DYER and SECRETARY, DEPARTMENT OF EDUCATION, EMPLOYMENT AND WORKPLACE RELATIONS

[2010] AATA 682

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2010] AATA 682

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No 2010/1911

GENERAL ADMINISTRATIVE DIVISION		)
Re		JUNE SYLVIA DYER

Applicant

And SECRETARY, DEPARTMENT OF EDUCATION, EMPLOYMENT AND WORKPLACE RELATIONS

Respondent

DECISION

Tribunal Senior Member K Bean

Date8 September 2010

PlaceAdelaide

Decision Pursuant to s 29(7) of the Administrative Appeals Tribunal Act 1975, the Tribunal decides not to grant an extension of time for the making of an application for review of the decision of the Social Security Appeals Tribunal dated 12 August 2008.

..............................................

K BEAN
  (Senior Member)

CATCHWORDS

PRACTICE AND PROCEDURE – Application for extension of time – delay of almost 2 years – explanation for delay not acceptable – case on the merits weak – other relevant factors militate against extension – extension of time refused.

Administrative Appeals Tribunal Act 1975 s 29(7)

Social Security Act 1991 ss 1236(1A), 1237A(1), 1237AAD

Hunter Valley Developments Pty Ltd v Minister for Home Affairs and Environment (1984) 3 FCR 344
Budd v Secretary, Department of Education, Employment and Workplace Relations [2008] FCA 1540
Brown v Federal Commissioner of Taxation (1999) 42 ATR 118

Groth v Secretary, Department of Social Security (1995) 40 ALD 541

REASONS FOR DECISION

8 September 2010   Senior Member K Bean    

1.      The applicant, Ms Dyer, has a daughter of whom she is the sole carer.  During the periods 8 December 2003 to 26 October 2004 and 21 July 2005 to 13 February 2007, she was in receipt of Parenting Payment (PP) in respect of her daughter.

2.      However, Ms Dyer also worked during those periods and following a review of her earnings on 17 March 2008, a Centrelink officer made decisions to raise PP debts against her of $1,334.39 for the period 8 December 2003 to 26 October 2004 and $2,664.71 for the period 21 July 2005 to 13 February 2007.  These debts were determined to arise because of discrepancies between the earnings reported by Ms Dyer and those reported by her employers during the relevant periods.  The Centrelink officer also decided to impose 10 percent penalty fees.

3.      Ms Dyer requested a review of these decisions and on 5 May 2008 an Authorised Review Officer (ARO) varied the decisions by removing the 10 percent penalty fees but affirming the amount of the debts.  The ARO decided that the total amount of Ms Dyer’s income was not taken into account during the periods of the debts and she had therefore been paid more PP than she was entitled to.  The ARO found no basis to waive recovery of all or part of the debts. 

4.      On 12 May 2008, Ms Dyer appealed to the Social Security Appeals Tribunal (the SSAT) for review of the ARO’s decision and on 12 August 2008 the SSAT affirmed the decisions of the ARO.

5.      Some twenty-one months later, on 14 May 2010, Ms Dyer lodged an application with this Tribunal for review of the decision of the SSAT, together with an application for an extension of time.

6.      An initial hearing took place in relation to Ms Dyer’s application for an extension of time on 10 June 2010 and the hearing was resumed and completed on 22 July 2010.

issue

7. The issue currently before the Tribunal is whether Ms Dyer should be granted an extension of time pursuant to s 29(7) of the Administrative Appeals Tribunal Act 1975 (the AAT Act) for the filing of her application for review in relation to the decision of the SSAT.

relevant facts

8.      In her application for an extension of time, Ms Dyer gave the following as her reasons for the application:

“The delay of Appeals is because ALL government agency [sic] did not give correct support.  I was left minor, no furniture, court cases from church groups, family courts and totally traumised [sic] by lossing [sic] children in between criminal acts, over powering men.  Ask decesion [sic] to be changed on grounds of compassion, hard when no extra finicial [sic] support to feed three children, school them, otherwise it’s another vicious circle.”

