. There was clearly, upon any reasonable observation of the tribunal file, a conclusion capable of being drawn that she was failing to proceed within a reasonable time. The events and inaction subsequently learnt would tend to reinforce that view however she should have been given an opportunity to make submissions as to why the application should not have been dismissed.
(25) As Burchett J said in Guse v Comcare (1997) 49 ALD 288 at 291; 25 AAR 477 at 480 (when commenting upon s42A(5)(b) no less applicable to the present application)-
This is plainly a valuable discretionary power. But para (b) does involve denying
an applicant a hearing of the merits of his application. That should be done very sparingly, and only, I think as a discretion of last resort. Particularly is this so in a case where the genuineness of the claim is not in dispute.”
(f) In Re Mulheron and Australian Telecommunications Corporation (1991) 23 ALD 309 O’Connor J sitting as President of this Tribunal held that an extension of time application is competent until a merits review has been concluded. Ms Rands criticised the decision in Re Greening and Repatriation Commission (supra) on the basis that it placed undue reliance on the decision in Re Mulheron and Australian Telecommunications Corporation (supra), which was not strictly relevant. I agree that the decision in Re Mulheron and Australian Telecommunications Corporation (supra) was not strictly relevant; (I note also that the view of O’Connor J in Re Mulheron and Australian Telecommunications Corporation (supra) must be strongly persuasive). But that said, the view of Senior Member Handley in Re Greening and Repatriation Commission (supra) was nevertheless that “error” is not confined to a “slip-rule” error.
(g) As to Re Karakus and Comcare (supra) I am inclined to agree with Mr Robinson’s contention that Deputy President Wright may not have been correct in the fourth last paragraph (paragraph 18) of his decision. If I had not been available for this application, another member would have heard it and that other member would have been required to form a view as to whether I had erred. Much the same situation arises where the Federal Court remits matters to a reconstituted Tribunal after an appeal. I do not with respect, agree with the Deputy President’s views as to the interpretation of subsection (10) of section 42 A of the Act and prefer the views expressed in the other cases cited in these Reasons, and including my own decision in The Taxpayer v Commissioner of Taxation (supra) and the cases cited in it.
7. (a) A close and careful examination of the dismissal date transcript, indicates, in relation to the Applicant, statements which are inherently and directly contradictory, and are not possible to reconcile. He indicated in the clearest possible terms that he wished to present evidence and said that his own statement was close to completion. On the assumption that the hand-written notes, to which I have referred, constituted his statement, his claim that his statement was nearly complete was exaggerated. And in any event, there was another witness whose evidence he wished to present. However, there is also an indication that the Applicant might have been prepared to rely on the documents then before me, being the T documents.
(b) The Applicant had repeatedly sought extensions of time within which to furnish written statements. I dismissed the applications under subsection (5) of section 42A of the Act in the exercise of discretionary powers, and having regards to the Applicant’s repeated and consistent failures detailed earlier in these Reasons. It might be thought that the Applicant deserved dismissal in all the circumstances in the light of those consistent failures, and having regard to the altogether cavalier manner in which he treated directions by this Tribunal. But there is another view; it is arguable that it would have been preferable for me to offer the Applicant the opportunity of proceeding to a hearing on the papers before me, and being of course the T documents. There is a possibility that he would have accepted; as to whether he could have run his case on the basis of the T documents alone, and having regard to the nature of the issues as described to me by Mr. Robinson, is another matter. The Applicant was self-represented and deserving of special consideration; the fact that this offer was not made may have resulted in prejudice (and a denial of natural justice) to the Applicant, and constituted, in my view, and on reflection, an error.
(c) It is my view, as I have said, that “error” in subsection (10) of section 42A of the Act is not confined to error of the “slip-rule” type. I consider then that, for these reasons, I should reinstate the applications under subsection (10), and I do so on the basis that the matter can and should now be listed for a hearing. At the risk of labouring the point I am of the opinion that the word “error’’ in subsection (10) of section 42A is not ambiguous and that it should be given its ordinary meaning and that reference to the explanatory memorandum is unnecessary. I note also that the legislation is remedial and should be construed accordingly.
8. My decision in this regard is altogether independent of the possibility of discretionary relief in respect of an extension of time in line with Re Mulheron and Australian Telecommunications Corporation (supra). I need not say more on this aspect.
9. In the circumstances, the applications are reinstated under section 42A(10) of the Administrative Appeals Tribunal Act 1975 and the matter should be set down for hearing.
I certify that the 9 preceding paragraphs are a true copy of the reasons for the decision herein of Mr J Block, Deputy President
Signed: H. Sim .....................................................................................
AssociateDate/s of Hearing 6 and 13 June 2002
Date of Decision 28 June 2002
Counsel for the Applicant Mr C Robinson
Solicitor for the Applicant Mr P Wiseman
Solicitor for the Respondent Ms V Rands
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