Box and Department of Family and Community Services - [2000] AATA 284

DECISION AND REASONS FOR DECISION [2000] AATA 284

ADMINISTRATIVE APPEALS TRIBUNAL )

) No V2000/0221

GENERAL ADMINISTRATIVE DIVISION          )
           Re      ELIZABETH BOX
  Applicant
           And    DEPARTMENT OF FAMILY AND COMMUNITY SERVICES
  Respondent

DECISION

Tribunal Mr J. Handley, Senior Member

Date13 April 2000
PlaceMelbourne

Decision It is decided that time not be extended to permit an application to be lodged.

…………Sgd. Mr J. Handley…………
Senior Member

Practice and Procedure: Extension of time; Application sought to be lodged 12 months after limitation period expired; whether explanation for delay fair and equitable; extension of time refused.

Social Security Act 1991
Administrative Appeals Tribunal Act 1975 29(7)(page 310)
Freedom of Information Act
Hunter Valley Developments Pty Ltd and others the Minister for Home Affairs and Environment 1985 58 ALR 305.
Comcare v A'Hearn 1993 18AAR 366
Dix v Crimes Compensation Tribunal 1993 IVR 297
Maric v Comcare 1993 40 FCR 244 and 17AAR259 and 263

REASONS FOR DECISION

13 April 2000 Mr J. Handley, Senior Member

The applicant applies to review a decision of the Social Security Appeals Tribunal made on 22 January 1999. The application to review that decision was lodged with this Tribunal on 24 February 2000. By reason of the Application being lodged beyond the period of time permitted under the Social Security Act 1991 and the Administrative Appeals Tribunal Act 1975 for review of decisions of the Social Security Appeals Tribunal, the application heard on 4 April 2000 was only to extend the time to lodge these hearings. The respondent opposed the making of an order to extend time to lodge the proceedings.
At the hearing Mr Box appeared on behalf of his wife. Ms King appeared on behalf of the respondent.
On 22 January 1999 the Social Security Appeals Tribunal made a decision to affirm decisions previously made by the respondent to:
(i)cancel parenting payment;
(ii)raise an over-payment of parenting allowance in the sum of $3,836.40 for the period 11 September 1997 to 12 March 1998; and
(iii)raise an over-payment of parenting payment in the sum of $2030.70 for the period 26 March 1998 to 18 June 1998.

THE RESPONDENTS SUBMISSIONS:

