Gentile v DFCS
[2002] FMCA 55
•22 March 2002
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| GENTILE v DFCS | [2002] FMCA 55 |
| ADMINISTRATIVE LAW – Application for extension of time – delay – consideration of merits of appeal – Application refused. |
Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344
Comcare v A’hearn (1993) 45 FCR 441
Lucic v Nolan (1982) 45 ALR 411
Farm Household Support Act 1992 s 3
Administrative Appeals Tribunal Act 1975 ss 43AA, 44(2B)
| Applicant: | LUIGI WILLIAMS SERFINO GENTILE |
| Respondent: | THE SECRETARY, DEPARTMENT OF FAMILY AND COMMUNITY SERVICES |
| File No: | MZ 992 of 2001 |
| Delivered on: | 22 March 2002 |
| Delivered at: | Melbourne |
| Hearing Date: | 22 March 2002 |
| Judgment of: | McInnis FM |
REPRESENTATION
| Applicant: | Mr L Gentile |
| Solicitor for the Respondent: | Ms M Stratos |
| Solicitors for the Respondent: | Australian Government Solicitor |
ORDERS
(1)The application for extension of time filed 10 July 2001 be dismissed.
(2)The applicant shall pay the respondent's costs, including reserved costs pursuant to order 62 of the Federal Court Rules.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE |
MZ9920 of 2001
| LUIGI WILLIAMS SERFINO GENTILE |
Applicant
And
| THE SECRETARY, DEPARTMENT OF FAMILY AND COMMUNITY SERVICES |
Respondent
REASONS FOR JUDGMENT
This is an application by LUIGI WILLIAMS GENTILE for extension of time in which to appeal to this court from a decision delivered by the Administrative Appeals Tribunal (the AAT) constituted by Member, Ms Shanahan, and delivered on 15 September 2000.
The applicant is a self‑represented person who in all the circumstances, it is clear from his background and personal circumstances, is at a distinct disadvantage in relation to presenting arguments in support of his application for extension of time.
The application for extension of time is in relation to a decision by the AAT which affirmed a decision made by the Social Security Appeals Tribunal (the SSAT) which was delivered on 17 January 2000. The SSAT had affirmed decisions that the applicant was not a farmer for the purposes of the Farm Household Support Act 1992 (the FHSA). The applicant had made two applications for a restart re-establishment grant as provided by that legislation. The first of the decisions made by the respondent related to an application in respect of a property at 2 Pillars Road, Bangholme, being a house and egg farm owned by the applicant's mother. The second application related to property, lot 13, Starling Road, Officer, operated as a horse stud business.
It is not in dispute in the present case that the applicant had worked on his parents' horse and poultry farm at Pillars Road, Bangholme until that property was repossessed by the bank and the applicant's mother declared bankrupt. The applicant, it is said, applied for a restart re-establishment grant on 8 July 1999 with respect to the Bangholme property. Both the applicant and his mother had been evicted from the property in March 1999. In the application, the applicant had stated according to the tribunal's reasons, his income for the current financial year from the farm was estimated at being nil.
The claim for a restart re-establishment grant in relation to that matter was rejected on 28 July 1999 on the basis that the applicant did not qualify because he did not meet the legislative definition of a farmer, to which I will refer later in my reasons for judgment. The applicant reapplied in relation to the second property to which I have referred on 12 August 1999. That property at Starling Road was a property where the applicant was a co-owner and he has confirmed before this court that entitled him to the use of a five-acre paddock for the purpose of agisting horses owned by his business, Seven Hills Thoroughbred Stud.
In that application form of 12 August 1999 the applicant declared the estimate of likely income from the farm for the current financial year to be nil. He accompanied the application with statements of profit and loss from that business prepared by Ross Peters Taxation Services Pty Ltd. The first of those documents for the financial year ending 30 June 1997 shows as a profit and loss statement for the business that it had gross receipts of $17,000 less expenditure of $26,200, leaving a net loss of $9200. For the financial year ending 30 June 1998 the same taxation service provides gross receipts of $2100 with a net profit of $56,900.
