(b) It is perhaps relevant at this juncture to note that neither the Applicant nor her legal representative appeared at the directions hearing on 7 July 1997, and that it would therefore have been possible for the Tribunal to dismiss the application under section 42A(2) of the Administrative Appeals Tribunal Act or alternatively under both of sections 42A(2) and 42A(5)(b) of the Administrative Appeals Tribunal Act.

1. (a) The Applicant, in support of her application for reinstatement furnished an affidavit by her solicitor Mr Vella. It may be noted that the parties agreed at the hearing that the first sentence of clause 13 of that affidavit should be treated as deleted.

(b) Most relevantly for the purposes of this decision, Mr Vella accepted, as set out in his affidavit, that in relation to the directions hearing, the failure on the part of the Applicant to appear was due entirely to his mistake. The Tribunal is prepared to accept that this is so.

(c) As to the failure on the part of the Applicant to comply with certain directions, Mr Vella has set out certain difficulties experienced by the Applicant as to compliance, and more particularly having regard to the fact that the matter is complex and the fact that the Applicant was previously represented by another legal firm.

(d) Clause 12 of Mr Vella's affidavit reads as follows:

"I undertake to have our affidavits directed to the second issue filed by mid September 1997."

The Tribunal notes, with some concern, that in fact no such affidavits as referred to in clause 12 of Mr Vella's affidavit have yet been filed. Mr Cameron stated during the hearing that the affidavits would be filed within a short period.

1. The relevant subsections of section 42A of the Administrative Appeals Tribunal Act are for purposes of convenience gathered in this clause 5 as follows:

"(2) If a party to a proceeding before the Tribunal in respect of an application for the review of a decision (not being the person who made the decision) fails either to appear in person or to appear by a representative at a directions hearing, a conference mentioned in section 34, or a mediation under section 34A, held in relation to the application, or at the hearing of the proceeding, the Tribunal may:

(a) if the person who failed to appear is the applicant - dismiss the application without proceeding to review the decision; or

(b) in any other case - direct that the person who failed to appear shall cease to be a party to the proceeding.

(5) 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.

(6) If, under this Act, the Tribunal dismisses an application or an application is dismissed on its behalf, the proceeding to which the application relates, unless it is reinstated under subsection (9) or (10), is taken to be concluded.

(7) Before exercising its powers under subsection (2), the Tribunal must be satisfied that appropriate notice was given to the person who failed to appear of the time and place of the directions hearing, conference, mediation or hearing, as the case may be.

(8) If the Tribunal, under subsection (2), has dismissed an application (other than an application in respect of a proceeding in which an order has been made under subsection 41(2), the person who made the application may, within 28 days after receiving notification that the application has been dismissed, apply to the Tribunal for reinstatement of the application.

(9) If it considers it appropriate to do so, the Tribunal may reinstate the application and give such directions as appear to it to be appropriate in the circumstances.

(10) If it appears to the Tribunal that an application has been dismissed in error, the Tribunal may, on the application of a party to the proceeding or on its own initiative, reinstate the application and give such directions as appear to it to be appropriate in the circumstances."

The subsections quoted will henceforth be referred to simply by reference to their subsection numbers.

1. (a) As set out previously, the application was dismissed under subsection 5(b) although it could have been dismissed under subsection (2), because the Applicant failed to appear at the directions hearing.

(b) The Respondent's argument can be summarised as follows:

(1) reinstatement is allowed in certain circumstances under subsection (8), but only where the application was dismissed under subsection (2);

(2) although subsection (9) does not refer in specific terms to any subsection, it must be construed so as to refer to subsection (8); this is so, so the Respondent argues, inter alia because subsection (9) refers to "the application" and not to "an application" and the manner in which it is placed in section 42A, requires a finding that it applies only in relation to a subsection (2) dismissal;

(3) the legislature in amending section 42A so as to include subsections (3) to (10) inclusive saw fit to permit reinstatement in relation to a subsection (2) dismissal but not a subsection (5) dismissal;

