Antoniou and Secretary, Department of Social Services (Social services second review)

[2021] AATA 1627

Antoniou and Secretary, Department of Social Services (Social services second review) [2021] AATA 1627 (8 June 2021)

Division:GENERAL DIVISION

File Number(s):      2020/7906,  2020/7905

Re:Toula and   Peter Antoniou

APPLICANT

AndSecretary, Department of Social Services

RESPONDENT

DECISION

Tribunal:Member A Durkin

Date:8 June 2021

Place:Adelaide

The extension of time application is refused.

..................... [Sgnd]..........................

Member A Durkin

Catchwords

EXTENSION OF TIME APPLICATION – application filed for an extension of time to seek review of a decision under s 29(7) Administrative Appeals Tribunal Act 1975 – whether extension of time should be granted – reasonableness of the request considered – application refused.

Legislation

Administrative Appeals Tribunal Act 1975

Cases

Hunter Valley Development Pty Limited v Cohen (1984) 3 FCR 344
Jamal v Secretary, Department of Social Services [2017] FCA 916

REASONS FOR DECISION

Member A Durkin

8 June 2021

1. On 1 December 2020, the Applicants Mr and Mrs Antoniou made an application to the Tribunal for an order extending time to enable them to seek review of a Determination made by the Social Security Appeal Tribunal (“SSAT”) on 16 November 2014.

2. The application was opposed by the Respondent, Secretary of the Department of Social Services. As is evident there is a very considerable extension of time required.

3. The application was brought before this Tribunal for an interlocutory hearing by telephone on 22 January 2021. Mr and Mrs Antoniou represented themselves and made oral submissions. The Secretary of the Department was represented by Mr Visser of Services Australia.

4. The Applicants seek review of the decision of 6 November 2014 made by Member Cullimore in SSAT, which, in turn, had set aside the decision of an Authorised Review Officer and had decided to waive recovery of 25% of the disputed debt. 

5. The disputed decision of Member Cullimore sets out the factual background to the subject application and the Tribunal does not repeat same here. The disputed Determinations of the Department arose out of the valuation, from time to time, of taxi plate assets held by Mr and Mrs Antoniou and the effect that the value of those assets would have on the level of benefit payable to the couple. The decision to waive recovery of 25% of the relevant debt was made on account of what were considered to be “special circumstances”. 

6. The subject application for an extension of time was made on 1 December 2020. Section 29(2) of the Administrative Appeals Tribunal Act 1975 (the “Act”) provides that an application for review should generally be made within 28 days of the Applicant receiving notice of the decision. Provision is made, however, in s 29(7) of the Act, to extend the time for the making of an application, “... if the Tribunal is satisfied that it is reasonable in all the circumstances to do so”.

7. Longstanding authority provides that consideration of whether it is reasonable in all the circumstances to extend the time for the making of an application for review requires consideration of factors including:

   ·The length of the delay;

   ·Whether or not the applicant was aware of their appeal rights;

   ·The applicant’s explanation for the delay;

   ·Prejudice suffered if the extension of time were not granted;

   ·The party’s prospects of success; and

   ·Alternative avenues of relief.

8. In Hunter Valley Development Pty Limited v Cohen (1984) 3 FCR 344, at page 348, Willcox J observed that the “prescribed period of 28 days was not to be ignored ... indeed, it is the prima facie rule that proceedings commenced outside the period would not be entertained”.

9. Taking into consideration each of the identified matters, in making an assessment of the reasonableness of the request, the Tribunal notes, at the outset, the significant length of the delay in this matter.

10. As to awareness of appeal rights, in their submissions to the Tribunal on the subject application, Mr and Mrs Antoniou were very frank in admitting that they were aware of their right to appeal but, taking advice from friends and associates, were apprehensive that, on any appeal, the 25% waiver made by the SSAT at first instance may not have survived the appeal process. That is to say, the 25% waiver could potentially be varied by any further decision of this Tribunal such that the entirety of the debt would remain payable.

11. The explanation made by the Applicants for the delay included that they had spent the intervening years “trying to fight our case” inclusive of approaches to law firms, members of Federal Parliament and the Taxi Council of South Australia.

12. Member Cullimore of the SSAT had made the 25% waiver of the debt on the basis that it had not been reasonable for the Department not to have enquired into the fluctuating value of the taxi plate assets before the time that it did. The Member believed that an assessment at an earlier time would likely have resulted in a reduction of the potential debt.

