Alho and Secretary, Department of Education, Employment and Workplace Relations

[2008] AATA 229

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2008] AATA 229

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No 2007/4859

GENERAL ADMINISTRATIVE DIVISION		)
Re		JOHN ALHO

Applicant

And SECRETARY, DEPARTMENT OF EDUCATION, EMPLOYMENT AND WORKPLACE RELATIONS

Respondent

DECISION

Tribunal Ms Robin Hunt, Senior Member

Date25 March 2008

PlaceSydney

Decision I have decided not to re-instate the extension of time application.  

...................[Sgd]...................

Ms Robin Hunt
  Senior Member

CATCHWORDS

Procedure – application for extension of time – social security benefits – compensation preclusion period applied – compensation charge recovered – application for extension of time to apply for review of decision to apply preclusion period – disputed withdrawal –  insufficient evidence to explain delay or provide a basis for the exercise of discretion –  extension of time application refused.

Administrative Appeals Tribunal Act 1975 s 42A

Social Security Act 1991 s 1184K

Hunter Valley Developments Pty Limited; Anthony Neary Walker; Mende Brown v The Honourable Barry Cohen Minister for Home Affairs and Environment (1984) 3 FCR 344

Re Appleton and Telstra Corporation Ltd (1993) 32 ALD 357

Re Ardesia Pty Ltd (in liq) and Chief Minister for ACT (1991) 23 ALD 255

Re Oates and Secretary, Department of Social Security (1994) 37 ALD 241

Vickers and Child Support Agency and Vickers (party joined) [2006] AATA 1112

White and Secretary, Department of Families, Community Services and Indigenous Affairs (2007) 97 ALD 204

Zizza v Federal Commissioner of Taxation (1999) 55 ALD 451

REASONS FOR DECISION

25 March 2008 Ms Robin Hunt, Senior Member   

summary

1.      Mr John Alho’s application to the tribunal for an extension of time to apply for review of a decision was dismissed on 8 June 2004. Mr Alho applied for re-instatement of his application on 24 July 2007. After considering the matters put to me by Mr Alho and persons assisting him as well as the submissions of the respondent, I have decided that Mr Alho’s application should not be re-instated. My reasons appear below.

issue

2.      I have to decide whether Mr Alho’s application for an extension of time to apply for review of a decision should be re-instated after it was dismissed. 

consideration and findings

3. Section 42A of the Administrative Appeals Tribunal Act 1975 (the AAT Act) deals with discontinuance, dismissal and re-instatement of applications for review. If the tribunal has dismissed an application, it may re-instate the application in some circumstances. Under subsection 42A(8) some matters may be re-instated if the person affected applies for this within 28 days. Mr Alho is not covered by this provision as he applied on 24 July 2007, about three years after his application was dismissed in June 2004.

4.      The decision that Mr Alho wishes to have re-instated is an extension of time application. If the re-instatement is granted, he then must establish that he should be granted an extension of time.  If an extension of time is granted to him, the decision he seeks to review is the decision of the Social Security Appeals Tribunal (SSAT) affirming a Centrelink decision. That decision is that a preclusion period applies to Mr Alho during which he is not eligible to receive certain social security payments. Mr Alho was precluded from receiving social security benefits for a period because he had been awarded a lump sum compensation settlement. An authorised review officer on 23 May 2002 decided to affirm the original determination of another officer to recover a charge of $37,754.01, which represented social security payments made to Mr Alho during the preclusion period. He does not dispute the correctness of the calculation of the amount of the ‘compensation charge’ or the correctness of the preclusion period calculation.

5.      This situation came about after Mr Alho was injured in a motor vehicle accident in 1996. Centrelink records show Mr Alho received various social security payments such as sickness allowance, newstart allowance and disability support pension from 11 August 1997. When Mr Alho agreed to the award of lump sum compensation of $249,732.31 on 10 October 2001, and subsequently received a lump sum amount less various expenses and fees, Centrelink applied the usual 50% rule to the award to calculate the preclusion period and also sought to recover the ‘compensation charge’ in the amount of $37,754.01. This so-called charge represents social security payments made to Mr Alho while he was awaiting the settlement. The respondent is entitled to recover these payments once a recipient has agreed to a settlement.

