Alexander Rothsay v Secretary, Department of Education, Employment and Workplace Relations
[2011] AATA 280
•22 March 2011
Administrative Appeals Tribunal
ORDER AND REASONS FOR ORDER [2011] AATA 280
ADMINISTRATIVE APPEALS TRIBUNAL )
) No 2011/0766
GENERAL ADMINISTRATIVE DIVISION ) Re ALEXANDER ROTHSAY Applicant
And
SECRETARY, DEPARTMENT OF EDUCATION, EMPLOYMENT AND WORKPLACE RELATIONS
Respondent
ORDER
Tribunal Deputy President S D Hotop Date22 March 2011
PlacePerth
Decision The applicant’s application for an extension of time until 2 March 2011 to lodge an Application for Review of the decision of the Social Security Appeals Tribunal dated 2 October 2008, is refused.
..........[sgd S D Hotop]........
Deputy President
CATCHWORDS
PRACTICE AND PROCEDURE – application for extension of time to lodge application for review of decision of Social Security Appeals Tribunal (SSAT) dated 2 October 2008 – applicant received notice of SSAT decision on 15 October 2008 – applicant lodged application for review of SSAT decision on 2 March 2011 – applicant did not give satisfactory explanation for delay – applicant took no action to make respondent aware that he contested SSAT decision until 2 March 2011 – lack of merit of applicant’s application for review – Tribunal not satisfied that reasonable in all the circumstances to grant extension of time – application for extension of time refused
Administrative Appeals Tribunal Act 1975 (Cth), s 29
Comcare v A’Hearn (1993) 45 FCR 441
Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344
Re Johnson and Commonwealth of Australia [1990] AATA 1
REASONS FOR ORDER
29 April 2011 Deputy President S D Hotop Introduction
1. On 22 March 2011 the Tribunal, at the end of an interlocutory hearing (by telephone) held on that day, orally made an order which was subsequently set out in a written order in the following terms:
“ The applicant’s application for an extension of time until 2 March 2011 to lodge an Application for Review of the decision of the Social Security Appeals Tribunal dated 2 October 2008, is refused.”
2. A copy of that written order was despatched to the applicant by the Registry by post on 22 March 2011 under cover of a letter of that date.
3. On 21 April 2011 the Registry received an email from the applicant requesting a statement of the Tribunal’s reasons for its order of 22 March 2011.
The Relevant Background
4. On 2 October 2008 the Social Security Appeals Tribunal (“SSAT”) made a decision in respect of the applicant in the following terms:
“ DECISION OF THE TRIBUNAL
On 2 October 2008 the Tribunal decided to set aside the decision under review and substitute its decision that:
· Mr Rothsay has a debt of newstart of (sic) allowance of $1,414.46 for the period 22 September 2007 to 16 November 2007;
· a 10% penalty is not to be added to the debt; and
· recovery of that part of the debt that has not been repaid by Mr Rothsay of $499.19 is to be written off for a period of 6 months from the date of this decision.”
5. In its Reasons for Decision the SSAT set out the history of the applicant’s application to it as follows:
“ HISTORY
1. Mr Rothsay was in receipt of newstart allowance in the period 22 September 2007 to 16 November 2007.
2. A Centrelink officer decided on 22 November 2007 that Mr Rothsay had a debt of $915.27 arising from overpayment of newstart allowance in the period 10 October 2007 to 2 November 2007 as the correct amount of his earnings from Wilson Security were not taken into account in this period and sought to recover the debt from Mr Rothsay.
3. A Centrelink officer decided on 19 March 2008 that Mr Rothsay had a debt of $499.19 arising from overpayment of newstart allowance in the period 6 October 2007 to 16 November 2007 as the correct amount of his earnings from Wilson Security were not taken into account in this period and sought to recover the debt from Mr Rothsay.
4. The decisions were reviewed by an authorised review officer on 19 June 2008 who decided:
· Mr Rothsay had been overpaid newstart of (sic) $1,414.46 in the period 22 September 2007 to 16 November 2007 and this amount was a debt to be recovered from Mr Rothsay; and
· to add a 10% penalty of $141.40 to the debt, bringing the total debt to be recovered from Mr Rothsay to $1,555.86.
5. On 18 August 2008 Mr Rothsay lodged an application for review of the decision with this Tribunal.”
The SSAT noted that the applicant’s application was heard on 2 October 2008 and that the applicant attended the hearing accompanied by another person. The SSAT also noted that a copy of its decision was despatched to the applicant on 14 October 2008.
