Practice and Procedure - Application for review dismissed pursuant to s.42A(5) Administrative Appeals Tribunal Act 1975 - power to reinstate under s.42A(10) - meaning of "error" s.42A(10).

Administrative Appeals Tribunal Act 1975 - s.42A(5), (10)

Guse v Comcare [1997] FCA 140; (1997) 49 ALD 288

Re Booth and Secretary, Department of Social Security (1998) 53 ALD 123

Re Butler and Secretary, Department of Social Security (unreported 3 December 1997 Decision No. 12455)

Re McKenzie and Secretary, Department of Social Security (1998) 52 ALD 281

Re Greening and Repatriation Commission (1998) 54 ALD 501

Re Mulheron and Australian Telecommunications Corporation (1991) 23 ALD 309

27 June 2001 The Hon. C R Wright Q.C., Deputy President

1. This is an application under s.42A(10) of the Administrative Appeals Tribunal Act 1975 ("the Act") to reinstate the applicant's substantive application seeking compensation from the respondent which was dismissed by direction of Senior Member Allen pursuant to s.42A(5) of the Act on 9 March 2001.

2. There is no need to review the lengthy history of these proceedings. It is sufficient for present purposes to say that on 1 March 2001, Senior Member Allen issued a direction (inter alia) that on or before 9th March 2001, the applicant must lodge with the Tribunal a Statement of Facts and Contentions ("the order").

3. The applicant was apparently made aware of the order by her legal advisers, but for reasons which are irrelevant for present purposes the order was not complied with. Senior Member Allen had made no provisional default order to deal with any such eventuality when the matter was before him on 1 March 2001.

4. On 12 March 2001 on the application of the respondent, but without notice to the applicant or her legal advisers, Senior Member Allen gave a direction in the following terms:

_"_Whereas the Tribunal on 1 March 2001 directed that the Applicant lodge with the tribunal on or before the 9th day of March 2001 a Statement of Facts and Contentions in this matter; And there being no compliance with the said Direction; pursuant to subsection 42A(5) of the Administrative Appeals Tribunal Act 1975, this matter is DISMISSED.

5. The application to reinstate was heard before me on 5 June 2001. It was contended by counsel for the applicant that I had power to make an appropriate order of reinstatement by virtue of s.42A(10). Neither party contended that there was any other statutory power which would enable a Tribunal member to take the course requested.

6. Counsel for the applicant argued that in accordance with the decision of Guse v Comcare [1997] FCA 140; (1997) 49 ALD 288 (Burchett J - Federal Court of Australia) there had been a breach of the rules of procedural fairness in Senior Member Allen proceeding as he did without giving notice of the application to dismiss to the applicant.

7. In Guse, Burchett J plainly expressly the view that s.42A(5)(b) of the Act does not contemplate the automatic dismissal of a defaulting party's substantive application without first giving that party an opportunity to explain the apparent delinquency. Although it was strongly urged upon me by counsel for the respondent that Guse was either wrongly decided or distinguishable from the present case, I have no need to deal with either of these questions, except to say that in my respectful opinion, it can scarcely be doubted that a default order effectively robbing an applicant of the opportunity to test the merits of a regularly instituted proceeding seeking substantial compensation or other relief, should not be made without due notice of such proposed termination being given to relevant parties. To say more than this is inappropriate having regard to the opinion which I hold as to the fate of the reinstatement application.

8. Having regard to the way in which counsel dealt with the Guse decision (which I had not previously studied), I was left with the impression that Burchett J had expressed the view that a flawed direction given under s.42A(5) could be corrected by the Tribunal in reliance upon s.42A(10), but that is clearly not the case.

9. Burchett J did not claim to be invoking that power and did not discuss its ambit in setting aside the direction which was before him. As I read the reported decision the question of procedural fairness was before him pursuant to an appeal to the Federal Court of Australia on a question of law under s.44 of the Act. I therefore do not regard Burchett J's decision as lending any weight or authority to the applicant's primary contention that s.42A(10) invests the Tribunal with jurisdiction to overturn Senior Member Allen's decision and reinstate the substantive application.

