Cloros v Department of Social Services
[2015] FCA 461
•15 May 2015
FEDERAL COURT OF AUSTRALIA
Cloros v Department of Social Services [2015] FCA 461
Citation: Cloros v Department of Social Services [2015] FCA 461 Appeal from: Application for extension of time: Cloros v Secretary, Department of Social Services [2014] AATA 716 Parties: JONATHON DEAN CLOROS v DEPARTMENT OF SOCIAL SERVICES File number: SAD 290 of 2014 Judge: BESANKO J Date of judgment: 15 May 2015 Catchwords: ADMINISTRATIVE LAW – application for an extension of time within which to appeal a decision of the Administrative Appeals Tribunal – whether the notice of appeal was filed within 28 days of the day upon which the applicant was given the decision of the Tribunal – whether the decision of the Tribunal was sent by post – where the applicant appealed the decision of the Tribunal on the ground that the applicant was denied procedural fairness by the Tribunal not considering the applicant’s evidence – where the Tribunal did consider the applicant’s evidence and rejected it – where the reasons of the Tribunal do not raise any question of law or disclose any error of law – Administrative Appeals Tribunal Act 1976 (Cth) ss 44(2A), 68AA.
Held: The draft notice of appeal stand as a notice of appeal. The applicant have leave to amend his notice of appeal in terms of the draft amended notice of appeal. The appeal be dismissed.
Legislation: Administrative Appeals Tribunal Act 1976 (Cth) ss 43, 44, 68AA
Federal Court Rules 2011 (Cth) r 33.13
Social Security Act 1991 (Cth) s 1237A
Social Security (Administration) Act 1999 (Cth) s 179Cases cited: Cloros v Centrelink [2013] SASC 74
Re Cloros & Secretary, Department of Social Services [2014] AATA 300Dates of hearing: 13 February 2015, 13 May 2015 Place: Adelaide Division: GENERAL DIVISION Category: Catchwords Number of paragraphs: 21 Counsel for the Applicant: The Applicant appeared in person Counsel for the Respondent: Mr A Schatz Solicitor for the Respondent: Australian Government Solicitor
IN THE FEDERAL COURT OF AUSTRALIA
SOUTH AUSTRALIA DISTRICT REGISTRY
GENERAL DIVISION
SAD 290 of 2014
ON APPEAL FROM THE ADMINISTRATIVE APPEALS TRIBUNAL
BETWEEN: JONATHON DEAN CLOROS
ApplicantAND: DEPARTMENT OF SOCIAL SERVICES
Respondent
JUDGE:
BESANKO J
DATE OF ORDER:
15 MAY 2015
WHERE MADE:
ADELAIDE
THE COURT ORDERS THAT:
1.The draft notice of appeal filed on 31 October 2014 stand as a notice of appeal.
2.The applicant have leave to amend his notice of appeal in terms of the draft amended notice of appeal dated 14 January 2015.
3.The appeal be dismissed.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
IN THE FEDERAL COURT OF AUSTRALIA
SOUTH AUSTRALIA DISTRICT REGISTRY
GENERAL DIVISION
SAD 290 of 2014
ON APPEAL FROM THE ADMINISTRATIVE APPEALS TRIBUNAL
BETWEEN: JONATHON DEAN CLOROS
ApplicantAND: DEPARTMENT OF SOCIAL SERVICES
Respondent
JUDGE:
BESANKO J
DATE:
15 MAY 2015
PLACE:
ADELAIDE
REASONS FOR JUDGMENT
Introduction
On 31 October 2014, Mr Jonathon Dean Cloros made an application for an extension of time within which to institute an appeal under s 44(1) of the Administrative Appeals Tribunal Act 1976 (Cth) (“the Act”) from a decision of the Administrative Appeals Tribunal (“the Tribunal”) made on 2 October 2014. The time limit prescribed by the Act in the case of such appeals is 28 days after the day upon which the person is given the Tribunal’s decision or such further time as this Court allows (s 44(2A)). Section 68AA of the Act identifies when a document sent to a person by post or by electronic means is taken to have been given. Where a document is sent to a person by post, then, unless the contrary is proved, it is taken to have been given when it would have been delivered in the ordinary course of post (s 68AA(1)(b)).