6. On 2 March 2011 the Registry received from the applicant an application for review of the SSAT’s decision of 2 October 2008. In the application form (which, the Tribunal notes, was not signed or dated):
· the SSAT’s decision is described as follows:
“ WRONG DATES FOR REVIEW
From 5/10/07 → 16/11/07
AND NOT
22/09/07 → 16/11/07
$499.19 deferred for 6 months, then acted on”;
· it is stated that the SSAT’s decision was received on 15 October 2008;
· the reasons for the application are stated as follows:
“ Wrong dates considered even when proof to the contrary was provided.
Consequently had to pay back $499.19 after 6 months.”
7. By letter dated 3 March 2011 the Registry notified the applicant that his application for review had been lodged outside the prescribed time limit, advised him that he had the right to apply for an extension of time for lodging his application, and enclosed a form of application for an extension of time for his use.
8. On 8 March 2011 the Registry received from the applicant an application for an extension of time for lodging his application for review of the SSAT’s decision of 2 October 2008. In the application form the reasons for the application for an extension of time are stated as follows:
“ Was unlawfully sacked from my employment 15/9/08.
This case is still in the hands of the Fairwork (sic) Ombudsman AND my back finally gave up and I am now on the Disability Pension.
With all this drama, I have been in no position, mentally, emotionally, physically to contend with any legal dramas on my plate. I am only now able to resolve certain issues that need closure so I can be a free man once again”.
9. By letter dated 8 March 2011 the Registry notified the respondent that the abovementioned application for an extension of time had been received and requested the respondent to inform the Registry, within 14 days, whether or not the respondent opposed that application.
10. On 10 March 2011 the Registry received from the respondent a form of notice opposing the applicant’s application for an extension of time. In that form the grounds for opposing that application are stated as follows:
“ (a) The SSAT decision was 2 October 2008. The applicant had 28 days from the SSAT decision to contested (sic) it. Nothing was done by the applicant to seek review of the decision until 2 March 2011. The respondent was entitled to infer that the applicant had rested on his rights and that the matter was finally concluded.
(b) The applicant’s does (sic) not have significant prospect of success. The SSAT decision appears sound and the debt has also been fully recovered. The Tribunal also found partly in favour of the applicant and expunged the 10% recovery fee. To allow the appeal (sic) would mean that all of the SSAT decision would open (sic) for review.
(c) The applicant has stated that the reason for his delay was because he was not in a position to contend with any ‘legal drama’ (sic). The respondent contends that this not a reasonable excuse, given that there are avenues for assistance such as private or public representatives, and that it is not uncommon for people to deal with stress while involved in litigation.
(d) Wider prejudice to the community because public and established practices would be relaxed by not adhering to time limitations. Granting the applicant an extension of time would set an ‘unwelcome example’ given the applicant’s two and a half year delay.”
11. On 22 March 2011 an interlocutory hearing (by telephone) was held for the purpose of determining the applicant’s application for an extension of time, and, at the end of that hearing, the Tribunal orally made an order refusing the applicant’s application for an extension of time.
The Relevant Legislation
12. Section 29 of the Administrative Appeals Tribunal Act 1975 (Cth) (“AAT Act”) deals with the manner of applying to the Tribunal for a review of a decision. Paragraph (d) of s 29(1) provides that, in a case where “the terms of the decision were recorded in writing and set out in a document that was given to the applicant”, an application to the Tribunal for a review of that decision ”shall be lodged with the Tribunal within the prescribed time”.
13. Section 29(2) of the AAT Act relevantly provides:
“ … the prescribed time for the purposes of paragraph (1)(d) is the period commencing on the day on which the decision is made and ending on the twenty-eighth day after:
(a)if the decision sets out the findings on material questions of fact and the reasons for the decision – the day on which a document setting out the terms of the decision is given to the applicant;”.
14. The Tribunal’s power to extend the time for the making of an application for review is conferred by subss (7) and (8) of s 29 of the AAT Act as follows:
“(7) The Tribunal may, upon application in writing by a person, extend the time for the making by that person of an application to the Tribunal for a review of a decision (including a decision made before the commencement of this section) if the Tribunal is satisfied that it is reasonable in all the circumstances to do so.
(8)The time for making an application to the Tribunal for a review of a decision may be extended under subsection (7) although that time has expired.”
Reasons for Refusing the Applicant’s Application for an Extension of Time
15. Section 29(7) of the AAT Act confers on the Tribunal a broad discretionary power to grant an extension of time for the making of an application for a review of a decision if it is “satisfied that it is reasonable in all the circumstances to do so”.
