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

[2021] AATA 2098

Dow and Secretary, Department of Social Services (Social services second review) [2021] AATA 2098 (28 June 2021)

Division:GENERAL DIVISION

File Number(s):2021/2984      

Re:Tammy Dow

APPLICANT

AndSecretary, Department of Social Services

RESPONDENT

DECISION

Tribunal:Member M Kennedy

Date:28 June 2021

Place:Adelaide

The application for an extension of time is refused.

.............................[Sgnd]..........................................

Member M Kennedy

CATCHWORDS

EXTENSION OF TIME APPLICATION – Applicant requested extension of time to seek review of a decision under s 29(7) Administrative Appeals Tribunal Act 1975 – extension of time opposed by Respondent – explanation for the delay not relevantly acceptable – application refused.

LEGISLATION

Administrative Appeals Tribunal Act 1975 (Cth) ss 29(2), 29(7)

CASES

Lucic v Nolan (1982) 45 ALR 411

Martinsen v Secretary, Department of Family & Community Services [2004] FCA 297

Gallo v Dawson (1990) 64 ALJR 459

Hunter Valley Developments P/L v Cohen (1984) 3 FCR 344

Ralkon v Aboriginal Development Commission(1982) 43 ALR 535

Douglas v Allen (1984) 1 FCR 287

REASONS FOR DECISION

Member M Kennedy

28 June 2021

1. On 11 May 2021, Ms Dow applied for review of a decision of the Social Services and Child Support Division of the Tribunal (AAT1) of 22 January 2019.

2. Ms Dow’s application falls well outside the prescribed timeframe of 28 days from the date she was given a document setting out the terms of the decision: subsection 29(2) of the Administrative Appeals Tribunal Act 1975 (the Act), which applies to applications for review from AAT1 to the General Division of the Tribunal (AAT2).

3. The Tribunal may extend the time for the making of the application if satisfied it is reasonable in all the circumstances to do so: subsection 29(7) of the Act.  Ms Dow has requested the Tribunal extend time.

4. The Secretary opposes the extension of time.

5. The established cases indicate that the starting position is the prima facie rule that proceedings commenced outside a statutory period will not be entertained (Lucic v Nolan (1982) 45 ALR 411 at 416). However, the primary concern “…is to do that which will enable justice to be done between the parties” (see Martinsen v Secretary, Department of Family & Community Services [2004] FCA 297 per Spender J). Spender J quoted McHugh J in Gallo v Dawson (1990) 64 ALJR 459 (Gallo) as follows:

   In order to determine whether the rules [imposing time limits] will work an injustice, it is necessary to have regard to the history of the proceedings, the conduct of the parties, the nature of the litigation, and the consequences for the parties of the grant or refusal of the application for extension of time ...

   When the application is for an extension of time …it is always necessary to consider the prospects of the applicant succeeding in the appeal …

6. In line with Wilcox J’s survey of cases in Hunter Valley Developments P/L v Cohen (1984) 3 FCR 344, the Tribunal would typically consider the matters identified in Gallo under the following heads:

   ·     the explanation for the delay;

   ·     the merits of the substantive application;

   ·     any prejudice to the other party including any prejudice in defending the proceedings occasioned by the delay; and

   ·     any public interest considerations that might flow from a successful application including “the unsettling of other people” (Ralkon v Aboriginal Development Commission(1982) 43 ALR 535 at 550) or of “established practices” (Douglas v Allen (1984) 1 FCR 287).

7. The decision of the AAT1 was to affirm Centrelink’s decision to raise and recover Family Tax Benefit debts of $4,072.91 and $3,374.98 in respect of the 2015/2016 and 2016/2017 financial years and a School Kids Bonus debt of $1,716 in respect of bonus test day on 1 January 2016 and 30 June 2016.  Implicit in that outcome was that the AAT1 declined to exercise statutory discretion to waive the debts in whole or in part, in the special circumstances of the case. In general terms, the debts arose because estimates of family income turned out to be imprecise.

8. In her application for review to the AAT2, Ms Dow states that she was not suggesting the decision was wrong, but raised her grievance with the result that she has now found herself responsible for the entire debt, in circumstances where she had subsequently separated from her husband.

9. In discussing in the matter further with Ms Dow, Ms Dow explained that recovery of part of the debt had been paused, presumably due to the Department’s response to the circumstances of the COVID-19 pandemic.  It was only after repayments towards the debts resumed recently that Ms Dow was reminded of the existence of the debts and the unfairness of the situation presented itself to her.  Ms Dow said that in her discussions with Centrelink about her concerns, she was told that her only option was to pursue review in the AAT2 and request an extension of time to do so.

10. I queried with Ms Dow whether she and her ex-husband had entered into a property settlement in relation to any debts of the marriage.  Ms Dow said there had been settlement of property matters, but it was not done through the Court and these debts had not been addressed.  Ms Dow’s wish is for the family assistance debts to either be attributed in part to her ex-husband or waived.

11. As to the explanation for the delay put forward by Ms Dow, I do not consider it to be relevantly an acceptable explanation for the delay, although do understand the way changed circumstances may have changed Ms Dow’s attitude to the fairness of repaying the debt.  I have noted that the reasons for the decision of the AAT1 were given orally, but the decision was also notified to Ms Dow in writing, and clearly recorded what decisions had been affirmed.  I accept the contention on behalf of the Secretary that Ms Dow can be seen to have rested on her rights in relation to seeking further review of that decision at the time.

12. As to the merits of the substantive application, there is no capacity within the social security law for the debts arising out of payments made to Ms Dow to be administratively assigned to another person.  To the extent that Ms Dow understandably views debts that arose in the course of her marriage to be debts that should be shared by the former parties to the marriage, this is not an outcome that can be delivered by the social security law, and is not an outcome that would be open to the AAT2 if the review were to proceed.  Ms Dow may wish to consider negotiating a further settlement of property matters with her ex-husband in this regard, or obtaining legal advice from a family lawyer.

13. I understand further that Ms Dow considers that the new circumstances of the separation may justify waiver of the debt in special circumstances.  I do not express a view as to whether Ms Dow’s circumstances in this regard or in combination with other new circumstances might justify waiving the debt in the special circumstances of the case.  Where Ms Dow’s contentions in this regard arise from circumstances that have changed since the AAT1 decision, particularly in light of the very substantial delay in applying to the AAT2 for review of that decision, it is open to Ms Dow to ask Centrelink to consider her changed circumstances and decide whether the debt should be waived in special circumstances.  As confirmed by the Respondent, the Secretary can consider whether special circumstances are present so as to waive a debt at any time, and it is not necessary for the matter to proceed to the AAT2 for changed circumstances to be considered for this purpose.

14. As I consider there is no relevantly satisfactory explanation for the delay, the proposition that the debt can be apportioned to Ms Dow’s ex-husband has no prospect of success (for the purposes of social security law), and it is unnecessary for the AAT2 matter to proceed in order for Ms Dow to have her changed circumstances considered for special circumstances waiver, I will refuse the application for an extension of time.

    
    .............................[Sgnd]..........................................

    Legal Administrative Assistant

    Dated:            28 June 2021  

Date of hearing:	28 June 2021
Applicant:	Tammy Dow
Solicitor for the Respondent:	Riley Calaby, Services Australia