(c) the Tribunal should not allow an extension of time for the lodging of a second application for review.

In view of the issues raised, the hearing of the application for extension of time was adjourned and the Tribunal was reconstituted so that the application could be heard in Sydney by the President.

1. When the hearing of the application for extension of time resumed the applicant was represented by Ms Katzmann of Counsel and the respondent by Ms Sharp of Counsel.

1. The AAT Act provides four ways in which the Tribunal can dispose of an application for review of a decision. These are:

(i) by exercising the powers and discretions of the person who made the decision and making a decision in writing affirming, varying or setting aside the decision under review in accordance with section 43 (a decision on the merits);

(ii) by making a decision in accordance with the terms of an agreement between the parties or their representatives (written, signed and lodged with the Tribunal), the terms of which would be within the powers of the Tribunal, in accordance with subsection 34(2) (a consent decision). A consent decision can only be made after a conference has been held under subsection 34(1);

(iii) by dismissing an application without proceeding to review the decision (or if the Tribunal has commenced to review the decision, without completing the review) where all the parties consent in accordance with subsection 42A(1) (a consent dismissal);

(iv) by dismissing an application without proceeding to review the decision if a party (not being the person who made the decision) does not appear at either a preliminary conference or at the hearing in accordance with paragraph 42A(2)(a) (a dismissal for non-appearance). An application cannot be dismissed for non-appearance if there are any parties to the proceeding other than the decision maker and the party who does not appear.

It may also be possible that an application can be withdrawn. However, as this is not expressly provided for in the AAT Act and it is not in issue here it will not be considered here.

1. Before the Tribunal can consider whether to grant this application for extension of time, it is necessary to decide if (1) the Tribunal can reinstate the original application for review, dismissed on 29 October 1991, and, if not, (2) does the Tribunal have jurisdiction to entertain a second application in respect of the decision of which the first application sought review.

CAN THE TRIBUNAL REINSTATE THE ORIGINAL APPLICATION?

1. There is a distinction between reinstating or resuscitating an application on the one hand and allowing a second application to be made on the other. In the former case, once an application has been dismissed there is nothing before the Tribunal on which it can act. In Bailey v Marinoff [1971] HCA 49; (1971) 125 CLR 529 the High Court considered the inherent power of the Court of Appeal of the New South Wales Supreme Court to deal with an appeal that has been dismissed by an order that has been entered and-perfected:

"Once an order disposing of a-proceeding has been perfected by being drawn up as the record of a court, that proceeding apart from any specific and relevant statutory provision is at an end in that court and is in its substance, in my opinion, beyond recall by that court. It would, in my opinion not promote the due administration of the law or the promotion of justice for a court to have a power to reinstate a proceeding of which it has finally disposed" [1971] HCA 49; (1971) 125 CLR 529 at 530, per Barwick CJ.

This case was applied by Deputy President Layton in Decision No4218 (reported as V56 at 88 ATC 415). She observed, rightly in the Tribunal's opinion, that

"If a court of superior jurisdiction does not have inherent jurisdiction to review orders or judgments which have been perfected, then I cannot see how this Tribunal could be imbued with such inherent jurisdiction" 88 ATC 415 at 418.

As there is no provision in the AAT Act providing for reinstatement it follows that once an application is dismissed the Tribunal has no power to deal with it. This is subject to one apparent exception, which in fact is not an exception at all: this is the limited situation discussed in Re Kretchmer and Repatriation Commission [1988] AATA 323; (1988) 10 AAR 98 where the order or direction purporting to dismiss an application is a nullity. A decision that is a nullity is one that is void ab initio and not merely voidable on appeal. As such it has no effect and the original application has not been dismissed.

APPLICATIONS FOR REVIEW OF DECISIONS IN RESPECT OF WHICH

AN EARLIER APPLICATION FOR REVIEW HAS BEEN DISMISSED?

1. The Tribunal is estopped from entertaining further applications for review of a decision where an earlier application for review of the same decision has been disposed of by a decision on the merits or a consent decision. The High Court in Administration of Papua New Guinea v Daera Guba [1973] HCA 59; (1973-1974) 130 CLR 353 discussed whether a decision of a Land Board appointed under the Land Ordinance 1911 (PNG) could raise a cause of action estoppel. On the estoppel point, the Court was unanimous tharthe decisions of the Board, as a body bound to act judicially although not bound to apply the rules of evidence, and with the power to decide a matter in a way binding on the parties, could raise an estoppel. In particular, Gibbs J said

"The doctrine of estoppel extends to the decision of any tribunal which has jurisdiction to decide finally a question arising between parties, even if it is not called a court, and its jurisdiction is derived from statute or from the submission of the parties, and it only has temporary authority to decide a matter ad hoc...

