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

[2021] AATA 3442

Dawson; Secretary, Department of Social Services and (Social services second review) [2021] AATA 3442 (16 September 2021)

Division:GENERAL DIVISION

File Number:               2021/5538

Re:Secretary, Department of Social Services

APPLICANT

Peter DawsonAnd  

RESPONDENT

DECISION

Tribunal:Senior Member Dr M Evans-Bonner

Date:16 September 2021

Date of written reasons:        28 September 2021

Place:Perth

On 16 September 2021, I delivered the following decision and reasons extemporaneously:

1.The Tribunal refuses to grant the Secretary’s application to extend the time for the making of an application to the Tribunal for review of the AAT1 Decision dated 1 July 2021, because the Tribunal is not satisfied that it is reasonable in all the circumstances to do so pursuant to s 29(7) of the Administrative Appeals Tribunal Act 1975 (Cth).

2.As I have refused to grant an extension of time, the AAT1 Decision is not reviewable. Accordingly, the Secretary’s application for a stay order is dismissed under s 42A(4) of the Administrative Appeals Tribunal Act 1975 (Cth).

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Senior Member Dr M Evans-Bonner

CATCHWORDS

PRACTICE AND PROCEDURE – extension of time to apply for review of a decision of the Social Services and Child Support Division of the Tribunal (AAT1) – factors that are relevant when considering an extension of time – awareness of appeal rights and explanation for delay – length of delay – prejudice to the Respondent and general public – merits of the substantive application – whether alternative avenues of relief available to the Applicant – Tribunal not satisfied extension of time reasonable in all the circumstances – poor conduct by the Secretary who submitted that regardless of the outcome of this application he would not implement the AAT1 Decision – application for extension of time refused – stay order application dismissed because AAT1 Decision not reviewable

LEGISLATION

Administrative Appeals Tribunal Act 1975 (Cth) ss 29(1)(d), 29(2), 29(7), 33(1AA), 42A(4), 43(1)

Administrative Decisions (Judicial Review) Act 1977 (Cth)

Legal Services Directions 2017 (Cth) Appendix B, item 2, 3, 4

Social Security (Administration) Act 1999 (Cth) ss 109

CASES

Brown v Federal Commissioner of Taxation (1999) 42 ATR 118

Budd v Secretary, Department of Education, Employment and Workplace Relations [2008] FCA 1540

Comcare v A’Hearn (1993) 45 FCR 441

Hunter Valley Developments Pty Ltd v Minister for Home Affairs and Environment (1984) 3 FCR 344; [1984] FCA 186

Kuljic v Secretary, Department of Social Security (1994) 33 ALD 121

Re Hamilton and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs (2011) 121 ALD 202; [2011] AATA 276

Re Johnson and Commonwealth [1990] AATA 1

Re Kim and Minister for Immigration and Border Protection [2018] AATA 155

Re Mulheron and Australian Telecommunications Corporation (1991) 23 ALD 309; (1991) 14 AAR 42

Re Rollins and Principal Member of the Veterans’ Review Board (2011) 54 AAR 91; [2011] AATA 113

Seiler v Minister for Immigration, Local Government and Ethnic Affairs (1994) 48 FCR 83

Zizza v Federal Commissioner of Taxation (1999) 42 ATR 371; [1999] FCA 848; (1999) 55 ALD 451

REASONS FOR DECISION

Delivered extemporaneously and later edited

Senior Member Dr M Evans-Bonner

16 September 2021

THE APPLICATION

1. This application is somewhat different from the usual in that it is the Secretary who is seeking to apply for an extension of time and a stay order. Specifically, the Secretary seeks:

   (a)an extension of time to apply for review of a decision of the Social Services and Child Support Division (AAT1) of the Tribunal, dated 1 July 2021 (AAT1 Decision); and

   (b)a stay of the AAT1 Decision, pending final hearing and determination of the matter.

