Wilson and Minister for Infrastructure, Transport, Regional Development and Local Government (Practice and procedure)
[2025] ARTA 1762
•29 August 2025
Wilson and Minister for Infrastructure, Transport, Regional Development and Local Government (Practice and procedure) [2025] ARTA 1762 (29 August 2025)
Applicant/s: Eric Wilson
Tracey Wilson
Respondent: Minister for Infrastructure, Transport, Regional Development and Local Government
Other Party: Australia Pacific Airports (Melbourne) Pty Ltd
Tribunal Numbers: 2024/7965 & 2024/9936
Tribunal:Deputy President O'Donovan
Place:Brisbane
Date:29 August 2025
Decision:The Tribunal is satisfied that, subject to the requirements of s 102(6) of the Administrative Review Tribunal Act 2024 (Cth) being met, the Tribunal has power to reinstate the application. Accordingly, the application for reinstatement will be listed for a hearing on a date convenient to the parties in the week of 22 September 2025. The parties are directed to provide a timetable (either agreed or separately) for the filing and serving of submissions by 3 September 2025.
Statement made on 29 August 2025 at 4:35pm
Catchwords
PRACTICE AND PROCEDURE – decision to approve third runway at Melbourne Airport - application for review dismissed under s 101(1)(b) of the Administrative Review Tribunal Act 2024 on the basis that the applicants were not persons whose interests are affected by the decision – application to reinstate under s 102(5) – whether the Tribunal has power to reinstate an application where the application was dismissed following a hearing – whether the Tribunal has power to reinstate an application if there was legal error in the decision to dismiss the application - meaning of ‘dismissed in error’ - consideration of JTJB and Secretary, Department of Social Services (Social security) [2025] ARTA 464
Legislation
Administrative Appeals Tribunal Amendment Act 1993 (Cth) s 16
Administrative Appeals Tribunal Act 1975 (Cth) ss 31, 42A, 42B, 44
Administrative Review Tribunal Act 2024 (Cth) ss 17, 19, 101, 102, 173Cases
Argos Pty Ltd v Minister for the Environment and Sustainable Development (2014) CLR 394
Bates and Comcare [2015] AATA 199
Brehoi v Minister for Immigration and Multicultural Affairs [1999] FCA 772
Director-General of Social Services v Chaney (1980) 3 ALD 161
Goldie v Minister for Immigration & Multicultural Affairs [2002] FCAFC 367
JTBJ and Secretary, Department of Social Services (Social security) [2025] ARTA 464
Kowalski v MMAL Staff Superannuation Fund Pty Ltd and Another [2009] FCAFC 117.
Minister for Immigration and Multicultural Affairs v Bhardwaj (2002) 209 CLR 597
Mora (Migration) [2016] AATA 4198Re Michael and Secretary, Department of Employment, Science and Training [2006] AATA 227
Wang v Anying Group Pty Ltd [2009] FCA 1500.
Secondary Materials
Explanatory Memorandum, Administrative Appeals Tribunal Amendment Bill 1992 (Cth)
Explanatory Memorandum, Tribunals Amalgamation Bill 2015 (Cth).
Revised Explanatory Memorandum, Administrative Review Tribunal Bill 2024 (Cth)Steering Committee of the Review of the Administrative Appeals Tribunal, Report of the Review of the Administrative Appeals Tribunal (Report, 29 November 1991).
Statement of Reasons
Eric and Tracey Wilson (‘the applicants’) live 55 kilometres north of Melbourne Airport. On 10 September 2024 the Minister for Infrastructure, Transport, Regional Development and Local Government (‘the Minister’) made a decision to approve the major development plan for the third runway at Melbourne Airport. The decision was made pursuant to s 242 of the Airports Act 1996 (Cth) (‘Airports Act’).
The Wilsons believe that their interests have been adversely affected by this decision and they applied to the Administrative Appeals Tribunal (‘AAT’) on 8 October 2024 for review of that decision. On 14 October 2024, the AAT was abolished and the Administrative Review Tribunal (‘Tribunal’) commenced operation. Extant matters before the AAT were transferred for determination to the new Tribunal.
On 7 March 2025 the Minister and the other party to these proceedings, Australian Pacific Airports (Melbourne) Pty Ltd (‘APAM’), applied to have the Wilsons’ applications dismissed on the basis that the Wilsons were not persons whose ‘interests are affected by’ the decision to approve the major development plan within the meaning of s 17(1) of the Administrative Review Tribunal Act 2024 (‘ART Act’). APAM leases and operates the Melbourne Airport and proposes to construct the new north-south runway. It is the airport-lessee company within the meaning of the Airports Act.
On 4 April 2025 the Minister and APAM filed written submissions in support of their application. On 30 April 2025, the Wilsons filed written submissions in response. The application was listed for a hearing for a full day on 5 May 2025 before Deputy President Britten-Jones. DP Britten-Jones published his decision and reasons in relation to the application on 10 June 2025 (‘Dismissal Decision’). He dismissed the application for review on the basis that the application had no reasonable prospects of success pursuant to s 101(1)(b) of the ART Act. That conclusion was reached on the basis that the applicants do not have standing to apply to the Tribunal for review of the decision because they are not persons whose ‘interests are affected by’ the decision of the Minister.
On 8 July 2025 the applicants wrote to the Tribunal requesting a full rehearing of the interlocutory application due to what they described as errors in the decision of DP Britten-Jones. The letter did not refer in terms to reinstatement of the application under s 102 of the ART Act however that section provides for reinstatement of applications ‘dismissed in error’ and is available when there has been a dismissal under s 101. All parties are proceeding on the basis that the applicants have made an application for reinstatement under s 102(5).
In their letter of 8 July 2025, the Wilsons identified five errors in the decision. They contended that DP Britten-Jones:
(a)was wrong in rejecting the approach of the High Court in Argos Pty Ltd v Minister for the Environment and Sustainable Development (2014) CLR 394 to the question of standing;
(b)was wrong in concluding that the subject, scope and purpose of the Airports Act is too narrow to support the applicants’ interests;
(c)underestimated the impact on the applicants’ interests due to failure to account for specific factual matters (in particular the height of the applicants’ property above sea level);
(d)drew erroneous conclusions about the interaction between state laws and the Airports Act and reasonable expectations created;
(e)committed other errors, including the drawing of conclusions without considering submissions, mistakes of fact, and going beyond what an interlocutory hearing about standing can decide.
There was a delay in the Tribunal notifying the Minister and APAM about the reinstatement application. When the matter was brought to those parties’ attention, APAM advised the Tribunal that its position was that the application should be dismissed on the basis that s 102 did not provide for the reinstatement of proceedings in circumstances where the application has been dismissed for want of standing following a full hearing of that question. APAM contended that the only proper forum for review of the standing decision is the Federal Court.[1] The Minister supported those submissions.
[1] APAM’s submissions dated 15 August 2025, [51].
The Tribunal conducted a directions hearing on 12 August 2025 and made directions requiring the parties to file submissions on the preliminary question of whether the Tribunal has jurisdiction or power to reinstate the applications brought by the Wilsons. The parties filed submissions in accordance with those directions and the matter proceeded to hearing on that narrow question on 20 August 2025.
The Tribunal has not considered whether, in his decision of 10 June 2025, DP Britten-Jones dismissed the application in error, only whether the Tribunal has jurisdiction or power to reinstate the applications given the circumstances of the dismissal and the kinds of errors alleged. This involves examination of two questions.
