Confidential and Child Support Registrar Confidential OTHER PARTY
[2014] AATA 220
[2014] AATA 220
Division GENERAL ADMINISTRATIVE DIVISION File Number(s)
2013/3764
Re
Confidential
APPLICANT
And
Child Support Registrar
RESPONDENT
And
Confidential
OTHER PARTY
DECISION
Tribunal Deputy President S D Hotop
Date 15 April 2014 Place Perth The Tribunal decides as follows:
· the application for review of the decision of the Social Security Appeals Tribunal (“SSAT”) dated 5 June 2013, lodged with the Tribunal by the applicant on 26 July 2013, was not lodged with the Tribunal within the time prescribed by s 29(2)(a) of the Administrative Appeals Tribunal Act 1975 (Cth) (“AAT Act”) for making that application (that time having expired on 15 July 2013) and, accordingly, was not “lodged with the Tribunal within the prescribed time” as required by s 29(1)(d) of the AAT Act;
· pursuant to s 29(7) of the AAT Act, the applicant’s application for an extension of time until 26 July 2013 for the lodgement with the Tribunal of the abovementioned application for review of the SSAT’s decision of 5 June 2013 is refused.
...(Sgd) S D Hotop...............
S D Hotop
Deputy President
(Publication of this decision is approved by the Administrative Appeals Tribunal pursuant to s 110X(4)(h) of the Child Support (Registration and Collection) Act 1988 (Cth).)
CATCHWORDS
PRACTICE AND PROCEDURE – extension of time – application for review lodged out of time – no satisfactory or acceptable explanation for delay – applicant rested on rights – 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(2) and s 29(7)
Child Support (Registration and Collection) Act 1988 (Cth), s 103X
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
15 April 2014
Background
The following relevant background appears from the contents of the Tribunal Registry file in this matter.
On 26 July 2013 the applicant lodged with the Tribunal a completed form of Application for Review of a decision of the Social Security Appeals Tribunal (“SSAT”), dated 5 June 2013. The SSAT, pursuant to s 103S of the Child Support (Registration and Collection) Act 1988 (Cth), had decided to set aside a decision of the respondent and send the matter back to the respondent for reconsideration in accordance with a direction specifying the applicant’s, and the other party’s, respective “percentage of care” for one of their children for a specified “care period” as determined by the SSAT.
In the abovementioned Application for Review form lodged by the applicant on 26 July 2013, which is dated 25 July 2013, the applicant stated (inter alia) that:
·the date on which the relevant decision of the SSAT was made was 5 June 2013;
·the date on which he received notice of that decision was 28 June 2013;
·the reasons for the application for review were “Errors by SSAT - In fact and in law”.
By letters dated 5 August 2013 a Case Services Officer in the Tribunal’s Perth Registry notified:
·the applicant that his application for review had been received;
·the respondent that it had received the application for review from the applicant;
·the other party that it had received the application for review from the applicant.
At a directions hearing on 8 January 2014, which had been listed by reason of the applicant’s non-compliance with a direction made by a Conference Registrar on 25 November 2013, the Tribunal observed that the Application for Review form lodged by the applicant on 26 July 2013 may not have been lodged within the statutorily prescribed period and that that matter should be resolved before proceeding further with the application for review. Accordingly, the Tribunal made a direction in the following terms:
“ The applicant lodge with the Tribunal a completed Application for Extension of Time for Lodging Application for Review of Decision (Form 2), together with an affidavit relating to the lodging of the Application for Review on 26 July 2013, on or before 22 January 2014.”
On 21 January 2014 the applicant lodged with the Tribunal a completed Application for Extension of Time for Lodging Application for Review of Decision form whereby he applied for an extension of time until 26 July 2013 for lodging his application for review of the abovementioned decision of the SSAT, dated 5 June 2013, together with an affidavit sworn by him on 20 January 2014 (set out in paragraph 18 below).
On 13 February 2014 the Tribunal was notified by the respondent and by the other party that each of them opposed the abovementioned application by the applicant for an extension of time.
On 27 February 2014 the respondent filed written submissions in opposition to the abovementioned application by the applicant for an extension of time.
