Walsh and Australian Postal Corporation - [2021] AATA 4057

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.
.............................[SGD]...........................................
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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2021] AATA 4057
Decision Date: 5 November 2021

CaseChat Overview and Summary

The Administrative Appeals Tribunal (AAT) considered an application by the Australian Postal Corporation (the Respondent) to dismiss an application for merits review lodged by Walsh (the Applicant). The Applicant sought review of a decision made by the Respondent on 13 May 2020, which determined that her request for reconsideration of an earlier decision was out of time. The Applicant had initially sought merits review of this decision on 2 July 2020.

The central legal issue before the Tribunal was whether the Applicant's application should be dismissed pursuant to section 42A of the *Administrative Appeals Tribunal Act 1975* (Cth). This required the Tribunal to consider whether the Applicant had failed to comply with Tribunal directions, failed to proceed with her application within a reasonable time, and whether she could be contacted. The Tribunal was also guided by section 2A of the AAT Act, which mandates that the Tribunal's functions must pursue objectives of accessibility, fairness, justice, economy, informality, speed, proportionality, and public trust.

The Tribunal noted a history of non-compliance by the Applicant with multiple directions issued by the Tribunal regarding the provision of medical evidence and a Statement of Facts, Issues and Contentions. These directions were made on 7 September 2020, 23 October 2020, 5 November 2020, and 22 June 2021. The Applicant had also sought adjournments to obtain legal representation, which she had at various stages, but was again unrepresented by September 2021. The Respondent argued that the application had not progressed for over 12 months and that the Applicant had repeatedly failed to comply with directions. The Tribunal found that the Applicant had failed to comply with the direction of 22 June 2021, which prevented the Respondent from complying with its own subsequent direction. Given the prolonged lack of progress and the Applicant's failure to provide necessary documentation or indicate a path forward, the Tribunal concluded that the application should be dismissed.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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.

Ratio Decidendi

Legal Principle Established

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