Cornwell and Secretary, Department of Social Services (Social services second review)

[2022] AATA 3721

Cornwell and Secretary, Department of Social Services (Social services second review) [2022] AATA 3721 (4 November 2022)

Division:GENERAL DIVISION

File Number:          2022/8091

Re:Grace Cornwell

APPLICANT

AndSecretary, Department of Social Services

RESPONDENT

Decision

Tribunal:Senior Member D. J. Morris

Date:4 November 2022

Date of written reasons:        4 November 2022

Place:Melbourne

As the application for review was deemed to be dismissed in October 2013 under s 42A(1B) of the Administrative Appeals Tribunal Act 1975, the Tribunal does not have jurisdiction to grant an extension of time under s 29(7) of that Act.

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Senior Member D. J. Morris

Catchwords

PRACTICE AND PROCEDURE – debt to Commonwealth – applicant seeks to re-open withdrawn application – significant period of time has elapsed since withdrawal – Tribunal finds no power to extend time in absence of fresh application – applicant specifically precluded from applying for reinstatement of an application deemed dismissed because of discontinuance or withdrawal – other avenues of relief available to applicant – matter dismissed for want of jurisdiction – oral decision – matter finalised ex parte – written reasons provided

Legislation

Administrative Appeals Tribunal Act 1975 (Cth), ss 29(7), (8), 42A(1), (1B),(2),(7),(8),(11)

Cases

Hunter Valley Developments Pty Ltd and Ors v Cohen [1984] FCA 176
Negri v Secretary, Department of Social Services (2016) 70 AAR 103
Pavlovic and Telstra Corporation; Re: (1994) 34 ALD 800

Poidevan and Australian Securities and Investments Commission; Re: [2020] AATA 482

Secondary materials

Pearce, Denis; Administrative Appeals Tribunal (LexusNexus, 5^th ed, 2020)

REASONS FOR DECISION

Senior Member D. J. Morris

4 November 2022

PRELIMINARY

1. On 21 September 2022, Mrs Cornwell contacted the Tribunal and asked that an application she lodged in 2013 (Application 2013/3281 Re: Cornwell and Secretary, Department of Social Services), and subsequently withdrew, be ‘re-opened’.

   HEARING

   Applicant did not appear

2. A telephone directions hearing was held on 4 November 2022. The Respondent was represented by Ms Alison Boon, a legal officer from Services Australia. Mrs Cornwell did not appear. The Tribunal ascertained that she was sent an email and telephone text message reminding her of the time of the hearing the previous day. The Tribunal stood the matter down for 30 minutes. Mrs Cornwell then contacted the Tribunal’s associate and explained she had been admitted to hospital. It was not clear whether she would be able to participate. When contact was later made, she did not respond.

3. The Tribunal has a power under s 42A(2) of the Administrative Appeals Tribunal Act 1975 (‘the AAT Act’) to dismiss an application if a party fails to appear, provided it is satisfied under s 42A(7) of the AAT Act that appropriate notice was given to the person of the time and place of the hearing. The Tribunal is so satisfied but decided, instead of dismissing the matter for Mrs Cornwell failing to appear, nonetheless, to proceed to give an oral decision ex parte, and then provide written reasons to both parties.

4. The reason is to explain to Mrs Cornwell the lack of powers of the Tribunal in relation to her request and provide some guidance for her about possible next steps she may wish to take.  The Tribunal considers that, as Mrs Cornwell is unwell, it would only prolong uncertainty for her to adjourn this hearing, and thus leave her in limbo. By proceeding this way and providing written reasons, both parties have certainty of an outcome.    

   Documents considered

5. The Tribunal had regard for an email submitted by the Applicant to the Tribunal dated 21 September 2022 and written submissions submitted by the Respondent dated 31 October 2022, which included various attachments, including:

   (a)Decision of an Authorised Review Officer of Centrelink dated 7 February 2013;

   (b)Social Security Appeals Tribunal decision dated 5 June 2013; and

   (c)Screenshot showing current debt and other Centrelink records.

   The Tribunal also had regard to information on its own case management system relating to the progress of the 2013 application for review.

   BACKGROUND

6. In 2006, the Applicant was granted a disability support pension (‘DSP’). On 10 January 2013, an officer of what was then Centrelink (now Services Australia) determined that Mrs Cornwell had been overpaid DSP owing to undeclared income and assets and raised a debt in the amount of $75,651.96. The same officer also cancelled the DSP from that date on the basis that the Applicant’s income exceeded the income limit. Mrs Cornwell sought a review of the officer’s decision by an Authorised Review Officer (‘ARO’), an officer of the Department who was not involved in the original decision.