(4) subsection (10) which permits the tribunal to reinstate the application where it was dismissed in error should correctly, so the Respondent argues, be construed so as to refer to an error which is akin to a "slip rule" error; clause 4 of the Applicant's submissions in this regard are as follows:

"4. It is further submitted that subsection (10) of s.42A does not permit reinstatement in this case. Subsection 10 is akin to the "slip rule" relied upon by the Courts and applies where, for example, the Tribunal inadvertently dismisses the wrong application or puts in a wrong matter number [see discussion of Tribunal in re Dillon and Department of Trade (1986) 4 AAR 461 at p463]. Para 56 of the Explanatory Memorandum to the Administrative Appeals Tribunal Amendment Bill 1992 stated:

'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' (emphasis added)".

1. The Tribunal was referred to the Explanatory Memorandum referable to subsections (3) to (10) inclusive; clauses 52 to 56 of the Explanatory Memorandum are set out in full (although they are not particularly helpful), as follows:

"52. Clause 16(d) will insert new subsections 42A(3)-(10). New subsection 42A(3) will define an appearance, for the purpose of a dismissal for failure to appear under subsection 42A(2), to include participation in a proceeding by telephone or other means as allowed under new section 35A.

1. New subsection 42A(4) will give the Tribunal the power to dismiss an application where the applicant fails to disclose a reviewable decision after a written request by the Registrar or Deputy Registrar within a prescribed time. New subsection 42A(5) will give a presidential member or senior member the power to dismiss an application for failure to pursue the application in a timely manner.
2. New subsection 42A(6) provides that where an application is dismissed the proceeding is concluded unless the application is reinstated. New subsection 42A(7) provides that before dismissing an application on the ground of the applicant's failure to appear under subsection 42A(2), the Tribunal must satisfy itself that the party was served with notice of the time and place of the directions hearing, conference, mediation or hearing.
3. 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.
4. 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."
5. (a) The Respondent's main submission is that the Tribunal does not (leaving aside for the moment subsection (10)) have the power to reinstate an application dismissed under subsection (5)(b) although it does have the power where the application was dismissed under subsection (2). This raises questions of the relative importance of dismissals under either subsection; the Tribunal does not think that it is possible to say that a dismissal under subsection (5) occurs in circumstances which are more serious than is applicable to a dismissal under subsection (2), and so that the legislature intended that a dismissal under subsection (5) would have the result that the application could not be reinstated. On the contrary, it is the view of the Tribunal that a subsection (2) dismissal could be made in circumstances as serious, if not more so, and to construe section 42A in this fashion would lead to a result which is decidedly odd, and in all probability unintended. Paragraph 55 of the Explanatory Memorandum does deal with both of sections (8) and (9) in one paragraph, but does not state that these subsections are confined to a subsection (2) dismissal. A dismissal under subsection (5) can be made only by a presidential or senior member, but this does not, in the Tribunal's opinion, have the result that in consequence a subsection (5) dismissal is incapable of reinstatement.

(b) It appears to the Tribunal furthermore that although subsection (9) is arguably referable only to a dismissal under subsection (8) which in turn cross-refers to a dismissal under subsection (2), it is also and equally arguably referable to dismissals under both subsection (2) and subsection (5). This view is supported by subsection (6) which, given its placing in the section, clearly refers to a dismissal under either subsection and indeed, would but for such an interpretation, appear to serve no useful purpose.

1. (a) Had the Tribunal dismissed the application under subsection (2) or both of subsections (2) and (5), the Tribunal would clearly and under subsection (9) have had a discretion to reinstate. On one view of subsection (9) the discretion is available also where the dismissal was made under subsection (5).

(b) It has been held that this discretion is to be exercised in accordance with the principles developed in the context of applications for extension of time under s.29(7) of the Act; Re Manoli and Secretary, Department of Social Security [1994] AATA 130; (1994) 35 ALD 133. When applied to an application for reinstatement, these principles are as follows:

(1) reinstatement will be granted if it is proper to do so;

(2) 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;

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

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

(5) the merits of the substantial application are relevant;

(6) fairness of granting reinstatement as between the applicant and other persons in a like position is relevant.

