Ata Turk and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs Secretary, Department of Education, Employment and Workplace Relations
[2012] AATA 498
•31 July 2012
[2012] AATA 498
Division GENERAL ADMINISTRATIVE DIVISION File Number(s)
2012/2053
Re
Ata Turk
APPLICANT
And
Secretary, Department of Families, Housing, Community Services and Indigenous Affairs
Secretary, Department of Education, Employment and Workplace Relations
RESPONDENT
DECISION
Tribunal Senior Member J F Toohey
Date 31 July 2012 Place Sydney The application for an extension of time is refused.
..........[sgd].............................................................
Senior Member J F Toohey
CATCHWORDS
PRACTICE AND PROCEDURE – EXTENSION OF TIME - application lodged 18 months after decision of the Social Security Appeals Tribunal – no acceptable explanation for delay – no apparent merit to the substantive application – extension of time refused
LEGISLATION
Administrative Appeals Tribunal Act 1975 ss 29(1)(d), 29(2)(a), 29(7)
CASES
Gabor v Secretary, Department of Education, Employment and Workplace Relations [2010] FCA 706
Hunter Valley Developments Pty Limited v Cohen [1984] FCA 176
REASONS FOR DECISION
Senior Member J F Toohey
31 July 2012
BACKGROUND
This matter concerns whether Mr Ata Turk should be granted an extension of time in which to lodge an application with the Tribunal for review of a decision of the Social Security Appeals Tribunal (SSAT).
Mr Turk was injured in a motor vehicle accident in 2005. In 2010, he was paid lump sum compensation of $40,497.98. It included amounts totalling $15,834.97 by way of weekly payments for a period when he had received payments from Centrelink. Centrelink determined it should recover that amount from Mr Turk.
On 23 August 2010, Mr Turk sought review of Centrelink’s decision by the SSAT. On 5 October 2010, the SSAT affirmed the decision.
According to the SSAT’s statement of reasons, a copy was dispatched to Mr Turk on 15 October 2010. Approximately 18 months later, on 23 May 2012, Mr Turk lodged an application for review of the SSAT’s decision.
As a general rule, an application for review must be lodged with the Tribunal within 28 days from the day on which the applicant received the decision: see ss 29(1)(d) and 29(2)(a) of the Administrative Appeals Tribunal Act 1975 (the AAT Act). The Tribunal has discretion to extend the time for lodging an application if it is satisfied that it is reasonable in all the circumstances to do so: s 29(7).
I have to decide whether Mr Turk should be granted an extension of time in which to lodge his application.
PRINCIPLES
The principles by which a decision whether to grant an extension of time should be guided were set out by Wilcox J in Hunter Valley Developments Pty Limited v Cohen [1984] FCA 176. They were summarised by Bromberg J in Gabor v Secretary, Department of Education, Employment and Workplace Relations [2010] FCA 706 at [7] as follows:
(a)whilst special circumstances need not be shown, applications for an extension of time are not to be granted unless the Court is positively satisfied that it is proper to do so; the legislated time limits are not to be ignored. The applicant must show an “acceptable explanation for the delay”, and it must be “fair and equitable in the circumstances” to extend time;
(b)action taken by the applicant, other than by way of making an application for review, is relevant to the consideration of the question whether an acceptable explanation for the delay has been furnished; a distinction is to be drawn between a person who has made it known that the finality of the decision is contested and a person who has allowed other parties to believe that the matter was finally concluded. The reason for this distinction includes the need for finality of disputes.
(c)any prejudice to the respondent in defending the proceedings that is caused by the delay is a material factor militating against the grant of an extension;
(d)however, the mere absence of prejudice is not enough to justify the grant of an extension;
(e)the merits of the substantial application are to be taken into account in considering whether an extension of time should be granted; and
(f)considerations of fairness as between the applicants and other persons otherwise in a like position are relevant to the manner of exercise of the court’s discretion.