In accordance with directions made by the Tribunal on 6 March 2014:
·the applicant, on 13 March 2014, filed written submissions in support of his abovementioned application for an extension of time;
·the other party, on 18 March 2014, filed written submissions in opposition to the abovementioned application by the applicant for an extension of time.
On 1 April 2014 an interlocutory hearing was conducted by the Tribunal for the purpose of determining the issues relating to the timeliness of the lodgement by the applicant, on 26 July 2013, of his application for review of the SSAT’s decision of 5 June 2013, and, if necessary, his application for an extension of time for lodging that application for review.
The Evidence
Documentary evidence before the Tribunal comprised:
·the applicant’s affidavit of 20 January 2014 (referred to in paragraph 6 above) (Exhibit 1);
·copy of an email sent by the applicant to the Tribunal Registry on 26 July 2013 (Exhibit 2);
·copy of the covering letter, dated 13 June 2013, from the SSAT Registry to the applicant with the SSAT’s Decision and Reasons enclosed (Exhibit 3);
·copy of the SSAT’s Decision, dated 5 June 2013, and Reasons for Decision enclosed with the abovementioned covering letter to the applicant, dated 13 June 2013 (Exhibit 4); and
·copy of the covering letter, dated 13 June 2013, from the SSAT Registry to the other party with the SSAT’s Decision and Reasons enclosed (Exhibit 5).
Oral evidence was given by the applicant and by the other party.
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.”
Child Support (Registration and Collection)Act 1988 (Cth)
Section 103X of the Child Support (Registration and Collection) Act 1988 (Cth) (“CS (R and C) Act”), relevantly provides as follows:
“ Procedure following SSAT decision
(1) If the SSAT makes a decision on a review, the SSAT must:
(a)within 14 days after making the decision, give a written notice to the parties that:
(i)sets out the decision; and
(ii)sets out the effect of section 110B (appeal made to a court on a question of law); and
(iii)if the decision relates to a party’s percentage of care for a child – that a party may, subject to the Administrative Appeals Tribunal Act 1975, apply to the AAT for review of the decision, and request a statement under section 28 of that Act (except where subsection 28(4) of that Act applies); and
…
Note:Within the 14 days referred to in paragraph (1)(a), the SSAT must also give the parties oral or written reasons for the decision (see subsection (3)).
(2)A failure to comply with subparagraph (1)(a)(ii) or (iii) in relation to a decision of the SSAT does not affect the validity of the decision.
Statements of reasons
(3)The SSAT must, within 14 days after making the decision, either:
(a)do both of the following:
(i)give reasons for the decision orally to the parties;
(ii)explain that the parties may request a written notice under paragraph (b) within 14 days after the notice is given under paragraph (1)(a); or
(b)give to each party a written notice (whether or not as part of the notice under paragraph (1)(a)) that:
(i)sets out the reasons for the decision; and
(ii)sets out the findings on any material questions of fact; and
(iii)refers to evidence or other material on which the findings of fact are based.
(4)If the SSAT does not give a written notice to a party under paragraph (3)(b), the party may, within 14 days after the day on which the notice under paragraph (1)(a) is given to the party, request such a notice from the SSAT.
(5)The SSAT must comply with a request under subsection (4) within 14 days after the day on which it receives the request.
…”
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.
…”
The Applicant’s Evidence
The applicant tendered in evidence his affidavit, sworn on 20 January 2014, and he confirmed that its contents are true and correct. The applicant’s affidavit states as follows:
“1 I am the applicant in these proceedings and swear this affidavit in support of my application for an extension of time for lodging application for review of decision, pursuant to the orders made by Deputy President, S Hotop on 8 January 2014.
2Except where otherwise stated I swear this affidavit from facts within my own knowledge. Where matters deposed to are not within my own knowledge the source of information and grounds of belief are identified and I believe those matters to be true.
3In this affidavit, which is filed together with my application on Form 2, I outline my reasons for applying for an extension of time for lodging my application for review of the decision. I am advised by my solicitor and believe, that the Deputy President has requested, by the order he made of [sic] 8 January 2014 that I set out in this affidavit the matters which substantiate my statement made in these proceedings that I received a copy of the Decision to which this appeal relates on 28 June 2013. I have set out below those matters.