2. The AAT1 Decision set aside a decision of an authorised review officer of Services Australia (Centrelink), dated 21 April 2021 (ARO Decision) which affirmed Centrelink’s decision to cancel Mr Dawson’s Jobseeker payment, and substituted a new decision that:

   ·     Mr Dawson’s entitlement to jobseeker payment is reinstated for the period between 31 March 2020 and 22 February 2021; and

   ·     The matter is remitted to the Secretary for the payment of arrears.

3. The AAT1 Decision is unfortunately worded because the Member set aside the ARO Decision and substituted a new decision, but then stated that the matter was remitted to the Secretary. Section 43(1) of the Administrative Appeals Tribunal Act 1975 (Cth) (AAT Act) permits the Tribunal to set aside and substitute, or, remit, but not both. It appears that the Member intended to set aside and substitute the AAT1 Decision, and that the reference to remittal was simply stating what would happen in reality in that the matter would effectively be returned to Centrelink to arrange for the payment of the amount owing to Mr Dawson.  

   BACKGROUND

4. I turn to the background. The Secretary was notified of the AAT1 Decision on 12 July 2021.

5. However, it was not until 12 August 2021 that the Secretary filed an application seeking review of the AAT1 Decision in the General Division of this Tribunal (AAT2), an extension of time to apply for the review, and a request for a stay of the AAT1 Decision.

6. An extension of time application was required because the 28-day time limit for filing the application had expired and, at the time the Secretary’s application was filed, it was three days late.

7. Mr Dawson opposes the Secretary’s applications.

8. An interlocutory hearing to determine the extension of time application was held today, 16 September 2021. The Secretary was represented by Mr Parker from Services Australia and Mr Dawson represented himself. The Secretary appeared by telephone, with Mr Dawson appearing in person.

   ISSUE

9. The issue is whether I, the Tribunal, am satisfied that it is reasonable in all the circumstances to extend the time within which the Secretary’s application to the AAT2 to review the AAT1 Decision may be made.

10. If the extension of time is granted, then I can proceed to determine the stay order application.

11. If the extension of time is not granted, the effect is that the decision is not reviewable. Consequently, I would also need to dismiss the stay order application under s 42A(4) of the AAT Act which provides:

    (4)   The Tribunal may dismiss an application without proceeding to review the decision if the Tribunal is satisfied that the decision is not reviewable by the Tribunal.

    RELEVANT LEGAL PRINCIPLES

    Prescribed time

12. I now turn to the relevant legal principles. A person seeking review of a decision must lodge an application with the Tribunal within the prescribed time of 28 days (ss 29(1)(d) and 29(2) of the AAT Act).

    Extension of time

13. Section 29(7) of the AAT Act provides that:

    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.

14. Section 29(7) of the AAT Act does not set out any principles which the Tribunal can refer to, to be “satisfied that it is reasonable in all the circumstances” to extend the time for making an application. However, relevant principles which the Tribunal may apply in assessing whether it is reasonable to grant an extension of time have been judicially considered.  

15. A frequently cited authority is Hunter Valley Developments Pty Ltd v Minister for Home Affairs and Environment (1984) 3 FCR 344 (Hunter Valley), in which the Federal Court considered whether to grant an extension of time to allow the applicants to bring an application for judicial review under the Administrative Decisions (Judicial Review) Act 1977 (Cth) (ADJRA).

16. In Hunter Valley, Wilcox J (at 348–9) set out principles that were intended to be “non-exhaustive guidelines” (see Brown v Federal Commissioner of Taxation (1999) 42 ATR 118, 126–7 [32]–[34] per Hill J (Brown)) which may be relevant when considering whether to grant an extension of time. As stated by Wilcox J (at 348), the principles were intended “… to guide, not in any exhaustive manner, the exercise of the court’s discretion”.

17. These principles are substantially like those applied in decisions concerning s 29(7) of the AAT Act such as Re Mulheron and Australian Telecommunications Corporation (1991) 23 ALD 309 (Mulheron). In Mulheron at 314–15 [17]–[18], President O’Connor J applied the following principles considered by Deputy President Todd in Re Johnson and Commonwealth [1990] AATA 1:

    (a)Prima facie proceedings commenced outside the prescribed period will not be entertained. An extension of time will be granted, however, if it is proper to do so.

