Colette Maraczy-Lawley v Department of Employment and Workplace Relations
[2012] AATA 49
•31 January 2012
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2012] AATA 49
ADMINISTRATIVE APPEALS TRIBUNAL )
) No 2011/4018
GENERAL ADMINISTRATIVE DIVISION )
Re COLETTE MARACZY-LAWLEY Applicant
And
And
SECRETARY, DEPARTMENT OF EMPLOYMENT AND WORKPLACE RELATIONS
SECRETARY, DEPARTMENT OF FAMILIES, HOUSING, COMMUNITY SERVICES AND INDIGENOUS AFFAIRS
Respondents
DECISION
Tribunal Mr C. Ermert, Member Date31 January 2012
PlaceMelbourne
Decision The Tribunal does not grant the applicant an extension of time in which to lodge an appeal against the decision made by the Social Security Appeals Tribunal on 24 May 2011.
[sgd] Conrad Ermert
Member
EXTENSION OF TIME – application for review lodged beyond prescribed date – application for extension of time – respondent objection to extension of time – explanation of delay – has applicant rested on rights – prejudice to respondent – prejudice to third party – merits of substantive application – extension of time not granted
Social Security (Administration) Act 1999 (Cth) s 109
Hunter Valley Developments Pty Ltd and Others v Cohen [1984] FCA 176
Budd v Secretary, Department of Education, Employment and Workplace Relations [2008] FCA 1540
REASONS FOR DIRECTION
31 January 2012 Mr C. Ermert, Member INTRODUCTION
1.Authorised review officers (AROs) of Centrelink, the service provider for the respondents, made a number of decisions affecting Ms Maraczy-Lawley. The decisions were:
(a)on 27 May 2010, to recover a family tax benefit debt from Ms Maraczy-Lawley totalling $6,862.27 for the period 1 July 2006 to 30 June 2007;
(b)on 28 May 2010, to cancel Ms Maraczy-Lawley’s carer payment and carer allowance on the grounds that her son Nathanial, the care receiver, was no longer in her care;
(c)on 31 May 2010, that Ms Maraczy-Lawley was required to lodge 12 weekly newstart application for payment forms during the period 26 May 2010 to 7 December 2010; and
(d)on 22 June 2010, that there was no jurisdiction to review the payment of special benefit.
2.On 24 May the Social Security Appeals Tribunal (SSAT) affirmed those decisions.
3.On 30 September 2011 Ms Maraczy-Lawley lodged an application for an extension of time in which to lodge an application for a review of the SSAT decision. On 7 October 2011 the respondents formally advised this Tribunal that they objected to an extension of time.
THE HEARING
4.The hearing was conducted via a telephone link with both parties. Ms Maraczy-Lawley represented herself. Mr Mark Hester of the Legal Division, Department of Human Services represented the respondents.
5.The hearing commenced on 21 October 2011 however after preliminary discussions with Ms Maraczy-Lawley I was not satisfied that she understood the purposes and limitations of the directions hearing. She was therefore not in a position to present her case. With the consent of Mr Hester I adjourned the hearing to allow time for Ms Maraczy-Lawley to obtain legal advice. Mr Freedman, a senior lawyer from Victoria Legal Aid, attempted to contact Ms Maraczy-Lawley for instructions, without success. As a result he was unable to represent her at the hearing which resumed on 2 December 2011. As Ms Maraczy-Lawley had another six weeks in which to seek advice I did not consider that another adjournment was warranted.
6.I had before me the respondents’ Statement of Facts and Contentions dated 17 October 2011 containing Attachments A to P and the Secretary’s list of authorities. From Ms Maraczy-Lawley I had her letter dated 19 October 2011 addressed to this Tribunal together with photocopies of Mr Hester’s covering letter of 17 October 2011, a Tribunal listing notice, an Australia Post bill notice, an Express Post envelope and a page with a photograph of three people, all with numerous handwritten annotations.
THE ISSUE
7.The issue to be determined is whether to grant Ms Maraczy-Lawley an extension of time to lodge an appeal against the decision of the SSAT made on 24 May 2011.
