Gluschke and Secretary, Department of Social Services (Social services second review) - [2018] AATA 3926

Gluschke and Secretary, Department of Social Services (Social services second review) [2018] AATA 3926 (18 October 2018)
Division:GENERAL DIVISION
File Number(s): 2018/4650
Re:Jane Gluschke
APPLICANT

AndSecretary, Department of Social Services
RESPONDENT

DECISION
Tribunal:Ms S Taglieri SC, Member
Date:18 October 2018
Place:Hobart

The application for an extension of time is refused.
..................................[sgd].................................
Ms S Taglieri SC, Member
CATCHWORDS
PRACTICE AND PROCEDURE – application for extension of time – principles relevant to the grant of an extension of time – Tribunal not satisfied that reasonable in all the circumstances to grant extension of time – application for extension of time refused
LEGISLATION
Acts Interpretation Act 1901 (Cth), ss 28A(1), 29, 36
Administrative Appeals Tribunal Act 1975 (Cth), ss 29(1)(a)(i), 29(2)(a), 29(7), 43(1)(a)
Evidence Act 1995 (Cth), s 160
Social Security (Administration) Act 1999 (Cth), ss 147, 179(1)
CASES
Aldefeary v Secretary, Department of Education, Employment and Workplace Relations [2012] FCA 633
Secretary, Department of Social Security and Mellidis [1990] AATA 224; 21 ALD 549
Secretary, Department of Social Security and Hall [1992] AATA 238; (1992) 28 ALD 282
Theo v Secretary, Department of Family and Community Services [2005] FCA 880
REASONS FOR DECISION
Ms S Taglieri SC, Member
18 October 2018
INTRODUCTION AND BACKGROUND