The Board had power under s 9 of the Land Ordinance 1911-1953 to determine finally and conclusively the case of disputed ownership of land that came before it. Under the section, the Board was appointed to "decide" the case, and to give a "decision", and these words, prima facie, and in the absence of any indication to the contrary, import that the Board was to make a binding determination" (at pages 453-454).

1. This reasoning applies to a decision on the merits of the Tribunal (Bogaards v McMahon and Another [1988] FCA 161; (1988) 80 ALR 342 at 350-351). Pincus J in Bogaards v McMahon decided that where an application for review of a decision is disposed of by a consent decision the Tribunal is estopped from entertaining a further application for review of the same decision. Bogaards v McMahon was a compensation matter in which Comcare and the applicant disagreed as to the correct method of calculating the applicant's average weekly earnings. A number of consent orders or consent decisions which were favourable to the applicant were made by the Tribunal. These directed the making of new determinations in accordance with agreed principles. (Although his Honour's reasons do not expressly state that these were consent decisions made under s 34(2) of the AAT Act it seems from the language used in the orders reproduced in the Reasons for Decision of the Tribunal that they were.) The determinations were made as directed. The second respondent (who was the applicant's employer) sought review of this further determination on the basis that the Commissioner had erred in calculating the average weekly earnings. The period regarding which it was claimed the Commissioner was in error included the periods covered by the consent decisions of the Tribunal and went a few weeks beyond those periods. The Tribunal decided that it had jurisdiction to hear the second respondent's application for review. The applicant sought a writ of prohibition and a declaration in the Federal Court. Pincus J issued the writ of prohibition on the ground that there was an estoppel raised. The estoppel in question was a cause of action estoppel, that is, one raised by res judicata.
2. Where there is a decision by consent or on the merits it may however be the case that the terms of the decision do not completely dispose of the application; for instance, liberty to apply may be granted to the parties. Subject to the terms of the decision, however, an application on which a decision has been made has been disposed of and a second application cannot be brought for review of the same decision.
3. Daera Guba and Bogaards v McMahon do not however address the effect of a dismissal under s 42A. Nor in my opinion is Bailey v Mahnoff (above) of any assistance as it is relevant only to the reinstatement of an application and not to second applications. A number of early Australian cases suggest that where a matter is dismissed on a technical ground or for failure to comply with a court order or statutory requirement a second application or a fresh action will be entertained. Thus, in Minister for Lands v Nott (1896) 17 LR(NSW) 276 the Supreme Court of New South Wales allowed a second application where a first one had been dismissed for lack of standing; in Ex parte Wason (1912) 29 WN(NSW) 18 a second application was allowed where an earlier one had been dismissed for failure to comply with a requirement in the legislation that if notice of an injury was not given within six weeks of the injury occurring the application was barred unless there was reasonable excuse the failure to give notice; and in Smith v Morrow [1932] VicLawRp 71; [1932] VLR 491 the fact that a summons was dismissed for failure to provide further and better particulars was held by the Supreme Court of Victoria not to be a bar to a fresh action. Taken together these cases support the principle that where a first application is not disposed of on its merits or by consent a second application can be entertained; however, none of the reports of these cases contain full reasoning on this point and it is therefore difficult to draw any general propositions from these cases which are helpful here.
4. There are also a number of relevant English cases. In Pople v Evans [1969] 2 ChD 255 an action was dismissed for want of prosecution. Ungoed-Thomas J said if the first judgment could be considered a default judgment then the issues realised in it would be res judicata. However, as the matter was dismissed for want of prosecution, and there was no admission or compromise of the action, res judicata did not apply. In Armour v Bate [1891] 2 QB 233 the English Court of Appeal said that dismissal for want of appearance at the trial had the same effect as if the action had been dismissed on its merits. However, that was a case in which default judgment was given and the rules of the court provided a mechanism for setting aside the judgment. There is nothing in the report suggesting that the principles discussed applied outside the context of those rules. Just as the Full Court of the Federal Court said in Lenijamar Pty Ltd v AGC Ltd [1990] FCA 520; (1990) 27 FCR 388 at 394 that the English authorities relating to unjustified delay in the curial process were of little assistance to that Court in interpreting its own rules because the English cases turned on a miscellany of Rules of Court, the English authorities, although relevant, are not of great assistance to the Tribunal in interpreting its own Act. The legislative principles in the AAT Act do not necessarily equate with those used elsewhere; the Tribunal should be guided by the experience of the Courts only in so far as that experience is consistent with its purposes.
5. The issue ultimately falls to be determined under the AAT Act. The AAT Act uses the term "decision" in subsections 43(1) and 34(2). Gibbs J observed in the Daera Guba case (above) that the word "decision" prima facie connoted that the Land Board in that case was to make a binding determination. Whether the same connotation arises in the AAT Act is not clear; indeed, Deane J observed in Director-General of Social Services v Chaney [1980] FCA 87; (1980) 47 FLR 80 at 101 that the word is clearly used in the narrow sense of the operative or ultimate decision of the Tribunal in ss 43 and 43A, but is used in a different sense in s 42. What is of greater significance is that the phrase "dismiss the application" rather than the word "decision" is used in s 42A. Had the legislature intended dismissal to have the same result as a decision it presumably would have in my view used the same language.

