Frugtniet and Secretary, Department of Social Services

[2017] AATA 577

Frugtniet and Secretary, Department of Social Services [2017] AATA 577 (19 April 2017)

Division:GENERAL DIVISION

File Number(s):      2017/1273

Re:Rudy Frugtniet

APPLICANT

AndSecretary, Department of Social Services

RESPONDENT

DECISION

Tribunal:Ms Anna Burke, Member

Date of decision:                   19 April 2017

Date of written reasons:        1 May 2017

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 an application for review of a decision of the Social Services & Child Support Division of the Tribunal dated 15 February 2016.

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Ms Anna Burke, Member

PRACTICE AND PROCEDURE – extension of time – delay of almost one year in lodging application - whether reasonable excuse for delay - no reasonable excuse for extensive delay - where prejudice would be incurred by respondent and public by allowing extension of time - where prospects of success do not weigh in favour of either party - not reasonable in all the circumstances to allow extension of time

Legislation
Administrative Appeals Tribunal Act 1975 (Cth) s 29 (7)

Cases

Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541

Hunter Valley Developments Pty Ltd v Cohen (1984) 58 ALR 305

REASONS FOR DECISION

Ms Anna Burke, Member

1 May 2017

1. The applicant sought an extension of time for the review of a decision under s 29(7) of the Administrative Appeals Tribunal Act 1975 (Cth). The decision in question was made by the Social Services & Child Support Division of the Administrative Appeals Tribunal on 15 February 2016 and posted on 24 February 2016. The applicant lodged his application for review of that decision as well as an extension of time on 7 March 2017.

2. On hearing of the application on 19 April 2017, I considered the arguments made by both parties on whether an extension of time should be granted. After considering the arguments, I made an oral decision refusing to grant an extension of time. The Applicant then asked for a written statement of reasons. These are those written reasons.

3. I considered this application weighing a number of factors, guided by the judgment of the Federal Court of Australia in Hunter Valley Developments Pty Ltd v Cohen (1984) 58 ALR 305, a preeminent decision often cited in this jurisdiction. My primary focus was, however, on the words of s 29(7) of the Act, which provide:

   The Tribunal may, upon application in writing by a person, extend the time for the making by that person of an application to the Tribunal for a review of a decision (including a decision made before the commencement of this section) if the Tribunal is satisfied that it is reasonable in all the circumstances to do so (emphasis added)

   I am not satisfied that it would be reasonable in all circumstances to grant this extension of time, in accordance with section 29(7) of the Act.

4. The decision of the Social Services & Child Support division related to whether the Applicant was part of a couple. It would have been received on or around 26 February 2016. The Applicant needed to put in an application for review of that decision within 28 days and could have easily done so. That period therefore ended on or around 25 March 2016, meaning that the application was lodged some 348 days out of time.

5. There is nothing to suggest the applicant was not completely aware of the requirements of the Act. Further, the Applicant has been before the Tribunal on numerous occasions. Submitting an application for review 348 days outside that period is plainly not acceptable without an appropriate explanation.

6. The Applicant contended that he was waiting for Centrelink to action the direction of the Social Security and Child Support Division of the Tribunal (AAT1) of 15 February 2015. The substance of the decision did not change when it was actioned. The Applicant was aware of what that decision was. It was an assessment of whether he was a member of a couple. In the absence of an explanation, it is reasonable to conclude that by waiting for Centrelink to recalculate the debt he tacitly accepted the decision. 

7. The Applicant further argued that if he was to lodge an application in respect of the 15 February 2015 decision, it may leave him in a situation where he had two applications before the Tribunal. He argued that he had contacted the Respondent about an appeal and been told to wait until the decision was implemented, and that he was only relying on such advice when he made his decision to wait.

8. I was not persuaded by the Applicant’s claims that he had contacted the Department of Human Services and made the enquiries he purports to have made. The only evidence the Applicant produced to support these claims was correspondence between the Applicant and the Commonwealth Ombudsman, and a letter from the Department of Human Services dated 24 February 2017 which related an assessment of an unspecified benefit. These were provided to the Tribunal and the Respondent after close of business the day before the interlocutory hearing, after it had already been adjourned to accommodate late submissions by the Applicant on the first occasion. These documents only establish that the Applicant complained to the Ombudsman and that at a point in time, the Department was making an assessment of a benefit he was receiving. They do not prove any history of contact with the department about possible appeals.

9. I accept that appealing the decision of the Social Services and Child Support Division may have placed the Applicant in a situation where he had two separate applications, if the Tribunal had jurisdiction to review another decision. This is not, however, an unusual or burdensome situation. The law requires lodgement of an application for review within 28 days. Further, the Tribunal has no jurisdiction over how Centrelink actually applies its day to day activities. That is not a reviewable decision of the Tribunal. The Tribunal can only review the decision of the AAT1 of 15 February 2015.

10. The Applicant should have put in an application within 28 days. He did not do so. This is not a case where the Applicant was only days or even weeks out of time. The Applicant is an experienced litigant who is familiar with the Tribunal’s procedures. He did not satisfy the Tribunal that he has a reasonable explanation for the extensive delay in lodging an application for review. In waiting for a recalculation, he rested on his rights.  

11. I also note the Respondent’s submissions on prejudice to the public in allowing such an application. In particular, I refer to the judgement of McHugh J in Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541 at 553:

    ... The final rationale for limitation periods is that the public interest requires that disputes be settled as quickly as possible. In enacting limitation periods, legislatures have regard to all these rationales. A limitation period should not be seen therefore as an arbitrary cut off point unrelated to the demands of justice or the general welfare of society. It represents the legislature's judgment that the welfare of society is best served by causes of action being litigated within the limitation period, notwithstanding that the enactment of that period may often result in a good cause of action being defeated. Against this background, I do not see any warrant for treating provisions that provide for an extension of time for commencing an action as having a standing equal to or greater than those provisions that enact limitation periods. A limitation provision is the general rule; an extension provision is the exception to it....

    This is particularly relevant where the Applicant is applying for review almost twelve months out of time and in circumstances where he was aware of his right to seek review. It is further relevant where the evidence in this case would require going back even further in time, requiring evidence from witnesses about events they may have forgotten.

12. Finally, I note that submissions were made about the merits of the Applicant’s case by both parties. I was, on the basis of my finding that there was no explanation for the extensive delay, satisfied that it would not be reasonable in all the circumstances to grant an extension of time. There was nothing in the application brought before the Tribunal to indicate prospects of success outweighing the significant, unacceptably explained, delay and consequential prejudice suffered by the Respondent and the public if the extension were to be granted.

13. I do not find in this situation that it would be reasonable, in all of the circumstances, to allow an extension of time. The Applicant lodged his application almost 12 months after the reviewable decision was made. He did so not out of dissatisfaction with the decision, but on the basis of subsequent calculations. The Tribunal found that he had no valid explanation for the delay, and he rested on rights he was fully aware he had. It was for these reasons that the Tribunal refused to exercise its discretion under s 29(7) of the Act.

I certify that the preceding 13 (thirteen) paragraphs are a true copy of the written reasons for the decision of Ms Anna Burke, Member

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Associate
Dated              1 May 2017

Dates of interlocutory hearing

10 April 2017, 19 April 2017

Applicant

By Telephone

Advocate for the Respondent

Solicitors for the Respondent

Mr Tim de Uray

Department of Human Services,
Freedom of Information & Litigation Branch