Chapman and Secretary, Department of Family and Community Service S

[2003] AATA 844

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2003] AATA 844

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No Q2002/224

GENERAL ADMINISTRATIVE  DIVISION		)
Re		DEREK CHAPMAN

Applicant

And

SECRETARY, DEPARTMENT

OF FAMILY AND COMMUNITY SERVICES

Respondent

DECISION

Tribunal       Senior Member KL Beddoe

Date              10 July 2003

Place             Maroochydore

Decision      The Tribunal refuses to reinstate the application for review.

...……….(Sgd)……….
  KL Beddoe
   Member

CATCHWORDS

PRACTICE AND PROCEDURE – reinstatement – lengthy delay from cancellation of newstart allowance to appeal to SSAT- applicant appealed to AAT and after conference process withdrew application – sought reinstatement 9 months later – no reasonable prospect of review being successful

WRITTEN REASONS FOR ORAL DECISION

29 August 2003 Senior Member KL Beddoe          

1.      By a decision dated 20 February 2002 the Social Security Appeals Tribunal (“SSAT”) purported to affirm a decision of the respondent to cancel payment of newstart allowance effective from 17 December 1994.  In fact the allowance had been cancelled with effect from 17 September 1994 and it must be accepted that the SSAT intended to affirm that decision which was notified to the applicant on 14 October 1994.

2.      The applicant made a valid application for review to this Tribunal on 8 March 2002.

3.      On 23 April 2002 a Conference Registrar conducted a section 34 conference in this matter by telephone.

4.      By notice dated 19 August 2002 the applicant withdrew the application for review.  That withdrawal was acknowledged by a Deputy Registrar of the Tribunal on 20 August 2002.

5. In a letter dated 10 June 2003 the applicant applied for reinstatement of the application for review. That application came on for hearing before me at Maroochydore on 10 July 2003. The applicant conducted his own case and Ms Dwyer represented the respondent. The documents lodged in the Tribunal pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 were before the Tribunal as the “T” Documents.  The applicant gave unsworn evidence from the bar table which, subject to what follows, I accepted in its entirety.

6.      At the conclusion of the hearing an oral decision was given.  On 7 August 2003 the applicant wrote to the Tribunal requesting written reasons for the decision not to reinstate the application for review.  I now set out the oral reasons given at the hearing.

“Well, I’m afraid you haven’t convinced me, Mr Chapman, and you haven’t convinced me for a couple of reasons.  One is that I don’t think that your seeking a review of the decision in September 1994, and notified in the letter of October 1994 whereby your payment of Newstart Allowance was cancelled, was anything other than a decision under the Act, and the reason for the cancellation was notified at the time.  You didn’t do anything about it for a number of years until you sought review in the Social Security Appeals Tribunal.  That Tribunal reviewed the decision and affirmed it.  You then made an application to the Administrative Appeals Tribunal in time and the matter was the subject of a conference in the Administrative Appeals Tribunal and, subsequently to that, you decided to withdraw your application.

Now, I well understand that sometimes, in the heat of the moment, people might be convinced that they don’t have a case and therefore they should withdraw their application, and if they haven’t paid any fees, they may well be easily induced to do so.  Those who have had to pay fees for their application are much less inclined to withdraw them, but in your case you wouldn’t have had to pay any fee and you notified the Tribunal on 19 August 2002 that you wished to withdraw the application.  That’s a right that every applicant in the Tribunal has – to withdraw the application.  There’s nothing suggesting that you were somehow mislead by someone as to the effect of that.  The wording on the form itself is pretty clear that the application is being withdrawn.  The Deputy Registrar of the Tribunal wrote to you the next day pointing out that you had withdrawn the application and that it was therefore taken to have been dismissed, and put that in writing to you.  Nothing happened after that for a long time until you made application to have the matter reinstated.

Now, that delay in itself is enough to cause me to consider that you should not have a reinstatement.  A reinstatement application should be made within a short time after the withdrawal because there’s a recognition at the time that some sort of error has occurred, whether it’s an error by the applicant or an error by someone else, and the matter can be remedied by a reinstatement.  But in this case, there was a long delay of nine months after the withdrawal before any attempt was made to have the matter reinstated.  But even then, considering the merits of the case, quite frankly the case has no reasonable prospects of success – none whatsoever.

The Newstart Allowance was cancelled in October 1994 because in September 1994 you ceased making claims.  Now, as to why you ceased making claims in September 1994 is a matter for you, but so far as the Department of Family and Community Services is concerned, you ceased making claims, therefore they cancelled your Newstart Allowance.  They were entitled to do that.  In fact, the Act itself did that, rather than the Department.  And they notified the effect of the legislation to you and nothing further happened until you applied to the Social Security Appeals Tribunal many years later.   In the meantime, you had in fact been paid Newstart Allowance and then subsequently for the last three years, you’ve been paid a disability support pension.

So, there’s no issue of possible hardship involved in this;  the issue is extended delays which are really unexplained and you seek review of a decision where there is no reasonable prospect of the review of that decision being successful.

Furthermore, as I said before, the long delay after the withdrawal of the application is, in itself, sufficient to justify a refusal for a reinstatement.  So there’s several grounds on which I can’t find in your favour, and the application for reinstatement is refused.”

7.      On 14 July 2003 the parties were notified in writing that the application for reinstatement had been refused.  On 11 August 2003 the applicant lodged a request for reasons in writing.

I certify that the 7 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member KL Beddoe

Signed:         Sarah Oliver
  Associate

Date of Hearing  10 July 2003 (at Maroochydore)
Date of Decision  10 July 2003
Date of Written Reasons          29 August 2003

The Applicant appeared in person  
For the Respondent                  Ms J Dwyer, Departmental Advocate