Michael John Dobson v Department of Social Security [1997] FCA 1289 (4 November 1997)

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NG 746 of 1997

BETWEEN:	Michael John DOBSON Applicant
AND:	DEPARTMENT OF SOCIAL SECURITY Respondent

JUDGE(S):	BRANSON J
DATE:	4 NOVEMBER 1997
PLACE:	SYDNEY

REASONS FOR JUDGMENT (EX TEMPORE)

HER HONOUR: The notice of appeal in this matter relates to two matters which were listed together for hearing before the Administrative Appeals Tribunal ("the AAT"), constituted by Senior Member Allen, on 14 August 1997. On that day, the appellant, Mr Dobson, did not appear before the AAT. The decision of Senior Member Allen was as follows:

"There being no appearance by or on behalf of the Applicant, these matters are dismissed pursuant to sub-section 42A(2) of the Administrative Appeals Tribunal Act 1975 ."

Sub-section 42A(2) of the Administrative Appeals Tribunal Act 1975 ("the Act") reads as follows:

"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 directions hearing, a conference mentioned in section 34, or a mediation under section 34A, held in relation to the application, or at the hearing of the proceeding, the Tribunal may,

(a) if the person who failed to appear is the applicant - dismiss the application without proceeding to review the decision; or

(b) in any other case - direct that the person who failed to appear shall cease to be a party to the proceeding."

The background to Mr Dobson's failure to attend before Senior Member Allen on 14 August 1997 is as follows. Proceeding N97/187 in the AAT arose out of Mr Dobson's dissatisfaction with the response of the Department of Social Security to a request made by him for copies of documents under the Freedom of Information Act 1982 (Cth). Proceeding N97/751 arose from a request by Mr Dobson for reasons for the Minister for Social Security's alleged failure to respond to an earlier letter.

No preliminary conference was held in either matter and each of the matters was allocated a hearing date of 14 August 1997.

On 16 June 1997, Mr Dobson went to see Mr Kenny, an advocate in the Administrative Law Section of the Department of Social Security in Sydney. He advised Mr Kenny that he would apply to issue summonses to the two officers of the Department of Social Security who had made the primary and review decisions on Mr Dobson's original applications, and possibly other persons. Mr Dobson told Mr Kenny that he did not require the personal attendance of the officers of the Department of Social Security, provided that they had access to the relevant documents. Mr Kenny gave evidence by affidavit that he agreed to accept service of the summonses and, following receipt of the summonses, to arrange for the officers concerned to appear before the AAT by telephone.

Mr Dobson then sought the issue of summonses to three persons to give evidence at the hearing of 14 August 1997. He completed the necessary forms. The three persons to whom he sought to have summonses issued were the two persons whose decisions were the subject of his application to the AAT for review and the Minister for Social Security.

On 14 July 1997, Senior Member Allen issued instructions to the Registry of the Administrative Appeals Tribunal in the following terms:

"I do not intend to issue these summonses as I cannot see their relevance in the matters I am required to decide."

On 15 July 1997, Mr Dobson was informed that Senior Member Allen had refused to issue the summonses sought by him. By letter dated 16 July 1997 addressed to Senior Member Allen, Mr Dobson protested about the refusal and indicated that he would be unable to present his case. He asked in somewhat extravagant terms for the decision to be reversed. He sought a response from Senior Member Allen.

Mr Dobson attended at the AAT front counter on 18 July 1997 and 24 July 1997 but received no response from, or on behalf of, Senior Member Allen. It does not appear from the file of the AAT that Mr Dobson has ever received a response from the AAT or Senior Member Allen to his request that the decision refusing to issue the summonses be reconsidered. On 11 August 1997, Mr Dobson wrote to the Acting District Registrar of the AAT asking that a new member be appointed to conduct the reviews sought by him. It does not appear from the file of the AAT that Mr Dobson ever received a reply to that letter.