10. I was also referred by counsel to a number of previous Tribunal decisions in which the scope and purpose of s.42A(10) has been discussed. It was common ground that s.42A(9) does not provide an alternative means to that created by s.42A(10) for the Tribunal to review questioned dismissal orders. As Senior Member Lewis said in Booth and Secretary, Department of Social Security (1998) 53 ALD 123:

"9. When reading subsection (9) in conjunction with subs. (8), the Tribunal notes that subs. (8) refers in the first instance to the dismissal of "an" application and later in the same subsection reference is made to "the" application, whereas subs. (9) provides that the Tribunal may reinstate "the" application. Although there is no conjunction joining the two subsections, and although there is no specific reference in subs. (9) to subs. (8) , it is arguable that subs. (9) is only referable to a dismissal under subs. (2). In consulting the Explanatory Memorandum to the Administrative Appeals Tribunal Bill 1992, clauses 55 and 56 state -

55. New subsection 42A(8) provides that in cases other than where the Tribunal has made an order staying a decision the applicant may apply for reinstatement within 28 days of receipt of notification of dismissal. New subsection 42A(9) provides that the Tribunal may, if it is appropriate to do so, reinstate the application by restoring it to its predismissal state and give such directions as the Tribunal considers necessary to enable it to proceed with the review of the decision.

56. New subsection 42A(10) provides for the Tribunal, on its own initiative, to reinstate an application which has been dismissed through administrative error on the part of the Tribunal.

10. When considering the relevant subs. (8) and (9) in the context of the Explanatory Memorandum, the Tribunal interprets that subs. (9) applies only to applications dismissed pursuant to s.42A(2) where the applicant seeks to have the matter reinstated pursuant to subs. (8). This is consistent with the position held by the Tribunal Re Pavlovic and Telstra Corporation Ltd (AAT 9588 of 8 July 1994) in respect of those subsections."

11. A similar opinion was expressed by Senior Member Barbour in Butler and Secretary, Department of Social Security (unreported 3 December 1997, Decision No. 12455):

"10. It is clear that subsection 42A(8) does not apply as the application was not dismissed pursuant to subsection 42A(2) of the Act. In any event, Ms Butler's application is well outside the 28 day time limit set out in that subsection. The discretion in subsection 42A(9) only applies to applications that seek to be reinstated under subsection 42A(8).

12. Senior Member Barbour then proceeded to consider the scope of S.42A(10) and whether or not it permitted a broad review of an apparently wrong decision by a Tribunal member. He made the following observations:

"Therefore, it appears that subsection 42A(10) is the only applicable subsection.

11. Subsection 42A(10) permits an application to be reinstated by the Tribunal if the dismissal was made in error. However, in this instance the Tribunal did not dismiss the application in error. Under subsection 42A(1A) an applicant has a statutory right to withdraw their application at any point in time. In this instance the applicant's representative, Mr. Howard, wrote a clear and deliberate letter to the Tribunal stating that Ms Butler did not wish to proceed with her appeal. Once the Tribunal received this notification, the application was taken to have been dismissed pursuant to subsection 41A(1B) without proceeding to review the decision. In determining the meaning of the words "in error", the Tribunal has considered Parliament's choice of language used in subsection 42A(10). The subsection does not expressly state who must dismiss the application in error, however, given that the Tribunal is the only authorised body that is able to dismiss an application, and not either of the parties, it follows that the subsection requires the Tribunal to have made the error in dismissing the application. This interpretation of the legislation is strengthened by reference to the Explanatory Memorandum to the 1992 Amendment Bill which states:

"new subsection 42A(10) provides for the Tribunal, on its own initiative, to reinstate an application which has been dismissed through administrative error on the part of the Tribunal."

12. In the Tribunal's view the wording of the subsection is not ambiguous and reference to the Explanatory Memorandum suggests the same intention as stated above. Accordingly, it is not possible for the Tribunal to reinstate an application pursuant to subsection 42A(10) where there was no error made by the Tribunal in dismissing the application."