6.      The term ‘compensation charge’ is used by Centrelink to describe the payments made to a person while they are pursuing compensation and need income support. Centrelink calculated the preclusion period was from 2 October 1996 to 31 July 2001. Centrelink then sought to recover payments already made to Mr Alho during this period. After internal review of the decision to recover the compensation charge, Mr Alho sought further review by the SSAT. The SSAT on 28 August 2002 affirmed the Centrelink decision to recover the amount in question. The decision of the SSAT was dispatched to him on 11 September 2002. This decision was reviewable by this tribunal and the tribunal documents show Mr Alho received information about his further review rights with the reasons for the decision of the SSAT. He subsequently made a late application to this tribunal for an extension of time to apply for review, on 1 March 2004, which is the application he wishes to have re-instated.

7. By virtue of the operation of subsection 29(2) of the AAT Act, the prescribed time for the lodging of Mr Alho's application for review was the period commencing on the day on which the SSAT decision was made and ending on the twenty eighth day after a document, setting out the terms of the SSAT decision, was furnished to him. The decision was made on 28 August 2002 and written reasons dispatched to him on 11 September 2002.  It follows, therefore, that Mr Alho had until 9 October 2002 in which to lodge his application for review. Consequently, his application made on 1 March 2004 was well outside the prescribed time. Because of the delay, Mr Alho had to apply for an extension of time for review by the tribunal.

8.      The history of this matter is apparent from the records of the respondent and of this tribunal. On 23 January 2004, Mr Alho made his first application for an extension of time to apply for review of the decision dispatched to him on 11 September 2002. The tribunal’s records show Mr Alho withdrew this application on 16 February 2004 with the result that the tribunal dismissed the application on 17 February 2004.

9.      Mr Alho again applied to the tribunal on 1 March 2004 for review of the same decision, that is, the reviewable decision dispatched to him on 11 September 2002. The tribunal on this second occasion, on 8 April 2004, granted an extension of time to 1 March 2004.

10.     Mr Alho had already lodged his appeal with the tribunal on the date of the extension, 1 March 2004. Then the tribunal received another form of withdrawal apparently signed by Mr Alho on 8 June 2004. In consequence of this apparent withdrawal, the tribunal again dismissed Mr Alho’s application for an extension of time, on 8 June 2004. The dismissal occurred under subsection 42A(1A), which was specifically referred to in the notice of withdrawal. Subsection 42A(1A) provides for deemed dismissal when a person lodges with the tribunal a written notification that his application is withdrawn or discontinued.

11.     Mr Alho made a third application to the tribunal on 24 July 2007. This is the matter before me. In his hand-written application, Mr Alho stated that he did not at any time withdraw from these proceedings. He said he became outraged and left a pre-hearing mediation and wanted the matter “reheard”.

12.     The hearing of the present application was conducted in two stages, starting on 29 October 2007. On the first occasion, it was difficult to determine the basis of Mr Alho’s claims as he at first refused to speak. He then gave evidence for a short time before becoming over-excited and shouting incoherently so that I had to adjourn the proceedings. Mr Alho left the hearing room and did not return after creating a considerable disturbance inside and outside the hearing room.

13.     When the hearing of his application resumed, on 6 February 2008, Mr Alho was represented by two persons. Mr Harrison, who made submissions on behalf of Mr Alho, said he had been instructed about one month previously. However, he had not notified the tribunal or the respondent of his instructions or provided any written submissions of any kind. The respondent nevertheless consented to the tribunal proceeding without further delay. Mr Alho did not give any further oral evidence and neither he nor his other representative, who was present, made any further submissions. Mr Harrison requested additional time to make written submissions, which I granted.

should mr alho’s application be re-instated?

