Clark and Secretary, Department of Employment and Workplace Relations

[2007] AATA 1632

ADMINISTRATIVE APPEALS TRIBUNAL

No: 2007/2814

General Administrative Division

Re: Sandra Clark
Applicant

And: Secretary, Department of Employment and Workplace Relations
Respondent

DIRECTION [2007] AATA 1632

TRIBUNAL:             Ms A F Cunningham (Senior Member)

DATE:                      14 August 2007

PLACE:                   Hobart

The Tribunal directs the Registrar, pursuant to sub-s.43AA(1) of the Administrative Appeals Tribunal Act 1975, to alter the title of the decision in this application number [2007] AATA 1632 by deleting the words “Secretary, Department of Families, Community Services and Indigenous Affairs” and substituting the words “Secretary, Department of Employment and Workplace Relations” as appearing in the title of the decision.

[Sgd Ann Cunningham]
Senior Member

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2007] AATA 1632

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No 2007/2814

GENERAL ADMINISTRATIVE  DIVISION		)
Re		SANDRA CLARK

Applicant

And SECRETARY, DEPARTMENT OF FAMILIES, COMMUNITY SERVICES AND INDIGENOUS AFFAIRS

Respondent

DECISION

Tribunal Ms A F Cunningham (Senior Member)

Date2 August 2007

PlaceHobart

Decision That time is extended for the lodgement of the application for review to 27 June 2007.

(Sgd) Ms A F Cunningham

Senior Member

CATCHWORDS

Extension of time – 17 months out of time – whether applicant rested on her rights – difficulty in obtaining legal representation – applicant disputes marriage-like relationship – application granted

LEGISLATION

Administrative Appeals Tribunal Act 1975, Section 29(2) and (7)

REASONS FOR DECISION

2 August 2007 Ms A F Cunningham (Senior Member)   

1.      This is an application for an extension of time in which to lodge an application for a review of a decision originally made by a Centrelink Officer on 19 May 2005 and varied by the Social Security Appeals Tribunal (SSAT) on 24 January 2006.  The decision held that the applicant was a member of a couple with Mr John Bambrick from 16 September 2000.  The application for an extension of time was filed with the Tribunal on 27 June 2007.

2. The legislative provisions with respect to the timeframe within which an application for review to the Administrative Appeals Tribunal is to be made are contained in section 29 of the Administrative Appeals Tribunal Act 1975 (the Act) and read as follows:

“29.(1)  …..

Prescribed time for making applications—general

29. (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 a document setting out the terms of the decision is given to the applicant; or

(b)  if the decision does not set out those findings and reasons:

(i)  if a statement in writing setting out those findings and reasons is given to the applicant otherwise than in pursuance of a request under subsection 28(1) not later than the twenty‑eighth day after the day on which a document setting out the terms of the decision is given to the applicant—the day on which the statement is so given;

(ii)  if the applicant, in accordance with subsection 28(1), requests the person who made the decision to give a statement as mentioned in that subsection—the day on which the statement is given or the applicant is notified in accordance with subsection 28(3A) that the statement will not be given; or

(iii)  in any other case—the day on which a document setting out the terms of the decision is given to the applicant.”

3.      An application for an extension of time is to be considered in accordance with the provisions of subsection 29(7) of the Act which reads as follows:

“29.(7) 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.

4.      The exercise of the Tribunal’s discretion as to whether or not to grant an extension of time is on the basis of whether it is reasonable or proper to grant the application.  A number of decisions provide guidance to the Tribunal in its determination of this issue.  It is clear from those decisions that the statutory time limit of 28 days is to be enforced unless there are acceptable reasons for departing from this prescribed timeframe.

5.      The Federal Court said in relation to this issue in Hunter Valley Developments v Minister for Home Affairs and Environment (1984) 3 FCR 344

“Although the section does not .. place any onus upon the applicant for extension an application has to be made.  Special circumstances need not be shown but the court will not grant the application unless positively satisfied that it is proper to do so.  The “prescribed period” of 28 days is not to be ignored.  Indeed it is the prima facie rule that proceedings outside that period will not be entertained.  It is a precondition to the exercise in his favour that the applicant for an extension show an “acceptable explanation of the delay” and that is is “fair and equitable in the circumstances” to extend time.”

6.      In Re Johnson and Commonwealth (5 January 1990, No. 5619) the Tribunal listed five criteria for consideration as to whether it is proper to extend the prescribed period of time being as follows:

·Whether or not the applicant rested on his rights or took action to make the decision maker aware that the decision was contested;

·Any prejudice to the respondent that would be caused by granting the extension of time;

·Any wider prejudice to the general public in terms of disruption to established practices;

·The merits of the substantive application; and

·Fairness in granting the extension of time as between the applicant and other persons in a like position.

