FEDERAL COURT OF AUSTRALIA

Mladenov v Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2014] FCA 12

THE COURT ORDERS THAT:

1.    The time in which the applicant has leave to file and serve a Notice of Appeal from the orders of the Court dated 31 October 2013 is extended to 11 February 2014.

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

REASONS FOR JUDGMENT

INTRODUCTION

1        This is an application for an extension of time in which to file an appeal from the orders of the primary judge given in this Court on 31 October 2013. By those orders, the learned primary judge dismissed the applicant’s appeal, made under s 44 of the Administrative Appeals Tribunal Act 1975 (Cth) (AAT Act), from a decision of the Administrative Appeals Tribunal (AAT) to refuse to reinstate his application before it.

2        For the reasons that follow, there will be an extension of the time in which the applicant may file and serve a Notice of Appeal from the orders of the primary judge.

BACKGROUND

3        This proceeding concerns attempts by the applicant, Mr Mladenov, to review a decision of Centrelink, whereby Centrelink found he had been overpaid in respect of two different social security benefits for two different periods. Centrelink found that the applicant had incurred a debt of $23,562.77 for overpayment of the disability support pension (DSP) between 17 November 2001 and 9 January 2004, and that he had incurred a debt for overpayment of Newstart Allowance in the sum of $8,009.30 for the period 27 June 1995 to 25 June 1996. The applicant disputed both those findings and applied first to the Social Security Appeals Tribunal (SSAT) for review of Centrelink’s decision.

4         On 10 September 2012, the SSAT affirmed Centrelink’s decision in respect of the overpayment to the applicant of DSP. In respect of the overpayment for Newstart Allowance, the SSAT found the overpayment to have been for a more confined period, and set aside Centrelink’s decision, and remitted the matter to Centrelink for recalculation of the applicant’s debt, based on the amended recovery period it identified.

5        On 25 September 2012, the applicant applied to the AAT for review of the SSAT’s decision. It was the manner in which the AAT dealt with the applicant through the process of preparing his review application for hearing which gave rise to the applicant’s complaints before the AAT and subsequently before the learned primary judge.

6        As it usually would in a review application of this kind, the AAT made directions for the filing of evidence, documents and statements of facts and contentions by both parties, with the respondents directed to file their material first (by 20 March 2013), and the applicant to file his in response, 30 days after receipt of the respondents’ material. Again, as it usually would, the AAT’s directions contained “Notes”, which relevantly included statements to the following effect:

  •  If you do not comply with a direction, the Tribunal will usually list the application for a directions hearing. You will be required to attend the directions hearing in person and explain why you have not complied with the direction.

  •  The Tribunal can dismiss an application if an Applicant fails within a reasonable time to comply with a direction made by the Tribunal. This power is set out in section 42A(5)(b) of the Administrative Appeals Tribunal Act 1975.

If you are the Applicant and you fail to comply with a direction, the Tribunal may list the application either for a directions hearing or a dismissal hearing. You may be asked to explain why your application should not be dismissed.

  •  If a party fails to comply with this direction, the Tribunal will not necessarily decide to adjourn, or delay the listing of, an alternative dispute resolution process or hearing.

  •  If you do not believe you will be able to comply with a timeframe or any other aspect of this direction, you must apply to the Tribunal for an extension of time to comply or a variation of the direction. You must seek the views of the other party before making such an application, and advise the Tribunal of the other party’s views. You should make the application well before the date by which you are required to comply with the direction.

7        On 20 March 2013, the respondents filed and served a statement of facts, issues and contentions in compliance with the directions of the AAT. However, the applicant claimed that he did not receive this document, and called the AAT on 21 March 2013, saying as much. He then sent a letter to the AAT on 26 March 2013, again recording the fact he had not received the respondents’ statement of fact and contentions, but also raising a number of other matters. He alleged some sense of collusion between the AAT and the respondents’ solicitors; he alleged the respondents’ solicitor had a conflict of interest because of the length of time she had been working for the respondents on this matter, and he asserted the Tribunal supported the respondents “101%”. He went on, at many places in his three-page handwritten letter, to express his resolution not to take any further part in the AAT proceedings, and to accept what he clearly saw as a forgone conclusion that the AAT would agree with the respondents’ submissions.

