FEDERAL COURT OF AUSTRALIA

Mladenov v Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2013] FCA 1129

THE COURT ORDERS THAT:

1.    The application is dismissed.

2.    The applicant pay the respondents’ costs of the application.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

1    The applicant, Mr Mladenov, appeals from a decision of the Administrative Appeals Tribunal (“the AAT”) pursuant to s 44 of the Administrative Appeals Tribunal Act 1975 (Cth) (“the Act”). An appeal lies to this Court from a decision of the AAT on a question of law. The issue for determination in the application is whether the AAT denied Mr Mladenov procedural fairness in its decision to refuse to reinstate his application before it.

2    Before the Tribunal, Mr Mladenov sought review of a decision of the Social Security Appeals Tribunal (“the SSAT”). The SSAT affirmed the decision of Centrelink that Mr Mladenov has incurred a disability support pension debt of $23,562.77. The SSAT also set aside a decision of Centrelink that Mr Mladenov has incurred a Newstart allowance debt of approximately $8,000 and remitted that matter to the Chief Executive Centrelink based on an amended period of recovery. The recovery sums were based, in part, on periods in which Mr Mladenov was working full time whilst in receipt of social security payments. The SSAT made its decision on 10 September 2012.

3    On 25 September 2012, Mr Mladenov applied to the AAT for review of the SSAT decision. In a preliminary conference held on 20 February 2013, the AAT made directions for the filing and serving of witness statements or witness summaries, documents to be relied on at the hearing and statements of facts, issues and contentions. The respondents were required to comply by 20 March 2013 and Mr Mladenov was required to comply within 30 days of receipt of the respondents’ material.

4    By letter dated 20 March 2013, the respondents served Mr Mladenov with a statement of facts, issues and contentions which they also filed in the AAT on that day.

5    On 23 March 2013, Mr Mladenov wrote to the AAT complaining about his lack of receipt of the respondents’ statement of facts, issues and contentions by 20 March 2013. He also complained, without reference to specific documents, about the lack of documents which he asserted that the respondents or the Tribunal should have forwarded to him. Mr Mladenov also advised that he would not be appearing at any further directions hearings, hearings or conferences. However, he suggested that he may sit at the back of the hearing room and listen. Mr Mladenov concluded his letter by asking to be informed when the AAT’s decision was to be handed down.

6    On 2 May 2013, the AAT made directions for the filing of witness statements and copies of documents which Mr Mladenov wished to rely on at the hearing. The material was due to be filed by 23 May 2013. Notes were appended to the directions which included advice that failure to comply with a direction within a reasonable time may lead to the dismissal of the application. Also on 2 May 2013, the respondents’ solicitor sent an additional copy of the respondents’ statement of facts, issues and contentions to Mr Mladenov.

7    On 8 May 2013, Mr Mladenov wrote to the AAT and the respondents seeking a list of documents which he required and observing that without those documents he was unable to make any statement of facts and contentions.

8    On 22 May 2013, the respondents’ solicitor responded by letter to Mr Mladenov. That letter took issue with Mr Mladenov’s assertion that he was unable to make a statement of facts and contentions and raised questions about what further material Mr Mladenov required.

9    On 3 June 2013, Mr Mladenov responded to the solicitor’s letter. He said that he was waiting for the AAT to resolve the matter. Also on 3 June 2013, the AAT wrote to the parties advising that it was calling the matter on for a directions hearing in light of Mr Mladenov’s non-compliance with the direction of 2 May 2013. The penultimate paragraph of that letter said:

Please note that, if an applicant fails to comply with a direction by the Tribunal within a reasonable time, the Tribunal may dismiss the application under s 42A(5) of the [Act]. The Tribunal may ask the Applicant to explain why the application should not be dismissed.

10    In a separate letter to the parties, also dated 3 June 2013, the Tribunal notified them of a directions hearing to be held by telephone at 9.20 am on 13 June 2013 at which “the applicant will be required to show why the application should not be dismissed by reason of his failure to comply with the Direction dated 2/5/13”.

11    On 11 June 2013, Mr Mladenov belatedly filed and served his statement of facts and contentions. He did not file any witness statements or documents to be relied on. He also did not comply with a direction made on 2 May 2013, which required him to advise the Tribunal by 23 May 2013 if he did not intend to call witnesses or rely on documents.

12    On 13 June 2013, at the foreshadowed directions hearing, Deputy President Constance acted under s 42A(5) of the Act to dismiss Mr Mladenov’s application by reason of his failure to comply, within a reasonable time, with the direction of the AAT of 2 May 2013.

13    On 14 June 2013, the AAT published a letter advising the parties of its decision. The second paragraph of the letter said: “In some circumstances, the Tribunal may reinstate an application if it appears to the Tribunal that the application has been dismissed in error”.

14    Mr Mladenov applied to reinstate his application by letter dated 20 June 2013. He claimed the AAT made an error but did not address why he had failed to comply with the request of the AAT contained in its letter of 3 June 2013.

15    On 28 June 2013, the AAT notified the parties that the reinstatement application would be considered on 8 July 2013. On 8 July 2013, Senior Member Friedman heard submissions on the reinstatement application and decided to refuse it. In a letter dated 8 July 2013, the Tribunal notified the parties of that decision and advised that reasons for the decision may be requested within 28 days. No party requested written reasons for the decision to refuse to reinstate the application.

16    Mr Mladenov contends that he was denied procedural fairness in the making of the reinstatement decision. His written submissions do not identify any specific way in which he was denied procedural fairness. The notice of appeal merely asserts a denial of procedural fairness. His affidavit in support of his notice of appeal did not shed any further light on this matter. Mr Mladenov’s oral submissions at the hearing on 24 October 2013 did not advance his contention that the Tribunal made an error of law in refusing to reinstate his application for review. The parties each had the opportunity to address the AAT at the hearing of Mr Mladenov’s reinstatement application on 8 July 2013. His focus on that day appears to have been on his request for documents from the respondents, rather than on advising the AAT about any document he intended to rely on or any witnesses he intended to call.

17    Mr Mladenov has not demonstrated that the AAT denied him procedural fairness in refusing to reinstate his application for review of the decision of the SSAT. The appeal must be dismissed with costs.

Associate:

Dated:    31 October 2013