Thumma and Telstra Corporation Limited (Compensation)

[2016] AATA 1085

Thumma and Telstra Corporation Limited (Compensation) [2016] AATA 1085 (23 December 2016)

Division	GENERAL DIVISION
File Number(s)	2015/1670
Re	Rakesh Thumma
APPLICANT
And	Telstra Corporation Limited
RESPONDENT

DECISION

Tribunal

Egon Fice, Senior Member

Date of Decision

Written reasons

15 December 2016

23 December 2016

Place

Melbourne

The Tribunal in its decision of 15 December 2016, refused the application for reinstatement.

[sgd]........................................................................

Egon Fice, Senior Member

PROCEDURAL – application for reinstatement – application dismissed under s. 42A(5) for failure to comply with a direction – whether application dismissed in error – notes to direction refer to holding directions hearing prior to dismissal – notes not followed – nature of error contemplated by s.42A(10) – direction itself warned of dismissal for failure to comply - reinstatement refused.

Legislation

Administrative Appeals Tribunal Act 1975 ss. 33(1), 33(2), 42A(1B), 42A(5), 42A(8), 42A(10)

Safety, Rehabilitation and Compensation Act 1988 s. 57

Cases

Goldie v Minister for Immigration and Multicultural Affairs [2002] FCAFC 367

REASONS FOR DECISION

Egon Fice, Senior Member

1. On 27 September 2016 I dismissed Mr Thumma’s application under s. 42A(5) of the Administrative Appeals Tribunal Act 1975 (AAT Act).  That section of the AAT Act provides:

   (5)If an applicant for a review of the 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;

   the Tribunal may dismiss the application without proceeding to review the decision.

2. The problem with Mr Thumma’s application, which was made under the Safety, Rehabilitation and Compensation Act 1988 (SRC Act), is that in a letter dated 18 March 2016, Telstra issued to Mr Thumma a notice under s. 57 of the SRC Act requiring him to undergo an examination by a psychiatrist, Dr G Mendelson . That notice cautioned Mr Thumma that if he failed to attend the examination without providing a reasonable excuse, all rights to compensation benefits and all other activity on his claim in the proceeding would be suspended.

3. In a letter dated 4 April 2016, Sparke Helmore, solicitors for the respondent, Telstra Corporation Limited (Telstra), informed Slater and Gordon, solicitors for Mr Thumma, that he had failed to attend the scheduled appointment with Associate Professor Mendelson and sought Mr Thumma’s explanation for failing to attend.  Associate Professor Mendelson had invoiced Sparke Helmore in the sum of $385 for his failure to attend.  I am not aware of any explanation given by Mr Thumma for that failure.  According to Sparke Helmore, no evidence had been provided to support a reasonable excuse for Mr Thumma’s non-attendance on 23 March 2016.

4. Sparke Helmore issued a further notice pursuant to s. 57 of the SRC Act requiring Mr Thumma to attend for examination by Associate Professor Mendelson on 31 August 2016. I held a directions hearing in this matter on 6 June 2016 at which both parties had legal representation. At that directions hearing, Sparke Helmore requested that I make directions requiring Mr Thumma to attend the examination by Associate Professor Mendelson on 31 August 2016. I also made the further direction:

   2.If the Applicant fails to attend the appointment with Associate Professor Mendelson without reasonable excuse, his right to continue with this application will be suspended and may be subject to dismissal pursuant to section 42A(5) of the Administrative Appeals Tribunal Act 1975.

5. On 25 August 2016 Sparke Helmore sent an email to Slater and Gordon seeking confirmation that he would attend the scheduled medical examination.  In a letter dated 26 August 2016 Slater and Gordon informed Sparke Helmore that Mr Thumma was unable to attend the scheduled medical appointment on 31 August 2016 because he was required urgently overseas.  The letter further stated that he would not be returning to Australia until 12 September 2016 and requested that the appointment again be rescheduled.  No explanation was offered for why Mr Thumma needed to go overseas urgently nor did Mr Thumma inform Sparke Helmore that he was unable to attend the appointment with Associate Professor Mendelson on 31 August 2016.

6. In an email dated 27 September 2016, Sparke Helmore referred to the directions which I made on 6 June 2016. They requested that the Tribunal dismiss this matter under s. 42A(5) of the AAT Act. On 27 September 2016 I made the following decision:

   The Tribunal was satisfied that the Applicant has failed within a reasonable time to comply with a direction made by the Tribunal under section 33(2) of the Administrative Appeals Tribunal Act 1975 (AAT Act) in relation to the application.

