Wilson and Commissioner of Taxation
[2007] AATA 1721
•31 August 2007
CATCHWORDS – PRACTICE AND PROCEDURE – application for reinstatement – application dismissed for failure to proceed with an application – whether dismissed in error – consideration of possible errors – no error – application refused.
Administrative Appeals Tribunal Act 1975 ss.3, 3(1)(a), 3(1)(h), 32, 42A, 42A(1A)42A(2), 42A(5) and 42A(8)-(10)
Income Tax Assessment Act 1936 s 177F(1)(a)
Brehoi v Minister for Immigration and Multicultural Affairs (1999) 52 ALD 385
Goldie v Minister for Immigration and Multicultural and Indigenous Affairs(2002) 72 ALD 652
Guo v Minister for Immigration and Multicultural and Indigenous Affairs[2004] FCA 1585
Guse v Comcare (1997) 49 ALD 288
Katterns v Comcare [2002] FCA 1366
Minister for Immigration and Multicultural Affairs vBhardwaj (2002) 209 CLR 597
Re Greening and Repatriation Commission (1999) 52 ALD 110
Re The Taxpayer and Commissioner of Taxation (1997) 37 ATR 1120
Re White and Secretary, Department of Families, Community Services and Indigenous Affairs [2007] AATA 1712
Schmid v Comcare [2003] FCA 1057; (2003) 77 ALD 782
Singh v Minister for Immigration and Multicultural Affairs (2000) 179 ALR 542; 62 ALD 646
Sleep v Repatriation Commission [2006] FCAFC 304
DECISION AND REASONS FOR DECISION [2007] AATA 1721
ADMINISTRATIVE APPEALS TRIBUNAL )
) VT2002/212
TAXATION APPEALS DIVISION )
Re CARL WILSON
Applicant
AndCOMMISSIONER OF TAXATION
Respondent
DECISION
Tribunal: Deputy President S A Forgie
Date: 31 August 2007
Place: Melbourne
Decision:The Tribunal has decided to refuse to reinstate the application lodged by the applicant on 12 September 2002 and dismissed by the Tribunal on 5 March 2007.
S A FORGIE
Deputy President
REASONS FOR DECISION
In his application for review lodged on 12 September 2002, Mr Wilson had asked the Tribunal to review a decision of the Commissioner of Taxation (Commissioner) dated 11 July 2002. The Commissioner had disallowed Mr Wilson’s objection against his earlier assessment dated 26 November 2001 and made under the Income Tax Assessment Act 1936 (ITA Act). That assessment had increased Mr Wilson’s taxable income by $500,000 on the basis that his assessable income was to be increased by that amount as he had obtained a benefit in connection with a scheme to which Part IVA of the ITA Act applies.[1] It also imposed penalty tax. The amount of $500,000 had been contributed by GCW Holdings Pty Ltd to Coad-23 Pty Ltd under an employee share scheme and that contribution had been credited to the employee account of Mr Wilson.
[1] ITA Act, s 177F(1)(a)
Mr Graham Little had received a similar objection decision in relation to a similar contribution credited to his employee share account. He too had objected and then applied to the Tribunal for review of the objection decision at or about the same time as Mr Wilson. As their applications raised the same issues and as they were represented by the same solicitors, the Tribunal dealt with the procedural aspects to their applications together. They parted company, however, when Mr Little decided to reach a settlement with the Commissioner shortly before the hearing set for 5 and 6 March 2007.
Despite an earlier assurance from his solicitor that he would attend the hearing, Mr Wilson did not. Mr O’Keefe, who appeared for Mr Wilson, said that his client had planned to rely on the arguments put by the counsel whom Mr Little briefed but Mr Wilson had not briefed his own counsel for the hearing. When the application came on for hearing on 5 March 2007 before Senior Member Pascoe, Mr O’Keefe asked for an adjournment. The Commissioner opposed an adjournment. Senior Member Pascoe decided that Mr Wilson had failed to proceed with his application notwithstanding that he had been given adequate notice of the hearing. He decided to dismiss the application. Mr Wilson now applies for the reinstatement of his application under s 42A(10) of the AAT Act. I have refused to reinstate Mr Wilson’s application.
BACKGROUND
In this section, I will give a flavour of the course of the various proceedings in this case by summarising the major steps that have taken place. It was one of a number of cases raising issues under Part IV of the Income Tax Assessment Act 1936. It did so in the context of Mr Wilson’s participation in an Employee Share Plan (Coadys’ arrangement) and claiming a deduction of $500,000. In the following table, I have set out the key events that appear from Mr Wilson’s file. The entries in italics represent events that Mr Sievers of counsel, who appeared for Mr Wilson at the reinstatement hearing, submitted were key events but which do not appear from Mr Wilson’s file. For much of the time, proceedings in Mr Wilson’s matter were conducted jointly with those lodged at the same time by Mr Graeme Little. Both were represented by Mr Wilson’s then solicitors, Coadys. I note, though, that the directions given to Mr Wilson and to Mr Little were recorded in separate documents.
| DATE | PROCEEDING/ACTION/OUTCOME |
| 12 September 2002 | Applications lodged by Mr Wilson and Mr Graeme Little. Each raises issues relating to their participation in the Coady’s arrangement. |
| 20 September 2002 | Request by Commissioner for extension of time to file documents under s 37 of the AAT Act pending outcome of test case in Federal Court. |
| 20 May 2003 | Advised by Commissioner that two test cases listed for hearing in Federal Court discontinued on 17 March 2003. |
| 8 July 2003 (changed to 18 July 2003) | Directions Hearing Deputy President Forgie sets timetable for Mr Wilson to lodge Statement of Facts and Contentions and documents on which he relies by 30 September 2003 and Commissioner by 28 October 2003. |
| 17 October 2003 | Tribunal writes to Mr Wilson’s then solicitors, Coadys, asking them to show cause why the applications should not be dismissed under s 42A(5)(b) of the AAT Act for failure to comply with the direction. |
| 21 October 2003 | Coadys writes to the Tribunal advising that they had, that day, been advised by the applicant’s accountants to proceed with the applications and instructed to prepare the Statement of Facts and Contentions. |
| 27 October 2003 | Deputy President Forgie amends direction so that Mr Wilson required to comply by 31 October 2003 and Commissioner by 28 November 2003. |
| 10 November 2003 | Tribunal writes to Coadys asking them to show cause why the application should not be dismissed under s 42A(5)(b) of the AAT Act for failure to comply with the direction. |
| 11 November 2003 | Coadys requests further extension of time within which to lodge Statement of Facts and Contentions stating that it had not received the amended direction until 31 October 2003. Coadys advises that the draft Statement of Facts and Contentions is with the applicant’s accountants and being checked. |
| 24 November 2003 | Mr Wilson’s Statement of Facts and Contentions lodged in Tribunal. |
| 25 November 2003 | Commissioner asks for amendment of Direction to extend time within which to comply with the Tribunal’s direction. |
| 8 December 2003 | Deputy President Forgie extends time within which Commissioner required to lodge Statement of Facts and Contentions extended to 23 December 2003. |
| 23 December 2003 | Commissioner asks for a further extension of time within which to lodge Statement of Facts and Contentions as counsel on leave until 27 January 2004. |
| 15 January 2004 | Deputy President Forgie issues further amended Direction to effect that the Commissioner must lodge his Statement of Facts and Contentions by 30 January 2004. |
| 2 February 2004 | Commissioner lodges Statement of Facts and Contentions |
| 3 February 2004 | Deputy President Forgie holds a directions hearing to discuss progress of case and Commissioner’s request to Mr Wilson for discovery of documents. Adjourned until 2 March 2004 to enable parties to discuss discovery. |
| 21 May 2004 | Further directions hearing discussing progress of discovery and location of certain documents following completion of liquidation of employer company. |
| 22 July 2004 | Further discussions at directions hearing regarding difficulty of ascertaining location of documents reviewed by liquidator, who has since retired and placed records in storage. |