9.      At the hearing, Ms Dyer also gave the following salient evidence:

·She currently has $80,000 in a trust account.  However, she has no intention of accessing these funds as she wishes to preserve them for the sake of her and her daughter’s future, in particular for her daughter’s education.

·She was “pretty sure” that she had reported her gross rather than net earnings to Centrelink, but acknowledged that at the relevant time she was extremely traumatised by the fact that she had relatively recently lost access to her other two children.  She explained that she had been married to a man who was heavily involved in a number of Christian churches.  However, she had left him in December 2003 and since then had had only limited access to the two sons resulting from that marriage.  She further explained that in the two years after she left her marriage and the church, she had undergone extensive treatment within the mental health system and had also been involved in litigation in the Family Court, including in relation to care of and access to her sons.  This had been an extremely difficult and traumatic time for her.

·Ms Dyer said that during and after that period she felt that she had fallen under the influence of people who attempted to control her and to whom she was highly vulnerable as a result of her circumstances.

·Ms Dyer also claimed in the course of her evidence that she had not received a copy of the SSAT decision or the information relating to her right to appeal from that decision to this Tribunal.  She mentioned that she had had a lot of difficulty over recent years with her mail being stolen and suggested this may have been what happened to the SSAT decision and any accompanying letter.

·She claimed that it was only when she contacted Welfare Rights due to the difficulty she was having repaying the debts that she became aware of the SSAT decision and her right to appeal to this Tribunal.

·In relation to her current financial circumstances, Ms Dyer said she was “only just getting by” and she and her daughter have no heating or cooling in their home.

·She also said during her evidence that she had been too busy to challenge the SSAT decision.

10.     Under cross-examination, it was put to Ms Dyer that she had had a number of contacts with Centrelink since the SSAT decision was handed down and had never indicated a desire or intention to challenge the SSAT decision.  She did not dispute this, simply indicating that she did not think about it and was always keen to leave Centrelink offices as quickly as she could. 

11.     Toward the end of her evidence, Ms Dyer also mentioned that she had been expecting to get married and had hoped that her new husband would pay off the debts.  When it was put to her that this was the “real” reason she did not challenge the SSAT decision, that is because she expected the debts would be paid for her, she agreed that this was the real reason, although she added that she had been stressed at the time as well.

12.     In terms of documentary evidence, in addition to records of Ms Dyer’s contacts with Centrelink, the Tribunal received a Centrelink document indicating that the outstanding debt amount as at the time of the second hearing day, on 22 July 2010, was $6.60[1]. 

[1] Exhibit 5

13.     Ms Dyer also provided a letter from the South Australia Police Freedom of Information Unit recording a large number of incidents reported by her in the period 3 April 1992 through to 3 June 2010[2].  In addition, she supplied a number of medical reports, including a report dated 4 September 2007 by a general practitioner, Dr Spizzo, in which he stated the following in relation to Ms Dyer:

[2] Exhibit 8

“… At times she has made contact quite distressed by events re ex husband, family court matters, etc.  She does appear to have been under an inordinate amount of stress.”[3]

Ms Dyer also provided an undated report from Dr Spizzo including the following statement:

“I have known June for some 12 years and have been her GP for most of that time.

She has had a stressful drawn out experience with her marriage breakdown and subsequent separation from her two sons.

…

She has had some problems with emotional lability in the past, but is quite stable now showing no signs of thought disorder and has good insight. …”[4]

[3] Exhibit 7

[4] Exhibit 10

contentions

14.     The respondent contended that an extension of time should not be granted as, having regard to the applicable principles, Ms Dyer had not made out a sufficient case for an extension of time. 

