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

[2018] AATA 1514

Durbridge and Secretary, Department of Social Services (Social services second review) [2018] AATA 1514 (8 June 2018)

Division:GENERAL DIVISION

File Number:           2018/1565

Re:Gemma Lee Durbridge

APPLICANT

AndSecretary, Department of Social Services

RESPONDENT

DECISION

Tribunal:Member S Burford

Date:8 June 2018

Place:Perth

The Tribunal refuses to grant the Applicant’s application for an extension of time, pursuant to s 29 (7) of the Administrative Appeals Tribunal Act 1975 (Cth), to lodge an application for review of the AAT1 decision of 17 January 2018.

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

Member S Burford

CATCHWORDS

Family Tax Benefit – application for extension of time – factors that are relevant when considering an application for extension of time – length of delay – explanation for the delay – merits of the substantive application for review – application refused

LEGISLATION

Administrative Appeals Tribunal Act 1975 (Cth) – s 29(1)(d), s 29(2), s 29(2)(a), s 29(7)
Administrative Decisions (Judicial Review) Act 1977 (Cth)

A New Tax System (Family Assistance)(Administration) Act 1999 (Cth) – s 10(2)

CASES

Brown v Federal Commissioner of Taxation [1999] FCA 563
Comcare v A’Hearn (1993) 45 FCR 441
Dix v Crime Compensation Tribunal (1993) 1 VR 297
Doyle v Chief of Staff (1982) 42 ALR 283
Hunter Valley Developments Pty Ltd v Cohen, Minister for Home Affairs and Environment (1984) 3 FCR 344
Kim and Minister for Immigration and Border Protection [2018] AATA 155
Minister for Health and Aged Care v Pharmacia and Upjohn Pty Ltd (2001) 65 ALD 76
Phillips v Australian Girls’ Choir Pty Ltd [2001] FMCA 109
Ralkon v Aboriginal Development Commission (1982) 43 ALR 535
Re Mulheron and Australian Telecommunications Corporation (1991) 23 ALD 309
Re Veronica Lesley Johnson and Commonwealth of Australia: Commission of the Safety, Rehabilitation and Compensation of Commonwealth Employees [1990] AATA 1
Rollins and Principal Member of the Veterans’ Review Board and Repatriation Commission [2011] AATA 113
Wedesweiller v Cole (1983) 47 ALR 528
Wu v University of Western Sydney [2011] FCA 1143

Zizza v Federal Commissioner of Taxation [1999] FCA 848

REASONS FOR DECISION

Member S Burford

8 June 2018

THE APPLICATION

1. This is an application for an extension of time to make an application for review of a decision made by the Administrative Appeals Tribunal (Social Services & Child Support Division) (the AAT1 decision) dated 17 January 2018, affirming the decision to reject the Applicant’s claim for a lump sum payment of Family Tax Benefit (FTB) for the 2014/15 financial year.

   THE MATERIAL

2. The following material was before the Tribunal:

   ·the Applicant’s application for review of decision and extension of time dated 27 March 2018 (the Application for Extension of Time) (Exhibit A1);

   ·an email containing the Applicant’s written submissions dated 1 May 2018.  The email also forwarded an email from the Applicant to her tax agent dated 29 June 2016 (Exhibit A2); and

   ·the Respondent’s written submissions on the application for an extension of time received by the Tribunal on 9 April 2018.  This exhibit includes the Respondent’s list of authorities and Annexures A-C (which were received by the Tribunal on 26 April 2018) (Exhibit R1).

3. The application for the extension of time was heard in Perth on 3 May 2018. The Applicant was present at the hearing and represented herself. The Respondent was represented by Mr James Pratt and Mr Defranciscis, who attended the hearing by telephone.

4. Oral submissions were made by both parties. The Applicant also answered questions put to her by the Tribunal to clarify her position on submissions made by the Respondent and to confirm her understanding of the Respondent’s submissions.

5. The Tribunal has reviewed all of the material before it. The Tribunal is satisfied that all relevant evidence was before it and that both parties were provided an opportunity to address the evidence and the matters in issue, either orally or in writing.