14.     The issue I must decide is whether the extension of time application should be re-instated. I have considered which provisions may be relevant in Mr Alho’s situation. Subsection 42A(9) empowers the tribunal to re-instate an application if it considers it appropriate to do so. As well, subsection 42A(10) allows the tribunal to re-instate an application if it has been dismissed in error. I have proceeded on the basis that one or both of these provisions may apply.

15.     The tribunal received a formal notice of withdrawal, dated 8 June 2004 and apparently signed by Mr Alho, which Mr Alho now denies he signed. Also, some medical material before me, although not recent, refers to Mr Alho’s psychiatric problems. There is a question in my mind about whether Mr Alho had the capacity to withdraw in view of his erratic behaviour but he has presented no evidence which leads me to conclude that the tribunal made an error because of his capacity or for any other reason. I do not accept Mr Alho’s claim that he did not sign the withdrawal notice and cannot conceive of any reason why anyone would have forged his signature. I note the signature on the withdrawal notification looks the same as his signature on other documents on the respondent’s file, on the application he made to this tribunal for an extension of time and on correspondence Mr Alho sent to the tribunal.

16.     Even if an error is established within the meaning of subsection 42A(10), re-instatement is not automatic. Re-instatement is a matter for my discretion and subsection 42A(10) does not give any guidance as to the way in which I should exercise that discretion. This difficulty was noted by Deputy President Forgie in White and Secretary, Department of Families, Community Services and Indigenous Affairs (2007) 97 ALD 204. I find no administrative error by the tribunal, which accepted receipt of a document headed ‘notice of withdrawal’ apparently signed by Mr Alho on 8 June 2004, and acted appropriately in dismissing the matter. As I find no error on the part of the tribunal, I also find it is not appropriate to re-instate Mr Alho’s application under subsection 42A(10).

17. I have next considered the discretion given to the tribunal to re-instate an application under subsection 42A(9). Unlike other subsections of section 42A, subsection 42A(9) does not limit the discretion to re-instatean application to those that have been dismissed in a particular way. It reads simply that:

If it considers it appropriate to do so, the Tribunal may reinstate the application and give such directions as appear to it to be appropriate in the circumstances.

18.     The dismissal on 8 June 2004 took place under subsection 42A(1A) as a deemed dismissal when Mr Alho lodged in writing with the tribunal a notification that his application was withdrawn. There is no bar to my considering the re-instatement application under subsection 42A(9). I am simply required to reinstate if I consider it appropriate to do so and to give such directions as appear appropriate in the circumstances. No express guidance is given as to the manner in which the discretion should be exercised but some principles have developed in related contexts. For example, it is usually accepted that a person generally should not be prevented from presenting his or her case.  

19.     I agree with Deputy President Forgie’s observation in Re Oates and Secretary, Department of Social Security (1994) 37 ALD 241 at 18, that re-instatement applications begin from the premise that:

... the person whose proceedings have been dismissed should not be prevented from presenting his or her case provided that person’s misconduct has not prejudiced the other party.

20. In my view, Mr Alho has been guilty of misconduct in raising his objections well past the time provided under the AAT Act for requesting review. He has been guilty of further misconduct in twice withdrawing his application and then seeking to have it re-instated yet again. All the delays resulting bring considerable prejudice to the respondent. There is prejudice to the respondent in being called upon to contest the preclusion period after a lapse of 6 years since it was last reviewed. It will be extremely difficult for both parties to present a reasonable case for the tribunal’s consideration after so many years.

21.     In some tribunal cases, not only has prejudice to the other party been taken into account in deciding whether to re-instate an application but also factors related to general fairness applied to applications for an extension of time. I think this approach is appropriate. After all, the reason for having a time limit for lodgement of applications is to enable fairness to all involved and to other persons who may wish to re-open old cases.