7. On 7 February 2013, the ARO affirmed the decision to cancel the DSP and recalculated the debt to be $77,708.08 on the basis of additional income that the ARO had identified was not included in the original calculation.

8. Mrs Cornwell sought review by the (then) Social Security Appeals Tribunal (‘SSAT’) (‘the first review’). On 5 June 2013, Members Sheck (presiding) and Grant of the SSAT affirmed the decision to raise the debt and affirmed the calculation of the debt as accurate. However, the first review set aside the decision to cancel Mrs Cornwell’s DSP and instead suspended her payments from that date. That decision was posted to the Applicant on 7 June 2013.

9. On 5 July 2013, Mrs Cornwell lodged an application for review by the Administrative Appeals Tribunal (‘the second review’). Mrs Cornwell and a representative of Centrelink attended a mediation conference before Conference Registrar Leaver on 26 September 2013.

10. On 16 October 2013, the Applicant lodged a written notification with the Tribunal requesting that the second review be discontinued.

11. On 21 September 2022, Mrs Cornwell contacted the Tribunal by telephone and asked that her application for a second review be ‘re-opened’. She followed up with an email later the same day. In her email, Mrs Cornwell set out details of significant health challenges she has faced and her current financial situation. The details are not necessary to set out here, but the Tribunal is satisfied on the medical correspondence the Applicant had previously provided to the Tribunal that her health challenges are documented and genuine.

12. The Respondent lodged written submissions with the Tribunal dated 31 October 2022 and submitted that the matter before the Tribunal is whether it is reasonable in all the circumstances to grant the Applicant an extension of time under s 29(7) of the AAT Act.

13. The Respondent noted that it was clear that the Applicant received the first review decision and lodged an application for review, because of the fact that she lodged an application for a second review within a short time after receiving the SSAT decision, and subsequently withdrew that application on 16 October 2013.

14. The Respondent noted that the debt has now been reduced to $74,794.62. The Respondent then referred to the fact that some nine years passed before the Applicant lodged her current application for review on 21 September 2022 and then referred to the principles set out by Wilcox J in the Federal Court of Australia in Hunter Valley Developments Pty Ltd and Ors v Cohen [1984] FCA 176 (‘Hunter Valley’).   

15. For the reasons given orally at the conclusion of the telephone directions hearing on 4 November 2022, while the Tribunal agrees with the Respondent that the general guidance offered by the Hunter Valley decision is valuable in considering whether to extend time, that is not the issue before the Tribunal in this matter. The Tribunal decided that it had no jurisdiction to ‘re-open’ the application lodged by the Applicant in 2013 and then subsequently withdrawn by her, so it also does not have the power to extend time.

16. The Tribunal advised the Respondent it would provide written reasons to the parties for the oral decision. In Negri v Secretary, Department of Social Services (2016) 70 AAR 103 (‘Negri’), Bromberg J considered a matter before the Tribunal where an oral decision had been given and a statement of written reasons subsequently provided. In considering the extent to which the Tribunal could edit or elaborate its oral reasons when producing written reasons, His Honour said at [27]:

    … as long as the reasoning remains consistent, there can be no objection to the provision of a more-elaborate exposition of the same reasoning that was orally explained. What is not permissible is altered or new reasoning. The Tribunal is not permitted to substantially divert from the reasoning upon which its decision was made, but is permitted to explain that reasoning differently and, in doing so, is required to address the matters specified in s 43(2B).

17. In preparing the written reasons which follow, the Tribunal is satisfied that they reflect the oral reasons given on 4 November 2022, consistent with the approach suggested in Negri. New reasoning for the decision has not been introduced, but this written statement is a fuller explanation of the reasons given orally.

    CONSIDERATION

    The legislative provisions

18. Section 42A(1A) of the AAT Act provides:

    Deemed dismissal – applicant discontinues or withdraws application

    (1A)A person who has made an application to the Tribunal for a review of a decision may, in writing lodged with the Tribunal, at any time notify the Tribunal to the effect that the application is discontinued or withdrawn.

    (1AA)     …

    (1B)If notification is given in accordance with subsection (1A) or (1AA), the Tribunal is taken to have dismissed the application without proceeding to review the decision.

