Tuysuz and Secretary, Department of Education, Employment and Workplace Relations
[2008] AATA 1176
•31 December 2008
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2008] AATA 1176
ADMINISTRATIVE APPEALS TRIBUNAL )
) No 2008/6204
GENERAL ADMINISTRATIVE DIVISION ) Re OZGUR TUYSUZ Applicant
And
SECRETARY, DEPARTMENT OF EDUCATION, EMPLOYMENT AND WORKPLACE RELATIONS
Respondent
ORDERS
Tribunal M J Carstairs, Senior Member Date31 December 2008
PlaceBrisbane
Decision Pursuant to s 29(7) of the Administrative Appeals Tribunal Act 1975, and upon written application by the Applicant dated 30 December 2008, the Tribunal extends the time for the making of an application for review of the decision of the Respondent to 31 December 2008.
Pursuant to s 41(2) of the Administrative Appeals Tribunal Act 1975, the Tribunal directs that the operation of the Respondent's decision of 29 October 2007 as affirmed by the Social Security Appeals Tribunal on 18 February 2008 is partially stayed with respect to ongoing payments from 31 December 2008.
..................[sgd]............................
SENIOR MEMBER
CATCHWORDS
SOCIAL SECURITY – application for extension of time – application for stay of decision
Administrative Appeals Tribunal Act 1975 (Cth), ss 2A, 29, 42A
Social Security (Administration) Act 1999 (Cth), s 8
Re Ian Colin Nicholson and Secretary, Department of Social Security [1991] AATA 206
Re Mulheron and Australian Telecommunications Corporation (1991) 23 ALD 309
Brown v Commissioner of Taxation [1999] FCA 563
REASONS FOR ORDERS
31 December 2008 M J Carstairs, Senior Member 1. Earlier this year Mr Ozgur Tuysuz, who was then living in Sydney, made an application in the Tribunal’s Sydney registry requesting that the Tribunal review a decision imposing an 8 week non-payment period, during which he would not receive newstart allowance. Centrelink imposed that penalty on the grounds that Mr Tuysuz had refused (without reasonable excuse) an offer of employment in October 2007.
2. Mr Tuysuz’s matter was dismissed by the Tribunal in an Order dated 20 October 2008.
3. I have concluded it is appropriate to allow Mr Tuysuz the opportunity to have his matter decided on the merits by granting an extension of time to have the original decision reviewed. I made an Order to that effect, and an Order granting a stay of decision under s 41 of the Administrative Appeals Tribunal Act 1975 (the Act), giving very brief oral reasons for both those decisions.
4. The respondent has requested that I give written reasons. In order to do this, I have found it necessary to set out in some detail the background, so that I might better explain why I decided to allow Mr Tuysuz’s applications.
5. I would firstly say that both applications were listed with some urgency on New Year’s Eve, in view of Mr Tuysuz’s distressed circumstances. Mr Tuysuz had been laid-off from his employment just prior to Christmas. He had no money to pay for his rent and other outlays. Faced with losing his job, he applied for Centrelink payments only to be told, correctly, that he still had 4 weeks to serve of his original 8 week penalty (the subject of his application for review). This penalty period would have to be served before he could obtain Centrelink benefits, as the Tribunal’s dismissal Order meant that the original decision would now take effect.
6. The file was still in the Sydney registry, so we had to manage with the few documents that were at hand. I did not have the T-documents that the respondent had filed for Mr Tuysuz’s original application, nor did Mr J Guthrie who represented the respondent in the proceedings. I was not, therefore, in a position to canvass the merits of the application in any depth. But it was, I would observe, quite evidently a matter which would be decided on its facts.
7. I did have access, however, to various extracts from the Tribunal’s case management system (TRACS), from which I derived what I now set out as being the relevant background matters.
BACKGROUND
8. Mr Tuysuz had been representing himself in his application in Sydney. The matter was proceeding towards a hearing, and indeed was listed for hearing on 7 August 2008. The listing notice was sent to Mr Tuysuz’s Sydney address. What he had failed to tell the Tribunal in the meantime was that he had moved to Queensland. This only came to anyone’s attention when a Registry officer made the routine pre-hearing telephone call to confirm that Mr Tuysuz was aware of the hearing date. Mr Tuysuz told the caller that he did not know the hearing was listed, but he also said that it was not possible for him to get to Sydney to attend a hearing in person.
9. The respondent’s advocate, I note from a record on TRACS, refused to agree to a telephone hearing of Mr Tuysuz’s application.
10. The Tribunal next sent a letter to Mr Tuysuz in Brisbane asking him to indicate whether he wished to have his application transferred to the Tribunal’s Brisbane registry for hearing. Mr Tuysuz maintains that he did not get this letter. He told the Sydney registry, in a telephone call on 10 September 2008, he had obtained a job in Brisbane. He was evidently mulling over whether, in the light of this, he had any real interest in continuing with the Tribunal application.
11. Quite properly, the registry officer explained to Mr Tuysuz that he could withdraw his application if he were so minded, but suggested that he discuss with Centrelink whether any adverse consequences might flow from this. My reading of this TRACS file note was that the conversation ended with Mr Tuysuz undertaking firstly, to speak with Centrelink, and secondly, to tell the Tribunal if he decided to withdraw.
12. Mr Tuysuz did neither. And so the matter was listed for a telephone directions hearing (at the respondent’s request). The respondent’s representative indicated that she would be asking for Mr Tuysuz’s matter to be dismissed if he did not attend. Mr Tuysuz did not, and accordingly, his matter was dismissed, as it was within the power of the Tribunal to do, under s 42A(2) of the Act.
