Wagh and Australian Postal Corporation
[2008] AATA 676
•5 August 2008
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2008] AATA 676
ADMINISTRATIVE APPEALS TRIBUNAL )
) No 2007/0331
GENERAL ADMINISTRATIVE DIVISION ) Re VASANT WAGH Applicant
And
AUSTRALIAN POSTAL CORPORATION
Respondent
DECISION
Tribunal Ms G Ettinger, Senior Member Date5 August 2008
PlaceSydney
DECISION
Decision I decide as follows with regard to each of the issues considered at the Directions Hearing and Hearing of Summons on 16 July 2008, and for the reasons discussed below.
I am not satisfied that details regarding an allegation of conflict of interest have been submitted by Mr Wagh. I am mindful of the Respondent’s submissions in that regard, and I am satisfied that I have no conflict of interest in hearing Mr Wagh’s application.
I am not satisfied that Mr Wagh has made an application pursuant to section 21A of the Act for the Tribunal to be reconstituted. I am properly constituted to hear the application.
I have considered the Respondent’s application that Mr Wagh’s application be dismissed as vexatious or frivolous, and I decline to so dismiss it.
I do not agree to issue the Summons Mr Wagh has requested be issued to Telstra Corporation.
I am satisfied that Mr Wagh has shown disregard towards the Directions of the Tribunal, and for the procedures of the Tribunal. I dismiss Mr Wagh’s application for review pursuant to section 42A(2)(a) of the Act for failing to attend two Hearings of interlocutory matters at the Tribunal when he had notice of them. I further exercise the discretion to also dismiss Mr Wagh’s application pursuant to section 42A(5)(b) for failing within a reasonable time to comply with Directions of the Tribunal in relation to his application for review.
.................[sgd].............................
Ms G Ettinger
Senior Member
CATCHWORDS
PRACTICE AND PROCEDURE – Applicant alleges conflict of interest and bias of the Presiding Member – Applicant expresses an intention to apply for reconstitution of the Tribunal pursuant to section 21A of the AAT Act, but fails to do so – Applicant states his intention not to appear, and fails to appear at two interlocutory Tribunal hearings – application for issue of Summons refused – application of Respondent that proceedings be dismissed as being vexatious and frivolous refused – application dismissed for failing within a reasonable time to comply with Directions of the Tribunal, and for non-attendance at Summons, Directions and Interlocutory Hearings.
Administrative Appeals Tribunal Act 1975 ss 2A, 21A, 33, 37, 42A, 42B
Freedom of Information Act 1982Re Wagh and Australian Postal Corporation (2007) 98 ALD 671
Re Yu and Civil Aviation Safety Authority [2004] AATA 664
Johnson v Johnson [2000] HCA 48
Re Falk and Repatriation Commission (1992) 27 ALD 355
Re Theo and Secretary Department of Family and Community Services [2005] AATA 669
Re Zografakis and Telstra Corporation Ltd (1996) 44 ALD 182
Re Williams and Australian Electoral Commission and the Greens (1995) 38 ALD 366; (1995) 21 AAR 467
Duncan v Fayle (2004) 138 FCR 510; [2004] FCA 723
Cooper v Comcare (2002) 118 FCR 157
Attorney-General v Wentworth (1988) 14 NSWLR 481
Re Romanov-Hughes and Comcare [2004] AATA 514
Re Abrahams and Comcare (2006) 44 AAR 14
Re Reddish and Civil Aviation Safety Authority [1999] AATA 721
Re Lambe and Australian Postal Corporation (1999) 58 ALD 755; [1999] AATA 522
Re Whittle and Comcare (AATA 12516, 23 December 1997)
Re Bragge and Repatriation Commission (1986) 10 ALN N136
REASONS FOR DECISION
5 August 2008 Ms G Ettinger, Senior Member BACKGROUND
1. Mr Vasant Wagh has lodged an appeal to this Tribunal against a decision of the Australian Postal Corporation, (Australia Post), the Respondent in these proceedings, in relation to his request for documents from it under the Freedom of Information Act 1982. It is not unusual in such applications that certain documents or parts of documents are withheld, and it is against this decision of Australia Post dated 21 December 2006 which Mr Wagh appeals.
2. In the period following Mr Wagh’s application for review, Conferences conducted by a Tribunal Conference Registrar have been held, as well as a number of Interlocutory Hearings before me. They have been to deal with the issue of Summons, Directions, an application for Dismissal, and other issues raised by the parties.
3. Hearings of Return of Summons, Interlocutory and Directions Hearings were held on 7 August 2007, 3 October 2007, 26 February 2008 and 16 July 2008.
4. The interlocutory Hearings on 7 August 2007 and 3 October 2007, were to deal with the request made by Australia Post, and the Summons issued for production of two letters, dated 13 and 15 May 2007 written by Mr Wagh to his former solicitor, Mr S Mainstone of Mainstone Lawyers. After considering the evidence, the legislation and the case law, my decision was that the letters of 13 and 15 May 2007 should be released to the Respondent. I directed that they were for use only in the Respondent’s application made pursuant to section 42B of the Administrative Appeals Tribunal Act 1975, and the substantive hearing of Mr Wagh’s application for review under the Freedom of Information Act 1982. I further directed that they were subject to confidentiality orders pursuant to section 35(2) of the Administrative Appeals Tribunal Act 1975 (Re Wagh and Australian Postal Corporation (2007) 98 ALD 671).
5. Since lodgement of Mr Wagh’s application there has been a good deal of correspondence between the parties, and between Mr Wagh, the President of this Tribunal, and the Registrar of the Tribunal.
6. A Directions Hearing was held at the Tribunal on 26 February 2008 which Mr Wagh refused to attend. Similarly Mr Wagh stated that he would not, and in fact, did not, attend the Hearing of Return of Summons and Directions Hearing listed for, and held on 16 July 2008, which was listed to deal with a number of outstanding interlocutory issues.
7. I dismissed Mr Wagh’s application for review pursuant to section 42A(2)(a) of the Act for failing to attend two Hearings of interlocutory matters at the Tribunal when he had notice of them. I further exercised the discretion to also dismiss Mr Wagh’s application pursuant to section 42A(5)(b) for failing within a reasonable time to comply with Directions of the Tribunal in relation to his application for review. My reasons follow.