   Pursuant to section 42A(5) of the AAT Act, the Tribunal dismisses the application.

7. On 19 October 2016 Slater and Gordon sent an email to the Tribunal stating:

   We advise that by letter dated 26 August 2016, we wrote to the Respondent that the Applicant was unable to attend the scheduled medical appointment with Associate Professor Mendelson on 31 August 2016 as he was urgently required overseas.  We advise that the applicant would not be back until 12 September 2016 and requested that the appointment be rescheduled.

   Whilst we acknowledge the Tribunal’s directions dated 6 June 2016 directing the Applicant to attend the appointment with Associate Professor Mendelson.  It is our submission that the Applicant had a reasonable and unavoidable excuse for his non-attendance.  Further, we note the Applicant was not provided with an opportunity to indicate this prior to the dismissal of the matter.  We can now confirm that our client is ready, willing and able to attend an appointment with Associate Professor Mendelson and to progress his matter.

   In these circumstances, we respectfully request that the matter be reinstated or that a Telephone Directions Hearing be listed so the applicant may make his case.

8. I have treated the above letter as an application for reinstatement by Mr Thumma.  In an email dated 31 October 2016 sent to the Tribunal and copied to Mr Thumma’s solicitors, Sparke Helmore submitted that the application for reinstatement should also be dismissed.  They said:

   …

   Since the application was dismissed, the applicant has not clarified the circumstances for not attending the medical examinations scheduled on 23 March 2016 and 31 August 2016 (and thereby not complying with a Tribunal direction and a notice from the respondent under s. 57 of Safety, Rehabilitation and Compensation Act 1988), provided any statement or supporting evidence, or explanation as to why his excuse should be considered reasonable.

   No explanation has been provided for non-attendance of the first appointment on 23 March 2016.  The applicant’s non-attendances have resulted in cancellation fees that remain unpaid.  In our submission, any excuse provided by the applicant should not be accepted without evidence supporting the applicant’s reasons, for example, a statement from the applicant and/or witnesses, evidence of travel, accommodation and urgency, noting that the respondent was not advised of the applicant’s unavailability for the first appointment and, the respondent was given less than three working days’ notice prior to the second appointment (after being reminded by the respondent).

   …

   ·No evidence has been provided to support the applicant’s excuse that he was overseas, or the circumstances that required the applicant to be overseas at short notice (that is, without allowing time to request an amendment to the Tribunal’s direction prior to going overseas).  We note that the applicant’s lawyer was unaware of the applicant’s intention to travel overseas.

   It has taken the applicant over three weeks to make a reinstatement application and the applicant was forewarned that his application may be dismissed if he failed to attend the medical examination without reasonable excuse.  We therefore submit that the applicant has not provided a reasonable excuse for not attending the medical examinations and for failing to comply with the Tribunal’s direction – we therefore request that application for reinstatement should be dismissed.

9. In response to Sparke Helmore’s email of 31 October 2016, Slater and Gordon sent an email to the Tribunal on the same day stating:

   We refer to the below and request 14 days in which to address the respondent’s contentions and obtain the appropriate evidence.  Our client has confirmed that he was required urgently overseas to care for his mother who was required to undergo an unexpected and sudden surgical procedure.  We have requested this evidence from our client who has indicated he can provide it within 14 days.

10. On 17 November 2016 Sparke Helmore notified the Tribunal that Telstra opposed the reinstatement application and asked that the application be heard on the next available date.

11. In response, Slater and Gordon sent an email to the Tribunal explaining that Mr Thumma had instructed them that he did not attend his appointment with Associate Professor Mendelson on 23 March 2016 because he was ill at the time and, although he intended to attend, due to his sickness he slept in.  Mr Thumma’s solicitors then went on to say:

    …

    We refer to the appointment arranged with Associate Professor Mendelson on 31 August 2016.  We advise that our client was unable to attend the appointment as his mother required urgent surgery in India and he was required to be with her.  Furthermore, during the same period our client’s grandmother was significantly ill and he was required to care for her in India.  We have enclosed a letter from Dr D S Raj Kumar from the Multispeciality Hospital in India to verify this.  Given the urgency of the situation, we were not made aware of our client’s unavailability until 26 August 2016 at which point we immediately informed the Respondent of his unavailability and requested the appointment be rearranged.  We submit that in such circumstances, despite the Tribunal direction dated 6 June 2016, the client’s non-attendance was reasonable and as such he should not be prejudiced and his application should be reinstated.