(c) Applying these principles, it is the view of the Tribunal that the principles should overall be answered in favour of the Applicant; in particular the Applicant has not rested on her rights; there would be substantial prejudice, to her if she were precluded from arguing her case and there is no prejudice so far as the Tribunal can perceive, to the Respondent or the general public. As to the merits of the substantive application, the Tribunal notes only that it would appear that as indicated in the Respondent's submissions, the matter is one of some duration, that it appears to be complex, and that it relates to an assessment under section 108 of the Income Tax Assessment Act, a section in respect of which the relevant tests can be difficult to apply; see in this context the decision of this Tribunal in Case 3/96 96 ATC 139.

(d) It is relevant to note that in Re Oates and Secretary, Department of Social Security [1994] AATA 252; (1995) 37 ALD 241, Deputy President Forgie held that an application for reinstatement is more analogous to an application for the setting aside of a judgment against a party for failure to take a step in the proceeding, than it is to an application for an extension of time. The Tribunal notes that, assuming that the correct principles are set out in Re Oates, it would nevertheless exercise its discretion in favour of the Applicant.

1. I refer next to an unreported judgment of Burchett J in Jacek Guse v Comcare, unreported, Federal Court, 5 June 1997, as follows:

(a) On 4 June 1997, Burchett J made orders in this case on a point of law from the Administrative Appeals Tribunal, allowing the appeal with costs, and setting aside the order of the Tribunal which had dismissed the Applicant's proceeding under section 42A(5) of the Administrative Appeals Tribunal Act 1975, and remitting the matter to the Tribunal, differently constituted, to be dealt with according to law.

(b) The second, third and fourth paragraphs of the judgment read as follows:

"The case has an extremely unfortunate history. Mr Guse sustained a whiplash injury on 21 April 1982, in respect of which it was initially accepted that he was entitled to compensation under the provisions of the legislation then in effect, the Compensation (Commonwealth Government Employees) Act 1971. That Act has since been replaced by the Safety, Rehabilitation and Compensation Act 1988. Mr Guse's original claim was made on 18 May 1982, but a further claim for partial incapacity was made on 13 August 1987, in which Mr Guse sought compensation for impairment of his earning capacity as a pianist, a capacity additional to that exercised by him in his Commonwealth employment at the time of his injury. Determinations and redeterminations followed, culminating in an application to the Administrative Appeals Tribunal, made on 3 August 1992 and decided on 19 November 1993. Comcare appealed to this Court against that decision, and Mr Guse cross-appealed. On 5 July 1994, Einfeld J set aside the decision, remitting the matter to the Administrative appeals Tribunal. A number of interlocutory hearings followed.

From 8 March 1995, Comcare appears to have been attempting to obtain from Mr Guse, by summons in the nature of a subpoena, employment records and tax material going back to 1 January 1981. However, the summons first issued appears to have been irregular. Apart from the irregularity of the summons, Mr Guse relied on arguments about the relevance of the documents, which were simply wrong. Unfortunately, although at times he had legal advice, at other times Mr Guse appeared for himself. His intelligence and articulateness do not compensate for lack of understanding of the legal issues involved. It is very probable that any documents he may now have falling within the terms of the summonses that were issued are incomplete, and it may be that documents falling outside of those terms may ultimately be found to be more pertinent, if they can be produced. That does not deny the relevance of the material that is referred to in the summonses; and it does not reduce Mr Guse's obligation to comply, so far as he is able.

On 1 June 1995 and again on 28 June 1995, there was a lengthy debate, mainly between the presiding Tribunal member and Mr Guse, concerning the validity of the then current summons to produce documents. In the course of that debate, Mr Guse used some language which was rude in the extreme. He, of course, having regard to the history of the case, may well have been in a very emotional state, and he was at all the disadvantage of a litigant conducting his own case, a case moreover involving allegations of his own psychiatric disabilities. However, the situation also put the Tribunal in a position of great difficulty. Heated debate is not conducive to calm decision-making, and the Tribunal might have been well advised to have adjourned to formulate its decision in a calmer atmosphere. What it did do was to make an order on the spot in Draconian terms."