On the same day, Mr Dobson wrote to Senior Member Allen, again in extravagant and discourteous terms, advising that he had sought to have a new member appointed to hear his matters and that he would not be attending before Senior Member Allen on 14 August 1997. A file note of the AAT reveals that, on 13 August 1997, a Ms Meredith Hooker, the associate to Senior Member Allen, contacted Mr Kenny by telephone and asked him if he could make available to give evidence by telephone the two officers of the Department of Social Security to whom Mr Dobson had sought to have summonses issued. Mr Kenny indicated that he could have one such officer available but not the other as she was overseas.

The AAT file does not indicate that Mr Dobson was advised of this contact by the AAT with Mr Kenny or of Mr Kenny's undertaking to have one of the officers available to give evidence. Mr Dobson's applications for review were listed for hearing before Senior Member Allen on 14 August 1997. Half an hour after the time at which the matters were listed for hearing, Senior Member Allen came on to the bench. He indicated that he was satisfied from correspondence received from Mr Dobson that Mr Dobson was aware of the notified hearing date and time. He then dismissed the applications giving the reasons to which I have already referred.

An appeal to this Court from a decision of the AAT is only available on a matter of law. Mr Dobson asserts, in effect, that he has been denied natural justice in respect of these two matters in that he has not been allowed to have them heard on the merits.

The power given to the AAT to dismiss a matter upon the applicant failing to attend is a discretionary power. It is a power to be exercised judicially. Whilst it may appropriately be called in aid in the face of contumacious refusal to attend at a time and place at which a hearing has been listed, its normal operation will be in circumstances in which it is fair for the AAT to conclude that the applicant does not wish to proceed with his or her application before the AAT. It is to be remembered that the AAT has the power to conduct a hearing in the absence of an applicant.

In this case, nothing indicates that Senior Member Allen gave consideration to the question of whether Mr Dobson's failure to attend before him may not have resulted from a misunderstanding by Mr Dobson about the necessity for him to attend before the AAT. He had not received a response either to his request that his application for summonses to issue be reconsidered, or his application for the Tribunal to be reconstituted by the appointment of a member other than Senior Member Allen to hear his cases. Mr Dobson advised me, and I accept, that it was his belief that, in the circumstances, the hearings listed for 14 August 1997 would not proceed.

Nothing before me indicates that the AAT considered the question of whether the non-attendance of Mr Dobson was properly to be understood as indicating that he did not wish to pursue the review applications which he had made. In fact, the correspondence which Mr Dobson had written to the AAT made it plain that he did wish to pursue those matters of review. In my view, the evidence establishes here a failure by the AAT to take into account relevant material, namely the material before it which indicated that Mr Dobson did wish to pursue his applications, and that he might not have been aware, in the events which had happened, of the need for him to attend before the AAT on 14 August 1997.

It might well be said that Mr Dobson was, in this case, the author of his own misfortune in that his correspondence with Senior Member Allen and the AAT was conducted in extravagant and discourteous language. It was important, however, for the AAT to take into account the fact that Mr Dobson is not a legal practitioner and he does not, apparently, have a full understanding of the inner workings of tribunals or indeed of government departments. It was appropriate for the AAT - notwithstanding Mr Dobson's discourteous correspondence - carefully to ensure that Mr Dobson had not by his own conduct created a wrong impression, and to be satisfied that Mr Dobson was able to avail himself of the legal rights that the Act gives to him.

In the circumstances, this appeal is allowed. The orders of the Court are that Mr Dobson's applications be remitted to the AAT to be constituted by a member other than either Senior Member Allen or Deputy President Blow.

I certify that this and the preceding

four (4) pages are a true copy

of the Reasons for Judgment herein

of the Honourable Justice Branson.

Associate:

Dated:

The Applicant appeared in person.

Counsel for the Respondent: Ms K. Bean

Solicitor for the Respondent: Australian Government Solicitor

Date of Hearing: 4 November 1997

Date of Judgment: 4 November 1997