   BACKGROUND

6. On 1 February 2017, the Applicant lodged a claim for FTB lump sum for the 2014/15 financial year. On 1 February 2017, the Department of Human Services  (the Department) rejected the Applicant’s claim for FTB lump sum payment on the basis that:[1]

   (a)the claim was lodged outside the time prescribed by section 10(2) of the A New Tax System (Family Assistance) (Administration) Act 1999 (Cth) (the Family Assistance Act), being 30 June 2016; and

   (b)special circumstances which prevented the Applicant from lodging the application were not present.

   [1] The Tribunal was not provided with a copy of the decision of the 1 February 2017 in relation to this application for an extension of time and relies on the decision of the Authorised Review Officer dated 23 March 2017 and the decision of the AAT1 dated 17 January 2018.

7. On 23 March 2017, the decision was reviewed and affirmed by an Authorised Review Officer of the Department (the ARO Decision).

8. On 17 January 2018, the ARO decision was reviewed and affirmed by the AAT1 in the AAT1 decision.

   RELEVANT LEGAL PRINCIPLES

9. An application for review of a decision must generally be lodged with the Tribunal within 28 days of the applicant receiving notice of the decision: s 29(1)(d) and s 29(2) of the Administrative Appeals Tribunal Act 1975 (Cth) (AAT Act). However, s 29(7) of the AAT Act provides that:

   The Tribunal may, upon application in writing by a person, extend the time for making by that person of an application to the Tribunal for a review of the decision… if the Tribunal is satisfied that it is reasonable in all the circumstances to do so.

10. While the AAT Act does not set out factors to be considered by the Tribunal in determining what is “reasonable in all the circumstances”, the relevant principles have been judicially considered.

11. In Hunter Valley Developments Pty Ltd v Cohen, Minister for Home Affairs and Environment (1984) 3 FCR 344 (Hunter Valley Developments), the Federal Court set out a series of principles that might be relevant under similar provisions under the Administrative Decisions (Judicial Review) Act 1977 (Cth) (ADJRA) (at 348-50) when considering an application for an extension of time. These principles have been applied and expressed by the courts with some variations and modifications, however the central principles are consistent in the case law and provide useful guidance: see for example Brown v Federal Commissioner of Taxation [1999] FCA 563 (Brown); Re Mulheron and Australian Telecommunications Corporation (1991) 23 ALD 309; Wu v University of Western Sydney [2011] FCA 1143 and the cases cited below.

12. In Hunter Valley Developments, Wilcox J pointed out that “…the ‘prescribed period’ of twenty-eight days is not to be ignored… Indeed, it is the prima facie rule that proceedings commenced outside the period will not be entertained…”. In considering whether to exercise discretion to depart from this prima facie rule the authorities make it clear that a range of considerations must be taken into account. As Wilcox J noted in Hunter Valley Developments, the principles are “…to guide, not in any exhaustive manner, the exercise of the Court’s discretion” (at 348).

13. In Phillips v Australian Girls’ Choir Pty Ltd [2001] FMCA 109, McInnis FM provided a slightly amended version of the principles outlined by Wilcox J to take into account modifications made by other courts in considering the Hunter ValleyDevelopments principles as follows (at [10]):

    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 (Ralkon v Aboriginal Development Commission (1982) 43 ALR 535 at 550).

    2.It is a prima facie rule that the proceedings commenced outside the prescribed period will not be entertained (Lucic v Nolan (1982) 45 ALR 411 at 416). 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 (Comcare v A'Hearn (1993) 45 FCR 441 and Dix v Client [sic] Compensation Tribunal (1993) 1 VR 297 at 302).

    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. (See Doyle v Chief of Staff (1982) 42 ALR 283 at 287).

    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. (See Doyle at p 287).

    5.The mere absence of prejudice is not enough to justify the grant of an extension. (See Lucic at p 416).

    6.The merits of the substantial application are properly to be taken into account in considering whether an extension of time should be granted. (See Lucic at p 417)

    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 (Wedesweiller v Cole (1983) 47 ALR 528).

14. While the principles outlined above provide general guidance each case must be considered according to its own circumstances. In Brown, Hill J stated, in the taxation context (although this is still applicable to the general exercise of the Tribunal’s discretion), that the Tribunal should be “…guided by what the justice of the case requires” (at [59]). In determining the question of an extension of time, the Tribunal should weigh together all relevant factors: Zizza v Federal Commissioner of Taxation [1999] FCA 848.

    THE ISSUE

15. The issue before the Tribunal is whether the Applicant should be given leave for an extension of time pursuant to s 29(7) of the AAT Act to make her application to the Tribunal for a substantive review of the AAT1 decision made on 17 January 2018 (AAT Second Review).