REASONS FOR EXTENDING TIME
13. Mr Tuysuz’s original application was not one that could be reinstated to the list of matters for hearing under s 42A(9) of the Act, because Mr Tuysuz had not applied within 28 days of the dismissal notice (s 42A(8) of the Act). Mr Guthrie, who appeared for the respondent, submitted that it was inappropriate to consider an extension of time where the Tribunal had dismissed the matter. In that regard he submitted that amendments that were introduced into the Act (inserting subsections 42A(5) and 42A(6)) postdate certain Tribunal decisions that had concluded that it was within the Tribunal’s power to grant an extension of time to make an application where a matter had been dismissed.
14. I do not agree with Mr Guthrie’s submission. Rather, I consider that cases such as Re Mulheron and Australian Telecommunications Corporation (1991) 23 ALD 309 remain good law on this point, even taking into account the later amendments to the Act, including the introduction of s 42A(6). The distinction remains that of identifying where the matter has been dealt with by the Tribunal exercising its powers under s 43 of the Act, and where the proceedings have simply terminated without the Tribunal having reviewed the decision.
15. That case was cited with approval in ReIan Colin Nicholson and Secretary, Department of Social Security [1991] AATA 206 by Senior Member Muller (as he then was), where the Tribunal was considering the grant of an extension of time. Mr Nicholson’s matter also concerned a dismissal order the effect of which had been considered by two previous Tribunals. They had concluded that the matter could not be reinstated. Senior Member Muller cited the following from Mulheron:
The Tribunal's proceedings are to be conducted with as little formality and technicality, and with as much expedition, as the requirements of the AAT Act and other Acts and a proper consideration of the matters before the Tribunal permit (s 33(1)(b)). The Tribunal is also required to ensure that every party to a proceeding is given a reasonable opportunity to present his or her case (s 39). These provisions are manifestations of an underlying policy in the Act that the Tribunal should provide substantial review on the merits and not allow undue technicalities to prevent this happening.
The competing policy considerations that applicants should not be allowed to affect the Tribunal's processes by failing to take reasonable steps to allow their application to be determined on the merits (for instance, by failing to attend preliminary conferences or hearings), that matters be disposed with once and for all and that litigation not be prolonged are important.
I consider that these principles are only reinforced by the introduction into the Act of s 2A, providing that the Tribunal pursue the objective of providing a mechanism of review that is fair, just, economical, informal, and quick. The Social Security (Administration) Act 1999 reinforces the importance of the system of review of decisions (at s 8). I regard it as axiomatic that it is more satisfying to an applicant to have the opportunity to have the merits of their case looked at by the Tribunal, than to be told that the opportunity to put their case has been lost on procedural grounds. It is especially important when this Tribunal is the last opportunity for a review on the merits.
16. Turning then to a consideration of the discretion available under s 29 of the Act, the Federal Court has reiterated on a number of occasions that too slavish an adherence to “guidelines” when considering this discretion can lead to injustice. It is in the end an ameliorating provision, to avoid injustice: Brown v Commissioner of Taxation [1999] FCA 563.
17. In considering granting an extension of time, the Tribunal ought to have regard to the extent of any delay, and any prejudice to the respondent, as well as the applicant’s prospects of succeeding. It would be a factor militating against the extension of time if the applicant had no prosects. But Mr Guthrie was not pressing total absence of merit in the application, although he was at pains to point out that Mr Tuysuz was unlikely to succeed if he did not produce any medical evidence when he claims medical reasons for refusing the job in the first place. So much is clearly true, but it is at best a gap in the evidence, not a denial of possible merit.
18. I regard as relevant to the grant of the extension of time that Mr Tuysuz’s original application to the Tribunal dates only from April 2008. The matter, in other words, is hardly old. The documents, including the Statement of Facts and Contentions, are all filed and not yet destroyed. Until he moved to Queensland Mr Tuysuz attended listed conferences. He had several telephone discussions with officers at the Tribunal’s Sydney registry. I readily acknowledge that Mr Tuysuz was at fault by not making proper arrangements to ensure that he received letters from the Tribunal, and in not telling the Tribunal when he moved interstate. However some leniency perhaps ought be extended to unrepresented applicants in that regard, as they are not always as mindful as others of their responsibilities to ensure that they remain contactable.
19. I mean no criticism of the respondent in making the additional observation that matters might have been made easier for Mr Tuysuz had the Centrelink advocate agreed to a hearing by telephone. Or with the benefit of hindsight, the matter might simply have been transferred to the Brisbane Registry, the respondent having advocates located in both states.
20. The question is – should Mr Tuysuz be allowed to have his substantive matter heard now? Bearing in mind that the respondent is not disadvantaged – the documents have all been lodged and are still in existence, and there has been no undue delay – I concluded that the balance of fairness dictated here that Mr Tuysuz be allowed to again make an application to the Tribunal for the review of the decision imposing the penalty.
STAY OF DECISION
21. A stay had been granted by consent in relation to Mr Tuysuz’s original application. Mr Guthrie was not opposing a stay in similar terms, should I allow Mr Tuysuz’s new application. Accordingly, I granted a stay in terms similar to the original order and operating over part only of the 8 week period of newstart allowance that was the subject of Centrelink’s original decision.
I certify that the 21 preceding paragraphs are a true copy of the reasons for the decision herein of M J Carstairs, Senior Member
Signed:........................[sgd].........................................................
Joan Torbey, AssociateDate of Hearing 31 December 2008
Date of Decision 31 December 2008
The Applicant was self-represented
Advocate for the Respondent Mr J Guthrie, Centrelink
0