8        He also stated:

I have been ask the AAT and respondent for documents to supply, but what I see again the AAT and respondent have been ignore on this why maybe is not relevent for them to do so. But for my self yes. Or I must accept from AAT.

9        In response to the applicant’s stated attitude to the remainder of the review process, the AAT then convened a telephone directions hearing on 2 May 2013. At that directions hearing, the applicant was directed to file and serve any statement from himself and any other witness, and copies of any documents on which he intended to rely, by 23 May 2013, or to inform the AAT and the respondents if he decided not to call any evidence or file any documents. The former direction that he file and serve a statement of facts and contentions was not renewed by the Tribunal.

10        On 2 May 2013, and apparently in response to the applicant’s earlier claim of non-receipt, the respondents’ solicitor sent an additional copy of the respondents’ statement of facts, issues and contentions to the applicant.

11        On 8 May 2013, the applicant wrote to the AAT and the respondents again seeking documents he said he required. This handwritten letter was headed “Documents I should have” and identified eight documents, or categories of documents, without which the applicant claimed he was unable make any statement of facts and contentions.

12         On 22 May 2013, the respondents’ solicitors replied to this letter. The gist of the respondents’ response was that the applicant already had most of what he sought, particularly in the T Documents that were before the SSAT. It appears from the SSAT decision that the passage of time, and other reasons, meant some documents were found by the SSAT simply not to be available. The respondents took issue with the applicant’s assertion that he was unable to make any statement of facts and contentions, saying that he could put his contentions on the basis of the existing material and his claim generally.

13        The applicant did not comply with the Tribunal’s 2 May 2013 directions. On 3 June 2013, the AAT wrote to the parties advising that the matter would be listed for a further directions hearing on 13 June 2013, due to the applicant’s non-compliance. The letter also stated:

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 section 42A(5) of the Administrative Appeals Tribunal Act 1975. The Tribunal may ask the Applicant to explain why the application should not be dismissed.

14        Prior to this directions hearing, on 11 June 2013, the applicant filed and served a handwritten statement of facts and contentions with what seems to be a collection of typewritten documents, as well as documents from the internet about the social security legislation and its administration by Centrelink. As I observed, the 2 May 2013 directions did not renew the direction for him to file a statement of facts and contentions. He did not file any witness statements or documents to be relied on, nor did he comply with the direction of the Tribunal made on 2 May 2013 requiring him to advise the Tribunal if he did not intend to call witnesses or rely on documents. His statement of facts and contentions collected together some criticisms of the accuracy of Centrelink’s computer systems both generally and in relation to the two overpayments he had been found to have received, reiterated his need to see documents he asserted he had not seen (such as a group certificate from one of his previous employers, Portlink) and criticised aspects of the SSAT decision-making, such as the dates it found for the overpayments.

15        At the directions hearing on 13 June 2013, Deputy President Constance dismissed the applicant’s application for review to the AAT, pursuant to s 42A(5) of the AAT Act, by reason of the applicant’s failure within a reasonable time to comply with the direction of the Tribunal made on 2 May 2013. The Tribunal, by a letter the following day, informed the applicant that the Tribunal may reinstate an application if it appears to the Tribunal that the application has been dismissed in error. The applicant applied for reinstatement on 20 June 2013. His application was heard by Senior Member Friedman on 8 July 2013, who refused the application for reinstatement. As the learned primary judge noted, the Tribunal advised the parties of their rights to request reasons for this refusal, but no request was made within the prescribed 28-day time limit.

16        It is the Tribunal’s refusal to reinstate the applicant’s review application which was the subject matter of the proceedings in this Court. It is that decision the applicant needed to impugn by stating a question of law for the Court’s consideration, a ground identifying an error of law by reference to the Tribunal’s decision, and orders seeking to correct that error, for the purposes of s 44 of the AAT Act.