4On 27 June 2013, I received a card in my letterbox advising me that I had mail to collect from the Hilton Post Office. This is located at 283 South Street, Hilton, quite close to my home.
5The following morning (28 June 2013), I attended this post office and was presented me [sic] with an A4 envelope from the SSAT. This contained a letter and documents, including its decision with regard the [sic] above mentioned matter.
6Having reviewed this decision, I made the immediate decision to appeal against it.
7In the process of investigating my position and rights in this matter, my attention was drawn to the fact that the letter I had received from the SSAT was dated 13 June 2013. This gave rise to a level of concern on my part as I was, by this time, aware that I had only 28 days to appeal against the decision of the SSAT.
8For this reason, I immediately contacted the SSAT to establish with a degree of certainty the date on which the decision letter was posted to me. The SSAT was unable to provide me with this clarity. I was advised that it was probably posted to me either on the 13 June or within a day or two following this date, however, given that these decisions are not posted by registered mail, it was impossible to be certain about this matter.
9I then visited the Hilton Post Office, the postal centre directly responsible for managing delivery of my mail. Unfortunately, this initiative also failed to solve the puzzle, although I was told by the person I spoke to that, it was possible that the letter could have been at the post office for some time prior to my being informed of this fact. The person also said that they thought the system at the post office generally worked well and was unable to offer anything further to assist my enquiry.
10At this point, I decided to make contact with the AAT to discuss the lodgement of my appeal and the issue of concern to me at the time relating to the date of my appeal.
11I telephoned the AAT general number. I explained the difficulty I had encountered and the person who received my call asked me to hold for a lengthy period of time. It was explained to me that my matter had to be referred to a registrar to consider before the AAT would accept the lodgement of my appeal. The person came back to the phone and advised me that lodgement of my appeal would not present a problem, given the circumstances.” (Exhibit 1)
In response to questioning, the applicant gave oral evidence to the following effect:
·each of the 6 townhouses in his residential building has a “flat, narrow” postbox which is “vertically quite long but not very wide”, so no A4 or large envelopes or packages can fit into those postboxes;
·what happens, in the event that he is sent any large A4 envelopes or mail of this nature, is that his local post office will put a card in his postbox asking him to go to that post office to collect the mail – it is “normal standard practice” for him to collect larger mail from the post office;
·an A4 envelope could probably fit into his postbox it if contained only one sheet of paper or a couple of sheets and there was nothing else in the postbox at the time;
·the address to which the SSAT decision was posted was his correct address;
·he checks his mail every day, every afternoon and if there is a card from the post office in his postbox he will normally go to the post office “within 2, 3, 4, 5, days”, however, on this occasion, he was expecting family mail relating to his eldest son’s birthday so when he received the card on 27 June 2013 he went to the post office the following morning to collect that mail;
·he was not expecting mail from the SSAT at that time, although he was expecting to receive the SSAT’s decision in the period from mid June to early July 2013;
·although, when he reviewed the SSAT decision on 28 June 2013, he (as stated in para 6 of his abovementioned affidavit) “made the immediate decision to appeal against it”, he did not inform the other party that he was going to appeal against that decision – he and the other party have not had “a pattern of communication” for some years;
·when he had the SSAT decision on 28 June 2013 he read the back page and the front page and he thought that the decision was “ridiculous, absolutely disgraceful” and he would be appealing against it;
·he saw that he had 28 days to appeal so he then accessed his computer diary and he “worked forward” 28 days to 25 July 2013, “locked that date in”, and “got on with [his] life extremely upset, anxious, disturbed and extremely disappointed that somebody could have got a simple hearing so horribly wrong”;
·that was his “feeling at the time” and he “did not give it any further thought on that day”;
·he thought that the 28-day period to appeal commenced on 28 June 2013 when he received the SSAT decision;
·the problem of when the 28-day period commenced “only became an issue” for him on 25 July 2013;
·his understanding from the SSAT’s letter was that he had 28 days from the date of receipt to lodge an appeal;
·it was only when he had a “ping” on his computer on 25 July 2013 to submit the appeal to the AAT that he “began this process” and then he “hit the wall that there was a problem here”;
·the date on the SSAT letter, 13 June 2013, “did not register” with him before 25 July 2013 – if it had registered he would have contacted the SSAT to ask what was going on, why it had taken 2 weeks for him to receive their letter;
·25 July 2013 was the first occasion on which he became aware of the date of the SSAT letter;
·the matters referred to in para 7 of his affidavit occurred on 25 July 2013;
·he took no action after he had read the first page and last page of the SSAT decision on 28 June 2013 until 25 July 2013;
·his telephone call to the AAT referred to in para 11 of his affidavit occurred in the morning of 26 July 2013 and he lodged his appeal with the AAT in the afternoon of that day.
