Croker and Secretary, Department of Education, Employment and Workplace Relations [2010] AATA 25 (15 January 2010)

Last Updated: 4 February 2010

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2010] AATA 25

ADMINISTRATIVE APPEALS TRIBUNAL )

) No 2009/0948; 2009/3247; 2009/4501

GENERAL ADMINISTRATIVE DIVISION		)
	Re		Clayton Croker

Applicant

And

Secretary, Department of Education, Employment and Workplace Relations

Respondent

DECISION

Tribunal

Senior Member Jill Toohey

Date 15 January 2010

Place Sydney

Decision

The applications are dismissed under s 42A(5)(b) of the Administrative Appeals Tribunal Act 1975.

..................[sgd]............................
Senior Member

CATCHWORDS

HIGHER EDUCATION FUNDING - application for FEE-HELP balance to be re-credited - reasonable opportunity to present his or her case - failure to comply with directions – applications dismissed.

Administrative Appeals Tribunal Act 1975

Higher Education Support Act 2003

REASONS FOR DECISION

15 January 2010	Senior Member Jill Toohey
Background

1. On 3 March, 13 July and 9 September 2009, Clayton Croker lodged applications with the Tribunal for review of various decisions by the Chief Executive Officer of Open Universities Australia Pty Ltd.
2. For the following reasons, I have decided that Mr Croker’s applications for review should be dismissed under s 42A(5)(b) of the Administrative Appeals Tribunal Act 1975 (the AAT Act) because of his failure to comply within a reasonable time with the Tribunal’s directions.

FEE-HELP

3. FEE-HELP is a scheme established by the Higher Education Support Act 2003 by which eligible students may borrow up to a certain amount to pay part or all of their tuition fees. The scheme is administered by the Department of Education, Employment and Workplace Relations and other agencies including Open Universities Australia (OUA). The Australian Government pays fees direct to the institution and recovers the loan through the taxation system once the students earns above a certain income.
4. Depending on the course, a student may borrow up to around $100,000 to pay for fees. The FEE-HELP balance is the amount a student can borrow at any time, taking into account amounts already borrowed.
5. A student who discontinues a unit for any reason must withdraw from the unit by a certain date (the “census date”) for FEE-HELP purposes. Failure to do so incurs a debt and reduces the FEE-HELP balance as if the course had been undertaken.
6. In special circumstances, a debt may be removed and the FEE-HELP balance re-credited. An application to have a FEE-HELP balance re-credited must be made within 12 months of the period during which the person undertook, or was to undertake, the units. Where an application is made after 12 months, the student must establish that it was not possible for him or her to apply earlier.

Mr Croker’s applications for review

7. Mr Corker enrolled in nine units through OUA in 2005, 2006 and 2007. He did not complete the requirements of eight units and was recorded as having failed them. He did not withdraw from any of the units by the census date. As a result, he incurred a debt and his FEE-HELP balance was reduced.
8. Mr Croker applied to the Chief Executive Officer of Open Universities Australia Pty Ltd (the CEO) to have the balance of his FEE-HELP re-credited on the ground of his ill-health. His applications in respect of two units were lodged within the 12 month period, meaning he was required to show special circumstances in order to have his FEE-HELP balance re-credited. His applications in respect of the other six units were lodged after the 12 month period had expired, meaning he had to show that it was not possible for him to lodge his applications within that period.
9. Mr Croker’s applications to the CEO were made on grounds relating to his health, in particular that he had to undergo surgery, from which he needed time to recover, as well as continuing medical appointments and related treatment. Mr Croker refused, on the ground of privacy, to provide the CEO with medical evidence in support of his claims.
10. The CEO rejected Mr Croker’s applications on 18 December 2008, 29 April and 13 July 2009. Mr Croker sought review of those decisions on 3 March, 13 July and 9 September 2009. On each occasion his application was lodged outside the 28-day period required by s 29 of the AAT Act. On each occasion the Tribunal granted Mr Croker an extension of time.

