Walsh and National Disability Insurance Agency

[2021] AATA 4927

Walsh and National Disability Insurance Agency [2021] AATA 4927 (26 November 2021)

Division:NATIONAL DISABILITY INSURANCE SCHEME DIVISION

File Number(s):      2021/2852

Re:Wayne Walsh

APPLICANT

AndNational Disability Insurance Agency

RESPONDENT

DECISION

Tribunal:

Date:26 November 2021

Date of oral reasons:             26 November 2021

Date of written reasons:        11 January 2022

Place:Brisbane

The application filed on 30 April 2021 is dismissed pursuant to subsection 42A(2) of the Administrative Appeals Tribunal Act 1975 (Cth)

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

Member P Smith

Catchwords

PRACTICE AND PROCEDURE – whether application should be dismissed under subsection 42A(5) of the Administrative Appeals Tribunal Act 1975 – applicant failed to appear at two scheduled events – application dismissed.

Legislation

Administrative Appeals Tribunal Act 1975 (Cth), s 42A

ORAL REASONS FOR DECISION

Member P Smith

26 November 2021

1. Mr Wayne Walsh (the Applicant) has schizophrenia and a secondary compacted disc in his spine.  He was granted access as a participant of the National Disability Insurance Scheme (the NDIS) on 31 January 2018, and since that date has had several statements of participants supports approved pursuant to subsection 33(2) of the National Disability Insurance Scheme Act 2013 (Cth) (the NDIS Act).  The most recent plan approved by the National Disability Insurance Agency (the Respondent) is dated 16 March 2021 with a review date of 16 March 2022. 

2. On 30 April 2021, the Applicant applied to the Tribunal for review of a decision of the Respondent to refuse the Applicant the addition of level 2 transport support in his current plan. 

3. A Telephone Directions Hearing (the TDH) was held on 26 November 2021 to discuss with the parties the future conduct of the matter.  The Applicant did not appear at the scheduled TDH.  A representative for the Respondent did appear at the TDH. 

4. Notwithstanding attempts made by the Tribunal to engage the Applicant in the process of having his matter progressed and resolved, it is noted that the Applicant has on numerous occasions demonstrated an unwillingness to participate in these proceedings.

   THE ISSUE

5. The issue is whether the application filed by the Applicant on 30 April 2021 should be dismissed under subsection 42A(2) of the Administrative Appeals Tribunal Act 1975 (Cth) (the AAT Act) on the basis of the Applicant’s failure to appear at the scheduled TDH.

   RELEVANT CHRONOLOGY

6. The chronology set out below is relevant to whether the application should be dismissed under subsection 42A(2) of the AAT Act.

7. On 24 August 2021, the matter was listed for a Telephone Case Conference (the TCC) before a Conference Registrar of the Tribunal. The TCC was adjourned on the basis that the Applicant was not aware of the listing.

8. On 23 September 2021, a second TCC before a Conference Registrar of the Tribunal was held.  The Applicant and a Representative of the Respondent both appeared at this TCC.  After the second TCC, the Applicant was required to file material.  The Applicant did not file any further material as required.

9. On 27 September 2021, a Notice of Listing (a Notice) was sent to the Applicant via his nominated email address. The Notice informed the Applicant that his application had been listed for a TCC on 9 November 2021 at 11.30AM (QLD Time) and indicated that the event would take place via telephone. The Notice also informed the Applicant to contact the Tribunal as soon as possible in the event that he was not able to attend the TCC at the date and time scheduled. Moreover, the Notice informed the Applicant that if he or his representative failed to attend the scheduled TCC, the Tribunal may dismiss his application under subsection 42A(2) of the AAT Act.

10. On 18 October 2021, in response to correspondence from the Tribunal about the material that was not filed, the Applicant replied by way of email, inferring that he did not want to proceed further with his application.

11. On 19 October 2021, the Tribunal sent correspondence to the Applicant to his nominated email address following a telephone conversation he had earlier that day with a Tribunal Officer about whether the Applicant wanted to proceed with his application. 

12. Attached to the correspondence of 19 October 2021 was a Notice of Withdrawal form. The Applicant was asked to complete and to return the withdrawal form to the Tribunal within 14 days, if he did not wish to proceed with his application. It was also proposed by the Tribunal in the letter that the Applicant contact the Tribunal within 14 days, if indeed he wished to proceed with his application. The letter stated that if the Tribunal did not receive the Applicant’s completed withdrawal form or advise that he wanted to proceed with his application within 14 days, his application may be dismissed by the Tribunal under subsection 42A(5) of the AAT Act.