The Evidence of the Other Party
The other party said that she first became aware of the applicant’s having lodged an appeal against the SSAT’s decision of 5 June 2013 with the AAT when she received a letter from the AAT, dated 5 August 2013, so informing her (see paragraph 4 above). She said that she was distressed to learn that the applicant had lodged that appeal.
The other party said that, if the applicant’s appeal proceeded, she would thereby suffer distress, upset and worry and would be inconvenienced by having to take time off work to attend AAT proceedings.
The Issues
The Tribunal notes that the applicant’s abovementioned application for an extension of time was made pursuant to a direction by the Tribunal for the purpose of being considered and determined by the Tribunal only in the event that it was found by the Tribunal that the applicant’s application for review had not been lodged within the time prescribed by s 29(2) of the AAT Act. Accordingly, the Tribunal acknowledges that, by making that application for an extension of time, the applicant was not conceding that his application for review had been lodged beyond the time prescribed by s 29(2) of the AAT Act and that an extension of time for the lodgement of that application for review was required. On the contrary, the applicant primarily contends that his application for review was lodged within the time prescribed by s 29(2) of the AAT Act and that an extension of time for the lodgement of that application for review is not required.
Accordingly, the issues to be determined by the Tribunal at this interlocutory stage of the proceeding are as follows:
·Was the application for review, which was lodged with the Tribunal by the applicant on 26 July 2013, lodged within the time prescribed by s 29(2) of the AAT Act?
·If the above question is answered in the negative, is it appropriate for the Tribunal, pursuant to s 29(7) of the AAT Act, to extend the time for the making by the applicant of that application for review until 26 July 2013?
Analysis
Was the application for review, which was lodged with the Tribunal by the applicant on 26 July 2013, lodged within the time prescribed by s 29(2) of the AAT Act?
The applicant’s submissions
The applicant’s written submissions, filed on 13 March 2014, address this question as follows:
“ An extension of time is not required
3There is direct, un-contradicted [sic] evidence as to the date the applicant received the SSAT decision, and which provides a reasonable basis for a definite conclusion on which the tribunal may be reasonably satisfied: cf West v GIO (NSW) (1981) 35 ALR 437 (at 440) per Stephen, Mason, Aickin and Wilson JJ.
4Speculation as to an event or occurrence of a matter is not evidence of such occurrence or such matter and cannot form the basis for a factual conclusion: West v GIO (NSW) (1981) 35 ALR 437, per Stephen, Mason, Aickin and Wilson JJ.
5‘Common experience’ is not evidence: Strong v Woolworths [2012] HCA 5 at [69], per Heydon J
One problem with this approach is that the common experience of ordinary life is a subject on some aspects of which courts [sic] are not necessarily well equipped to speak … Another problem is that, like ‘common’ sense, ‘common’ experience tends to elicit answer [sic] which are not common, but diverse.
6The law does not authorise a court to choose a guess, on the ground that the guess seems more likely: West v GIO (NSW) (1981) 35 ALR 437 (at 440) per Stephen, Mason, Aickin and Wilson JJ.
7It is legitimate for a judge to hold that very slight evidence pointing to a matter may be treated as sufficient to justify a finding where (as in [sic] the case in this application) the [sic] there is no evidence to the contrary: De Gioia v Darling Island Stevedoring & Lighterage Company Ltd (1941) 42 SR (NSW) 1 at 4.