RELEVANT LEGISLATION
8. The relevant legislation is the Administrative Appeals Tribunal Act 1975, (the Act), in particular sections 2A, 21A, 42A and 42B. Section 42A relevantly provides:
“42A Discontinuance, dismissal, reinstatement etc. of application
…
Dismissal if party fails to appear
(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, or an alternative dispute resolution process under Division 3, 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.”
MATTERS TO BE ADDRESSED BEFORE THE TRIBUNAL ON 16 JULY 2008
9. Both parties wrote to the Tribunal in the two days preceding the Hearing of 16 July 2008. The Tribunal replied to both letters.
10. In my reply dated 15 July 2008 directed through the Acting District Registrar, I indicated the matters that would be addressed by way of hearing oral submissions from the parties at the Return of Summons and Directions Hearing listed for 16 July 2008. As Mr Wagh stated that he would not appear, and failed to appear, I only had before me correspondence from him, and the oral and written submissions of the Respondent who was represented by Mr Batskos.
11. The issues dealt with at the Hearing on 16 July 2008 were as foreshadowed in the Acting District Registrar’s letter of 15 July 2008, and follow:
(1) Mr Wagh’s allegation that Senior Member Ettinger has a conflict of interest in hearing this matter;
(2) Mr Wagh’s stated intention to apply for reconstitution of the Tribunal pursuant to section 21A of the Administrative Appeals Tribunal Act 1975;
(3) Australia Post’s application that the proceedings be dismissed as frivolous or vexatious;
(4) Documents subject of the Summons issued to Australia Post on 13 May 2008;
(5) Mr Wagh’s request that a Summons be issued to Mr Sol Trujillo, Chief Executive Officer, Telstra Corporation Limited; and
(6) Any other relevant matters which arise in the course of the Hearing.
mr wagh’s allegation that senior member ettinger has a conflict of interest in hearing this matter
12. Mr Wagh has on a number of occasions raised concerns in a general way about his view that I may have a conflict of interest in hearing his matter. Recently Mr Wagh wrote in his letter of 14 July 2008 to the President of the Tribunal in connection with his request that the Hearing listed for 16 July 2008 be vacated:
“… as previously indicated, the Applicant is not in a position to attend any hearings in front of Senior Member Ms. Geri Ettinger because he will be making an application pursuant to Section 21A of the Administrative Appeals Tribunal Act 1975 (“AAT Act”) seeking reconstitution of the Tribunal and in that application he will be seeking the removal of Senior Member Ms. Geri Ettinger from any further involvement in these proceedings. The case has been before the Tribunal for over five hundred and sixteen (516) days and many things have occurred in these proceedings so far which in the Applicant’s view, necessitate the removal of Senior Member Ms. Geri Ettinger from any further involvement in these proceedings.”
13. In a letter to the President of the Tribunal dated 11 April 2008, Mr Wagh asked 22 questions, including details of the person or persons who were responsible for constituting the Tribunal in this matter. Paragraphs 14 – 20 (with sub-paragraphs) of the same letter consisted of numerous questions about me, whether the Tribunal had investigated my background, and whether I had disclosed any conflict of interest in hearing this matter.
14. Mr Wagh also claimed in the letter of 11 April 2008 that he was obliged to summons documents from the Respondent as I had failed to direct he be provided with those, and that accordingly, “a reasonable apprehension of bias already exists” and I had “displayed a close-mindedness and a prejudgment of the issues to be determined by the Tribunal”.
15. In the absence of the President on leave, the Principal Registrar replied to Mr Wagh on 15 April 2008, stating relevantly that:
“No member of Tribunal staff or member of the Tribunal has disclosed a conflict of interest in relation to you or your application, nor do I perceive that any such conflict exists.
If you believe there is just cause due to a conflict of interest why Senior Member Ettinger should not sit on your appeal, you should make that application under s 21A of the Administrative Appeals Tribunal Act 1975 immediately.
…
Senior Member Ettinger is properly appointed to the Tribunal and has been properly constituted to hear your application. Your query about her employment history is not relevant to the progress of your application.”
16. Mr Batskos referred to both Mr Wagh’s letters and the Principal Registrar’s reply of 15 April 2008 in regard to conflict of interest. Mr Batskos also referred to the Respondent’s submissions dated 28 April 2008 on which the Respondent relies. Mr Batskos submitted that the Respondent’s view was that there were no actual details of allegations by the Applicant, simply questions as to my background. However, to the extent the comments made by Mr Wagh could be construed as allegations of conflict, the Respondent submitted they have no foundation, that my employment history was not relevant to the application before the Tribunal, and that the Applicant had, in the Respondent’s view, provided no evidence in support of his statements.
17. I noted that in his written submission of 28 April 2008, the Respondent submitted that if correspondence from Mr Wagh could be construed as making an allegation that the Presiding Member has a conflict of interest of an unspecified kind or that her conduct in the proceeding has given rise to a reasonable apprehension of bias, then in each case “the allegations by the Applicant are unfounded, unsubstantiated and wholly inappropriately made. The Applicant has unreasonably and unnecessarily delayed the final determination of this matter”.
18. I note that Mr Wagh has alleged that I have a conflict of interest in hearing his application for review at the Tribunal. He has not detailed his reasons for that allegation, and has simply referred in general terms to “a reasonable apprehension of bias already exists” and that I had “displayed a close-mindedness and a prejudgment of the issues to be determined by the Tribunal.”
19. I am mindful that Mr Wagh claimed at a Directions Hearing on 3 October 2007, and in a letter dated 2 October 2007, and again on 12 October 2007, that the Respondent had failed to provide proper Section 37 documents, and that he considered there were additional documents which should have been provided. I note that section 37 of the Act mandates the decision-maker to lodge its statement of reasons and relevant documents in relation to a particular matter in which he or she has made the decision. As relevant, section 37 follows:
“Decision‑maker must lodge statement of reasons and relevant documents
(1)Subject to this section, a person who has made a decision that is the subject of an application for a review by the Tribunal must, within 28 days after receiving notice of the application (or within such further period as the Tribunal allows), lodge with the Tribunal 2 copies of:
(a)a statement setting out the findings on material questions of fact, referring to the evidence or other material on which those findings were based and giving the reasons for the decision; and
(b)every other document or part of a document that is in the person’s possession or under the person’s control and is relevant to the review of the decision by the Tribunal.