15.     In particular, the respondent submitted that Ms Dyer’s explanation for the delay in lodging her application was not acceptable, given that it had taken her nearly two years from the SSAT decision to lodge the application.  The respondent also submitted that the true explanation for the delay was that Ms Dyer had been hoping that the man she was expecting to marry would pay the debts for her and it was only when she realised this was not going to happen that she sought to challenge the SSAT decision. 

16.     The respondent further submitted that the merits of Ms Dyer’s substantive application were low and the debts were correctly raised.  The respondent contended that it was inherently unlikely that seven different employers would all mistakenly report Ms Dyer’s earnings and far more likely that she had mistakenly reported her net rather than gross earnings. 

17.     In relation to possible waiver of the debts, the respondent contended that the question of whether Ms Dyer’s circumstances were “special” in the relevant sense had been properly considered by the SSAT.  Further, the current evidence suggested that she was surviving financially and furthermore the debt had almost been completely recovered.  The respondent submitted that Ms Dyer was in a better situation than many welfare recipients, particularly having regard to the amount of money she had in a term deposit.  Further, Ms Dyer had continued to repay the outstanding debts at $50 per fortnight, indicating that she had had the capacity to repay the debts.

18.     In relation to Ms Dyer’s claim to have not received the SSAT decision, she respondent submitted that even if Ms Dyer did not receive a copy of the decision, she would have inferred the result from the fact that she was required to continue repaying the debt and if she was in any doubt about this, she would have raised the issue during one of her contacts with Centrelink. 

19.     The respondent also contended that considerations of fairness as between Ms Dyer and other persons in a similar position militated against the granting of an extension of time.

20.     In addition to the matters put forward during her evidence, Ms Dyer submitted that she was not aware that she could challenge the SSAT decision and had been under great stress at and around the time that the SSAT decision was handed down.

consideration

21. Under s 29(7) of the AAT Act, the Tribunal has the power to extend the time for filing an application for review if “it is reasonable in all the circumstances to do so”. 

22.     Generally, to extend time the Tribunal must consider that there is an acceptable explanation for the delay and it is fair and equitable in the circumstances to extend time: per Hunter Valley Developments Pty Ltd v Minister for Home Affairs and Environment (1984) 3 FCR 344. The applicable principles were summarised by Cowdroy J in Budd v Secretary, Department of Education, Employment and Workplace Relations [2008] FCA 1540, by reference to an earlier decision of Federal Magistrate McInnis, as follows:

“18.  … In Phillips v Australian Girls’ Choir Pty Ltd & Anor [2001] FMCA 109 Federal Magistrate McInnis considered the nature of the discretion contained in s 44(2A)(a) of the AAT Act, and said at [10]:

‘In the light of A’Hearn’s case, it is clear that at least one of the principles referred to by Wilcox J in the Hunter Valley decision needs to be modified namely that it should not be any longer regarded as law that the inexcusable delay on the part of a solicitor should be visited upon the client and nor should it be a principle that there is in fact a pre-condition to the exercise of discretion in favour of the applicant for extension to show an acceptable explanation for delay or that it’s fair and equitable in the circumstances to extend time. In the light of the decision in Ahearn’s [sic] case it is useful to set out in modified form the relevant principles in relation to the exercise of the Court’s discretion when considering an extension of time in a human rights application based upon those principles distilled by Wilcox J in Hunter Valley as follows: 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] FCA 498; (1993) 45 FCR 441 and Dix v Client 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).

Such principles were applied by Gray J in Pham v Commonwealth of Australia [2002] FCA 669, although in the context of s 46PO(2) of the Human Rightsand Equal Opportunity Commission Act 1986 (Cth).’

19 The Court respectfully approves of McInnis FM’s articulation of the principles in relation to the discretion contained in s 44(2A)(a) of the AAT Act.”

23. The applicable principles were discussed here in the context of s 44(2A)(a) of the AAT Act rather than s 29. It is clear from the relevant authorities however that whilst they ought not be followed in a “slavish” way, these principles are also relevant in the context of s 29.[5]  Other matters which have also been found to be relevant in the context of s 29 include the fact that there was a significant issue to be determined, the potential financial loss to an applicant, the length of the delay and ignorance of appeal rights.[6] 

[5] Brown v Federal Commissioner of Taxation (1999) 42 ATR 118.