In his application for an extension of time, the applicant set out his explanation as to why a notice of appeal was not filed within time. He referred to the fact that he had bills to pay and that he needed time to read the appeal documents. As required by r 33.13(2)(d) of the Federal Court Rules 2011, the applicant attached a draft notice of appeal to his application for an extension of time. The applicant appeared in person and prepared the draft notice of appeal. The draft notice of appeal is difficult to follow. There is a reference to errors in the catchwords, an allegation that the Tribunal did not review the decision properly, and an allegation that the applicant had accurately declared his earnings. The applicant also attached to his application for an extension of time, a copy of a letter from the Tribunal dated 2 October 2014, and the decision of the Tribunal dated the same date. In its letter, the Tribunal informs the applicant that it has made a decision on his application under s 43 of the Administrative Appeals Tribunal Act 1975 (Cth), and that it has sent him a copy of its decision, “with this letter”.
The applicant also filed two affidavits which he swore on 31 October 2014. He attached to his first affidavit a Centrelink profit and loss statement, a document apparently put to the Tribunal which the Tribunal marked as exhibit A7 and which addresses the period from 9 July 2005 to 28 September 2007, various documents which record the outcome of a proceeding in the Supreme Court of South Australia between the applicant and Centrelink, and a decision of a judge of the Supreme Court of South Australia in Cloros v Centrelink [2013] SASC 74. The applicant claims that the monies were declared to Centrelink and that the judge of the Supreme Court erred. The second affidavit of the applicant sworn on 31 October 2014 confirms the applicant’s statements that he sought an extension of time upon the basis that he had failed to institute his appeal within time because he had bills to pay, and he had to go through the appeal papers. In addition, he makes a reference to “course” commitments.
The applicant has put forward other material in support of his application for an extension of time. First, there is an eight page handwritten document with an annexure that appears to be a police report relating to an assault the applicant allegedly suffered in early September 2011. Secondly, the applicant has put forward a proposed amended notice of appeal. In that document the applicant identifies, as the questions of law raised by his appeal, the fact that he was denied procedural fairness by the Tribunal because it did not pay attention to the case, and an allegation that the Tribunal had ignored facts “of law that was proven by me by email that should have taken into account”.
The Tribunal’s Decision
The Tribunal had before it an application by the applicant for the review of a decision of the Social Security Appeals Tribunal (“SSAT”) dated 18 March 2013.
The background to the application for review was that the respondent sought to recover more than $10,000 from the applicant on account of what it alleged to be repeated failures by him to declare employment earnings between 9 July 2005 and 26 September 2007. During that period, the applicant was receiving the Newstart allowance under the Social Security Act 1991 (Cth). The Tribunal accepted that had the applicant declared the earnings, and had the respondent noted the earnings, then the applicant’s Newstart allowance would have been reduced in this period. The applicant alleged that he did declare the earnings to the respondent in person across the counter at Centrelink’s Torrensville office, and that the respondent failed through its own administrative error to take proper note of the amounts he had duly declared. This aspect of the applicant’s appeal to the SSAT was unsuccessful. The SSAT accepted that he had either not declared income or he had underestimated it on a number of occasions, and it specifically rejected his submission that the debt owed by him on account of the overpayments should be waived.
The SSAT found that the respondent was unable to substantiate the level of debt to its satisfaction, and accordingly, it set aside the decision to raise a debt of more than $10,000 against the applicant. The SSAT remitted the matter to the respondent for recalculation in accordance with a number of directions and one recommendation.
The applicant’s application for review by the Tribunal challenged the directions and recommendation of the SSAT which s 179(2)(d) of the Social Security (Administration) Act 1999 (Cth) deemed to be the reviewable decision. The applicant argued that the SSAT erred in making a direction to have the debt recalculated.
In an earlier decision, the Tribunal ruled that it had jurisdiction to consider setting aside the SSAT’s directions and single recommendation. It also ruled that it had no jurisdiction in the hearing to hear any challenge to the new debt as recalculated by the respondent (Re Cloros & Secretary, Department of Social Services [2014] AATA 300).
In the decision now challenged by the applicant, the Tribunal said that if it was to set aside the directions and recommendation of the SSAT it needed to be satisfied that the debt (whatever its exact level) should be waived because it arose solely from an administrative error made by the respondent (s 1237A of the Social Security Act 1991 (Cth)). The Tribunal noted that if the error had been caused by the applicant’s failure to declare his earnings, which was the respondent’s contention, then no administrative error had taken place. The Tribunal said that it approached the case in light of what it described as the very fair concession made by the respondent that if the applicant could persuade the Tribunal that he had declared his earnings honestly to Centrelink in some way, then the respondent would accept there had been an administrative error, and that a waiver of any consequential debt would be appropriate.
The Tribunal noted that the critical question of fact was whether the applicant had declared all his earnings as he claimed.
