Dimos v DFCS
[2000] FMCA 14
•18 September 2000
[2000] FMCA 14
IN THE FEDERAL MAGISTRATES COURT
OF AUSTRALIA
Registry: Melbourne
Applicant: John Dimos
Respondent: Secretary, Department of Family and Community Services
File No:MZ92/2000
Hearing Date: 18 September 2000
Before:McInnis FM
Primary Legislation: Administrative Appeals Tribunal Act 1975 ss 39 and 44(1)(2A)
Application: Application for extension of time to file and serve Notice of Appeal within the time specified in s 44(2A) of the Administrative Appeals Tribunal Act 1975
REPRESENTATION
Applicant::Mr Dimos in person
Respondent: Mr Frazzetto of Counsel instructed by Australian Government Solicitor
ORDERS:
The application for extension of time is refused.
The Applicant pay the Respondent’s costs.
IN THE FEDERAL MAGISTRATES COURT OF AUSTRALIA
MELBOURNE REGISTRY
No MZ92 of 2000
BETWEEN:
JOHN DIMOS
Applicant
And
SECRETARY, DEPARTMENT OF FAMILY AND COMMUNITY SERVICES
Respondent
REASONS FOR JUDGMENT
Ex Tempore
This is an application for extension of time in which to bring an appeal against a decision of the Administrative Appeals Tribunal. In particular, a decision of Senior Member Gibbs, delivered on 5 June 2000. The decision of the Tribunal dealt with an application by Mr Dimos for review of a decision of the Social Security Appeals Tribunal dated 1 February 2000 to affirm the decision of a delegate of the Respondent in those proceedings to reject the claim for care of payment on the grounds that a preclusion period applied from 24 October 1998 to 22 February 2000.
The present application before this Court is an application by notice of appeal filed 4 August 2000. In that notice of appeal, under the heading Questions of Law, the Applicant states:
“The decision was wrong as I must care for my wife, and because of my poor health cannot work and I don’t have a source of income and cannot live on my wife’s pension.”
In the same document under the heading ‘Grounds’ the Applicant states:
“I would like the AAT to review the decision again, but please have an interpreter this time.”
In support of that application the Applicant in this appeal provided an affidavit sworn 4 August 2000. That affidavit states:
“My payout from WorkCover and GIO was 50 per cent of further wages till the year 2002. I received a group certificate for the financial year ending 99. The financial year 99 to 2000, GIO will not give me a certificate as they claim my case is closed. As referred by Mr Roverstion, I am not receiving any benefits from Centrelink except for approximately $79 a fortnight for carer’s allowance. If my payment was considered as wages, why do I not get the group certificate and how can I survive? I have found a job for one hour a day but must take my wife with me and I must stop it because my back has become very painful again.”
The notice of appeal in this matter was filed on 4 August 2000 and was an appeal against a decision dated 5 June 2000. Section 44 of the Administrative Appeals Tribunal Act provides in subsection (2A) the following:
“An appeal by a person under subsection (1) or (2) shall be instituted: (a) not later than the 28th day after the day on which a document setting out the terms of the decision of the Tribunal is furnished to the person, or within which such further time as the Federal Court of Australia, whether before or after the expiration of that day, allows.”
Mr Dimos has made application to this court for extension of time to file or serve a notice of appeal from the Administrative Appeals Tribunal. I should add that section 44 which I have read out has since been amended to include the Federal Magistrates Court of Australia. The principles in relation to an extension of time have otherwise remained the same.
In his application for extension of time filed 4 August 2000, Mr Dimos seeks an extension of time in which to appeal from the decision of Mr Gibbs, Senior Member, on 5 June 2000. In support of that application for extension of time, Mr Dimos has file an affidavit sworn 4 August 2000 which provides as follows:
“My wife who acted in interpreting for me is and was very ill, and my English is not good. My financial position is very bad. I did not have any knowledge or legal support to know that I can appeal this decision. My health is so bad that many doctors have stated that I cannot return to work again.”
Mr Frazzetto, representing the Respondent, has opposed the application for extension of time. Whilst he does not make a specific concession, I take it that the Respondent’s primary issue in this case is that the application by way of appeal to this court from the Administrative Appeals Tribunal lacks merit. In a matter of this kind, an appeal under section 44 of the Administrative Appeals Tribunal Act provides that :
“A party to a proceeding before the Tribunal may appeal to the Federal Court of Australia on a question of law from any decision of the Tribunal in that proceeding.”
Again, the ground of appeal to this court has not altered. Hence, what needs to be demonstrated is that there has been an error of law. Mr Frazzetto submits that there is no error of law in this matter, that what has been put by the Applicant is simply an assertion that there was an error of fact or that he wishes to have the matter simply reconsidered by a Tribunal.