First, whether the power to reinstate provided for in ss 102(5) and 102(6) of the ART Act is available in circumstances where the Tribunal has determined, following a full hearing, that the applicants are not persons whose interests are affected by the decision.
Second, if it is not, is the principle articulated by the High Court in Minister for Immigration andMulticultural Affairs v Bhardwaj (2002) 209 CLR 597 (‘Bhardwaj’) available in these circumstances such that, if errors of the kind asserted by the applicants are established, the Tribunal could treat the earlier Tribunal decision as a nullity and re-determine the question of standing.
APAM and the Minister contend that neither s 102(6) nor the Bhardwaj principle are available to allow me to consider whether the Tribunal’s earlier decision should be revisited and on that basis the Wilsons’ reinstatement application should be dismissed. The Wilsons contend otherwise.
The material before me consists of the following:
· The decision of DP Britten-Jones published on 10 June 2025;
· The Wilsons’ letter to the Tribunal dated 8 July 2025.
· Minister’s submissions on the reinstatement application dated 15 August 2025.
· APAM’s submissions on the reinstatement application dated 15 August 2025
· The Wilsons’ reply submissions dated 19 August 2025.[2]
[2] The Tribunal has had regard to the version of this document as corrected by the email to the Tribunal sent 3:24 am 20 August 2025.
The parties supplemented their written submissions at the hearing.
Relevant Statutory Provisions
Section 101 relevantly provides as follows:
(1) The Tribunal may, at any time, dismiss an application made to the Tribunal if the Tribunal is satisfied that the application:
(a)is frivolous, vexatious, misconceived or lacking ins substance; or
(b)has no reasonable prospects of success; or
(c)is otherwise an abuse of the process of the Tribunal.
Section 102 relevantly provides:
(1) This section applies if the Tribunal dismisses an application.
…
(5) A party to the proceeding in relation to the application may apply to the Tribunal for reinstatement of the application on the grounds of error within 28 days after the party receives notice that the application is dismissed (or such longer period as the Tribunal, in special circumstances, allows).
(6) If a party applies under subsection (5) and the Tribunal considers that the application was dismissed in error, the Tribunal may reinstate the application and make such orders as appear to the Tribunal to be appropriate in the circumstances.
Other provisions that provide relevant context to the power are ss 173 and 19(4).
Section 173 provides:
A person may appeal to the Federal Court from a decision of the Tribunal that the person’s interests are not affected by a reviewable decision.
Section 19, which permits the Tribunal to extend time for a person to apply to the Tribunal for review of a decision, contains a relevant qualification in sub-s (4). It provides:
(4) The Tribunal must not extend the period if:
(a)section 102 permits the applicant to apply to the Tribunal to reinstate an application by the applicant for review of the decision; or
(b)the Tribunal refuses an application by the applicant under section 102 to reinstate an application for review of the decision.
Section 173 is almost identical to an appeal provision in the Administrative Appeal Act 1975 (Cth) (‘AAT Act’). Section 19(4) is an innovation in the ART Act. It’s presence emphasises the dismissal and reinstatement provisions have different consequences under the ART Act when their operation is compared to their operation under the AAT Act.
Submissions
APAM’s Submissions
APAM submits that:
(1) Section 102(5) does not apply to the decisions to dismiss made by DP Britten-Jones as they were made after the applicants had a hearing on the question of whether their interests were affected and had a full opportunity to participate in the hearing. Proceeding on the basis that applications for reinstatement cannot be brought in those circumstances is consistent with the decision of the Tribunal in JTBJ and Secretary, Department of Social Services (Social security) [2025] ARTA 464 (‘JTBJ’);
(2) The Tribunal should only consider treating an earlier decision as a nullity on the basis of the Bhardwaj principle ‘where the existence of jurisdictional error in an earlier decision of the Tribunal is so obvious as to leave no real doubt about that conclusion, and there are no plausible countervailing considerations that weigh against doing so...’[3] None of the errors identified by the Willsons fall into that category and the Bhardwaj principle is not engaged.[4]
[3] Mora (Migration) [2016] AATA 4198, [7] (‘Mora’).
[4] APAM’s submissions dated 15 August 2025, [3].
In relation to the first submission, APAM rely on the conclusion in JTBJ that ‘section 102(5) does not apply to dismissals which were preceded by a hearing at which the applicant appeared and presented their case on the issue being considered at that hearing’.[5] As JTBJ is a recent decision of the President of the Tribunal, it ought to be treated as binding.
[5] Ibid, [3].
APAM also submitted that the applicants’ sole remedy to correct error is the explicit statutory avenue of appeal provided for in the ART Act in section 173.[6]
[6] Ibid, [31]-[32].
APAM notes that the purpose of s 173 is identified in the Revised Explanatory Memorandum to the Administrative Review Tribunal Bill 2024 (‘the EM’). At [1095], the EM stated in relation to Division 2 (Appeals on Questions of Law) to Part 7 (Appeals – and References of Questions of Law to Federal Court) that:
It is important that the Tribunal is accountable for the legality of its decisions. As such, this Division provides an avenue of appeal to the FCA for parties who believe a decision of the Tribunal is legally incorrect. The ability to appeal enhances transparency and promotes confidence in the quality of the Tribunal’s decision-making.
At [1101], and specifically in relation to clause 173 of the Bill (now s 173 of the ART Act) the EM stated:
This clause allows a person to appeal to the FCA where the Tribunal has decided that the person’s interests are not affected by a reviewable decision. This might occur where the person has applied for review under clause 17, applied to become a party to a proceeding under clause 22, or attempted to request reasons for a decision under clauses 268 and 270. This clause is equivalent to subsection 44(2) of the AAT Act, with minor updates to reflect modern drafting practices. These do not affect the operation or effect of the provision.
APAM contend that when s 173 is read together with the EM, a legislative intent can be discerned that where a person has applied for review under s 17 of the ART Act, and where the Tribunal has decided that the person’s interests are not affected by the reviewable decision, the appropriate avenue of appeal for a party who considers that the decision of the Tribunal is legally incorrect is an appeal to the Federal Court, rather than any reconsideration of the decision by the Tribunal. If it was intended that parties would have an opportunity to have legal errors in the Tribunal’s reasons reconsidered by the Tribunal, that would have been expressed clearly in the legislation, given that it would otherwise fundamentally undermine the certainty and finality of decisions made by the Tribunal.[7]
[7] APAM’s submissions dated 15 August 2025, [33].
In relation to the Bhardwaj principle, APAM emphasised the conclusion expressed by President Downes J in Re Michael and Secretary, Department of Employment, Science and Training [2006] AATA 227 at [17] that ‘when the tribunal is asked to reconsider one of its own decisions “[i]n all but the rarest of cases, tribunal decisions must be treated as final”’.[8]
[8] Citing Mora, [18].
Further, in the case of Mora, the AAT concluded that it was both lawful and bound to act on the basis that the earlier decision was a nullity, on the basis of the following considerations:
(a)There was clear, recent and unambiguous judicial authority available to support the conclusion that the Tribunal’s earlier ‘no jurisdiction’ decision was plainly wrong;
(b)The parties agreed as to what course the tribunal should adopt;
(c)There were no discretionary reasons that might have been raised as reasons for a court to refuse the applicants relief had they instead sought judicial review; and
(d)The outcome was consistent both with the tribunal’s objectives of providing a mechanism of review that is fair, just, economical and quick, and not inconsistent with promoting public trust in its decision-making.[9]
[9] Mora, [19].