    We note that the Application to reinstate the proceedings was made within the timeframes contained in section 42A(8) of the Administrative Appeals Tribunal Act 1975 (Cth).

12. I should, for the sake of clarity, point out that reference to the timeframe within which an application may be made to the Tribunal for reinstatement of an application under s. 42A(8) applies only where the Tribunal has dismissed an application under s. 42A(1B). Clearly, I dismissed this application under s. 42A(5). The 28 day time limit does not apply in that case. In fact there appears to be no time limit where the application is brought pursuant to s. 42A(10). Nevertheless, I accept that such applications should be made in a timely manner so that the Respondent may proceed on the basis that the matter has been concluded.

13. I heard Mr Thumma’s application for reinstatement on 15 December 2016.  I refused his request for reinstatement and gave oral reasons for my decision.  Subsequently, Mr Thumma’s solicitors requested written reasons.  These are those reasons.

14. I dismissed Mr Thumma’s application for review under s. 42A(5) of the AAT Act. I have set out the provisions in that section of the Act above. While there are two limbs to s. 42A(5), in my dismissal decision I deliberately did not refer to one or the other. In fact, in my opinion, Mr Thumma had both, failed to proceed with his application and to comply with the Direction I made on 6 June 2016. That is because, by the time I heard the application for dismissal by Telstra, this file had been dormant for six months, due to Mr Thumma’s failure to attend medical examinations required under s. 57 of the SRC Act. In fact, since this application was lodged in the Tribunal on 8 April 2015, other than six preliminary conferences conducted by a Conference Registrar and the obtaining of one medical report from Dr Albert Kaplan in June 2015, the matter has not been progressed by the applicant. Furthermore, Mr Thumma was aware of the Direction I made on 6 June 2016 and the fact that failure to attend the August 2016 medical appointment with Associate Professor Mendelson may result in dismissal unless he provided a reasonable excuse.

15. While Slater and Gordon did notify Sparke Helmore on 26 August 2016 that Mr Thumma was unable to attend the scheduled medical appointment with Associate Professor Mendelson on 31 August 2016, the stated reason was simply that Mr Thumma was urgently required overseas.  No reasons were given why Mr Thumma needed to go overseas or, for that matter, where he was going.  Respectfully, I do not consider such a statement by solicitors for an applicant to be a reasonable excuse.

16. It was not until 31 October 2016 that the Tribunal was notified of the reasons why Mr Thumma said he was unable to attend medical examination.  This advice came from Slater and Gordon and simply stated that Mr Thumma was required urgently overseas to care for his mother who was required to undergo an unexpected and sudden surgical procedure.  By this time, Mr Thumma had, according to previous correspondence, returned to Australia by 12 September 2016.  No statement was produced by Mr Thumma regarding the circumstances which led him to be unable to attend the medical examination.  That is despite the fact that Mr Thumma was said to be back in Australia for two weeks before I made a decision to dismiss his application on 27 September 2016.  In those circumstances, it cannot be reasonably said that Mr Thumma did not have an adequate opportunity or time to explain why he was unable to attend the medical appointment with Associate Professor Mendelson.  Furthermore, Mr Thumma or at least his lawyers, must have been aware that failure to provide a reasonable excuse for his failure to attend the medical appointment was likely to lead to a dismissal application being brought before the Tribunal.

17. Mr Thumma’s application for reinstatement of this matter was, effectively, lodged via email on 19 October 2016.  Notice of that application was given to Sparke Helmore on the same day.  On 31 October 2016 Sparke Helmore returned a notice issued by the Tribunal relating to the application to reinstate Mr Thumma’s application indicating that they opposed reinstatement.  The email returning that notice set out Telstra’s contentions regarding its opposition to this matter being reinstated.  It was copied to Slater and Gordon.

18. Slater and Gordon responded by email dated 31 October 2016, the contents of which I have referred to above.  In addition, Slater and Gordon said that they had requested evidence from Mr Thumma regarding his travel overseas and were told that could be provided within 14 days.  The further evidence was provided under the cover of an email dated 18 November 2016.  It consisted simply of a letter addressed to To Whom so ever it may concern.  It appears to be on the letterhead of a hospital described as Multispeciality Hospital Diabetes Centre.  It states:

    This is to certify that Rakesh Thumma attended this hospital during the period 25 August and 9 September on a few occasions.

