Thomas Porkovich v Secretary, Department of Employment and Workplace Relations

[2007] AATA 61

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2007] AATA 61

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No A2005/215

GENERAL ADMINISTRATIVE  DIVISION		)
Re		THOMAS PORKOVICH

Applicant

And SECRETARY, DEPARTMENT OF EMPLOYMENT AND WORKPLACE RELATIONS

Respondent

DECISION

Tribunal Mr S. Webb, Member

Date16 February 2007

PlaceCanberra

Decision The Tribunal decides that it is not appropriate to reinstate Mr Porkovich's application.

..............................................

Mr S. Webb, Member

CATCHWORDS

PRACTICE AND PROCEDURE - application dismissed for failure to appear and failure to progress the application - request for reinstatement - discretion to reinstate - relevant factors - not appropriate to reinstate application in the circumstances

Administrative Appeals Tribunal Act 1975 s 42A

Acts Interpretation Act 1901 s 28A

Brehoi v Minister for Immigration and Multicultural Affairs (2000) 58 ALD 385

Booth and Secretary, Department of Social Security (1998) 53 ALD 123

Re Schramm and Repatriation Commission (1998) 54 ALD 501

Re Karakus and Comcare (2001) 65 ALD 744

Beard v Telstra Corporation Limited (1999) 57 ALD 376
Re Beadle v Director-General of Social Security (1984) 6 ALD 1

Groth v Secretary Department of Social Security (1995) 40 ALD 541

REASONS FOR DECISION

16 February 2007 Mr S. Webb, Member         

1.      On 20 July 2005 Thomas Porkovich lodged an application in the Tribunal.  The application was for review of a decision to raise and recover from him an overpayment debt in the amount of $31,293.74.  On 11 August 2006 his application was dismissed pursuant to subsections 42A(2) and (5) of the Administrative Appeals Tribunal Act 1975.  Mr Porkovich subsequently requested reinstatement of his application.

2.      The issue to be decided is whether it is appropriate in the circumstances to reinstate Mr Porkovich’s application.

background

3.      Before dealing with Mr Porkovich's request it is convenient, briefly, to set out the procedural history of his application and the Tribunal's dealings with him.

4.       In his application Mr Porkovich informed the Tribunal that his address was 17 Halifax Close, Palmerston, ACT. He was not represented and was provided with outreach services by the Tribunal.  A number of interlocutory processes ensued and the matter was set down to hearing on 15 November 2005.  Listing notices and other communications were sent to his nominated address.  Mr Porkovich attended the hearing by telephone.  However the hearing was cut short by Mr Porkovich and the matter was not concluded.  The Senior Member presiding directed that a conference be listed to progress the matter after 30 November 2005. The matter was set down for a telephone directions hearing on 9 December 2005 and notices were sent to his nominated address.  Mr Porkovich failed to attend that hearing.  He was formally directed to provide an explanation for his failure to attend the hearing and the matter was relisted for a telephone directions hearing on 16 December 2005.  Listing notices were sent to Mr Porkovich's nominated address.  He was formally notified that failure to comply with the directions or failure to attend the hearing may lead to his application being dismissed.  Mr Porkovich attended the telephone directions hearing on 16 December 2005 and informed the Tribunal that he intended to withdraw his application and that he would do so formally within seven days, that is by 23 December 2005.

5. On 10 January 2006 the Tribunal contacted Mr Porkovich by telephone in relation to his intentions. The Tribunal officer noted on the file that Mr Porkovich confirmed his intention to formally withdraw his application. On 24 January 2006 the Tribunal wrote to Mr Porkovich at his nominated address and provided him with 14 days in which to inform the Tribunal about his intentions to either proceed with or withdraw his application. Mr Porkovich was also informed that failure to notify the Tribunal either way may lead to his application being dismissed under subsection 42A(5) of the Administrative Appeals Tribunal Act 1975.  Mr Porkovich did not notify the Tribunal of his intentions as requested.

6.      The Tribunal attempted to contact Mr Porkovich by telephone on 8 February 2006 and 9 February 2006 without success.  On 15 February 2006 the Tribunal succeeded in contacting Mr Porkovich by telephone.  Mr Porkovich informed the Tribunal officer that he had been unwell and agreed with the Tribunal officer's suggestion that the matter could be heard on the papers, so long as no further input from him was required.  However, the respondent Secretary did not consent to a hearing on the papers and pressed to be represented at the hearing.  The Tribunal attempted to contact Mr Porkovich by telephone on 28 March 2006 without success.  On 30 March 2006 the Tribunal wrote to Mr Porkovich at his nominated address informing him that a hearing date would be allocated for this application and attaching a hearing certificate form for him to complete and return.  On 4 May 2006 the Tribunal attempted to contact Mr Porkovich by telephone without success.  On 15 May 2006 the Tribunal listed Mr Porkovich’s application to be heard on 3 July 2006 and sent him a listing notice.  The listing notice was sent by registered post to Mr Porkovich’s nominated address.  Subsequently the listing notice was returned to the Tribunal unclaimed.