(c) Towards the end of his judgment, Burchett J said:

"Furthermore, s42A(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 circumstances 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 plan 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 s42A(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] HCA 6; (1958) 98 CLR 383 at 395-396. Indeed, the application of Tanos is a fortiori, for, unlike the provision there in question, s42A(5) is not at all concerned with a situation of urgency."

1. The Tribunal does not agree with the Respondent's submissions that subsection (10) is confined to an error of the "slip-rule" type. It is true that the Explanatory Memorandum in respect of subsection (10) refers to an administrative error, but the subsection in its terms is not so confined, referring as it does merely to an error, and thus encompassing, in the view of the Tribunal, any type of error whether or not of the "slip-rule" type. As Deputy President McDonald stated in Thomson and Comcare (AAT 10552, 24 November 1995):

"The words 'in error' used in s.42A(10) do not have a technical meaning and should not be given a narrow interpretation."

1. (a) In dismissing the application under subsection (5)(b), the Tribunal noted that the Applicant had failed to comply with directions, and that she had failed despite an undertaking to file her affidavits as promised. The Tribunal has previously ruled that clause 12 of Mr Vella's affidavit contains an undertaking which has also not been complied with.

(b) The Tribunal, although it dismissed the application under subsection (5)(b) for cause, considers it desirable to note two aspects of that dismissal, in the context of subsection (10), as follows:

(1) In the first instance the Tribunal might have dismissed the application under subsection (2) or both of subsection (2) and subsection (5)(b), thus affording the Applicant an opportunity if so advised to seek reinstatement. The Tribunal might perhaps have taken this course had it appreciated that reinstatement is possible (assuming that this is indeed so) only in relation to a subsection (2) dismissal. This aspect is dealt with for the sake of completeness. The Tribunal does not consider that it was in error merely because it dismissed under one subsection when it could have dismissed under another.

(2) In the second place, the Tribunal considers on reflection (having regard to the judgment of Burchett J in Jacek Guse previously referred to) that it would have been better advised, in the absence of the Applicant's representatives, to make an attempt either through the Respondent's representatives or through the presiding member's Associate to contact the Applicant's solicitor or alternatively perhaps to stand the matter over for a brief period for this purpose. The Tribunal is not unmindful of the fact that the Applicant has contributed in no small measure to the predicament in which she finds herself. Nor is the Tribunal unmindful of the fact that clause 12 of Mr Vella's affidavit contains yet another unfulfilled undertaking. It is possible also (although the Tribunal has formed no such view) that her application has little chance of success, but in the words of Burchett J, "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". Put in other words, the principles of natural justice must have the result that the Tribunal should lean towards an interpretation which permits the Applicant to be heard.

1. The Tribunal considers that it does have the power to grant a reinstatement order under subsection (9) and moreover that it is proper for it do so. However, and in the alternative, and if the Respondent's submissions as to the non-applicability of subsection (9) are correct, the Tribunal considers that it should reinstate the application under subsection (10) in that the Tribunal in dismissing the application may have been in error in relation to the second of the two bases set out in clause 12. The Tribunal accepts that any such error in this regard cannot be categorised as an error of the "slip-rule" type but does not consider that subsection (10) is so confined.
2. Accordingly, the application for reinstatement is granted under section 42A(9) or alternatively section 42A(10) of the Administrative Appeals Tribunal Act. The Applicant is directed furthermore under section 42A(10) of the Administrative Appeals Tribunal Act that she must file all of the affidavits and other evidence on which she intends to rely within a period of not more than 21 days from this date.

I certify that this and the 11 preceding pages are a true copy of the decision and reasons for decision herein of

Signed: .........J.Pearlman...............................................................

Solicitor for the Respondent Mr D Stokes of the Australian Government Solicitor