16. A copy of the decision was emailed to the Applicant on 17 January 2018 and the Applicant’s application for extension of time stated that she received the decision on that date.

17. The time for making the application was 28 days from “… the day on which a document setting out the terms of the decision is given to the applicant” (s 29(2)(a) of the AAT Act).

18. The Applicant lodged her application for AAT Second Review with the Tribunal on

    
    

    27 March 2018.

    CONSIDERATION

19. In determining whether an extension of time should be granted in this case, the Tribunal finds that, in light of the relevant jurisprudence and using the principles articulated in the case law as a guide, the relevant factors the Tribunal should consider in exercising its discretion to depart from the prima facie rule that proceedings commenced outside the prescribed period will not be entertained, include:

    ·the length of delay;

    ·whether the Applicant was aware of her appeal rights and whether she rested on those rights;

    ·whether there is any explanation for the delay and whether that explanation is satisfactory;

    ·any prejudice to the Respondent or the general public arising from an extension of time;

    ·the merits of the substantive application for review; and

    ·any alternative avenues of relief for the Applicant should the extension of time not be granted.

    Length of delay

20. The Tribunal finds that the Applicant received the decision on 17 January 2018. The Applicant was accordingly required to file an application for review by 14 February 2018. The Applicant did not file an application for an extension of time until 27 March 2018, 41 days late.

21. In relation to the issue of the length of the delay in making the application the Respondent submitted that the filing of the application 41 days out of time “… cannot simply be ignored. It is not an insignificant amount of time, and this should be a relevant consideration when determining whether to grant an extension...” (Exhibit R1, the Respondent’s Submissions, paragraph 25).

22. While the Tribunal does not regard a delay of 41 days as extensive, given a 28 day time limit the length of the delay was not insignificant. The Tribunal considers the length of delay is a consideration which weighs against an extension of time being granted.

    Awareness of appeal rights and explanation for the delay

23. The Applicant’s Application for Extension of Time indicated that her reason for not applying within the time limit was that:

    I was awaiting a response from the Commonwealth Ombudsman and Minister… Today I was called an [sic] not happy with outcome.

24. The Applicant confirmed during the oral hearing that she had been pursuing these other avenues and had filed the application for review of the AAT1 decision when these proved unsatisfactory.

25. However, at the hearing when asked if she had read the letter from the AAT notifying her of the AAT1 decision and the time limit she said she did not read the cover letter and was not aware of the time limit for filing an application for review.

26. The Respondent submits that (Exhibit R1, Respondent’s Submissions, paragraphs 28 and 29):

    … the Applicant’s explanation does not adequately explain the delay of 40 days, particularly in circumstances where the Applicant was expressly notified of her review rights, and where the Applicant rested on her rights and whether [sic] the respondent was entitled to regard the claim as being finalised...

    The cover letter from the AAT1 clearly explains that a person has 28 days in which to make an application to the AAT for [sic] second review of the decision.  The letter also provides an email address and telephone number for a person to obtain further information. It would have been open to the Applicant to telephone the AAT on the number provided in the cover letter to seek further information about the necessity to lodge an application on time.

27. The Tribunal finds that the Applicant disregarded advice contained in the letter notifying her of the AAT1 decision and outlining the avenue for review of that decision, including the time limit for seeking a review.  The Tribunal does not regard the fact that the Applicant failed to read the information provided to her in relation to the time frame for lodging an application for review to be an adequate explanation for the delay.

28. Further, the Tribunal finds that the Applicant’s decision not to lodge an application for review until she received an unfavourable response from the Commonwealth Ombudsman and the Minister[2] regarding her complaints concerning the Department’s handling of her matter did not adequately explain the delay.  

    [2] The Applicant did not specify to which Minister she had made her complaint. The Tribunal assumes that the reference is to the Minister of Human Services. The Tribunal finds that, which Minister, is not relevant to the application for an extension of time.

29. The lack of an adequate explanation for the lengthy delay weighs against the exercise of the discretion to allow an extension of time.

    Prejudice to the Respondent or the General Public

30. Other than having to respond to the application for review, there is no evidence before the Tribunal that the extension of time would prejudice the Respondent. The Tribunal finds that the Respondent would not suffer any relevant prejudice if an extension of time were granted.

