A recent AAT decision handed down in November 2022 (Active Sports Management Pty Ltd and Industry Innovation and Science Australia) has allowed a company seeking review of an AusIndustry decision to be reinstated, on the grounds that the review was dismissed in error. The AAT found that while the company did not comply with certain directions from the Tribunal, they had made an effort in obtaining expert evidence and preparing submissions in support of its case.

We understand that this decision relates to the procedure of a company being able to seek review of a disputed AusIndustry finding of activity eligibility, and finalisation of such a review or AAT decision on eligibility of the activities is a SEPARATE Matter yet to be published.

Key background information is as follows:

• In 2019, Industry Innovation and Science Australia (“the Respondent”) made a decision that Active Sports Management (“the Applicant”)’s R&D claims included activities that were neither Core nor Supporting R&D activities, which the Applicant sought review of.
• That review was moved from September 2021 to April 2022, when the Applicant requested it be adjourned, and agreed to certain directions, namely that:

“On or before the date that is 28 days prior to the first date listed for hearing, the Applicant must lodge with the Tribunal and provide to the Respondent:

1. written opening submissions; and
2. a list of objections, if any, to the Respondent’s evidence.

If the Applicant does not comply  the matter will be dismissed pursuant to s 42A(5) of the Administrative Appeals Tribunal Act 1975 (the AAT Act).”

• However, the Applicant did not comply with those directions, and so the matter was dismissed in August 2022.
• The Applicant then filed for it to be reinstated in September 2022.

The AAT made the following points in making their decision:

• A party may apply for a matter to be reinstated where it was dismissed under subsections 42A(1B) and subsection 42A(2). However, the Applicant’s original application was not dismissed under either of these provisions.
• The only other reason this matter could be reinstated is if it was dismissed in error. Here, the AAT referenced Goldie v Minister for Immigration and Multicultural and Indigenous Affairs, where Justice Carr said:
  • “In my view, there is a significant degree of desirability of persons being able to rely on the ordinary meaning conveyed by the word “error”. More importantly, s 42A(10) provides a mechanism of avoiding prolonging legal or other proceedings without compensating advantage. The mechanism is a relatively informal method of bringing a matter back to the Tribunal for reconsideration with a view to it being considered on the merits. It can be seen as a convenient, prompt and inexpensive means whereby errors which may have occurred in the exercise of the Tribunal’s default jurisdiction can be rectified. That is, any sort of error in dismissing an application summarily, whether the error be administrative error or any other error. (Emphasis added).”
• While the Applicant consented to the directions made in April 2022, and failed to comply with them, the AAT did not believe that “this is a case where the Applicant has failed to proceed with its application for review, or otherwise not progressed the matter with appropriate diligence and care”.
• the AAT found that when dismissing the case, the Tribunal failed to consider that the Applicant obtained expert evidence and prepared submissions in support of its case, largely in line with the directions of the Tribunal. The Tribunal also failed to offer the Applicant an opportunity to provide submissions prior to dismissal. Thus, the dismissal was made in an error sufficient enough to warrant the reinstatement.

The Applicant’s reinstatement was granted by the AAT.

This case also highlights the importance of documenting and assessing activities in accordance with programme regulator guidance so as to minimise the likelihood of ending up in dispute with the regulators.

A link to the the full case can be found here