This cautiousness in applying the Bhardwaj principle was also articulated in JTBJ. In that case the Tribunal concluded that the dismissal decision ‘falls within the rare category of case where the only fair and appropriate course is to treat it as having no legal effect…’[10], finding that:
(a)Both parties agreed that the Dismissal Decision was wrong in law;
(b)The respondent did not contend that it was not open to the Tribunal to treat the Dismissal Decision as having no legal effect and to consider afresh the jurisdictional question;
(c)As both parties agreed the Dismissal Decision was wrong in law, the Tribunal considered that the applicant should not have to incur the costs and inconvenience of pursuing an appeal to the Federal Court to obtain an order setting aside the Dismissal Decision and remitting the matter for reconsideration by the Tribunal;
(d)The reasoning in the Dismissal Decision was also being adopted by some other members in similar social security cases. There was therefore a public interest in the Bhardwaj principle being applied in relation to the Dismissal Decision so as to give guidance in the form of these reasons for decision.
[10] JTBJ, [79].
In relation to the errors contended for by the applicants, APAM says that it does not accept that the Tribunal made the errors alleged and are therefore not errors which could be said to be so obvious as to leave no real doubt that the Tribunal erred in making the Dismissal Decision.[11]
[11] APAM’s submissions dated 15 August 2025, [48].
APAM does not accept that it is open to the Tribunal to treat the Dismissal Decision as a nullity.[12] Accordingly the circumstances of this case fall outside the circumstances that were said to warrant reinstatement in Mora and JTBJ.
[12] Ibid, [51].
APAM contends that the parties having been fully heard and the Tribunal having delivered a carefully reasoned decision, the fair, just, efficient and appropriate avenue for any appeal is an appeal to the Federal Court and there is no occasion for the Tribunal to exercise its power to treat the Dismissal Decision as a nullity.
At the hearing, APAM made the following oral submissions in support of a narrow construction of ss 102(5) and 102 (6) consistent with JTBJ.
The section heading of s 102 and the sections themselves in s102(5) and (7), speak of a reinstatement application. They don't speak about review, they don't speak about appeal, they don't speak about any scrutiny of the reasons for dismissal on error of law grounds. This is in stark contrast to other provisions of the ART Act. Where the ART Act does provide for some form of review and or appeal, it does so expressly, and it does so in prescriptive terms that one could expect to see repeated in 102 if that is what in fact 102 was providing for. The following provisions were cited:
(a)Section 114 – this section is very prescriptive about when the Tribunal might revisit its own reasons and for what purpose and the extent to which the Tribunal is able to make amendments. If some form of re-review or appeal was intended to be provided for in s 102, there would be some prescriptive language around that process.
(b)Section 121 – the Guidance and Appeals panel is a way of constituting the tribunal at a more senior level to review some decisions made by decision makers for re-review. Broadly the circumstances in which the Tribunal may constituted in this way is where a Tribunal decision may contain an error of fact or law materially affecting a Tribunal decision. That quite a prescriptive provision for when there can be ‘re-review’ is effectively what the tribunal would be doing if the applicants’ construction were accepted.
(c)Section 131D provides for a second review of an ART social services decision. Where the legislature intended that there be a re-review, it expressly stated that in language that is familiar to Parliament in the nature of reviews and appeals, which is distinct from the language of reinstatement.
(d)Section 102(5) speaks of reinstatement where the application was ‘dismissed in error’. This phrasing emphasises error in the process of the dismissal, not in the reasons for the dismissal.
(e)Section 102 doesn't make any provision for the procedural manner by which a re- review would take place, which is again in contrast to the other re-review provisions.
APAM also sought to distinguish or confine two decisions which took a broad approach to the nature of the error that would allow a finding that an application had been dismissed in error. The first was the Full Federal Court in Goldie v Minister for Immigration & Multicultural Affairs [2002] FCAFC 367 (‘Goldie’) and the second a decision of the AAT constituted by two Deputy Presidents, Bates and Comcare[13]. As it is necessary to consider these cases in more detail later in these reasons, I won’t set out in any detail those submissions.
[13] [2015] AATA 199.
Minister’s submissions
The Minister addressed two issues in submissions:
(a)Whether the Wilsons are entitled to seek to have the proceedings reinstated pursuant to s 102 of the ART Act; and
(b)Whether the Bhardwaj principle could apply to the Tribunal’s decision to dismiss the application.[14]
[14] Minister’s submissions dated 15 August 2025, [5].
The Minister joins with APAM in contending that JTBJ establishes that an application under s 102 cannot be brought in the circumstances of this case following a full hearing on the question of standing. Further, none of the errors identified fall within the type of errors identified in JTBJ as providing appropriate bases for an application under s 102.
The Minister joins with APAM in the submission that the Bhardwaj principle is not applicable in this case. In particular, the Minister contends that Bhardwaj has no application because:
(a)The parties do not agree that the Dismissal Decision is wrong;
(b)It is not open to the Tribunal in these proceedings to treat the Dismissal Decision as having no legal effect;
(c)It would be futile to reinstate the proceedings because the Wilsons do not have standing to seek the review for the reasons given in the Dismissal Decision;
(d)The applicants would not be prejudiced if they are not able to seek substantive review on the merits of the reviewable decision in these proceedings, because the Tribunal has resolved, following a contested interlocutory hearing, that their interests are not affected by the decision in a manner relevant to s 17 of the ART Act;
(e)An outcome that results in the application for review being heard and determined by the Tribunal in accordance with the Bhardwaj principle would not be conducive to the Tribunal achieving its statutory objective.[15]
[15] Ibid, [25].
The Wilsons’ contentions
The Wilsons contend that the Tribunal does have power to consider whether the application was dismissed in error and whether as a matter of discretion, the matter should be reinstated. They contend that the Full Federal Court’s decision in Goldie supports a broad application of the reinstatement provision.
The applicants contend that nothing can be discerned from the presence of an express right of appeal in s 173. Its purpose is to provide an additional avenue of review, not as a substitute for an application to reinstate.[16]
[16] Applicants’ submissions dated 19 August 2025, 1.
Further, in relation to the power to reinstate, s 102(5) is different from s 102(7). Section 102(7) applies to what can be described to ‘default’ dismissals. Section 102(5) must be for errors other than default dismissals.[17]
[17] Ibid, 2.
The Wilsons contend that JTBJ should not be followed.[18] Further, s 102(5) should be construed as capturing a broader category of ‘errors’ than s 102(7), including errors of the kind that they have identified. The Wilsons contend that s 102(5) was intended by Parliament to fix any errors made in the decision to dismiss, rather than the narrower provision for ‘default’ dismissal under s 102(7).
[18] Ibid, 3.
The Wilsons contend that the prospects for reinstatement are good, and the errors alleged have merit. Further, DP Britten-Jones failed to apprehend the Tribunal’s jurisdiction, and no real decision was made in relation to the case that was presented, and this invites consideration of the Bhardwaj principle.
Analysis of Relevant Provisions
Despite having been considered by Full Courts of the Federal Court and very eminent presidential members of this Tribunal and the AAT, it is fair to say that no consensus on the scope and operation of the Tribunal’s summary dismissal power has emerged. There is direct conflict between the Full Court decisions in Goldie and Brehoi[19]. There is also a clear difference in approach between the Deputy Presidents who sat on Bates and Comcare and the recent decision of the President of this Tribunal in JTBJ. It also notable that in JTBJ, the member who dealt with the matter at first instance dismissed it under s 97 of the ART Act, whereas DP Britten-Jones utilised the power in s101(1)(b) to effect the dismissal.
