Charalambous and Secretary, Department of Social Services (Social services second review)

[2017] AATA 1049

Charalambous and Secretary, Department of Social Services (Social services second review) [2017] AATA 1049 (26 June 2017)

Division:GENERAL DIVISION

File Number(s):      2017/2540

Re:Helen Charalambous

APPLICANT

AndSecretary, Department of Social Services

RESPONDENT

REASONS FOR DECISION

Tribunal:Egon Fice, Senior Member

Date of decision:     26 June 2017  

Date of reasons:     7 July 2017

Place:Melbourne

The Tribunal refuses the application under section 29(7) of the Administrative Appeals Tribunal Act 1975 for an extension of time to lodge this application for review of a decision.  

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

Egon Fice, Senior Member

SOCIAL SECURITY – parenting payment single – extension of time to lodge application – five years and four months delay in bringing application – no satisfactory explanation – no objective evidence which might provide applicant with success if matter were to proceed to a substantive hearing– extension of time application refused

Legislation

Administrative Appeals Tribunal Act 1975 s 29

Cases

Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541
Comcare v A’Hearn (1993) 45 FCR 441
Federal Commissioner of Taxation v Brown (1999) 42 ATR 672
Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344

Windshuttle v Commissioner of Taxation (1993) 46 FCR 235

REASONS FOR DECISION

Egon Fice, Senior Member

7 July 2017

1. Ms Helen Charalambous received the parenting payment single between 3 January 2001 and 16 October 2002; and then again from 8 January 2003 to 22 September 2009. On 7 January 2010 a Centrelink officer made a decision to raise and recover a debt resulting from an overpayment of parenting payment single in the amount of $81,878.65 from Ms Charalambous. Centrelink claimed Ms Charalambous exceeded the asset allowable limit in the period 26 December 2001 to 22 September 2009.

2. On 27 June 2011 Ms Charalambous applied for an independent review of Centrelink’s decision by the then Social Security Appeals Tribunal (SSAT). The SSAT handed down its decision on 8 August 2011, affirming the decision under review. It appears Ms Charalambous also lodged an application with this Tribunal seeking a review of the SSAT decision. However, on 13 January 2012 Ms Charalambous lodged written notification requesting her application be withdrawn/discontinued in accordance with s. 42A(1A) of the Administrative Appeals Tribunal Act 1975 (the AAT Act). In a letter dated 16 January 2012 the Tribunal notified Centrelink that the effect of Ms Charalambous’ withdrawal/discontinuance of her application resulted in an application effectively being dismissed without proceeding to review.

3. Nothing further was heard from Ms Charalambous until she lodged another application for review of the former SSAT decision on 2 May 2017. That is some 5 years and 4 months since she withdrew her application to the Tribunal. With that application, she lodged an application for an Extension of Time for making an application for review of a decision as well as a request for a Stay Order.

4. Section 29(7) of the AAT Act makes provision for the extension of time for making an application to the Tribunal. It 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 a review of a decision (including a decision made before the commencement of this section) if the Tribunal is satisfied that it is reasonable in all the circumstances to do so.

5. Sections 29(9) and (10) deal with notification issues where an extension of time is sought by an applicant. In essence, before the Tribunal determines an application for an extension of time, the Tribunal may give notice of the application to any persons who may be affected by the application or require the applicant to give such notice. Importantly, where a person given notice informs the Tribunal that they wish to oppose the application, the Tribunal must not determine the application except after a hearing at which the applicant and any person affected by the application has had a reasonable opportunity of presenting their respective cases.

6. I heard Ms Charalambous’ application for an extension of time on 26 June 2017, refusing her application. I provided her with brief oral reasons for that refusal. Ms Charalambous requested that I give my reasons in writing. These are those reasons.

7. Section 29(2) of the AAT Act prescribes the time within which an application for review must be lodged with the Tribunal. Relevantly, it provides:

   (2) Subject to subsection (3), the prescribed time for the purposes of paragraph (1) (d) is the period commencing on the day on which the decision is made and ending on the twenty-eighth day after:

   (a)if the decision sets out the findings on material questions of fact and the reasons for the decision--the day on which the document setting out the terms of the decision is given to the applicant; or…

8. However, the Tribunal does have discretion to extend the time for making an application. Section 29(7) 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 a review of a decision (including a decision made before the commencement of this section) if the Tribunal is satisfied that it is reasonable in all the circumstances to do so.