| 24 September 2004 | Directions hearing notes liquidator’s advice that documents held by employer company’s accountant and that he has none in storage. Also notes accountant’s advice that documents still with liquidator. Summons to be issued to both. Deputy President Forgie directs applicant to lodge list of documents in his possession and his witness statement by 19 October 2004 and other witness statements 28 days later. Commissioner to lodge and serve his witness statements by 16 November 2004. |
| 5 October 2004 | Return of summonses. No documents returned on one and a Trust Deed and a Balance Sheet for Coad-23 Pty Ltd, which is the Employee Share Plan Company, produced on the other. |
| 1 March 2005 | No settlement as waiting for a further assessment from Commissioner and direction not complied with. Directed by President to settle or “strict directions” to be given to lodge documents. Adjourned to 19 April 2005. |
| 18 April 2005 | Coadys writes to AGS on behalf of Messrs Wilson and Little with a settlement offer. |
| 8 July 2005 | The Commissioner responds on 8 July 2005 but Coadys does not receive it until 13 July 2005. The response included a proposed settlement deed to which both Mr Wilson and Mr Little would be parties. |
| August and September 2005 | Negotiations proceed on the settlement deed. Mr Little’s negotiations hampered by his being in divorce proceedings and the consequent freezing of his assets. Mr Wilson sees his negotiations as affected. |
| 25 August 2005 | Directions by Deputy President Purvis that Mr Wilson file and serve witness statements by 15 September 2005 and the Commissioner by 29 September 2005. |
| 29 August 2005 | Directions by Deputy President Purvis that the parties either lodge terms of settlement by 4 October 2005 or further directions will be given on 5 October 2005. |
| 29 September 2005 | Directions hearing before Deputy President Purvis. Coadys advised that Mr Wilson would sign and return the Settlement Deed to the Commissioner. |
| 5 October 2005 | Mr Wilson and Mr Little withdraw from the settlement negotiations because of Mr Little’s divorce proceedings and following a police raid on Mr Wilson’s premises in Australia that was thought to be in connection with Operation Wickenby. |
| 5 October 2005 | Mr Wilson’s witness statement lodged. Directions by Deputy President Purvis that Mr Wilson must file all documentary material and witness statements by 4 November 2005 and the commission by 2 December 2005. Both parties to file hearing certificates by 16 December 2005. |
| 7 November 2005 | The Commissioner writes to Coadys asking when they can expect to receive Mr Wilson’s documents in accordance with Deputy President Purvis’s direction. |
| 11 November 2005 | Tribunal writes to Coadys asking it to show cause why Mr Wilson’s application should not be dismissed for failure to comply with direction. |
| 15 November 2005 | Coadys writes to say it had only received the Tribunal’s letter on that day and asks for a further 14 days within which to obtain instructions. |
| 23 November 2005 | Letter from Coadys stating that it had been advised on 18 November 2005 that Mr Wilson’s accountant was preparing a witness statement for him as well as a valuation of the shares. Coadys states that it had understood that both would be available for filing that week but that the accountant, Mr Madgwick, was on a boat off the coast of Queensland until the end of the week. It requests a further 14 days within which to file the documents. |
| 24 November 2005 | Tribunal re-submits the file to 8 December 2005 to follow up the witness statements. |
| 9 December 2005 | Letter from Coadys that Mr Madgwick’s statement would be filed on 12 December 2005. |
| 13 December 2005 | Coadys lodges witness statement by Mr Madgwick on behalf of Mr Wilson. |
| 2006 | During 2006, Mr Little was seriously ill and had to be hospitalised. The Tribunal was informed. |
| 9 February 2006 | Deputy President Purvis holds a directions hearing at which the Commissioner observed that Mr Wilson’s advisers appear to be under the misapprehension that he has not withdrawn his proof of debt in respect of GCW Holdings Pty Ltd when he did so, and advised of the fact in his Statement of Facts and Contentions dated 2 February 2004, that he had done so on 30 January 2004. Deputy President Purvis directs that Mr Wilson file any additional witness statements having regard to that fact by 2 March 2006. He also directs him to file any documents relating to the investment of monies by Coad-23 Pty Ltd in GC Management Services Unit Trust by 2 March 2006. The Commissioner was to file any valuation report on which he intended to rely by 30 March 2006. Both parties to lodge hearing certificates by 17 April 2006. |
| 3 April 2006 | Commissioner lodges witness statement of Mr Paul Carter regarding value of employee shares. |
| 21 April to 29 May 2006 | Five follow up calls from Tribunal to Coadys regarding the return of the hearing certificate. On first call advised difficulties contacting counsel but expected to send hearing certificate by 26 April 2006. The Tribunal’s calls made without receiving a return call. The fifth leads to advice that Coadys having difficulties reaching its client and would get back to the Tribunal by the end of the week. Tribunal advised parties that if nothing is received, matter would be listed by 5 June 2006. |
| 7 June 2006 | Matters returned for listing in Melbourne Registry and listing certificates requested by 29 June 2006. |
| 29 June 2006 | Commissioner seeks further time within which to lodge hearing certificate as counsel on leave. Some indication of availability given. |
| 15 July 2006 | Application listed for hearing on 11 and 12 September 2006. |
| 17 July 2006 | Commissioner lodges hearing certificate. |
| 30 August 2006 | Commissioner seeks an adjournment as his valuer has been hospitalised after experiencing a heart attack and is to undergo surgery on 5 September 2006. Coadys consents to an adjournment in a letter to the Commissioner dated 25 August 2006. |
| 11 September 2006 | Directions hearing by Senior Member Pascoe to consider Commissioner’s application for an adjournment. Coadys consents as Mr Wilson is overseas and Mr Little is ill. Listed for a directions hearing for early November. “Applic rep advised to contact Wilson and advise if not proceed when matter listed for hearing could be dismissed.” |
| 6 November 2006 | Coadys advises Mr Carter now available. Mr Wilson in the United Kingdom but will return for the hearing. Parties directed to provide hearing certificates for hearing in December 2006 or January or February 2007. |
| 9 November 2006 | Tribunal sends letter requiring hearing certificates to be filed by 16 November 2006. |
| 14 November 2006 | Commissioner lodges hearing certificate. |
| 8 December 2006 | Tribunal sends listing notices to parties advising that application to be heard on 5 and 6 March 2007. Listing notices received by Coadys on 13 December 2005. |
| February 2007 | Mr Little (but not Mr Wilson) instructs Mr Nunzio Lucarelli QC to appear at the hearing but Mr Lucarelli not available for listed dates. Minter Ellison is “… instructed that the original intention (which was communicated to AGS) was to appear with Coadys solicitors to ask for a further brief adjournment to a convenient date when Mr Lucaretti would be available to appear on behalf of Little.”[2] |
| 27 February (on or about) | Mr Little decides not to proceed with instructing counsel to appear and decides instead to enter into settlement negotiations with the Commissioner. He makes direct contact with AGS and the Commissioner’s representatives. Mr Wilson has no notice of the negotiations and do not involve him. |
| 2 March 2007 | Coadys informs AGS that Mr Wilson wishes to settle the proceeding. When AGS advises that the basis of the settlement has not been communicated to the Commissioner, Mr Wilson personally sends a settlement proposal to AGS on 2 March 2007. AGS gives Coadys a copy of that proposal on 5 March 2007 at 8.43am. |
| 5 March 2007 | Coadys applies for an adjournment as Mr Wilson is overseas and without counsel. Mr Wilson had planned to run his case with Mr Little but Mr Little has settled his case. Application for adjournment strongly opposed by Commissioner. Substantive application dismissed under s 42A(5) of the AAT Act. |
| 5 March 2007 | Copy of the order sent to the parties. |
[2] Letter dated 16 March 2007 from Minter Ellison to the Tribunal at [17].