8There is an evidential basis, sufficient to find that the applicant did not receive a copy of the SSAT decision until 28 June 2013: the applicant’s evidence is un-contradicted [sic] by any evidence. What is suggested, in contradiction, is not evidence, it is mere speculation – a guess as to what might or in common experience, ought to have happened.
9A finding contrary to the evidence of the applicant cannot be made absent evidence.
10An applicant is entitled to use the entirety of the prescribed time and no adverse inference is permissible or proper if an applicant elects to do so.
11Accordingly, there is no need for an extension of time as the application was filed within the prescribed time.”
Ms Levy (for the applicant) submitted that the applicant’s evidence regarding the circumstances whereby he received the letter from the SSAT enclosing its decision on 28 June 2013 is uncontradicted and should be accepted by the Tribunal. She noted that the SSAT’s letter to the applicant stated that the time limit for lodging an application for review with the Tribunal was “28 days from receipt of the written statement of reasons for the SSAT’s decision” and submitted that the applicant had lodged his application for review within 28 days from his receipt of the SSAT’s decision on 28 June 2013, namely, on 26 July 2013. Accordingly, she submitted that the applicant’s application for review was lodged with the Tribunal within the prescribed period of 28 days and that an extension of time for lodging that application was not required.
The respondent’s submissions
Ms Ladhams (for the respondent) submitted that, pursuant to s 29(1) of the AI Act, the SSAT’s letter, dated 13 June 2013, enclosing a copy of the SSAT’s decision and reasons, which was posted to the applicant, is deemed to have been served on, or delivered to, the applicant in the ordinary course of post, that is, within two working days of 13 June 2013, namely, no later than 17 June 2013, unless the contrary is proved. She submitted that, there being no evidence to the contrary, the SSAT’s letter is deemed to have been delivered to the applicant on 17 June 2013. Accordingly, she submitted that the prescribed 28-day period for the lodging by the applicant of his application for review with the Tribunal expired on 15 July 2013 and that that application for review, which was not lodged with the Tribunal until 26 July 2013, was 11 days out of time and that an extension of time until 26 July 2013 for lodging that application was therefore required.
Consideration and findings
The Tribunal accepts the respondent’s submissions.
Pursuant to s 29(2) of the AAT Act, the prescribed time for lodging with the Tribunal an application for review of the relevant decision of the SSAT ends “on the twenty-eighth day after … the day on which a document setting out the terms of the decision is given to the applicant”.
Pursuant to s 103X of the CS (R and C) Act and s 28A(1) of the AI Act, the SSAT Registry was authorised to give written notice of the decision and reasons for decision of the SSAT in this matter to the applicant by (relevantly) sending it by pre-paid post to the address of the place of residence of the applicant last known to the SSAT Registry. Section 29(1) of the AI Act provides:
“ 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.”
The Tribunal notes that on the front page of the SSAT’s decision in this matter (Exhibit 4) appear the words:
“Date decision posted 13 June 2013”. (original emphasis)
The Tribunal also notes that each of the covering letters from the SSAT Registry, dated 13 June 2013, addressed to the applicant and to the other party, with which a copy of the relevant SSAT decision and reasons for decision was enclosed, states that a copy of the decision had also been sent to each of the other parties “today” (Exhibits 3 and 5). The applicant acknowledged in his evidence that the relevant covering letter addressed to him was correctly addressed.
On the basis of the documentary evidence referred to in paragraph 30 above, the Tribunal is satisfied, and finds, that written notice of the decision and reasons for decision of the SSAT was sent by pre-paid post to the address of the place of residence of the applicant last known to the SSAT Registry, for the purposes of s 28A(1) of the AI Act, on 13 June 2013. In the Tribunal’s opinion there is nothing in the applicant’s evidence, including para 8 of his affidavit (Exhibit 1), which is inconsistent with that finding.
The Tribunal further finds, pursuant to s 29(1) of the AI Act, that service of the SSAT Registry’s letter, dated 13 June 2013 (Thursday), and the enclosed copy of the SSAT’s decision and reasons for decision, is deemed “to have been effected at the time at which [that] letter would be delivered in the ordinary course of post”, namely, on 17 June 2013 (the following Monday).