On that material and other material before the original decision-maker, the application was rejected and after reconsideration rejected again on 25 August 1999. A further review resulted in a further rejection on
3 September 1999 and after that, as I understand the chronology, the applicant appealed to the SSAT and the appeal was heard, as I have indicated, on 17 January 2000.
It is clear, however, that the basis upon which the application in relation to the stud property was rejected was that the applicant did not derive a significant part of his income from that particular farm enterprise.
Section 3 of the FHSA provides:
“3(2) In this Act, unless the contrary intention appears:
farm enterprise means an enterprise carried on within any of the agricultural, horticultural, apicultural or aquacultural industries.
farmer means a person who:
(a)has a right or interest in the land used for the purpose of a farm enterprise; and
(b)contributes a significant part of his or her labour and capital to the farm enterprise; and
(c) derives a significant part of his or her income from the farm enterprise.
finance institution means:
(a)a bank; or
(b)any other prescribed institution, being an institution that makes finance available to farmers.”
It is clear to me that in the present circumstances there is absolutely no doubt that in terms of the use of common language the applicant has at all material times been engaged in a farm enterprise, whether it be the stud farm or whether it be the egg farm to which I have referred, and to that extent the applicant could be regarded for those purposes as a farmer. The real issue before this court and before the tribunal was whether or not the applicant is able to comply with and fit the definition of `farmer’ as defined by the legislation to which I have referred.
That issue before this court on an application for extension of time is clearly relevant to the broader issue of the merit of the application.
In terms of the chronology of proceeding, it is clear that the decision of the tribunal was made on 15 September 2000. The applicant made an application for extension of time in the Federal Court on 10 July 2001. The applicant then supported that application with an affidavit which was sworn by the applicant on 10 July 2001. In addition, the applicant filed - although I am not sure whether he served, but nevertheless filed a notice of appeal on the same date, to which I will refer briefly.
The matter came before this court by way of transfer as a consequence of an order by his Honour Sundberg J made on 24 December 2001. When the matter came on before me for hearing on 8 February 2002 it was clear to me that in the material before me there were no written reasons provided for the tribunal's decision. A document was handed to the court which contained the decision dated 15 September 2000 and which also contained a statement of case for the respondent together with the reasons for decision of the SSAT and taxation records and personal details by way of the application by the applicant which were then before the SSAT and likewise before the AAT.
When the matter was before me I was concerned that the applicant should seek written reasons for the decision from the tribunal. As I recall it, on the occasion when the application was before me on
8 February 2002, this court did not have the benefit of a transcript of the proceedings before the AAT. Accordingly, I adjourned the application for extension of time to this day. I reserved costs, but I also directed, somewhat unusually, that the respondent file and serve a copy of the transcript of the proceedings and that the respondent request the tribunal to provide written reasons for its decision made on
15 September 2000. I made that unusual direction in circumstances where I believed that the respondent, as a model litigant, with the resources and facilities available to it, was in a better position to make that request of the tribunal and to provide that material than the applicant.
As it turned out, before me this day I now have the advantage of a transcript, though note in passing that page 19 of the transcript provided to the court is now said to be in error, and I accept said in error, insofar as the tribunal at line 26 said in the copy filed with the court -
“For the record the Tribunal reserves the decision under review.”
That should read, in the corrected version, which I accept is the appropriate version -
“For the record, the tribunal affirms the decision under review.”
I also have received written reasons by the tribunal for its decision, which are reasons, provided on 20 March 2002 and produced to this court this day. Attached to those written reasons is a direction of the same date whereby the tribunal directs, pursuant to section 43AA(1) of the Administrative Appeals Tribunal Act 1975 that -
“… the Registrar alter the text of the decision in the matter, published 15 September 2000, so that the text of the decision now reads,
For reasons given orally at the hearing the decisions under review are affirmed.”
It would appear that the tribunal was concerned to emphasis the fact that there was more than one decision, and hence has used the plural "decisions" in lieu of "decision" in the document to which I had earlier referred, that is, the single‑page document advising of the outcome.