7.      On 14 June 2006 the Tribunal again attempted to contact Mr Porkovich by telephone, without success.  The listed hearing was vacated and was relisted on 11 August 2006.  The Tribunal sent Mr Porkovich a listing notice informing him of the change by registered post to an alternative address at 26 Macaulay Road, Stanmore, New South Wales.  The notice was returned to the Tribunal unclaimed on 14 July 2006.  Subsequently Tribunal officers made repeated attempts to contact Mr Porkovich by telephone, without success.  Efforts were made to ascertain whether Mr Porkovich had changed his contact details with Centrelink.  The Tribunal was advised that no such change had been made.

8.      On 11 August 2006 the listed hearing proceeded.  Mr Porkovich failed to appear.  Tribunal officers attempted to contact him by telephone without success.  The respondent Secretary pressed for dismissal of the matter.  I was satisfied that the Tribunal had made all reasonable efforts to notify Mr Porkovich of the hearing that was initially listed for 3 July 2006 and subsequently listed for an 11 August 2006, and to ascertain his intentions.  Furthermore I was satisfied that Mr Porkovich had previously been informed of the possibility that his matter may be dismissed if he failed to appear at a listed hearing.  In the circumstances I was satisfied that it was appropriate to dismiss the matter pursuant to subsection 42A(2) of the AAT Act as a result of Mr Porkovich’s failure to appear at the hearing, it then being open to Mr Porkovich to provide an explanation for his failure to appear and to apply for reinstatement of his application within 28 days thereafter. 

9. Furthermore Mr Porkovich had failed to progress his application for an extended period of months and, on the basis of his verbal comments to Tribunal officers in December 2005 and February 2006, it appeared that he did not intend to proceed with his application. I note that Mr Porkovich indicated his willingness to have the matters dealt with on the papers when this was suggested by Tribunal officer so long as no further input was required from him. Mr Porkovich’s intentions in relation to his application were squarely tested when the matter was set down for hearing and he failed to appear. Mr Porkovich did not communicate with the Tribunal or progress his application in any way during this period. His whereabouts and his intentions were unknown. The onus was on Mr Porkovich to inform the Tribunal of any change in his contact details or his address. No such information had been provided. In those circumstances, as a last resort, I was satisfied that it was appropriate to dismiss the matter pursuant to subsection 42A(5) of the AAT Act.

10.     On 11 August 2006 Mr Porkovich was sent a notice informing him of the decision of the Tribunal to dismiss his application and of his rights to request reinstatement of his application within 28 days pursuant to subsection 42A(8), or to lodge an appeal in the Federal Court.

11.     On 17 November 2006 the Tribunal received a letter from Mr Porkovich responding to the Tribunal’s letter dated 30 March 2006, which had been sent to his nominated address.  In the letter Mr Porkovich stated that he had relocated to a new address and requested a new hearing date in Sydney.  He attached a brief report by Dr Maryanne O'Donnell, consultant psychiatrist, dated 15 August 2006.  Dr O'Donnell stated that:

“Mr Thomas Porkovich suffers from Bipolar Affective Disorder and was an inpatient at the Prince of Wales Hospital Mental Health Unit (The Kiloh Centre) from 28 /3/06-9/5/06 for treatment of Major Depression.  He had become increasingly unwell during the year prior to admission and he had ongoing persistent symptoms which have been milder since discharge.

He is currently taking antidepressant medication and attends the Kiloh Centre regularly for follow-up treatment with myself and to attend Cognitive Behaviour Therapy groups."

consideration of issues

12.     Mr Porkovich suffers from a chronic mental illness.  He asserts that he was hospitalised for a period of months in 2006 and was unable to communicate effectively with the Tribunal or to organise his affairs sufficiently to progress or deal with his application before the Tribunal.  He says it would be manifestly unfair of the Tribunal to deny him the opportunity to have his matter heard and dealt with.  On that basis Mr Porkovich asserts that the Tribunal should reinstate his application and allocate a new hearing date.