9. While the Tribunal has discretion to extend the time within which an application may be made to the Tribunal for review of a decision, that discretion is not unlimited or unfettered. The Tribunal must be satisfied that it is reasonable in all the circumstances to do so. The Courts have provided guidance as to matters which generally should be considered in exercising that discretion.

   EXERCISE OF DISCRETION TO GRANT EXTENSION OF TIME

10. McHugh J in the High Court of Australia case Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541 explained that for nearly 400 years the policy of the law has been to fix definite time limits for prosecuting civil claims. While an applicant for an extension of time may satisfy conditions for the exercise of discretion, nevertheless, the applicant bears the onus of showing that the justice of the case requires the exercise of the discretion in his or her favour.

11. After explaining the rationale behind limitation periods set out in statutes, McHugh J said, at 553-554:

    In enacting limitation periods, legislatures have regard to all these rationales.  A limitation period should not be seen therefore as an arbitrary cut off point unrelated to the demands of justice or the general welfare of society.  It represents the legislature’s judgment that the welfare of society is best served by causes of action being litigated within the limitation period, notwithstanding that the enactment of that period may often result in a good cause of action being defeated.…  A limitation provision is the general rule; an extension provision is the exception to it.  The extension provision is a legislative recognition that general conceptions of what justice requires in particular categories of cases may sometimes be overridden by the facts of an individual case.…  The discretion to extend should therefore be seen as requiring the applicant to show that his or her case is a justifiable exception to the rule that the welfare of the State is best served by the limitation period in question.  Accordingly, when an applicant seeks an extension of time to commence an action after a limitation period has expired, he or she has the positive burden of demonstrating that the justice of the case requires that extension.

12. Although the principles and bases upon which the discretion should be exercised are drawn from civil cases heard by the Courts, those principles apply equally to the Tribunal which is required to act judicially.

13. There are two cases which are generally followed by the Tribunal when considering whether an extension of time should be granted.  The first is the Federal Court of Australia decision of Wilcox J in Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344 (Hunter Valley Developments) and the second, a Full Court of the Federal Court

    
    

    (Black CJ, Gray and Burchett JJ) decision in Comcare v  A’Hearn (1993) 45 FCR 441. The relevant passages in Hunter Valley Developments are found at pages 348-349 where his Honour said:

    1.…  Special circumstances need not be shown but the court will not grant the application unless positively satisfied that it is proper so to do.  The “prescribed period” of twenty-eight days is not to be ignored (Ralkon Agricultural Co.  Pty Ltd v. Aboriginal Development Commission (1982) 43 A.L.R. 535 at 550). Indeed, it is the prima facie rule that proceedings commenced outside that period will not be entertained (Lucic v. Nolan (1982) 45 A.L.R. 411 at 416). It is a pre-condition to the exercise of discretion in his favour that the applicant for extension show an “acceptable explanation of the delay” and that it is “fair and equitable in the circumstances” to extend time….

    2.  Action taken by the applicant, other than by making an application for review under the Act, is relevant to the consideration of the question whether an acceptable explanation for the delay has been furnished.  A distinction is to be made between the case of a person who, by non-curial means, has continued to make the decision-maker aware that he contests the finality of the decision… and a case where the decision-maker was allowed to believe that the matter was finally concluded… The reasons for this distinction are not only the “need for finality in disputes” (see Lucic at 410) but also the “fading from memory” problem referred to in Wedesweiller v.  Cole (1983) 47 A.L.R. 528.