31. Consideration must still be given to whether an extension of time in the circumstances would be of prejudice to the wider public by disturbing the established practices of the Tribunal and to the accepted public interest in the finality of decision-making. (Re Veronica Lesley Johnson and Commonwealth of Australia: Commission of the Safety, Rehabilitation and Compensation of Commonwealth Employees [1990] AATA 1 at [19])

32. The 28 day time frame set out in s 29(2) of the AAT Act is in place to ensure the Tribunal is accessible, fair and quick in its decision-making. The length of delay in this case is not inconsiderable having regard to the 28 day time frame. Allowing delays of this kind creates a burden on the system and those seeking to access it which would result in a wider prejudice to the community. Further to allow applicants extensions of time in circumstances where their delay is an attempt to advantage their application would undermine the operation of the review system and the confidence of the public in the integrity of that system.

    Prospects of success of the substantive application

33. The prospects of success of the substantive application are relevant in exercising the discretion to allow an extension of time. The Tribunal should not however undertake a substantive review of the merits of the application (Minister for Health and Aged Care v Pharmacia and Upjohn Pty Ltd (2001) 65 ALD 76). Rather the Tribunal should assess whether the Applicant has an arguable case (Brown v Federal Commissioner of Taxation [1999] FCA 563).

34. The Tribunal has previously declined to grant an extension of time to applicants in cases where it considers the application would have little prospect of success at a substantive hearing of the matter.

35. The issues to be decided in the substantive review are:

    (a)whether the Applicant lodged a claim for FTB lump sum payment for the 2014/15 financial year on or before 30 June 2016; and

    (b)if not, whether special circumstances exist such that the Applicant was prevented by those special circumstances from lodging a claim for FTB lump sum payment for the 2014/15 financial year on or before 30 June 2016.

    (Exhibit R1, Respondent’s submission)

36. It is not in dispute that the Applicant lodged her claim for FTB lump sum payment for the 2014/15 financial year on 1 February 2017 which was outside the time prescribed in the Family Assistance Act.

37. The issue which then arises is whether there are any special circumstances which prevented the Applicant from lodging the claim within the prescribed period.

38. The Applicant’s substantive application for review states that:

    I think the [AAT1 decision] is wrong. I believe I have further information and evidence to take into account.

39. In her written submissions the Applicant indicated that:

    It appears that the basis of the original AAT decision was based on whether or not the conversation on 15/6/16 between myself and the Department could be proved to include that the operator told me that I did not have to do anything, and that my 2014/15 FTB would be automatically reconciled and applied as it had been every year since 2010. To prove this I need to find further emails between myself and my Tax Agent. I also lodged a complaint with the Commonwealth Ombudsman. I believe I can now prove this.

40. During the hearing, in answer to questions from the Tribunal, the Applicant indicated that her “whole case” was that she had received incorrect information from the Department during a conversation on 15 June 2016 which had led to her failing to file the relevant tax returns.

41. In her submissions she forwarded an email to her tax accountant dated 29 June 2016. The Applicant asserted this was proof of her account of the provision of incorrect advice from the Department.  However, the Tribunal notes that the email contained instructions to the tax agent to file her 2015 return by 30 June 2016.  The email makes no reference to advice from the Department regarding the treatment of the 2014/15 year return and any claim for lump sum FTB payments. On this basis it is unclear how the email assists the Applicant’s argument on the substantive review.

42. The Applicant also pointed to the fact that a moving truck containing her items had been stolen in September 2013 and she had lost financial information, leases, passports and birth certificates as a result.  These had taken time to replace. She also indicated that she had undergone a difficult relationship breakdown with her ex-husband that had caused her financial distress.

1. In relation to the issue of the Applicant’s prospects of success on the substantive application, the Respondent submits that the appeal “does not disclose a strong case” (Exhibit R1, paragraph 34).

2. The Respondent submits that relevant case law establishes that “special circumstances” requires circumstances which distinguish the case under consideration from the usual case, taking the case “out of the ordinary” (Exhibit R1, paragraph 43).

3. The Respondent submits that (Exhibit R1, paragraphs 52 and 53):

   Although the Applicant argues that she was provided with defective advice from a Departmental officer, the Applicant has not provided any information, nor is there any information available to the Department, that supports this position, or why that circumstance prevented her from lodging a claim before 30 June 2016.

