Bouvet v Secretary, Department of Social Security

[1992] FCA 216

FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY	No VG 100 of 1992
GENERAL DIVISION
B E T W E E N :

ROBERT J.A. BOUVET

Applicant

A N D :

DEPARTMENT OF SOCIAL SECURITY

Respondent

COURT :	NORTHROP J
W:	MELBOURNE
DATE :	7 APRIL 1992

EX TEMPORE REASONS FOR JUDGMENT

The application before the Court is dated 26 March 1992,

in matter No VG 100 of 1992. It is an application for

extension of time to file and serve a notice of appeal. The
application is supported by an affidavit sworn on 26 March.

apparent that on 3 April 1992 an appeal under s44 of the

The affidavit does not on its face contain material which
would justify the granting of an extension of time to file a
notice of appeal. But because of the fact that the applicant
appears in person and is not represented by any legal adviser,
the Court allowed material to be placed before it in an
attempt to try to make clear what the complaint was and what

the issue was.

In the course of receiving this material it became

Administrative ADDealS Tribunal Act 1975 was filed in the

Court by Mr Bouvet, as applicant, and the Department of Social Security was respondent. It is noted that on that application a fee of $500 was paid, although no fee, apparently, was paid

on the application for the extension of time in which to file

an appeal from the decision of the AAT. The appeal from the

AAT lodged and filed on 3 April is matter No VG No 108 of

1992. Both that matter and matter No VG 100 of 1992 relate to

the same decision. In summary form on 13 January 1992 the

Administrative Appeals Tribunal, constituted by a Senior

Member, gave a decision in relation to a review brought at the

instigation of Mr Bouvet. That decision was apparently

reduced to writing and under sub-para 44(2A)(a) of the Administrative ADDealS Tribunal Act, that decision was furnished to the applicant Mr Bouvet on 20 January 1992.

Therefore, under sub-para 44(2A)(a) any appeal from that decision had to be commenced not later than 28 days after that date being 20 January 1992. On the face of it, the appeal in matter No VG 108 of 1992, therefore, is not within time,

although that matter is not before me today.

It is apparent, also, that the time within which an

appeal may be lodged may be extended, again pursuant to the
power conferred by para 44 (2A)(a) of the Administrative
A~Deals Tribunal Act of 1975. Subsection 44(1) provides that
a party to a proceeding before the Tribunal may appeal to the
Federal Court of Australia, on a question of law from any
decision of the Tribunal in that proceeding. Para (2A)(a)
provides :

" (2A) An appeal by a person under subsection (1) or

(2) shall be instituted:

not later than the twenty-eighth day after the

(a) day on which a document setting out the terms

of the decision of the Tribunal is furnished to
the person or within such further time as the
Federal Court of Australia (whether before or
after the expiration of that day) allows;"

In reality what is being sought by the applicant is an

extension of time in which to appeal from the decision of the
Tribunal made on 13 January 1992, an extension of time to 3
April 1992, being the date upon which matter No VG number 108

was, in fact, filed.

In considering matters of this kind for an extension of

time, the authorities show that a number of factors must be

considered.	Some of those factors relate to the reasons why
the appeal was not lodged in time.	Other factors to be

considered are whether there is any chance or possibility of
an appeal being genuine, bona fide, or has any chance of

success. In the present case counsel for the respondent, the Department of Social Security, has said that in substance,

although not in words, that the appeal itself cannot be bona

fide or real or genuine and that, in any event, there is no

chance of that appeal succeeding.

Sub-section 43(2A) of the Administrative A D D ~ ~ ~ s Tribunal

Act contains a provision that where a Tribunal does not give reasons in writing for its decision, a party to the proceeding may within a specified time, request the Tribunal to furnish to that party a statement in writing of the reasons of the

Tribunal for its decision. In the present matter the

applicant so requested reasons for the decision and those
reasons were, in fact, prepared and posted to the applicant.
For present purposes I will assume that the reasons were not
received by the applicant until 10 March 1992. It is on this
basis that the applicant says that the appeal in matter No VG

108 of 1992 is within time.

