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

[2019] AATA 5659

Armitage and Secretary, Department of Social Services (Social services second review) [2019] AATA 5659 (13 November 2019)

Division:GENERAL DIVISION

File Number(s):      2019/6543

Re:David Armitage

APPLICANT

AndSecretary, Department of Social Services

RESPONDENT

DECISION

Tribunal:Mr S Evans, Member

Date:13 November 2019

Date of written reasons:        8 January 2020

Place:Sydney

The Tribunal refuses the application under section 29(7) of the Administrative Appeals Tribunal Act 1975 (Cth) for an extension of time to lodge this application for review of a decision.

........................[SGD]................................................

Mr S Evans, Member

CATCHWORDS

PRACTICE AND PROCEDURE – extension of time to lodge application for review – principles to be applied – no reasonable prospects of success – extension of time not granted

LEGISLATION

Administrative Appeals Tribunal Act 1975 (Cth) s 29

CASES

HunterValley Developments Pty Limited v Cohen, Minister for Home Affairs and Environment (1984) 58 ALR 305

WRITTEN REASONS FOR ORAL DECISION

Mr S Evans, Member

8 January 2020

1. David Armitage (“the Applicant”) has asked for a review of a decision made by the Social Services & Child Support Division of the Tribunal (“AAT1”), which affirmed the decision of an Authorised Review Officer (“ARO”) of the Department of Social Services (“the Respondent”), that Mr Armitage should repay a debt of $12,021.15 owing to overpayment of disability support pension (“DSP”) during the period 16 September 2011 to 29 June 2016. 

2. The decision of the AAT1 was made on 26 June 2019 and Mr Armitage applied to the General Division of the Tribunal for a review of that decision on 14 October 2019.

3. Individuals who are unhappy with decisions of the AAT1 have 28 days to make an application to this Tribunal. The Tribunal has the power under section 29(7) of the Administrative Appeals Tribunal Act 1975 (Cth) (“the Act”) to extend the time for making an application where “the Tribunal is satisfied that it is reasonable in all the circumstances to do so”. 

4. Mr Armitage’s request for an extension of time to lodge his claim for review was rejected at the hearing on 13 November 2019 and I gave my reasons for the decision orally at the time. 

5. On request from Mr Armitage, I now give my reasons in writing. 

   BACKGROUND

6. Mr Armitage was granted DSP in 2008 and was working between July 2011 and June 2016.  He was sent letters reminding him of his income reporting obligations during most of this period. In 2017 Mr Armitage provided bank statements to the Respondent which confirmed his income during that period. 

7. As Mr Armitage had not declared all his income, he had been overpaid DSP during that period.  It was initially calculated that a DSP debt of $13,777.95 was owing, but this was reduced to $12,021.15 upon review. 

   CONSIDERATION

8. The Act provides the Tribunal with a broad discretionary power to grant an extension of time if the Tribunal is satisfied that it is reasonable to do so.  The Tribunal’s approach to applications for extension of time has been guided by the principles outlined in HunterValley Developments Pty Limited v Cohen, Minister for Home Affairs and Environment (1984) 58 ALR 305 (“Hunter Valley”).  Wilcox J set out six principles which guide the use of discretion to grant an extension of time: 

   ·the application for an extension of time must show an acceptable explanation for the delay and that it is fair and equitable in the circumstances to extend the time;

   ·whether the applicant has rested on his or her rights and whether the respondent was entitled to regard the claim as being finalised;

   ·any prejudice to the respondent caused by the delay;

   ·the mere absence of prejudice to other parties is not enough to justify the granting of an extension, and wider prejudice to the general public is also a relevant factor;

   ·the merits of the substantive application; and 

   ·considerations of fairness between the applicant and other persons in a similar position. 

9. The application was lodged 67 days outside the statutory 28 day deadline.

10. Mr Armitage contends he has never worked for Rydges Hotel and the information provided by the Australian Taxation Office (“ATO”) from that employer must be an error. 

11. The Respondent contends that the information regarding Mr Armitage’s income during the period was determined via a data-match review with the ATO and Mr Armitage’s own bank account statements. 

12. Further, it was noted that Rydges Hotel and Greater Union Pty Ltd are both part of the Event Hospitality & Entertainment Ltd group of companies and that the income attributed to him from Rydges Hotels would in fact be related to his employment at Greater Union. 

13. A successful appeal would appear to rest primarily on whether income was received by Mr Armitage. Mr Armitage did not deny that he had received the payments from Rydges Hotel into his bank account. 

14. Turning to the principles set out by Wilcox J in Hunter Valley, I note that the overriding consideration is whether it is “reasonable in all the circumstances” to grant the extension. 

15. I note that the delay in applying for a review is such that it would not prejudice the Respondent at any future hearing. 

16. However, based on the evidence presented by Mr Armitage, I am not satisfied that there are any determinant issues in dispute. The Applicant’s case appears to rest only on the trading name of his employer, whilst his income is confirmed by both the ATO and his own bank statements. 

    CONCLUSION

17. As there is little prospect of the Applicant succeeding in this application before the Tribunal, it is not reasonable for me to extend the time in making an application for review. 

I certify that the preceding 17 (seventeen) paragraphs are a true copy of the reasons for the decision herein of Mr S Evans, Member

..........................[SGD]..............................................

Associate

Dated: 8 January 2020

Date(s) of hearing:	13 November 2019
Applicant:	By Telephone
Solicitors for the Respondent:	Dr S Thompson, Department of Human Services