13.     For reasons that will appear I do not agree.

14.     The Tribunal's powers to dismiss or to reinstate a matter are set out at section 42A of the AAT Act.  The relevant dismissal powers that were applied in this case are set out at subsections 42A(2) (dismissal if a party fails to appear) and 42A(5) (dismissal if applicant fails to proceed).  The power to dismiss a matter if an applicant party fails to appear is subject to subsection 42A(7), whereby the Tribunal must be satisfied that appropriate notice was given to the person who failed to appear of the time and place of the hearing.  In the case of such a dismissal the applicant party may apply to the Tribunal for reinstatement of the application within 28 days after receiving notification that the application has been dismissed (subs42A(8)) and there is discretion in the Tribunal to reinstate the application if it is satisfied it is appropriate to do so (subs42A(9)).  Subsection 42A(10) of the AAT Act confers power on the Tribunal to reinstate an application that has been dismissed in error.  It is germane to note that subsections 42A(8) and (9) deal only with dismissals under subsection 42A(2) of the AAT Act, whereas subsection 42A(10) has a broader scope (Brehoi v Minister for Immigration and Multicultural Affairs (2000) 58 ALD 385 at 389; Booth and Secretary, Department of Social Security (1998) 53 ALD 123 at 125-126).

15.     Thus it can be seen that the Tribunal has discretion to reinstate a dismissed application if it is appropriate to do so in all the circumstances, considering what the justice of the particular case requires.  Before considering whether to exercise the discretion to reinstate an application that has been dismissed for failure to appear or failure to proceed it is necessary to consider factors that precondition the discretion.  That is, whether the applicant requested reinstatement within the prescribed time (subs42A(8)) and whether the application was dismissed in error (subs42A(10)).  I note that there is some divergence in previous Tribunal decisions concerning the interpretation of ‘error’ and the nature of the reinstatement power that is conferred on the Tribunal by subsection 42A(10) (see Re Schramm and Repatriation Commission (1998) 54 ALD 501 and Re Karakus and Comcare (2001) 65 ALD 744, for example). It is not necessary for me to resolve a concluded view on those issues in order to finalise Mr Porkovich’s case. If the preconditioning factors are satisfied the power to exercise the discretion is enlivened and then it is necessary to consider what the justice of the case requires having regard to all of the circumstances.

preconditioning factors

time limit to request reinstatement

16. Mr Porkovich's application was dismissed on 11 August 2006. On that day he was sent a notice informing him of the decision to dismiss his application, his right to apply to have the matter reinstated within 28 days and his right to appeal to the Federal Court. The notice was sent to his nominated address. He did not seek reinstatement of his application until 17 November 2006. It is not clear on the evidence when Mr Porkovich received this notice, if he received it at all. The Tribunal does not have the benefit of Mr Porkovich's recollection on this point as he discontinued his involvement in the reinstatement hearing at an early stage. On the face of it Mr Porkovich’s request for reinstatement, dated 17 November 2006, was substantially outside the 28 day period referred to in subsection 42A(8). In the usual course, consistent with section 28A of the Acts Interpretation Act 1901, the notice of dismissal would be deemed to have been served on Mr Porkovich by sending it by prepaid post to his nominated address.  However the 28 day period specified in subsection 42A(8) runs from the date the person received the notice.  It is not necessary for me to go further on this point as the issue of reinstatement turns on other matters, as will become clear.  Giving Mr Porkovich the benefit of doubt, I will proceed on the basis that he is not precluded from seeking reinstatement as a result of making his request out of time.

error

17.     Was the Tribunal's decision to dismiss Mr Porkovich’s application infected with error?  I am satisfied that was not. 

18. I am satisfied that there was no error in the Tribunal’s decision to dismiss Mr Porkovich’s application pursuant to subs 42A(2). The fact is that Mr Porkovich failed to appear at a listed hearing before the Tribunal. I am satisfied that he was given appropriate notice of the hearings listed for 3 July 2006 and 11 August 2006 and the dismissal power was not exercised contrary to subs 42A(7) of the AAT Act. Notices were given in accordance with section 28A of the Acts Interpretations Act 1901 by prepaid post to Mr Porkovich is nominated address.  Furthermore notices were sent to his nominated address by registered post.  If Mr Porkovich had changed his address the onus was on him to inform the Tribunal of that change.  He did not inform the Tribunal of any such change until 17 November 2006.  I note that Mr Porkovich was discharged from hospital on 9 May 2006, two months prior to the listed hearing on 3 July 2006 and three months prior to the hearing listed on 11 August 2006. 

