Clarke and Secretary, Department of Social Services
[2014] AATA 540
•7 August 2014
[2014] AATA 540
Division General Administrative Division File Number
2014/3482
Re
Phillip Clarke
APPLICANT
And
Secretary, Department of Social Services
RESPONDENT
ORDER
Tribunal Deputy President S D Hotop
Date 7 August 2014 Place Perth The applicant’s application for an extension of time, pursuant to s 29(7) of the Administrative Appeals Tribunal Act 1975 (Cth), until 7 July 2014 for his making an application for review of the decision of the Social Security Appeals Tribunal, dated 2 September 2013, is refused.
.......................[sgd].........................................
S D Hotop
Deputy President
CATCHWORDS
PRACTICE AND PROCEDURE – extension of time – application for review lodged outside prescribed period – unsatisfactory explanation for delay – applicant rested on rights – apparent lack of merit of application for review – Tribunal not satisfied that reasonable in all the circumstances to grant extension of time – application for extension of time refused
LEGISLATION
Acts Interpretation Act 1901 (Cth), s 28A(1) and s 29(1)
Administrative Appeals Tribunal Act 1975 (Cth), s 29
Social Security (Administration) Act 1999 (Cth), s 149(1) and s 177(1A)
CASES
Comcare v A'Hearn (1993) 45 FCR 441
Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344
Re Johnson and Commonwealth of Australia [1990] AATA 1REASONS FOR DECISION
Deputy President S D Hotop
7 August 2014
Introduction
On 7 July 2014 Phillip Clarke (“the applicant”) lodged with this Tribunal an Application for Review of a decision of the Social Security Appeals Tribunal (“SSAT”) dated 2 September 2013. On the same date the applicant applied to the Tribunal for an extension of time until 7 July 2014 for lodging the abovementioned Application for Review.
On 14 July 2014 the Tribunal was formally notified that the Secretary, Department of Social Services (“the respondent”) opposed the applicant’s application for an extension of time.
For the reasons which follow, the Tribunal has determined that the applicant’s application for an extension of time should be refused.
The Relevant Factual Background
The relevant background facts are set out in the respondent’s written submissions opposing the applicant’s application for an extension of time and are not in dispute. Those facts are found by the Tribunal and are as follows:
“ Facts
4. On 4 March 2009, the Applicant was in receipt of newstart allowance.
5.On 17 June 2009, Centrelink issued a notice to Work Claims Australia requiring payment of a compensation charge of $1,898.74 for the preclusion period 4 March 2009 to 7 May 2009 after receiving notification that the Applicant was to receive $7,057.14 in compensation arrears (first compensation charge). A notice was also issued to the Applicant advising the above.
6.On 19 January 2010, the Applicant signed a Deed of Release to settle a worker’s compensation claim against Volich Waste Contractors Pty Ltd for $21,900.00 in respect of an injury suffered on 3 March 2009.
7.On 23 February 2010, Centrelink issued a notice to QBE Insurance requiring payment of a compensation charge of $3,202.66 for the preclusion period 8 May 2009 to 13 August 2009 after receiving notification that the Applicant was to receive $21,900.00 in compensation (second compensation charge). A notice was also issued to the Applicant advising the above.
8.On 30 October 2010, the second compensation charge was paid to Centrelink by QBE Insurance.
9.On 30 June 2011, the Applicant was in receipt of sickness allowance.
10.On 27 February 2012, the Applicant signed a Deed of Release to settle a worker’s compensation claim against Catis Pty Ltd (trading as Mighty Moves) for $70,000.00 in respect of injuries suffered during employment.
11.On 28 February 2012, the Applicant was in receipt of newstart allowance.
12.On 7 March 2012, Centrelink issued a notice to Allianz Australia Insurance Ltd requiring payment of a compensation charge of $8,175.55 for the preclusion period 30 June 2011 to 27 February 2012 and a compensation charge of $140.85 for the preclusion period 28 February 2012 to 2 March 2012 after receiving notification that the Applicant was to receive $70,000.00 in compensation (third and fourth compensation charges). A notice was also issued to the Applicant advising the above.
13.On 16 March 2012, the third and fourth compensation charges were paid to Centrelink by Allianz Australia Insurance Ltd.
14.On 25 October 2012, the first compensation charge was paid to Centrelink.
15.On 31 May 2013, the Applicant advised Centrelink that he had no fixed home address and requested that post be directed to C/O PO Fremantle WA 6160.
16.On 10 July 2013, the Applicant requested review of the original compensation charge decisions by a Centrelink authorised review officer.
17.On 30 July 2013, a Centrelink authorised review officer affirmed the original compensation charge decisions and issued the Applicant a notice to that effect (ARO decision).
18.On 13 August 2013, the Applicant sought review by the Social Security Appeals Tribunal.
19.On 2 September 2013, the Social Security Appeals Tribunal affirmed the ARO decision. The Applicant failed to attend the Social Security Appeals Tribunal hearing and did not advise the Tribunal of any inability to attend.
20.On 9 September 2013, the Social Security Appeals Tribunal decision was dispatched to the Applicant.