13. At paragraph 37 of the Secretary’s Outline of Submissions, the Secretary also contended that the 28 day time limit as prescribed by the legislation had reflected Parliament’s intention that there ought to be a finality in government decision making. The Secretary submitted that to enliven the discretion in these circumstances would be against the intention of Parliament.  The Secretary also made the submission to the Tribunal that the significant lapse of time created a prejudice against the Department in that the relevant documents may be difficult to identify.  The Tribunal also notes that, a retrospective survey of the fluctuating value of taxi plates, taken at the present time (should the extension of time be allowed) would be potentially unreliable as the basis for further decision making.

14. In respect of the prospects of success of the application should the extension of time be granted, the Department, in paragraph 46 of its Outline of Submissions, cited several authorities of the Federal Court including observations by Perry J in Jamal v Secretary, Department of Social Services [2017] FCA 916 at [11] – [12], where her Honour observed:

    “... in considering the applicant’s prospects of success on an appeal the Court should not conduct a summary hearing of the appeal but is to “assess the merits in a fairly rough and ready way.  In other words the grounds should be considered on their face and examined at a “reasonably impressionistic level”, the Court should not descend into a fuller consideration of the arguments for and against each ground”.

15. To the apprehension of this Tribunal, the Applicants have not provided any further substantive evidence as would support the application in respect of which an extension of time is sought.  At the hearing before this Tribunal the Applicants contended that the debt had arisen due to the agency’s error in assessing the value of the taxi plate assets.  In its written Outline of Submissions, the Secretary argued differently and observed that a failure to notify the relevant agency of change to the value of the taxi plates was an obligation on Mr and Mrs Antoniou.  Nonetheless, it is recognised that the valuation of assets of this kind can necessarily fluctuate greatly and would be difficult to ascertain from time to time.  The Tribunal also observes, as the Applicants submitted, that the present value of the taxi plate assets has been significantly reduced by the arrival of what are known as “ride share services” such as “UBER”.

16. The SSAT, in ordering the 25% waiver, observed appropriately that the Applicants lived off a limited income and each had significant health problems.  As a result of having taken the view that the review of assets ought to have been taken well before the elapse of 7 years, Member Cullimore exercised the discretion of the SSAT and, in the view of this Tribunal, nothing has been demonstrated by the Applicant to have changed since then.

17. Even if the subject application for an extension of time to seek review of the decision of the SSAT were to be granted, the lack of presentation of any additional evidence to support the substantive application indicates to this Tribunal that there is unlikely to be a change of the decision under review.

18. As to any alternative avenues of relief, the submission of the Department was that it is open to the Applicants to apply to have their debt recovery arrangements changed at any time to take into account their circumstances.  The apparent collapse in the value of the taxi plate assets may well be considered to be a relevant special circumstance which might justify further reduction or waiver.

19. Following the interlocutory hearing before this Tribunal the Applicants forwarded to the Tribunal, by email of 5 February 2021, contemporaneous documents (from, for instance, 30 May 2011) sent to them by Centrelink which may have given the Applicants the impression that an income test was being used to analyse their entitlement to a Disability Support Pension rather than the asset test. This Tribunal notes that, in paragraph 46 of its decision dated 6 November 2014, the SSAT took that matter into account insofar as it was determinative of any issue and proceeded to make the Order including the 25% waiver.

20. The Applicants have not adduced any evidence that would support the notion, vital to their prospects of success, that the taxi plate assets were erroneously valued at the time that they were valued.

21. It is in the public interest that there be an end to litigation unless exceptional circumstances can be demonstrated. The Applicants, in considering the decision of the SSAT of 6 November 2014, admitted before this Tribunal that they understood their then right to appeal but had consulted their interests to conclude that to then seek review of the decision of the SSAT may not be in their best interest.  In the 6 years subsequent to the Applicants having made that decision they explored other avenues of relief but did not make an application to this Tribunal as they were aware was provided for by law.

22. In these circumstances the Tribunal declines the application for an extension of time to appeal the November 2014 decision of the SSAT.   

I certify that the preceding 22 (twenty two) paragraphs are a true copy of the reasons for the decision herein of Member A Durkin.

   …………[Sgnd]……………

  Administrative Assistant Legal

 Dated:  8 June 2021

Date of hearing:	22 January 2021
Advocate for the Applicant:	Self-represented
Advocate for the Respondent:	Christian Visser, SERVICES AUSTRALIA