Ms King submitted that the decision of the Social Security Appeals Tribunal was received by her office on 28 January 1999 and that the Tribunal could assume that the applicant would receive the decision at or about that date. Allowing for a period of 28 days beyond that date for the lodgement of proceedings in the AAT, the Applicant should have commenced proceeding on or before 25 February 1999. By reason of not commencing proceedings until 24 February 2000 the Applicant was one year out of time to commence these proceedings.
Ms King submitted (by reference to a 16 page typed document lodged by Mrs Box with the Tribunal when these proceedings were notified to the Registrar) that it would appear that the intervening period of 12 months had been used to make representations to the Federal Ombudsman, to make an application under the Freedom of Information Act, and representations to the Applicant's local Federal member of Parliament and the local Centrelink Office.
Ms King submitted that even if the Tribunal were prepared to allow a period of time for the obtaining of the obtaining of documents under the Freedom of Information Act it would appear that those documents had been received in October 1999. Despite the receipt of these documents the Applicant did not commence proceedings for another five months.
Ms King submitted that whilst the Respondent did not allege any prejudice nor was it submitted that the application was totally without merit the Applicants would not be able to satisfy the onus of demonstrating the need to have time extended to permit these proceedings to be lodged.
Mr Box acknowledged that he received a letter from the Social Security Appeals Tribunal attached to the reasons for its decision. That letter advised that any appeal against the decision was to be heard by the Administrative Appeals Tribunal and the appeal should be lodged within 28 days of receipt of the Decision.
Nonetheless, he subsequently made representations to Centrelink, the SSAT, the Legal Aid Commission, the Ombudsman, his local Federal Member and he made an application also under the Freedom of Information Act.
Mr Box said that he and his wife did not agree with the decision that was made by the Social Security Appeals Tribunal and he approached Centrelink. He said that the counter officer at Centrelink agreed with his comments (made after the Social Security Appeals Tribunal reasons were published) who in turn rang the office of the Social Security Appeals Tribunal. This was apparently to bring to the attention of the Social Security Appeals Tribunal errors, which were then alleged by Mr Box in the Reasons for Decision in the Social Security Appeals Tribunal.
Mr Box also advised that as a result of the Decision that was made by the Social Security Appeals Tribunal, another debt has been raised by the respondent with respect to family allowance in a sum approximated to be $10,000. Apparently a reviewable decision was made by an Authorised Review Officer on 28 May 1999 but it has not been the subject of a review at the Social Security Appeals Tribunal.
Mr Box acknowledged that not having commenced proceedings within 28 days at the AAT could result in him being denied the opportunity for review, however, he said that he and his wife have a good relationship with Centrelink and they were frustrated in their attempts to have their case acknowledged by the Social Security Appeals Tribunal.
THE LEGISLATION
s29(7) of the Administrative Appeals Tribunal Act provides:
"the Tribunal may, upon application in writing by a person, extend the time for the making by that person of an application to the Tribunal for the review of a Decision (including a decision made before the commencement of this section)".
That section clearly confers upon the Tribunal a discretion as to whether time should be extended to permit the making of an application.
In the application for an extension of time, which was lodged with the Tribunal on 3 March 2000, Mr Box recorded as the reasons for applying for an extension of time:
"this matter has become protracted owing to a number of reasons viz, appeal hearing, Centrelink decision to apply a further debt, consultations with Legal Aid, Centrelink and others, re-application of documents under Freedom of Information, visits and further consultations, research and formulating detailed response (our letter to you 8.2.00). This has all cumulated in the passing of time over the past 12 months. Our letter fully explains the many changes and obstacles we have endured".
The letter referred to in the above explanation is a 16 page typed chronology of events commencing with the ending of the employment of Mr Box with the ANZ Bank and subsequent arrangements made to incorporate and restructure certain family trusts, preliminary to an application to Centrelink and by way of notification to Centrelink of a change in circumstances.
The document is extremely detailed and need not be repeated here other than to acknowledge that I have read it on two occasions.
CONCLUSION AND REASONS FOR DECISION
The starting point in considering whether to extend time to lodge proceedings is Hunter Valley Developments Pty Ltd and others v Minister for Home Affairs and Environment 1985 58 ALR 305. In that application Wilcox J "distilled" a number of principles to guide the exercise of a discretion as to whether to extend time to permit proceedings to commence.
With respect to those principles whilst it is to be observed that s29 (7) does not impose any onus of proof upon Mrs Box to extend time to commence proceedings, Courts and Tribunals will not extend time unless "positively satisfied that it is proper to do so" (page 310). Despite his honour having decided that it is a "pre-condition to the exercise of discretion ……. that the applicant for extension show an acceptable explanation for delay", a full Federal Court in Comcare v A'Hearn 1993 18AAR 366 decided "there is no rule that such an explanation (an acceptable explanation) is an essential pre-condition". In reaching that conclusion the Court referred to decisions which had recently been made by the Victorian Supreme Court in Dix v Crimes Compensation Tribunal 1993 VR 297 and Maric v Comcare 1993 40 FCR 244. An explanation for delay was also qualified by Wilcox J as having to be "fair and equitable in the circumstances". (Note discussion of this issue by O'Loughlin J in Maric v Comcare.)
His Honour in Hunter Valley also recorded that it was relevant to consider whether the appellant continued to cause the decision-maker to remain aware that the finality of a decision remained in dispute yet at the same time acknowledging that there does need to be "finality in disputes". Additionally issues such as prejudice to a party, the unsettling of practices, the merits of an application and considerations of fairness between applicants and other persons in similar situations are all relevant in the exercise of the discretion.
In the present case the explanation for delay by Mr Box in the commencement of these proceedings was that representations needed to be made to a number of other interested parties. In the present case representations were made in the period intervening the receipt of the decision and the actual making of the application to the respondent, the Social Security Appeals Tribunal, the Legal Aid Commission, the Federal Ombudsman, the local Federal member of Parliament and to the respondent by an application under the Freedom of Information legislation.
Time was also apparently occupied in preparing the 16 page typed submission.
Despite this Mr Box acknowledged that he received a letter from the Social Security Appeals Tribunal which was attached to the decision under review notifying him of the limitation of time to commence proceedings and the place at which any appeal should be lodged (this Tribunal).
I acknowledge that Mr Box has no legal training and has not been involved in legal proceedings previously. Nonetheless, he was advised that there was a time limit on the commencement of proceedings. He ignored that advice. Representations certainly were made to other agencies and whilst this is an explanation for the delay in the commencement of proceedings I have concluded on balance that it would not be "fair and equitable in the circumstances" to permit time to be extended to commence these proceedings.
Mr Box is an intelligent, literate person. He has held a position of management with a bank and would be aware from his previous professional experience of rules for good administration. He would also be aware that a consequence of failing to observe or adhere to certain rules can result in certain consequences.
I am not satisfied that it would be fair and equitable to extend time to lodge these proceedings. The explanation for the delay was the representations made to other agencies, yet all of those representations could have been made after the application was issued. Mr Box was aware of the limitation period within which to commence this Appeal. He ignored it. Matters involving a challenge to the over-payment of public monies should be heard expeditiously. The respondent was entitled to assume that the Social Security Appeals Tribunal decision would not be challenged, it would be unfair to expect it, 12 months after the limitation period expired, to respond to the application now sought to be lodged.
The application is dismissed.

I certify that the 27 preceding paragraphs are a true copy of the reasons for the decision herein of Mr J. Handley, Senior Member
Signed:    Linda Nemeth    ............................................
                 Secretary
Date of Hearing  4 April
Date of Decision  13 April 2000
Counsel for the Applicant        Mr Box
Solicitor for the Applicant
Counsel for the Respondent    Ms King
Solicitor for the Respondent