(1AA)The Tribunal may direct a person who is required to lodge with the Tribunal 2 copies of a statement or other document or part of a document under subsection (1) to lodge with the Tribunal such number of additional copies, and within such period, as the Tribunal determines and, if the Tribunal gives such a direction, the person must comply with it.”
20. I emphasised the requirements of section 37 of the Act to Mr Batskos, and requested that the Respondent file with the Tribunal, and serve on Mr Wagh, any documents which were outstanding. On 31 October 2007, the District Registrar confirmed that request with a letter to Australia Post. Mr Batskos replied by facsimile received at the Tribunal on 31 October 2007, stating that:
“I am instructed that my client has, in accordance with section 37(1)(b) of the Administrative Appeals Tribunal Act 1975, lodged with the Tribunal every document or part of a document in its possession or control relevant to the review by the Tribunal of the decision the subject of the application for review.”
21. As to conflict; I am satisfied that I have no conflict of interest in hearing Mr Wagh’s application for review, as stated by the Principal Registrar of the Tribunal in his letter to Mr Wagh of 15 April 2008:
“No member of Tribunal staff or member of the Tribunal has disclosed a conflict of interest in relation to you or your application, nor do I perceive that any such conflict exists.
If you believe there is just cause due to a conflict of interest why Senior Member Ettinger should not sit on your appeal, you should make that application under section 21A of the Administrative Appeals Tribunal Act 1975 immediately.”
mr wagh’s application that the tribunal be reconstituted pursuant to section 21A of the administrative appeals tribunal act 1975
22. I have noted that in November 2007 Mr Wagh inquired of the Tribunal how a Tribunal Member might be replaced. He has been informed on various occasions in correspondence from the Tribunal that the relevant procedure is set out in section 21A of the Act which follows:
“Party may request reconstitution of Tribunal
(1)At any time during the hearing of a proceeding before the Tribunal (other than a proceeding in which the Tribunal is constituted by a presidential member who is a Judge and 2 other members), a party to the proceeding may apply to the Tribunal as constituted for the purposes of the proceeding requesting that the Tribunal be reconstituted for the purposes of the proceeding.
(2)Upon the making of an application under subsection (1), the Tribunal as constituted for the purposes of the proceeding shall, after receiving the submissions made in support of the application and any submissions made in opposition to the application, notify the President of the making of the application and give him or her particulars of those submissions.
(3)The President may, after taking the submissions into account, if he or she considers that the matters to which the proceeding relates are of such public importance as to justify him or her in so doing, give a direction that the Tribunal as constituted for the purposes of the proceeding be reconstituted by:
(a) adding one or more members; or
(b) removing one or more members; or
(c) substituting one or more other members;
(or any combination of these).
….”
23. Notwithstanding Mr Wagh has raised the reconstitution of the Tribunal a number of times, and requested lengthy adjournments to prepare material for an application under section 21A, he has to date not made an actual application pursuant to section 21A of the Act. If he had done so, I would have been required pursuant to the Act to refer such application to the President for his consideration and decision.
24. As recently as 14 July 2008, Mr Wagh wrote to the Tribunal as follows:
“… the Applicant is not in a position to attend any hearings in front of Senior Member Ms. Geri Ettinger because he will be making an application pursuant to Section 21A of the Administrative Appeals Tribunal Act 1975 (“AAT Act”) seeking reconstitution of the Tribunal and in that application he will be seeking the removal of Senior Member Ms. Geri Ettinger from any further involvement in these proceedings.”
25. A Directions Hearing and Hearing of a Dismissal Application was listed for 26 February 2008. The Applicant stated that he would not appear, and indeed failed to appear. I vacated the Hearing after refusing an application from the Respondent to dismiss Mr Wagh’s application for non-attendance, and issued a Direction setting a timetable for the filing and serving of submissions to both parties in regard to any section 21A application the Applicant wished to make. Accompanying that Direction was the Tribunal’s “Notes to Direction” which make it clear that non-compliance with Directions is likely to result in the matter being listed for a Directions Hearing at which the defaulting party will be required to explain the failure to comply. Note 2 of the “Notes to Direction” explains that failure by an applicant to comply with the Direction may result in that party being asked to show cause why the application should not be dismissed. Further, that pursuant to section 42A(5)(b) of the Act, the Tribunal may dismiss an application where an applicant fails within a reasonable time to comply with a Direction made by the Tribunal in relation to that application. I am satisfied that Mr Wagh was on notice that Directions of the Tribunal must be complied with, and that he risked dismissal of his application if he did not comply with them.
26. Mr Wagh chose not to comply with the Direction of 26 February 2008. The Tribunal sent a letter dated 14 May 2008 reminding him of the dates given for the making of submissions. Mr Wagh chose not to comply with the Direction or the letter. In a further letter of 19 June 2008, the Tribunal reminded Mr Wagh of the Directions which had been made, and the possible consequences of not complying. The Tribunal has received no submissions from Mr Wagh in regard to the allegations of conflict of interest, or the section 21A application for reconstitution he foreshadowed. Even in his recent letter dated 14 July 2008, Mr Wagh refers to his intentions, but has not made an application pursuant to section 21A. He states in that letter: “he (Mr Wagh) will be making an application pursuant to Section 21A of the Administrative Appeals Tribunal Act 1975 (“AAT Act”) seeking reconstitution of the Tribunal…”.
27. Mr Batskos submitted that Mr Wagh, whilst expressing an intention to make application under section 21A of the Act for reconstitution of the Tribunal, has not made an actual application seeking to have the Tribunal reconstituted pursuant to section 21A of the Act. He emphasised that this was so despite numerous opportunities to do so, including the Direction made after the adjourned Hearing on 26 February 2008 which Mr Wagh either failed or refused to attend. Mr Batskos noted that the Direction provided until 11 April 2008 for Mr Wagh to make his application and submissions.
28. Mr Batskos submitted that if the Tribunal were minded to consider the Applicant’s correspondence as an application under section 21A, then the Respondent opposed reconstitution. I have summarised Mr Batskos’ written and oral submissions made on behalf of the Respondent. He noted that:
· Mr Wagh had submitted that “many things have occurred which in my view necessitate the removal of Senior Member Ms. Geri Ettinger from any further involvement in these proceedings”;
· Mr Wagh queried the President regarding any conflict of interest Senior Member Ettinger may have in regard to this matter;
· Mr Wagh’s comment that the Senior Member has “displayed a close-mindedness and a prejudgment of the issues to be determined by the Tribunal”.