Each of these criteria are considered hereunder.

WHETHER THE APPLICANT RESTED ON HER RIGHTS

7.      The Secretary contends that the applicant has substantially rested on her rights having been advised of her right to appeal by the SSAT and provided with an information sheet.  The Secretary maintains that the applicant was well aware of her right to appeal and simply chose not to exercise it.

8.      It was pointed out that the original decision was made by a Centrelink Officer on 19 May 2005 which is now some seventeen months old.  The applicant had previously exercised her right to appeal and had sought a review of the Centrelink decisions by the SSAT.

9.      It was contended by Mr Rice on behalf of the applicant that at all times she believed that the substantive issue of her living in a marriage-like relationship would be heard at any hearing before the Administrative Appeals Tribunal (AAT).  The applicant and her flat-mate, Mr John Bambrick were of the view, Mr Rice submitted, that the respondent’s decision to appeal the ‘special circumstances’ SSAT decision meant that the substantive issue of the marriage-like relationship would also be discussed.  Ms Clark said in evidence to the Tribunal that when she first received notification of the appeal to the AAT, she understood that it was her appeal.

10.     Ms Clark informed the Tribunal that the appeal to the SSAT was heard in South Australia where she formerly resided.  She was not legally respresented at the time when she moved to Tasmania.  Ms Clark first approached Legal Aid who were not willing to assist her.  She then spoke to John Crooks at the Launceston Community Legal Centre who had also been consulted by Mr Bambrick.  Ms Clark stated that her papers had been transferred from South Australia to Launceston and were then forwarded to the Hobart Community Legal Service when she was referred to Gina Munday.  Ms Clark was then transferred to Rosanna Fois in relation to the overpayment claim.  Ms Fois informed Ms Clark that she could not assist her with her appeal against the marriage-like relationship decision and that her hands were tied.  Ms Fois’ advice is confirmed in a letter addressed to Ms Clark dated 15 August 2006 a copy of which was provided to the Tribunal.  In this letter Ms Fois states ‘We have reviewed your file and find that there is not adequate evidence to overturn the Social Security Appeals Tribunal decision in relation to the marriage-like relationship issue.  It is also too late to lodge an appeal to the Administrative Appeals Tribunal and due to our centre’s lack of resources and the case having little chance of success we will not be seeking an extension of time in relation to this matter.’

11.     Ms Clark said that she then approached the Launceston Legal Aid Office but was informed that they could not assist her unless a prosecution ensued.  Ms Clark eventually sought assistance from the Hobart Community Legal Service upon receiving notification of the Secretary’s appeal to the AAT.

12.     It was submitted that Ms Clark and Mr Bambrick have always insisted that they have not lived in a marriage-like relationship since the mid-1990’s when they were partnered for about a year/eighteen months.  Ms Clark originally consulted Mr Crooks and understood that he was intending to lodge an appeal on her behalf against the marriage-like relationship decision.

13.     It was submitted by the Secretary that Ms Clark was not unrepresented for the entire time in question and would have been aware that the Secretary’s appeal was unrelated to the marriage-like relationship issue.  Two preliminary conferences were held by the Tribunal to discuss the Secretary’s appeal.  The Secretary contended that it is very unlikely that Ms Clark was led to believe that the appeal was intended to address the issue of the marriage-like relationship.

14.     The Tribunal accepts that this may be so.  However the issue is whether the Tribunal accepts that Ms Clark rested on her rights and did not actively pursue a review or contest the respondent’s finding of a marriage-like relationship.

15.     There is no evidence to suggest that Ms Clark has ever accepted the finding that she and Mr Bambrick lived in a marriage-like relationship.  There have been various applications initiated by her to review decisions made by the respondent consequent upon the finding that she lived in a marriage-like relationship.  The Tribunal is satisfied that Ms Clark pursued her objection to this finding and sought legal advice and representation on several occasions.  It is also a reasonable assumption that due to a lack of finances both of Ms Clark and the legal aid services that she contacted, her desire to have the findings reviewed was impeded.  The Tribunal accepts Ms Clark’s evidence that she consulted Mr Crooks with respect to an appeal of the SSAT’s decision which affirmed the finding of a marriage-like relationship after approaching Legal Aid who were not able to assist her.  Unfortunately because Mr Crooks went on holiday, the applicant’s matter was not pursued and no application for review of the decision was lodged.

16.     For these reasons the Tribunal does not accept that the applicant simply rested on her rights and took no action with respect to the decision which she now seeks to review.