16. As noted by the Tribunal (Deputy President R K Todd) in Re Johnson and Commonwealth of Australia [1990] AATA 1, it has been customary for the Tribunal, in determining applications for an extension of time for making an application for review, to be guided by the principles enunciated by the Federal Court of Australia (Wilcox J) in Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344 at 348–350. Those general principles were summarised in Re Johnson (at para 19) as follows:
“ (i) It is a prima facie rule that proceedings commenced outside the prescribed period will not be entertained. An extension of time will, however, be granted if it is proper to do so.
(ii) Consideration is to be given to the action taken by the applicant. Did he or she ‘rest on his or her rights’ so as to lead the decision maker to believe that the matter was concluded, or did he or she continue to make the decision maker aware that the decision was being contested?
(iii) Consideration should be given to whether any prejudice to the respondent would be caused by the grant of an extension.
(iv) There being no real prejudice to the respondent, consideration must be given to whether there will nevertheless be a wider prejudice to the public in terms of disruption to established practices …
(v) Consideration of the merits of the substantial application should be made to see if these indicate that an extension of time should be granted.
(vi) Finally, consideration should be given to whether it is fair as between the applicant and other persons in a like position to grant the extension of time.”
17. In the present case, pursuant to s 29(2)(a) of the AAT Act, the prescribed period, within which the applicant was required by s 29(1)(d) of the AAT Act to lodge his application for review of the SSAT’s decision of 2 October 2008, expired on or about 12 November 2008. Thus, the applicant’s application for review, which he lodged with the Tribunal on 2 March 2011, was lodged about 2 years , 3 months and 18 days after the expiration of the relevant prescribed period.
18. Although, as held by the Full Federal Court in Comcare v A’Hearn (1993) 45 FCR 441, the giving of an acceptable explanation for delay in lodging an application for review is not an essential pre-condition of the favourable exercise of the discretion to grant an extension of time for the lodging of such an application, the Full Court said (at 444) that “it is to be expected that such an explanation will normally be given, as a relevant matter to be considered” – especially, the Tribunal would add, where the delay is very lengthy, as in the present case.
19. The applicant’s explanation for his delay, until 2 March 2011, for lodging his application for review of the SSAT’s decision of 2 October 2008 was set out in his application for an extension of time (see paragraph 8 above). He reiterated that explanation at the interlocutory hearing on 22 March 2011 and added that:
· his back “went” in late January 2008, and he had since been “living on painkillers”;
· since the termination of his employment in September 2008, he had been pursuing that matter through the Fair Work Ombudsman;
· his former employer misrepresented and forged documents and he was denied his right to work.
20. In the Tribunal’s opinion, the abovementioned explanation by the applicant does not satisfactorily explain his failure to lodge his application for review until 2 March 2011 or, indeed, his failure to lodge it before the expiration of the prescribed period on or about 12 November 2008. The Tribunal notes, in this connection, that, in the period since his back “went” in January 2008, the applicant pursued his review rights before the Centrelink Authorised Review Officer and the SSAT and, following the termination of his employment in September 2008, he appeared at the hearing before the SSAT on 2 October 2008. Given that he received written notice of the SSAT’s decision (including notice of his right to seek review by this Tribunal within 28 days) a relatively short time later, on 15 October 2008, in the Tribunal’s opinion he has not given a satisfactory reason for failing to lodge an application for review with this Tribunal (which could, of course, have been done by post) before the expiration of that 28-day period on or about 12 November 2008, let alone for failing to do so until 2 March 2011.
21. There is, furthermore, no suggestion that, in the period from 12 November 2008 to 2 March 2011, the applicant took any action that might have made Centrelink or the respondent aware that he was contesting, or was proposing to contest, the SSAT’s decision of 2 October 2008. In those circumstances, in the Tribunal’s opinion, the respondent was, by reason of such inaction on the part of the applicant, given reasonable cause to believe, and reasonably inferred, that the applicant had “rested on his rights” and that the matter was finally concluded.
22. As regards the merits of the applicant’s application for review of the SSAT’s decision of 2 October 2008, which was lodged with this Tribunal on 2 March 2011, the Tribunal notes the reasons provided by him for making that application (see paragraph 6 above). It appears from those reasons that the applicant contends that the SSAT erred in determining the amount of the overpayment of newstart allowance to him, and the resultant debt owed by him, by calculating that amount over the period from 22 September 2007 to 16 November 2007 instead of over the period from 5 October 2007 to 16 November 2007.
