CATCHWORDS

ADMINISTRATIVE LAW - power of Administrative Appeals Tribunal to dismiss an application for non-compliance with a direction - whether the decision to dismiss can be made conditionally at the time of giving the direction - nature of the discretion - whether Applicant entitled to opportunity to be heard before dismissal of his application - natural justice.

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

Colpitts v Australian Telecommunications Commission (1986) 9 FCR 52

Tanos v The Commissioner of Police (1958) 98 CLR 383

JACEK GUSE -V- COMCARE

NG 626 of 1995

Burchett J

Sydney

5 June 1997

IN THE FEDERAL COURT OF AUSTRALIA        )

                                                                                    )

NEW SOUTH WALES DISTRICT REGISTRY      )           No. NG 626 of 1995

                                                                                    )

GENERAL DIVISION                                                )

ON APPEAL FROM THE GENERAL ADMINISTRATIVE DIVISION OF THE ADMINISTRATIVE APPEALS TRIBUNAL

                                    BETWEEN:               JACEK GUSE

                                                                                    Applicant

                                               AND:               COMCARE

                                                                                    Respondent

CORAM:        Burchett J

PLACE:         Sydney

DATE:            5 June 1997

REASONS FOR JUDGMENT

BURCHETT J:

                        On 4 June 1997, I made orders in this appeal on a point of law from the Administrative Appeals Tribunal, allowing it with costs, setting aside the order of the Tribunal, which had dismissed the applicant’s proceeding under s 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.  I reserved my reasons, which I now deliver.

                        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  That Act has since been replaced by the Safety, Rehabilitation and Compensation Act 1988.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. 

                        The Tribunal’s order of 28 June 1995 was taken out as a formal order, bearing the same date and the names of the senior member and members who made it.  That formal order reads as follows:

“UPON hearing submissions from the Applicant and Counsel for the Respondent at today’s Hearing, the Tribunal DIRECTS that the Applicant shall serve on the Respondent and lodge with the Tribunal by certified mail on or before the end of business on 13 July 1995 the following documents or things:-

1.   All documents in your possession, custody or control relating to your employment at any time and in any capacity, and whether paid or unpaid, from 1 January 1981 to present, including, but not limited to any payslips, group certificates, income tax returns, income tax Notices of Assessment, correspondence and copy correspondence between yourself and any employer but excluding any documents (originals or copies) which have previously been in evidence before the Tribunal in proceedings N92/369 and excluding any documents relating to your employment with the Special Broadcasting Service.

2.All documents in your possession, custody or   control relating to any business or partnership            which you are currently associated with or which you have at any time been associated with from       1 January 1981 but excluding any documents     (originals or copies) which have previously been in evidence before the Tribunal in proceedings             N92/369 and excluding any documents relating            to your employment with the Special          Broadcasting Service.

In the event that the Applicant fails to carry out this Direction he is hereby advised that the Tribunal will proceed to dismiss his application pursuant to Section 42A(5)(b) of the Administrative Appeals Tribunal Act 1975 without the matter being listed for any further hearing.

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

Counsel for the Respondent:                                               Ms C.E. Adamson

Solicitor for the Respondent:                                               Australian Government                                                                                                         Solicitor

Date of hearing:                                                                    4 June 1997