The Tribunal does not accept the applicant’s submission that, for the purposes of s 29(2)(a) of the AAT Act, written notice of the SSAT’s decision and reasons for decision was given to him on 28 June 2013, being the date on which, according to his evidence, he physically received that written notice.
Accordingly, the Tribunal finds that the time prescribed by s 29(2)(a) of the AAT Act, within which the applicant was required by s 29(1)(d) of the AAT Act to lodge with the Tribunal an application for review of the SSAT’s decision whose terms were set out in a document deemed to have been given to him on 17 June 2013, ended on the twenty-eighth day thereafter, namely, on 15 July 2013.
The Tribunal finds, therefore, that the application for review of the SSAT’s decision of 5 June 2013, which was lodged by the applicant with the Tribunal on 26 July 2013, was not lodged within the time prescribed by s 29(2)(a) of the AAT Act and, accordingly, was not “lodged with the Tribunal within the prescribed time” as required by s 29(1)(d) of the AAT Act.
Is it appropriate for the Tribunal, pursuant to s 29(7) of the AAT Act, to extend the time for the making by the applicant of an application to the Tribunal for a review of the SSAT’s decision of 5 June 2013 until 26 July 2013 (being the date on which the applicant’s application for review of that decision was lodged with the Tribunal)?
General 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”.
The applicant’s submissions
The applicant’s written submissions, filed on 13 March 2014, address this question as follows:
“ An extension of time is fair and equitable
12The rule to extend time is remedial and confers a broad discretionary power upon the tribunal to relieve against an injustice which is not readily to be limited: FAI General Insurance Co Ltd v Southern Cross Exploration NL (1988) 165 CLR 268 at 283, 286.
13An unduly strict approach should not be taken to a limitation period in beneficial legislation, as this may result in an unjust outcome: Agar v Australian Postal Corporation (1998) 56 ALD 361.
14Rules should never be allowed to be an instrument of tyranny and an extension ought be granted to enable genuine issues to be litigated: Outboard Marine Australia Pty Ltd v Byrnes [1974] 1 SWLR [sic] 27 at 30. The issues to be determined between the parties are genuine – there is no material before the tribunal sufficient to support a finding otherwise.
15While the tribunal must be satisfied that it is proper to extend time, an applicant does not bear a legal onus of proof: Agar v Australian Postal Corporation (1998) 56 ALD 361 at 363.
16There is no rule that an acceptable explanation of the delay must be given as an essential precondition for success, but rather such an explanation will normally be given and is a relevant matter for consideration: Comcare v A’Hearn (1993) 45 FCR 441.
17What the tribunal has is essentially a balancing exercise, the focus of which is on the period of time that has elapsed since the cause of action arose, and in particular, since the expiry of the time limit, in this case (at most) 11 days: Agar v Australian Postal Corporation (1998) 56 ALD 361.
18What must be balanced are the consequences of the time having elapsed and why it has elapsed. The balancing exercise involves a consideration of the impact on the affected parties – that is, to ask, what effect did an 11-day delay have: Agar v Australian Postal Corporation (1998) 56 ALD 361.
19There is no evidence before the tribunal as to any prejudice or any other impact that an 11 day delay in fact had on the respondent or the other party.
20The time elapsed due to a delay which arose in the postal delivery service; the prejudice to the applicant, if his application is denied would be to deny his claim entirely.
21In all of the circumstances, it is fair and equitable to extend time.”
The respondent’s submissions
The primary submission advanced on behalf of the respondent was that the applicant had not provided an acceptable or satisfactory explanation for his delay until 26 July 2013 in lodging an application for review of the SSAT’s decision of 5 June 2013, and that the absence of an acceptable or satisfactory explanation for that delay weighs against the grant of an extension of time in this case.