The Tribunal summarised the applicant’s evidence. It said that it was not persuaded that the applicant declared verbally, or otherwise, any earnings that did not appear in Centrelink’s records. The Tribunal referred to the applicant’s convictions, being his convictions in the Adelaide Magistrates Court of 16 counts of making false written statements to the respondent in connection with his Newstart allowance during the period it was required to consider. The Tribunal said that the applicant’s convictions led it to discount the applicant’s oral evidence substantially. It explained why it reached that conclusion. Furthermore, the Tribunal said that it took into account the applicant’s lack of candour in the course of the proceedings before the Tribunal. It referred to the circumstances upon which it relied in reaching that conclusion. The Tribunal expressed its conclusions in the following terms:
In summary, Mr Cloros has not satisfied me that he verbally declared any earnings that do not appear in Centrelink’s records. He has not satisfied me that this is a case of administrative error where an application for a waiver of the debt might properly be considered. Accordingly, I do not propose to set aside the SSAT’s directions and recommendation to the respondent to recalculate the level of debt. I have already indicated that any challenge to the level of the recalculated debt is not a matter for me to consider as part of these proceedings.
The Tribunal decided to affirm the decision of the SSAT which comprised its directions and single recommendation.
The Application for an Extension of Time
As I have said, the applicant made an application for an extension of time. I set that application down for hearing on the basis that if the extension of time was granted, I would hear the appeal instanter.
The letter from the Tribunal to the applicant is dated 2 October 2014. At the start of the proceeding, the applicant did not adduce any evidence as to the means by which he received this letter, and from the outset the matter proceeded on the basis that the applicant needed an extension of time. However, on reviewing the applicant’s oral submissions, I noted that at one point he asserted that he had received the Tribunal’s letter dated 2 October 2014 by post. If that was so, then the applicant did not need an extension of time at the time he filed this application for an extension of time (i.e., 31 October 2014) because 31 October 2014 was the twenty-eighth day after 3 October 2014. The respondent prepared its case on the basis that the applicant was applying for an extension of time. It referred the Court to the well known authorities dealing with the circumstances relevant to whether or not an extension of time should be granted.
I called the parties back to make further submissions on whether the applicant needed an extension of time. I heard evidence from the applicant that he received the Tribunal’s letter and decision by post on 3 October 2014. He said that he did not receive a copy of the Tribunal’s decision by email on 2 October 2014. There is no evidence to the contrary, and I accept that evidence. The applicant did not need an extension of time. I can and will order that the draft notice of appeal filed on 31 October 2014 stand as a notice of appeal.
The Appeal
The application first came before me on 24 November 2014. Counsel for the respondent advised the Court that it had sent a letter to the applicant detailing the reasons it considered that the applicant’s draft notice of appeal did not raise a question of law as required by the Federal Court Rules 2011 (Cth), and referring him to certain authorities. I gave the applicant ten days to consider whether he wished to apply to amend his notice of appeal.
The application next came before me on 11 December 2014. The applicant told me that he had been in contact with JusticeNet, but that to that point he had not been able to prepare an amended notice of appeal or other documents. I adjourned the directions hearing to 19 January 2015.
On 19 January 2015, the applicant informed me that he had provided further documents. After a debate which is set out in the transcript, I indicated that I would fix a date to hear the application for an extension of time and, if the extension of time was granted, the appeal would be heard instanter.
As I have said, I do not think the applicant needs an extension of time. Although I made it clear to the parties at the hearing earlier this year that I was hearing the applicant’s application for an extension of time and also whatever submissions they wished to make on the appeal if I decided that I should extend time, I gave both parties a further opportunity to make submissions on the appeal at the recent hearing.
It was difficult to follow the applicant’s submissions on the appeal. His claim of a denial of procedural fairness was not based on an alleged failure to hear him, but rather that the Tribunal had failed to consider his case. There is no substance in that complaint. His case before the Tribunal was that he had declared his income. That case was considered by the Tribunal and rejected by it. It was rejected by the Tribunal on the basis that it rejected the applicant’s evidence. The grounds upon which it rejected his evidence do not raise a question of law, and certainly nothing was said which suggests an error of law.
Conclusion
I will order that the draft notice of appeal filed on 31 October 2014 stand as a notice of appeal. I will also order that the applicant have leave to amend his notice of appeal in terms of the draft amended notice of appeal dated 14 January 2015. However, the appeal must be dismissed. I will hear the parties as to costs.
I certify that the preceding twenty-one (21) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Besanko. Associate:
Dated: 15 May 2015
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