23. Having considered the SSAT’s Reasons for Decision, it seems to the Tribunal that the applicant’s abovementioned contention is misconceived. At para 17 of its Reasons for Decision, the SSAT found that the applicant was paid a total amount of $2,140.80 ($535.20 x 4), by way of newstart allowance, for the period from 22 September 2007 to 16 November 2007 (inclusive). The SSAT found, however, on the basis of the applicant’s evidence, that the applicant did not commence work in that period until 6.00 pm on 5 October 2007 and that he was unemployed and entitled to newstart allowance until that time. The SSAT, accordingly, calculated the amount of the overpayment of newstart allowance to the applicant in the period from 22 September 2007 to 16 November 2007 on the basis of his employment income only from 5 October 2007, and, on that basis, it found that the total of that overpayment was $1,414.46 (out of a total payment of $2,140.80) in that period (see paras 19–20 of its Reasons for Decision).
24. Although it is inappropriate for the Tribunal to attempt to undertake a merits review of the SSAT’s decision of 2 October 2008 at this interlocutory stage of the proceeding, it is nevertheless appropriate for the Tribunal to consider the merits of the applicant’s substantive application for a review of that decision in determining whether it is appropriate to grant his application for an extension of time for lodging that substantive application: Hunter Valley Developments; Re Johnson (above).
25. In the Tribunal’s opinion, the SSAT’s Reasons for Decision indicate that it conducted a thorough and fair examination of the evidence before it and made a conscientious and considered decision on the basis of that evidence. The Tribunal notes that the SSAT generally gave the applicant the benefit of the doubt and accepted his evidence, except in respect of one factual matter, namely, the time when he first notified Centrelink that he had commenced employment at 6.00 pm on 5 October 2007. It appears from the SSAT’s Reasons for Decision (at paras 16 and 32–33) that, whereas the applicant claimed that he had so notified Centrelink by telephone about one month after he commenced employment (namely, in or about the first week of November 2007), the SSAT accepted the Centrelink record which indicated that such notification had not been given by the applicant until 21 November 2007. In the Tribunal’s opinion, it was not inappropriate for the SSAT to take that view.
26. Having regard to the applicant’s stated reasons for applying to the Tribunal for a review of the SSAT’s decision of 2 October 2008 (see paragraphs 6 and 22 above), and to the SSAT’s Reasons for Decision, the Tribunal is not satisfied that the applicant’s application for review has good prospects of success. In the Tribunal’s opinion, the SSAT’s decision was, having regard to the evidence before it, as favourable to the applicant as he could reasonably have expected, and it may be that this Tribunal, on review, might form a less favourable view of the applicant’s case.
27. Finally, although the respondent submitted that the grant of the requested extension of time to the applicant would result in “wider prejudice to the community because public and established practices would be relaxed by not adhering to time limitations”, the Tribunal does not attach any weight to that consideration in the circumstances of the present case.
Conclusion
28. Having regard to the circumstances of this case and the relevant considerations referred to above, the conclusion of the Tribunal is that none of those circumstances and considerations militates in favour of the grant of the applicant’s application for an extension of time, but that several of those circumstances and considerations militate against the grant of that application, namely:
· the length of the delay (namely, approximately 2 years, 3 months and 18 days) on the part of the applicant in lodging with the Tribunal his application for review of the SSAT’s decision of 2 October 2008;
· the applicant’s unsatisfactory explanation for that delay;
· the applicant’s failure to take any action, until 2 March 2011, which might have made the respondent or Centrelink aware that he proposed to contest the SSAT’s decision of 2 October 2008; and
· the apparent lack of merit of the applicant’s application for review.
29. On balance, therefore, the Tribunal is not satisfied that it would be reasonable in all the circumstances to extend the time for the making by the applicant of an application for a review of the SSAT’s decision of 2 October 2008 until 2 March 2011.
30. For the above reasons, the Tribunal refuses to grant, pursuant to s 29(7) of the AAT Act, the applicant’s application for an extension of time until 2 March 2011 to lodge an application for review of the SSAT’s decision of 2 October 2008.
I certify that the 30 preceding paragraphs are a true copy of the reasons for the order herein of Deputy President S D Hotop
Signed: .................[sgd D Brodie]........................
Associate
Date of Hearing 22 March 2011
Date of Order 22 March 2011
Date of Request for Written Reasons 21 April 2011
Date of Written Reasons 29 April 2011
Representative of the Applicant Self-representedRepresentative of the Respondent Mr A Holt
Legal Service and Procurement Branch
Centrelink
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