14. The distinction between a decision and a dismissal of an application was raised by Deputy President Thompson in Re Nolan and Minister for Immigration and Ethnic Affairs (Decision No 3557, unreported, 29 August 1987):

"Section 42A provides simply for the dismissal of an application. Such dismissal results in the termination of the proceedings on the application; consequently the decision of which review was sought remains unchanged. But no decision is made to affirm the decision under review, as may be made after the hearing of an application for review" (at page 2).

"the Tribunal may have exercised all of its powers in relation to a particular application when it dismisses it but it does not follow that it has exercised all of its powers in relation to review of a decision. It follows that the applicant may bring a fresh application to review that decision." (Re Nicholson and Secretary, Department of Social Security [1990] AATA 212; (1991) 21 ALD 537 at 544 per Deputy President Forgie)

1. In my view this is an accurate statement of the effect of dismissal under section 42A. in support of this I note that if the parties consent, a decision can be affirmed. It seems unlikely that the legislature would have provided two means of obtaining an identical result and I consider that this conclusion is consistent with the purpose of the AAT Act. The Tribunal's proceedings are to be conducted with as little formality and technicality, and with as much expedition, as the requirements of the AAT Act and other Acts and a proper consideration of the matters before the Tribunal permit (s 33(1)(b)). The Tribunal is also required to ensure that every party to a proceeding is given a reasonable opportunity to present his or her case (s 39). These provisions are manifestations of an underlying policy in the Act that the Tribunal should provide substantial review on the merits and not allow undue technicalities to prevent this happening.
2. The competing policy considerations that applicants should not be allowed to affect the Tribunal's processes by failing to take reasonable steps to allow their application to be determined on the merits (for instance, by failing to attend preliminary conferences or hearings), that matters be disposed with once and for all and that litigation not be prolonged are important. However, as Deputy President Forgie pointed out in Re Nicholson and Secretary, Department of Social Security (above, at 545) to allow a fresh application in such circumstances does not give an applicant whose application has been dismissed a right to bring endless fresh applications. As in this case, where an application is dismissed and a second application is brought the second application will generally be lodged after the prescribed time has elapsed. Accordingly, the Tribunal will have a discretion as to whether to extend the time for making an application and these policy objectives can be achieved by the exercise of discretionary power which takes into account the particular circumstances of the application.

SHOULD TIME FOR MAKING THE SECOND APPLICATION BE EXTENDED IN THIS CASE?

1. The principles to be applied in considering an application for extension of time under s 29(7) were considered by Deputy President Todd in He Johnson and Commonwealth of Australia (Decision No 5619, unreported, 5 January 1990). Briefly, these are

(i) prima facie proceedings commenced outside the prescribed period will not be entertained. An extension of time will be granted, however, if it is proper to do so;

(ii) it is relevant whether the applicant rested on his rights or took action to make the decision maker aware that the decision was being contested;

(iii) any prejudice to the respondent that would be caused by granting the extension of time is relevant;

(iv) any wider prejudice to the general public in terms of disruption to established practices is relevant;

(v) the merits of the substantial application are relevant; and

(vi) fairness of granting the extension of time as between the applicant and other persons in a like position is relevant.