10. In this matter it is noted that there have in fact been what appear to be four hearings, and although each and every one of those hearings is not necessarily relevant for the purpose of this application, it is noteworthy that each of those hearings by four differently constituted Tribunals, two being the Social Security Appeals Tribunal and two other being the Administrative Appeals Tribunal, that the issue was essentially the same. The issue was whether the application by Mr Dimos to review a decision should succeed in circumstances where decisions have been made by a delegate to reject a claim for carer payment. It is recognised that the decisions were made by the Administrative Appeals Tribunal and by the Social Security Appeals Tribunal in relation to two separate decisions and two separate claims. Nevertheless, on the material before me it is evident that the core issues in those applications remain similar, if not identical.
11. In considering an application for extension of time I have been referred to the often cited authority of Hunter Valley Developments Pty. Ltd. v Cohen (1984) 3 FCR 344. I have specifically been referred to the judgment of that court which appears at pages 348 to page 350. Essentially I have been taken to the question which is relevant in the present application, that is the merits of the substantial application are properly to be taken into account in considering whether an extension of time should be granted (see page 349).
12. I am also conscious of the fact that there are authorities which suggest that an extension of time should not be granted under section 44 where the appeal would be futile (see Saddi v Secretary, Department of Social Security, (Fed C of A, Tamberlin J, NG 330 of 1995, 6 November, 1995, unreported). There are other cases to the same effect. Similarly, if there has been a failure to show any prospect of the appeal succeeding, then that also is a matter which I can take into account. Referring to that authority and that principle does no more than to recite what has already been referred to in the Hunter Valley decision, that is I am entitled to look at the merits of the substantial application.
13. During the course of this hearing I specifically asked Mr Dimos to consider whether there were any other matters he wished to raise in relation to the merits of his application. I an concerned in a matter of this kind about a number of issues which justify extreme care and caution on my part before disallowing any application for extension of time. I am particularly concerned that at the hearing before the Administrative Appeals Tribunal no interpreter was present, despite the fact that it appears from the material, at least from what Mr Dimos has said, that at three previous Tribunal hearings, one before the Administrative Appeals Tribunal and two before the Social Security Appeals Tribunal, he had the advantage of an interpreter.
14. I have had the chance, however, to hear Mr Dimos before this court assisted by an interpreter and note what he says, that he has been in Australia for 35 years and was able to understand what I had said to him. I also take into account that the issues before each Tribunal were, as I have indicated, similar if not identical, and that the two affidavits without the aid of an interpreter have been filed and served in the application before this court. I am further concerned that the Applicant is unrepresented and does not appear to have had the advantage in the past of legal assistance.
15. I take both those matters into account. But on balance, it is the court’s view that in this matter the substantive issue is whether the application has merit. To have merit an application of this kind must, in my view, demonstrate on the face it an error of law. The failure to provide an interpreter, in my view, does not constitute an error of law unless it could be demonstrated that there has been a denial of procedural fairness by that failure to provide an interpreter and consequently a failure pursuant to section 39 of the Administrative Appeals Tribunal Act to afford an Applicant or indeed any party a reasonable opportunity to present his or her case.
16. In my view, having regard to the substantive similarity of the issues and what might be described as a fairly narrow compass of the issues to be addressed and given that both the Applicant and his wife had given evidence in the previous proceeding before the Administrative Appeals Tribunal I am satisfied that on the material before me there has not been any error of law which may be constituted by a breach of procedural fairness and/or breach of section 39 of the Administrative Appeals Tribunal Act 1975.
17. Accordingly, I am left to consider the issue of whether there is any merit otherwise on the material in relation to this application and this appeal which must, as I have indicated, demonstrate an error of law. It is not enough for a party to simply assert that the Tribunal made wrong findings of fact and to therefore seek a re-hearing. There must be on the material a demonstrated error of law beyond that to which I have already referred.
18. On the material before me I cannot find a demonstrated error of law. Accordingly, the court finds that in this matter there is no merit in this application. I further find that the Applicant failed to show that there was any prospect of the appeal succeeding. To the extent that I need to make a finding, I would also find an extension of time should not be granted in circumstances of this kind where an appeal would be futile. The application for extension of time is refused.
ORDER
The application for extension of time is refused.
The Applicant pay the Respondent’s costs.
I CERTIFY THAT THIS AND THE PRECEDING 7 PAGES CONSTITUTE A TRUE COPY OF THE REASONS FOR JUDGMENT OF McINNIS FM
DATED 2ND OCTOBER 2000
ANTONIJA CURIC, ASSOCIATE
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