Donald Cappai and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs
[2012] AATA 472
•25 July 2012
[2012] AATA 472
Division GENERAL ADMINISTRATIVE DIVISION File Number(s)
2012/1902
Re
Donald Cappai
APPLICANT
And
Secretary, Department of Families, Housing, Community Services and Indigenous Affairs
RESPONDENT
DECISION
Tribunal Senior Member J F Toohey
Date 25 July 2012 Place Sydney Mr Cappai’s application for an extension of time is refused.
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Senior Member J F Toohey
CATCHWORDS
PRACTICE AND PROCEDURE – application for extension of time – application lodged 19 months late – no acceptable explanation for the delay – no evidence to support applicant’s claim about the merits of the substantive application – applicant given additional time to provide supporting information – no information provided – Tribunal not satisfied it would be reasonable in all the circumstances to grant an extension – application for extension of time refused
LEGISLATION
Administrative Appeals Tribunal Act 1975 ss 29(1)(d), 29(2)(a) and 29(7)
CASES
Gabor v Secretary, Department of Education, Employment and Workplace Relations [2010] FCA 706
Hunter Valley Developments Pty Limited v Cohen [1984] FCA 176
Zizza v Commissioner of Taxation [1999] FCA 848
REASONS FOR DECISION
Senior Member J F Toohey
25 July 2012
BACKGROUND
On 10 May 2012, Mr Donald Cappai lodged an application with the Tribunal seeking review of a decision by the Social Security Appeals Tribunal (SSAT) that he should repay Centrelink a total of $33,459.71 on account of an overpayment. The overpayment was said to arise because Mr Cappai received Centrelink payments during a “preclusion period” when he was receiving compensation payments following an accident at work.
The SSAT made its decision on 30 August 2010. According to the written statement of reasons, it was sent to Mr Cappai on 9 September 2010.
As a general rule, an application for review must be lodged with the Tribunal within 28 days from the day on which the applicant received the decision: see ss 29(1)(d) and 29(2)(a) of the Administrative Appeals Tribunal Act 1975 (the AAT Act).
The Tribunal has discretion to extend the time for lodging an application if it is satisfied that it is reasonable in all the circumstances to do so: s 29(7) of the AAT Act.
Mr Cappai’s application for review was lodged with the Tribunal approximately 19 months after the prescribed time had elapsed. The respondent opposes any extension of time.
I have to decide whether Mr Cappai should be granted an extension of time in which to lodge his application.
PRINCIPLES
The principles which provide guidance in deciding whether to grant an extension of time were set out by Wilcox J in Hunter Valley Developments Pty Limited v Cohen [1984] FCA 176. They were summarised by Bromberg J in Gabor v Secretary, Department of Education, Employment and Workplace Relations [2010] FCA 706 at [7] as follows:
(a)whilst special circumstances need not be shown, applications for an extension of time are not to be granted unless the Court is positively satisfied that it is proper to do so; the legislated time limits are not to be ignored. The applicant must show an “acceptable explanation for the delay”, and it must be “fair and equitable in the circumstances” to extend time;
(b)action taken by the applicant, other than by way of making an application for review, is relevant to the consideration of the question whether an acceptable explanation for the delay has been furnished; a distinction is to be drawn between a person who has made it known that the finality of the decision is contested and a person who has allowed other parties to believe that the matter was finally concluded. The reason for this distinction includes the need for finality of disputes.
(c)any prejudice to the respondent in defending the proceedings that is caused by the delay is a material factor militating against the grant of an extension;
(d)however, the mere absence of prejudice is not enough to justify the grant of an extension;
(e)the merits of the substantial application are to be taken into account in considering whether an extension of time should be granted; and
(f)considerations of fairness as between the applicants and other persons otherwise in a like position are relevant to the manner of exercise of the court’s discretion.
These principles are not to be applied mechanically. All of the circumstances of the case must be considered, the overriding consideration being whether it is reasonable in all the circumstances to grant the extension.
PARTIES’ CONTENTIONS
Mr Cappai gave evidence before the Tribunal by telephone. He maintains he should have been required to repay approximately $30,000 rather than the $36,330 claimed by Centrelink. The SSAT varied that decision in Mr Cappai’s favour by reducing the overpayment by approximately $3,000, but he says Centrelink has miscalculated and recovered too much money and he should be repaid, approximately, a further $3,000.
Mr Cappai claims he had been trying to contact the Tribunal for some time in an attempt to have the decision of the SSAT reviewed. He insists that he has been “fighting” the SSAT decision since he received it and that he has paperwork that proves this claim. He also says he received a letter from this Tribunal about his inquiries some time ago and that the Tribunal should be able to locate a copy. The Tribunal has no record of such correspondence or of any contact from Mr Cappai inquiring about lodging an application for review.
Mr Cappai also said his attempts to seek review have been hindered by his ill-health and he has been “in and out of hospital” for much of the time that he has been trying to contact the Tribunal.
It quickly became apparent that Mr Cappai was quite confused as to whether he had contacted Centrelink, the SSAT or this Tribunal. As it was clear that he found the process of applying for review confusing, the Tribunal adjourned in order to give him to time to locate any relevant correspondence and to provide any medical evidence that might support his claim about his ill-health. He has not provided any further information and his only contact with the Tribunal has been a telephone call following the hearing in which he restated his position that the Tribunal should be able to locate the relevant correspondence.
The respondent opposes an extension of time on the grounds that Mr Cappai has not provided an acceptable explanation for the delay in lodging his application, that he has not provided any evidence to support his claim that an incorrect amount has been recovered from him, and that it would be unfair to others to allow him an extension of time. The respondent does not suggest that it would be prejudiced by an extension of time.
CONSIDERATION
Taking into account all of the circumstances, I do not think it reasonable to grant Mr Cappai an extension of time. The starting point is that an application must be lodged within 28 days after receipt of the decision complained of. Finality of decision-making is an important principle in administrative decision-making.
Mr Cappai’s application was lodged approximately 19 months out of time and he has provided little, if any, explanation for the delay. He has been given an opportunity to support his claims that he has been trying to pursue his application for review but has not done so. Importantly, he has not provided any evidence to support his claim that the overpayment has been incorrectly calculated.
The principles in Hunter and Gabor (above) are not to be followed slavishly; no one factor is determinative and all may be relevant: Zizza v Commissioner of Taxation [1999] FCA 848. However, there must be sufficient grounds on which to conclude that it is reasonable, in all the circumstances, to grant an extension. I am not satisfied, in this case, that there is any ground for granting the extension.
Mr Cappai’s application for an extension of time is refused. This means that the Tribunal will not consider his application for review further.
I certify that the preceding 17 (seventeen) paragraphs are a true copy of the reasons for the decision herein of Senior Member J F Toohey. .......[sgd].................................................................
Associate
Dated: 25 July 2012
Date(s) of hearing 4 July 2012 Applicant In person Solicitors for the Respondent Ms J Maclean, DHS Program Litigation & Review Branch
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