[6] Pearce, D., Administrative Appeals Tribunal, Butterworths (2^nd Edition, 2007), pp 56-62, [5.6]-[5.20].

24.     I propose to address each of the most relevant criteria in turn below.

Has Ms Dyer provided an acceptable explanation for the delay?

25.     As pointed out by the respondent, the delay in this matter is significant, being approximately 21 months between when the SSAT decision was handed down and when Ms Dyer sought to lodge her application with this Tribunal.  Ms Dyer has put forward a number of explanations for this delay, however not all of these explanations are entirely consistent with one another. 

26.     During her evidence, Ms Dyer claimed that she did not receive the SSAT decision and was not aware that she could challenge it.  She also claimed to be under a great deal of stress, and extremely busy caring for her daughter and attempting to “make ends meet”.  However, she also acknowledged that since the SSAT decision she had been continuing to pay off the debts, initially at the rate of $100 per fortnight, and, later, following a request by her to reduce the amount, at $50 per fortnight.  She also acknowledged that since the SSAT decision, she had had a number of contacts with Centrelink and that at no time during any of these contacts did she raise the issue of the SSAT decision or her desire to challenge it.  Further, she also acknowledged that she had been sufficiently informed as to the process to challenge the initial decision and also the ARO decision in the SSAT.  Late in her evidence, Ms Dyer also stated that the “real” reason she had not challenged the SSAT decision was that she was hoping to marry a man whom she expected would pay the debts off for her in any event. 

27.     In relation to Ms Dyer’s concession as to the “real” reason for not challenging the SSAT decision earlier, contrary to other aspects of her evidence, this part of her evidence suggested that she was aware of the SSAT decision and made a conscious decision not to pursue the matter further.  Therefore, as alluded to above, there are significant inconsistencies in her evidence which in my view cannot be satisfactorily reconciled.

28.     As noted above, there is some evidence before me to suggest that Ms Dyer may not have received the SSAT decision or become aware of it at around the time it was handed down.  However, having regard to the inconsistencies in her evidence referred to above, I do not accept all of Ms Dyer’s evidence in relation to these issues.  Rather, on the whole of the evidence, I am satisfied that Ms Dyer did become aware of the SSAT decision, or at least that a decision had been made confirming her debts, at or around the time that decision was made.  On balance, I also consider it likely that she was aware or became aware at that time that it was open to her to further challenge these debts. 

29.     On the basis of the concession made by her in the course of her evidence, I am also satisfied that the main reason Ms Dyer did not seek review of the SSAT decision earlier was because she was hoping another person would pay off her debts for her.  As that is clearly not an acceptable explanation for not seeking review of a decision within the required time, I am therefore not satisfied that Ms Dyer has provided an acceptable explanation for the delay of some 21 months in seeking to challenge the SSAT decision. 

Prejudice

30.     The respondent did not contend that there would be any prejudice suffered by it if an extension of time was granted.

Other actions taken by the applicant

31.     As indicated above, there is nothing in the material before me to suggest that Ms Dyer took any action to contest the correctness of the SSAT decision prior to lodging her extension of time application with this Tribunal in May 2010.

Fairness

32.     In my view, considerations of fairness as against other applicants would militate against the granting of Ms Dyer’s application, particularly given the length of that delay and the absence of an acceptable explanation for it.

The merits of the substantive application

33.     It is neither necessary nor appropriate for me to canvass the merits of Ms Dyer’s application in great detail in the context of determining her application for an extension of time.  However, the scope of the issues which would need to be determined if an extension of time was granted is quite narrow and can conveniently be addressed in brief and general terms. 