PROCEEDINGS IN THIS COURT

17        In his Notice of Appeal dated 2 August 2013, the applicant specified the question of law to be raised as “procedural fairness”. In his supporting affidavit, the applicant stated that he was “always asking from the Respondent to supply me with more documents. And till this day I did not have nothing from Respondent, even the Tribunal did not give the order to respondent”. He also stated that, at the 13 June 2013 hearing, the Tribunal Member had discussed possible hearing dates and had given a hearing date of 3 July 2013, but then (suddenly, according to the applicant) announced he was dismissing the applicant’s application for review. The applicant stated that in the reinstatement application hearing on 8 July 2013 “I was asking again the same, the letters I have been give to the Tribunal and Respondent for the documents I always been asking, but I believe the Tribunal just not accept anything what I been said”.

18        On 31 October 2013, the learned primary judge dismissed the appeal on the basis that the applicant had not demonstrated that the AAT had denied him procedural fairness (at [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.

19        Pursuant to r 36.05 of the Federal Court Rules 2011 (Cth) (Rules), on 13 December 2013 the applicant applied to the Court for an extension of time in which to appeal from the decision of the primary judge. Rule 36.03 requires a Notice of Appeal to be filed and served within 21 days after the date when the orders or judgment were pronounced. Accordingly, a Notice of Appeal in this matter should have been filed by 21 November 2013. The applicant is therefore 22 days out of time.

20        The respondents oppose the extension of time sought by the applicant. They have also filed a notice of objection to the competency of the appeal, on the basis that the applicant’s proposed Notice of Appeal dated 13 December 2013 does not state with any specificity or in any comprehensible way the grounds relied upon in support of the proposed appeal.

EVIDENCE ON THE LEAVE APPLICATION

21        The Court had before it on the leave application two affidavits sworn by the applicant and the whole of the Court Book in the form it took before the primary judge. In addition, the applicant filed a bundle of documents entitled “Appeal Book Draft” which, while reproducing some of the material in the Court Book before the primary judge, also contained a collection of documents obtained by the applicant through requests under the Freedom of Information Act 1982 (Cth), both before and after the AAT’s dismissal of his application for review and of his reinstatement application. These documents were used by the applicant in submissions on the leave application to illustrate in more detail what he was seeking through his requests for documents from the respondents at the AAT.

22        The respondents did not seek to cross-examine the applicant, and did not object to the tender of any of the material relied upon.

CRITERIA GOVERNING THE GRANT OF EXTENSION OF TIME

23        The breadth of the Court’s discretion to grant leave to file a Notice of Appeal outside the 21-day period after the date on which the judgment or orders below were pronounced has been re-emphasised by the removal of the “special reasons” consideration: cf Federal Court Rules 1979 (Cth) O 52 r 15(2). The authorities in this Court reveal three principal matters the Court usually takes into account: any explanation for the delay, any prejudice to the respondent or other parties which might be occasioned if the extension of time were granted, and the prospects of success of the appeal if an extension of time were to be granted. These considerations were set out in Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344 at 348-349 and have been applied consistently in this Court.

24        That is not to say the Court is in any way confined to, or by, those considerations. Rather it is to observe that those three matters are of substantial assistance to the Court in identifying the circumstances in which it may be in the interests of the administration of justice for an extension of time to be granted.

25        The prospects of success of the proposed appeal are to be assessed by considering the merits without going into too much detail, taking into account the fact that the arguments are not fully developed and all the material may not be before the Court, but recalling the need to serve the interests of justice: see generally Ward v Repatriation Commission [2004] FCA 1163; Jackamarra v Krakouer (1998) 195 CLR 516 at 521-522 [7]-[9].

