Dorward and Secretary, Department of Employment

[2017] AATA 3040

Dorward and Secretary, Department of Employment [2017] AATA 3040 (6 December 2017)

Division:GENERAL DIVISION

File Number(s):  2017/4238

Re:Jannette Dorward

APPLICANT

AndSecretary, Dorward Department of Employment

RESPONDENT

DECISION

Tribunal:Dr Damien Cremean, Senior Member

Date:6 December 2017

Date of written reasons:        19 January 2018

Place:Melbourne

The Tribunal refuses the application under section 29(7) of the Administrative Appeals Tribunal Act 1975 for an extension of time to lodge this application for review of a decision.  

[sgd]........................................................................

Dr Damien Cremean, Senior Member            

PRACTICE AND PROCEDURE—Fair Entitlements Guarantee Act 2012 (Cth)—claim by spouse of director of claimant’s former employer—extension of time to lodge application—– no reasonable prospects of success in a substantive application for review– claimant ineligible for an advance under Act for unpaid employment entitlements — extension of time application refused.

Legislation

Administrative Appeals Tribunal Act 1975 (Cth) s 29
Corporations Act 2001 (Cth) s 556
Fair Entitlements Guarantee Act 2012 (Cth) s 14

Cases
Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344

REASONS FOR DECISION

Dr Damien Cremean, Senior Member

19 January 2018

1. On 14 March 2017 the Applicant, Ms Jannette Dorward, lodged a claim under s 14 of the Fair EntitlementsGuarantee Act 2012 (Cth) (FEG Act) for an advance for employment entitlements from her former employer, Dewgrove Pty Ltd (in liquidation) (Dewgrove).

2. Her claim was rejected by a decision made by a delegate of the Respondent on 31 March 2017 on the ground that she was not eligible for an advance, as she was at the relevant time a spouse of Mr Dorward.

3. On 4 April 2017 the Applicant applied for an internal review of this decision. On 9 June 2017 a delegate affirmed the decision.

4. On 18 July 2017 Ms Dorward made an application to the Tribunal for review of the internal review decision and to do so she required an extension of time.  She had been required to lodge her application for review by 7 July 2017 but failed to do so. She applied for time to be extended to 30 August 2017.

5. Section 29(2) of the Act sets out the prescribed time for making applications to the Tribunal. It provides:

   (2) Subject to subsection (3), the prescribed time for the purposes of paragraph (1) (d) is the period commencing on the day on which the decision is made and ending on the twenty-eighth day after:

   (a)if the decision sets out the findings on material questions of fact and the reasons for the decision--the day on which the document setting out the terms of the decision is given to the applicant; or…

6. However, the Tribunal has discretion to extend time under s 29(7) if it is reasonable in all the circumstances to do so.

7. In accordance with Wilcox J in Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344, in assessing whether it is reasonable in all the circumstances to extend time, I must have regard to the length of the delay as well as the merits of the claim.

   LENGTH OF DELAY

8. The Applicant claimed she was unable to lodge her application on time because of a minor health issue. In a Statutory Declaration made on 3 December 2017 she explained she had suffered an infected, impacted Wisdom Tooth. However, Ms Dorward did not provide an explanation for why the extension of time was required until 30 August 2017, despite her claim that she felt much better by 19 July 2017. Nonetheless, the Tribunal accepted that Ms Dorward’s explanation partially explained the delay.

   MERITS OF CLAIM

9. The extension of time sought by the Applicant was opposed by the Respondent primarily on the basis that if the Tribunal were to grant [the] extension the Applicant would have no reasonable prospects of success in a substantive application for review.

10. At the hearing of the extension of time application the Applicant gave informal telephone evidence. No evidence was given or called by the Respondent.

11. In accordance with s 11(1) of the FEG Act, a person is not eligible for an advance for the person's employment by an employer if they have a personal connection with that employer. Ms Dorward married Mr William Dorward on 26 November 1976. Mr Dorward was a director of Dewgrove at the relevant time. At the hearing Ms Dorward claimed that she and Mr Dorward had separated (but not divorced) and have little interaction with each other.

12. However, s 556 of the Corporations Act 2001 (Cth) is applicable to the winding up of Dewgrove. Section 556(2)(b) excludes Ms Dorward from being able to make a claim as she is defined as an excluded employee.

13. After the Respondent’s position was explained in detail to Ms Dorward , she decided not to pursue the matter any further. The Applicant expressed no objection to her application being refused and this was not opposed by the Respondent.

14. The application for an extension of time therefore was refused.

15. Accordingly, it was unnecessary for the Tribunal to rule on the correctness as such of the authorities cited by the Respondent.

16.     I certify that the preceding 15 (fifteen) paragraphs are a true copy of the reasons for the written reasons herein of Dr Damien Cremean, Senior Member

[sgd]......................................................

Associate

Dated   19 January 2018

Date of hearing	6 December 2018
Applicant	By telephone
Solicitors for the Respondent	Mr Lex Holcombe, HWL Ebsworth