Andelman v Administrative Appeals Tribunal

Facts 6 The relevant facts may be briefly stated. The applicant wrote to the Tribunal on 8 October 2010, expressing his concerns about the constitution of the Tribunal which was due to hear his application at a hearing scheduled to commence on 29 October 2010. According to the applicant, there was an earlier decision of the Tribunal involving the applicant's entitlements which was made by the Tribunal constituted by the same Senior Member who was to constitute the Tribunal for the purpose of the 29 October 2010 hearing. The applicant was of the view that the earlier decision was wrong and in his letter to the Tribunal the applicant expressed his concerns about the Senior Member's alleged lack of knowledge. The letter concluded with a request that another member of the Tribunal be assigned to hear his case. 7 The primary judge reproduced in her reasons for judgment a lengthy portion of the transcript of the hearing of 29 October 2010 before the Senior Member. During the course of that hearing the applicant complained about the Senior Member's previous decision and indicated that he felt sick and uncomfortable appearing before him. He said that he could not participate in the case because: I feel very sick when I see you. And I am terribly sick and I cannot see your face and I cannot talk with you. This when I start now jumping and I feel very bad and I am sorry, I cannot participate in this case. I am sorry I must leave, because if I stay another 10 minutes ambulance must pick me up. I am sorry. 8 Shortly after this exchange the applicant then left the hearing room. The Tribunal subsequently made an order dismissing the applicant's application for review under s 42A(5) of the Act.

The grounds of appeal 9 The applicant's appeal against the Tribunal's decision was, of course, confined to questions of law: see s 44(1) of the Act. By an amended notice of appeal filed by the applicant the following questions of law were raised for consideration by the primary judge: 1. Whether the Tribunal had power to dismiss the appellant's application for review pursuant to s 42A(5) of the Administrative Appeals Tribunal Act 1975 (AAT Act) whilst the appellant's request for reconstitution of the Tribunal remained undetermined. 2. Whether the Tribunal had power under s 42A(5) to dismiss the application at all in the circumstances. 3. Whether the Tribunal failed to afford the appellant procedural fairness by dismissing his application for review without first hearing submissions and determining the application for reconstitution of the Tribunal. 10 The primary judge concluded that the first of these questions did not arise, that the second should be answered "yes" and that the third should be answered "no".

Relevant Statutory Provision 11 The first and second questions of law considered by the primary judge concern the operation of s 21A and s 42A(5) of the Act. Section 21A of the Act provides: (1) At any time during the hearing of a proceeding before the Tribunal (other than a proceeding in which the Tribunal is constituted by a presidential member who is a Judge and 2 other members), a party to the proceeding may apply to the Tribunal as constituted for the purposes of the proceeding requesting that the Tribunal be reconstituted for the purposes of the proceeding. (2) Upon the making of an application under subsection (1), the Tribunal as constituted for the purposes of the proceeding shall, after receiving the submissions made in support of the application and any submissions made in opposition to the application, notify the President of the making of the application and give him or her particulars of those submissions. (3) The President may, after taking the submissions into account, if he or she considers that the matters to which the proceeding relates are of such public importance as to justify him or her in so doing, give a direction that the Tribunal as constituted for the purposes of the proceeding be reconstituted by: (a) adding one or more members; or (b) removing one or more members; or (c) substituting one or more other members; (or any combination of these). Section 42A(5) of the Act relevantly provides: If an applicant for a review of a decision fails within a reasonable time: (a) to proceed with the application; or (b) to comply with a direction by the Tribunal in relation to the application; the Tribunal may dismiss the application without proceeding to review the decision.