19.     I am satisfied that there was no error in dismissing his application pursuant to subs 42A(5) as a result of Mr Porkovich’s failure to proceed with his application.  I am satisfied that Mr Porkovich had clearly communicated his intention not to proceed when he informed the Tribunal of his intention to withdraw his application in December 2005 and January 2006.  This was further confirmed by Mr Porkovich in February 2006 when he discussed the possibility of the matter being heard on the papers so long as no further input was required from him.  Mr Porkovich's intentions were put to the test when the matter was set down the hearing in July 2006 and August 2006.  In those circumstances I am satisfied that the Tribunal made no error in dismissing his application.

20.     It follows therefore that the discretion that is conferred on the Tribunal by subsection 42A(10) to reinstate an application that was dismissed in error is not enlivened in this case. 

21.     However, even if I was wrong in that conclusion and the subs 42A(10) discretion was enlivened, it would not be the end of the matter.  It would be necessary to decide whether it would be appropriate to exercise the discretion in all of the circumstances.  That test also applies pursuant to subs 42A(9) and must be applied in this case.

discretion to reinstate

22.     Considering the requirements for justice in this case, is it appropriate to reinstate Mr Porkovich’s application in all the circumstances? To properly answer that question it is necessary to consider the Applicant’s explanation of the reasons for his failure to appear (for completeness I will consider his reasons for failing to progress his application within a reasonable time), any prejudice or unfairness to the other party that will result from the reinstatement, whether Mr Porkovich has been denied procedural fairness and the merit of his substantive case (without proceeding to review).  Furthermore in cases where an application has been dismissed as a result of the applicant's failure to proceed with the application within a reasonable time, the preparedness of the applicant to proceed with the application must be tested (Beard v Telstra Corporation Limited (1999) 57 ALD 376 at 381-382).

explanation

23.     Mr Porkovich asserts that his mental illness and hospitalisation in 2006 were the reasons he failed to appear at the hearing listed on 11 August 2006.  He asserts that these factors prevented him from proceeding with his application and impaired his judgement.  Dr O'Donnell states that Mr Porkovich had become increasingly unwell during the year prior to admission and he had ongoing persistent symptoms which have been milder since discharge and that, subsequently, Mr Porkovich has received regular treatment for his condition in the form of antidepressant medication and cognitive behaviour therapy. 

24.     Examination of the Tribunal file reveals that Mr Porkovich was able to communicate with the Tribunal and appear, albeit briefly, at listed hearings in the period from July to December 2005 prior to his admission.  He was also able to progress his application during this period, albeit with some difficulties from time to time.  It is reasonable to expect that Mr Porkovich’s ability to communicate with the Tribunal and to progress his application would be enhanced rather than diminished by any improvement in his condition as reported by Dr O'Donnell.  Thus, while I accept that prosecuting his application in the Tribunal may have presented some difficulties for Mr Porkovich in the circumstances, and reasonable flexibility should be allowed as a result of those difficulties, I do not accept and I am not persuaded that his mental illness and hospitalisation (which ended on 9 May 2006) adequately explains his failure to appear at the hearing on 11 August 2006 or his failure to communicate with the Tribunal and progress his application prior to that date.  In fact Mr Porkovich did not communicate with the Tribunal or attempt to progress his application until 17 November 2006.  Mr Porkovich was not able to be examined on these points as he had removed himself from the hearing.

disadvantage

25.     I accept that there is some minor prejudice to the Respondent that would flow from reinstatement of this application in terms of costs that will be incurred and the adverse effects of the passage of time on the quality and availability of evidence.  With the effluxion of time it can be expected that the quality of evidence from witnesses asked to recall matters from years before may be eroded.  However I am not persuaded that the resulting disadvantage to the Respondent, alone, is sufficient ground to refuse to reinstate Mr Porkovich’s application.

merit 

26.     I have considered the substantive issues and the evidence before the Tribunal in Mr Porkovich's substantive application, without proceeding to review.  I am satisfied that his application has little merit or prospect of succeeding.  There are two aspects to his case: 1) whether amounts of disability support pension and rent allowance were overpaid and correctly raised as a debt for which Mr Porkovich is liable; and 2) whether there are grounds to write off or waive recovery of that debt from Mr Porkovich.  The particular basis on which Mr Porkovich is prosecuting his case is not entirely clear. 