On 14 September 2017, Member Baulch of the Social Security and Child Support Division of this Tribunal (the SSCSD) made a determination that the Applicant was indebted to the Respondent due to overpayment of disability support pension but also found that the amount of the debt had been incorrectly calculated.
Accordingly Member Baulch set aside the Respondent’s decision about the indebtedness and remitted the matter with a direction to recalculate the amount of the indebtedness according to the findings she had made on the evidence.
The Applicant sought to review Member Baulch’s decision in the General Division of the Tribunal but did so out of time. Her application seeking an extension of time was refused by Senior Member Cunningham on 16 January 2018.
The Respondent recalculated the indebtedness of the Applicant and issued a further decision that the amount of the debt owed was $148,114.25.
The Applicant still disputed the debt and the amount of it, so asked for an internal review by the Respondent. This was conducted by an authorised review officer who affirmed the amount of the debt on 28 March 2018 (the ARO decision).
The Applicant then made an application to the SSCSD after receipt of the ARO decision. Following a hearing by Member Byers, he determined on 31 May 2018 to affirm the ARO decision.
The Applicant continues to dispute that she is indebted in the sum of $148,114.25 and so has made a second review application to the General Division of the Tribunal to review the decision of Member Byers.
The Applicant’s written application for second review, although dated 9 August 2018, was only received by the Tribunal on 21 August 2018 (the second review application), apparently outside of the time limit prescribed by the Administrative Appeals Tribunal Act 1975 (the AAT Act).[1]
[1] Section 29(2)(a) being applicable as the decision of Member Byers was in writing and dated 31 May 2018.
Accordingly, the Applicant filed an extension of time application on 4 September 2018. On 10 October 2018 the Tribunal conducted a hearing of that application.
ISSUES IN CONTENTION
The Respondent argued that the second review application was out of time and that the Tribunal should not exercise its discretion under s 29(7) of the AAT Act to extend the time within which the Applicant is allowed to make her application. The Respondent filed lengthy written submissions which the Tribunal has had regard to.
The Applicant argued that she advised the Tribunal orally by telephone on 31 May 2018 that she would seek a review of Member Byers’ decision, so her application was made within time. In the alternative, the Applicant argued that she believed her second review application was within time but if it was not, she ought to be granted an extension of time.
The Tribunal received oral evidence from the Applicant by telephone. She was cross-examined by the Respondent’s counsel and the Tribunal had the opportunity to assess the reliability of the Applicant’s evidence.
The Tribunal informed itself about various conversations the Applicant claimed to have had with staff within its Registry. The parties were given the opportunity to respond to what the Tribunal’s Registry records demonstrated.
The Applicant forcefully argued that the substantive decision about the existence of a debt and its amount was wrong. She claimed that a grave injustice had been done to her. When guided and assisted to address the legal considerations relevant to whether the second review application was out of time and, if so, whether time should be extended, the essence of the Applicant’s case was that:
(a)She had longstanding, severe and chronic illnesses that prevented her from acting within specified timeframes;
(b)She had been forced to spend time away from her home due to storm and flood damage and for that or other reasons had not received the written decision of Member Byers and only received a second copy of it from the Tribunal sometime in July, on a specific date that she could not recall;
(c)The Respondent and Members of the SSCSD wrongfully refused to acknowledge various costs and expenses of her business, so their decisions about the existence and amount of her debt were wrong. Consequently, she had an arguable case on merits; and
(d)It would be a grave injustice if she were not entitled to a review and she would be severely disadvantaged by erroneous decisions about the debt, rather than the Respondent being prejudiced.
CONSIDERATION OF EVIDENCE AND FINDINGS
The Tribunal was not impressed with the evidence of the Applicant about material issues. Her evidence was often confusing, circular and conflicting. An example of this was the evidence given in response to the Tribunal’s questions about when she received the written decision dated 31 May 2018 and particularly about how often she accessed her mailbox. Initially she stated that she had accessed it at least once per week but later, when realising that may not assist her case, stated it was less often.
Further the Applicant tended to make exaggerated statements – for example about being confined to bed for 24 hours a day, every day – no doubt intending to convey the seriousness of her medical conditions. However, she then stated that in the same period, she had come and gone between her home and a friend’s house where she stayed on numerous occasions because workmen were attending her home and she had to be present to give access or discuss issues with them.
Accordingly, the Tribunal is only prepared to accept the Applicant’s evidence in respect of relevant facts and events if it is corroborated by another source. The only potential for corroboration was from the records of the Tribunal, as the Applicant did not offer any evidence other than her own.
Based on the Applicant’s oral evidence, as corroborated by records maintained by Registry staff, the Tribunal finds:
(a)That on 31 May 2018, the Applicant spoke by telephone to a Registry staff member and stated that she would appeal Member Byers’ decision;
(b)That the written decision of Member Byers dated 31 May 2018 was sent by post to the Applicant’s home address on 6 June 2018 but for unknown reason(s), the Applicant did not receive it;
(c)That on 2 July 2018, the Applicant spoke to a Registry staff member and told her that she had not received the written decision of Member Byers and that she was back living at her usual home address. The staff member told the Applicant she had 28 days from receipt of the written decision if she wanted to appeal further;