29. Mr Batskos in opposing reconstitution on behalf of the Respondent, submitted in his written submissions dated 28 April 2008, and supplemented by his oral submissions on 16 July 2008:
· Although this proceeding is a matter of perceived importance to the Applicant, there is no degree of complexity or public importance in the matters subject of the application for review such as to warrant reconstitution (Re Yu and Civil Aviation Safety Authority [2004] AATA 664).Mr Batskos submitted this was an FOI application for access to documents related to a private matter.
· There is nothing in the Senior Member’s conduct in this proceeding to suggest that she has been anything but fair to both parties, and in particular to the Applicant, an unrepresented party. He noted in particular that the Tribunal refused the Respondent’s application to dismiss the matter on 26 February 2008, and that the Senior Member adjourned the Hearing of 26 February 2008 to provide the Applicant fair and reasonable time to prepare his section 21A application.
· Mr Batskos also submitted that Mr Wagh had not provided particulars or evidence of any of his general allegations against Ms Ettinger, neither was there anything evident in her conduct of the proceedings which could conceivably give rise to a conclusion that she had displayed a close-mindedness and prejudgment of the issues to be determined. Mr Batskos submitted that the particular issues to be determined in this case had not yet been agitated before the Tribunal, and that the only issues decided to date had been the restricted release of the two letters of 13 and 15 April 2007, which were required by the Respondent for the fair and timely resolution of the issues relating to the Respondent’s application for dismissal of the claim. He emphasised that in any case their release had been restricted by the Tribunal. (Wagh (supra)). Mr Batskos submitted that there was nothing said or done by the Tribunal in relation to the letters which could be construed to suggest that justice could not be done by the Tribunal as presently constituted hearing the substantive matter. No bias could be detected he submitted.
· As to reasonable apprehension of bias; Mr Batskos submitted that there was nothing in the conduct of the Senior Member which could lead to that conclusion. He submitted: “There is nothing to lead fair-minded people to reasonably apprehend or suspect that the Tribunal has prejudged the case. (Johnson vJohnson [2000] HCA 48).” He submitted also that this was not a case such as Re Falk and Repatriation Commission (1992) 27 ALD 355.
· Mr Batskos submitted that it would be in the interests of achieving the Tribunal’s objectives in section 2A of the Act and promote efficiency in the conduct of the case to have Senior Member Ettinger continue to hear the matter “given her knowledge and understanding of the facts and circumstances giving rise to the application for review and the procedural history.” His submission was that it was also consistent with the requirements of section 33(1)(b) of the Act.
30. As I have already stated above, notwithstanding Mr Wagh has raised the reconstitution of the Tribunal a number of times, and requested lengthy adjournments to prepare material for an application pursuant to section 21A, I am satisfied that he has to date not made any such actual application. If he had done so, I would have been required pursuant to the Act to refer such application to the President for his consideration and decision. The Tribunal issued a Direction with a timetable for the lodging of submissions after the Hearing of 26 February 2008 was adjourned. Mr Wagh was reminded by the Tribunal in writing on 14 May 2008 that he had not complied with the Direction, and in a further letter of 19 June 2008. He has been given ample and fair opportunity and time to prepare any material he wishes.
31. The Tribunal has received no submissions from Mr Wagh detailing any particulars in regard to the allegations of conflict (of Senior Member Ettinger), or the section 21A application for reconstitution he foreshadowed. He has not addressed the points made in the Respondent’s submissions of 28 April 2008 which oppose reconstitution of the Tribunal. Even in a recent letter dated 14 July 2008, Mr Wagh refers to his intentions, but has not made an application pursuant to section 21A. He states in that letter: “he (Mr Wagh) will be making an application pursuant to Section 21A of the Administrative Appeals Tribunal Act (“AAT Act”) seeking reconstitution of the Tribunal…”.
32. I am mindful of the Principal Registrar’s letter of 15 April 2008 in which he wrote:
“No member of Tribunal staff or member of the Tribunal has disclosed a conflict of interest in relation to you or your application, nor do I perceive that any such conflict exists.
If you believe there is just cause due to a conflict of interest why Senior Member Ettinger should not sit on your appeal, you should make that application under s 21A of the Administrative Appeals Tribunal Act 1975 immediately.
…
Senior Member Ettinger is properly appointed to the Tribunal and has been properly constituted to hear your application. Your query about her employment history is not relevant to the progress of your application.”
33. The Principal Registrar also wrote a letter to Mr Wagh in mid-April which was inadvertently undated, in which he stated:
“I note that you have not complied with a direction that you lodge an application pursuant to s 21A of the Administrative Appeals Tribunal Act 1974 (sic) by 11 April 2008. I refer to the President’s letter to you dated 3 April 2008 advising that a brief written submission outlining why you believe the Tribunal ought to be reconstituted should suffice in this regard…”
34. Mr Wagh has chosen not to make the application to which the Principal Registrar referred him.
35. I am mindful of the objectives of the Act as stated in section 2A, which follows:
“2A Tribunal’s objective
In carrying out its functions, the Tribunal must pursue the objective of providing a mechanism of review that is fair, just, economical, informal and quick.”
36. I have also considered Mr Batskos’ reference to section 33 of the Act, reproduced below, which deals with procedure at the Tribunal, and provides a broad discretion, whilst urging expedition and informality. The strict rules of evidence do not apply, and the Tribunal may inform itself on any matter in such manner as it thinks appropriate. I am very aware that a proper consideration of the matters before the Tribunal, application of the various Practice Directions, and considerations of relevance and fairness are the criteria for the exercise of the discretion in regard to procedures.
“33 Procedure of Tribunal
(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 of 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.
…”
37. I am mindful also of the submissions of the Respondent as to why the Tribunal should not be reconstituted. I have summarised them above, and accept them. I am satisfied also that in the absence of an application pursuant to section 21A of the Act, in the interests of early resolution of this matter, and bearing in mind the objectives of the Act, and section 33(1)(b) of the Act, I am properly constituted to hear the matter, and should continue my involvement as Presiding Member in Mr Wagh’s application.
australian postal corporation’s application that the proceedings be dismissed as frivolous or vexatious
38. The Respondent has sought an order that Mr Wagh’s application for review be dismissed:
· pursuant to section 42B(1)(a) of the Act on the basis that it is frivolous or vexatious;
· and/or that the application be dismissed pursuant to section 33 of the Act on the basis that it is an abuse of process; and
· that a Direction be made that pursuant to section 42B(1)(b), that Mr Wagh be prevented from making certain subsequent applications.