MERITS OF THE SUBSTANTIVE APPLICATION

17.     It was contended by the Secretary that the application discloses no grounds whatsoever to justify the Tribunal exercising its power to grant an extension of time and the claim has no merit.  It is submitted that granting the applicant’s request would only serve to create a false expectation of success. 

18.     On the other hand it is submitted that Ms Clark and Mr Bambrick have consistently maintained that they are not living in a marriage-like relationship.  Whilst Ms Clark concedes that she did have a relationship with Mr Bambrick in the mid-1990’s, she said that it ended after approximately twelve/eighteen months.  Since that time Ms Clark and Mr Bambrick have remained friends but neither considers the relationship ‘marriage-like’.  Whilst they jointly own a property at Beaconsfield where they currently reside, it is acknowledged that the property belongs to Ms Clark as she contributed the funds for the purchase.  Ms Clark submits that if it is ever sold they have a verbal agreement whereby Mr Bambrick will receive his fair share based on his contribution.  The parties do not otherwise have any joint assets or liabilities.

19.     It is further contended that there is no commitment to the relationship and that both parties are able to leave at any time.  When Ms Clark found work on Kangaroo Island, she put the Beaconsfield property up for sale.  Ms Clark and Mr Bambrick had an agreement that Mr Bambrick would remain in the property overseeing its sale and that when it was sold their respective shares would be divided and they would go their separate ways.  It is submitted that there is a scarcity of evidence that demonstrates that the parties are living in a marriage-like relationship and that the relationship is better described as long-term friends.

20.     The Secretary maintains that there is a large amount of documented evidence to support the existence of a marriage-like relationship and that at no time did Ms Clark advise Centrelink that she was residing with Mr Bambrick.  There is also evidence that the couple socialise, holiday, go shopping together and share living expenses including electricity, water, house insurance and council rates.

21.     The above are contentions on behalf of both parties to this appeal and can only be determined following a hearing of the evidence. The Tribunal is not persuaded that there is no merit to the applicant’s claim that she does not live in a marriage-like relationship.  The Tribunal accepts that the issues raised by the applicant are relevant to the Tribunal’s determination after a consideration of the whole of the evidence.

PREJUDICE TO THE RESPONDENT

22.     It was not submitted on behalf of the respondent that any particular prejudice would be occasioned by the grant of the application to extend time.  It is not contended that any relevant witnesses or evidence are no longer available.

23.     It is submitted on behalf of the applicant that the National Archives of Australia digital recording guidelines require that Centrelink maintain records for about seven years.  Further that as John Bambrick has lodged an appeal against a decision of the SSAT which is partly concerned with the issue as to whether he was living in a marriage-like relationship with the applicant, similar evidence will be involved.

24.     As the respondent has not alleged any particular prejudice, the Tribunal would not refuse the application on this ground.

WIDER PREJUDICE TO THE GENERAL PUBLIC

25.     The Tribunal accepts that statutory timeframes should generally be observed unless there is good reason to depart from the requirement.  In the current circumstances the Tribunal is not persuaded that the granting of the subject application is necessarily inconsistent with established practices.  The Tribunal was referred to various decisions where extensions of time have been granted for a variety of reasons and where the application was filed several years after the prescribed date.

FAIRNESS

26.     For the reasons outlined above the Tribunal is satisfied that the applicant has demonstrated an acceptable explanation for the delay in the lodgement of her application.  Further, the Tribunal is satisfied that the difficulties she encountered in securing satisfactory legal representation were largely responsible for her confusion as to which of the Secretary’s decisions were under review.  The Tribunal accepts that the applicant has at all times disputed that she lives in a marriage-like relationship with Mr Bambrick and has wanted the issue determined by the AAT.

27.     The Tribunal was informed that Mr Bambrick has lodged an appeal with the AAT which concerns the very same issue.  In the circumstances the Tribunal determines that it is only fair and reasonable that both the applicant and Mr Bambrick have the opportunity to have the finding of their marriage-like relationship reviewed by the AAT.

28.     The decision of the Tribunal is accordingly to grant the application for an extension of time in which the applicant can lodge her application for review by extending the time to 27 June 2007.

I certify that the 28 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member Ann Cunningham (Part-Time Member)

Signed:   H Healy (Administrative Assistant)

Date/s of Hearing  20 July 2007
Date of Decision  2 August 2007
Counsel for the Applicant          Mr C Rice
Solicitor for the Applicant           Hobart Community Legal Service
Counsel for the Respondent     Ms A Devine
Solicitor for the Respondent      Centrelink Legal Services