| 14 March 2007 | Mr Wilson writes to Tribunal advising that he has engaged Minter Ellison as his solicitors and applies for reinstatement. |
| 16 March 2007 | Minter Ellison makes written submissions in a letter sent to the Tribunal. |
| 2 May 2007 | Application for reinstatement heard. The Commissioner neither consented nor opposed the application. |
| 18 - 31 May 2007 | Minter Ellison and Commissioner file supplementary submissions. |
At the conclusion of the hearing, Senior Member Pascoe issued a written order “to dismiss the application pursuant to section 42A(5)” of the AAT Act. It began with the following preamble:
“WHEREAS this application was listed for hearing on 5 and 6 December 2007 and notice of such hearing dated 8 December 2006 was given to the applicant, and
WHEREAS the applicant failed to appear at the hearing and by his representative sought adjournment to enable the applicant to seek settlement of his matter or, failing such settlement, to brief counsel to represent him at a future hearing, and
WHEREAS the respondent opposed such application for adjournment and requested the Tribunal to dismiss the application for failure to proceed on the grounds that the applicant had been provided with more than ample time after listing of the hearing to do those things for which he now seeks further time, and
WHEREAS the Tribunal is satisfied that, notwithstanding the adequate notice of the hearing, the applicant has failed to proceed with his application.”
Mr Bart Frederic Oude-Vrielink is a solicitor acting for Mr Wilson who had authorised him to make an affidavit on his behalf.[3] Mr Wilson had informed him of the following:
[3] Exhibit A
“(a) Mr Wilson intended to return from Italy to Australia to attend the hearings on 5 and 6 March 2007 and for that purpose reserved a flight to Melbourne departing from Italy on the evening of 27 February 2007 and arriving in Melbourne on 1 March 2007.
(b)Approximately three weeks prior to the scheduled hearing date, Graeme Little (‘Mr Little’) informed Mr Wilson that Mr Little was briefing Nunzio Lucarelli, QC to appear for him at the hearing and that Mr Lucarelli was not available for the 5 March hearing date and that accordingly Mr Little would be seeking an adjournment of the hearing on that date. At that time, Mr Little also advised Mr Wilson that Mr Lucarelli had advised him that Mr Lucarelli was confident that in the circumstances (and given the lengthy delays on both sides to date) a short adjournment would be granted.
(c)At that time Mr Wilson formed the view that as Mr Little’s case was linked to Mr Wilson’s case (at the insistence of the respondent) an adjournment of Mr Little’s case meant that Mr Wilson’s case would also be adjourned.
(d)Following discussions during the next two weeks between Mr Wilson and his previous solicitor Mr O’Keefe, of Coadys and Mr Little’s accountant, Mr Madgwick, and in particular given Mr Little was retaining Mr Lucarelli to appear for him and Mr Lucarelli’s standing, Mr Wilson decided not to retain separate counsel for the hearing on 5 March 2007.
(e)On or about February 2007 (four days prior to Mr Wilson’s intended departure to Australia) Mr Wilson attempted to contact Mr Little to confirm Mr Little’s intended approach in relation to the hearing but was unable to do so. However, Mr O’Keefe of Coadys informed Mr Wilson that at that time he believed that Mr Little still intended to proceed with Mr Lucarelli acting for him and to seek an adjournment of the hearing on 5 March 2007.
(f)At that time, Mr Wilson was reluctant to proceed with his flight booked for 27 February 2007 as he believed that it would mean that he would be required to make two trips to Melbourne, one for the adjournment hearing on 5 March 2007 and one for a subsequent hearing. Such trips are costly for Mr Wilson and involve several days during which he cannot attend to his ongoing business commitments. .
(g)Accordingly, on Sunday 25 February 2007 (approximately 48 hours prior to his originally intended departure time of 27 February 2007) and believing that the hearing on 5 March 2007 would be a procedural formality, Mr Wilson cancelled the flight to Melbourne booked for 27 February 2007.
(h)On Thursday, 1 March 2007 Mr Wilson was informed by Mr Madgwick of the change in Mr Little’s position, that is, that he would not be proceeding with an adjournment and that he was likely to settle the dispute with the respondent. On that day, despite a number of attempts, Mr Wilson was not able to discuss Mr Little’s intentions with him as he did not return Mr Wilson’s calls.
(i)On the morning of Friday, 2 March 2007 Mr O’Keefe of Madgwicks confirmed that Mr Little was likely to settle his dispute with the respondent and was not proceeding with the hearing on 5 March 2007. On that date a without prejudice settlement proposal was made to the respondent on behalf of Mr Wilson.
(j)By that time, Friday, 2 March 2007, given the next day was Saturday, the time differences between Italy and Australia and the length of the flight from Italy to Melbourne, it was impractical for Mr Wilson to brief counsel for the hearing on 5 March 2007 and fly to Melbourne for the hearing on Monday, 5 March 2007.
(k)Accordingly Mr Wilson instructed Mr O’Keefe of Madgwicks to press for settlement of his dispute with the respondent and in the absence of a conclusion of settlement discussions, to seek a short delay of the hearing to either conclude the settlement or alternatively to allow Mr Wilson to brief counsel to appear for him at the hearing. ”
THE SUBMISSIONS
In essence, Mr Sievers submitted that the power given to the Tribunal by s 42A(10) of the AAT Act to reinstate an application “dismissed in error” is not limited to circumstances in which the error has been procedural or made by a member or officer of the Tribunal. He relied on the judgment of Goldie v Minister for Immigration and Multicultural and Indigenous Affairs.[4]Relying on Katterns v Comcare[5] as well as on Goldie,[6] Mr Sievers submitted that lack of procedural fairness may constitute an error. In this case, he submitted, Senior Member Pascoe had denied Mr Wilson natural justice by dismissing the application with the knowledge that there were other avenues to be considered and without giving him an adequate opportunity to be heard. Citing Guse v Comcare,[7] Mr Sievers submitted that there were, or might have been, issues that Mr Wilson could reasonably have advanced if given an adequate opportunity to do so. He relied also on Guo v Minister for Immigration and Multicultural and Indigenous Affairs,[8] in which Wilcox J also had regard to issues relating to the denial of natural justice or procedural error and two Tribunal decisions to like effect: Re The Taxpayer and Commissioner of Taxation[9] and Re Greening and Repatriation Commission.[10]
[4] (2002) 72 ALD 652; constituted by Wilcox and Downes JJ, Carr J dissenting but not on this aspect.