39. Section 42B of the Act follows as relevant:
“42B Power of Tribunal where a proceeding is frivolous or vexatious
(1) Where an application is made to the Tribunal for the review of a decision, the Tribunal may, at any stage of the proceeding, if it is satisfied that the application is frivolous or vexatious:
(a) dismiss the application; and
(b) if the Tribunal considers it appropriate, on the application of a party to the proceedings, direct that the person who made the application must not, without leave of the Tribunal, make a subsequent application to the Tribunal of a kind or kinds specified in the direction.
(2) A direction given by the Tribunal under paragraph (1)(b) has effect despite any other provision of this Act or a provision of any other Act.
(3) The Tribunal may discharge or vary such a direction.”
40. Mr Batskos submitted that the policy underpinning a provision in the nature of section 42B is to promote proper dispatch of the business of the Tribunal and to ensure that the time and personnel of the Tribunal are dedicated to substantive cases. (Re Theo and Secretary Department of Family and Community Services [2005] AATA 699 and Re Zografakis and Telstra Corporation Ltd (1996) 44 ALD 182). Mr Batskos referred in particular to paragraphs 37 and 38 of Theo. I noted in particular that paragraph 38 detailed the policy, priniciples and propositions of law which the Tribunal took into account. I have reproduced paragraph 38 of Theo below:
“38. The Tribunal took the following policy, principles and propositions of law into account:
A. The jurisprudence on summary or peremptory dismissal of proceedings that applies in the courts is applicable to the Tribunal: Re Williams and Australian Electoral Commission (1995) 21 AAR 467 at 473-474.
B. The power contained in section 42B (couched as a discretionary power) to dismiss an application on the basis it is either frivolous or vexatious is a power to be exercised judicially and not automatically if there is an alternative means of review (including judicial review): cf Duncan v Fayle [2004] FCA 723 at [26].
C. The discretion contained in section 42B is a judicial discretion meaning that it is not to be exercised at large but having regard to the purpose for which the discretion exists. Relevant considerations must be taken into account and given appropriate weight having regard to the competing considerations and interests of the parties, the evidence adduced and the circumstances of the particular case. Irrelevant considerations must be excised: cf McKenna v McKenna [1984] VR 665 at 674 per McGarvie J.
D. The power for peremptory dismissal of proceedings is to be exercised cautiously and sparingly: Re Williams and Australian Electoral Commission (1995) 21 AAR 467 at 473-474; Cooper v Comcare (2002) 118 FCR 157 at [20].
E. Given proposition D, it is going too far to say that the peremptory dismissal power should never be exercised under section 42B: Zografakis and Telstra Corporation Ltd (AAT, No 96/456, 4 September 1996) at [5] (particularly where an application cannot succeed or would give a result which is of no practical effect).
F. The power to dismiss an application on the basis that it is vexatious or frivolous may be exercised if the application is otherwise devoid of utility: Re Williams and Australian Electoral Commission at [34]; Cerebros and Minister for Immigration and Multicultural and Indigenous Affairs [2002] AATA 213 at [32].
G. The practical outcome of a decision that is being reviewed may also be considered in the context of section 42B: Cerebros and Minister for Immigration and Multicultural and Indigenous Affairs [2002] AATA 213 at [34].
H. The policy underpinning a provision in the nature of section 42B is to promote the proper dispatch of the business of the Tribunal and to ensure that from a resource perspective, the personnel and time of the Tribunal are devoted to substantive cases: Zografakis and Telstra Corporation Ltd (AAT, No 96/456, 4 September 1996) at [5].”
41. Mr Batskos submitted that the same jurisprudence and criteria apply for the dismissal of proceedings as frivolous and vexatious in the Tribunal as apply in Court proceedings. (Re Williams and Australian Electoral Commission and the Greens (1995) 38 ALD 366; (1995) 21 AAR 467 as referred to in Duncan v Fayle (2004) 138 FCR 510; [2004] FCA 723 and in Theo (supra)). Mr Batskos acknowledged that the power to dismiss proceedings under section 42B should be applied cautiously and sparingly (Re Williams (supra) and Cooper v Comcare (2002) 118 FCR 157).
42. Mr Batskos submitted that proceedings may be found to be vexatious if:
· they are instituted with the intention of annoying or embarrassing the person against whom they are brought; or
· if they are brought for a collateral purpose and not for the reasons of having the Tribunal adjudicate on the issues to which they give rise; or
· if they are so obviously untenable or manifestly groundless as to be utterly hopeless.
43. In support of the Respondent’s submissions Mr Batskos cited a number of cases, including, but not restricted to Attorney-General v Wentworth (1988) 14 NSWLR 481 and Re Romanov-Hughes and Comcare [2004] AATA 514, and Theo (supra).
44. Mr Batskos submitted that an application that is made properly, can become vexatious as a consequence of changed circumstances (Re Abrahams and Comcare (2006) 44 AAR 14).
45. Mr Batskos referred to the limit of the powers of the AAT to merits review of the reviewable decision, namely the Respondent’s decision under the FOI Act to grant partial access to documents requested by Mr Wagh under the Act. He submitted, relying on Wentworth, that Mr Wagh’s application is vexatious because he is attempting to use his application for review and the Tribunal processes for collateral purposes, namely to conduct his own investigation into a matter of concern to him. He also submitted that the application is vexatious because Mr Wagh wishes to pursue the application in order to annoy, harass or embarrass numerous individuals. Mr Batskos submitted that the reason for Mr Wagh’s wish to annoy, harass or embarrass arises out of his dissatisfaction with the Respondent’s handling of his FOI request, and his dissatisfaction with the Tribunal process.