    Reason for visit was his mother recently undergone Gallbladder removal operation, and Rakesh accompanied her followup checkups.

    Another occasion was his grandmother was very ill, and was admitted in this hospital and was put on drip twice, where Rakesh Thumma is the person who brought her hear (sic) to admit.

19. That letter appears to be signed by Dr D S Raj Kumar who described himself (or herself) as a diabetologist.  With respect to Mr Thumma, that letter does not, by itself, indicate that Mr Thumma has provided a reasonable excuse for not attending the examination by Associate Professor Mendelson.  At the very least, I would have expected Mr Thumma to have provided a record of his overseas travel, for example, by photocopies from his passport indicating departure from Australia and return to Australia.  In any event, this information was only given to the Tribunal and Sparke Helmore some five months after the Tribunal had dismissed Mr Thumma’s application.  It cannot, on any account, be regarded as providing reasonable excuse.

20. It was only on the hearing of this matter that I was informed that Mr Thumma’s application for reinstatement was being made under s. 42A(10) of the AAT Act which provides:

    (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.

21. On the hearing of the reinstatement application, Mr A Coombs of counsel appeared on behalf of Mr Thumma and Mr J Wallace of counsel on behalf of Telstra.  Mr Coombs explained that the basis on which Mr Thumma’s application should be reinstated was to be found in the Notes to Direction attached to the Direction I made 6 June 2016.  The relevant passage referred to by Mr Coombs in those Notes is as follows:

    2. The Tribunal can dismiss an application if an Applicant fails within a reasonable time to comply with a direction made by the Tribunal. This power is set out in section 42A(5)(b) of the Administrative Appeals Tribunal Act 1975.  If you are the Applicant and you fail to comply with the direction, you may also be asked to explain at the directions hearing why your application should not be dismissed.

22. Mr Coombs submitted that Mr Thumma should have been given the opportunity, at a further directions hearing following his failure to comply with the direction made on 6 June 2016, to explain why his application should not be dismissed.  Therefore, because no such directions hearing was held, Mr Coombs submitted that this amounted to Mr Thumma’s application being dismissed in error.

23. As I attempted to explain when providing oral reasons for refusing Mr Thumma’s application for reinstatement, the purpose of the Notes attached to the Direction are to assist an applicant, particularly an unrepresented applicant, in understanding that compliance with directions is important and that failure to do so may result in serious consequences.  The notes are, necessarily, general.  That is, they do not necessarily apply to all directions made by the Tribunal, but rather, they apply to the standard directions made which set out a timeframe for providing certain documents to the Tribunal and the other party.  In fact, what Mr Coombs failed to do was to point out that note 2 must be read in conjunction with note 1.  That note states:

    1.     If you do not comply with a direction, the Tribunal will list the application for a directions hearing.  You will be required to attend the directions hearing in person and explain why you have not complied with the direction.

24. When read in conjunction with note 1, the reference to: you may also be asked to explain at the directions hearing… is in fact a reference to a directions hearing which is commonly referred to as a non-compliance directions hearing. The purpose of a non-compliance directions hearing is to provide procedural fairness to an applicant, particularly if that applicant is unrepresented and not legally qualified. That is because, in standard directions made by the Tribunal, there is no reference in such directions to s. 42A(5) which provides for dismissal for failure to comply with directions. It would plainly be unfair to an applicant, who was unaware of the provisions in s. 42A(5), to simply dismiss the matter for failure to comply with directions where the applicant was unaware that such consequences may be visited upon him or her.

25. Putting aside for the moment that issues of procedural fairness are most likely to form the basis for an application for reinstatement, I should first examine whether, as Mr Coombs contended, s. 42A(10) is engaged by reason of non-compliance with the Notes to Direction. In other words, assuming that standard directions were made on 6 June 2016, whether a failure to accord a further directions hearing as set out in note 1 constitutes an error in terms of that provision.