12. Views consistent with this were also put forward by Deputy President Forgie in McKenzie and Secretary, Department of Social Security (1998) 52 ALD 281:

"That brings me to the second power of reinstatement given in sub-section 42A(10). Parliament has chosen to adopt the passive voice in describing the application i.e. it refers to "an application ... dismissed in error" but makes no specific reference to the person by whom or body by which it has been dismissed. It seems clear, however, that the body by which it has been dismissed must be the tribunal, for it is the only person or body which has that power. It equally follows that the error must have been made by the tribunal for it is the only person or body which can dismiss an application in error.

It may be that the tribunal has acted upon a consent to dismiss an application given by the parties in circumstances in which the consent was given unintentionally by the parties, or one of them, or without realisation of its significance. Even if that were to occur, it could not be said to be an error of the tribunal."

13. It seems to me that in the final sentence of this passage Deputy President Forgie has put her finger upon the central issue in the present case i.e. the nature of the "error" which will permit the Tribunal to exercise the jurisdiction provided for in s.42A(10). I am aware that what I am about to say is not consistent with the broad approach taken to this issue by Senior Member Handley in Greening and Repatriation Commission (1998) 52 ALD 110 and by Deputy President Burns in Schramm and Repatriation Commission (1998) 54 ALD 501. In each of those cases the Tribunal member concerned took the view that s.42A(10) gave a discretionary power to intervene where "error" was established, but neither of them critically considered the nature of the "error" contemplated by the subsection.

14. When I questioned the history of s.42A counsel for the respondent drew my attention to the decision of President O'Connor J in Re Mulheron and Australian Telecommunications Corporation (1991) 23 ALD 309 in which Her Honour commented upon the complete absence of any power in the Act for the Tribunal to order the reinstatement of an application once dismissed. It seems clear enough that the 1993 Amendments to s.42A which included new subsections (8), (9) and (10), were in part brought about in response to this perceived deficiency in the legislative scheme.

15. It was properly conceded by counsel for the applicant that in giving meaning to these amendments it is proper and permissible to consider the Minister's Explanatory Memorandum, the relevant parts of which have been set out in 2 of the decisions already quoted above.

16. I am left in little doubt that an "error" of the kind mentioned in s.42A(10) is very limited indeed. I agree with counsel for the respondent that "error" has its ordinary meaning as "something unintended or inadvertent". This is consistent with the Minister's reference to "an application which has been dismissed through administrative error on the part of the Tribunal". (my emphasis)

17. The Tribunal does not have a structured appellate hierarchy such as that found, for example, in a State Supreme Court, where there is usually a right of appeal from a Master to a Judge and from a Judge to a Full Court or Court of Appeal. There is no such system in the Tribunal. Although there are members with different grades of seniority or status there is no internal review mechanism allowing a general right of appeal from one member to another or to a group of others. The only appellate avenue provided is to the Federal Court on a point of law.

18. How strange it would be if s.42A(10) were construed as providing a mechanism for review of one member's decision by another, not only on the basis of a legal "error" perceived in the first member's reasons, but also on the basis of identified factual "errors" made by him or her. Furthermore, as s.42A(10) permits the Tribunal to act "on its own initiative", we could have over-zealous members prying uninvited into the decisions of their colleagues in the hope or expectation that mistakes justifying intervention may be discovered and exposed. I find it impossible to subscribe to an interpretation of s.42A(10) which could have such startling consequences.

19. In my opinion s.42A(10) is in the nature of a statutory "slip" rule which permits obvious and uncontroversial clerical and similar mistakes to be rectified with a minimum of fuss and bother. (See in re Hogarth Estate Crisp v Hogarth 1962 Tas SR 17). A direction by a member deliberately and intentionally made is not within the scope of s.42A(10).

20. It follows that the present application fails a threshold jurisdictional test and must be dismissed. Other avenues of challenge to Senior Member Allen's direction may be more fruitful, but that remains to be seen.

21. I direct that the application to reinstate the substantive proceedings be dismissed.

I certify that the 21 preceding paragraphs are a true copy of the reasons for the decision herein of The Hon. C R Wright Q.C., Deputy President

Solicitor for the Respondent Ms M Hawkins (Aust. Gov. Solicitors)