26        An appropriate starting assumption however, is that a time limit is not to be ignored: see Jacobson J in Caporale v Commissioner of Taxation [2012] FCA 556 at [8]. Section 37M of the Federal Court of Australia Act 1976 (Cth) requires that the discretion to extend time must be exercised with due regard to the overarching purpose of the civil procedure provisions of the Federal Court Act and the Rules: namely, to facilitate the just resolution of disputes according to law and as quickly, inexpensively and efficiently as possible. If anything, consideration of the overarching purpose emphasises the importance to the exercise of this particular discretion of the merits of the proposed appeal. To extend time in an appeal which has no realistic prospects is to involve the Court and the parties, and many public resources, in a process which is not quick, inexpensive or efficient. Unless there are strong countervailing circumstances, it is unlikely to facilitate the just resolution of a dispute to allow a matter, not commenced within the time the law requires, to proceed to a full hearing on a claim that has no realistic prospects of success.

27        In the applicant’s first affidavit he states that he first attempted to lodge an appeal from the decision of the primary judge on 20 November 2013, but his application was refused as he had not provided a draft Notice of Appeal. He then goes on to set out his attempts to secure legal advice from various community legal services and Victoria Legal Aid. In their written submissions, the respondents accept that the applicant has provided an explanation for his delay in filing his Notice of Appeal.

28        In their written submissions, the respondents also concede that no prejudice would be suffered by them should an extension of time be granted to the applicant. The principal consideration in dispute is whether, if an extension of time were to be granted, the applicant’s appeal would have any prospects of success.

RESOLUTION OF THE APPLICATION FOR LEAVE

29        The applicant represented himself in the SSAT and in the AAT, and does so again in this Court. Most of the documents he has filed at each stage are handwritten by him, suggesting perhaps a low level of access to resources. It is also clear from his handwritten documents that English is not his first language, and he is not legally trained. Sometimes, the content of his documents is difficult to follow at a conceptual level, although there are parts of what the applicant has said right from the start of the proceedings in the AAT which are very clear. One example is his insistence that he did not have the documents he needed properly to present his case. What was less clear from time to time, on the evidence, is what documents he means to refer to. I return to this issue in more detail below.

30        The applicant has pursued his claims against Centrelink in a determined manner for some time now. One of the overpayments is more than 20 years old and his sense of grievance at being pursued for such an old (and relatively small) debt after such a long time is palpable. From the evidence, there is a sense the Court may well have an incomplete picture of the applicant’s dealings with Centrelink. The relevance of the applicant’s determination is that this is not a circumstance where a person can be said to have “sat on his or her rights”. The AAT review was, from the applicant’s perspective, brought to a sudden and unexpected halt. His determination to pursue the matter was apparent from his pursuit of an appeal under s 44 of the AAT Act in this Court, again unrepresented. However, his intention to take the matter further apparently was then tempered by a realisation that for an appeal he may need legal assistance and he set about trying to obtain it. From the account he gives, which I have no reason to doubt, he made the kind of inquiries which could reasonably be expected, and did so without undue delay. However, the response times for agencies who offer legal assistance are not necessarily compatible with the time limits imposed by the Rules, and the applicant’s account of his attempts bears this out.

31         It might be said he should have lodged the appeal and then sought legal assistance. In fact, he did attempt to do so. He was told, correctly, that the Rules require a draft Notice of Appeal and it was at this stage he sought legal assistance, through at least three different agencies, all of whom refused it. In the circumstances, he has an acceptable explanation for the delay.

32        I also accept the respondents’ concession, properly made, that they would suffer no prejudice if an extension of time were granted.

33        Assessing the merits of the applicant’s appeal is more problematic. His proposed Notice of Appeal states, under grounds of the appeal, “Error of law and denial of procedural fairness for exchange the documents”. That complaint appears to be directed more at the original error he identified in the AAT’s reinstatement decision (and the AAT’s earlier dismissal decision), rather than any specific error in the reasoning of the primary judge.

