Walsh and Australian Postal Corporation
[2021] AATA 4057
•5 November 2021
Walsh and Australian Postal Corporation [2021] AATA 4057 (5 November 2021)
Division:GENERAL DIVISION
File Number(s): 2020/3977
Re:Rebekah Walsh
APPLICANT
AndAustralian Postal Corporation
RESPONDENT
DECISION
Tribunal:The Hon. John Pascoe AC CVO, Deputy President
Date:5 November 2021
Place:Sydney
The application is dismissed pursuant to s 42A(5) of the Administrative Appeals Tribunal Act 1975 (Cth).
Subject to the Applicant notifying the Tribunal within 14 days of her intention to proceed, the above order will come into effect on 19 November 2021, which is 14 days from the date of this decision.
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The Hon. John Pascoe AC CVO, Deputy President
CATCHWORDS
PRACTICE AND PROCEDURE – application for dismissal – whether application should be dismissed under s 42A of the Administrative Appeals Tribunal Act 1975 – where applicant has failed to comply with directions – where applicant has failed within reasonable time to proceed – where applicant cannot be contacted – application dismissed
LEGISLATION
Administrative Appeals Tribunal Act 1975 (Cth), ss 2A, 33, 42A
CASES
Charara v Commissioner of Taxation [2016] FCA 451
REASONS FOR DECISION
The Hon. John Pascoe AC CVO, Deputy President
BACKGROUND
On 12 January 2015, the Applicant’s entitlement to compensation was suspended on and from that date under s 37(7) of the Safety, Rehabilitation and Compensation Act 1988 (Cth) (the Act) until such time as the Applicant began to undertake a rehabilitation program the subject of a prior determination made on 11 December 2014.
On 13 May 2020 it was determined, in accordance with s 62(3) of the Act, that the Applicant’s request for reconsideration of the determination made on 12 January 2015 was out of time (the reviewable decision).
The Applicant subsequently lodged an application with the Tribunal on 2 July 2020, seeking merits review of the reviewable decision made by the Respondent on 13 May 2020. The Applicant was legally represented at that time.
On 7 September 2020, the Applicant was directed to provide any further medical evidence on which she intended to rely in her application by 19 October 2020. The matter was listed for hearing on 22 February 2021.
On 23 October 2020, by which time the Applicant was no longer legal represented, the direction made on 7 September 2020 was varied and the Applicant was instead directed to provide any further medical evidence on which she intended to rely by 30 November 2020.
On 5 November 2020, the direction made on 23 October 2020 was vacated and the Applicant was instead directed to provide any further evidence and, if legally represented, a Statement of Facts, Issues and Contentions by 11 December 2020.
Following a further directions hearing on 1 February 2021, the hearing listed for 22 February 2021 was vacated at the Applicant’s request to allow her the opportunity to obtain new legal representation.
On 17 May 2021 a directions hearing was held, and the Applicant was given more time to obtain legal representation.
On 15 June 2021 a directions hearing was held and it was agreed that a timetable would be set down for hearing. The Applicant had obtained further legal representation at this point.
On 22 June 2021, the matter was listed for hearing commencing on 2 November 2021. On 22 June 2021, the Applicant was also directed to provide further evidence and a Statement of Facts, Issues and Contentions by 16 August 2021. The Respondent was directed to provide any further evidence and a Statement of Facts, Issues and Contentions by 13 September 2021.
The Applicant failed to comply with the relevant direction made on 22 June 2021, as a result of which the Respondent was not able to comply with the relevant direction made on that date.
There remains no indication as to whether and, if so, when the Applicant will be in a position to provide any further evidence or whether the Applicant will be able to proceed to hearing. The Tribunal was also advised on 16 September 2021 that the Applicant is again no longer legally represented.
On 17 September 2021, the Respondent contacted the Tribunal and requested that the application be dismissed pursuant to s 42A(5) of the Administrative Appeals Tribunal Act 1975 (Cth) (the AAT Act). The Respondent pointed out that the application has not progressed for over 12 months and the Applicant has repeatedly failed to comply with numerous directions made by the Tribunal.
LEGISLATIVE FRAMEWORK
Section 2A of the AAT Act provides that:
In carrying out its functions, the Tribunal must pursue the objective of providing a mechanism of review that:
(a) is accessible; and
(b) is fair, just, economical, informal and quick; and
(c) is proportionate to the importance and complexity of the matter; and
(d) promotes public trust and confidence in the decision-making of the Tribunal.