    (b)It is relevant whether the applicant rested on his rights or took action to make the decision-maker aware that the decision was being contested.

    (c)Any prejudice to the respondent that would be caused by granting the extension of time is relevant.

    (d)Any wider prejudice to the general public in terms of disruption to established practices is relevant.

    (e)The merits of the substantial application are relevant.

    (f)Fairness of granting the extension of time as between the applicant and other persons in a like position is relevant.

18. Budd v Secretary, Department of Education, Employment and Workplace Relations [2008] FCA 1540 (Budd), concerned an extension of time to file and serve a notice of appeal of a decision of the AAT which affirmed a decision of the Social Security Appeals Tribunal, which is now the AAT1. In Budd Cowdroy J modified these principles from Hunter Valley “when considering an extension of time in a human rights application” (at para [18]), which would include matters concerning social security entitlements. Cowdroy J said:

    1.    There is no onus of proof upon an applicant for extension of time though an application has to be made. Special circumstances need not be shown, but the court will not grant the application unless positively satisfied it is proper to do so. The “prescribed period” of 28 days is not to be ignored.

    2.    It is a prima facie rule that the proceedings commenced outside the prescribed period will not be entertained … It is not a pre-condition for success in an application for extension of time that an acceptable explanation for delay must be given. It is to be expected that such an explanation will normally be given as a relevant matter to be considered, even though there is no rule that such an explanation is an essential pre-condition.

    3.    Action taken by the applicant other than by making an application to the court is relevant in assessing the adequacy of the explanation for the delay. It is relevant to consider whether the applicant has rested on his rights and whether the respondent was entitled to regard the claim as being finalised.

    4.    Any prejudice to the respondent, including any prejudice in defending the proceeding occasioned by the delay, is a material factor militating against the grant of an extension.

    5.    The mere absence of prejudice is not enough to justify the grant of an extension.

    6.    The merits of the substantial application are properly to be taken into account in considering whether an extension of time should be granted.

    7.    Considerations of fairness as between the applicant and other persons otherwise in a like position are relevant to the manner of exercise of the court’s discretion.

    (citations omitted.)

19. Some flexibility is permitted in applying the principles. In Mulheron, President O’Connor J stated, at 314 [18], that “[t]he balancing of these factors will depend on the individual case”. Thus, the facts and circumstances of a specific case may warrant attention being given to one or more of the principles over others, some of which may be less relevant, or not relevant at all.

20. In Zizza v Federal Commissioner of Taxation (1999) 42 ATR 371, 376 [13], the Full Court of the Federal Court, when discussing the principles set out by Wilcox J in Hunter Valley, observed that: “[i]t would be an error to regard the summary as complete, or to treat each of the 6 principles it contains as necessarily applicable to any particular application for extension of time, especially an application under different legislation”.

21. Additionally, whether an applicant has an acceptable explanation for the delay will be relevant, but “… there is no rule that such an explanation is an essential pre-condition” to the success of the application for an extension of time (Comcare v A’Hearn (1993) 45 FCR 441, 444).

    CONSIDERATION

    Length of delay

22. I first turn to the consideration, and the first factor, the length of the delay. As noted above, the Secretary was three days late in lodging the application for review of the AAT1 Decision.

23. The Tribunal notes the following statement of French J (as he then was) in Seiler v Minister for Immigration, Local Government and Ethnic Affairs (1994) 48 FCR 83, 96 (Seiler). His Honour stated the following in the context of an extension of time application for review under the ADJRA:

    The exercise of the discretion to extend time … must be informed by the purposes served by the statutory limitation and associated dispensing power. The limitation is directed to achieving certainty and finality in administrative decision-making. In the ordinary course, where a reviewable decision is taken, and the review procedure is not instituted within the prescribed period, the decision-maker is entitled to proceed on the basis that the decision stands and will not be called into question by way of judicial review. Finality and certainty are not ends in themselves, but means to the end of efficient administration.