[5] [2002] FCA 1366
[6] (2002) 72 ALD 652
[7] (1997) 49 ALD 288
[8] [2004] FCA 1585
[9] (1997) 37 ATR 1120
[10] (1999) 52 ALD 110
In the written submissions made to the Tribunal in a letter dated 16 March 2007, the error was described in this way:
“We submit that the fault leading to the error in this case lies with:
(a)failure by our client’s previous legal advisers to decouple last minute developments in the proceedings with their other client, Mr Graeme Little (Little), from developments in relation to Little; and
(b)Wilson not being given the necessary fairness in respect of the hearing on 5 March 2007 to present his case, which was then for the first time since the proceeding commenced in September 2002, being conducted in isolation from those of Little.
The Tribunal was informed in September 2006 that Wilson had been overseas since March 2006. We are instructed that Wilson currently resides in Italy. As a result he is obliged to manage his affairs in Australia remotely through advisers. His application to the Tribunal was dismissed on 5 March 2007 without Wilson having had the chance (or even been aware of) the Commissioner’s rejection of a settlement proposal communicated by Wilson on 2 March 2007 but, owing to time differences, not received by AGS until the morning of the hearing on 5 March 2007. The lateness of Wilson’s communication of the settlement proposal was solely as a result of the last minute abandonment of Little’s earlier determination to proceed to a hearing with senior counsel representing him and commence detailed settlement negotiations, effectively leaving Wilson unprepared for the 5 March hearing. Wilson had earlier confirmed to the Tribunal his preparedness to return to Australia and appear as a witness in the proceedings.”[11]
[11] Letter dated 16 March 2007 from Minter Ellison to the Tribunal at 2.
In giving further details, Minter Ellison said of Mr Lucarelli QC’s being briefed to appear on behalf of Mr Little:
“Given that the issues raised in both the Little and Wilson applications were substantially similar if not identical and both proceedings had to date been run in parallel, Mr Lucarelli’s appearance on behalf of Little would have given the opportunity to ventilate the issues in dispute in relation to Wilson’s application as well. Indeed that was Wilson’s expectation.
Given the unavailability of Mr Lucarelli’s for the 5 March hearing date, and the fact that both Wilson and Little had accommodated the delay occasioned by among other things by the unavailability of the Commissioner’s counsel, Wilson expected that there would be no difficulty obtaining a short adjournment of the 5 March hearing date. Given the history of this matter, particularly in the course of 2006, we submit that this expectation was reasonable.”[12]
[12] Letter dated 16 March 2007 from Minter Ellison to the Tribunal at [18]-[19]
In summary, Minter Ellison wrote:
“It is submitted that the above circumstances have led the Tribunal into an error in not according Wilson appropriate procedural fairness to consider properly the Commissioner’s rejection of his settlement proposal or to rearrange his legal representation in light of Little’s sudden and unexpected change of instructions in relation to the conduct of the hearing. Moreover, the failure to adjourn the hearing to allow Wilson (who resides overseas and has to therefore contend with inconvenient time differences, but has previously communicated through his lawyers his willingness to travel to Australia for the purpose of the hearing) to arrange legal representation and/or the conduct of bona fide settlement negotiations, is procedurally unfair and the Tribunal should not have dismissed the proceedings.”[13]
[13] Letter dated 16 March 2007 from Minter Ellison to the Tribunal at 5.
THE TRIBUNAL’S POWER TO REINSTATE AN APPLICATION: has the application been dismissed in error?
Senior Member Pascoe dismissed Mr Wilson’s application under s 42A(5) of the AAT Act. That section provides that:
“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.”
Section 42A of the AAT Act contains three provisions relating to reinstatement of an application that has been dismissed. The first two are in ss 42A(8) and (9). They relate to a situation in which the Tribunal has dismissed an application under s 42A(2). That section permits the Tribunal to dismiss an application without proceeding to review a decision if a person fails to appear at, among others, a hearing of a proceeding. Section 42A(8) provides that a person whose application has been dismissed under s 42A(2) may, in certain circumstances, apply to the Tribunal for reinstatement. Section 42A(9) gives the Tribunal power to reinstate an application if it thinks it appropriate to do so. The Tribunal’s power relates to the application referred to in s 42A(8) and dismissed under s 42A(2).[14] It is not a power on which I can rely in this case as Senior Member Pascoe did not rely on the power in s 42A(2) to dismiss Mr Wilson’s application.
[14] Brehoi v Minister for Immigration and Multicultural Affairs (1999) 52 ALD 385 at [23]-[24]
The third relevant provision in s 42A is s 42A(10). That provides that:
“(10) If it appears to the Tribunal that an application has been dismissed in error, the Tribunal may, on the application and give such directions as appear to it to be appropriate in the circumstances.”
That section has two aspects. The first is what is meant by an “error”. If there is an error, the second aspect is the discretionary aspect of s 42A(10). In its context, that discretion is inherent in the use of the word “may”.
In Re White and Secretary, Department of Families, Community Services and Indigenous Affairs,[15] I considered the meaning of “error” in s 42A(10) of the AAT Act:
[15] [2007] AATA 1712
“11. Taking the meaning of an ‘error’ first, it is the subject of two streams of authority. They are epitomised by the judgments of the Full Court of the Federal Court in Brehoi v Minister for Immigration and Multicultural Affairs[16] and Goldie v Minister for Immigration and Multicultural and Indigenous Affairs.[17] A significant difference between the two is that the Full Court was required to consider the issue in Goldie but it was obiter dicta, or in the nature of an aside and not essential to the resolution of the case, in Brehoi.
[16] (1999) 52 ALD 385; constituted by Whitlam, Moore and Katz JJ
[17] (2002) 72 ALD 652; constituted by Wilcox and Downes JJ, Carr J dissenting
12. In Brehoi, the Full Court considered the history of the reinstatement provisions in ss 42A(8), (9) and (10) in the AAT Act. It noted that they were inserted in the AAT Act by the Administrative Appeals Tribunal Amendment Act 1993, which gave effect to recommendations made in the Report of the Review of the Administrative Appeals Tribunal dated November 1991 (Report). Proposal 28 of that Report noted that an application dismissed for failure to appear could not be reinstated even though the failure had been excusable. It was proposed that the Tribunal should be able to apply for reinstatement within 28 days of notification of the dismissal and that the Tribunal should be able to direct that the dismissal be vacated if it were satisfied that course were appropriate. That recommendation found its way into ss 42A(8) and (9).