Section 33 of the AAT Act relevantly provides that:
(1AB) A party to a proceeding before the Tribunal, and any person representing such a party must use his or her best endeavours to assist the Tribunal to fulfil the objective in section 2A.
Section 42A(5) of the AAT Act provides as follows:
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.
ISSUE
The issue for determination is whether the Tribunal should exercise its discretion to dismiss the application pursuant to s 42A(5) of the AAT Act.
DISCUSSION
The background to this matter demonstrates that is has not progressed at all, over a period of some 16 months despite the Applicant having been given numerous opportunities to deal with the various issues raised by her including legal representation, health issues and difficulties relating to her accommodation.
The most recent correspondence with the Tribunal came from the Applicant’s former solicitors advising that they were no longer acting for her. The Tribunal has not received any communication from the Applicant, despite attempting to contact her on several occasions, including for the purposes of the interlocutory proceedings on 2 November 2021.
Apart from the failure of the matter to proceed, I note that the lapse of time makes it increasingly difficult for the Applicant to be able to obtain relevant medical evidence and I am not aware that there has been any attempt to obtain such evidence.
There is prejudice to the Respondent if the matter is not dismissed. The Respondent has incurred legal costs in relation to numerous directions hearings before the Tribunal, which have not resulted in the matter progressing at all, and has been unable to dispose of or “close its books” on a matter which has gone on for many years.
In Charara v Commissioner of Taxation [2016] FCA 451, Wigney J set out two principles relevant to the exercise of the discretion under s 42A(5) of the AAT Act as follows:
[79] The discretion must only be exercised sparingly and as a matter of “last resort” (emphasis added): Guse v Comcare (1997) 49 ALD 288 at 291. That is because it involves denying an applicant a hearing of the merits of the application. Because dismissal under s 42A(5) is a matter of last resort, the Tribunal must consider whether dismissal is the proper remedy, or whether it would be more appropriate to take some other course, such as adjourning the proceeding or making some other order to secure compliance: Guse v Comcare at 291. Again, a failure to do so would most likely constitute a misapplication of s 42A(5).
[80] In exercising the discretion, the Tribunal must also afford the applicant procedural fairness (emphasis added): Guse v Comcare at 291. Procedural fairness would ordinarily require the Tribunal to give the applicant the opportunity to make submissions as to why the discretion should not be exercised. That would include giving the applicant an opportunity to put forward submissions concerning whether there had been a failure to comply with a direction and, if so, whether a reasonable time had elapsed since that failure. It would also ordinarily extend to giving the applicant an opportunity to explain or justify any failure, or to advance any reasons why, despite the failure, the application should not be dismissed. Depending on the particular circumstances, it might also extend to giving the applicant a further opportunity to comply or to remedy the default.
Bearing the above principles in mind, and considering all the circumstances, including the failure of the Applicant to appear at the interlocutory hearing despite numerous attempts to contact her, it is my opinion that the proper course is to dismiss the proceedings under s 42A(5) of the AAT Act. Such order is to take effect two weeks from the date of publication of this decision, if the Applicant does not indicate to the Tribunal that she wishes to proceed with her original application and provide evidence that she is in a position to proceed with her application. A copy of this decision and the orders are to be sent to the Applicant via email as her address is currently unknown to the Tribunal.
A decision to dismiss proceedings is not one that I have taken lightly, particularly as it is accepted that the Applicant has mental health issues and clearly faces many difficulties in her life. Against that however, are the many excuses over time for failure to proceed, together with indications that “next time” the matter will be able to move forward. This has not proven to be the case. I have delayed these orders coming into effect to afford the Applicant an opportunity to explain why she has not been able to be contacted and as a matter of fairness towards her.
I note further that there are relevant provisions in the AAT Act which will enable the Applicant to revive her claim if she wishes to do so in the future.
DECISION
The application is dismissed pursuant to s 42A(5) of the AAT Act.
Subject to the Applicant notifying the Tribunal within 14 days of her intention to proceed, the above order will come into effect on 19 November 2021, which is 14 days from the date of this decision.
I certify that the preceding 27 (twenty-seven) paragraphs are a true copy of the reasons for the decision herein of The Hon. John Pascoe AC CVO, Deputy President
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Associate
Dated: 5 November 2021
Date(s) of hearing: 2 November 2021 Date final submissions received: 2 November 2021 Applicant: Solicitors for the Respondent: B O'Brien, Moray and Agnew
Key Legal Topics
Areas of Law
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Administrative Law
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Statutory Interpretation
Legal Concepts
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Judicial Review
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Procedural Fairness
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Standing
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Statutory Construction
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Abuse of Process
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