46. Mr Batskos submitted that as to the collateral purpose of conducting an investigation through the Tribunal process, the Applicant seeks to interrogate individuals and seek access to documents which are not relevant to his application for merits review, or would have the effect of broadening the scope of his request under FOI. He submitted that the further Summons Mr Wagh requested be issued to Australia Post and Telstra were also for collateral purposes in that he is seeking documents for which exemption has been claimed prior to the Tribunal making any determination on the merits of that claim for exemption. He submitted that in response to the Respondent’s application for dismissal of the application, Mr Wagh first requested time to prepare his reply, then raised the issue of reconstitution of the Tribunal, then raised the issue of conflict and allegations that the Presiding Member was close-minded and biased. Mr Batskos also submitted the inquiry regarding the Senior Member’s employment history was inappropriate and had no relevance to the review task. Further Mr Wagh had made inappropriate complaints about the President, Justice Tamberlin, the Registrar and others of the Tribunal. He had sought names and designations of Registry staff which Mr Batskos submitted pointed to the application being frivolous. Mr Batskos submitted Mr Wagh had made unreasonable demands of the Tribunal, as well as asserting that he had been treated unfairly. Mr Batskos submitted that the actions of the Applicant supported a view that his application is vexatious due to the fact the application has proceeded for vexatious purposes. (Wentworth (supra)).
47. Mr Batskos submitted that the key documents in consideration of the Respondent’s submission that the Applicant’s application for review should be dismissed on the grounds that is it vexatious are the letters the Applicant wrote to his former solicitor Mr Mainstone on 13 and 15 May 2007. The Respondent referred to the reasons which Mr Wagh gave to his former solicitors Mainstone Lawyers in the letter of 13 May 2007 as to why he was seeking a hearing, those being that his FOI application was not acknowledged within the statutory period, and that he believed the section 37 documents were lacking and contained false documents. Mr Batskos referred to certain of the Directions Mr Wagh sought the Tribunal make, such as that the Respondent provide comprehensive Statements of Facts and Contentions and Affidavit evidence from certain individuals whom he said he wished to question about documents he considered were falsified. Mr Batskos drew to my attention further documents and detailed evidence as sought by Mr Wagh in his correspondence.
48. In further submissions that Mr Wagh’s purpose in these proceedings is to annoy or harass the Respondent and others, including the Presiding Member and staff of the Tribunal, Mr Batskos referred to Mr Wagh’s request of 2 October 2007 that the Tribunal direct he be provided with certain professional and personal details of 10 persons he had named. Mr Batskos submitted that apart from being irrelevant to the review, the interrogation of individuals for the purpose of the Applicant’s personal investigation has the secondary purpose of annoying, harassing or embarrassing the relevant individuals.
49. Mr Batskos also submitted that the application could be dismissed on the grounds of being frivolous “if the Tribunal is unable to make a decision that would be of any practical effect” (Re Reddish and Civil Aviation Safety Authority [1999] AATA 721). He accepted that case law such as Re Lambe and Australian Postal Corporation (1999) 58 ALD 755; [1999] AATA 522 affirmed that the power to dismiss proceedings as frivolous should be exercised in only the clearest of cases.
50. Mr Batskos also raised section 33(1) of the Act in relation to dismissal for abuse of process, noting that there is no specific power to dismiss under that section or any other section in the Act. He submitted however that section 33 provides the Tribunal with broad powers to manage its procedure which carries with it an implied power to protect its processes and procedures from abuse. In that regard he referred to various cases including Theo. He submitted that it was an abuse of process to allow the application to continue.
51. Mr Batskos referred to cases such as Theo and Re Whittle and Comcare (AATA 12516, 23 December 1997), where the power restricting an applicant from making further applications at the Tribunal pursuant to section 42B(1)(b) of the Act had been exercised. He asked that if the Tribunal were minded to find Mr Wagh’s application frivolous or vexatious, Mr Wagh be restricted from reapplying pursuant to the powers in section 42B(1)(b) of the Act.
52. I have considered the application of the Respondent made, supported by way of written submissions on 18 February 2008 for dismissal of Mr Wagh’s application as being frivolous or vexatious, and additional oral argument made by Mr Batskos at the Hearing on 16 July 2008.
53. I am mindful that it is well established that the role of the Tribunal is to review the merits of the decision before it, to stand in the shoes of the decision maker, and to make the correct or preferable decision on the material before it.
54. I am mindful also of the power pursuant to section 42B of the Act, and the caution as observed in the case law that the power to dismiss proceedings under section 42B should be applied cautiously and sparingly (Re Williams (supra) and Cooper v Comcare (2002) 118 FCR 157.
55. I am mindful from Re Williams (supra) and Wentworth (supra), that proceedings may be found to be vexatious if:
· they are instituted with the intention of annoying or embarrassing the person against whom they are brought; or
· if they are brought for a collateral purpose and not for the reasons of having the Tribunal adjudicate on the issues to which they give rise; or
· if they are so obviously untenable or manifestly groundless as to be utterly hopeless.
56. The Tribunal in Theo (supra), dismissed the Applicant’s cases as frivolous or vexatious after conducting a thorough analysis of the indicia to be considered. I am mindful of Mr Batskos’ arguments that Mr Wagh may not have instituted his appeal for purposes of annoying or embarrassing either the Respondent or the Tribunal, but that the application has proceeded in that way. In that regard Mr Batskos has referred to the numerous questions Mr Wagh has asked regarding the backgrounds and personal details of either employees of the Respondent and/or the Tribunal Members and staff. I am mindful that the time the Tribunal has taken to reply to those queries has been the time of various senior persons, including the President. That is a cost to the community.
57. I note further that when Mr Wagh was unable to access documents through the FOI process, he sought to obtain them by way of Summons. The Tribunal, after considering the request refused him on that basis. That too took time, and results in a cost which ultimately is a cost to the community. However, I am mindful that Mr Wagh represents himself at the Tribunal, and may not be fully aware of all matters related to the issue of Summons.
58. I am not satisfied on the material before me that Mr Wagh instituted the appeal against the decision of the Respondent to withhold some or all of the documents Mr Wagh sought by means of FOI with the intention of annoying or embarrassing the Respondent or particular persons who are employees of the Respondent.
59. Mr Batskos submitted that an application that is made properly can become vexatious as a consequence of changed circumstances (Re Abrahams and Comcare (2006) 44 AAR 14). I have noted his concerns, but I do not find that Mr Wagh’s application has proceeded in that way. I consider it a matter of grave concern, however, as may be seen in the paragraphs below, that Mr Wagh has refused to comply with Directions of the Tribunal.