34        However, when the second affidavit which accompanied the proposed Notice of Appeal is considered alongside the proposed Notice of Appeal, his complaint about the decision of the learned primary judge emerges at least to some extent. In substance, his complaint is that the primary judge erred in not accepting his arguments about why there was an error of law in the reinstatement decision of the AAT. The error which is sufficiently apparent from what the applicant has said is a continued denial of procedural fairness to him, by not allowing his application for review to proceed to its conclusion in circumstances where he was asking for documents from the respondents which he contended were necessary for him to present his case on review, and he had received no ruling from the Tribunal whether the respondents were required to provide those documents.

35        It is clear from the evidence that the applicant failed to comply at all with the Tribunal’s first orders of 20 February 2013, that he file and serve a statement of facts and contentions and any witness statements and documents on which he intended to rely. His explanation, given by letter on 8 May 2013, was that he could not set out his case without the documents he needed and which he said were in the respondents’ possession. In fact, by this time, the Tribunal had vacated the previous direction and instead ordered the applicant only to file his evidence and documents, and had given him until 23 May 2013 to do this. The applicant also did not comply with that second direction at all. That is, he did not attempt to file some evidence and documents, and continue to ask for others. He simply filed nothing.

36        When the Tribunal wrote to the applicant on 3 June 2013, its letter made clear that the applicant’s default put him at risk of the Tribunal exercising its power to dismiss his application for review. I find that the applicant was aware of this risk. That appears to be why on 11 June 2013 — two days before the directions hearing — he filed a statement of facts and contentions, a document he was no longer under any direction to file. However, I infer he understood that he needed to put something before the Tribunal by way of an articulation of what his arguments were on the review application.

37        There is no evidence before the Court about what the Tribunal’s reaction was to this document. The affidavit before the primary judge filed on behalf of the respondents simply recounts the fact of the applicant’s statement of facts and contentions being filed and served. The affidavit then recounts the fact of the dismissal of the application for review pursuant to s 42A(5). The Tribunal’s decision is exhibited, but there are no reasons. No notes of the hearing are produced, nor any transcript.

38        When the AAT sent the applicant a copy of its decision under s 42A(5), it drew to his attention both the Tribunal’s power to reinstate his application where the application was dismissed in error, and the entitlement to appeal to this Court under s 44 of the AAT Act. It is clear on the evidence that what the applicant has always wanted is to have his review application in respect of Centrelink’s decision heard and determined in the AAT. Therefore, it is unsurprising that at this point the applicant sought to try and have his review application reinstated, rather than appeal under s 44 of the AAT Act. As the respondents conceded in argument, the scope of the reinstatement power in s 42A(10) of the AAT Act, and what is meant by the use of the word “error”, has been the subject of some debate: see, eg, Brehoi v Minister for Immigration and Multicultural Affairs (1999) 58 ALD 385 at 389-390; cf Goldie v Minister for Immigration and Multicultural and Indigenous Affairs (2002) 121 FCR 383 at 388-390 per Wilcox and Downes JJ. On the evidence, that debate was not canvassed before the AAT on the reinstatement application, nor was the scope of the power canvassed at all before the primary judge, although it was the exercise of that power which was under review in this Court.

39        The “error(s)” identified by the applicant in his written submissions filed before the reinstatement application was heard by the AAT were twofold. First, that he had always been seeking documents from the respondent, without which “I can not do anything” (and, implicitly, that the Tribunal wrongly failed to act on his request for the respondents to produce these documents and therefore did not act in a procedurally fair way). Second, that at the AAT’s directions hearing on 13 June 2013 the discussion turned to hearing dates, the Tribunal member nominated 3 July 2013 and when the applicant stated that the matter would take more than one day, “the Tribunal changed his main [I infer this should read “mind”], and say, that application can be dismiss and just happen, it was not fair”. Again, the plain inference is that the applicant was identifying an error of procedural fairness: namely, that his entire review application was dismissed summarily, while he was still pursuing documents he said he needed to present his case.

40        Although invited to by the AAT, the evidence does not disclose that the respondents filed any submissions in advance of the reinstatement application.