24. Although the delay is only three days, to grant an extension of time is nevertheless, as explained by French J in Seiler, contrary to efficient administration because Mr Dawson was entitled to proceed on the basis that the decision was final after the expiry of the 28 day period.

    Awareness of appeal rights

25. I now turn to awareness of appeal rights. The Secretary is often a party to proceedings in the Tribunal and is aware of the 28-day time-limit. Indeed, in my time at the Tribunal I have never presided over an application where the Secretary has missed the 28-day time-limit. Conversely, the Secretary regularly opposes extension of time applications in the Tribunal, even where there is a short delay. The Tribunal finds that the Secretary, who is always legally represented, was aware of the 28-day limit.

26. Therefore, this consideration weighs against the Tribunal exercising its discretion to grant the extension of time.

    Explanation for the delay

27. Next, I turn to the explanation for the delay. The Secretary’s explanation for the delay was “an administrative oversight” (Secretary’s Outline of Submissions, para [22]). At the interlocutory hearing, Mr Parker, who appeared for the Secretary, explained that there was a misunderstanding between the two teams in the Department who handle decisions that are set aside by the Tribunal. Broadly speaking, these are an advice team and a litigation team. It appears that there was a misunderstanding between the teams, with the litigation team mistakenly assuming that the advice team had filed the application for review and stay order application. The Tribunal acknowledges the Secretary’s submissions that the Secretary takes the oversight very seriously, and has addressed the oversight internally so that it does not happen again. The Tribunal further notes that the Secretary has an excellent track record of filing applications in the Tribunal within time.

28. Nevertheless, the Tribunal finds that this “administrative oversight” is not an acceptable explanation for the delay, and the inadequacy of the explanation is not mitigated by the Secretary addressing the reasons for the delay at the departmental level and their prior compliance with the 28-day time limit in other applications. 

29. Consequently, this consideration weighs against the Tribunal exercising its discretion to grant the extension of time.

    Prejudice to the Respondent or the general public

30. I now turn to prejudice to the Respondent or to the general public. The Secretary submitted that the short delay in filing does not pose any prejudice to Mr Dawson if the extension of time was granted and the matter was to proceed. The Tribunal disagrees for reasons that will now be explained.

31. The AAT1 Decision concerned Mr Dawson’s entitlement to a Jobseeker payment for the period 31 March 2020 to 22 February 2021. In the first paragraph of its reasons for decision, the AAT1 described how Mr Dawson had been a dentist who had conducted his own practice through a company, which he controlled. However, his practice ceased to operate after March 2020 because of shutdowns imposed in response to the coronavirus pandemic. The AAT1 found that the “estimate of income for the company after 31 March 2020 was nil” which “was obvious from the closure of its operations” (para [6]). The Tribunal notes that March 2020 was the start of restrictions, including lockdowns, in Western Australia.

32. Social Security legislation has a beneficial purpose. Payments such as the Jobseeker payment exist to help those in need. There is a prejudice to Mr Dawson in not being paid a Jobseeker allowance when he was not receiving any income. However, I note Mr Dawson’s explanation that he was able to live off some of his savings whilst not receiving the payment, despite his company being in several hundred thousand dollars debt. There is no evidence before the Tribunal that Mr Dawson was not entitled to the Jobseeker payment. Indeed, the above findings of the AAT1 suggest that he was not earning any income and that he was entitled to the payment.

33. Mr Dawson was evidently waiting for his payment after being successful in his AAT1 review. A Tribunal file note dated 11 August 2021 notes that Mr Dawson contacted the Tribunal Registry because Centrelink had told him that they were appealing the AAT1 Decision. The file note records that at the time the Tribunal officer spoke with Mr Dawson, “there was no record of a second application being registered in our system”. And I should note that Mr Dawson was told that Centrelink was appealing when he attended the Centrelink office to ask them what was happening. As has been noted earlier, the Secretary filed the current application, extension of time and stay application on 12 August 2021.

34. In summary, I find that as well as there being a slight prejudice to Mr Dawson, there is a prejudice to general members of the public if the social security payments of persons who are entitled to them, are delayed. This factor weighs slightly in favour of refusing to grant the extension of time.

