Krivoshev and Secretary, Department of Employment

Case [2016] AATA 568

Krivoshev and Secretary, Department of Employment [2016] AATA 568 (4 March 2016)

Division

General Division

File Number

2015/1331

Re

Nicholas Krivoshev

APPLICANT

And

Secretary, Department of Employment

RESPONDENT

WRITTEN REASONS FOR DECISION

Tribunal

Deputy President J W Constance
Date 4 March 2016
Date of written reasons 3 August 2016
Place Sydney

...........[sgd].............................................................

J W Constance
Deputy President

CATCHWORDS

REINSTATEMENT - application dismissed due to failure to attend hearing - whether there is a reasonable excuse - whether there are reasonable prospects of success - application for reinstatement refused.

LEGISLATION

Administrative Appeals Tribunal Act 1975 (Cth) s 42A

Social Security (Administration) Act 1999 (Cth) s 42UA(2)

WRITTEN REASONS FOR DECISION

(DECISION GIVEN ORALLY ON 4 MARCH 2016)

Deputy President J W Constance

3 August 2016

INTRODUCTION

  1. On the 23 March 2016 Mr Krivoshev applied to the General Division of the Tribunal to review a decision made by the Social Services & Child Support Division that Mr Krivoshev should serve an eight week non-payment period in respect of his Newstart Allowance.

  2. Mr Krivoshev’s application was dismissed on 30 September 2015 due to his failure to attend a hearing. On 4 March 2016 his application for reinstatement of his application was rejected. I gave my reasons for doing so orally at that time.

  3. On request from Mr Krivoshev I now give my reasons in writing.

    BACKGROUND

  4. The Tribunal listed Mr Krivoshev’s application for hearing on 30 September 2015. There is correspondence on the file that indicates that Mr Krivoshev contacted the Tribunal prior to that hearing, informing that he did not have the funds to travel to the Tribunal. The Tribunal attempted to call the Applicant on 24 and 25 September 2015 with no success.

  5. The Tribunal wrote to Mr Krivoshev on 26 September 2015 advising that the hearing date would remain as listed and he could request to appear by telephone if he was unable to attend in person.

  6. Mr Krivoshev did not attend the hearing on 30 September 2016 and the application was dismissed on the basis that he had failed to appear at the hearing.

  7. Mr Krivoshev applied for reinstatement on 29 October 2016. The reinstatement application was listed for hearing on 14 December 2015. The application was dismissed by reason of Mr Krivoshev’s failure to appear at the hearing. 

  8. Mr Krivoshev had written to the Tribunal requesting a change of that hearing date, but he agreed that at the time the application was dismissed, he had not been advised by the Tribunal that there would be any change in the date of the hearing.

  9. Mr Krivoshev indicated that he was unable to attend this hearing due to his health and his insufficient funds. However, evidence before me as to payments by Centrelink to Mr Krivoshev indicates that prior to the initial hearing of the matter in September 2015 he had received a payment of $1068.40 on 14 September 2015 and that he received a payment of $1076.80 on 24 November 2015. In relation to the latter of those payments, Mr Krivoshev said that he had spent that money on various living expenses and the repayment of loans prior to the hearing on 14 December 2015. On the basis of that evidence, I am not satisfied that financial necessity is a satisfactory explanation for Mr Krivoshev’s failure to appear on previous occasions.

    LEGISLATION

  10. The power to reinstate an application is provided by section 42A(8) of the Administrative Appeals Tribunal Act 1975 (Cth). That section provides that an application may be made for reinstatement within the period provided by the Act. Subsection (8A) provides that the time for making such an application is 28 days after receiving notification that the application has been dismissed, or if the party requests an extension, such longer period as the Tribunal in special circumstances allow it.

    CONSIDERATION

  11. Mr Krivoshev acknowledges that he did receive the letter from the Tribunal of 30 September 2015, which notified him that his application had been dismissed. The present application to reinstate was made by letter of 25 January 2016, received on the same day by the Tribunal. This application, then, is made some three and a half months after the application for review was dismissed.

