Burrows and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs
[2012] AATA 677
•14 September 2012
Administrative Appeals Tribunal
ADMINISTRATIVE APPEALS TRIBUNAL )
)No: 2012/3505
GENERAL ADMINISTRATIVE DIVISION )
Re: BERYL BURROWS
ApplicantAnd: SECRETARY, DEPARTMENT OF FAMILIES,
HOUSING, COMMUNITY SERVICES AND
INDIGENOUS AFFAIRS
RespondentTRIBUNAL: Deputy President J W Constance
DATE: 14 September 2012
PLACE: Melbourne
ORDER
The application for an extension of the time in which the applicant may apply to the Tribunal to review the decision of the respondent made 6 February 2012, is refused.
..........[sgd]..............................
Deputy President
[2012] AATA 677
Division GENERAL ADMINISTRATIVE DIVISION File Number(s)
2012/3505
Re
Beryl Burrows
APPLICANT
And
Secretary, Department of Families, Housing, Community Services and Indigenous Affairs
RESPONDENT
REASONS FOR DECISION
introduction
On 16 August 2012 Mrs Burrows filed in the Tribunal an application for review of a decision of the Social Security Appeals Tribunal that she was not entitled to a pension bonus scheme payment. The decision of the Social security Appeals Tribunal was made on 6 February 2012. Mrs Burrows received a copy of the decision and the reasons for it on 10 February 2012.
As the application for review was lodged more than 28 days after she was given the document setting out the terms of the decision, Mrs Burrows applied to this Tribunal for an extension of the time in which to make the application for review.[1]
[1] Section 29 of the Administrative Appeals Tribunal Act 1975 (Cth) provides that an application for review of a reviewable decision shall be lodged within 28 days after the applicant was given the document setting out the terms of the decision. The section also provides that the Tribunal may extend the time for the making of an application for review “if the Tribunal is satisfied that it is reasonable in all the circumstances to do so.”
At the end of a hearing on 12 September 2012 I refused to extend the time for the lodgement of the application for review and gave orally my reasons for refusing. I now give my reasons in writing.
principles to be applied
As already mentioned the Tribunal may extend the time if it is satisfied “that it is reasonable in all the circumstances to do so.”
The Federal Court set out the principles to be applied in an application such as this in Budd and Secretary, Department of Education, Employment and Workplace Relations [2008] FCA 1540. The Court stated, in part:
18 … it is useful to set out in modified form the relevant principles in relation to the exercise of the Court’s discretion when considering an extension of time in a human rights application based upon those principles distilled by Wilcox J in Hunter Valley as follows: 1. There is no onus of proof upon an applicant for extension of time though an application has to be made. Special circumstances need not be shown, but the court will not grant the application unless positively satisfied it is proper to do so. The "prescribed period" of 28 days is not to be ignored (Ralkon v Aboriginal Development Commission (1982) 43 ALR 535 at 550). 2. It is a prima facie rule that the proceedings commenced outside the prescribed period will not be entertained (Lucic v Nolan (1982) 45 ALR 411 at 416). It is not a pre-condition for success in an application for extension of time that an acceptable explanation for delay must be given. It is to be expected that such an explanation will normally be given as a relevant matter to be considered, even though there is no rule that such an explanation is an essential pre-condition (Comcare v A'Hearn [1993] FCA 498; (1993) 45 FCR 441 and Dix v Client Compensation Tribunal (1993) 1 VR 297 at 302). 3. Action taken by the applicant other than by making an application to the court is relevant in assessing the adequacy of the explanation for the delay. It is relevant to consider whether the applicant has rested on his rights and whether the respondent was entitled to regard the claim as being finalised. (See Doyle v Chief of Staff (1982) 42 ALR 283 at 287). 4. Any prejudice to the respondent, including any prejudice in defending the proceeding occasioned by the delay, is a material factor militating against the grant of an extension. (See Doyle at p 287). 5. The mere absence of prejudice is not enough to justify the grant of an extension. (See Lucic at p 416). 6. The merits of the substantial application are properly to be taken into account in considering whether an extension of time should be granted. (See Lucic at p 417). 7. Considerations of fairness as between the applicant and other persons otherwise in a like position are relevant to the manner of exercise of the court’s discretion (Wedesweiller v Cole (1983) 47 ALR 528).
The question of the likelihood that an applicant will succeed on the merits of the application is an important factor in deciding whether an extension of time should be granted. In Kuljic and Secretary, Department of Social Security, [1994] FCA 886, the Federal Court said, in part:
6. One of the principal considerations to be addressed in deciding whether it is fair and equitable in all the circumstances to extend time is whether the merits of the proposed appeal are such that if an extension of time is granted there is some prospect of success in the appeal. If a consideration of the merits indicates that there is no question to be agitated on the appeal, and there is no prospect of success, it would be futile to grant an extension of time and most unjust to the respondent to subject the respondent to the costs of defending a pointless appeal...
consideration
Mrs Burrows is claiming that she is entitled to a pension bonus payment under the Social Security Act 1991 (Cth). Section 92C of the Act sets out a number of qualifications which must be met before the bonus is payable. One of the qualifications is that “the person has not received an age pension at any time before making a claim for the pension bonus”.[2]
[2] Subsection 92C(b).
It is not in dispute that Mrs Burrows applied for the bonus on 9 September 2009.
The Secretary alleges that Mrs Burrows was paid age pension for the periods:
·7 April 2004 to 1 May 2004;
·31 May 2004 to 13 June 2004;
·18 October 2004 to 30 October 2004;
·13 November 2004 to 29 November 2004;
·18 July 2005 to 30 July 2005.
Mr Burrows, who appeared for Mrs Burrows, did not agree that all of the alleged payments had been received by Mrs Burrows. However he did agree that prior to Mrs Burrows applying for the bonus she had applied for, and received, two payments of the age pension.
These receipts of the pension of themselves prevent Mrs Burrows being qualified for payment of the pension bonus and as a consequence Mrs Burrows has no prospects of success on the merits of her application for review, even if an extension of time is granted. In the words of the Federal court in Kuljic, “it would be futile to grant an extension of time and most unjust to the respondent to subject the respondent to the costs of defending a pointless appeal”.
Mr Burrows referred me to the decision of the Tribunal in Rodham and Secretary, Department of Families, Community Services and Indigenous Affairs [2007] AATA 1331 in which the applicant was held to be entitled to the bonus despite having received some payments of the age pension. However in that matter the payments were made by Centrelink as a result of its error. Mr Rodham had never applied for the aged pension. On this basis the Rodham decision does not assist Mrs Burrows.
conclusion
For the reasons stated Mrs Burrows application for an extension of time in which to lodge her application for review was refused.
I certify that the preceding 13 (thirteen) paragraphs are a true copy of the reasons for the decision herein of Deputy President J W Constance .
........................................................................
Associate
Dated 4 October 2012
Date of hearing 12 September 2012 Advocate for the Respondent Ailsa Bramley - Centrelink Program Litigation and Review Branch
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