19. Section 42A(8) of the AAT Act deals with reinstatement of an application. It provides:

    (8)If the Tribunal is taken to have dismissed an application under subsection (1B), a party to the proceeding (other than the applicant) may, with the period referred to in subsection (11), apply to the Tribunal for reinstatement of the application.

    (Emphasis added.)

20. Subsection (11) of the Act goes on to provide that the period to apply for reinstatement is 28 days or a longer period that the Tribunal, in special circumstances, may allow.

    Powers of the Tribunal after a deemed dismissal

21. In Re: Pavlovic and Telstra Corporation (1994) 34 ALD 800, Senior Member Allen was considering a matter where the Applicant, Mr Pavlovic, had, through his solicitors, discontinued his application. Telstra Corporation, who was the Respondent party, asked the Tribunal to reinstate the application so that certain orders could be made. The learned Senior Member restated that an applicant may unilaterally withdraw an application at any time and, if that occurs, then, unless it can be found that the matter has been dismissed in error, the Tribunal becomes functus officio, i.e., it cannot make orders in relation to the application that has been withdrawn. (There may be exceptions relating to ancillary orders in particular circumstances not relevant to this matter: see the decision of President Thomas and Deputy President Redfern in Re: Poidevan andAustralian Securities and Investments Commission [2020] AATA 482, at [44].).

22. The Tribunal considers this is a similar situation. There is no dispute that the Applicant withdrew her application on 16 October 2013 in writing, and there was no suggestion from her in her written submissions that she did so in error. That therefore means that her matter is deemed to be dismissed under s 42A(1B) of the AAT Act.

23. The specific exclusion in the reinstatement provisions in s 41A(8) means that the Applicant cannot herself apply for reinstatement of her 2013 application. Because of the expiry of the 28-day period since 16 October 2013 and the absence of any request for time to be extended under s 42A(11) of the Act, the Respondent also cannot apply for reinstatement.

24. In his commentary on dismissal following the withdrawal of an application, Denis Pearce writes in Administrative Appeals Tribunal 5^th Edition (paragraph 15.6, p 326):

    A fresh application can be made after a withdrawal although an extension of time to apply would almost certainly be required…

25. It was noted at the telephone directions hearing that the Applicant has other avenues of relief available to her. She can make a fresh application and lodge it, together with a request for an extension of time. Alternatively, the Respondent suggested in written submissions that the Applicant can approach Services Australia directly “at any time to request waiver of her debt, in whole, or in part, due to special circumstances.” 

    Other potential avenues of relief

26. The Tribunal is not unsympathetic to the Applicant’s personal circumstances. She has stated that she has had several surgeries and extended medical treatment for a continuing condition and that this has had a significant effect on both her health and her personal finances. The better pathway for her is to ask the agency to review her debt, providing contemporary details of her financial situation. If she is dissatisfied with the outcome of any such approach, it is open to the Applicant to have any new decision about the remaining debt internally reviewed and, if still not satisfied, she can seek review by the Social Services and Child Support Division of the Tribunal, which replaced the SSAT in 2015.

27. Ms Boon made an offer at the telephone hearing to assist Mrs Cornwell if she wishes to have the Secretary consider a waiver or partial waiver of her remaining debt, while properly emphasising that she cannot speculate on what prospect there would be in relation to any such request. 

28. The Tribunal notes that, even if the 2013 application was revivable by means of a fresh extension of time application (which it is not), the personal circumstances of Mrs Cornwell would logically have changed over the nearly a decade since the debt was first raised in January 2013. 

29. It would be in Mrs Cornwell’s interests to make an approach to Services Australia setting out her current financial and personal situation. The Tribunal notes that Ms Boon advised that Services Australia have specialist officers who can assist benefits recipients with understanding and explaining hardship provisions linked to a person’s capacity to pay.

30. However, given that there is no application on foot before the Tribunal, an order will be made that, in the absence of such an application, it has no power to grant an extension of time or, in the words of the Applicant, to ‘re-open’ her 2013 application.

    DECISION

31. As the application for review was deemed to be dismissed in 2013 under s 42A(1B) of the AAT Act, the Tribunal does not have jurisdiction to grant an extension of time under s 29(7) of that Act.

1.       

2.       I certify that the preceding 31 (thirty-one) paragraphs are a true copy of the written reasons for the decision of Senior Member D. J. Morris

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Associate

Dated: 4 November 2022

Date of interlocutory hearing:	4 November 2022
Applicant:	Did not appear
Advocate for the Respondent:	Ms Alison Boon
Solicitors for the Respondent:	Services Australia