Directions hearings

11. On 19 November 2009, the parties attended a directions hearing at which I directed them to file and serve statements and supporting evidence. Mr Croker was directed to file his documents by 2 December 2009, the respondent by 15 December 2009. The applications were listed for hearing on 22 December 2009.
12. I discussed with Mr Croker at the directions hearing the desirability of determining his applications without unnecessary delay. He was confident that he could comply with the directions even though the time for doing so was relatively short. In particular, he stated that he had in his possession all of the documents on which he would rely, and he would rely on his own evidence and would not be calling witnesses.
13. On 25 November 2009 the Tribunal received a brief email from Mr Croker stating that, “due to ill health” it would not be possible to comply with the Tribunal’s directions and requesting “that a new timetable be drafted with the respondent’s consent”.
14. On 26 November 2009 the Tribunal replied by email, advising Mr Croker that his request would not be considered unless he provided a medical certificate by close of business the following day stating that he was suffering from a medical condition that made him unable to comply with the direction and when he would be fit enough to do so.
15. On 27 November 2009 the Tribunal received a letter from a general practitioner stating only that Mr Croker was unfit for normal work from Monday 23 November 20 to Friday 27 November 2009 due to acute gastroenteritis.
16. After seeking the respondent’s view, the Tribunal decided that, although the medical certificate did not comply with what had been requested, it would nevertheless grant Mr Croker an extension to 7 December 2009 to file his documents. The Tribunal advised Mr Croker of the extension by email on 3 December 2009. The Tribunal also advised Mr Croker that it had granted the respondent an extension to 18 December 2009 to file his documents and that the hearing remained listed for 22 December 2009.
17. By email on 5 December 2009, Mr Croker advised that the time period was “not suitable for the amount of ground to be covered” and asked if a “compliance hearing” could be conducted.
18. I note at this point that Mr Croker has lodged a number of applications to the Tribunal over the years and appears quite familiar with its procedures, including the regular directions hearings commonly held in matters where a party fails to comply with directions. His reference to a “compliance hearing” appears to be to these regular directions hearings.
19. The Tribunal, differently constituted, held a directions hearing on 17 December 2009 in relation to Mr Croker’s failure to comply with its earlier directions. Mr Croker attended. I do not have a transcript available but it appears that he may have indicated he could not, or would not, comply with the earlier directions. In any event, the Tribunal ordered that the respondent file and serve its documents by 18 December 2009 and that the hearing was to proceed on 22 December 2009.
20. The respondent filed and served his documents on 18 December 2009.
21. On 21 December 2009 Mr Croker attended the Tribunal in relation to another matter. He gave a member of staff a handwritten note, addressed to the Senior Member who made the orders on 17 December 2009, stating:

Due to being ill prepared for the hearing of 22/12/1009 I will not be attending as I expressed to you on the 17/12/2009 that the day would be a waste of time.

The hearing on 22 December 2009

22. Mr Croker did not attend the hearing on 22 December 2009. The respondent appeared and sought an order that his applications be dismissed under s 42A(2) of the AAT Act for his failure to appear.
23. For the following reasons I dismiss the applications under s 42A(5)(b) of the Act for Mr Croker’s failure to comply with the Tribunal’s directions.

Relevant legislation

24. If an applicant fails to appear at a hearing, the Tribunal may dismiss his or her application without proceeding to review the application: s 42A(2)(a). Before doing so, the Tribunal must be satisfied that the applicant has had appropriate notice of the hearing: s 42A(7). No issue of notice arises in this case.
25. If an applicant fails within a reasonable time to proceed with an application or to comply with a direction in relation to the application, the Tribunal may dismiss his or her application without proceeding to review the application: s 42A(5).
26. Where an application is dismissed under s 42A(2)(a) for failure to appear, the Tribunal may, on the application of the person who made the application, reinstate the application if it considers it appropriate to do so: s 42A(8). The power to reinstate does not apply where an application is dismissed under s 42A(5).

Reasons for dismissing Mr Croker’s applications

27. The Tribunal must pursue the objective of providing a mechanism of review that is fair, just, economical, informal and quick: s 2A of the Act. In doing so, it must afford parties procedural fairness. In particular, the Tribunal must ensure that every party to a proceeding is given a reasonable opportunity to present his or her case: s 39(1).
28. I am satisfied that Mr Croker has had adequate time in which to present his case. It is four years since he was enrolled in the units in respect of which he first sought to have his FEE-HELP balance re-credited and going on for three years since he enrolled the others. The applications raise identical issues and in each case he relies on his ill-health. There is nothing new in any of the applications. I am not satisfied that there is any good reason he could not have complied with the Tribunal’s directions to produce documents.
29. The medical certificate which Mr Croker submitted on 27 November 2009 does not assist him. I accept that it certified him unwell for that week but it does not explain why Mr Croker could not meet the extended deadline he was granted. Nor does his handwritten note of 21 December 2009 assist him. He has not provided any evidence in support of his claim that ill health prevented him from being properly prepared for the hearing. He appears to have decided in advance that the hearing would be a “waste of time”.
30. Mr Croker is familiar with the Tribunal’s processes. He can be under no misapprehension as to the possible consequences of failing to comply with directions. I do not think any purpose is served by leaving open to him a further opportunity under s 42A(8) to seek to have his applications reinstated.
31. On 19 November 2009 Mr Croker was directed by the Tribunal to file and serve statements and supporting evidence by the 2 December 2009. He failed to comply with these directions despite being granted an extension to 7 December 2009. In the circumstances, I think it appropriate to dismiss Mr Croker’s applications under s 42A(5)(b) for his failure to comply with these directions.

Order

32. The applications are dismissed under s 42A(5)(b) of the Administrative Appeals Tribunal Act 1975.

I certify that the 53 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member Jill Toohey.

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

Diana Weston, Associate

Date of hearing: 22 December 2009

Date of decision: 15 January 2009

Representative for the Applicant: Self-represented

Representative for the Respondent: Pip Mitchell, Solicitor (Clayton Utz)