Hayes and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2010] AATA 21 (15 January 2010)

Last Updated: 20 January 2010

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2010] AATA 21

ADMINISTRATIVE APPEALS TRIBUNAL )

) No 2009/2472

GENERAL ADMINISTRATIVE DIVISION		)
	Re		JANE HAYES

Applicant

And

SECRETARY, DEPARTMENT OF FAMILIES, HOUSING, COMMUNITY SERVICES AND INDIGENOUS AFFAIRS

Respondent

DECISION

Tribunal

Mr S E Frost, Senior Member

Date 15 January 2010

Place Sydney

Decision

Pursuant to s 42A(9) of the Administrative Appeals Tribunal Act 1975 the Tribunal reinstates this application.

..................[sgd]..........................
S E Frost
Senior Member

CATCHWORDS

PRACTICE AND PROCEDURE – reinstatement application – whether application within 28 days of dismissal – whether appropriate to reinstate – considerations – reasons for non-appearance – prejudice – merits of application – application reinstated

Administrative Appeals Tribunal Act 1975 s 42A

REASONS FOR DECISION

15 January 2010

Mr S E Frost, Senior Member

INTRODUCTION

1. On 3 June 2009 the Tribunal received Ms Hayes’ application for review of a decision of the Social Security Appeals Tribunal (SSAT). The SSAT had decided that a family tax benefit debt raised against Ms Hayes, amounting to $4,340.20 in respect of the 2005/2006 tax year, should be waived, but that debts of $4,566.15 for the 2006/2007 tax year and $1,035.70 for the period 1 July 2007 to 9 October 2007 should be recovered.
2. The application was listed for a telephone conference to take place on 6 August 2009. The Conference Registrar decided not to proceed with that telephone conference because of his view that Ms Hayes would not be ready to participate, having only recently been informed that the Legal Aid Commission was no longer representing her. Instead, a telephone conference was scheduled for 4 September 2009. A listing notice, dated 7 August 2009, was sent to Ms Hayes, notifying her of this new appointment.
3. Attempts to contact Ms Hayes on 4 September 2009 (on both of the telephone numbers she had provided to the Tribunal) were unsuccessful. A further notice was sent to her on 7 September 2009, indicating that a telephone conference would be conducted on 20 October 2009, and warning her that if she failed once more to attend, her application might be dismissed.
4. Once again on 20 October 2009, the Conference Registrar could not make contact with Ms Hayes. As a consequence of Ms Hayes’ failure on two separate occasions to participate in a telephone conference, Deputy President Handley dismissed her application under section 42A(2) of the Administrative Appeals Tribunal Act 1975 (AAT Act). The dismissal order was dated 28 October 2009. The order and a covering letter, also dated 28 October 2009, were posted to Ms Hayes to notify her of the dismissal.
5. On 4 December 2009 Ms Hayes sent a facsimile message to the Tribunal asking for her application to be reinstated. The Secretary opposes reinstatement.
6. On 11 January 2010 I conducted a hearing by telephone to determine whether Ms Hayes’ application should be reinstated.

THE ISSUES

7. The first issue is whether, for the purposes of section 42A(8) of the AAT Act, Ms Hayes applied for reinstatement of the application “within 28 days after receiving notification that the application [had] been dismissed”. If she did, then the second issue is whether, for the purposes of section 42A(9) of the Act, I consider it “appropriate” to reinstate the application. If her application for reinstatement was not made within the 28-day period allowed by section 42A(8), then I will need to determine whether it appears, for the purposes of section 42A(10) of the AAT Act, that her application was dismissed in error, and if it was, whether it should be reinstated under that provision.

ISSUE 1 – THE 28-DAY PERIOD IN S 42A(8)