13. As to the background to s 42A(10), the Full Court said:
‘[28] As to what became s 42A(10), the report had identified as a problem … the following:
The amendment proposed by proposal 28 would deal with the situation of vacation of a dismissal after failure to appear, and that failure is later found to have been excusable. There remains a need, both generally and if proposal 23 [which was that an applicant be permitted to “discontinue” an application in writing] be enacted, for there to be a power to vacate a dismissal where the application has been dismissed by administrative error on the part of the AAT.
In other words, the problem identified was the absence of a ‘slip’ rule. The report’s proposed amendment to overcome that problem had been to provide that ‘the tribunal may vacate the dismissal of any application for review where such dismissal has occurred through administrative error on the part of the tribunal.’.
[29] The Senate explanatory memorandum for the bill which became the 1993 Act, in explaining the clause which became, without debate or amendment, s 42A(10), adopted … the language which had been used in the report, saying that the clause provided for the tribunal ‘to reinstate an application which has been dismissed through administrative error on the part of the tribunal’.”[18]
[18] (1999) 52 ALD 385 at 389-390
14. A different view was expressed by the Full Court of the Federal Court in the later case of Goldie. The majority, Wilcox and Downes JJ considered a submission to the effect that the word ‘administrative’ had to be read into s 42A(10) before the word ‘error’. They said of it:
‘… The stated condition for the exercise of subs (10) power is that “it appears to the Tribunal that an application has been dismissed in error”. The subsection does not impose any qualification or limitation on the word “error”.
[28] The only limitations that we can see in s 42A(10) are:
(i) that the tribunal has dismissed the application; and
(ii) that the act of dismissal was attended with error.
[29] We do not think it is necessary, in order to enliven the tribunal’s power under s 42A(10), that the tribunal, or a member or employee of the tribunal, should have been at fault in relation to the dismissal. The fault may have lain elsewhere, provided it induced the error. For example, because of a mistake as to his or her instructions, a solicitor or other representative of a party might have wrongly consented to a dismissal order or filed a notice of discontinuance. No fault would attach to the tribunal; but if the solicitor’s mistake induced the dismissal of the action, it could properly be said that the application had been “dismissed in error”.
[30] A difficulty about importing the word “administrative” into s 42A(10) is its imprecision. It is possible to make a clear distinction between actions performed by administrative officers of the tribunal, such as the registrar or registry personnel, and actions performed by the members of the tribunal in their quasi-judicial capacities. It might be possible to say that actions of the former class are “administrative” actions. But this meaning of the word “administrative” could not sensibly be read into s 42A(10); a dismissal of an action under subss (1) or (2) will necessarily be an action falling into the latter class. An order under either of those subsections would need to be made by a member of the tribunal exercising the tribunal’s quasi-judicial powers.’[19]
[19] (2002) 72 ALD 652 at 657
15. Wilcox and Downes JJ recognised that their conclusion did not agree with that reached by the Full Court in Brehoi. They had difficulty with the analysis adopted in Brehoi because Parliament had not chosen to adopt the words used in the Report. That is to say, Parliament had referred to an “error” and not to an ‘administrative error’. Of the approach adopted in Brehoi, Wilcox and Downes JJ said:
‘[34] Although it is appropriate to take account of the Senate explanatory memorandum (see s 15AB(1) and (2) of the Acts Interpretation Act 1901 …, too much ought not to be made of it. It seems incorrect to say, as the memorandum did, that the “clause provided for the Tribunal to ‘reinstate an application which has been dismissed through administrative error on the part of the Tribunal”’ (our emphasis). Although rectification of administrative errors (whatever they might be in this context) was apparently the idea behind amendment, the word adopted by parliament was not so limited.’
[35] After careful consideration of the matter, and with reluctance, we have come to the conclusion that the view expressed on this issue in Brehoi is not correct. It ought not be followed.”[20]
[20] (2002) 72 ALD 652 at 658-659
16. Although in dissent on the orders, Carr J did not differ on the interpretation of s 42A(10). He too did not accept that the ‘error’, to which s 42A(10) refers, should be qualified by the word ‘administrative’, to which it does not. That does not mean, though, that an ‘error’ does not encompass an ‘administrative error’. As his Honour said:
‘[73] I would accept that a purpose of s 42A(10) is to provide a power to reinstate an application which has been dismissed through administrative error on the part of the tribunal. But I would not accept that s 42A(10) must be construed as applying only where there has been administrative error. I would construe the word ‘error’ as including administrative error but extending beyond mere administrative error.
…
[77] In my view, there is a significant desirability of persons being able to rely on the ordinary meaning conveyed by the word “error”. More importantly, s 42A(10) provides a mechanism of avoiding prolonging legal or other proceedings without compensating advantage. The mechanism is a relatively informal method of bringing a matter back to the tribunal for reconsideration with a view to it being considered on the merits. It can be seen as a convenient, prompt and inexpensive means whereby errors which may have occurred in the exercise of the tribunal’s default jurisdiction can be rectified. That is, any sort of error in dismissing an application summarily, whether the error be administrative error or any other error.
[78] As a matter of construction, I would confine s 42A(10) in its operation to dismissals under s 42A itself which have been made in error, not dismissals generally.’[21]
17. Unlike the majority, Carr J did not give an example of an error that might be of a sort referred to in s 42A(10). The passages from his judgment to which I have referred speak in terms of an ‘error in dismissing an application’ and of “dismissals … which have been made in error’. The way he has chosen to express himself is consistent with the words of s 42A(10) itself i.e. ‘that an application has been dismissed in error’. This mode of expression might suggest that the error to which s 42A(10) refers must have been that of the Tribunal. That would follow from that fact that the Tribunal, and not the applicant, has the power of dismissing an application. Therefore, it may be arguable from Carr J’s choice of language that, if there have been ‘dismissals … made in error’, those dismissals must have been made in error by the Tribunal.
18. That argument would also be open on the judgment of the majority if regard were had only to the two limitations they identified in [28] of their judgment in relation to s 42A(10) i.e. ‘that the Tribunal has dismissed the application’ and that ‘the act of dismissal was attended with error’.[22] Their example, however, not only throws the validity of that argument into grave doubt but also makes the boundary defined by the two limitations most uncertain. My reasons for that view are these. The example that Wilcox and Downes JJ choose focuses on a solicitor or a party’s representative who, because of a mistake as to the client’s instructions, consents to a dismissal order or a notice of discontinuance. If the Tribunal acts under s 42A(1) on the consent to the dismissal, it will have dismissed the application. If the notice of discontinuance is lodged, the Tribunal will be taken to have dismissed the application by virtue of s 42A(1B). In either case, the first limitation identified by Wilcox and Downes JJ would be satisfied.