41        There is no evidence before the Court about the course of the reinstatement application on 8 July 2013. It is common ground the hearing occurred by telephone, and was short. Again, there are no reasons for the Tribunal’s dismissal of the reinstatement application.

42        The respondents submitted that the application for leave should be dismissed because neither the draft Notice of Appeal, nor the applicant’s material, identifies any appellable errors. Making reasonable allowances not only for the fact that the applicant is unrepresented, but also that English is not his first language, I find his arguments on the identification of error to be clear enough to consider and I reject the respondents’ submission to the contrary. Two arguments appear in the applicant’s material before the primary judge. Both concern a denial of procedural fairness, which is how the question of law in his Notice of Appeal was expressed before the primary judge.

43        The two arguments are these. First, that the Deputy President who dismissed his application should have disqualified himself on the ground of bias (whether actual or apprehended, for present purposes it does not matter) because the same Deputy President had heard and determined an earlier application for review by the applicant in respect of a decision of Centrelink. The orders made in that review were adduced in evidence by the applicant before the primary judge. On their face, the orders (dated 23 May 2012) appear to be favourable to the applicant. In any event, the bias alleged is not in respect of the AAT as constituted for the reinstatement decision which is the subject of the appeal under s 44. If there was any bias, it was cured by the reinstatement application to the Tribunal, differently constituted: Twist v Randwick Municipal Council (1976) 136 CLR 106 at 116 per Mason J; Calvin v Carr [1980] AC 574. This first argument has no realistic prospects of success even if leave were given to file a Notice of Appeal out of time.

44        The second, and more prominent, argument is that the Tribunal’s process was not procedurally fair. The applicant’s case is that the reinstatement application was dealt with summarily without any proper consideration of why he had not complied with the AAT’s directions. This continued the procedural unfairness occasioned by the AAT’s dismissal of the applicant’s entire application for review because of such non-compliance, in circumstances where the applicant could not comply with the direction without documents the Tribunal had not considered whether the respondents ought to produce. As I have already observed, there were varying degrees of clarity in the applicant’s descriptions of what those documents were. However, before the primary judge, in reply submissions, the applicant did provide a list of the documents. He identified the following:

The documents which I have been told the Tribunal are:

    1 =    Georgi Ristovski T 45 page 254

    2 =    K & M Transport 19 Mossfied Mews Tullamarine T 11 page 26

    3 =    Industrial Accident Assessors Pty Ltd, any records

    4 =    Document for raised the amount of $24-119.829 total on T documents page 229 frist 3 lines.

    5 =    Documents before or 14-1-2002 statement by Director of KNM Transport of 61 Paxton St Sth Kingsville T 9 page 23.

    6 =    Documents from Portlink Pty Ltd, P/L Holdings Pty Ltd, Gaffeney Transport Pty Ltd. Etc.

45        The applicant made it clear on many occasions he felt unable to present his arguments without those documents. In submissions on the application for an extension of time, he explained as best he could why each document, or category of documents, was relevant to the case he wished to present on review in the Tribunal. The relevance of the identified documents might be debatable, but on a challenge involving denial of procedural fairness the likely outcome of a fair process is of no concern to the reviewing court beyond satisfaction that the applicant was denied the possibility of a different outcome: see Stead v State Government Insurance Commission (1986) 161 CLR 141 at 147; WZARB v Minister for Immigration and Citizenship (2013) 136 ALD 77 at [34] per Logan J.

46        What is less debatable are two matters. First, that the applicant was not able to comply with a direction that he file and serve copies of the documents on which he intended to rely, if those documents remained in the possession of the respondents who had not provided them, and the Tribunal had not considered whether to order that they be provided. Second, in those circumstances, it is difficult to see how the Tribunal could reasonably expect the applicant to comply with that direction, without sorting out in a fair and substantive way the documents to which the applicant was entitled so that he could properly present his arguments on the review application. This never occurred: there was correspondence between the parties but the Tribunal never resolved the applicant’s complaint (clearly made) that he needed more documents from the respondents in order properly to present his case. The applicant may have been overly pugnacious (in oral submissions he frankly conceded he may have become angry, and that he may have exaggerated from time to time), and the documents he was concerned with may have seemed to have but tenuous connections with the issues the Tribunal needed to decide. Nevertheless, the Tribunal’s task, in affording a hearing on review which is procedurally fair, was to consider the submission the applicant was continually making about needing further documents from the respondents, to consider it fully and fairly, and then to make a decision so that the parties knew where they stood on that issue.