(d)That on 2 July 2018, a Registry staff member posted another copy of the decision dated 31 May 2018 to the Applicant’s home address; and
(e)That on 3 August 2018, the Applicant phoned the Registry and spoke to the same staff member she had spoken to on 31 May and 2 July 2018 and advised she wanted a second level review. She was advised that the second level review application had to be in writing and that she could make such application online. The Applicant stated she did not have online access and the staff member advised she would send a hardcopy application to the Applicant by express post.
Was the second review application made on time?
Section 29(2)(a) of the AAT Act provides that an application for review of a decision in writing is to be made within 28 days of the decision being ‘given’ to the Applicant. In the Tribunal’s view, the terminology of being ‘given’ is analogous to service as its meaning is informed by provisions in the Acts Interpretation Act 1901 (the AI Act).
Section 28A of the AI Act provides at subsection (1)(a):
For the purposes of any Act that requires or permits a document to be served on a person, whether the expression "serve", "give" or "send" or any other expression is used, then the document may be served:
(a)on a natural person:
(i) by delivering it to the person personally; or
(ii) by leaving it at, or by sending it by pre-paid post to, the address of the place of residence or business of the person last known to the person serving the document;
Accordingly, the term ‘given’ in s 29(2)(a) of the AAT Act refers to the fact of lawful service of the written decision. Further, if lawful service is effected by prepaid post as found by the Tribunal in this case, s 29 of the AI Act and s 160 of the Evidence Act 1995 operate to deem the date upon which service is factually complete.
In particular, s 160 of the Evidence Act 1995 deems service to be factually complete on the fourth working day after the document was sent by prepaid post.
Accordingly, as the written decision of 31 May 2018 was sent by prepaid post twice, on 6 June 2018 and 2 July 2018,[2] it follows that service was factually complete by operation of the relevant statutory provisions on 12 June 2018[3] or 6 July 2018 at the latest.
[2] Paragraph 18(b) and 18(d) above.
[3] ‘Working day’ is defined by s 160 of the Evidence Act to exclude the weekend.
The 28 day period referred to in s 29(2)(a) of the AAT Act is to be calculated according to s 36 of the AI Act,[4] and so the first date to be included in the 28 day period was 13 June or at the latest 7 July.
[4] See Secretary, Department of Social Security and Mellidis [1990] AATA 224 and Secretary, Department of Social Security and Hall [1992] AATA 238.
Accordingly, at the latest, the 28 day period expired on 3 August. Although the Applicant appears to have spoken with a staff member of the Tribunal on this day, her written application is dated 9 August 2018 and was not received by the Registry until 21 August 2018.
The conclusion reached is that the Applicant has not made her written application within the required 28 day timeframe because a second review application must be in writing.[5]
[5] Section 29(1)(a)(i) of the AAT Act.
The Tribunal rejects the Applicant’s contention that she validly made a second review application during the telephone call on 31 May 2018 or during any other oral discussion she had with Registry staff by phone.
Should an extension of time be granted?
The principles to be applied when determining whether an extension of time should be granted are the subject of many authorities. In Aldefeary v Secretary, Department of Education, Employment and Workplace Relations [2012] FCA 633, McKerracher J succinctly referred to some of those authorities with approval in the context of the power to grant an extension of time contained in s 29(7) of the AAT Act.[6] The principles can be summarised as whether:
·There has been a satisfactory explanation for the delay;
·The review being sought has some arguable merit;
·There is prejudice to the Respondent in granting the extension of time; and
·Justice requires the extension to be permitted.
The above principles are not necessarily mutually exclusive and may not all be of equal importance in any given application for an extension of time but, if relevant, must be considered and have been by the Tribunal in this matter.
[6] See [20]-[21] & [27]-[30].
The contentions advanced by the Applicant and the effect of her evidence demonstrates that for the purpose of the second review, she largely proposes to re-argue matters already considered by the SSCSD about the existence and amount of the debt. The Tribunal explored with the Applicant what arguments she would want to put about why the decision of Member Byers was not correct. No new arguments were identified but the Applicant claimed she would adduce ‘new evidence’ about expenses that should properly be allowed against business income, meaning that the debt would be less or nil.
When questioned about the nature of the expenses, how they would be identified, quantified and proved, the Applicant made vague and general statements about requiring the Respondent and Tribunal to inspect equipment and supplies or said that she was getting emails from some suppliers. The Applicant did not satisfactorily explain what the expenses were or why the claimed ‘new evidence’ had not been provided when Member Baulch conducted the merits review or when Member Byers heard the first review on 31 May 2018.
In addressing the explanation for delay in making her application, the Applicant relied on not having received the written decision when it was initially sent, her ill health and incapacity, and being absent from her home.
The Applicant did not give any specific evidence about the date she received a copy of the written decision dated 31 May 2018. Her evidence about when she accessed her mail and how incapacitated she was during June, July and August lacked reliability. It follows that the explanation for delay given by the Applicant was not satisfactory. However, this alone does not necessarily preclude the Tribunal from exercising its discretion to extend time.
If the Applicant had demonstrated that she had an arguable case and any prejudice to the Respondent did not warrant refusal of the extension of time, the Tribunal may have been persuaded to grant one because the Respondent properly conceded that the delay in this matter is not lengthy.