[19] [1999] FCA 772.
In an effort to resolve these tensions, I have undertaken a careful examination of the legislative history of the summary dismissal provisions as well as the history of the AAT’s and this Tribunal’s powers to deal with questions of standing. The purpose in doing so is to identify where the Parliament has modified the regime in place under the AAT Act and where the Parliament has maintained the regime. This provides important context for understanding the text of the dismissal provisions.
History of standing provisions
When the AAT Act was enacted, it had two provisions relevant to the question of standing.
Section 31 of the AAT Act provided:
Where it is necessary for the purposes of this Act to decide whether the interests of a person are affected by a decision, that matter shall be decided by the Tribunal and, if the Tribunal decides that the interests of a person are affected by a decision, the decision of the Tribunal is conclusive.
The AAT Act also provided in s 44 for appeals to the Australian Industrial Court on a question of law from any ‘decision of the Tribunal in that proceeding’. It also provided in sub-s (2):
(2) Where a person has applied to the Tribunal for a review of a decision, or has applied to be made a party to a proceeding before the Tribunal for a review of a decision, and the Tribunal decides that the interests of the person are not affected by the decision, the person may, in such manner and within such time as are prescribed, appeal to the Australian Industrial Court from the decision of the Tribunal.
Apart from altering the reference to the Australian Industrial Court to the Federal Court after the former was abolished, these provisions remained unchanged until the repeal of the AAT Act in 2024.
These were the only provisions which dealt with the question of standing. When the AAT Act was originally passed, the AAT had no summary dismissal powers. Consequently, any decision not to proceed with a review on the basis that a person’s interests were not affected by a decision, was a determination that the AAT was specifically empowered to make by s 31, subject to a specific right of appeal in s 44(2).
Standing was an iissue with its own regime for determination. The only remedy available if the Tribunal found an applicant lacked standing was an appeal to the Federal Court.
Summary dismissal power
In 1977, the AAT Act was amended by the Administrative Appeals Tribunal Amendment Act 1977 (Cth) which inserted express dismissal powers into the AAT Act for the first time.
A new s 42A was inserted. Subsection (1) dealt with dismissing an application by consent. Subsection (2) provided as follows:
(2) If a party to a proceeding before the Tribunal in respect of an application for the review of a decision (not being the person who made the decision) fails either to appear in person or to appear by a representative at a preliminary conference held in relation to the application under section 34 or at the hearing of the proceeding, the Tribunal may –
(a) Where the only other party to the proceeding is the person who made the decision – 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.
This conferred for the first time a power on the Tribunal to dismiss an application or remove a party for procedural default. No reinstatement mechanism was provided.
More significant amendments followed in 1993 when the Administrative Appeals Tribunal Amendment Act 1993 (Cth) was passed (‘1993 Amending Act’).
These amendments were introduced following a review of the AAT. The Review made a significant number of recommendations directed at ‘streamlining the procedure of the Tribunal and clarifying the power of the Tribunal in procedural matters’. The 1993 Amending Act made significant changes to the power of the Tribunal to dismiss applications. It expanded the bases on which applications could be dismissed and introduced powers to reinstate.
Subsection (8) provided for applicants whose applications were dismissed for non-attendance to apply for reinstatement. Subsection (9) empowered the AAT to reinstate the application if it considered it ‘appropriate to do so’.
Subsection (10) provided a more general reinstatement power than subsection (9). It provided as follows:
If it appears to the Tribunal that an application has been dismissed in error, the Tribunal may, on the application of a party to the proceeding or on its own initiative, reinstate the application and give such directions as appear to it to be appropriate in the circumstances.
It is clear that reinstatement under sub-s (10) was only available for dismissal decisions made under a subsection of s 42A.[20] Namely:
(a)Dismissal for non-appearance (s 42A(2);
(b)Dismissal by consent (s 42A(1));
(c)Dismissal following notification of discontinuance or withdrawal (s 42A(1A));
(d)Dismissal due to inability to show that the decision is reviewable (s 42A(4));
(e)Dismissal due to failure to proceed with the application or comply with a direction (s 42A(5)).
[20] So much is evidence from the structure of the AAT and is confirmed in Brehoi at [24] and Goldie at [31]
The 1993 Amending Act also inserted s 42B, which allowed the Tribunal to dismiss an application if satisfied that the application was frivolous or vexatious. Section 42(10) did not apply if the application was dismissed under section 42B.[21] There was no reinstatement provision equivalent to s 42A(10) if the application was dismissed pursuant to section 42B.
[21] Brehoi at [24] and Goldie at [31]
Regrettably there was inconsistency between the wording in the Report that recommended insertion of a power to reinstate for error, the explanatory memorandum’s gloss on the provision and the text of s 42A(10).
In the explanatory memorandum to the Bill, it states:
New subsection 42A(10) provides for the Tribunal, on its own initiative, to reinstate an application which has been dismissed through administrative error on the part of the Tribunal.[22]
[22] Explanatory Memorandum, Administrative Appeals Tribunal Amendment Bill 1992 (Cth), [56].
The phrase in the explanatory memorandum ‘dismissed through administrative error on the part of the Tribunal’ is far narrower than the phrase used in the Amending Act – ‘dismissed in error’. The narrower concept in the explanatory memorandum was derived from the 1991 Report that prompted the amendments to section 42A. The proposal in that report, that a reinstatement provision be included in the amendments, read as follows:
Problem
The amendment 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 related to withdrawal of applications] 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.
Proposed Amendment
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.[23]
[23] Steering Committee of the Review of the Administrative Appeals Tribunal, Report of the Review of the Administrative Appeals Tribunal (Report, 29 November 1991).
Read in this context, the reinstatement power is modest and not designed to provide an opportunity to re-argue legal and factual points. It is simply a chance to remedy dismissals brought about by a misapprehension as to the actual state of affairs on the part of the Tribunal.
However, despite the fact that the Review recommended that a very qualified type of error should be the precondition for reinstatement, the text adopted by the legislature was less confined. This ultimately created difficulties in relation to the interpretation of the phrase.
The reinstatement power in s 42A(10) was first considered by the Full Court of the Federal Court in Brehoi v Minister for Immigration and Multicultural Affairs [1999] FCA 772 (‘Brehoi’).
In that case the AAT had dismissed the applicant’s application for review of a deportation order made against him. The dismissal decision was made on the basis that the applicant had failed to appear and was made pursuant to s 42A(2). The applicant was aware of the date of the hearing having been given notice of it at a directions hearing. His failure to appear was as a consequence of him escaping from immigration detention and his whereabouts being unknown at the date of the hearing. The applicant was not apprehended until the 28 day period for an application for reinstatement under s 42A(8) had expired. He wrote to the AAT on 27 April 1998. It was considered ‘proper to treat that letter…as an application by Mr Brehoi under s 42A of the AAT Act for reinstatement’. The AAT responded by letter advising that because the letter was received outside the 28 days specified in s 42A(8) the reinstatement application could not be entertained.
The applicant then applied to the Federal Court for an extension of time to appeal to the Federal Court under s 44(2A)(a) of the AAT Act. The primary judge dismissed the application for an extension of time. Due to further delay in instituting any appeal the applicant then sought leave to file and serve a notice of appeal outside the time permitted by the Federal Court Rules. The Full Court considered that application for an extension of time in Brehoi. For an extension of time to be granted ‘special reasons’ needed to be shown.