1. The balancing of these factors will depend on the individual case. In cases where there is a second application, the earlier application having been dismissed, the circumstances in which the first application was dismissed will be highly relevant particularly in terms of (ii) and (iv) above. For instance, where an applicant consented to dismissal of his or her application as part of a settlement agreement which has been honoured by the respondent the factors favouring the grant of an extension of time would have to be very strong indeed. On the other hand, there may be cases where the applicant did not understand the implications of signing a document in which he or she consented (or purported to consent) to dismissal. Where an application is dismissed for non-appearance the Tribunal will consider any history of non-appearance at earlier preliminary conferences or hearings relating to the first application, failure to comply with directions of the Tribunal and the reasons for non-appearance or non-compliance. It may also be relevant to consider if the applicant is unrepresented and failed to understand the Tribunal's procedures.
2. In the present case, the applicant gave evidence at the hearing of the application for extension of time. The tribunal also had before it its file which indicates some of the history of the matter as set out at the beginning of these Reasons for Decision. This began on 3 July 1990 when the Brisbane Registry of the Tribunal received his Application for Review of Decision. In the space provided on the standard form for "the name, address and telephone number of the person who will represent you" the applicant had written "T Hogno" followed by an address and a telephone number. T Hogno is a solicitor at the firm Geoffrey Edwards & Co but was not identified as such on the application form. On 30 August 1990 a telephone preliminary conference was held. The applicant represented himself. When it was put to the applicant that he may have said at the preliminary conference that he was going to engage a solicitor he conceded that he may have said this. The report of the preliminary conference confirms that this is what happened. It seems that as a result of this it was assumed that the applicant was not represented at that stage. A second preliminary conference was listed for 1 October 1990 but this was vacated when the applicant informed District Registry that this was a public holiday in New South Wales. The conference was listed for 22 October 1990. Mr Mulheron was sent a listing notice which he says he received. He says he faxed this notice to his solicitors. There is no evidence of what happened, but the Tribunal accepts the applicant's evidence that he sent the notice to his solicitors by facsimile transmission and was not contactable by telephone on 22 October for the preliminary conference because he thought his solicitors would deal with it.
3. The applicant said that he was told after the preliminary conference that someone had been trying to contact him. As a result he rang the Brisbane Registry of the Tribunal on 23 October. He spoke to someone who he could not identify about his application. There is no record of this on the file and the fact that the applicant made contact appears not to have been communicated to the Deputy President but the Tribunal accepts that the applicant telephoned the Tribunal. On 29 October 1990 the application was dismissed by direction.
4. The applicant soon after receiving notice of the Direction telephoned the Tribunal and spoke to a member of staff in the Registry. A note in the Tribunal's file shows that he was advised to discuss the matter with his solicitor. On 20 November 1990 the applicant wrote to the Tribunal requesting another preliminary conference. Further communications took place; these were mentioned at the beginning of these reasons.
5. The Tribunal considers that the failure of the applicant to appear at the preliminary conference was the result of an unfortunate communication breakdown between himself and his solicitor compounded by his inexperience in dealing with solicitors. There is not a great deal of information before it on the merits of the substantive application; however, the applicant gave evidence that he was engaged in work involving moving very heavy objects and was also involved in a motor vehicle accident on his way to work and that he now suffers back pain. It was not suggested by the respondent that the applicant's claim was frivolous. The respondent could not point to any prejudice to it beyond delay should the extension of time be granted. Nor can it be said that other persons or the wider public would be prejudiced.
6. The only consideration speaking against granting an extension of time is the applicant's failure to indicate his non-acceptance of the Tribunal's letter of 6 December as finalising the matter until his solicitor wrote to the Tribunal on 9 April 1990. A four month period elapsed during which the applicant appears to have taken no action. There is no evidence on this point but it may be that the respondent considered the matter resolved for a period of over five months. It cannot be said however, that the applicant rested on his rights. His initial response was very prompt and it is perhaps not surprising that he may have thought he had no further recourse after receiving the Tribunal's letter of 6 December 1990. But even if the delay was unexplained it was not of such length as to outweigh the strong considerations in favour of an extension of time, in particular the fact that this was the only occasion on which the applicant failed to appear and the fact that this non-appearance was due to a communication failure. In the circumstances the applicant should be given the opportunity of having his application determined on its merits.
7. The Tribunal extends the time for the making by the applicant of an application to the Tribunal for review of the reviewable decision of the respondent of 6 June 1990 until 9 April 1991.