Cremona v Administrative Appeals Tribunal - [2015] FCA 288

FEDERAL COURT OF AUSTRALIA
Cremona v Administrative Appeals Tribunal [2015] FCA 288

Citation: Cremona v Administrative Appeals Tribunal [2015] FCA 288

Appeal from: Application for extension of time: Cremona v Secretary, Department of Social Services [2014] AATA 836

Parties: DAVID CREMONA v ADMINISTRATIVE APPEALS TRIBUNAL and SECRETARY, DEPARTMENT OF SOCIAL SERVICES

File number: VID 786 of 2014

Judge: BROMBERG J

Date of judgment: 17 March 2015

Catchwords: ADMINISTRATIVE LAW – Application for extension of time to institute appeal from AAT – principles relevant to grant of extension of time – discretionary decision by AAT to refuse to reinstate application – whether prospect of success – no prospect of success – application dismissed.

Legislation: Administrative Appeals Tribunal Act 1975 (Cth) ss 42A, 42A(9), 44, 44(1), 44(2A), 44(2B)(a)
Social Security Act 1991 (Cth) s 198(2)

Cases cited: Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344
Comcare v A’Hearn (1993) 45 FCR 441
Pham v Commonwealth of Australia [2002] FCA 669
House v The King (1936) 55 CLR 499
Selway v Minister for Infrastructure, Transport, Regional Development & Local Government [2011] FCA 43

Date of hearing: 17 March 2015

Place: Melbourne

Division: GENERAL DIVISION

Category: Catchwords

Number of paragraphs: 34

Counsel for the Applicant: The Applicant appeared in person

Counsel for the First Respondent: The First Respondent did not appear

Solicitor for the Second Respondent: Ms P Heffernan of Australian Government Solicitor

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY

GENERAL DIVISION

VID 786 of 2014

BETWEEN:
DAVID CREMONA
Applicant

AND:
ADMINISTRATIVE APPEALS TRIBUNAL
First Respondent

SECRETARY, DEPARTMENT OF SOCIAL SERVICES
Second Respondent

JUDGE:

BROMBERG J

DATE OF ORDER:

17 MARCH 2015

WHERE MADE:

MELBOURNE

THE COURT ORDERS THAT:
1.The applicant’s application for an extension of time dated 23 December 2014 is dismissed.
2.The applicant pay the second respondent’s costs of the application.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY

GENERAL DIVISION

VID 786 of 2014

BETWEEN:
DAVID CREMONA
Applicant

AND:
ADMINISTRATIVE APPEALS TRIBUNAL
First Respondent

SECRETARY, DEPARTMENT OF SOCIAL SERVICES
Second Respondent

JUDGE:

BROMBERG J

DATE:

17 MARCH 2015

PLACE:

MELBOURNE

REASONS FOR JUDGMENT

The applicant (Mr Cremona) was the recipient of a carer payment made in respect of care provided by him to his wife. On 23 December 2013, a decision was made by the second respondent (Secretary) to cancel the carer payment. That decision was affirmed by a decision of the Social Security Appeals Tribunal made on 4 April 2014.
Mr Cremona then applied to the Administrative Appeals Tribunal (AAT) for a review of the decision of the Social Security Appeals Tribunal. He failed to appear at an AAT hearing held on 25 August 2014 and as a consequence, his application was dismissed. On 14 October 2014, the AAT heard and dismissed Mr Cremona’s application that his substantive application be reinstated (AAT’s decision).
Mr Cremona seeks to challenge the…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2015] FCA 288
Decision Date: 17 March 2015

CaseChat Overview and Summary

Cremona applied to the Administrative Appeals Tribunal (AAT) to review the Social Security Appeals Tribunal's decision, but failed to appear at the hearing, leading to the dismissal of his application. Subsequently, Cremona sought to challenge the AAT's dismissal of his application for reinstatement, aiming to appeal to the Federal Court under the Administrative Appeals Tribunal Act 1975 (Cth). However, Cremona did not file his appeal within the 28-day statutory period and thus applied for an extension of time. The court examined whether the extension should be granted, considering factors such as the explanation for the delay, potential prejudice to the Secretary, and the merits of the appeal.

The court considered the applicant's explanations for the delay, which included waiting for the AAT's reasons for decision. The court found that this reason was without merit as there was no dispute that the reasons were received on time. The court also evaluated whether the delay would prejudice the Secretary and the merits of the proposed appeal. Ultimately, the court determined that Cremona had no prospect of success in his appeal and thus dismissed his application for an extension of time.

The court's decision was based on the absence of a valid explanation for the delay, the lack of prejudice to the Secretary, and the unlikelihood of success in the appeal. The court found that Cremona's reasons for the delay were not credible and did not justify an extension. Given the lack of merit in the appeal, the court dismissed the application for an extension of time and ordered that Cremona pay the costs of the application.