The Primary Judge's DECISION 12 The primary judge found that neither the applicant's written nor his oral requests that another member of the Tribunal hear his case purported to be, or was, an application under s 21A(1) of the Act. Her Honour reviewed various authorities concerned with s 21A and concluded that the applicant's letter of 8 October 2010 was not an application for the purposes of that section. Her Honour said at [30]: … Ordinarily, an application that a decision-maker disqualify himself or herself on the ground of bias (apprehended or actual) must be made in the first instance by the decision-maker in question. Section 21A is not a substitute for the ordinary common law position. The section has a limited operation. The touchstone of it[s] operation is that the matters to which the proceeding relates be matters which the President might consider of such public importance as to justify the giving of a direction for reconstitution of the Tribunal. Accordingly, if a party requests reconstitution of the Tribunal merely on the ground of bias (actual or apprehended) then, in the ordinary course, the Tribunal would be entitled to treat that application as one based on the common law principles by which the Tribunal is bound and not as an application under s 21A of the AAT Act. Nothing in such an application, in the ordinary course, would engage the provisions of s 21A. This conclusion is consistent with the recent decision of Downes J in Kowalski and Repatriation Commission [2011] AATA 197. 13 Her Honour found that in those circumstances the Tribunal was not required to notify the President of the making of an application in accordance with s 21A(2). Hence, her Honour found that the Tribunal's obligations under s 21A of the Act were not enlivened and it followed that the first of the questions contained in the amended notice of appeal did not arise. 14 While the first of the questions raised by the amended notice of appeal does not explicitly refer to s 21A, it is clear that the argument advanced to her Honour assumed that the request with which that paragraph of the amended notice of appeal is concerned was a request made pursuant to s 21A of the Act. 15 Her Honour went on to state that she was satisfied that if, contrary to her findings, s 21A(2) was engaged, the Tribunal still had power to dismiss in accordance with s 42A(5) of the Act and that it was entitled to exercise such power in the circumstances in which it found itself at the 29 October 2010 hearing. 16 The second and third questions with which the primary judge was concerned were fully considered by her Honour. After reviewing various authorities concerned with the matter of procedural fairness in the context of a hearing at which a party is self-represented (as the applicant was at the hearing before the Tribunal) the primary judge concluded that she was not satisfied that the requirements of procedural fairness precluded the Tribunal from exercising this power in all of the circumstances which confronted it on 29 October 2010. Her Honour added (at para [37]): In reaching this conclusion I have given full weight to Mr Andelman's lack of legal representation, age (he is in receipt of an old age pension), difficulties with the English language (he speaks and understands some English but it is clearly not his first language), and emotional state (he appeared from the transcript to have been in emotional distress at the Tribunal hearing and exhibited similar distress in the course of the appeal before this Court). All of these factors indicate that Mr Andelman needed substantial help from the Tribunal in order to understand its procedures and to enable him to obtain a fair hearing. The conclusion which I have drawn is that nothing the Tribunal did operated to deprive Mr Andelman of the help he required. To the contrary, by his own conduct, Mr Andelman disabled the Tribunal from providing him with any explanation of its procedures or with any assistance so as to ensure a fair hearing of his application for review on its merits.

Consideration 17 The applicant made no real attempt to point to any error on the part of the primary judge and his proposed notice of appeal does not do so either. Nevertheless, for the purpose of considering the merits of the application for an extension of time, I have looked at the primary judge's reasons for decision more broadly. Mr Markus, who appeared for the Secretary (and who also appeared for her below), approached the present application and the primary judge's reasons for decision in a similar spirit. 18 The proposition that s 21A is directed to circumstances where a party applies to have the Tribunal reconstituted on the basis that the matters to which it relates involve an element of public importance is clear from s 21A as a whole including, in particular, sub-section (3) which provides, in effect, that the President may only make a direction (or combination of directions) pursuant to that sub-section if he or she is so satisfied. Neither the applicant's letter nor his oral submission to the Tribunal suggested that any of the matters to which the proceeding before the Tribunal related were of public importance. Accordingly, I do not think that any challenge to her Honour's answer to the first of the questions raised by the amended notice of appeal has any prospect of success. 19 As to the primary judge's consideration of the second and third questions, her Honour found that the applicant disabled the Tribunal from providing him with any explanation of its procedures or with any assistance so as to ensure a fair hearing of his application for review on its merits. The applicant has not challenged that finding before me. In any event, it is a finding that was clearly open to the primary judge and one which was in my view fully justified having regard to the transcript of what occurred at the 29 October 2010 hearing. In essence, the applicant walked out of the hearing of 29 October 2010 before the Tribunal had any real opportunity to gain a proper appreciation of the application being made or the strength of the reasons behind it or for the Tribunal to provide assistance to the applicant in allowing him to understand the procedures that ought to be followed with a view to ensuring that he obtained a fair hearing. Any challenge to her Honour's findings to this effect would have no prospect of success. By walking out as he did, the applicant failed to proceed with his application within a reasonable time and the Tribunal's power to dismiss the application without reviewing the decision was thereby enlivened. The Tribunal was entitled to dismiss the application pursuant to s 42A(5) of the Act without reviewing the decision.

Conclusion 20 For the above reasons I am not persuaded that an order extending time so as to enable the applicant to file an appeal out of time is warranted. I therefore propose to dismiss the application with costs. There will be orders accordingly. I certify that the preceding twenty (20) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Nicholas.