19. But what of the second limitation? Would the ‘act of dismissal’ (emphasis added) be attended with error? It is difficult to see how it would be. Given that the person making the error is the party’s solicitor or representative and that the Tribunal is aware of the representation, the Tribunal is entitled to rely on the apparent or ostensible authority the solicitor or representative has.[23] The ‘act of dismissal’ would not be attended with error. Were it the case that the Tribunal had not been advised that the solicitor or representative was the party’s representative in the proceeding or that it had been advised that the person were no longer representing the person, the ‘act of dismissal’ would be attended with error. That would follow from the fact that the Tribunal would have no basis on which it could rely on the consent to dismissal or notice of discontinuance.[24]
20. Wilcox and Downes JJ have not distinguished between the two situations. That must mean that they are prepared to go beyond the act of dismissal to look for an error that does not attend the act of dismissal but to one that precedes the act of dismissal. Once that position is reached, the question then becomes: by how much may the error precede the act of dismissal or what must the connection be between the error and the act of dismissal? Is the error limited to some aspect of the document of discontinuance or consent to dismiss that the Tribunal relies on to dismiss the application or upon which the AAT Act operates to deem the application dismissed? I do not need to explore that issue in this case.”[25]
[21] (2002) 72 ALD 652 at 666
[22] (2002) 72 ALD 652 at 657
[23] Some of these issues arise from time to time in this context and in the context of consent decisions under s 43 of the AAT Act because, unlike the courts, the AAT does not require a party to enter an appearance. This follows from the fact that s 32 of the AAT Act provides that “… a party to the proceeding may appear in person or may be represented by some other person.” Unlike Order 9 Rule 1 of the Federal Court Rules, s 32 does not require an “appearance”, and so a written notice, to be lodged or given. Consequently, it does not require the party concerned to choose whether to act personally in the matter or through a representative. Furthermore, unlike Order 9 Rule 1, s 32 does not necessarily relate to the proceedings as a whole. That follows from the breadth of the definition of the word “proceeding” in s 3 of the AAT Act.
[24] A notice of discontinuance lodged by a person who, to the Tribunal’s knowledge, is no longer representing a party might also raise questions whether the notice could be said to be a nullity for the purposes of s 42A(1A)and so have no effect for the purposes of s 42A(1B). In the case of a consent to dismiss lodged under s 42A(1) by such a person, the application of the principles of Minister for Immigration and Multicultural Affairs vBhardwaj (2002) 209 CLR 597 might lead to the conclusion that there was no legal foundation on which the Tribunal could dismiss the application under s 42A(1) and so no decision to dismiss at all.
[25] [2007] AATA 1712
In this case, I do need to explore the issue further. Of relevance in that exploration is a further judgment of the Federal Court. This is by Dowsett J in a case of Katterns.[26]Mr Katterns had sought review of Comcare’s decision refusing his claim for compensation. For reasons that Dowsett J did not set out, Mr Katterns failed to comply with the Tribunal’s directions. The Tribunal dismissed his application under s 42A(5) but without first giving notice to the parties that it was considering that course. Dowsett J said that the Tribunal could not properly take that course without first giving the parties notice and extending to them an opportunity to be heard. That is not to say that the Tribunal could not raise the issue of dismissal of its own motion but, if it did so, it needed to follow that course.[27]
[26] [2002] FCA 1366
[27] [2002] FCA 1366 at [2]
When Mr Katterns sought reinstatement of his application, the Tribunal member who heard it was unable to identify any error of law in what had happened. Dowsett J said of this:
“… I consider that there was certainly a significant procedural error. I have no difficulty in categorising it as an error for the purposes of subs 42A(10). It seems to me, therefore, that the Tribunal erred in proceeding upon the basis that there was no demonstrated error.”[28]
[28] [2002] FCA 1366 at [3]
Analysing Dowsett J’s conclusions in the terms used by Wilcox and Downes JJ in [28] of their judgment in Goldie[29], the Tribunal dismissed the application. The act of dismissal was attended with error. The nature of that attendance was the failure to accord the parties procedural fairness before the dismissal. The connection between the act of dismissal and the error is direct and uninterrupted. It does not go to whether the Tribunal failed to accord the parties procedural fairness at an earlier stage of the proceedings.
[29] (2002) 72 ALD 652
The matters which Mr Wilson wishes to characterise as errors in this case are twofold. Each is put on the basis that it is a breach of procedural fairness. They are reproduced in [8-10] above. The first is that, having regard to the history of the matter as it is set out in his solicitors’ letter of 16 March 2007, the Tribunal should have given Mr Wilson more time to consider the rejection of his settlement proposal or to “rearrange” his legal representation in light of Mr Little’s sudden and unexpected change of instructions in relation to the hearing. The second is that the failure to adjourn the hearing in order to allow Mr Wilson to arrange legal representation and/or conduct settlement negotiations is procedurally unfair. In either case, Mr Sievers submitted, the Tribunal should not have dismissed the application.
Neither characterisation focuses specifically on the manner in which Senior Member Pascoe conducted the hearing at which he dismissed the application. I will begin with the conduct of the hearing, though, is an act that, without question on the authority of Katterns, attended the dismissal and so was an act that must be examined for error. Mr Wilson was represented by his solicitor, Mr O’Keefe, at the hearing at which Senior Member Pascoe considered dismissal. The hearing began with Ms Harding’s notifying Senior Member Pascoe that Mr Little and the Commissioner had reached an agreement and that matter had been finalised. Ms Harding was counsel representing the Commissioner. Mr Little did not appear. Mr O’Keefe then applied for an adjournment of the hearing of Mr Wilson’s matter.
Mr O’Keefe began with Mr Wilson’s not having representation and put it this way:
“… Carl Wilson, his proposal was that he would be running on the back of Mr Little’s representation, examination of witness, the common facts to both of them. Late last week – in fact it was settled on Friday – has left Mr Wilson without representation that he though he would have in this matter and with the result that he will be seeking an adjournment to get either one, to settle the matter and he has put an offer of settlement to the tax office which has been rejected just a few minutes ago. He still wants to explore settlement with them now. He was surprised by Mr Little’s settlement and wants to pursue a settlement of his own.
He hasn’t got counsel representing him and he would need senior counsel in this regard. …
From Mr Little’s [Wilson’s] point of view, he is trying to resolve everything at the moment. He is currently overseas, establishing a funds management business in Europe and Dubai, as I understand it. He is not here today to give evidence. His intention to run the case, as I said, was off the back of evidence by Mr Little, who was one of the directors, along with Mr Wilson at the time. Common facts – there was submissions intended by counsel and he was just going to submit as his witness and for what that is worth, without cross examination he was ready to go with that.”[30]
In answer to Senior Member Pascoe, Mr O’Keefe made it clear that counsel was not originally briefed for Mr Wilson. It had been intended to brief senior and junior counsel and for Mr Little and Mr Wilson to share their costs. Mr Little, however, had thought the costs too great and his concern prompted him to seek a settlement. Mr Wilson had done the same but the offer had only been received that morning and Mr Wilson’s being overseas had meant that he communicated with his solicitors mainly by email and mainly overnight.
[30] Transcript, 5 March 2007, at 4
Senior Member Pascoe expressed his concern that the matter had been “hanging around a long time”,[31] had already been adjourned once when it had been listed for hearing the previous September. Mr O’Keefe agreed with him that part of the reason for the adjournment was that Mr Wilson was missing. Another part of the reason was Mr Carter’s illness.