Notwithstanding that it was not relevant to the application before it, the Full Court made comments on the operation of s 42A of the AAT Act and the AAT’s handling of the request for reinstatement.
The comments note that s 42A(10) applied to sub-ss (1), (4), (5) and (2).[24] However the Full Court considered that sub-s (10) was irrelevant to Mr Brehoi’s application for reinstatement and the AAT was right not to consider it as an available mechanism to reinstate the matter. The Court stated:
The view of the particular tribunal member concerned that s 42A(10) was not of potential relevance in Mr Brehoi’s circumstances accords with the purpose of the subsection’s inclusion in the AAT Act, as disclosed both by the Report of the Review of the Administrative Appeals Tribunal and by the Senate explanatory memorandum for the bill which became the 1993 Act.
[24] Brehoi, [24].
In other words, in cases where no administrative error by the Tribunal is asserted, s 42(10) is not available. Having noted the recommendations of the Report of the Review of the AAT the Court identified the scope of the errors that sub-s (10) was designed to deal with in the following terms:
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”.[25]
[25] Ibid, [28]-[29].
The Full Court also noted the relevant passages of the explanatory memorandum to the Bill for the 1993 Amending Act. These comments are obiter.
The same reinstatement provisions were considered again by the Full Court of the Federal Court in 2002 in Goldie.
In Goldie, the applicant briefed counsel to make an adjournment application on the day his application for review was to be heard in the AAT. The application for adjournment was partially successful and the matter was adjourned for one day. When the matter resumed the following day counsel for Mr Goldie renewed the adjournment application. The application was refused and counsel, having no instructions to appear on the substantive review, withdrew. The Deputy President (DP Gerber) hearing the substantive matter then dismissed it pursuant to s 42A(2) on the basis that the applicant had failed to appear (a course he had foreshadowed the previous day). Mr Goldie subsequently applied for reinstatement relying on both sub-ss (9) and (10) of s 42A.
The reinstatement application was heard by Deputy President Hotop. DP Hotop determined that the Tribunal had no jurisdiction under s 42A to reinstate the original application for review.[26] DP Hotop refused to reinstate under sub-s (9) because the application was not made within 28 days as (then) required by sub-s (8).
[26] Re Goldie and Minister for Immigration and Multicultural Affairs [2001] AATA 513
In relation to sub-s (10), DP Hotop relied on Brehoi and concluded, following a careful process of statutory construction, that the reinstatement power was only available where the ‘relevant application has been dismissed by reason of administrative error on the part of the Tribunal’.
Several months later, Mr Goldie sought an extension of time to appeal to the Federal Court from DP Hotop’s refusal to reinstate.
It was argued that DP Hotop did in fact have power to reinstate the application under both sub-ss (9) and (10) on the basis that DP Gerber had dismissed the application in breach of the requirements of natural justice (thus satisfying the requirement for ‘error’), and there was no evidence of the date on which the applicant had received notification of the dismissal decision so that time had not started to run for the purposes of sub-s (8).
The Full Court accepted that there was evidence that the applicant was notified of the decision several months before he applied for reinstatement and consequently, the application made under sub-s (8) was outside of the 28 days required. Consequently, the Tribunal had no power to reinstate under sub-s (9).
In relation to sub-s (10), the Court did not accept that the phrase ‘dismissed in error’ could be limited to errors of an administrative kind made by the Tribunal. To accept that argument, the Court was satisfied it would be necessary to read words into the statute. The majority went on to state:
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 the application had been ‘‘dismissed in error’’.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 subs (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.In the course of argument, it was suggested that it is unlikely that Parliament
intended that one member of the Tribunal could sit in judgment on a decision
of another member. It was said that the appropriate course, envisaged by the
Act, was appeal under s 44 of the Act. However, it is not uncommon for rules
of courts to allow one member of the court to set aside an order (especially a
default order) made by another member. As a matter of practice, no doubt, the
application to set aside the original order will usually be heard by the person
who made it. But this is not always practicable and there is usually no rule to
that effect. The suggested inconsistency with s 44 must be considered in the
light of the fact that s 42A(10) only covers default dismissals under s 42A, not
dismissals after a hearing on the merits.The considerations to which we have referred suggest it is erroneous to place
any limitation on the ‘‘error’’ referred to in s 42A(10).[27][27] Goldie, [29]-[32].
In noting that ‘s 42A(10) only covers default dismissals under s 42A, not dismissals after a hearing on the merits’, the Court appears to have been referring to the fact that the grounds for dismissal in s 42A were limited and for the most part did not require any consideration of the merits of the application, unlike s 42B which did require examination of the merit of the application to determine whether it was frivolous or vexatious.
The majority considered the decision in Brehoi and the reasons for the favouring in that case a construction that limited the kinds of error that could infect a dismissal. Ultimately the approach adopted in Brehoi was rejected on textual grounds. The majority concluded:
Although it is appropriate to take account of the Senate Explanatory
Memorandum (see s 15AB(1) and (2) of the Acts Interpretation Act 1901
(Cth)), 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’’’ … Although rectification of administrative
errors (whatever they might be in this context) was apparently the idea behind
the amendment, the word adopted by Parliament was not so limited.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.[28][28] Ibid, [34]-[35].
The majority were satisfied that DP Hotop did have power to make a reinstatement order under s 42A(10).
However, the majority nonetheless declined to extend time to appeal against the decision of DP Hotop. The majority were persuaded that even taking the more expansive approach to the phrase ‘dismissed in error’ that they favoured, there was no material by reference to which DP Hotop could have been persuaded that it was appropriate to reinstate the application.
Three errors were alleged by the applicant:
(a)Counsel’s appearance on the adjournment application meant that there was no failure to appear;
(b)A breach of procedural fairness in light of the late production of additional documents by the respondent which founded the adjournment application;
(c)A failure by the Tribunal to consider and act upon other options including conducting a review on the papers or conducting a review in the absence of the applicant rather than utilising the power to dismiss for non-appearance.
It is worth noting that these errors, although not found to have been made out by the majority, were treated as errors of a kind capable of triggering the power to reinstate in sub-s (10).
The majority determined that there was no material before DP Hotop that would have justified him in determining that the proceeding had been dismissed in error and as a matter of law, he was bound to conclude that it had not. The majority were satisfied that although DP Hotop construed sub-s (10) too narrowly, his decision to reject the reinstatement was correct even when the broader interpretation of sub-s (10) was applied.
Carr J dissented in the result, but only because he considered that as a matter of law, DP Gerber was not entitled to dismiss the proceedings under ss (2) on the basis of a failure to appear, in circumstances where counsel had attended and sought an adjournment. In his view, the applicant had established that the application was dismissed in error by DP Gerber because DP Gerber had wrongly concluded that the precondition to dismissal was made out.
Carr J did however agree that the phrase ‘dismissed in error’ extended beyond Tribunal administrative error and included legal error.
In considering s 42A, Carr J made the following relevant comments:
Section 42A can be seen to empower the Tribunal to dismiss an application
without either proceeding to review the administrative decision under challenge
or, if it has commenced to review the decision, without completing the review,
in five circumstances. The five circumstances can be described respectively as
consent dismissal, dismissal on discontinuance or withdrawal, dismissal upon
failure to appear, dismissal where the decision does not appear to be reviewable
and dismissal where an applicant has failed within a reasonable time to proceed
with the application.All of these sets of circumstances have a common result. That is, the
dismissal takes place without the Tribunal reviewing the merits of the decision,
even without review on a prima facie basis of those merits.