60. I also considered Mr Batskos’ submissions that Mr Wagh has brought the proceedings for a collateral purpose, and not for the reasons of having the Tribunal adjudicate on the issues to which they give rise. He submitted that in relation to the collateral purpose of conducting an investigation through the Tribunal process, the Applicant seeks to interrogate individuals and seek access to documents which are not relevant, or would have the effect of broadening the scope of his request under FOI. I am mindful from the evidence before me that Mr Wagh has not obtained the documents he thinks he should have in connection with his application under FOI and that he has stated his belief that certain documents have been falsified. I am not satisfied that Mr Wagh’s queries are made for a collateral purpose to the extent that I would be satisfied his application should be dismissed as frivolous or vexatious.
61. I considered Mr Batskos’ submission that the key documents in considering whether the Applicant’s application for review should be dismissed on the grounds that it is vexatious are the content of the letters the Applicant wrote to his former solicitor, Mr Mainstone, on 13 and 15 May 2007. I noted the reasons which Mr Wagh gave to his former solicitor in the letter of 13 May 2007 as to why he was seeking a hearing, were that his FOI application was not acknowledged within the statutory period, and that he believed the section 37 documents were lacking and contained false documents. I accept that those reasons for seeking a hearing may be construed as being collateral to the merits review process, but am not satisfied they lead to the conclusion that the application should be dismissed on the basis that it is vexatious.
62. From the evidence before me which has not as yet dealt with the actual substantive issues in the application before the Tribunal, I am not able to find that the application is so obviously untenable or manifestly groundless as to be utterly hopeless. Accordingly I cannot find Mr Wagh’s application vexatious on this ground. This is not a case such as in Theo, where there was a statutory age based bar to Mr Theo receiving disability support pension. That rendered the application utterly hopeless in Theo.
63. As to the concept of a proceeding being held to be frivolous; cases such as Re Lambe and Australian Postal Corporation (1999) 58 ALD 755; [1999] AATA 522 held that to be frivolous meant obviously unsustainable. I am mindful also that the power to dismiss proceedings as frivolous should be exercised only in the clearest of cases. I am not satisfied that Mr Wagh’s case is such a case.
64. I have also considered Mr Batskos’ reference to section 33 of the Act, and the use of that section to consider dismissal on the grounds of abuse of process. I am mindful that section 33 does not provide an express right to dismiss proceedings. It deals with procedure at the Tribunal, and provides a broad discretion, whilst urging expedition and informality. The strict rules of evidence do not apply, and the Tribunal may inform itself on any matter in such manner as it thinks appropriate. I am very aware that a proper consideration of the matters before the Tribunal, application of the various Practice Directions, and considerations of relevance and fairness are the criteria for the exercise of the discretion in regard to procedures. I am not able to be satisfied as to the submissions of the Respondent that Mr Wagh has engaged in an abuse of process.
documents subject of the summons issued on 13 may 2008
65. The Tribunal issued a Summons to Australia Post on 13 May 2008 at the request of Mr Wagh. Mr Wagh’s request was based on documents referred to in the Respondent’s submissions of 28 April 2008, in particular paragraphs 3.1.5 and 3.1.6 which refer to documents the Respondent states have already been provided to the Applicant.
66. In complying with the Summons, Mr Batskos produced a further copy of the T-documents at the Hearing of 16 July 2008, stating that there were no further documents which answered the Summons. He told me that the documents produced were identical with the section 37 documents already provided to the Applicant and the Tribunal. I accepted the documents produced, and made a general access order.
67. I have already noted above that in correspondence and at a previous Directions Hearing Mr Wagh indicated that he was not satisfied all the documents which should have been provided were in the section 37 documents. At that hearing I requested that the Respondent provide any additional documents pursuant to section 37 of the Act. As already stated, the District Registrar also wrote to the Respondent requiring that he lodge any further relevant documents. A facsimile from the Respondent indicated all relevant documents had been filed and served. I note the Respondent as the model litigant has a duty pursuant to the Act to provide all relevant documents.
mr wagh’s request that a summons be issued to mr sol trujillo, chief executive officer, telstra corporation ltd
68. In his letter dated 14 July 2008, Mr Wagh requested that the Tribunal issue a Summons to the Chief Executive Officer of Telstra Corporation Ltd to lodge all “documents” made in relation to telephone calls to and from an Australia Post Sydney number on 15 June 2006. He included a definition of “documents”.
69. Mr Batskos told me that the number is a direct line to a staff member of Australia Post who has been using that telephone for a year only (indicating that person was not using the number on 15 June 2006). He told me that numerous people had used that number over the period. Mr Batskos referred me to the reasons Mr Wagh has given for wanting the “documents”.
70. I noted that Mr Wagh wrote that for the following reasons but not limited to those, he required the “documents” :
“1) In order to properly prepare his application pursuant to Section 21A of the AAT Act seeking reconstitution of the Tribunal (which will be seeking the removal of Senior Member Ms. Geri Ettinger from any further involvement in these proceedings).
2) In order to properly prepare his response to the Respondent’s 10-page dismissal application dated 18 February 2008.
3) In order to prove that his application for review is NOT frivolous or vexatious.”
71. Mr Batskos submitted that from the Respondent’s point of view the purpose for seeking the documents was unclear, and that they would in any case not provide any probative evidence in the substantive matter. He submitted that the Respondent opposed the issue of the Summons.
72. I have noted Mr Wagh’s reasons provided in the written document requesting the Summons to Telstra, and the Respondent’s objections to the issue. I am mindful that Mr Wagh failed to comply with the Direction dated 26 February 2008 that he file his submissions and documents by 11 April 2008. Those Directions also gave the Respondent until 2 May 2008 to reply, and Mr Wagh until 16 May 2008 to make any replies to the Respondent’s submissions. Mr Wagh failed to file any submissions in regard to section 21A of the Act. The Respondent filed submissions dated 28 April 2008.
73. Accordingly, I now find that to permit further delays in finalising the interlocutory stages of this matter by issuing a further Summons to Telstra does not fit well with the objectives of the Tribunal to provide a mechanism of review that is fair, just, economical, informal and quick. I do not find a Summons to Telstra relevant to the proceedings before the Tribunal. I decline to issue the Summons to Telstra which Mr Wagh has requested.
any other relevant matters
74. Mr Batskos’ opening remarks at the Hearing on 16 July 2008 consisted of a submission that Mr Wagh’s application be dismissed on the grounds of his non-appearance. I informed him I would deal with that submission after I had dealt with the other issues.