    Merits of the substantive application

35. I now turn to the merits of the substantive application. In Kuljic v Secretary, Department of Social Security (1994) 33 ALD 121 von Doussa J relevantly stated, at 122, that:

    One of the principal considerations to be addressed in deciding whether it is fair and equitable in all the circumstances to extend time is whether the merits of the proposed appeal are such that if an extension of time is granted there is some prospect of success in the appeal. If a consideration of the merits indicates that there is no question to be agitated on the appeal, and there is no prospect of success, it would be futile to grant an extension of time and most unjust to the respondent to subject the respondent to the costs of defending a pointless appeal.

36. The Tribunal is not required to undertake a substantive review of the merits of the application but rather should assess whether the applicant has an arguable case (Brown at 131 [56]).

37. The Tribunal has previously declined to grant an extension of time to an applicant in cases where it considers the applicant would have little prospect of success at a substantive hearing of the matter (see, for example, Re Rollins and Principal Member of the Veterans’ Review Board (2011) 54 AAR 91 (Rollins) and Re Hamilton and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs (2011) 121 ALD 202).

1. I mentioned earlier that the AAT1 made a finding that from 31 March 2020 the Applicant’s income was nil. The Secretary submitted that “there was no evidence before the AAT1 to substantiate this finding” and that the Secretary wanted to ascertain if there was any further evidence of income Mr Dawson derived from his company from that time (Secretary’s Outline of Submissions, para [30]).

2. The basis on which the AAT1 found that Mr Dawson had no income is unclear, although even if there was no documentary evidence, I note that Mr Dawson gave evidence to the AAT1, and the AAT1 may have accepted the uncontested evidence he gave. Mr Dawson gave similar evidence to me today. Should the matter proceed to a substantive hearing, further evidence about the income and assets of Mr Dawson’s company may be produced which may or may not corroborate the Secretary’s position. It is speculative as to what any further financial information may show, and so the Tribunal cannot be reasonably satisfied that the Secretary has an arguable case on that particular point.

3. The Secretary’s arguments about the AAT1 Member’s interpretation of s 109 of the Social Security (Administration) Act 1999 (Cth) are more persuasive to the Tribunal. Instead of applying the literal interpretation of the provision, the Member appears to have implied an interpretation that the provision was not intended to apply to applications concerning a debt for a defined past period. Should the matter proceed to a Tier 2 review in the General Division of this Tribunal, the Tier 2 may have a different interpretation of this provision that is favourable to the Secretary. So I find that this factor weighs in favour of the Tribunal granting the extension of time.

   Alternative avenues of relief

4. I next turn to alternative avenues for relief. When considering an extension of time application, the Tribunal will often have regard to whether there are any alternative avenues of relief available to an applicant (see, for example, Rollins at 94–5 [18] and Re Kim and Minister for Immigration and Border Protection [2018] AATA 155 at [48]). Mr Parker agreed that there are no other avenues of relief available to the Secretary if I were to refuse to grant the extension of time. This weighs slightly in favour of granting the extension of time.

5. However, the Secretary has made submissions to the effect that he has an alternative avenue of relief, in that he will ignore any decision of this Tribunal and will apply the law as he sees fit.

6. Firstly, in para [31] of the Secretary’s Outline of Submissions, the Secretary stated:

   The Secretary further contends that, even if, the AAT1 decision was to be implemented, the Agency would still be required to ascertain from Mr Dawson what income (if any) he had derived from his company from 31 March 2020.

7. Later, under the heading, “Prejudice to the Respondent”, the Secretary submitted at paras [41]-[42]:

   The Secretary notes that if an extension to lodge the application is not granted, with the view that the AAT1 decision was to be implemented, the Agency would be obliged to apply the social security law, as it sees the law should be applied, to Mr Dawson’s situation.

   It is questionable whether the Agency would be able to implement the AAT1 decision, as there is no legal basis for payment of arrears. This is apart from the fact that evidence of what income Mr Dawson may have been earning from 31 March 2020 would still need to be established.  