I accept from Mr Gentile that at the hearing before the AAT he was upset and in fact had left the tribunal hearing before hearing the decision of that tribunal. He did return and understood that in fact what had occurred was that the hearing had been adjourned . He has told me, and I accept, that he ultimately - approximately a week later - did receive written confirmation that the decision under review had been affirmed, and to use his colloquial expression, he knew then that his application had been "knocked back".
In the circumstances, what then occurred before this court was that at least I this day had before me a transcript and written reasons for decision from the tribunal. I have indicated to the solicitor for the respondent that in the present case I am not satisfied entirely that the time period from which to lodge an appeal does not run indeed from the time when the written reasons are furnished by the tribunal. I need not consider that matter, however, because in the present circumstances it is appropriate to at least consider section 44(2B) of the Administrative Appeals Tribunal Act and in particular I note that that section states -
“44(2B) In the interest of justice, the grounds on which the Federal Court of Australia may allow further time under paragraph (2A)(a) include, but are not limited to, the following grounds:
(a)if the Tribunal made an oral statement as to the reasons for the decision and afterwards gave a written statement of reasons for the decision - the written statement contains reasons that were not mentioned in the oral statement;
(b)the text of the decision or a statement of reasons for the decision has been altered under section 43AA.”
In considering whether or not to grant an application for extension of time, the principles to be followed by this court have been well established and indeed have been set out in the well known authority of Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344. Those principles have been applied and extend beyond matters of appeals from the Administrative Decisions Judicial Review Act and in my view apply equally well to decisions that are sought to be the subject of appeal from the Administrative Appeals Tribunal.
The principles set out by Wilcox J in the Hunter Valley decision to some extent have been modified by the more recent decision of the Full Court of the Federal Court in the matter of Comcare v A’hearn (1993) 45 FCR 441. In that case the Full Court said -
“In our view, the primary judge was correct in concluding that the reasons for decision reveal an error of law on the part of the Tribunal. The error was that the Tribunal considered that what is found was an inexcusable delay on the part of the solicitors could not constitute an acceptable explanation for the delay in making the application. We consider that this conclusion about the Tribunal's reasoning follows inevitably from the passages to which we have already referred.”
In cases of this kind one of the principles which needs to be modified from the Hunter Valley decision is the principle that it is really no longer regarded as law that an 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 precondition to the exercise of discretion in favour of the applicant for extension to show an acceptable explanation for delay, it is fair and equitable in the circumstances to extend time.
In my view there is no onus on the applicant in that sense for extension of time, although obviously an application has to be made. I also conclude that special circumstances need not be shown but the court will not grant an application unless positively satisfied it is proper to do so. It is further accepted by me that it is a prima facie rule that proceedings commenced outside the prescribed period will not be entertained, see Lucic v Nolan (1982) 45 ALR 411 at 416.
Whilst it is not a precondition for success in an application for extension of time that an acceptable explanation for delay must be given, it is to be expected, however, 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 precondition. It is also relevant to take into account action taken by the applicant in relation to assessing the adequacy of any explanation for delay. It is relevant to take into account prejudice but it also is relevant to take into account relevantly for this present application the merits of the substantial application.
In the present case I also need to consider the issue of fairness to both parties. Mr Gentile has explained to me that the reason for the delay is that he was not well, he did not properly understand the procedure and was not able to get legal assistance. In my view that explanation, combined with the fact that the tribunal has only recently delivered written reasons, and that those written reasons, on my assessment of the transcript, are different from the oral reasons to the extent that the oral reasons in the transcript do not in my view reasonably constitute appropriate and detailed oral reasons and do not indeed provide a basis upon which it could truly be said that the subsequent written reasons reflect those oral reasons, together with the fact that in any event in delivering the written reasons the tribunal has sought to issue a direction pursuant to section 43AA(1) of the Administrative Appeals Tribunal Act, lead me to the conclusion that I should accept the explanation that the applicant has given for the delay. Combined with the parts that I have referred to, of section 44(2B) I should at least entertain the application for extension of time applying those principles.