  12. Taking into account the explanations that Mr Krivoshev has given, I am not satisfied that an extension of time should be allowed to make a reinstatement application, as I am not satisfied that any special circumstances have been shown. The explanation that Mr Krivoshev has given is based on financial necessity and I am not satisfied that that is the case.

  13. Further, on the basis of the material that is before the Tribunal and in particular having considered the decision under review and any explanation given by Mr Krivoshev, it does not appear to me that there are reasonable prospects that this application, if reinstated, would succeed in any event.

  14. I have been referred by Counsel for the Secretary to subsection 42UA(2) of the Social Security (Administration) Act 1999. This section provides that a person does not have a reasonable excuse for a reconnection failure unless the person either provides notice of the excuse before the failure occurs or the Secretary is satisfied that there were circumstances in which it was not reasonable to expect the person to give notification.  Mr Krivoshev has not provided any evidence to indicate that either of those requirements have been met and on that basis I take the view that the prospects of success are not strong.

    CONCLUSION

  15. On that basis, the application to reinstate the application to review the decision, being the application lodged on 23 March 2015, was dismissed.

I certify that the preceding 15 (fifteen) paragraphs are a true copy of the reasons for the decision herein of Deputy President J W Constance.

.............[sgd]...........................................................

Associate

Dated 3 August 2016

Date of hearing 4 March 2016
Date final submissions received 4 March 2016
Applicant In person
Solicitors for the Respondent Mr D McLaren; Department of Human Services
Details
AGLC
Krivoshev and Secretary, Department of Employment [2016] AATA 568
Case
[2016] AATA 568
Decision Date

CaseChat Overview and Summary

In Krivoshev and Secretary, Department of Employment, the applicant, Mr Krivoshev, sought to have his application for review reinstated, which had been dismissed due to his failure to attend the hearing. The dispute primarily centred on whether Mr Krivoshev had a reasonable excuse for not attending the hearing and whether there were reasonable prospects of success if the application were to be reinstated. The court was required to determine if the application for reinstatement could be granted under section 42A(8) of the Administrative Appeals Tribunal Act 1975 (Cth), considering the time frame within which the application for reinstatement had to be made, and whether special circumstances existed to extend this time frame. Additionally, the court needed to assess if there were reasonable prospects of success if the application were reinstated.

The court examined the evidence provided by Mr Krivoshev, including his claim of financial necessity for not attending the hearing. Despite evidence of Centrelink payments made to him before the hearing, the court found that these payments did not substantiate his claim of financial necessity. Furthermore, the court considered the timeliness of the reinstatement application, noting that it was filed three and a half months after the dismissal, far beyond the 28-day period allowed under the Act. The court concluded that Mr Krivoshev had not demonstrated any special circumstances warranting an extension of time for the reinstatement application. Additionally, considering the merits of the original application, the court found that the prospects of success were not strong based on the evidence and arguments presented.

Given the findings, the court dismissed the application for reinstatement. The court ruled that Mr Krivoshev had not shown a reasonable excuse for his failure to attend the hearing and had not met the requirements for an extension of time under the Act. Moreover, the court held that the prospects of success for the original application were not strong, as indicated by the lack of compelling evidence or arguments. Consequently, the application to reinstate the review of the decision was dismissed.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