27.     With regard to the first aspect it is unclear whether Mr Porkovich disputes that he was overpaid amounts of disability support pension and rent allowance, or whether he disputes the amount of the debt that has been raised against him.  In order to do so there would need to be some evidence that the decision under review was wrong: either that he was not over paid (for example, that he correctly declared his income from share-trading, or that he did not own the house in which he lived at the time in relation to which he claimed rent allowance), or that he was over paid as a result of administrative error.  He has filed no evidence, and I have seen no evidence in the documents that are before the Tribunal, to suggest that his case, in this aspect, has any prospect of succeeding. 

28.     With regard to the second aspect, it appears that Mr Porkovich wants any overpayment debt for which he is liable written off or waived on the basis of his mental illness.  He asserts that his mental illness affects his judgment.  Furthermore Mr Porkovich asserts that Centrelink has acted in a manner that is unjust, unreasonable and inappropriate.  Mr Porkovich has not filed any evidence and I have not seen any evidence in the material that is before the Tribunal of administrative error by Centrelink.  For Mr Porkovich to succeed in this aspect of his case special circumstances would need to be found to exist that make it appropriate to waive his debt in whole or in part.  On the available material there is little merit in the proposition that Mr Porkovich’s disabilities, including impaired judgment as a result of his mental illness, constitute special circumstances, that is, circumstances that are unusual, uncommon or exceptional (Re Beadle v Director-General of Social Security (1984) 6 ALD 1). While care must be exercised when dealing with a case such as Mr Porkovich’s, it cannot be said in the circumstances that the disabling aspects of his mental illness are distinguished from other recipients of disability support pension who suffer from disabling mental illnesses. There is no evidence before me to indicate that recovery of the debt from Mr Porkovich would result in anything unfair, unjust or unreasonable occurring (Groth v Secretary Department of Social Security (1995) 40 ALD 541).

29.     I am mindful that Mr Porkovich has not clearly articulated his case and has not given evidence on these key aspects.  Plainly enough if Mr Porkovich's application is not reinstated he will be denied the opportunity of presenting his case.  That may be unfair to him.  However he has been provided with opportunities to present his case on several occasions over an extended period and has not done so. On the available evidence that is before the Tribunal his case has little merit or prospect of success. 

fairness

30.     Justice requires fairness to both parties with due regard to all the particular circumstances.  I am satisfied that Mr Porkovich has not been denied procedural fairness in the circumstances.  He was provided with an opportunity to present his substantive case at a hearing in December 2005 before Senior Member Constance, but withdrew from the hearing at an early stage.  In December 2005, January 2006 and February 2006 he was provided with opportunities to discuss his case and any difficulties he may be encountering with officers of the Tribunal, but clearly indicated his intention to withdraw his application.  Mr Porkovich was provided with an opportunity to discuss his case for reinstatement in a hearing before me on 7 February 2007.  He withdrew from the hearing at an early stage.  

31.     Even so, denying Mr Porkovich an opportunity to present his case may be construed as unfair.  It is desirable to provide reasonable flexibility to Mr Porkovich in the circumstances in order to permit his case to be heard.  However, any unfairness to Mr Porkovich must be considered in relation to any unfairness attending upon the Respondent.  At each stage the Respondent has been represented and put to costs, despite the continuing uncertainty and delay in this application.   Even at this late stage Mr Porkopvich has not presented evidence to support his case against Centrelink and the decision under review.  Thus it can be seen that delay and uncertainty colour this case and cause unfairness to the Respondent.

conclusion

32.      On the available evidence, there is little merit in Mr Porkovich’s application.  Permitting the matter to be reinstated, in the circumstances, will be unfair to the Respondent.  Justice is not served by unreasonably permitting delay and uncertainty in Tribunal proceedings.  I am mindful of Mr Porkovich’s particular and unfortunate circumstances and that justice requires that his application is dealt with fairly and on the merits as expeditiously as possible.  Nevertheless, on balance, and considering all of the circumstances (including Mr Porkovich’s explanation and the prospective merit of his application) I am satisfied that any unfairness to Mr Porkovich is outweighed by other relevant factors.  That being so I am satisfied pursuant to subsection 42A(9) that it is not appropriate to reinstate Mr Porkovich’s application.

33.      Thus Mr Porkovich's request for reinstatement of his application is not successful.

I certify that the 33 preceding paragraphs are a true copy of the reasons for the decision herein of Mr S. Webb, Member

Signed:       ..............(Peter Strauch).....................................
  Associate

Date of Hearing  7 February 2007
Date of Decision  16 February 2007
Representative for the Applicant             Self represented
Solicitor for the Respondent  Gary Richardson
  Centrelink Legal Services Branch