THE EVIDENCE
8.Ms Maraczy-Lawley spoke at length in support of her application. Most of her evidence related to the primary decisions made by the Centrelink ARO and the SSAT. In evidence relevant to this extension of time application, Ms Maraczy-Lawley stated that on 30 May 2011 she had sent by Express Post a six page document to the SSAT. Ms Maraczy-Lawley said that she did not want the matter to go further than the SSAT and that she wanted it settled at the SSAT level. On Sunday 5 June 2011 she had made a telephone call from a public telephone to the answering service of the SSAT, leaving a message asking for consideration of her letter of response. Ms Maraczy-Lawley said that she received a telephone acknowledgement of that call on 27 June 2011.
9.Ms Maraczy-Lawley stated also that she had not had time to lodge an application for a review of the SSAT decision. She had suffered heart palpitations in March and had become very sick. In addition, she was burdened by the workload of her guardianship responsibilities.
SUBMISSIONS
10.In her submissions Ms Maraczy-Lawley reiterated the relevant statements of her evidence.
11.Mr Hester relied on the material in the respondents’ Statement of Facts and Contentions. In that statement Mr Hester referred to the judgements in the Federal Court in Hunter Valley Developments Pty Ltd and Others v Cohen [1984] FCA 176 and Budd v Secretary, Department of Education, Employment and Workplace Relations [2008] FCA 1540, which set out principles to guide the discretion to extend time. Mr Hester’s submissions on the principles are:
(a)Explanation of the delay
The Secretary is unable to ascertain Ms Maraczy-Lawley’s reasons for delay in lodging the appeal.
(b)Has the applicant rested upon her rights?
The Secretary notes that Ms Maraczy-Lawley did not seek a review of the carer payment and carer allowance decisions until nine months after those decisions. She did not seek a review of the SSAT decision until four months after that decision.
(c)Prejudice to the respondent
There is no prejudice to the respondents in this case.
(d)Prejudice to a third party
The Secretary notes that a third party was joined to the SSAT proceedings related to the carer payment and carer allowance decision and may be prejudiced by a decision to grant the extension of time.
(e)Wider prejudice to the general public
The Secretary contends the general proposition that it is in the public interest that there be an end to the appeal process. Time limits are imposed to ensure there is a predictable and orderly conclusion to the process.
12.On the question of the merits of the substantive application, Mr Hester briefly addressed each of the ARO decisions.
13.Regarding the family tax benefit debt, Mr Hester said that the debt had been brought about by Ms Maraczy-Lawley’s failure to lodge a tax return for the 2006-07 financial year. Accordingly, the entire amount paid during the period was being recovered as a debt. He said that once Ms Maraczy-Lawley submitted a tax return, or advised Centrelink that she is not required to lodge a tax return, a reconciliation will occur based on her actual adjusted taxable income. Mr Hester contended that the remedy for this issue lies outside the Tribunal and is within the control of Ms Maraczy-Lawley.
14.Regarding the carer payment decision, Mr Hester stated that Ms Maraczy-Lawley had not sought a review until 5 May 2010. He contended that the effects of section 109(2) of the Social Security (Administration) Act 1999 meant that even if a favourable decision were to be made it could only take effect from 5 May 2010. Mr Hester submitted that there is no evidence that Nathanial was wholly or substantially in Ms Maraczy-Lawley’s care from that date. Hence, there could be no beneficial outcome for Ms Maraczy-Lawley on this issue.
15.Regarding the newstart allowance decision, Mr Hester submitted that the period at issue is a closed period. Ms Maraczy-Lawley is no longer in receipt of newstart allowance and is no longer required to lodge 12 weekly applications for payment. Therefore, a favourable extension of time decision can have no operative effect.
16.Regarding the issue of jurisdiction to review the decision of eligibility for special benefit, Mr Hester submitted that if jurisdiction was to be established, the matter would need to be remitted to the SSAT. Mr Hester contended that as Ms Maraczy-Lawley had been in receipt of either a social security benefit or a social security pension throughout the period in question, a favourable decision could have no operative beneficial effect.