On request from Mr Krivoshev I now give my reasons in writing.BACKGROUND The Tribunal listed Mr Krivoshev’s application for hearing on 30 September 2015. There is correspondence on the file that indicates that Mr Krivoshev contacted the Tribunal prior to that hearing, informing that he did not have the funds to travel to the Tribunal. The Tribunal attempted to call the Applicant on 24 and 25 September 2015 with no success. The Tribunal wrote to Mr Krivoshev on 26 September 2015 advising that the hearing date would remain as listed and he could request to appear by telephone if he was unable to attend in person. Mr Krivoshev did not attend the hearing on 30 September 2016 and the application was dismissed on the basis that he had failed to appear at the hearing. Mr Krivoshev applied for reinstatement on 29 October 2016. The reinstatement application was listed for hearing on 14 December 2015. The application was dismissed by reason of Mr Krivoshev’s failure to appear at the hearing. Mr Krivoshev had written to the Tribunal requesting a change of that hearing date, but he agreed that at the time the application was dismissed, he had not been advised by the Tribunal that there would be any change in the date of the hearing. Mr Krivoshev indicated that he was unable to attend this hearing due to his health and his insufficient funds. However, evidence before me as to payments by Centrelink to Mr Krivoshev indicates that prior to the initial hearing of the matter in September 2015 he had received a payment of $1068.40 on 14 September 2015 and that he received a payment of $1076.80 on 24 November 2015. In relation to the latter of those payments, Mr Krivoshev said that he had spent that money on various living expenses and the repayment of loans prior to the hearing on 14 December 2015. On the basis of that evidence, I am not satisfied that financial necessity is a satisfactory explanation for Mr Krivoshev’s failure to appear on previous occasions.LEGISLATION The power to reinstate an application is provided by section 42A(8) of the Administrative Appeals Tribunal Act 1975 (Cth). That section provides that an application may be made for reinstatement within the period provided by the Act. Subsection (8A) provides that the time for making such an application is 28 days after receiving notification that the application has been dismissed, or if the party requests an extension, such longer period as the Tribunal in special circumstances allow it. CONSIDERATION Mr Krivoshev acknowledges that he did receive the letter from the Tribunal of 30 September 2015, which notified him that his application had been dismissed. The present application to reinstate was made by letter of 25 January 2016, received on the same day by the Tribunal. This application, then, is made some three and a half months after the application for review was dismissed. Taking into account the explanations that Mr Krivoshev has given, I am not satisfied that an extension of time should be allowed to make a reinstatement application, as I am not satisfied that any special circumstances have been shown. The explanation that Mr Krivoshev has given is based on financial necessity and I am not satisfied that that is the case.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

I have been referred by Counsel for the Secretary to subsection 42UA(2) of the Social Security (Administration) Act 1999. This section provides that a person does not have a reasonable excuse for a reconnection failure unless the person either provides notice of the excuse before the failure occurs or the Secretary is satisfied that there were circumstances in which it was not reasonable to expect the person to give notification. Mr Krivoshev has not provided any evidence to indicate that either of those requirements have been met and on that basis I take the view that the prospects of success are not strong. CONCLUSION On that basis, the application to reinstate the application to review the decision, being the application lodged on 23 March 2015, was dismissed.

Ratio Decidendi

Legal Principle Established

The power to reinstate an application is provided by section 42A(8) of the Administrative Appeals Tribunal Act 1975 (Cth). That section provides that an application may be made for reinstatement within the period provided by the Act. Subsection (8A) provides that the time for making such an application is 28 days after receiving notification that the application has been dismissed, or if the party requests an extension, such longer period as the Tribunal in special circumstances allow it. CONSIDERATION Mr Krivoshev acknowledges that he did receive the letter from the Tribunal of 30 September 2015, which notified him that his application had been dismissed. The present application to reinstate was made by letter of 25 January 2016, received on the same day by the Tribunal. This application, then, is made some three and a half months after the application for review was dismissed. Taking into account the explanations that Mr Krivoshev has given, I am not satisfied that an extension of time should be allowed to make a reinstatement application, as I am not satisfied that any special circumstances have been shown. The explanation that Mr Krivoshev has given is based on financial necessity and I am not satisfied that that is the case. Further, on the basis of the material that is before the Tribunal and in particular having considered the decision under review and any explanation given by Mr Krivoshev, it does not appear to me that there are reasonable prospects that this application, if reinstated, would succeed in any event. I have been referred by Counsel for the Secretary to subsection 42UA(2) of the Social Security (Administration) Act 1999. This section provides that a person does not have a reasonable excuse for a reconnection failure unless the person either provides notice of the excuse before the failure occurs or the Secretary is satisfied that there were circumstances in which it was not reasonable to expect the person to give notification. Mr Krivoshev has not provided any evidence to indicate that either of those requirements have been met and on that basis I take the view that the prospects of success are not strong. CONCLUSION On that basis, the application to reinstate the application to review the decision, being the application lodged on 23 March 2015, was dismissed.