Consideration
In the Tribunal’s opinion, the explanation provided by the applicant, in his abovementioned affidavit and in his oral evidence (see paragraphs 18–19 above), for not lodging with the Tribunal his application for review of the SSAT’s decision of 5 June 2013 until 26 July 2013 is unsatisfactory. More specifically, in the absence of any independent, objective corroborative evidence, the Tribunal regards the applicant’s evidence:
·regarding the reason why the SSAT Registry’s letter, dated 13 June 2013, enclosing a copy of the SSAT’s decision of 5 June 2013 and reasons therefor, was not delivered by a postal officer to his residence to which it had been addressed, namely, that his residential postbox could not accommodate the A4 size envelope containing that letter and enclosure;
·to the effect that it is “normal standard practice” for him (and, presumably, for the occupants of the other 5 townhouses in his residential building) to have to go to the local post office to collect mail comprising A4 size envelopes containing more than a couple of sheets of paper;
·to the effect that a card from the local post office was delivered to his residential postbox on 27 June 2013 notifying him that he had mail to collect from that post office, and that he attended that post office on 28 June 2013 and collected that mail which comprised the SSAT Registry’s letter dated 13 June 2013;
as an implausible self-serving reconstruction of events and it does not accept that evidence.
In the Tribunal’s opinion, furthermore, the applicant’s evidence to the effect that, having physically received the SSAT’s decision and reasons on 28 June 2013, and, having read the first page and the last page thereof, he made the “immediate decision” to appeal against what he regarded as a “ridiculous, absolutely disgraceful” decision, does not sit well with his further evidence that he then merely programmed his computer to remind him on 25 July 2013 to lodge his appeal by 26 July 2013 and “did not give it any further thought on that day” and “got on with [his] life” and took no further action in relation to that matter until 25 July 2013. The Tribunal notes that the SSAT Registry’s letter, dated 13 June 2013, to the applicant indicates that the time limit for lodging with the Tribunal an application for review is “28 days from receipt of the written statement of reasons for the SSAT’s decision” (Exhibit 3). The Tribunal also notes the applicant’s evidence that the date of the SSAT Registry’s letter “did not register” with him until 25 July 2013 and that he understood from that letter that he had 28 days from the date he received that letter (namely, 28 June 2013, according to his evidence) to lodge an appeal. However, the front page of the SSAT’s decision (which, according to the applicant’s evidence, he did read) clearly indicates in bold type (see paragraph 30 above) that the decision was posted on 13 June 2013. That being the case, even if it be accepted that the applicant did not see that decision until 28 June 2013, it is, in the Tribunal’s opinion, disingenuous and unreasonable for the applicant to claim that he believed that he had 28 days from 28 June 2013 – that is, 15 days after the date on which the SSAT’s decision was posted, as stated on the front page of that decision which was read by him – in which to lodge with the Tribunal an appeal against that decision.
Having regard to the matters referred to in paragraphs 41–42 above, the Tribunal accepts the respondent’s submission that the applicant has not provided an acceptable or satisfactory explanation for his delay until 26 July 2013 in lodging with the Tribunal an application for review of the SSAT’s decision of 5 June 2013 and that the absence of an acceptable or satisfactory explanation for that delay weighs against the grant to the applicant of an extension of time until 26 July 2013 for the making of that application for review.
The Tribunal, furthermore, is satisfied that, in the period from the time when the applicant became aware of the SSAT’s decision of 5 June 2013, he did not take any action that might have made the respondent or the other party aware that he was contesting, or was proposing to contest, that decision until he lodged with the Tribunal his application for review of that decision on 26 July 2013. The Tribunal is also satisfied that neither the respondent nor the other party was aware that the applicant had lodged that application for review until each of them was so informed by letter, dated 5 August 2013, sent to each of them by the Tribunal Registry (see paragraph 4 above). In those circumstances, the Tribunal accepts that, by reason of such inaction on the part of the applicant, including his failure to lodge the abovementioned application for review within the time prescribed by s 29(2)(a) of the AAT Act, it may reasonably be inferred that he had “rested on his rights” and that the respondent and the other party had reasonable cause to believe that the matter was concluded. In the Tribunal’s opinion, this consideration also weighs against the grant to the applicant of an extension of time until 26 July 2013 for the making of that application for review.
The respondent has not submitted that the respondent would suffer any prejudice by the grant of the relevantly required extension of time. Nor has the other party submitted that she would suffer prejudice by the grant of that extension of time, other than the distress and inconvenience she would suffer by reason of being a party to the proceeding. In the Tribunal’s opinion, this consideration does not weigh against the grant of that extension of time to the applicant.
