Harvy and Secretary, Department of Employment and Workplace Relations

[2005] AATA 832

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2005] AATA 832

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No  Q2005/461

GENERAL ADMINISTRATIVE DIVISION		)
Re		SIMON PETER HARVY

Applicant

And SECRETARY, DEPARTMENT OF EMPLOYMENT AND WORKPLACE RELATIONS

Respondent

DECISION

Tribunal Senior Member B J McCabe

Date23 August 2005

PlaceBrisbane

Decision The application for an extension of time to lodge an appeal is denied.

................[Sgd].........................

SENIOR MEMBER

CATCHWORDS

PRACTICE AND PROCEDURE – Application for review – application for an extension of time to lodge application – application lodged 12 weeks out of time – applicant’s reasons for delay considered – no prejudice to the Commonwealth or applicant’s case – substantive merits of the case considered – application for an extension of time to lodge appeal refused.

Social Security Act 1991 (Cth) s 1061A

Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344; (1984) 58 ALR 305; (1984) 7 ALD 315

Comcare v A'Hearn (1993) 45 FCR 441; (1993) 119 ALR 85; (1993) 18 AAR 366

WRITTEN REASONS FOR ORAL DECISION

30 August 2005 Senior Member B J McCabe

1. Simon Peter Harvy receives the disability support pension (DSP). Each year in January, it was his custom to seek an advance payment of DSP. His application for an advance payment to be made in January 2003 was rejected. The respondent declined to make that payment because (the respondent says) there was insufficient evidence Mr Harvy would be able to repay the advance in light of his financial circumstances. He was ultimately paid the advance on 23 April 2003. Mr Harvy agrees the payment was made on or about that date. He subsequently applied for a fresh advance at the end of 2004. He was told he was not eligible to receive an advance payment until 12 months had elapsed after the last payment. Mr Harvy appealed that decision to the Social Security Appeals Tribunal (SSAT), which affirmed Centrelink’s decision. He was advised of his appeal rights, but he delayed before filing his appeal with this Tribunal. His application was lodged 12 weeks out of time. He has asked the Tribunal for an extension of time pursuant to s 29(7) of the Administrative Appeals Tribunal Act 1975.

2.      I declined to grant an extension of time after hearing from the applicant (who appeared in person) and Mr Ffrench from Centrelink, and after reviewing the relevant provisions of the Social Security Act 1991. Mr Harvy indicated he required a written statement of reasons.

3.      Mr Harvy has a difficult relationship with Centrelink. I understand he has complained to a number of bodies about his treatment. This request for an extension of time relates to the decision to reject the application for an advance in January 2005. I am not in a position to address the other matters Mr Harvy raised.

4. Section 29(7) of the Administrative Appeals Tribunal Act 1975 says the Tribunal may grant an extension of time in appropriate circumstances. The authorities (most obviously Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344 suggest the Tribunal should have regard to several factors when considering whether or not to exercise the discretion, including:

·Whether or not the applicant has a proper excuse for the delay (although the Federal Court subsequently observed in Comcare v A’Hearn (1993) 45 FCR 441 that the absence of a reasonable excuse need not be fatal to the application);

·The prejudice to the respondent if the extension of time is granted; and

·The merits of the case.

5.      Mr Ffrench conceded there was no question of prejudice to the Commonwealth in this case.

6.      The applicant says he was ill at the time his appeal to the SSAT was heard. He spoke of spending time in hospital during this period. He also spoke of unspecified difficulties caused by stalkers. He said the stalkers were related to people from Centrelink. The combination of illness and stalkers overwhelmed him and distracted him from the exercise of his appeal rights, he claimed.

7.      The applicant’s claim about stalkers seems unlikely. It was unclear from the evidence how much time he spent in hospital due to illness. I was not convinced he had a good excuse.

8. The application is doomed to fail in any event. Section 1061A(4)(c) says:

A person is not qualified for an advance payment if:

… (c) the person has received the amount of an advance payment in a single lump sum, or has received the first instalment of such an amount, on or after 1 January 1997, and the period of 12 months from the day the lump sum or instalment was paid has not elapsed; …

9.      The applicant concedes he received a payment on or about 23 April 2004. The legislation ties the hands of the respondent in those circumstances: the Secretary cannot provide the applicant with an advance until 12 months have passed from the date of the last advance. That means the earliest date on which the respondent can pay an advance is 23 April 2005. I note the respondent provided an advance on or about that date.

10. There is no point proceeding to a hearing. The discretion in s 29(7) should not be exercised. The application for an extension of time is refused.

I certify that the 10 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member B J McCabe.

Signed:         .....................................................................................
  Associate:      Sam J Appleton

Date of Hearing  23 August 2005
Date of Decision  23 August 2005
Date of written reasons             30 August 2005
The applicant appeared in person.
The respondent was represented by Mr Ffrench, department advocate.