17.In summary, Mr Hester submitted that Ms Maraczy-Lawley’s application has no prospect of a beneficial outcome; that it would be futile to grant an extension of time; and unjust to the respondents to defend a pointless appeal.
CONSIDERATION
18.In considering this application I followed the reasoning and the principles enunciated in Budd, which set out in modified form the principles from Hunter Valley.
Explanation for the Delay
19.Budd states that it is not a pre-condition for success in an application that an acceptable explanation for delay be given. However, it is expected that such an explanation will normally be given as a relevant matter to be considered. In this case Ms Maraczy-Lawley has said that she was suffering from health problems and was overburdened with guardianship responsibilities at the time. The process of lodging an application for a review of a decision does not appear to me to be particularly onerous. From Ms Maraczy-Lawley’s evidence of her health and workload and in the absence of any other information, I am not satisfied that it was unreasonable for Ms Maraczy-Lawley to lodge an application within the prescribed time.
Has the applicant rested on her rights?
20.Budd states that actions taken by the applicant are relevant in assessing the adequacy of the explanation for the delay. It is relevant to consider whether the applicant has rested on her rights and whether the respondent was entitled to regard the claim as being finalised. In this case, Ms Maraczy-Lawley stated that on 30 May 2011 she had posted a six page letter to the SSAT and that this was followed up by a telephone call on 5 June. Mr Hester submitted that there were no records of such a letter or telephone call. I am unable to draw any conclusions from these disparate statements.
Prejudice to the respondent
21.Budd states that any prejudice to the respondent is a material factor militating against the grant of an extension. However, the mere absence of prejudice is not enough to justify the grant of an extension. In this case, I accept Mr Hester’s statement that there would be no prejudice to the respondents should the extension of time be granted. Mr Hester also submitted the possibility of prejudice to the Other Party in the earlier proceedings. In the absence of any evidence to the contrary, I accept that possibility as a consideration.
Merits of the substantial application
22.Budd states that the merits of the substantial application are properly to be taken into account. The respondents’ Statement of facts and contentions, summarized by Mr Hester in his submissions, provide the factual details and the effects of the legislation relevant to the four ARO decisions. Ms Maraczy-Lawley gave no evidence in relation to these issues. I accept Mr Hester’s submissions that:
(a)The family tax benefit decision will resolve itself upon lodgement of a tax return for the 2006-07 financial year,
(b)A favourable decision in relation to the special benefit decision and newstart allowance decision can be of no practical benefit, and
(c)There is no merit in the review of the carer payment and carer allowance decisions given that their operative effect is from 5 May 2010 and Ms Maraczy-Lawley was not qualified to receive these payments from this date.
Fairness between the applicant and like persons
23.Budd states that considerations of fairness as between the applicant and other persons otherwise in a like position are relevant to the manner of exercising the court’s discretion. In this case I am satisfied that a decision to not grant an extension of time would not be unfair to Ms Maraczy-Lawley when considered in relation to other persons in a like position.
24.I finished my consideration with the first principle enunciated in Budd that there is no onus of proof upon the applicant and special circumstances need not be shown but the court will not grant the application unless it is positively satisfied it is proper to do so. In this case, I am not satisfied that Ms Maraczy-Lawley had sufficient reason for her delay in lodging her application. Although there would be no prejudice to the respondents, I am satisfied that there is a possibility of prejudice to a third party. I am also satisfied that there are no merits to the substantial application and I am satisfied that a decision to not grant an extension of time would not be unfair to Ms Maraczy-Lawley when compared to others. As a result of these considerations, I am positively satisfied that it would not be proper to grant an extension of time to Ms Maraczy-Lawley to accept her application for a review of the SSAT decision.
DECISION
25.The Tribunal does not grant the applicant an extension of time in which to lodge an appeal against the decision made by the SSAT on 24 May 2011.
I certify that the twenty-five [25] preceding paragraphs
are a true copy of the reasons for the decision herein of:
Mr C. Ermert, MemberSigned:.............Dianne Eva.............
ClerkDate of Hearing 2 December 2011
Date of Decision 31 January 2012
Advocate for the Applicant Self-representedAdvocate for the Respondents Mr M. Hester, Department of Human Services, Legal Division
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