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

[2020] AATA 2442

Gillespie and Secretary, Department of Social Services (Social services second review) [2020] AATA 2442 (23 July 2020)

Division:GENERAL DIVISION

File Number(s):      2020/3468

Re:Laura Gillespie

APPLICANT

AndSecretary, Department of Social Services

RESPONDENT

DECISION

Tribunal:Chris Puplick AM, Senior Member

Date:23 July 2020

Place:Sydney

The application for an extension of time is refused.

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

Chris Puplick AM, Senior Member

CATCHWORDS

PRACTICE AND PROCEDURE – extension of time application – 13 months delay in filing application –  whether there is an acceptable explanation for delay – whether Respondent is prejudiced by delay – whether Applicant rested on her rights – Applicant found to provide a reasonable explanation of delay – whether substantive application has merits – qualification for disability support pension during the period between December 2017 and April 2019 – Applicant did not provide sufficient medical evidence to support her claim for DSP during qualification period – whether it is reasonable in all the circumstances to grant the extension – Application found to have little prospects of success –  extension of time application refused

LEGISLATION

Administrative Appeals Tribunal Act 1975 (Cth) – s 29(2)

Social Security Act1991 (Cth) – s 94

CASES

Berkelaar v Comcare [1997] AATA 12015

BHC16 v Minister for Immigration and Border Protection [2019] FCA 1326

Bornecrantz v Secretary, Department of Social Services [2020] FCA 981

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

Hillman and Australian Postal Corporation (Compensation) [2017] AATA 1411

Hunter Valley Developments Pty Ltd v Cohen, Minister for Home Affairs and Environment (1984) 3 FCR 344

Jackamarra v Krakouer (1998) 195 CLR 516

Jamal v Secretary, Department of Social Services [2018] FCA 513

Nedeljko Kuljic v Secretary, Department of Social Security [1994] FCA 886

Parker v R [2002] FCAFC 133

Phillips v Australian Girls’ Choir Pty Ltd [2001] FMCA 109

Pohahau v Minister for Home Affairs [2019] FCA 1243

Secretary, Department of Family and Community Services and Roberts [2003] AATA 269

REASONS FOR DECISION

Chris Puplick AM, Senior Member

23 July 2020

1. Ms Laura Gillespie (the Applicant) is seeking an extension of time (EOT) in order to lodge an appeal against a decision made by the Social Services and Child Support Division of this Tribunal (AAT1) on 26 March 2019 to uphold a decision not to grant her the Disability Support Pension (DSP).

2. The Applicant first applied for the DSP on 14 December 2017 but that application was rejected by the Department of Social Services (the Respondent) on 15 January 2018 and that rejection was affirmed by an Authorised Review Officer (ARO) of the Department on 30 November 2018. The AAT1 affirmed that decision.

3. The Applicant was notified of the AAT1 decision on 26 March 2019 at which time she was advised that she had a period of 28 days[1] (that is, until 23 April 2019) in which she had the opportunity to lodge an appeal against that decision.

   [1] Administrative Appeals Tribunal Act 1975 (Cth) section 29(2).

4. However, she did not do so until 8 June 2020, a little over 13 months after the prescribed date.

5. In the meantime, on 24 April 2019, the Applicant submitted a further application for the DSP and this was granted by the Department on 25 July 2019, effective from the date of application.

6. The gravamen of the Applicant’s application is that the decision of the AAT1 should be set aside and that she should be found to have been qualified for the DSP at the date of the original application on 14 December 2017 and that, as a result, she should be paid arrears of DSP back to that date.

   EXTENSION OF TIME PRINCIPLES

7. When considering EOT applications, the Tribunal is bound by court authority as to the factors which it should take into account in deciding whether or not to grant such applications.

8. Time limits are important for the reasons outlined by McHugh J in the High Court case of Brisbane South Regional Health Authority v Taylor. His Honour gave four reasons why such limitations are an important part of the legal process. His Honour noted that:

   …First, as time goes by, relevant evidence is likely to be lost. Secondly, it is oppressive, even “cruel”, to a defendant to allow an action to be brought long after the circumstances which gave rise to it have passed. Thirdly, people should be able to arrange their affairs and utilise their resources on the basis that claims can no longer be made against them.

   …The final rationale for limitation periods is that the public interest requires that disputes be settled as quickly as possible.[2]

   [2] (1996) 186 CLR 541, 552-553. Footnotes and citations omitted.

9. While acknowledging that applications received out of time will generally not be accepted, it is also generally accepted that the “checklist” outlined by Wilcox J in Hunter Valley Developments Pty Ltd v Cohen, Minister for Home Affairs and Environment[3] (Hunter Valley) should be taken as the guide by this Tribunal in determining EOT matters.

   [3] (1984) 3 FCR 344, 348-349.