    3.  Any prejudice to the respondent including any prejudice in defending the proceedings occasioned by the delay is a material factor militating against the grant of an extension…

    4.  However, the mere absence of prejudice is not enough to justify the grant of an extension:…

    5.  The merits of the substantial application are properly to be taken into account in considering whether an extension of time should be granted,…

    6.  Considerations of fairness as between the applicants and other persons otherwise in a like position are relevant to the manner of exercise of the court’s discretion:…

14. A’Hearn was initially heard in the Tribunal and subsequently went on appeal from a single judge of the Federal Court to the Full Court. The Tribunal refused to grant an extension of time on the basis that there was a total absence of any acceptable explanation for the delay. The Full Court said, at 444:

    We note that the Tribunal used language that might be taken to suggest that it is a pre-condition for success in such an application that an acceptable explanation for the delay must be given.  Although it is to be expected that such an explanation will normally be given, as a relevant matter to be considered, there is no rule that such an explanation is an essential pre-condition:…

    Delay

15. Ms Charalambous said that she was unable to proceed with an application to the Tribunal following the SSAT decision due to her being unwell. She said she suffered depression and she had a traumatic divorce. She also had car accidents in 2012, 2014 and 2015. She was only hospitalised as a result of the 2015 accident. She also claimed she had a considerable dispute with the Transport Accident Commission regarding compensation. More recently, on 23 May 2017, she suffered a broken ankle.

16. While I accept that Ms Charalambous has had a difficult past five years, there is nothing in the evidence she gave on the hearing of this matter which indicated it was simply not possible for her to lodge an application at an earlier date. In fact, I find that she could have lodged the application at an earlier date because she was not incapacitated to the extent which would have prevented her from doing so. She did not explain what prompted her to finally lodge her application on 2 May 2017.

17. The length of delay in this case is significant. The most significant aspect of a lengthy delay is the fact that Ms Charalambous relies solely on her memory of events which gave rise to the debt recovery action by Centrelink in 2010. Some seven years have passed since that time. Memories will undoubtedly be inaccurate and would form an unsafe basis upon which to base a decision. That is particularly so where there is objective contemporaneous documentary evidence which contradicts memory. On a hearing of the substantive matter, the Tribunal would be required to rely almost entirely on objective evidence presented to it and taken into evidence.

18. On the hearing of this application, Ms Charalambous did not provide the Tribunal with any additional documents which were not before the SSAT when it made its decision. When I asked Ms Charalambous whether there were any other documents upon which she would rely at the hearing of the matter, she was unable to point to anything specific. In fact, she repeatedly referred me to her memory of discussions held with Centrelink officers at about the time the debt was raised. With respect to Ms Charalambous, as I explained to her at the hearing, her recollections after that passage of time would carry little if any weight. They could only carry weight if they were substantiated or in some way supported by the objective evidence.

    Merits of the claim

19. This is a very significant consideration in this case. If Ms Charalambous has no prospects of success, then there is no point in proceeding to a substantive hearing. In order to succeed on this application, I must be satisfied that there are facts and circumstances which, if established at the substantive hearing, would provide a basis for success on the substantive application, or, that there are points of law raised which if sustained would lead to that conclusion.

20. As Wilcox J said in Hunter Valley Developments, the merits of the substantial application are properly to be taken into account in considering whether an extension of time should be granted.  However, in doing so, some care must be exercised when undertaking this task.  This was explained by von Doussa J in Windshuttle v Commissioner of Taxation (1993) 46 FCR 235, a case which went on appeal to the Federal Court from the Tribunal. His Honour said, at 243-244:

    The issue which the AAT was required to consider was whether, for the purposes of the exercise of the discretion under s 188A, the applicant’s case had prospects of success, and what those prospects were.  It is sufficient for that purpose, if the parties chose to so argue their case, to merely identify the factual assertions which the applicant made in the objection, and then to consider whether the application of the law to those assertions would bring about the result for which the applicant contends.  In other words the assertions can, if the parties so choose, be treated as pleadings are treated where an application is made to strike out an action on the ground that the pleadings disclose no cause of action.  On an application of that kind the true existence of the facts alleged in the pleadings is not explored by evidence.  That is left for the trial if there is an arguable case on the pleadings.…  It would not be appropriate on an application to extend time to seek to attack the facts alleged on the ground that the credit of the applicant, or that of supporting witnesses, should not be accepted.  Arguments of that kind are best left for later consideration if and when an extension of time is granted.  Only where there is some obvious and easily demonstrated flaw in the applicant’s case would it be appropriate to challenge the factual basis for the asserted claim on an application to extend time.