…”
The Relevant Legislation
Administrative Appeals Tribunal Act 1975 (Cth)
Section 29 of the Administrative Appeals Tribunal Act 1975 (Cth) (“AAT Act”) deals with the manner of applying to the Tribunal for a review of a decision. Paragraph (d) of s 29(1) provides that, in a case where “the terms of the decision were recorded in writing and set out in a document that was given to the applicant”, an application to the Tribunal for a review of that decision “shall be lodged with the Tribunal within the prescribed time”.
Section 29(2) of the AAT Act relevantly provides:
“ … 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;”.
The Tribunal’s power to extend the time for the making of an application for review is conferred by subss (7) and (8) of s 29 of the AAT Act as follows:
“(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.
(8)The time for making an application to the Tribunal for a review of a decision may be extended under subsection (7) although that time has expired.”
Social Security (Administration) Act 1999 (Cth)
Section 149(1) of the Social Security (Administration) Act 1999 (Cth) (“Administration Act”) relevantly provides that, if a person applies to the SSAT for review of a decision, the SSAT must:
“ (a) affirm the decision; or
(b) vary the decision; or
(c) set the decision aside and:
(i) substitute a new decision; or
(ii)send the matter back to the Secretary or the Chief Executive Centrelink, as the case requires, for reconsideration in accordance with any directions or recommendations of the SSAT.”
Section 177 of the Administration Act relevantly provides:
“ SSAT affirms decisions
(1A)If the SSAT makes a decision on a review and the decision is of a kind mentioned in paragraph 149(1)(a), the SSAT must:
(a)prepare a written statement (the initial statement) that sets out the decision of the SSAT on the review; and
(b)give each party to the review a copy of the initial statement within 14 days after making the decision; and
(c) within 14 days after making the decision, either:
(i)give reasons for the decision orally to each party to the review and explain that the party may make a written request for a statement under subparagraph (ii) within 14 days after the copy of the initial statement is given to the party; or
(ii)give each party to the review a written statement (whether or not as part of the initial statement) that sets out the reasons for the decision, sets out the findings on any material questions of fact and refers to evidence or other material on which the findings of fact are based; and
…”
Acts Interpretation Act 1901 (Cth)
The Acts Interpretation Act 1901 (Cth) (“AI Act”) relevantly provides:
“ 28A Service of documents
(1)For the purposes of any Act that requires or permits a document to be served on a person, whether the expression ‘serve’, ‘give’ or ‘send’ or any other expression is used, then the document may be served:
(a)on a natural person:
(i) by delivering it to the person personally; or
(ii) by leaving it at, or by sending it by pre-paid post to, the address of the place of residence or business of the person last known to the person serving the document; or
…
29Meaning of service by post
(1)Where an Act authorizes or requires any document to be served by post, whether the expression ‘serve’ or the expression ‘give’ or ‘send’ or any other expression is used, then the service shall be deemed to be effected by properly addressing, prepaying and posting the document as a letter and, unless the contrary is proved, to have been effected at the time at which the letter would be delivered in the ordinary course of post.
…”
Relevant Principles
Section 29(7) of the AAT Act confers on the Tribunal a broad discretionary power to grant an extension of time for the making of an application for a review of a decision if it is “satisfied that it is reasonable in all the circumstances to do so”.
As noted by the Tribunal (Deputy President R K Todd) in Re Johnson and Commonwealth of Australia [1990] AATA 1, it has been customary for the Tribunal, in determining applications for an extension of time for making an application for review, to be guided by the principles enunciated by the Federal Court of Australia (Wilcox J) in Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344 at 348–350. Those general principles were summarised in Re Johnson (at para 19) as follows:
“(i) It is a prima facie rule that proceedings commenced outside the prescribed period will not be entertained. An extension of time will, however, be granted if it is proper to do so.
(ii)Consideration is to be given to the action taken by the applicant. Did he or she ‘rest on his or her rights’ so as to lead the decision maker to believe that the matter was concluded, or did he or she continue to make the decision maker aware that the decision was being contested?
(iii)Consideration should be given to whether any prejudice to the respondent would be caused by the grant of an extension.
(iv)There being no real prejudice to the respondent, consideration must be given to whether there will nevertheless be a wider prejudice to the public in terms of disruption to established practices …
(v)Consideration of the merits of the substantial application should be made to see if these indicate that an extension of time should be granted.
(vi)Finally, consideration should be given to whether it is fair as between the applicant and other persons in a like position to grant the extension of time.”
Although, as held by the Full Federal Court in Comcare v A’Hearn (1993) 45 FCR 441, the giving of an acceptable explanation for delay in lodging an application for review is not an essential pre-condition of the favourable exercise of the discretion to grant an extension of time for the lodging of such an application, the Full Court said (at 444) that “it is to be expected that such an explanation will normally be given, as a relevant matter to be considered”.
Consideration
The applicant did not dispute that the SSAT’s decision of 2 September 2013, having been sent by pre-paid post to his last notified postal address, namely, “C/o Post Office, Fremantle WA 6160”, on 9 September 2013 (a Monday), would have been delivered to that address in the ordinary course of post no later than 13 September 2013, and he said that he would probably have collected that mail from the post office “within a month or a couple of weeks” thereafter.