8. When an application is dismissed under section 42A of the AAT Act, both parties to the application receive a copy of the order of dismissal, and a covering letter explaining that the application has been dismissed. In Ms Hayes’ case, the paperwork was posted to her. As far as notifying the Secretary (the other party to the review of the SSAT decision) is concerned, the practice in the Sydney registry of the Tribunal is not to post paperwork of this kind to the Centrelink Legal Services Branch (which generally represents the Secretary). Instead, the paperwork is collected from the registry (generally daily) by Centrelink officers and hand-delivered to the Legal Services Branch office.
9. Although the order for dismissal was dated 28 October 2009, neither the file copy of the order itself nor the file copy of the covering letter of the same date indicates the date on which the papers were posted to Ms Hayes or collected by Centrelink.
10. During the hearing, I asked Ms Hayes if she could tell from her papers the date on which she received the correspondence from the Tribunal. Unfortunately, she had not kept the envelope in which it was posted, and so she was not able to tell me when she received notification of the dismissal.
11. I also asked Mr Lozynsky (who represents the Secretary) if his copy of the correspondence had been stamped with a “Date Received” in his office. This might provide some guidance as to when the documents were posted to Ms Hayes (assuming, of course, that they were posted to her on the same day that they were collected by Centrelink). Mr Lozynsky said his copy of the documents bore a stamp dated 5 November 2009, but he added, by way of caution, that Centrelink officers do not necessarily collect documents from the Tribunal every day, suggesting that the documents might have been available for collection by Centrelink, and by inference might have been posted to Ms Hayes, one day earlier.
12. The internal file movement records of the Tribunal show that the file was transferred to the general registry area on 5 November 2009, from which I infer that the dispatch of the correspondence, and the placing of the documents in Centrelink’s pigeonhole for collection, occurred only on that day.
13. I am comfortably satisfied that the correspondence was posted on 5 November 2009 (a Thursday) to Ms Hayes’ address in Maitland. I find that she received notification of the dismissal no earlier than the following Monday (9 November 2009). Her application for reinstatement was received 25 days later, on 4 December 2009. That is within the 28-day time period allowed by section 42A(8) of the AAT Act. As a consequence, section 42A(9) of the AAT Act, and not section 42A(10), will dictate whether the application is to be reinstated.

ISSUE 2 – WHETHER IT IS “APPROPRIATE” TO REINSTATE MS HAYES’ APPLICATION

14. There are, in my view, only three factors that are relevant to this question in Ms Hayes’ case. They are:

(a) why she was not available to participate in the telephone conferences on 4 September 2009 and 20 October 2009 (for this may point to an effective abandonment of her application);
(b) whether there is any prejudice to the Secretary if the application is reinstated; and
(c) the merits of Ms Hayes’ case.

The reason for non-participation in the telephone conferences

15. Ms Hayes could not explain why she was not available to participate in the telephone conferences on 4 September 2009 and 20 October 2009. She said that she could only remember one conference being scheduled, not two. She thought it had been arranged for a Thursday (although 4 September 2009 was a Friday and 20 October 2009 was a Tuesday). She said she had been expecting the call but it did not come. She could not explain why she had not contacted the Tribunal to find out why the conference had not proceeded as she had expected.
16. Inaction such as this might indicate indifference towards the outcome of her application for review, but I am satisfied that Ms Hayes was being truthful when she said that she is, and always has been, keen to have this matter proceed. The reason for the lack of success in attempting to contact her on the dates set down for the telephone conferences must remain a mystery.

Prejudice to the Secretary

17. Mr Lozynsky suggested that there would be considerable prejudice to the Secretary if Ms Hayes’ application were to be reinstated. I note that the Secretary, as an agency of the Commonwealth, has significant resources at its disposal if the application is allowed to proceed. In any event, the slight delay since the date of dismissal does not have a significant impact on the Secretary’s ability to deal with her application.
18. Any prejudice to the Secretary is far outweighed by the prejudice to Ms Hayes if she is deprived of the opportunity to have the SSAT decision reviewed.

The merits of Ms Hayes’ application

19. I do not regard Ms Hayes’ case as without merit. If I did, then irrespective of the view I may have taken on other factors, I would in all likelihood refuse the application for reinstatement.
20. In the SSAT, Ms Hayes was partly successful in her claim. Her claim in this Tribunal will turn on the extent, if any, to which she is entitled to family tax benefit for the periods in question. It is not inevitable that that issue will be determined against her.

CONCLUSION

21. In the interests of fairness, and particularly in the absence of any real prejudice to the Secretary if Ms Hayes’ application is reinstated, Ms Hayes should be given the opportunity to put her case to this Tribunal.
22. Her application for review is reinstated.
    

I certify that the 22 preceding paragraphs are a true copy of the reasons for the decision herein of Mr S E Frost, Senior Member

Signed: ...............[sgd].................................................................

Associate

Date of Hearing 11 January 2010

Date of Decision 15 January 2010

Appearance for the Applicant Self-represented

Appearance for the Respondent Mr G Lozynsky, Centrelink Legal Services