21. The above statement made by von Doussa J was cited with approval by the Full Court of the Federal Court (Drummond, Sackville and Hely JJ) in Federal Commissioner of Taxation v Brown (1999) 42 ATR 672. The Court said, at 679:

    [18]

    It is important to appreciate the limits of the Commissioner’s argument. 

    
    

    Mr Bevan, who appeared with Mr Iuliano for the Commissioner, explicitly (and properly) made the following concessions:

    (i)     In determining whether a taxpayer seeking an extension of time in which to lodge an objection has prospects of success, the test to be applied is whether the objection arguably has merit.

    (ii)    The arguable merits test requires the taxpayer’s case to be assessed at its highest.

    (iii)    It follows that, in applying the arguable merits test, findings of credit have no place.  In other words, it is an error of law for the AAT to decide that the taxpayer’s objection has no arguable merits on the basis that the taxpayer’s evidence is not worthy of belief.

    (iv)   Ordinarily, it is inappropriate for the AAT to permit or to engage in cross-examination of the taxpayer’s witnesses with the view to testing the veracity of their evidence so far as the merits of the objection were concerned.…

22. The difficulty faced by Ms Charalambous in establishing that her claim has merit is that she has not produced a single piece of documentary evidence which supports her view of the events. She simply maintained that she had told the Centrelink officer in October 2010 about a company called Boss House Pty Ltd, in which she had an interest. I had no documentary evidence of any such discussion. In fact, the SSAT decision states:

    The Tribunal pointed out that, according to her file, her payments were suspended in 2006 while her income from self-employment was being investigated, but there was no mention of assets or Boss House Pty Ltd.…

23. The SSAT took Ms Charalambous to the claim form she completed in 2001 where she failed to declare her interest in a private company and a loan owed to her by the private company. Her response, according to the SSAT, was that she did not complete the form but had given it to her accountant to complete. Clearly, that does not provide a reasonable excuse to Ms Charalambous for the omission of an interest in an asset. In any event, it appears that the accountant was not called or asked to provide a witness statement.

24. The SSAT decision referred to a number of other documents which evidence Ms Charalambous as having omitted to declare all of her assets when in receipt of Social Security payments. Her only response to the SSAT was that she had done so and in any event, she considered the other assets as being effectively retirement assets which she claimed should not be taken into account when assessing her assets. Ms Charalambous did not provide any evidence to the SSAT to substantiate her claims nor is there any legal basis for not taking into account assets which a person intends to keep for their retirement into account for the purposes of Social Security payment receipts. Nor did Ms Charalambous provide any information or objective evidence to support the oral claims she made to the SSAT.

25. Therefore, if this matter were to proceed to a hearing on the substantive matter, I cannot see how Ms Charalambous could succeed as the documentary evidence referred to in the SSAT decision is entirely against her claim. Significant expenditure would be incurred for no purpose. Furthermore, it would simply cause needless further distress to Ms Charalambous who is obviously significantly distressed at the present time.

26. While I am grateful for the further submissions regarding prejudice made by Mr T de Uray, a Principal Government Lawyer, who appeared on behalf of the Secretary, I need not consider those submissions given the findings I have made above.

    CONCLUSION

27. In addition to there being no satisfactory explanation for the five years and four months delay in bringing this application, Ms Charalambous was not able to point to any objective evidence upon which, if the matter were to proceed to a hearing of the substantive matter, might provide her with success. There being no prospects of success in this matter, the extension of time application must be refused.

28.     I certify that the preceding 27 (twenty-seven) paragraphs are a true copy of the reasons for the written reasons herein of Egon Fice, Senior Member

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

Associate

Dated   7 July 2017

Date of hearing	26 June 2017
Applicant	In person
Advocate for the Respondent	Mr Tim de Uray
Solicitors for the Respondent	Department of Human Services