10. That list provides as follows:

    (a)an applicant must show an “acceptable explanation of the delay” and that it is “fair and equitable in the circumstances” to extend the time;

    (b)a distinction is to be made between an applicant who has “rested on his rights” and allowed the decision-maker to believe that the matter was finally concluded, and one who has continued to make the decision-maker aware that he or she contests the finality of the decision;

    (c)any prejudice to the respondent caused by the delay;

    (d)whether any others or the general public would suffer any prejudice as a result of the extension, or established practices be upset;

    (e)the merits of the substantial application; and

    (f)“[c]onsiderations of fairness as between the applicants and other persons” in a similar position.

11. This checklist has been endorsed in many further decisions of the courts, albeit on occasion with slight variations or modifications.[4] However, the Tribunal has accepted that this checklist effectively covers all the matters to which the Tribunal should have regard.

    [4] Hillman and Australian Postal Corporation (Compensation) [2017] AATA 1411; Phillips v Australian Girls’ Choir Pty Ltd [2001] FMCA 109; BHC16 v Minister for Immigration and Border Protection [2019] FCA 1326, [3]; Parker v R [2002] FCAFC 133, [6].

    DISCUSSION

12. This application turns primarily upon two of the factors identified in Hunter Valley, namely whether there has been a reasonable explanation for the delay and whether there is any realistic prospects of success were the matter to be allowed to go to a full merits hearing.

    (a)Reasons for delay

13. It should be noted that the actual time of the delay in lodging an appeal is not itself the determinative factor. It has been held that relatively short delays do not necessarily mean that an application will be granted;[5] nor that quite lengthy delays will inevitably be unsuccessful.[6] The determinative factor is the acceptability or otherwise of the reason(s) given for the delay in lodgement.

    [5] Secretary, Department of Family and Community Services and Roberts [2003] AATA 269 at [16].

    [6] Berkelaar v Comcare [1997] AATA 12015.

14. In this instance, it is necessary to consider the personal circumstances of the Applicant. She is now aged 53 years and has been on medication to deal with mental health issues since the age of 23 years. In that time, she has travelled between and resided in both Canada (her place of birth) and Australia and has been in receipt of professional medical care in both countries. She has a substantial history of hospitalisation for her conditions. It is apparent that she is not always in full control of her own life and that she is often confused about dates and arrangements.

15. It appears that she spoke to a number of people following her receipt of the AAT1 decision in March 2019 and may well have confused advice about the lodgement of an application for review of the AAT1 decision (although this advice was sent to her in writing at that time) and advice about her right to make a further application for the DSP.

16. She acted on the latter, submitting a new claim for DSP on 24 April 2019 which was one day later than the date by which she had to lodge an appeal against the AAT1 decision to be within time. That application was successful because the Applicant provided to the Department a considerable amount of medical and other evidence which had not been included in her application of December 2017.

17. On 24 October 2019, the Applicant contacted the Department (via Services Australia) to seek advice about having her DSP, for which she had now qualified, backdated to the date of her original DSP application of December 2017. It appears that it was explained to her that Services Australia had no role in determining this matter which was the consequence of the AAT1 decision which itself would need to be set aside for any such payment of arrears to be approved.

18. Whatever the exact nature of the advice received, it was not until 8 June 2020 that any such application was made.

19. At the extreme, the application was more than 13 months out of time, at the most generous reading of the Applicant’s position (that is, had the contact of October 2019 been with the Tribunal rather than Services Australia), it would still have been over 7 months out of time.  

20. The Tribunal, on the basis of the evidence given by the Applicant at the hearing is prepared to accept that she suffered a degree of confusion, misunderstanding and miscommunication as to her responsibilities in this area and the requirement for her to meet certain dates and requirements as set out in the legislation. In addition, for a considerable period of time within this timetable, the Applicant was hospitalised as a result of her mental health condition. The difficulty of persons suffering from mental health conditions in terms of strict adherence to timetables is a matter which it is open to the Tribunal to recognise and on this basis the Tribunal is satisfied that the reasons given for the delay are acceptable.

    (b)Substantial merits

21. The question of what matters are to be considered, and how they are to be assessed in addressing the merits of the substantive application, have been examined by a number of authorities.

22. In Kuljic, von Doussa J stated:

    One of the principal considerations to be addressed in deciding whether it is fair and equitable in all the circumstances to extend time is whether the merits of the proposed appeal are such that if an extension of time is granted there is some prospect of success in the appeal. If a consideration of the merits indicates that there is no question to be agitated on the appeal, and there is no prospect of success, it would be futile to grant an extension of time and most unjust to the respondent to subject the respondent to the costs of defending a pointless appeal.[7]

    [7] Nedeljko Kuljic v Secretary, Department of Social Security [1994] FCA 886, [6].

23. In Pohahau, Wigney J stated:

    It will seldom be in the interests of the administration of justice to grant an extension of time where the proposed application has little or no prospects of success. Such a finding should ordinarily only be made where the grounds of the application on their face appear to have little or no prospects of success and there is no need for any detailed argument in respect of the merits. It follows that an assessment of the prospects of success on an extension of time application should not ordinarily travel “beyond an examination of the grounds at what should be a reasonably impressionistic level … into a fuller consideration of the arguments for and against each ground of review.[8]

    [8] Pohahau v Minister for Home Affairs [2019] FCA 1243, [35]. Citations omitted.