The more difficult issue, however, for the applicant in the present case, is the issue which I am obliged to take into account on an application for extension of time, namely the merits of the substantial application. It has been submitted by the representative of the respondent that I should, in considering the merits, have regard to the notice of appeal. It has been submitted that the notice of appeal does not disclose an error of law of a kind which would be sufficient to enable the application to proceed under section 44 of the Administrative Appeals Tribunal Act. Section 44 provides that -
“44(1) A party to a proceeding before the Tribunal may appeal to the Federal Court of Australia, on a question of law, from any decision of the Tribunal in that proceeding.”
An application to the Federal Court of Australia may now be transferred for hearing in certain circumstances, where decisions are made by a non‑presidential member, to the Federal Magistrates' Court of Australia and that has occurred on this occasion. It is appropriate, therefore, that I apply the same principles in relation to considering an application of this kind as would be applied in the Federal Court.
In particular, it is appropriate that I have regard to the fact that this is an application dealing with an error of law. It is important, therefore, to consider the notice of appeal. In the notice of appeal filed 10 July 2001 the applicant states in relation to the questions of law raised on the appeal the following -
“Discrimination, how are investigation by Dept of Family Community Services held, an entitlement for grant unquestionable (on my behalf) as fraud by bank, and lawyers involved & cover‑up of bank, all being look at by Law Institute.
Apologe. and entitalment of 45,000 grant, re-establish ment pased on to my self as famer, as I did not think I had to have intrigate as to what I’m entitled to (very demoralising). That what was asked, to be provided was provided. Then refused because, as thay said. That form for grant was handed in to late, when all were excuse on there behalf? And after 30 years as farmer my self family left in the gutter 44 years of age, unable to provide for my family as unable to get even factory work.”
I have incorporated the exact wording of that notice of appeal in these reasons for judgment. It is clear, however, to me, that in the present case on the face of it, the notice of appeal does not reveal necessarily an error of law. However, having made due allowance for the fact that the applicant is clearly a man without the benefit of extensive education and without legal training, I am prepared, at least for the purpose of this application, to interpolate that the error of law, if there be one, applies in relation to the manner in which the tribunal may have interpreted the relevant provisions of the FHSA.
Assuming that to be the error of law that the applicant asserts that the tribunal should have found he was a farmer and therefore should have found on at least one of the applications that he had an entitlement to the re-establishment, grant, it is necessary to briefly consider then the background information to which I have already referred. When doing that, one has to be mindful of the definition of "farmer" which is set out in the act. By any assessment of the material, and on consideration of the transcript which I have now had an opportunity to read, it is clear to me that the findings of fact that were made by the tribunal were reasonably open and indeed were findings of fact which were appropriate in the circumstances.
Having made those findings of fact, it is equally clear to me that in the circumstances of this application, even if I were to allow the notice of appeal to stand in its present form and to interpret it as being a document that raises a proper error of law, it seems to me on all the material before me that there in fact does not appear to be an error of law on the face of the material now provided to the court. There does not appear to be an error of law in the reasoning of the tribunal.
I am satisfied that in the circumstances there is no merit in the application because on the fact of the material two clear facts, which cannot be contradicted, are apparent. One is that in relation to the application concerning the farm at Pillars Road, at the relevant time the applicant did not have, as required by section 3 of the Farm Household Support Act, a right or interest in the land used for the purpose of the farm enterprise at the relevant time when he made the application. In relation to the further application in respect of the property at Starling Road, the applicant could not satisfy part (c) of the definition of `farmer’ in establishing that he then at the relevant time had derived a significant part of his income from the farm enterprise. Those matters, in my view, on the material before me, are matters which cannot be overcome by the applicant and in any event, on the material before me, there is no material which would satisfy me that for the purpose of establishing an error of law under section 44 of the Administrative Appeals Tribunal Act that this application has any prospect of success.
Given that that is my finding, notwithstanding the fact that I would otherwise have been inclined to allow an extension of time, the only proper course for this court to follow is to dismiss the applicant's application for extension of time. Accordingly, the orders will be:
(1)The application for extension of time filed 10 July 2001 be dismissed.
(2)The applicant shall pay the respondent's costs, including reserved costs pursuant to order 62 of the Federal Court Rules.
I certify that the preceding thirty-four (34) paragraphs are a true copy of the reasons for judgment of McInnis FM
Associate:
Date: 22 March 2002
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