Cassandra McCann and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs Secretary, Department of Education, Employment and Workplace Relations

[2012] AATA 563

[2012] AATA 563  

Division

GENERAL ADMINISTRATIVE DIVISION

File Number(s)

2012/2141

Re

Cassandra McCann

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	28 August 2012
Place	Sydney

The application for an extension of time is refused.

...........[sgd].............................................................

Senior Member J F Toohey

CATCHWORDS

PRACTICE & PROCEDURE – EXTENSION OF TIME – application lodged 18 months after decision of Social Security Appeals Tribunal – no acceptable explanation for the 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) and 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

28 August 2012

BACKGROUND

1. This matter concerns whether Ms Cassandra McCann should be granted an extension of time to lodge an application for review of a decision of the Social Security Appeals Tribunal (SSAT).

2. On 27 February 2004, Ms McCann began to receive parenting payment at the single rate after informing Centrelink that she had separated from her husband. On 6 April 2010, Centrelink determined that she had been a member of a couple from 15 March 2004.  Centrelink cancelled her parenting payment single and decided to raise and recover various debts of family tax benefit, child care benefit and child care tax rebate. On 27 May 2010, Centrelink decided to raise and recover a debt of parenting payment single totalling $69,134.24.

3. On 13 October 2010, the SSAT affirmed Centrelink’s decisions.

4. According to the SSAT’s decision, a copy was dispatched to Ms McCann on 25 October 2010. Approximately 18 months later, on 28 May 2012, Ms McCann lodged an application for review of the SSAT’s decision with the Administrative Appeals Tribunal (the Tribunal).

5. As a general rule, an application for review of a decision must be lodged with the Tribunal within 28 days from the day on which the applicant received the decision: 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).

6. I have to decide whether Ms McCann should be granted an extension of time in which to lodge her application for review.

   PRINCIPLES

7. 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 summarized 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 courts discretion.

8. 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?

9. In her application for an extension of time, Ms McCann wrote that she was prevented from lodging an application for review earlier due to “extreme depression and stress and the way in which my life has unfolded”.  She stated that it is only now that she is able to deal with the matter with “a clear head”.

10. At a hearing on 4 July 2012, Ms McCann expanded on her written statement.  She said she has been suffering from severe depression and stress for which she began counselling this year. She also said that, that soon after she received the decision of the SSAT, her son suffered a burst appendix and became extremely ill.

11. As she had not provided any evidence to support her claims, the Tribunal allowed Ms McCann additional time to obtain evidence from her general practitioner and her counsellor.  She has now submitted certificates from her psychologist, Steven Kwok, and her general practitioner, Dr Mary Wong. The certificate from Mr Kwok confirms that he has been treating Ms McCann since 13 March 2012 and, as of 10 July 2012, they have had seven sessions to “discuss a number of stressors in her life”; these sessions are ongoing.

12. In an email to the Tribunal on 23 July 2012, Ms McCann said that Mr Kwok had refused to provide more detailed information about her condition, as requested by the Tribunal, due to concerns about privacy. She also noted that she had seen another psychologist from January 2012 who had replaced Mr Kwok while he was on leave.

13. The consultation notes of Dr Wong dated 13 April 2010 confirm that Ms McCann was suffering from depression and anxiety. Progress notes dated 4 February 2011 show that Ms McCann was suffering from stress-related depression and that she was prescribed anti-depressant medication.

14. I accept that Ms McCann has struggled with depression and anxiety in the period since the SSAT decision but nothing in the information she has submitted indicates that her condition prevented her from lodging her application, or explains the very lengthy delay. I am not satisfied, on the evidence she has provided, that there is an acceptable explanation for the delay in lodging her application.

15. Further, the reasons of the SSAT are long and detailed, and it adjourned in order to allow Ms McCann an opportunity to provide further information.  She has not pointed this Tribunal to any further information that suggests that the SSAT did not reach the correct or preferable decision. On what she has provided to the Tribunal, her application seems to have little, if any, prospect of success.

16. Finally, it would not be fair to others to allow Ms McCann to seek review of a decision made more than 18 months ago in circumstances where the evidence does not show an acceptable explanation for the delay, and where her application has little, if any, prospect of success. The AAT Act provides for a statutory period and there needs to be good reason to depart from that position.

17. I am not satisfied it is reasonable in the circumstances to grant Ms McCann an extension of time. Her application is refused.

I certify that the preceding 17 (seventeen) paragraphs are a true copy of the reasons for the decision herein of Senior Member J F Toohey.

............[sgd]............................................................

Associate

Dated 28 August 2012

Date(s) of hearing	4 July 2012
Applicant	In person
Solicitors for the Respondent	Ms J Maclean, DHS Program, Litigation and Review Branch