47        Under s 37(2) of the AAT Act, the Tribunal may require particular additional documents to be lodged if the Tribunal considers those documents may be relevant to the review. The Tribunal may also by summons order the production of documents: s 40(1A). Under s 39 of the AAT Act the Tribunal is obliged, amongst other things, to give every party a reasonable opportunity to present his or her case. The latter has been characterised as an essential ingredient of procedural fairness: Kioa v West (1985) 159 CLR 550 at 615; Sullivan v Department of Transport (1978) 20 ALR 323 at 342.

48        Recognising the difficulties which a Tribunal may encounter in dealing with a litigant in person on a merits review, the entitlement of such a person to present the case on merits review which she or he wishes to present was emphasised by Drummond and Dowsett JJ in Wade v Comcare (2002) 69 ALD 602 at 607 [25]:

It is easy to underestimate the difficulties associated with a case conducted by a litigant in person. The tribunal, whether it be a court or otherwise, must conduct the proceedings efficiently, ensure that the unrepresented party is not unfairly disadvantaged and resolve the matter in a way which is both impartial and apparently so. Difficulties frequently arise when an unrepresented party seeks to call a witness whose evidence, although strictly relevant, really takes the case no further.

…

However, it must be kept in mind that provided reasonable limits are not exceeded, it is for the parties, and not the tribunal to decide which witnesses should be called. It is unsatisfactory in the administration of justice that a litigant should feel that he or she has been prevented from calling a witness who may have been of assistance. There is a clear line between, on the one hand, persuading a self-represented party as to the appropriateness of a suggested course and on the other, overriding his or her right to decide.

49        Although that case dealt with the choices of an unrepresented applicant to call witnesses, there is an analogy with the choice of kinds or categories of documents to be relied upon.

50        It is fairly arguable that the applicant was entitled to a ruling from the Tribunal on his requests for documents from the respondents before his non-compliance with a direction to file documents could lead to the wholesale dismissal of his review application.

51        In the primary judge’s reasons, the paragraph which I have extracted at [18] above represents his Honour’s reasoning on dismissing the s 44 appeal. The concluding sentences of his Honour’s reasoning are:

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.

52        With respect to the learned primary judge, this reasoning may be problematic. The applicant’s complaint was that the respondents had documents he wished to rely on, and he kept asking the Tribunal to order their production. How could the applicant “advise the AAT about any document he intended to rely on” if the documents he apprehended he might wish to rely on were currently in the possession of the respondents and he had not been able to see them to determine if he wished to rely on them? He thought he might wish to rely on them, he thought they were relevant, but how in fairness could he be asked to make that decision (and comply with the direction) unless he had seen them, been told by admissible evidence that they did not exist or were not in the possession of the respondents, or received a ruling that the respondents were not required to produce them? At the very least, how could a Tribunal, acting fairly, be satisfied this was the kind of non-compliance justifying complete dismissal of an applicant’s review without adjudication on the merits if it had not turned its mind, after submissions, to whether the documents the applicant was seeking (and which explained the non-compliance) were relevant? It must be remembered that the exercise of power by the Tribunal on 13 June 2013 to dismiss the applicant’s application, confirmed by the Tribunal’s refusal on 8 July 2013 to reinstate the review, meant the applicant was entirely denied a review on the merits of Centrelink’s decision.