That being the case, the Tribunal is satisfied that the applicant lodged his Application for Review of the SSAT’s decision approximately eight months and three weeks after the expiration of the period prescribed by s 29(2)(a) of the AAT Act.
In his application for an extension of time for lodging the abovementioned Application for Review, the applicant sought to explain his delay as follows:
“ Due to having been homeless have fallen behind in my affairs.”
At the interlocutory hearing of the applicant’s application for an extension of time, he elaborated on the reasons for his delay in lodging the abovementioned Application for Review as follows:
·he has been disadvantaged in respect of receiving and dealing with mail because of his circumstances of homelessness and his being without a desk and a computer;
·when he collected the SSAT decision from the post office he “put it away with stuff under [his] parents’ house” which he later moved into a storage shed in Guildford;
·there are days when he is suffering from the effects of malnutrition, low salt, low sugar and the like;
·he has not been in a stable position to deal with a lot of his affairs.
The applicant said that, after receiving the SSAT’s decision, he went to a Centrelink office on 7 July 2014 to enquire about it and was directed to the AAT where he immediately went and lodged the Application for Review. He acknowledged, however, that he had not contacted Centrelink about the SSAT’s decision prior to 7 July 2014.
The applicant claimed that the decisions of Centrelink and the SSAT in this matter were wrong because they calculated the relevant compensation charges and preclusion periods in respect of his receipt of newstart allowance in 2009 and 2010 on the basis of an incorrect compensation amount, namely, the gross amount of $21,900 (including his solicitors’ professional costs and disbursements of $6,500) in settlement of his workers’ compensation claim for an injury suffered on 3 march 2009, whereas they should have been calculated on the net amount of compensation received by him, namely, $10,893.64.
Having regard to the abovementioned considerations, the Tribunal is not satisfied that it would be reasonable, in all the circumstances of the applicant’s case, to extend the time for his making that application to the Tribunal for review of the SSAT’s decision of 2 September 2013 until 7 July 2014. In the Tribunal’s opinion, the applicant’s explanation for his delay in making that application for review is vague and unsatisfactory. The Tribunal, furthermore, is satisfied that, from about 13 September 2013 (by which date the SSAT’s decision would have been delivered to his postal address) until 7 July 2014 (when he attended a Centrelink office to enquire about the SSAT’s decision), he took no action that might have made Centrelink or the respondent aware that he was contesting, or proposing to contest, the SSAT’s decision. In those circumstances, in the Tribunal’s opinion, the respondent was, by reason of such inaction on the part of the applicant, given reasonable cause to believe or infer that the applicant had “rested on his rights” and that the matter was concluded. Finally, as regards the merits of the applicant’s application for review of the SSAT’s decision of 2 September 2013, the Tribunal, as presently advised, is not of the opinion that the SSAT incorrectly calculated the relevant preclusion periods and compensation charges under Part 3.14 (Compensation Recovery) of the Social Security Act 1991 (Cth). In particular, the Tribunal, having regard to s 17 and the relevant provisions in Divisions 3 and 4 of Part 3.14 of the Social Security Act 1991 (Cth), is not of the opinion that the applicant’s claim that the SSAT wrongly based its calculations on the gross settlement amount of $21,900, and should instead have based its calculations on the net compensation amount of $10,893.64 received by him from his solicitors, is well founded. The Tribunal notes, furthermore, that the applicant has not sought to rely on s 1184K(1) of the Social Security Act 1991 (Cth) whereby the whole or part of a compensation payment may be treated as not having been made if appropriate in “the special circumstances of the case”.
Conclusion
Having regard to the circumstances of the applicant’s case and the abovementioned considerations, the Tribunal is of the opinion that none of those circumstances and considerations militates in favour of the grant of the applicant’s application for an extension of time.
Having regard, in particular, to:
·the unsatisfactory explanation given by the applicant for his delay of approximately nine months in lodging his application for review of the SSAT’s decision of 2 September 2013;
·the applicant’s apparent “resting on his rights” in respect of that decision until 7 July 2014; and
·the apparent lack of merit of the applicant’s application for review of that decision;
the Tribunal is not satisfied that it would be “reasonable in all the circumstances”, within the meaning of s 29(7) of the AAT Act, to extend the time for the making by the applicant of an application for review of the SSAT’s decision of 2 September 2013 until 7 July 2014.
Order
For the above reasons, the applicant’s application for an extension of time, pursuant to s 29(7) of the AAT Act, until 7 July 2014 for his making an application for review of the decision of the SSAT, dated 2 September 2013, is refused.
I certify that the preceding 22 (twenty -two) paragraphs are a true copy of the reasons for the order herein of Deputy President S D Hotop. ...........[sgd D Brodie].................................................
Administrative Assistant
Dated 7 August 2014
Date of interlocutory hearing 31 July 2014 Applicant In person (unrepresented) Representative of the Respondent Mr J Henderson
Senior Government Lawyer
Program Litigation and Review Branch
Department of Human Services
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