8. Mr Parker made similar submissions to me during the interlocutory hearing and confirmed that was the Secretary’s position. As I indicated to Mr Parker during the interlocutory hearing, it is totally unacceptable, and contrary to the Secretary’s statutory role as an accountable public office holder, and as a model litigant, that the Secretary is proposing to ignore, by refusing to implement, a decision of this Tribunal that is averse to the Secretary.

9. I remind the Secretary that the Commonwealth’s obligations to act as a model litigant, which includes an obligation to act “honestly and fairly” extends to merits review proceedings (see Appendix B, item 2 and 3 of the Legal Services Directions 2017 (Cth) (Directions)).

10. The Commonwealth’s model litigant obligations also provide that “[a] Commonwealth agency should use its best endeavours to assist the tribunal to make its decision” (Appendix B, item 4, of the Directions). There is a similar duty expressed in s 33(1AA) of the AAT Act which requires the decision-maker to “use his or her best endeavours to assist the Tribunal” to make its decision in relation to the proceedings. 

11. It does not assist me, and it is not open to the Secretary, to make submissions that the Secretary will ignore a decision of this Tribunal that he does not agree with and to refuse to implement it. Such a course is at best, contrary to the administration of justice and unethical, and at worst, unlawful.

12. If I refuse this extension of time, the Secretary is legally bound to implement the AAT1 Decision, regardless of whether the Secretary agrees with it. Additionally, I observe that Mr Parker, as a senior lawyer for the Secretary with a duty to this Tribunal and to the administration of justice, had an ethical obligation to advise the Secretary that such a submission should not be made for the reasons that I have explained.

13. I find that the poor conduct by the Secretary weighs strongly against the Tribunal granting an extension of time.

14. Thus overall, I find that the “alternative avenues of relief” factor weighs against the Tribunal granting the extension of time.

    CONCLUSION

15. I turn to my concluding comments. In summary, the Tribunal is not satisfied that it is reasonable in all the circumstances to extend the time to allow the Applicant to seek review of the AAT1 Decision.

16. Although the length of the delay was three days, and despite there not being any other apparent avenues of relief available to the Secretary, and the Secretary having an arguable case should the matter proceed to a substantive hearing, more considerations weigh against, and to a greater degree, against the exercise of discretion to grant the extension of time. These include:

    (a)the Secretary’s unsatisfactory explanation for the delay;

    (b)that the Secretary was well aware of his appeal rights and the 28-day period in which to lodge an application for review;

    (c)the prejudice to Mr Dawson and other members of the general public of the Secretary failing to pay entitlements to persons in need of them in a timely manner, taking into account the beneficial nature of the legislation; and

    (d)the poor conduct of the Secretary in giving me, the Tribunal, what was effectively an ultimatum that if I were to hand down a decision averse to the Secretary, that the Secretary would ignore it. I remind the Secretary that he is not above the law. If the Secretary thought that the AAT1 Decision was legally incorrect, the appropriate course of action would have been to appeal the decision within time.

    DECISION

17. For the reasons outlined above, I refuse to grant the Secretary’s application to extend the time for the making of an application to the Tribunal for review of the AAT1 Decision dated 1 July 2021, because I am not satisfied that it is reasonable in all the circumstances to do so pursuant to s 29(7) of the Administrative Appeals Tribunal Act 1975 (Cth).

18. As I have refused to grant an extension of time, the AAT1 Decision is not reviewable. Accordingly, the Secretary’s application for a stay order is dismissed under s 42A(4) of the AAT Act.

19. Given the Secretary’s conduct in this matter and although I have delivered these reasons orally, I propose to publish these reasons in the coming days because there is a public interest in doing so, including the promotion of transparency and accountability in government decision making.

57.     I certify that the preceding 56 (fifty-six) paragraphs are a true copy of the reasons for the decision herein of Senior Member Dr M Evans-Bonner

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Associate

Dated: 28 September 2021

Date of hearing:	16 September 2021
Applicant:	Mr A Parker, Services Australia
Respondent:	Self-represented