13. On 2 November 2021, the Tribunal contacted the Applicant by telephone and asked him to confirm if he was continuing to proceed with his application. According to the notes recorded by a Tribunal Officer, the Applicant stated that he never received the forms. The Tribunal officer confirmed that the withdrawal form had been sent to his nominated email. The Applicant then terminated the call.

14. On 9 November 2021, the matter was listed for a further TCC before a Conference Registrar of the Tribunal. The Tribunal notes that a Notice was sent to the Applicant via his nominated email address on 27 September 2021. The Notice informed the Applicant that his application had been listed for a TCC on 9 November 2021 at 11.30AM (QLD Time) and indicated that the event would take place via telephone. The Applicant did not appear at this TCC.  According to notes recorded by a Tribunal officer the following day, the Tribunal made several attempts to contact the Applicant via telephone.  On the first attempt the Applicant answered the call but when he was informed that it was the Tribunal, the Applicant’s phone line went silent.  A voicemail message was also left by the Tribunal officer.  The voicemail message informed the Applicant that the Tribunal would be likely to dismiss his application unless he called or wrote to the Tribunal indicating that he wanted to proceed with his case.  The Applicant did not return the Tribunal’s calls or message.

15. On 10 November 2021, a Notice of Listing was sent to the Applicant via his nominated email. The Notice informed the Applicant that the Tribunal had listed his application for a TDH on 26 November 2021 at 10.00AM (QLD Time) and indicated that the event would take place via telephone. The Notice also informed the Applicant to contact the Tribunal as soon as possible in the event that he was not able to attend at the date and time scheduled. Moreover, the Notice informed the Applicant that if he or his representative failed to attend the scheduled TDH, the Tribunal may dismiss his application under subsection 42A(2) of the AAT Act.

16. On 11 November 2021, the Applicant sent an email in reply to the Listing Notice sent to him on 10 November 2021.  The email did not clarify to the Tribunal whether he wanted to proceed with his application.

17. On 24 November 2021, the Tribunal sent an email to the parties seeking confirmation from each of the parties as to who will be appearing at the TDH by close of business on 25 November 2021.  The email, however, incorrectly referred to the date of the TDH as being on 25 November 2021 at 10.00am (Qld time).  This, in fact, is not the correct date that the parties had been informed in the Notice dated 10 November 2021.

18. On 25 November 2021, the Tribunal sent a further email to the parties correcting the date error referred to in the email the Tribunal sent on 24 November 2021.

19. On 26 November 2021, on the morning of the TDH, the Tribunal attempted to contact the Applicant via telephone.  However, he did not appear at the scheduled time and date.

    THE LAW

20. Subsection 42A(2) of the AAT Act gives the Tribunal the power to dismiss an application for review if a party (other than the person who made the decision) fails to appear. Subsection (2) provides:

    (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 whomade 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.

21. Subsection (7) provides that before exercising the power under subsection (2), the Tribunal must be satisfied that appropriate notice was given to the person who failed to appear of the time and place of the directions hearing, alternative dispute resolution process or hearing, as the case may be.

    DISCUSSION

22. The Applicant was required to appear before the Tribunal to discuss the future conduct of his application on 26 November 2021. The Notice that was sent to him on 10 November 2021 informed him of the date and time of the TDH and indicated that the event would take place via telephone. The Notice also informed the Applicant that if he could not attend the scheduled TDH, he should advise the Tribunal as soon as possible. The Notice further informed the Applicant that if he or his Representative failed to attend the scheduled TDH, his application may be dismissed under subsection 42A(2) of the AAT Act.

23. The Applicant did not contact the Tribunal to advise that he is unable to attend the scheduled TDH.  His emails of 11 November 2021 indicate to the Tribunal that he received the Notice sent to him on 10 November 2021. The Tribunal notes that the Applicant has previously failed to appear at a TCC on 9 November 2021, after being given appropriate notice to appear. 

24. The Tribunal has made other attempts to contact the Applicant about the scheduled TDH, including a telephone call on the morning of the TDH.  However, despite this attempt the Applicant did not appear.  The Tribunal notes that there have also been previous attempts by the Tribunal to contact the Applicant via telephone in relation to the TCC that was scheduled for 9 November 2021.  The Applicant did not appear at this TCC.

25. For the reasons given, the Tribunal is satisfied that the Applicant was given appropriate notice of the time and place of the TDH as required under subsection 42A(7) of the AAT Act.

    DECISION

26. The application filed on 30 April 2021 is dismissed pursuant to subsection 42A(2) of the Administrative Appeals Tribunal Act 1975 (Cth).

27.     I certify that the preceding twenty-six (26) paragraphs are a true copy of the reasons for the decision herein of Member P Smith.

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

Associate

Dated: 11 January 2022

Dates of telephone directions hearing:	26 November 2021
Solicitors for the Respondent:	Maddocks Lawyers