75. Having first dealt with the issues on my list, I asked Mr Batskos for his further submissions. He submitted that Mr Wagh’s application should be dismissed because Mr Wagh had not attended the Tribunal Hearings on 26 February 2008 and 16 July 2008, and that his course of conduct constituted more than a casual disregard of Tribunal procedures. He submitted Mr Wagh had been provided with a reasonable timetable to prepare his material and that he had been told of the consequences of not complying. He had been on notice from the Tribunal in a letter dated 19 June 2008 that his claim could be dismissed for non appearance or non-compliance with Tribunal Directions. Mr Batskos referred me to Re Bragge and Repatriation Commission (1986) 10 ALN N136 which I noted was a matter where efforts had been made to ensure the parties were ready to proceed, and expense had occurred such that the Tribunal held that the non-appearance of the Applicant was in all the circumstances the trigger for the dismissal of the application. He submitted the application should be dismissed pursuant to section 42A(5) of the Act. As relevant the section of the Act follows:
“Dismissal if party fails to appear
(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, or an alternative dispute resolution process under Division 3, 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.
(3)For the purposes of subsection (2), a person is taken to appear in person or by a representative at a directions hearing or hearing of a proceeding if the person or the person’s representative, as the case may be, participates in it by a means allowed under section 35A.
(3A)For the purposes of subsection (2), a person is taken to appear in person or by a representative at an alternative dispute resolution process if the person or the person’s representative, as the case may be, participates in it by a means allowed under section 34G.
….
Dismissal if applicant fails to proceed or fails to comply with Tribunal’s direction
(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;
the Tribunal may dismiss the application without proceeding to review the decision.
Dismissed application taken to be concluded
(6)If, under this Act, the Tribunal dismisses an application or an application is dismissed on its behalf, the proceeding to which the application relates, unless it is reinstated under subsection (9) or (10), is taken to be concluded.
….”
76. After hearing the submissions, and having considered them and all the material before me, I have noted the progress of Mr Wagh’s application at the Tribunal.
· On 13 February 2007 Mr Wagh lodged his application for review of the decision of the Respondent made on 21 December 2006.
· Conferences were held with a Tribunal Conference Registrar on 26 April 2007 and 15 May 2007.
· Return of Summons Hearings, Interlocutory and Directions Hearings were held on:
(a)7 August 2008
(b)3 October 2007
(c)26 February 2008
(d)16 July 2008
·Directions were made on 26 February 2008.
77. Mr Wagh did not comply with the Directions made on 26 February 2008 setting a timetable for the lodgment of his application and submissions he claimed he wanted to make with regard to section 21A of the Act. Neither did he make any submissions in reply to the Respondent’s dismissal application. Accompanying the Tribunal’s Direction was the Tribunal’s “Notes to Direction” which make it clear that non-compliance with Directions is likely to result in the matter being listed for a Directions Hearing at which the defaulting party will be required to explain the failure to comply. Note 2 of the “Notes to Direction” explains that failure by an applicant to comply with the Direction may result in that party being asked to show cause why the application should not be dismissed. Further, that pursuant to section 42A(5)(b) of the Act, the Tribunal may dismiss an application where an applicant fails within a reasonable time to comply with a Direction made by the Tribunal in relation to that application. Accordingly I am satisfied that Mr Wagh was on notice that Directions of the Tribunal must be complied with.
78. Mr Wagh was reminded by the Tribunal in writing that he had not complied with the Direction on 14 May 2008, and in a further letter of 19 June 2008. He has been given ample and fair and reasonable opportunity and time to prepare any material he wishes. The Assistant Registrar wrote to Mr Wagh on 15 July 2008 enclosing a letter of the President to Mr Wagh. She also stated, referring to Mr Wagh’s letter of 14 July 2008 to the President that:
“In your letter you state that you do not intend to attend the hearing in your matter listed for tomorrow, 16 July 2008 at 10:00 am.
It is in your interests to attend the hearing. If you do not attend your risk having your application dismissed for non-appearance pursuant to section 42A(2)(a) of the Administrative Appeals Tribunal Act 1975.
...”
79. I am satisfied that Mr Wagh has shown disregard for the procedures of the Tribunal. He has not complied with Directions of the Tribunal as noted above, and has failed to appear at interlocutory Hearings on two recent occasions. I am satisfied he was given the correct notice of those and note that Mr Wagh acknowledged that notice by letter to the Tribunal stating that he would not attend. I dismiss Mr Wagh’s application for review pursuant to section 42A(2)(a) of the Act for failing to attend the Tribunal.
80. I further exercise the discretion to also dismiss Mr Wagh’s application pursuant to section 42A(5)(b) for failing within a reasonable time to comply with Directions of the Tribunal in relation to his application for review.
DECISION
81. In conclusion I decide as follows with regard to each of the issues considered at the Directions Hearing and Hearing of Summons on 16 July 2008, and for the reasons given in the paragraphs above.
82. I am not satisfied that details regarding an allegation of conflict of interest have been submitted by Mr Wagh. I am mindful of the Respondent’s submissions in that regard, and I am satisfied that I have no conflict of interest in hearing Mr Wagh’s application.
83. I am not satisfied that Mr Wagh has made an application pursuant to section 21A of the Act for the Tribunal to be reconstituted. I am properly constituted to hear the application.
84. I have considered the Respondent’s application that Mr Wagh’s application be dismissed as vexatious or frivolous, and I decline to so dismiss it.
85. I do not agree to issue the Summons Mr Wagh has requested be issued to Telstra Corporation.
86. I am satisfied that Mr Wagh has shown disregard towards the Directions of the Tribunal, and for the procedures of the Tribunal. I dismiss Mr Wagh’s application for review pursuant to section 42A(2)(a) of the Act for failing to attend two Hearings of interlocutory matters at the Tribunal when he had notice of them. I further exercise the discretion to also dismiss Mr Wagh’s application pursuant to section 42A(5)(b) for failing within a reasonable time to comply with Directions of the Tribunal in relation to his application for review.
I certify that 86 preceding paragraphs are a true copy of the reasons for the decision herein of Ms G Ettinger, Senior Member
Signed: .............[sgd]...................................................................
AssociateDate of Hearing 16 July 2008
Date of Decision 5 August 2008
The Applicant No appearance
Solicitor for the Respondent Mr M Batskos, FOI Solutions
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