22.     The factors towards forming an opinion about re-instatement and about an extension of time are all similar. In determining an application for an extension of time, some general principles influence the tribunal’s decisions. In deciding whether to exercise its discretion to extend time it is appropriate to have regard to the principles set out by Wilcox J in Hunter Valley Developments Pty Limited; Anthony Neary Walker; Mende Brown v The Honourable Barry Cohen Minister for Home Affairs and Environment (1984) 3 FCR 344. In my view, it is a pre-condition to the exercise of the discretion that the applicant for extension show "an acceptable explanation of the delay" and that it is "fair and equitable in the circumstances" to extend time. As well, it is appropriate that the merits of the substantial application be taken into account in considering whether an extension should be granted. Another important consideration is fairness as between the applicant and other persons in a like position.

23.     There are many examples of the tribunal taking these factors into account. See, for example, Zizza v Federal Commissioner of Taxation (1999) 55 ALD 451 and more recently, Vickers and Child Support Agency and Vickers (party joined) [2006] AATA 1112.

24.     One factor concerns merit. Consideration of whether the application, if re-instated, has merit requires no exhaustive consideration but consideration of whether the application would have any chance of success.  There is little before me to indicate much merit in Mr Alho’s particular case. It is no doubt true that he suffered a significant injury but he was compensated for this and the preclusion period is designed to prevent double dipping.

25.     I also note that there may be a lesser expectation of timeliness in an unrepresented applicant as suggested by Mr Harrison, who referred me to Re Ardesia Pty Ltd (in liq) and Chief Minister for ACT (1991) 23 ALD 255. I am aware that it is difficult for an unrepresented applicant to prepare and present a case in a timely manner but Mr Alho was not in this position in 2004 when he twice withdrew his application. He had the assistance of two different solicitors, one of whom represented him on each application.

26. Mr Harrison argued that there were special circumstances in Mr Alho’s case that should result in that part of the compensation payment, being the equivalent of the compensation charge of $37,754.01, being disregarded under section 1184K of the Social Security Act 1991. This goes to the merits of the substantive case rather than the re-instatement. The SSAT considered and rejected this argument when it affirmed the decision of the authorised review officer on 28 August 2002.

27. Mr Harrison further submitted that Mr Alho should not be deprived of the opportunity to present his case and that it was the evident intention of the AAT Act, particularly sections 33 and 43 that an applicant should not be disadvantaged. He further pointed to Mr Alho’s medical, psychological and personal issues, anger management resulting from brain injury and other matters. He did not explain whether any of these matters were not known at the time Mr Alho’s compensation claim was settled nor whether they arose after the processes of review that have already taken place.

28. Mr Harrison also mentioned Mr Alho’s pursuit of an action for negligence against a former adviser. There have been many disputed preclusion period cases where the recipient of an award claims he was ill advised. Even where this is occasionally true, most often the tribunal has decided that this is not a special circumstance for the discretion under section 1184K but a separate matter between the applicant and his adviser. I note Mr Harrison’s reference to Re Appleton and Telstra Corporation Ltd (1993) 32 ALD 357 but am not swayed by this decision, which turned on its own facts.

29.     When considering the present case, I am satisfied that Mr Alho will have great difficulty in establishing special circumstances which indicate he should be treated differently from other social security applicants in matters involving a preclusion period. On balance, I am not persuaded that there are any circumstances that justify a re-instatement of this application.

30. For all these reasons, the length of the delay, lack of acceptable explanation for the delay, prejudice to the respondent, prejudice to the public, lack of merit and unlikely prospects of success, I have decided not to exercise any of the discretions available under section 42A in favour of Mr Alho. This means his application for re-instatement is not successful.

decision

31.     I have decided not to re-instate the extension of time application.

I certify that the 31 preceding paragraphs are a true copy of the reasons for the decision herein of Ms Robin Hunt, Senior Member

Signed: .....................[Sgd]...........................
                   Jennifer Wong, Associate

Dates of Hearing                   29 October 2007 and 6 February 2008
Date of Decision                   25 March 2008
Representatives for the Applicant            Mr S Kordy and Mr A Harrison

Solicitors for the Respondent  Ms P Sharma and Mr K Bullock, Centrelink Legal Services Branch