These principles are not to be applied mechanically. All of the circumstances of the case must be considered, the overriding consideration being whether it is reasonable in all the circumstances to grant the extension.
SHOULD AN EXTENSION BE GRANTED?
Mr Turk claims he did not receive notice from the SSAT that his matter was listed for hearing by the tribunal. He says the decision was made in his absence without giving him the opportunity to be heard.
According to the SSAT’s statement of reasons at [9], Mr Turk was advised by letter dated 21 September 2010 that his matter was listed for hearing on 5 October 2010. He did not appear at the hearing and, in the absence of any advice at the time of the hearing as to why he did not appear, the SSAT decided to determine the matter on the papers.
Mr Turk says he also did not receive any correspondence from the SSAT advising him of its determination. He does not dispute that the SSAT sent him a letter but says he did not receive it. He says he was having a lot of medical and family problems at the time. I find that difficult to accept given that, according to the file, the letter was sent to Mr Turk’s correct address where he agrees he has received other correspondence including from this tribunal.
Before this tribunal, Mr Turk claimed he only learned of the SSAT’s decision when he contacted that tribunal after hearing nothing about his application. When asked about this, at first he could not recall when he contacted SSAT. When pressed, he said it was in late December 2011 or early January 2012. When asked why it took him over a year to contact the SSAT to inquire as to the progress of his application, he said he had no idea how the SSAT works or how long it takes. I do not accept that claim. Mr Turk has previously made application for disability support pension and sought review by the SSAT, and then this tribunal, of a decision to refuse his application. He is not unfamiliar with proceedings in the SSAT or this tribunal. When pressed further about this, he claimed he might not have learned of the SSAT’s decision until more recently.
Mr Turk says that, after contacting the SSAT, he contacted this tribunal and was advised he should obtain a copy of the SSAT’s decision. He claims he did so but it took a long time to receive it. He concedes he did not make it his priority to follow up his application but says it was because of everything else that was going on at the time.
Mr Turk claimed he has been “in and out of hospital” and seeing doctors “all the time” for his constant back pain. He conceded he was not in hospital all of the time and was not seeing doctors every day. He submitted a medical report from his doctor from July 2009 which referred to his persistent back pain. As the report pre-dated his application to the SSAT, the Tribunal gave him additional time to obtain a further report from his doctor as to why he his medical condition prevented him from lodging an application between December 2011 and May 2012.
Mr Turk’s doctor has provided a brief report stating that Mr Turk has chronic sciatica and chronic back pain; he self-medicates with alcohol and suffers from chronic depression; he has the care of his teenage son and has been in a “serious court case with the possibility of a custodial sentence”. He asks for some leniency for Mr Turk’s late application. He does not explain why his medical condition would have prevented him from lodging an application for review before May 2102.
I am not satisfied that there is an acceptable explanation for Mr Turk’s delay in lodging his application. I accept he has had a number of personal difficulties to contend with but I do not accept the explanation he has given. I do not accept he did not learn of the SSAT’s decision until late 2011 or early 2010 but, even if that is true, it took him nearly six months to lodge his application with this tribunal. I do not accept that time is accounted for by waiting for the SSAT’s decision.
Mr Turk has not offered any reason, or any evidence to support his claim that the decision under review is not correct. I am not satisfied that there is any merit to his application for review.
It would not be fair to others to allow Mr Turk to seek review of a decision made more than 18 months ago and which I am satisfied he has knew about for at least six months before seeking review and, in all probability, much longer than that, particular when there is no ground for thinking his application would have any prospect of success.
I am not satisfied it is reasonable in the circumstances to grant Mr Turk an extension of time. His application is refused.
I certify that the preceding 19 (nineteen) paragraphs are a true copy of the reasons for the decision herein of Senior Member J F Toohey. ...............[sgd].........................................................
Associate
Dated 31 July 2012
Date(s) of hearing 29 June 2012 Date final submissions received 27 July 2012 Applicant In person Solicitors for the Respondent Ms A Garcia, DHS Program Litigation & Review Branch
0
2
0