[31] Transcript, 5 March 2007, at 5
Ms Harding opposed the application for adjournment. She submitted that the Tribunal could determine the matter in the absence of Mr Wilson and in the absence of evidence but she opposed that possibility. She submitted that the written evidence needed to be supplemented by oral evidence from those who were involved from the employer and employee perspectives. Alternatively, the Tribunal could dismiss the application on the basis that Mr Wilson had not appeared at the hearing; Mr O’Keefe did not have instructions to do other than to apply for the adjournment.
Senior Member Pascoe explored the possibility of hearing the application without Mr Wilson and wondered whether the case could be adjourned for a day and the hearing started on the second of the two days listed for its hearing. Evidence could be heard from Mr Carter and Mr Madgwick. Mr O’Keefe told Senior Member Pascoe that Mr Wilson’s evidence was important and that they would have to arrange for him to give it by video. Mr Wilson would “… certainly be briefing counsel if he needs to appear here and run this case …”[32] but that it could not be done in the period Senior Member Pascoe was suggesting. Mr O’Keefe said that Mr Wilson was either in Rome or Singapore at the time but he did not know. All contact was by email or telephone.
[32] Transcript, 5 March 2007, at 7
Ms Harding submitted that it was inappropriate for the Tribunal to try to accommodate an applicant who had not made himself available for the hearing and of whose whereabouts his solicitor was uncertain. Senior Member Pascoe then said to Mr O’Keefe:
“ And the only way you can seek a change to that decision is if you can satisfy the Tribunal that that dismissal was in error which I would have thought would be very difficult in a case such as this. It is just really, as I said, I started off thinking there is a possibility that we weren’t going to need the two days for the hearing anyway so maybe we could through to Monday and if you have got time to get instructions we can proceed and may be we can do it tomorrow. You have got today the rest of the day to see if you can settle it in any event.[33]
[33] Transcript, 5 March 2007, at 9
This passage was followed by an exchange between Senior Member Pascoe and Ms Harding before Senior Member Pascoe and Mr O’Keefe had the following exchange:
“MR O’KEEFE: In relation to running the hearing I doubt whether we could get – there would be a lapse of time before we get appropriate instructions which would be to proceed with the hearing. There is certainly no time to brief counsel on this matter. There would be no examination of Mr Wilson who we thought would be crucial to this hearing.
MR PASCOE: That is something that he was well aware of before this. You started off saying ‘seeking an adjournment’ but what sort of time were you … looking at.
MR O’KEEFE: Originally the adjournment was to have the settlement discussions with the ATO. That offer has been rejected. …
MR PASCOE: What you are really saying is you want time to have settlement discussions. If they are unsuccessful, then to brief counsel ---
MR O’KEEFE: That is right, yes.
MR PASCOE: --- and then to start thinking about a hearing and what, you are talking a month?
MR O’KEEFE: I would be talking a month because my initial – I would be seeking further instructions as to any further basis of settlement from Mr Wilson. I would expect those either this afternoon or tomorrow morning. He certainly was to settle this and other matters with the ATO. Failing settlement my advice to him would be that he should be briefing counsel even while he is negotiating settlement with the Tax Office but earlier discussions with counsel indicated they would need several weeks just to properly discuss these matters with witnesses. There are complex issues there.
MR PASCOE: But all this has been known about for quite a long time.
MR O’KEEFE: I understand.
MR PASCOE: And presumably Mr Little didn’t have any intention of proceeding with this hearing either. He was determined to settle otherwise he would have had counsel briefed and we could easily switch over to Mr Wilson I would have thought.
MR O’KEEFE: Well, we have gone down that track and it was a cost issue ultimately. My understanding is Mr Lucarelli was acquainted with Graham Little and I think Mr Wilson’s though was well, he will be doing that for nothing with wasn’t ever the case.”[34]
[34] Transcript, 5 March 2007, at 11-12
Senior Member Pascoe contemplated adjourning the hearing of the application to 2.00pm that afternoon or to the next morning. Mr O’Keefe agreed with him that Mr Wilson was unlikely to proceed whichever option he chose. Senior Member Pascoe then said:
“So I really think I have no option but to dismiss, Mr O’Keefe, and I think that dismissal, in the circumstances of this one has to be 42A(5) as for failure to proceed, rather than just failure to appear. More often that not the failure to appear dismissal is for interlocutory proceedings rather than the formal hearings because once the hearing has been listed and it has been listed for three months, if in these circumstances Mr Wilson just said, ‘He is not really ready to proceed and doesn’t want to proceed,’ then I think the answer is it is a failure to proceed as expected so therefore it ought to be dismissed so that I think that has to be the answer. So Mr O’Keefe, because I don’t really think I have any option in the circumstances so the matter of Wilson will be dismissed pursuant to section 42A(5) of the …[Administrative] Appeals Tribunal Act 1975 and I will arrange for the appropriate decision to be produced under section 42C for Mr Little. …”[35]
[35] Transcript, 5 March 2007, at 13
As an aside, I mention that s42A(2) clearly applies both to failure to appear at the hearing of the proceeding being the application for review of the decision[36] as well as at the hearing of a proceeding being an incidental application made in the course of, or in connection with, that application.[37] This is in addition to its application to a directions hearing or an alternative dispute resolution process. There is no reason why the Tribunal should shy away from dismissal under s 42A(2) when a person fails to appear at the hearing of an application in favour of dismissal under, for example, s 42A(5). Certainly, the path to reinstatement is harder if a power such as that s 42A(5) is chosen as the Tribunal must find that the dismissal is attended with error. Which path is harder should not be a persuasive consideration when the Tribunal is choosing the power under which it should dismiss an application. The choice should be guided by the events at the time and not influenced by any thoughts of reducing the applicant’s opportunity to have the matter reinstated.
[36] Definition of “proceeding”: AAT Act, s 3(1)(a)
[37] Definition of “proceeding”: AAT Act, s 3(1)(h)
That is, as I have said, an aside. It is apparent from the passages to which I have referred that Mr O’Keefe put his submissions in terms of an adjournment and had had every opportunity to make them. Did he have every opportunity to make submissions about the dismissal? I consider that he did. Mr O’Keefe was well aware that Senior Member Pascoe was considering dismissing his client’s application. Dismissal is one of the three outcomes that a legal practitioner will reasonably expect from any application for adjournment and can be expected to advise his client about. They are: adjournment; refusal followed by the commencement of the hearing; or refusal followed by dismissal of the application for review where the applicant is unable to proceed. In view of that, there was no need to adjourn the proceeding to enable Mr O’Keefe to seek instructions regarding dismissal as opposed to the adjournment. Mr O’Keefe was aware of what Senior Member Pascoe was contemplating, even though Senior Member Pascoe had some question as to the precise ground upon which he would dismiss the application. Senior Member Pascoe contemplated dismissal for non-appearance at the hearing. That was a course put by Ms Harding on the basis that Mr O’Keefe did not have instructions to conduct the hearing. He was instructed only to seek an adjournment.[38] Despite the limitations on his instructions, Mr O’Keefe did appear at the hearing of the application and Senior Member Pascoe did not choose that course.