…
The Tribunal’s decision of 17 December 1999 can, in my view, be properly
characterised as in the nature of a default decision. That is, in default of
consideration of whether there were even any prima facie merits in the
application. There do not appear to be any policy reasons why, in those
circumstances, such a narrow construction should be put upon s 42A(10).
…
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.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.
…
During argument in the appeal there was a suggestion that it might be
inappropriate for one member of the Tribunal to be asked to revisit a decision
by another member of the Tribunal to dismiss an application and to rule upon
the question whether such dismissal had been in error. Implicit in that
suggestion is that some sort of appeal procedure was involved. I would not
view s 42A(10) in that light.
…
I see no difficulties with s 42A(10) being applied by one member of a
Tribunal in respect of a default decision of another member. Indeed, where an
application has been made within 28 days after receiving notification an
applicant may apply, pursuant to s 42A(8), for reinstatement of the application.In those circumstances s 42A(9) gives the Tribunal power, if it considers it
appropriate to do so, to reinstate the application and give such directions as
appear to it to be appropriate in the circumstances. In other words, the Tribunal
is empowered to set aside the dismissal if it considers it appropriate to do so.Accordingly, I think that the Tribunal erred in law when it held that it had no
jurisdiction to reinstate the application under s 42A(10).[29][29] Ibid, [65]-[78].
Just as the majority did, Carr J was prepared to give the reinstatement power an expansive meaning because:
(a)the power to dismiss was confined to dismissals under s 42A itself; and
(b)Section 42A dismissals occur without the Tribunal reviewing the merits of the decision even on a prima facie basis.
Despite the dissent by Carr J, some key propositions can be said to be supported by all the judgments in Goldie.
First, the reinstatement power was only available when a matter was dismissed under s 42A and not under any other provision and in particular not under s 42B.
Second, ‘dismissed in error’ comprehends legal error, including jurisdictional error.
Third, this broad interpretation of the reinstatement power was considered appropriate because the substantive merits of the underlying application would not have been the subject of even prima facie consideration by the member who decided to dismiss the application.
Subsequent Amendments
Further amendments were made to the dismissal provisions in the AAT Act in 2015.
Section 42B was amended to add further bases for dismissal including if the AAT was satisfied that the application:
(a)has no reasonable prospects of success; or
(b)is otherwise an abuse of the process of the Tribunal.
The explanatory memorandum to the bill for the 2015 Amending Act explains:
This amendment would modernise the language of existing paragraph 42B(1)(a) and clarify the policy surrounding the grounds for dismissal. The proposed new grounds are similar to dismissal powers available to other bodies. For example Rule 26.01 of the Federal Court Rules 2011 allow for summary judgment on matters which have no reasonable prospect of success, or are an abuse of process. Similarly, section 47 of the Queensland Civil and Administrative Tribunal Act 2009 provides for dismissal of applications where the application is frivolous, vexatious, misconceived, lacking in substance or otherwise an abuse of process. These powers would provide the Tribunal with greater power to dismiss unmeritorious matters early where appropriate.[30]
[30] Explanatory Memorandum, Tribunals Amalgamation Bill 2015, [552].
In 2015 the scope of the reinstatement power was considered by a Tribunal consisting of two Deputy Presidents in Bates and Comcare.[31]
[31] [2015] AATA 199
The applicant, Ms Bates, was subject to a Tribunal direction that she attend a medical examination by a psychiatrist. She turned up to the psychiatrist’s office but panicked and left without attending the medical examination. A hearing was conducted as to whether the applications she had before the Tribunal should be dismissed pursuant to s 42A(5) – failure to comply with a direction of the Tribunal. A hearing was conducted on 28 November 2014. Ms Bates was represented by counsel and submissions were put on her behalf that her applications should not be dismissed. The member who had made the direction decided to dismiss two applications which related to psychological claims pursuant to paragraph s 42A(5)(b).[32]
[32] Bates and Comcare [2014] AATA 931
The applicant then sought reinstatement pursuant to s 42A(10).
The Tribunal noted the approach taken by the Full Court in Goldie and adopted the broad approach to the phrase ‘dismissed in error’ which the judges in that decision adopted.
The Tribunal considered a variety of factual and legal errors as potentially triggering the discretion provided for in sub-s (10)[33] and dismissed all of them. Ultimately the Tribunal found that the proceedings had been ‘dismissed in error’ because new evidence showed that the applicant’s state of mind when she left the appointment was different to the state of mind discerned by the Tribunal when dismissing the application. In particular, there was nothing wilful about the applicant’s failure to comply with the direction.
[33] Although the Tribunal did not necessarily endorse the proposition that if those errors were established then the requirement that the application be ‘dismissed in error’ was established – see [27]
This represents a very broad approach to what is covered by the concept of ‘dismissed in error’. It is also important to note at this point that the applicant had had a full hearing before the original member who dismissed the application. That point is important when considering subsequent decisions of the Tribunal.
Section 42A was amended again in 2022, but with no substantive change to the operation of the provisions.
In 2024, the AAT Act was repealed, and the ART Act created this Tribunal.
Immediately prior to the creation of the new Tribunal, the law concerning the summary dismissal of applications could be summarised as follows.
Section 31 of the AAT Act gave the Tribunal conclusive power to determine whether a person’s interests are affected by a decision. The only path for review of a decision on standing was provided in s 44(2), and it was an appeal to the Federal Court.
Applications dismissed under s 42B of the AAT Act on the basis that they were:
(a)frivolous, vexatious, misconceived or lacking in substance; or
(b)had no reasonable prospects of success; or
(c)were otherwise an abuse of the process of the Tribunal.
were not subject to the reinstatement provisions in s 42A, nor the appeal provisions in s 44,[34] and could only be reviewed by the Federal Court following an application pursuant to s 39B of the Judiciary Act 1903 (Cth).
[34] Director-General of Social Services v Chaney (1980) 3 ALD 161 at 181.
If an application was dismissed on any of the bases provided for in s 42A, that application could be reinstated by the Tribunal if ‘it appears to the Tribunal that [it] has been dismissed in error’. The errors that could be relied upon to meet that test included factual, legal and administrative errors.
The ART Act
The ART Act created a new tribunal, so it should not be assumed that how things operated in the AAT were replicated in the new tribunal. However, many of the provisions of the AAT Act were brought across to the ART Act and appear intended to operate in the same or a similar way to the way they operated in the AAT.
The standing and summary dismissal provisions were altered in ways that affect their operation. Consequently, it is necessary to examine those changes and consider what impact they have on how the dismissal and reinstatement powers in the ART Act operate.
Alterations to the Standing Provisions
When the ART Act was introduced, some of the standing provisions remained the same while some were altered.
Similar to s 27 of the AAT Act, s 17 of the ART Act provides that a person whose interest are affected by a reviewable decision may apply to the Tribunal for review of the decision. The EM notes that s 17 is equivalent to s s27(1) of the AAT Act and that it has ‘minor updates to reflect modern drafting practices. These do not affect the operation or effect of the provision.
Similar to section 44(2) of the AAT Act section 173 provides:
A person may appeal to the Federal Court from a decision of the Tribunal that the person’s interests are not affected by a reviewable decision.