To assess if the Applicant has demonstrated an arguable case, the Tribunal must be mindful to properly identify what decision is under review. The Tribunal invited submissions about this topic because of the statement by Member Byers in the final sentence of [14] of the 31 May 2018 decision. Ultimately the Respondent’s counsel submitted that the statement by Member Byers was erroneous and that the Tribunal’s jurisdiction on review was limited to reviewing the ARO’s calculation of the amount of the debt only. The Applicant did not address this matter.
It is essential to keep in mind the scheme of review established for social security decisions. This Tribunal’s jurisdiction and power to review social security decisions is expressly provided by statute. In particular, Part 4A of the Social Security (Administration) Act 1999 establishes a two tier system of review and expressly provides for the types of decisions amenable to review by the two divisions of the Administrative Appeals Tribunal (the AAT).
It is important to emphasise that the second tier review which the Applicant seeks to invoke now is confined to reviewing the decision of the AAT on first review.[7] The decision on first review contained two elements. First, Member Byers determined that the decision of the ARO which he was empowered to review was a decision limited by the terms of the decision to set aside and the direction made by Member Baulch on 14 September 2017. Secondly, he decided that the recalculation of the debt as directed by Member Baulch’s decision was correct and so he affirmed the decision that the Applicant was indebted in the sum of $148,114.25.
[7] Section 179(1) of the Social Security (Administration) Act 1999.
If an extension of time is granted to the Applicant to proceed with the second review, the function of this Tribunal will accordingly be to consider if Member Byers was correct to decide what he did as set out above.
The Tribunal is reinforced in this conclusion by the sentiments expressed by the Federal Court in Theo v Secretary, Department of Family and Community Services [2005] FCA 880. At [48] of that decision, French J stated:
None of the above provisions in my opinion confers upon the AAT in reviewing an SSAT decision to do anything more than the SSAT or the officer whose decision was affirmed by the SSAT was empowered to do. On that basis there was no power in the AAT to substitute for the cancellation decision a decision that payment of age pension be made calculated at then current rates. A fortiori there was no power in the Secretary to whom the question of calculation was remitted to calculate the rate of back payment according to current rates …
The Court was addressing the nature and relationship between decisions of the SSAT and the AAT before amalgamation of the Tribunals. Despite this, the reasoning applies equally because of the correlation between the nature and system of review before and after amalgamation, and the introduction of Part 4A to the Social Security (Administration) Act 1999 upon amalgamation. The two tiered system of review remains substantially unchanged.
The ARO’s decision involved the exercise of limited decision-making power under the direction made by Member Baulch to recalculate the debt owed according to the terms of the direction. This is the consequence of s 147 of the Social Security (Administration) Act 1999 which provides for the type of decision that can be made upon first tier review.
When Member Byers reviewed the ARO decision, he was in turn reviewing the limited decision about the recalculation of the debt, not some wider decision about the nature and existence of the debt.[8] To conclude otherwise would be to, in effect, permit him to review the decision of Member Baulch, which is impermissible under the statutory scheme of review referred to at [38]-[39].
[8] Section 147 of the Social Security (Administration) Act 1999 which adopts s 43(1)(a) of the AAT Act.
Consequently, to demonstrate an arguable case in respect of the correctness or otherwise of Member Byers’ decision, the Applicant would need to have identified some type of argument relating to the decision as described above at [36]. That may include an argument that there were mathematical errors in the recalculations or expenses that were to be deducted according to the direction were not in fact deducted. Alternatively, the Applicant would need to have raised an argument that Member Byers had erred in respect of his conclusions about the decision under review, jurisdiction or powers he could exercise.
The Applicant has not advanced any arguments of this kind. Instead, by her evidence and submissions, it is abundantly clear that she simply wishes to re-agitate issues that have been determined on merit by Member Baulch’s decision, a decision in respect of which she has been previously refused an extension of time for review.
The Applicant received a copy of the Respondent’s submissions opposing the extension of time but did not offer any persuasive rebuttal of the content of the submissions. The Applicant has past experience of reviews to this Tribunal. She was at all relevant times aware of the time limit involved in seeking a second review under the AAT Act. She does not claim otherwise. The Tribunal is not satisfied that the Applicant has identified an arguable case.
The Tribunal is of the view that granting an extension of time would result in wastefully engaging public resources for unmeritorious arguments. This would be contrary to public interest and the interests of justice.
DECISION

For all these reasons, the Tribunal is not persuaded that it is reasonable in all the circumstances to grant the extension of time sought. The application for extension of time is refused.

I certify that the preceding 46 (forty -six) paragraphs are a true copy of the reasons for the decision herein of Ms S Taglieri SC, Member

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Associate
Dated: 18 October 2018

Date(s) of hearing: 10 October 2018

Applicant: By phone

Counsel for the Respondent: Mr B Sparkes, FOI and Litigation Branch, Department of Human Services

Date(s) of hearing:	10 October 2018
Applicant:	By phone
Counsel for the Respondent:	Mr B Sparkes, FOI and Litigation Branch, Department of Human Services