24. In Jackamarra, the High Court quoted with approval the remarks of Lord Denning MR in R v Secretary for the Home Department; Ex parte Mehta where His Lordship said:

    We often like to know the outline of the case. If it appears to be a case which is strong on the merits and which ought to be heard, in fairness to the parties, we may think it is proper that the case should be allowed to proceed, and we extend the time accordingly. If it appears to be a flimsy case and weak on the merits, we may not extend the time. We never go into much detail on the merits, but we do like to know something about the case before deciding whether or not to extend the time.[9]

    [9] Jackamarra v Krakouer (1998) 195 CLR 516, 519 per Brennan CJ and McHugh J and 540 per Kirby J.

25. Thus, without going into prescriptive detail of the matters which might be before a full merits review, it is necessary to say something of the outline of any case which might be considered there.

26. The first DSP application was lodged on 14 December 2017, and under social security legislation,[10] in order to be qualified for the DSP, the Applicant would have needed to meet the criteria of having a physical, intellectual or psychiatric impairment which rated at least 20 points under the Impairment Tables established to evaluate such conditions. In addition, the Applicant may have had to demonstrate a continuing inability to work. Finally, the Applicant’s conditions must have been assessed at as the 13 week “qualifying period” which in this case would have been from 14 December 2017 to 15 March 2018.

    [10] Social Security Act1991 (Cth) section 94.

27. It was the Applicant’s evidence that the material which she submitted in support of her December 2017 application did not contain a number of key medical, psychiatric and other reports. This led to her claim being rejected first by the Department, then by the ARO and finally by the AAT1 which found that on the basis of the material before it the Applicant rated nil points on the Impairment Table(s).[11]

    [11] Laura Gillespie and Secretary, Chief Executive Centrelink Social Services and Child Support Division, Administrative Appeals Tribunal, Review number 2019S/132600 at paragraph [30].

28. Clearly by the time of the April 2019, these reports were before the Department such that the DSP claim was granted.

29. However, what those reports do not show is evidence of the Applicant’s condition in the qualifying period related to the December 2017 application. The Respondent rightly points out that the condition of bipolar disorder was not, as required, “fully diagnosed, fully treated and fully stabilised” during that period as the Applicant’s condition was still subject to ongoing management and assessment. This means that no qualifying points can be awarded under the Impairment Table(s). There was also no evidence of “severe” functional impairment, without which the Applicant would have needed to have participated in a Programme of Support (POS) for at least 18 months in the 36 months prior to lodgement of their application. The Applicant had not participated at any time in a POS.[12]

    [12] Respondent’s Outline of Submissions at [45]-[50].

30. Failure to meet any of these requirements means inevitably that the Applicant would not be able to succeed in a full merits hearing in having the decision of the AAT1 set aside.

31. Where there are no real prospects of success, the courts have indicated that applications for extensions of time should not be granted. 

32. In Hunter Valley, the merit of the substantive appeal was also considered as a relevant principle in EOT applications. In reference to Hunter Valley Developments, Bromwich J said in Jamal:

    Her Honour followed the view expressed by Mortimer J in MZABP v Minister for Immigration & Border Protection [2015] FCA 1391; 242 FCR 585 at [62], upheld by the Full Court in MZABP v Minister for Immigration & Border Protection [2016] FCAFC 110; 152 ALD 478, to the effect that it will seldom be in the interests of justice to grant an extension of time where an appeal would have little prospect of success, given the additional resource demands that it would impose upon the parties and the Court, and the inevitable impact it would have on other users of the Court.”[13]

    [13] Jamal v Secretary, Department of Social Services [2018] FCA 513 at [6].

33. Unless there is doubt about the correctness of the decision, there is no useful purpose to be served in extending time or granting leave to appeal. It would put the parties to unnecessary expense and defeat the overarching purpose.[14]

    [14] Bornecrantz v Secretary, Department of Social Services [2020] FCA 981 at [33].

    CONCLUSION

34. Applying the relevant parts of the Hunter Valley principles, the Tribunal finds that, in this instance, the Applicant has provided an acceptable reason for the delay in lodging her application for an extension of time. However, consideration of the substantial merits of the application make it clear that the Applicant would have no realistic prospect of success in her appeal.

35. The Tribunal also sought evidence from the Applicant as to her current situation in terms of support and she confirmed that with her current DSP and National Disability Insurance Scheme supports, plus the network of community and family support which she has available to her[15], there are no matters touching upon the interests of justice which would require the Tribunal to consider matters other than those to which it has given its attention.

    [15] The Tribunal noted, with appreciation, the support given to the Applicant in these proceedings by Ms Lindy Boyko, her regular social worker.

    DECISION

36. The application for an extension of time is refused.

I certify that the preceding 36 (thirty-six) paragraphs are a true copy of the reasons for the decision herein of Chris Puplick AM, Senior Member

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

Associate

Dated: 23 July 2020

Date(s) of hearing:	16 July 2020
Applicant:	By telephone
Solicitors for the Respondent:	Ms E Ulrick