The EM states in relation to this provision:
This clause allows a person to appeal to the FCA where the Tribunal has decided that the person’s interests are not affected by a reviewable decision. This might occur where the person has applied for review under clause 17, applied to become a party to a proceeding under clause 22 or attempted to request reasons for a decision under clauses 268 and 270. This clause is equivalent to subsection 44(2) of the AAT Act, with minor updates to reflect modern drafting practices. These do not affect the operation or effect of the provision.[35]
[35] Revised Explanatory Memorandum, Administrative Review Tribunal Bill 2024, [1101].
It is notable however that there is no equivalent to s 31 of the AAT Act, which expressly conferred power on the Tribunal to conclusively determine whether a person’s interests are affected.
Further, the question of standing is discussed in the EM[36] in the context of the Tribunal’s power to dismiss an application if the decision is not reviewable in section 97. The EM provides as follows:
This clause allows the Tribunal to dismiss an application if it is satisfied the decision is not reviewable. This may be because, for example, the legislation under which the decision is made does not provide for Tribunal review of those decisions, the application is out of time (and no extension is granted), or for other reasons, such as the person who brought the application does not have standing because their interests are not affected by the decision. This clause is equivalent to subsection 42A(4) of the AAT Act. The language has been changed to reflect that the Tribunal must dismiss these applications, as it is unable to proceed with a review of a decision that is not reviewable.
(emphasis added)
[36] at [665].
This raises for consideration the question whether, in the move from the AAT Act to the ART Act, has the Parliament altered the process for determining questions of standing. As noted at paragraph 50 above, the process for determining standing was set by the AAT Act when originally enacted and the only avenue for review of a standing determination was an appeal to the Federal Court.
Although the answer is not beyond doubt, I am satisfied that questions of standing in the ART Act are dealt with differently to how those questions were dealt with under the AAT Act. My conclusion is based on two matters. First, the failure to reproduce s 31 of the AAT Act or any close equivalent in the ART Act suggests that a decision was made not to reproduce the framework that made questions of standing separate from questions of summary dismissal. Second, this conclusion is supported by the reference in the EM to lack of standing providing a basis for dismissal under s 97.
In those circumstances I accept the Wilsons’ submission that the appeal provided for in s 173 is an alternative to any reinstatement rights that may be available under s 102.
Changes to the dismissal provisions in the ART Act
In addition to changing the process by which questions of standing are dealt with, the ART Act also significantly expanded the kinds of dismissals to which the power to reinstate attaches.
Section 102(1) provides:
This section applies if the Tribunal dismisses an application.
Note: An application may be dismissed in specified circumstances (see sections 20, 84 and 96 to 101). In addition, an application is taken to have been dismissed if the applicant withdraws it (see section 95).
The sections identified in the note (which are clearly covered by the text of the provision) go beyond the dismissal grounds to which the reinstatement provision in s 42A(10) applied.
There is very limited discussion in the EM about the policy behind this change. At paragraph [30] the EM states:
In addition to these new powers and procedures, the Tribunal would have all of the powers and procedures of the AAT, including powers to resolve a matter by dismissal, allowing an applicant to withdraw their matter and providing for circumstances in which the Tribunal could make a decision on the papers without holding a hearing. These powers and procedures have been enhanced to improve efficiency - for example, by providing for additional circumstances in which the Tribunal can hear a matter on the papers.
The change of most significance for present purposes is that the reinstatement power applies to dismissals where an application ‘has no reasonable prospects of success’. This was not the case under the AAT Act.
However, the breadth of the concept ‘dismissed in error’ as determined in Goldie, has not been altered in the ART Act. So much is clear from passages in the EM on the reinstatement power. The EM states from [681]:
In Goldie v Minister for Immigration and Multicultural Affairs (2002) 121 FCR 383 (Goldie), the FCA held that an error, for the purposes of subsection 42A(10) of the AAT Act does not need to have arisen from a fault on the part of the AAT, or a member or staff member of the AAT. However, it must be a fault which induced or led to the error. In Goldie, the fault which led to the application being dismissed in error was a mistake by the solicitor with carriage of the matter.
An act or omission by the Tribunal may also give rise to a matter being dismissed in error. In Greening v Repatriation Commission (1998) 52 ALD 110, the AAT decided on considering reinstatement of an application, that the AAT should have put the applicant on notice that her application was in danger of being dismissed because it appeared that she had failed to proceed with her application. At a directions hearing to consider reinstatement, the delay was found to be as a result of her representative and outside of the applicant’s control. That the applicant was not given an opportunity to make submissions in this regard and in relation to why her application should not be dismissed meant that the application had been dismissed in error.
The AAT has also determined that when considering if an application was dismissed in error, it should consider whether any new information, not known when the application was dismissed, would change whether the application would have been dismissed. That is, the error must bear some relation to the dismissal (Re Bates and Comcare [2015] AATA 199 and Re White & Secretary, Department of Families, Community Services & Indigenous Affairs (2007) 46 AAR 208).
In summary, following the introduction of the ART Act, the law on dismissal and reinstatement had the following features:
(a)Questions of standing were moved to be considered within the dismissal regime in Part 4 of the ART Act;
(b)The reinstatement power was expanded to cover matters dismissed as having no reasonable prospects of success; and
(c)The broad approach to the concept ‘dismissed in error’ adopted in Goldie was applied in the ART.
JTBJ and Secretary, Department of Social Services
The new dismissal provisions in the ART Act have already been the subject of consideration in this Tribunal in the decision JTBJ .
The decision concerned an application that had been dismissed by a member of the ART on the basis that the applicant (the estate of a then deceased recipient of a pension) was not a person whose interests were affected by a decision not to pay the deceased their full entitlements.
An application was made under s 102 by the estate to reinstate the application on the basis that the member had made a legal error when determining whether the estate had sufficient interest.
In considering the application Justice Kyrou, sitting as President of this Tribunal, determined, consistently with Goldie that only two limitations on the concept of ‘error’ apply in the case of dismissal of an application for review. The limitations were identified as follows:
(a)Section 102(1) of the ART Act makes it clear that sub-ss 102(5) and (6) apply only where an application for review has been dismissed. This means that those provisions do not apply where an order is made under s 105 of the ART Act after the ART considers the merits of the application either at a substantive hearing or without holding a hearing in accordance with s 106. That is because such an order does not include dismissal of the application for review;
(b)The act of dismissal was attended with error, that is, the error induced the dismissal.
The learned President also noted that:
…the Full Court unanimously stated that s 42A(10) of the AAT Act applied only to ‘default dismissal’. Carr J used the expressions ‘default jurisdiction’, ‘default decision’, ‘error in dismissing an application summarily’ and ‘summarily dismissed by the Tribunal’ interchangeably to encapsulate dismissals which were not preceded by ‘consideration of whether there were even any prima facie merits in the application’.[37]
[37] JTJB, [43].
So much clearly follows from Goldie. However, the learned President goes on to say:
The underlying principle to be taken from these observations for the purposes of subs 102(5) and (6) of the ART Act is that these provisions do not apply to dismissals which were preceded by a hearing being conducted at which the applicant appeared and presented their case on the issues being considered at that hearing.
