Zablotsky and Secretary, Department of Social Services (Social services second review)

This matter concerned an application by the Secretary, Department of Social Services, to reinstate a disability support pension debt review proceeding that had been withdrawn by the applicant, Mr Zablotsky. The Administrative Appeals Tribunal (AAT) was required to determine whether the Secretary was a "party to the proceeding" for the purposes of section 42A(8) of the *Administrative Appeals Tribunal Act 1975* (Cth), which permits a party other than the applicant to apply for reinstatement of a withdrawn application.

The central legal issue was whether the Secretary, as the respondent agency, qualified as a "party to the proceeding" under section 42A(8) of the Act, thereby having the standing to apply for the reinstatement of proceedings that the applicant had voluntarily withdrawn. The Tribunal also considered the principles governing the exercise of its discretion to reinstate such proceedings, including the explanation for any delay, whether a party had rested on their rights, any prejudice caused to the other party, and the merits of the substantial application, all within the overarching consideration of fairness.

The Tribunal reasoned that the *Administrative Appeals Tribunal Act 1975* did not explicitly exclude the Commonwealth from applying for reinstatement. Drawing on the principles established in *Hunter Valley Developments Pty Ltd v Cohen*, the Tribunal considered the fairness of the process and the potential for prejudice. It noted that reinstating the application provided a more streamlined and less elaborate mechanism for review compared to an application for an extension of time under section 29(7) of the Act, aligning with the Tribunal's objective to provide a fair, just, economical, informal, and quick review mechanism. The Tribunal acknowledged that while Mr Zablotsky might not perceive the decision as fair to him, it was required to balance conflicting interests.

The Tribunal granted the Secretary's application for reinstatement. It ordered that the application be restored to its pre-dismissal state, with proceedings to resume from the point of adjournment on 8 July 2019, allowing parties to make further submissions before concluding statements. The Tribunal also noted its power under section 42B of the Act to dismiss applications that are frivolous, vexatious, or an abuse of process, a power to be used sparingly.