34.     In essence, the debts which have been raised against Ms Dyer arise from seven different periods of employment between 6 January 2004 and 9 March 2008.  In relation to each of those periods of employment, Ms Dyer declared earnings which, on analysis, it appears were her net earnings from each employer whereas, in each case, the employer advised Centrelink of her gross earnings, which were significantly higher.

35.     The SSAT referred to this issue and Ms Dyer’s evidence in relation to it in its reasons for decision as follows:

“Ms Dyer spoke to the Tribunal in a confused manner and clearly did not have an understanding as to the difference between gross income and net income.  Due to involvement with the church, she has had limited exposure to dealing with financial matters.  The Tribunal agrees with the Authorised Review Officer that she did not deliberately underestimate her income to Centrelink.”[7]

[7] SSAT decision, [17]

36.     The SSAT had no hesitation in concluding that “the data matching from Ms Dyer’s employers show that she did not correctly declare all of her income from employment to Centrelink”.

37.     In the context of the application before me, Ms Dyer has not raised or referred to any matter which could potentially lead this Tribunal to reach a different conclusion in relation to the raising of the debts.  Accordingly, on the material before me, I consider that Ms Dyer has poor prospects of establishing that the debts were not correctly raised.

38.     That leaves the question of whether there is any basis upon which the debts could be waived, which was also addressed by the SSAT. 

39. There are three potential bases upon which a debt such as those raised against Ms Dyer can be waived. Section 1237A(1) of the Social Security Act 1991 (the Act) allows for waiver where a proportion of the debt was attributable solely to administrative error on the part of the Commonwealth and the amount was received by the debtor in good faith. Section 1237AAD of the Act allows for waiver where there are “special circumstances” (other than financial hardship alone) that make it desirable to waive the debt, and s 1236(1A) of the Act allows for write-off of a debt where, relevantly, the debtor has no capacity to repay the debt.

40.     As to the applicability of these provisions, there is nothing before me to suggest that any portion of the debts is attributable solely to administrative error on the part of the Commonwealth.  The material before me also suggests that Ms Dyer does have the capacity to repay the debts, which she has in fact almost completely repaid. 

41.     In relation to Ms Dyer’s prospects of establishing “special circumstances”, based on the applicable case law, this is a relatively difficult test to satisfy and requires that the circumstances must be such as to distinguish the case from the usual or ordinary case[8].

[8] See Groth v Secretary, Department of Social Security (1995) 40 ALD 541 at 545.

42.     On the material before me, whilst it appears there are some aspects of Ms Dyer’s circumstances which are unusual, these relate mainly to her past involvement in what appears to have been a relatively closed Christian church, and the consequences of her decision to leave that church and her husband, apparently resulting in protracted litigation and difficulties for her in achieving contact with her sons.  However, in relation to her current circumstances, on the material before me there is nothing about these which appears to be sufficiently unusual or out of the ordinary such as to fall within the description of “special circumstances” as that had been defined in the applicable case law.  It is also relevant to note in this context that, whilst financial hardship alone is not sufficient in any event, when regard is had to the large amount which Ms Dyer currently has in a term deposit account, her circumstances are relatively comfortable when compared with many welfare recipients. 

43.     It follows that I also consider that Ms Dyer has poor prospects of establishing that the debts which have been raised against her should be waived or written-off.

conclusion

44.     Having regard to the applicable criteria outlined above, including Ms Dyer’s concession as to the “real” reason for not challenging the SSAT decision earlier and what I consider to be her poor prospects of succeeding in her application if an extension of time were granted, I have decided not to grant the extension of time sought by her.

decision

45.     The Tribunal decides not to grant an extension of time for the making of an application for review of the decision of the SSAT dated 12 August 2008.

I certify that the 45 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member K Bean

Signed:         ...........J Coulthard...........................................
  Associate

Dates of Hearing  10 June 2010 & 22 July 2010
Date of Decision  8 September 2010
Advocate for the Applicant       Self-represented

Advocate for the Respondent   Ms J Edwards

Centrelink Advocacy Branch