There is no substance in this submission. It must be

rejected. Section 44 specifies the time within which the

appeal must be lodged and filed. The giving of the reasons

is not a date relevant for the purposes of the time within

which an appeal under the Administrative A D D ~ ~ ~ S	Tribunal Act
may be lodged.	In this regard reference may be made to the

Administrative Decisions (Judicial Review) Act 1977, which contains different provisions in relation to times within which an application for judicial review must be lodged. There, the giving of the reasons may, in certain circumstances, be the commencement of the time within which an

appeal must be lodged. Under the Administrative A ~ ~ e a l s

Tribunal Act it is the furnishing of a document setting out the terms of the decision which is the crucial time, here that was on 20 January 1992. The fact that the reasons for the decision were furnished to the applicant much later, namely on 10 March 1992, cannot affect the matter at all.

The Court has had the benefit of seeing the reasons of

the Tribunal as well as the decision of the Tribunal. A
reference to the decision itself makes it clear that because
of what occurred before the Tribunal, the Department of Social
Security conceded that the review by the applicant must
succeed. As a result the decision made by the Tribunal was in
a form which provided to the applicant all that he was seeking
under the provisions of the Social Security legislation. This
is a case where, on that aspect of the matter, there is no
possible ground upon which the appeal to this Court could
succeed because the applicant had obtained everything that he
sought pursuant to the relevant statutory provisions.

It appears, however, that what the applicant is

complaining about is something of a different kind.
Apparently there is a claim being made by the applicant
involving the rights to a well known story - namely, Crocodile
Dundee. The applicant, apparently, sought the review by the
Administrative Appeals Tribunal as a vehicle within which to
raise questions in relation to his claim for Crocodile Dundee.
It is to be remembered that the way in which the matter came

before the Tribunal was that the applicant had not attended at

the Commonwealth Employment Service and as a result his

benefits ceased to be paid. He sought a review of that

decision. As a result of evidence given before the Tribunal,

his failure to attend at the Commonwealth Employment Service
became fully explicable and justified. As a result the
Department no longer tried to justify the ceasing of payments
of the Social Security payments.

At paragraph 10 on page 5 of the reasons of the Tribunal, the Tribunal said:

"10. As well as conceding that Mr Bouvet was not provided
with fourteen days notice, Mr Carson also said that he
did not challenge the decision of the SSAT that special
benefit was payable to Mr Bouvet after 16 May 1991. Mr
Carson then pointed out that Mr Bouvet had, in his
application, raised the fact that no period had been set
in respect of the duration of the payment of special
benefit, and that he had, in para l(ii) of the summary at
page 26 of his statement of case, asked the Tribunal to:

"Set a specific date for cessation of Special Benefit when settlement of the commission for 'Crocodile Dundee' plus compound interest can be

effected."

The Tribunal at that point advised M r Bouvet that it had no power to set a specific date in the future for cessation of special benefit. It said:

"There is no way the tribunal can do that unless
that was in the past; we cannot see into the future,
nobody can see into the future. So that is

something the tribunal cannot do." "

That is a correct statement of the law and what has been

done by the applicant, as I said before, was to attempt to use
the review before the Tribunal as a vehicle to try and
determine some other issue. This was impermissible and the
Tribunal very properly said so. As a result the special

benefit is continuing to be paid and will be paid until

something occurs which may affect it. Any decision so

affecting it can in appropriate circumstances, be reviewed by

the Tribunal.

Having considered all these matters, the Court has come

to the view that there is no possible hope of the appeal
succeeding, and that the appeal itself is not bona fide. In
these circumstances the application for extension of time in
which to appeal from the decision of the Tribunal should be
refused. The application is refused.

The applicant should pay the respondent's costs of the

application. I so order on the basis that this is no
different from the ordinary case where, if an application is
brought and dismissed, the unsuccessful applicant should pay
the costs. From what has been said I can see no reason why

that normal course should not be followed here.

I certify that this and the preceding six (6) pages are a true
copy of the Ex Tempore Reasons for Judgment of the Honourable

Mr Justice R.M. Northrop.

-.

Associate: &&,.L

Date:  c 2 /9?2--