As regards the merits of the applicant’s application for review of the SSAT’s decision of 5 June 2013, the Tribunal, at this interlocutory stage of the proceeding, is not in a position to assess the prospects of success of that application for review in the event that it were to proceed. In the Tribunal’s opinion, however, there is no obviously apparent factual or legal flaw in the SSAT’s reasons for its decision of 5 June 2013, and the statement of the reasons for the applicant’s application for review which appears in the Application for Review form lodged by the applicant 26 July 2013, namely, “Errors by SSAT – In fact and in law” (see paragraph 3 above), does not specify any particular alleged factual or legal error. Likewise, in his oral evidence, the applicant acknowledged that he did not read the SSAT’s reasons for decision (other than the first page and the last page) before deciding to appeal and simply asserted that he thought that the SSAT’s decision was “ridiculous, absolutely disgraceful”. Accordingly, the Tribunal is not in a position to assess whether the prospects of success of the applicant’s application for review, if it were to proceed, are good or bad. The Tribunal is, however, not prepared to assert that the applicant’s application for review is without merit or that it has no prospects of success. Nor, on the other hand, can the Tribunal be satisfied that the applicant’s application for review has such merit that an extension of time until 26 July 2013 for making that application should be granted in the interests of justice. In these circumstances, the Tribunal regards this consideration as neutral, neither weighing in favour of, nor weighing against, the grant of that extension of time.
It is unnecessary for the Tribunal to canvass in detail the other considerations referred to in Hunter Valley Developments and Re Johnson (see paragraph 37 above). Suffice it to say that, in the Tribunal’s opinion, none of those other considerations militates in favour of the grant to the applicant of an extension of time until 26 July 2013 for the making of his application for review of the SSAT’s decision of 5 June 2013.
Conclusion
Having regard to the circumstances of this case and the relevant considerations referred to in paragraphs 41–47 above, the conclusion of the Tribunal is that none of those circumstances and considerations weighs in favour of the grant to the applicant of an extension of time until 26 July 2013 for the making of his application for review of the SSAT’s decision of 5 June 2013, but that certain of those circumstances and considerations weigh against the grant of such an extension of time, namely:
·the lack of an acceptable or satisfactory explanation by the applicant for his failure to lodge that application for review within the time prescribed by s 29(2) (a) of the AAT Act and his delay until 26 July 2013 in lodging that application for review; and
·the failure by the applicant to take any action that might have made the respondent or the other party aware that he was contesting, or was proposing to contest, the SSAT’s decision of 5 June 2013 prior to his lodgement with the Tribunal of an application for review of that decision on 26 July 2013.
On balance, therefore, the Tribunal, in terms of s 29(7) of the AAT Act, is not satisfied that it would be “reasonable in all the circumstances” of this case to extend the time for the making by the applicant of an application for review of the SSAT’s decision of 5 June 2013 until 26 July 2013 (being the date on which such application was made).
Decision
For the above reasons the Tribunal decides as follows:
·the application for review of the SSAT’s decision of 5 June 2013, lodged with the Tribunal by the applicant on 26 July 2013, was not lodged with the Tribunal within the time prescribed by s 29(2)(a) of the AAT Act for making that application (that time having expired on 15 July 2013) and, accordingly, was not “lodged with the Tribunal within the prescribed time” as required by s 29(1)(d) of the AAT Act;
·pursuant to s 29(7) of the AAT Act, the applicant’s application for an extension of time until 26 July 2013 for the lodgement with the Tribunal of his application for review of the SSAT’s decision of 5 June 2013 is refused.
I certify that the preceding 50 (fifty) paragraphs are a true copy of the reasons for the decision herein of Deputy President S D Hotop ..(Sgd) T Freeman....................
Administrative Assistant
Dated 15 April 2014
Date of interlocutory hearing 1 April 2014 Counsel for the Applicant Ms K Levy Solicitors for the Applicant Danaghers Representative of the Respondent Ms A Ladhams Solicitors for the Respondent Australian Government Solicitor Representative of the Other Party In person (unrepresented)
0
5
0