[38] Transcript, 5 March 2007, at 5-6
It follows that, in my view, Senior Member Pascoe acted with procedural fairness in so far as he gave Mr Wilson an opportunity to be heard at the hearing. That leaves the basis of his decision. It is said that Senior Member Pascoe should have had regard to matters such as the time differences between Melbourne and Mr Wilson’s location overseas, the need to consider the Commissioner’s rejection of his offer to settle the matter and the need to rearrange his legal representation in view of Mr Little’s unexpected change of arrangements. These are matters that go to Senior Member Pascoe’s reasons. His reasons are included in the transcript and in the preamble in the formal decision.
If Senior Member Pascoe committed an error in formulating his reasons, the error must be such that it at least renders those reasons inadequate. On another view, the inadequacy must be such as to become a failure to make a decision according to law before there could be said to be an error. [39] I do not consider the reasons inadequate in any sense.
[39] General discussion in Schmid v Comcare [2003] FCA 1057; (2003) 77 ALD 782 per Weinberg J at [55]-[61]
Mr Sievers’ submissions seem to me to go also to the decision Senior Member Pascoe made. If that is to be affected by an error, it must be so unreasonable that a reasonable Tribunal, properly instructed, would not come to it. It must be unreasonable in the “Wednesbury sense”. “Disappointment with a decision no matter how strongly felt, does not make out a Wednesbury claim.”[40] Furthermore, Wilcox J made it clear in Singh v Minister for Immigration and Multicultural Affairs:[41]
“… a reviewing court is not entitled to find Wednesbury unreasonableness simply because the court disagrees – even profoundly disagrees – with the weight given by the decision-maker to the various factors relevant to his or her decision. There must be more than that …”.[42]
[40] Sleep v Repatriation Commission [2006] FCAFC 304 at [15] per Carr, Finn and Sundberg JJ
[41] (2000) 179 ALR 542; 62 ALD 646
[42] (2000) 179 ALR 542; 62 ALD 646 at 553; 658
What was Senior Member Pascoe’s decision? His formal decision referred only to a decision to dismiss the application under s 42A(5). He did not specify whether it was ss 42A(5)(a) or (b) but a reading of the transcript makes it clear that his decision was to dismiss the application for Mr Wilson’s failure within a reasonable tome to proceed with the application.
Having regard to the whole of the history of the matter, I am unable to conclude that Senior Member Pascoe’s decision is a decision to which a reasonable decision-maker, properly instructed, would not come. I note the effect of Mr Oude-Vrielink’s affidavit is that Senior Member Pascoe did not have all of the material before him and certainly not all of the correct information. I will return to that later in these reasons[43]. For the moment, I will consider the matter based on the material that Senior Member Pascoe had at the time.
[43] Refer to [36] below
Mr Wilson had lodged his application in September 2002. It is understandable that he did nothing until the middle of 2003 when it became known that the test cases were not proceeding. There then followed a number of occasions on which Mr Wilson has not complied with the Tribunal’s directions. Examples occurred in relation to those directions given on 5 October 2005 and 9 February 2006. Mr Wilson did not comply and did not seek an extension of the time within which to comply. He waited for the Tribunal to follow him up and it did so on several occasions in relation to each. These are only two examples but illustrate a long and continuing course of non-compliance by Mr Wilson. Difficulties in locating documents were a reason for delay in 2004 and problems connected with Mr Little’s divorce caused problems in 2005. Reasons for his other delays were sketchy or caused by his location. Mr Wilson chose to rely on Mr Little’s arguments and, it would seem, avoid the costs of engaging counsel. During the long history of the matter, Mr Wilson had opportunities to put a settlement offer to the Commissioner but he left it to almost the last possible moment to do so. That was consistent with the previous manner in which he and his advisers had approached the proceedings. Mr Wilson had adequate notice of the hearing. The notice was sent on 8 December 2006 for a hearing on 5 and 6 March 2007. Senior Member Pascoe put Mr Wilson on notice on 11 September 2006 that his application could be dismissed if he did not proceed with it. True it was that the Commissioner had asked for an adjournment the month before because its valuer was ill but Senior Member Pascoe’s warning was understandable given the previous history of the matter. Mr Wilson’s unreliability in attending to matters pertaining to his application was consistent with his not attending the hearing despite his solicitors clearly stating that he would do so. Senior Member Pascoe’s decision was not unreasonable. He has not, in my view, made an error.
All of the matters that I have explored regarding Senior Member Pascoe’s decision and reasons for decision and the opportunity he gave Mr Wilson to put his submissions can be regarded as acts attending the dismissal. I have considered the matters raised on behalf of Mr Wilson from that point of view.
The material in Mr Oude-Vrielink’s affidavit raises the question whether the dismissal of Mr Wilson’s application can be said to be in error because Senior Member Pascoe was not aware of the true state of affairs at the time. It might be possible to characterise his not knowing what is said to be the true state of affairs, through no fault of his own, as an error. Such a characterisation might receive some support from the example Wilcox and Downes JJ gave in Goldie of an error made by a party’s representative. That example was not limited to a situation in which the Tribunal might be expected to be aware of an error, although not the party’s error, as would be the case if the applicant had withdrawn the representative’s right to appear or had never authorised another to appear. Their example of an error focused on the party’s error: a consent to dismissal or a notice of discontinuance without instructions.
I have set out the full passage of the explanation for what happened. The error lies solely in the choice of tactics adopted by Mr Wilson and his advisers. Mr Wilson chose to rely on the barrister briefed by Mr Little rather than engage his own. When Mr Wilson and Mr Little knew three weeks before the hearing that the barrister would not be available for the hearing on 5 March 2007, they, or their advisers, chose to do nothing about seeking an adjournment before hand. They chose to wait for the day of the hearing. There is no suggestion in the material that they notified the Commissioner of their intention to ask for an adjournment.
Mr Wilson was caught by surprise by Mr Little’s decision to settle his matter. The position that he was left in however, was always going to be a real possibility given that he had not made any arrangements of his own. Had Mr Little proceeded with his matter and given that his application raised the same issues as Mr Wilson’s, Mr Wilson might have considered that he had played his hand well. The problem was that he was not playing a hand at all but relying on another player in the game; a player over whom he had no control. His reliance turned out to be an error of judgment just as his other choices turned out to be. Mr Wilson’s choices can be said to be errors but they cannot be said to be errors such that the act of dismissal was attended with error. The act of dismissal was taken after Mr Wilson’s choices were taken into account and, in my view, properly taken into account. They precede the act of dismissal and stand apart from it even though a necessary part of the fabric to which Senior Member Pascoe had regard. His act of dismissal cannot be said to have been attended with Mr Wilson’s errors in this case. He did not dismiss the application in error.
In view of my finding that Senior Member Pascoe did not dismiss Mr Wilson’s application in error, I do not have power under s 42A(10) to reinstate the application. It is unnecessary to consider whether I would have exercised the discretion to reinstate it had I had the power.
For the reasons I have given, I refuse the applicant’s application to reinstate his application lodged on 12 September 2002.
I certify that the forty preceding paragraphs are a true copy of the reasons for the decision herein of
Deputy President S A Forgie,
Signed: ...................................................................
Jayne Haydon Associate
Date of Reinstatement Hearing 2 May 2007
Date of Decision 31 August 2007
Representative for the Applicant Mr C Sievers
Advocate for the Respondent Ms D Harding
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