53        Thus, the applicant’s complaint on the reinstatement application remained what it had always been: that he was entitled to see the documents he asked for, on the basis he asserted they were relevant to his application for review, and the Tribunal had never determined whether the respondents should be compelled to produce them. Without such a determination from the Tribunal, the dismissal of his review application involved a denial of procedural fairness which was an “error” for the purposes of s 42A(10). That is an arguable point. How or why the AAT rejected the reinstatement application is unknown as there are no reasons. The Court must then consider any appeal under s 44 on the basis of an assessment of the outcome of the reinstatement application, measured against the circumstances established by the evidence. The outcome may be prima facie one a reasonable Tribunal affording procedural fairness could not reach: see Minister for Immigration and Citizenship v Li (2013) 87 ALJR 618 at [68], [76] per Hayne, Kiefel and Bell JJ; Avon Downs Pty Ltd v Federal Commissioner of Taxation (1949) 78 CLR 353 at 360 per Dixon J.

54        It is a serious matter to deny a person a review of the merits of an administrative decision for which there is otherwise provision, and all the more so when the decision in issue is one which results in a person being compelled to repay what is for him a large sum of money. Where the denial of merits review occurs because of non-compliance with a direction from the Tribunal, the Tribunal must be satisfied that the non-compliance is sufficiently serious to warrant denying the non-compliant party any merits review at all. Further, on any reinstatement application, and subject to the scope of the term “error” in s 42A(5), a Tribunal acting reasonably needs to understand the reason for the non-compliance leading to the dismissal, and whether the non-compliance resulted from any procedural unfairness in the Tribunal’s own processes.

55        On the evidence as it stands, and without reasons for either the dismissal decision or the refusal of the reinstatement application, it is difficult to appreciate why the AAT exercised its powers as it did, with such a dramatic outcome for the applicant as to deny him completely his right of review on the merits of Centrelink’s decision. It is arguable that a Tribunal on the reinstatement application might have continued the alleged denial of procedural fairness if it did not, on the reinstatement application, explore why there had been non-compliance leading to dismissal.

56        The problem facing the Court on this application for leave is that none of these issues appear to have been fully explored before the learned primary judge; no attempt was made to secure transcript of (at least) the reinstatement hearing, and no reasons were sought from the AAT. That leaves the Court without the means to assess the reasoning of the repository of the power, and instead leaves the Court to compare the circumstances as disclosed by the evidence with the outcome of the exercise of power. In my opinion, it is arguable that comparison could produce a conclusion of legal unreasonableness.

57        It may be that the applicant’s prospects of success on his procedural fairness argument are slim, by reason of the absence of material about the reinstatement decision. However some of that material might be obtainable on appeal and more light might be shed on why the Tribunal appears to have dealt so swiftly and summarily with the reinstatement application. Or, the authorities about s 42A(5), to which no attention has so far been paid, may render the applicant’s argument unsuccessful.

58        None of this can confidently be predicted on the material as it stands. What is at stake for the applicant is access to a review of the merits of a decision by Centrelink, which currently leaves him with a debt to the Commonwealth of over $30,000, while his income consists of a disability support pension. His delay in lodging a Notice of Appeal was a short period of time, explicable through the applicant’s reasonable attempts to secure legal assistance. The applicant in fact attended the Federal Court Registry and attempted to lodge his appeal within time, although the attempt was unsuccessful. There is no prejudice to the respondents in the grant of an extension of time. It is arguable that the manner in which the reinstatement power was exercised either continued the denial of procedural fairness said to have occurred by the AAT’s decision on 13 June 2013, or was legally unreasonable. Further exploration of the legal and factual issues necessary to determine these matters may reveal the applicant’s arguments to be wrong. However, without that further exploration, which in my opinion is required for the applicant’s arguments to be determined, it is not in the interests of the administration of justice for the applicant to be precluded from an appeal.

59        There will be an extension of time for the lodging of a Notice of Appeal in this proceeding to 11 February 2014. There will be no orders as to the costs of the application. Any issues about a possible pro bono referral under div 4.2 of the Rules, in respect of the appeal itself, can be dealt with by the Court after the filing of the Notice of Appeal.

Associate:

Dated:    28 January 2014