The address for service of the documents to the Respondent is -
Australian Government Solicitor
24th Floor, Piccadilly Centre
133 Castlereagh Street
SYDNEY NSW 2000
ATTENTION MS LEIGH PLATER
Reference 94047840"
Mr Guse seems to have had some second thoughts. He approached a firm of solicitors, R L Whyburn & Associates of Camperdown, on 12 July 1995, the day before the final date specified in the direction of the Tribunal. A telephone call was made to the Tribunal on the same day, and a letter to the presiding senior member, dated 13 July 1995, followed. That letter referred to the receipt of instructions only the day before, and continued:
"Due to this fact we have not had sufficient time to familiarise ourselves with all the pertinent documents so as to provide the appropriate advice to Mr Guse.
We advise that the Applicant therefore requires an extension of seven (7) days in order to comply with the direction of the Senior Member. We note that we also contacted Ms Hervee De Jean, and advised her of our Application in this matter.
We request that you advise our office if the extension has been granted. Should you have any questions or wish to discuss this matter please do not hesitate to contact Donna Ham of our office."
Following this letter, the Tribunal issued a further direction in writing, dated 17 July 1995, as follows:
"Having considered a submission in writing by the representative of the Applicant to vary the Direction of the Tribunal dated 28 June 1995, and noting the Respondent objects to such a variation, notwithstanding, the Tribunal hereby VARIES the Direction dated 28 June 1995 by changing the date '13 July 1995' to 20 July 1995 where it appears therein."
There followed a final direction, under the names of the Tribunal members, dated 21 July 1995:
"UPON advice from the Respondent and the Tribunal Registry that the Applicant has not complied with the Tribunal's Direction dated 28 June 1995 as varied by the Tribunal's Direction dated 17 July 1995, the Tribunal HEREBY DIRECTS that this application be dismissed pursuant to sub-section 42A(1)(5)(b) [sic - on 24 July 1995 this was amended to read '42A(5)(b)'] of the Administrative Appeals Tribunal Act 1975 without proceeding to review the decision."
The direction was signed, as the previous ones had been, by the senior member.
The disposal of Mr Guse's application in this way was plainly very unfortunate. It was accepted in argument by counsel for Comcare that Mr Guse is entitled to compensation, and that the only dispute relates to the amount of that compensation. That after all these years, and one abortive hearing by the Administrative Appeals Tribunal, followed by an appeal to this Court and order of remittal, such a case should be dismissed in limine, suggests a serious failure of the system of administrative review. But the question remains whether any relevant error of law vitiated the decision.
Section 42A(5) 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;
a presidential member or senior member, on behalf of the Tribunal, may dismiss the application without proceeding to review the decision."
This is plainly a valuable discretionary power. But paragraph (b) does involve denying an applicant a hearing of the merits of his application. That should be done very sparingly, and only, I think, as a decision of last resort. Particularly is this so in a case where the genuineness of the claim is not in dispute.
A fundamental issue in the present case is whether the Tribunal could decide in advance, when giving a direction, that non-compliance within a limited period would, not might, involve dismissal of the application pursuant to s 42A(5)(b). In my opinion, that is not what the provision intends. A direction is, of its nature, subject to variation to meet the exigencies of the proceeding. Section 33(3) makes this explicit. If the direction "may be varied or revoked at any time by any member empowered ... to give such a direction in relation to the proceeding at that time", how can the member giving the direction treat it as immutable, and any failure of compliance as fatal? The very nature of the discretion seems to me to demand that the Tribunal consider, after the default has occurred, whether in the circumstances then obtaining, "a reasonable time" has elapsed, and whether the proper remedy is dismissal of the application, or the taking of some other course, such as adjourning the proceeding or making some other order to secure compliance. In the present case, the terms of the direction of 28 June 1995 and all that followed, including the failure to give Mr Guse any further substantial opportunity to comply, notwithstanding that his solicitor's letter indicated a change of heart might have occurred, confirm that the Tribunal did just what it said it would do by the words "will proceed to dismiss his application pursuant to Section 42A(5)(b)". There was no exercise of a discretion in the light of the circumstances of non-compliance; but simply the taking of the final step in a predetermined procedure. What, in the end, had happened, so far as Mr Guse was concerned, was not known; only that no documents had been received.
Furthermore, s 42A(5)(b) cannot, consistently with the observance of the principle of natural justice, be implemented upon an ex parte statement that an applicant has not complied with a direction, without giving the applicant any opportunity to explain, or advance reasons why the matter should nevertheless proceed. It stands to reason that, whatever the merits of Mr Guse's objections to the direction in the first place, some supervening circumstance might have occurred to justify, or at least palliate, the eventual non-compliance. Particularly was this so in the light of the solicitor's letter. Apart altogether from that letter, calmer reflection should have revealed that the direction, as formally issued, was seriously deficient. A bankruptcy notice involving similar difficulties would have been set aside. For it required Mr Guse both to serve on Comcare and to lodge with the Tribunal a possibly very large number of documents of which he would have been most unlikely to have had more than one copy. The direction did not require him to make copies, and it might have been quite unreasonable to have imposed such a requirement on him, particularly in the short time allowed. In any case, the direction did not tell him who should receive the originals and who the copies. It is clear that Mr Guse might well have had serious contentions to urge if he had been afforded an opportunity to make them.
Having pointed out that there were, or might have been, issues which Mr Guse could reasonably have advanced, had he been given the opportunity, why the application should not have been dismissed, I should add that the principle of natural justice does not place on him any onus to show that an opportunity to be heard would in fact have proved fruitful. Natural justice stands on a higher plane than that. Many cases support the proposition which I stated in Colpitts v Australian Telecommunications Commission (1986) 9 FCR 52 at 71:
"The principles of natural justice are designed to ensure that the voice of the defence is heard, which is never more necessary than when the Tribunal is in danger of feeling that defence would be useless".
To construe s 42A(5) as requiring an applicant to be given an adequate opportunity to be heard, before the proceeding may be dismissed, is to construe it in a manner consistent with the principles laid down by the High Court in Tanos v The Commissioner of Police (1958) 98 CLR 383 at 395-396. Indeed, the application of Tanos is a fortiori, for, unlike the provision there in question, s 42A(5) is not at all concerned with a situation of urgency.
It was for these reasons that I allowed Mr Guse's appeal.
I certify that this and the preceding nine (9) pages are a true copy of the Reasons for Judgment herein of his Honour Justice Burchett.
Associate:
Date: 5 June 1997
Applicant: Appeared in person