   The Secretary submits that there is no obligation on the Department to advise a person of any entitlements that they may be eligible for… As such, the Department contend that no weight should be given to this as a special circumstances consideration. (Citations omitted, original emphasis)

4. The Respondent further submits that (Exhibit R1, paragraphs 55 and 57):

   The secretary submits that the Applicant has not provided any information to support the position of the financial and emotional hardship suffered by being rejected for the FTB lump sum payment is sufficient to take this particular matter outside the ordinary. In any event, that circumstance did not occur until after her claim was made and rejected and did [sic] prevent her from lodging her claim within the required time frame, that is, by 30 June 2016. The Secretary submits that no weight should be given to this consideration.

   In relation to the destruction of taxation records during an unamicable separation, the Applicant has failed to:

   (a)properly particularise the circumstances such that they would give rise to ‘special circumstances’; and

   (b)in the event that the circumstances amount to ‘special circumstances’, how they prevent the Applicant from making an Application.

5. Taking into account the material before it, the Tribunal finds that the Applicant has poor prospects of success in satisfying the requirement that special circumstances existed which prevented her from lodging her returns within the prescribed period. 

6. The loss of the documents complained of occurred before the relevant financial year and while circumstances of the breakdown of the Applicant’s relationship may have been personally stressful it does not qualify as “special circumstances” for the purposes of the Family Assistance Act.

7. Further, while the Applicant is aggrieved by what she claims was incorrect information provided by the Department regarding the lodgement of her 2014/15 returns, the Tribunal finds that on the material currently available it is likely that there would be insufficient evidence to establish the nature and circumstances of this advice and thus to determine whether it could be characterised as preventing the Applicant from filing her returns within the required timeframe.  Even if she were able to establish the provision of incorrect advice it seems unlikely that this would have prevented her from lodging her returns, either by her own volition or by seeking external advice. 

8. On the basis of the material before it, the Tribunal finds that the Applicant has poor prospects of success in her substantive application for review. This is a consideration which weighs against an extension of time being granted.

   Alternative avenues of relief

9. Taking into account all the circumstances of an application for an extension of time, it may be relevant to consider whether there are any alternative avenues of relief available to the Applicant (see for example Rollins and Principal Member of the Veterans’ Review Board and Repatriation Commission [2011] AATA 113 at 18 and Kim and Minister for Immigration and Border Protection [2018] AATA 155 at 48).

10. The Respondent noted that if the Applicant has a complaint regarding defective advice from a Departmental officer the Applicant may be able to make a claim through the Department’s Customer Compensation for Detriment Caused by Defective Administration Scheme.

11. The Tribunal also notes that the Applicant has pursued complaints with the Commonwealth Ombudsman and the Minister regarding the provision of advice.

12. The Tribunal does not have any information before it regarding the likelihood of success of these alternative avenues or the relief available under them.

13. In such circumstances, while alternative avenues may offer some relief for the Applicant to pursue her complaint against the Department, the Tribunal accepts that these may offer limited relief to the Applicant.  For this reason, the Tribunal does not place significant weight on the availability of alternative avenues of relief in this case.

    CONCLUSION

14. The Tribunal has considered all the material before it including the submissions from the Applicant and the Respondent.  Taking into account:

    ·the length of the delay of 41 days in filing the application;

    ·the lack of an adequate explanation for the delay in making the application;

    ·the fact that the Applicant disregarded information regarding her appeal rights and of the time period in which she needed to make her application while pursuing other avenues of relief;

    ·the need for efficient management of the Tribunal’s time and resources;

    ·the limited likelihood of success of the Applicant’s substantive application for review;

    the Tribunal is satisfied that it should not exercise its discretion to extend the time for the Applicant to make her application for review of the AAT1 decision of 17 January 2018.

    DECISION

15. For the reasons outlined above, the Tribunal refuses to grant the Applicant’s application for an extension of time, pursuant to s 29 (7) of the AAT Act, to lodge an application for review of the AAT1 decision of 17 January 2018.

I certify that the preceding 57 (fifty-seven) paragraphs are a true copy of the reasons for the decision herein of Member S Burford

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

Associate

Dated: 8 June 2018

Date of hearing:	3 May 2018
Applicant:	In person: self-represented
Representative for the Respondent:	Mr James Pratt Mr Defrancisis
Solicitors for the Respondent:	Department of Human Services