Orders

Orders of the court

1. The applicant’s application for an extension of time dated 23 December 2014 is dismissed.

2. The applicant pay the second respondent’s costs of the application.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

Mr Cremona then applied to the Administrative Appeals Tribunal (AAT) for a review of the decision of the Social Security Appeals Tribunal. He failed to appear at an AAT hearing held on 25 August 2014 and as a consequence, his application was dismissed. On 14 October 2014, the AAT heard and dismissed Mr Cremona’s application that his substantive application be reinstated (AAT’s decision). Mr Cremona seeks to challenge the AAT’s decision and wishes to institute an appeal to this Court pursuant to the jurisdiction conferred by s 44 of the Administrative Appeals Tribunal Act 1975 (Cth) (AAT Act). Section 44(1) of the AAT Act confers upon this Court the jurisdiction to hear an appeal on a question of law from any decision of the AAT. Section 44(2A) requires that an appeal be instituted within 28 days of a document setting out the terms of the AAT’s decision being given to a prospective appellant or within such further time as the Court allows. Mr Cremona failed to institute an appeal within the 28-day period and, by his application filed on 23 December 2014, he seeks an extension of time in which to institute his intended appeal. The AAT Act does not specify criteria for the exercise of the Court’s discretion to extend time to institute an appeal. Nonetheless, the Court has on a number of occasions identified a range of factors which may be taken into account as a guide to the exercise of the discretion to extend time. Those factors have been conveniently summarised by Wilcox J in Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344 at 348-9. The factors there identified need to be read with the observations of a Full Court of this Court in Comcare v A’Hearn (1993) 45 FCR 441 at 444 where Black CJ, Gray and Burchett JJ noted that while there is no rule that an acceptable explanation for the delay is an essential precondition, “… it is to be expected that such an explanation will normally be given”. See further, Pham v Commonwealth of Australia [2002] FCA 669 at [11] (Gray J). The relevant factors of significance to this application are:(a)the explanation given for the delay;(b)whether the delay in instituting an appeal would cause any prejudice to the Secretary; and(c)the merits of Mr Cremona’s proposed appeal.THE EXPLANATION FOR THE DELAY A letter enclosing the AAT’s reasons for decision was sent to Mr Cremona on 6 November 2014. There does not seem to be any dispute about that. Accordingly, Mr Cremona should have brought his appeal by 4 December 2014. As this application was filed on 23 December 2014, the delay in question should be regarded as a delay of some nineteen days. Mr Cremona relies on two affidavits. His first affidavit of 23 December 2014 provides two reasons for the delay. One of the reasons given is that he was awaiting a copy of the reasons of decision from the AAT. There is, however, no suggestion either in his evidence or in what was submitted orally on the hearing of the application that those reasons for decision were not received by him on or about 6 November 2014. Insofar as his explanation for the delay is based on that matter, I reject it as being without merit.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Citation:	Cremona v Administrative Appeals Tribunal [2015] FCA 288
Appeal from:	Application for extension of time: Cremona v Secretary, Department of Social Services [2014] AATA 836
Parties:	DAVID CREMONA v ADMINISTRATIVE APPEALS TRIBUNAL and SECRETARY, DEPARTMENT OF SOCIAL SERVICES
File number:	VID 786 of 2014
Judge:	BROMBERG J
Date of judgment:	17 March 2015
Catchwords:	ADMINISTRATIVE LAW – Application for extension of time to institute appeal from AAT – principles relevant to grant of extension of time – discretionary decision by AAT to refuse to reinstate application – whether prospect of success – no prospect of success – application dismissed.
Legislation:	Administrative Appeals Tribunal Act 1975 (Cth) ss 42A, 42A(9), 44, 44(1), 44(2A), 44(2B)(a) Social Security Act 1991 (Cth) s 198(2)
Cases cited:	Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344 Comcare v A’Hearn (1993) 45 FCR 441 Pham v Commonwealth of Australia [2002] FCA 669 House v The King (1936) 55 CLR 499 Selway v Minister for Infrastructure, Transport, Regional Development & Local Government [2011] FCA 43
Date of hearing:	17 March 2015
Place:	Melbourne
Division:	GENERAL DIVISION
Category:	Catchwords
Number of paragraphs:	34
Counsel for the Applicant:	The Applicant appeared in person
Counsel for the First Respondent:	The First Respondent did not appear
Solicitor for the Second Respondent:	Ms P Heffernan of Australian Government Solicitor

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
GENERAL DIVISION	VID 786 of 2014

JUDGE:	BROMBERG J
DATE OF ORDER:	17 MARCH 2015
WHERE MADE:	MELBOURNE

JUDGE:	BROMBERG J
DATE:	17 MARCH 2015
PLACE:	MELBOURNE