It is not unusual for a respondent to an application for review to challenge the ART’s jurisdiction in relation to that application. Often, such a challenge is identified as a preliminary issue and is listed for an interlocutory hearing before a member at which the applicant is afforded the opportunity to participate. In such a case, if, following the interlocutory hearing, the member makes a decision that there is no jurisdiction, dismisses the application on that basis and gives reasons for that decision, the applicant could not seek reinstatement of the application under s 102(5) and (6) of the ART Act on the ground that the decision contains an error. That is because, the applicant participated in the hearing and had an opportunity to present their case on whether the ART had jurisdiction, the dismissal in such a case cannot be described as a ‘default decision’ or a ‘summary dismissal’. The appropriate remedy in such a case is an appeal to the federal Court…’[38]
(emphasis added)
[38] Ibid, [43]-[44].
Consideration
The respondent and other party in this proceeding rely upon the proposition set out in JTBJ at [43]-[44], extracted above, as the basis on which it contends that the Wilsons’ application for reinstatement cannot be considered and that the only remedy available to them is an appeal to the Federal Court.
If the principle identified in JTBJ identified above is applied, the Wilsons’ remedies would be confined to an appeal to the Federal Court under s 173 of the ART Act. DP Britten Jones conducted a hearing to determine what the Wilsons’ interest in the decision was, and determined that their interests were not sufficiently affected by it to bring an application to the Tribunal. The process is described in the decision in the following terms:
The parties were directed to provide written submissions and any evidence to be relied upon for the purpose of determining the issue of standing. Oral submissions were heard on 5 May 2025. For the reasons that follow, I have determined that the Applicants do not have standing and that their applications for revie should be dismissed.
The Minister and APAM contend that when JTBJ is applied to these circumstances and application for reinstatement cannot be entertained because JTBJ stands for the proposition that reinstatement is not available where a dismissal is preceded by an opportunity for an applicant to present their case on the question which led to dismissal.
I accept that if JTBJ is followed on this point, then the appropriate course is to dismiss the Wilsons’ application on the basis that reinstatement is not available in their circumstances. However, notwithstanding the eminence of the decision maker in JTBJ, I have reservations about rigidly applying a principle that if an applicant has been heard on a question going to jurisdiction or power prior to dismissal, that the power to reinstate is not available. My reservations have three sources.
The first is textual. The power conferred in s 102 has no such limitation on its face. Section 102 applies if the Tribunal dismisses an application. If the Tribunal considers that the application was ‘dismissed in error’ it has a discretion to reinstate. There is no limitation on that power expressed by reference to the process adopted prior to the dismissal.
The second source of reservation is derived from the history of the provisions. When Goldie was decided, reinstatement applications could only be brought when the application was dismissed for one of the procedural defaults identified in s 42A and not for reasons going to the substance of the application, including that it was vexatious.. In my view, the comment in Goldie that s 42A(10) only covers default dismissals under s 42A, not dismissals after a hearing on the merits should be read as descriptive of the statutory regime that was then in place rather than as identifying an additional precondition to the exercise of the power.
In expanding the reinstatement power in the ART Act to cover dismissals made on the basis that the application is frivolous or vexatious or has no reasonable prospects of success, it seems clear that Parliament’s intention was to expand the kinds of dismissals that can potentially be reinstated and include dismissals where some consideration of the merits of an application has been undertaken by the Tribunal who dismissed it.
The third source of reservation is that the approach to Goldie taken in JTBJ is not consistent with the approach taken by the AAT to Goldie when the statutory power to reinstate was more restricted. In Bates and Comcare, a decision referred to with approval in the EM,[39] the applicant had been heard prior to dismissal of the application. The Tribunal did not treat that fact as depriving the applicant of a right to seek reinstatement.
[39] At [683].
In these circumstances I am unwilling to adopt a hard and fast rule that anyone who has been heard on a dismissal issue prior to a decision to dismiss is barred from making an application under s 105(5).
Further, the concept ‘dismissed in error’ must be treated as broad.
The majority in Goldie described the power in s 42A(10) in the following terms:
It 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 or any other error.
The reference to ‘default jurisdiction’ should be understood as the jurisdiction to dismiss conferred by s 42A. Now that any kind of dismissal can be the subject of a reinstatement application ‘any sort of error in dismissing an application summarily’ can trigger the discretion conferred in s 102.
In this context, it is important to note that the concept of summary dismissal does not always involve short hearings in the absence of a party. In the Federal Court, a summary dismissal hearing on the question of whether an application has reasonable prospects of success, or its corollary, the respondent has no reasonable prospects of successfully defending the proceeding, can involve the investment of significant time on the part of Court and the parties.[40] The fact of a hearing on the question of whether summary judgment should be given does not alter the fact that the application is for summary judgment, and the resulting decision remains in many circumstances only an interlocutory decision of the Court even though as a practical matter it may finally determine the positions of the parties.[41]
[40] See for example Wang v Anying Group Pty Ltd [2009] FCA 1500.
[41] See for example Kowalski v MMAL Staff Superannuation Fund Pty Ltd and Another [2009] FCAFC 117.
In those circumstances, I am not persuaded that merely because the Wilsons were heard on the question of their interest prior to the order to dismiss being made, they are disentitled from making an application under s 102(5). As the Wilsons have applied within time for reinstatement following dismissal under s 101, I am obliged to consider whether the application was dismissed in error and whether, as a matter of discretion, the application should be reinstated.
I acknowledge that this is a departure from the approach taken recently by the Tribunal in JTBJ and given that the decision is a decision of the President, it should not be lightly departed from. I have carefully considered to the importance of consistency in Tribunal decision making and I am conscious that variation in approaches to these questions is undesirable. However, I am satisfied that at least in the circumstances which I am confronted with, the approach urged by the Minister and APAM would involve an impermissible reading down of s 102(6).
I accept as accurate APAM’s submission that the reinstatement provision is less detailed and prescriptive than the other provisions of the ART Act that provide for review, alteration or appeal from, a decision of the Tribunal. If the provision were being considered for the first time these contextual matters would provide solid bases for reading down the concept of ‘dismissed in error’. But that is not the context in which s 102 must be construed. The concept ‘dismissed in error’ has been approached expansively by the Federal Court in Goldie and the AAT in Bates adopted that approach.[42] Both decisions are specifically cited in the EM to the ART Act. The Parliament specifically expanded the range of dismissal decisions subject to the reinstatement power. In these circumstances, the contextual matters identified by APAM provide too slender a basis for ignoring the expansionary approach to the provisions that the Parliament has taken in formulating the ART Act.
[42] Where the Parliament repeats words which have been judicially construed, it is taken to have intended the words to bear the meaning already judicially attributed to them – Fortress Credit Corporation (Australia) II Pty Limited v Fletcher [2015] HCA 10 at [15]
Bhardwaj Principle
In relation to the submission that the Bhardwaj principle applies, it is at this point unnecessary for me to finally determine the matter. A hearing needs to be conducted to determine whether the application was dismissed in error which may establish an error so obvious that it is appropriate to treat the Dismissal Decision as a nullity consistently with Bhardwaj. On what is presently known that seems an unlikely result but for the time being the safest course is not to foreclose the possibility.
Decision
The Tribunal is satisfied that, subject to the requirements of s 102(6) being met, the Tribunal has a discretion to reinstate the application. Accordingly, the application for reinstatement will be listed for a hearing on a date convenient to the parties in the week of 22 September 2025. The parties are directed to provide a timetable (either agreed or separately) for the filing and serving of submissions by 3 September 2025.
Date of Hearing 20 August 2025
Applicants’ representative Mr Eric Wilson
Minister’s representative Mr Ingmar Duldig of Clayton Utz
Counsel for APAM Ms Julia Watson
Solicitor for APAM King & Wood Mallesons
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