1. The nature of the error referred to in s. 42A(10) is plainly unqualified. There are many Tribunal cases which have struggled with the nature of the error which may enliven s. 42A(10). Earlier cases tended to view the error as one made by the Tribunal and akin to what is commonly called the slip rule.  It appears the issue was finally put to rest by the Full Court of the Federal Court of Australia (Wilcox, Carr and Downes JJ) in Goldie v Minister for Immigration and Multicultural Affairs [2002] FCAFC 367 (22 November 2002) (Goldie). On this issue, the plurality concluded, at [34]:

   Although it is appropriate to take account of the Senate explanatory memorandum (see s. 15AB(1) and (2) of the Acts Interpretation Act 1901), too much ought not to be made of it.  It seems incorrect to say, as the memorandum did, that “the clause provided for the Tribunal to ‘reinstate an application which has been dismissed through administrative error on the part of the Tribunal’” (Our emphasis).  Although rectification of administrative errors (whatever they might be in this context) was apparently the idea behind the amendment, the word adopted by Parliament was not so limited.

2. Given what was said in Goldie, the only question which arises in this matter is whether a failure by a Tribunal to provide to an applicant the opportunity to explain why he or she has not complied with a direction constitutes an error of the kind contemplated in s. 42A(10) the AAT Act. In my opinion, the answer must necessarily lie in the nature of the directions made by the Tribunal which led to the dismissal of an application. Furthermore, it appears that there must be some element of procedural unfairness involved which gave rise to the dismissal in error. The Notes to Direction should not be treated as a statutory requirement. They plainly are not. Non-compliance with the Notes to Direction clearly cannot be an error of law or an administrative error. The procedures adopted by the Tribunal are within its discretion. Section 33(1) of the AAT Act relevantly provides:

   (1)  In a proceeding before the Tribunal:

   (a)the procedure of the Tribunal is, subject to this Act and the regulations and to any other enactment, within the discretion of the Tribunal;

   (b)the proceeding shall be conducted with as little formality and technicality, and with as much expedition, as the requirements of this Act and every other relevant enactment and a proper consideration of the matters before the Tribunal permit; and

   (c)the Tribunal is not bound by the rules of evidence but may inform itself on any matter in such manner as it thinks appropriate.

3. The real question in this case is whether Mr Thumma held a reasonable expectation that his matter would not be dismissed for failure to comply with directions or to proceed in a timely manner with his application. 

4. Given the nature of the direction and its clear warning that without reasonable excuse, Mr Thumma’s right to continue with the application is suspended (by s. 57 of the SRC Act) and may be subject to dismissal pursuant to s. 42A(5) of the AAT Act, it cannot be said that Mr Thumma, who was legally represented at all times, was taken by surprise by the dismissal following his failure to comply with s. 57 of the SRC Act and the directions made by the Tribunal. Furthermore, Mr Thumma could not have been taken by surprise that dismissal would occur if he failed to provide a reasonable excuse for not attending the medical examination by Associate Professor Mendelson, particularly as this was the second occasion on which this occurred. It is incorrect for Mr Thumma to submit that he had not been given adequate warning or opportunity to explain his failure to attend the medical examination.

5. Even in circumstances where he was urgently required to leave the country, a phone call offering an explanation to his own solicitors prior to his departure would probably have sufficed.  Given that the note from Dr Kumar states that Mr Thumma was already in India on 25 August 2016, and Slater and Gordon did not receive that information until the following day, if Mr Thumma in fact went to India, and the evidence of that is scant, it cannot be said that he provided a reasonable excuse.  In any event, other than the letter from Dr Kumar, Mr Thumma provided no evidence that he had left the country and subsequently returned.  When I dismissed this matter on 27 September 2016, the only information that was given to the Tribunal was by Slater and Gordon stating he had to go to India urgently.  Respectfully, that is unsatisfactory.  It is even more so given that the issue of a medical examination has now held up this matter for almost 12 months.

6. For the reasons expressed above, I have found that Mr Thumma has failed within a reasonable time to comply with a direction made by the Tribunal pursuant to s. 33(2) of the AAT Act and, accordingly, I have dismissed Mr Thumma’s application pursuant to s. 42A(5). Further, I have not found any error in the sense contemplated by s. 42A(10) in having dismissed the application for there to be any ground for the application to be reinstated under that section. I have, therefore, refused reinstatement of the application.

32.     I certify that the preceding 31 (thirty-one) paragraphs are a true copy of the reasons for the written reasons herein of:

33.     Egon Fice, Senior Member

[sgd]….........................................

Associate

Dated   23 December 2016

Date of reinstatement hearing by telephone	15 December 2016
Counsel for the Applicant	Mr A Coombes
Counsel for the Respondent	Mr J Wallace
Solicitors for the Respondent	Sparke Helmore, Mr N Nguyen