Hicks and Secretary, Department of Education, Employment and Workplace Relations

[2008] AATA 1049

CATCHWORDS – SOCIAL SECURITY – extension of time – earlier application dismissed by operation of s 182, Social Security (Administration) Act 1999 after parties entered agreement – whether was agreement – effect of agreement – consequence of dismissal of application – whether applicant estopped from lodging further application for review – principles in considering application for extension of time – application for extension refused.

Administrative Appeals Tribunal Act 1975 ss 2A, 25, 27, 29, 42A, 44
Archives Act 1983 s 24(2)(b)
Social Security Act 1991 ss 23, 540, 541, 541B, 1222A, 1223, 1235, 1237(1), 1237A, 1237AAD
Social Security (Administration) Act 1999 ss 68, 179, 180, 182

Taxation Administration Act1953

Bogaards v McMahon (1988) 80 ALR 342
Bramwell v Repatriation Commission (1998) 158 ALR 623; 51 ALD 56
Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541; 139 ALR 1
Brown v Federal Commissioner of Taxation (1999) 99 ATC 4516; 42 ATR 118; [1999] FCA 563
Budd v Secretary, Department of Education, Employment and Workplace Relations [2008] FCA 1540
Carl Zeiss Stiftung v Rayner & Keeler Ltd (No 2) [1967] 1 AC 853
Chalk v Commissioner for Superannuation (1994) 50 FCR 150; 33 ALD 420
Child v Commonwealth Development Bank [2000] NSWCA 256
Comcare v A’Hearn (1993) 45 FCR 441; 119 ALR 85
Commercial Bank of Australia v Amadio (1983) 151 CLR 447; 46 ALR 402
Commonwealth v Sciacca (1988) 17 FCR 476; 78 ALR 279
Commonwealth v Verwayen (1990) 170 CLR 394; 95 ALR 321
Derry v Peek (1989) 14 AC 337
Federal Commissioner of Taxation v Brown [1999] FCA 1198
Formosa v Secretary, Department of Social Security (1988) 46 FCR 117; 81 ALR 687; 15 ALD 657
Groth v Secretary, Department of Social Security (1995) 40 ALD 541
Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344; 58 ALR 305; 7 ALD 315
John McGrath Motors (Canberra) Pty Ltd v Applebee (1964) 110 CLR 656
Midland Metals Overseas Limited v Comptroller-General of Customs (1991) 30 FCR 87; 24 ALD 424
Minister for Immigration and Ethnic Affairs v Kurtovic (1990) 21 FCR 193; 92 ALR 93
Minister for Immigration and Multicultural Affairs v Daniele (1981) 61 FLR 354; 39 ALR 649; 5 ALD 135
Petelin v Cullen (1975) 132 CLR 355; 6 ALR 129
Pham v Commonwealth of Australia [2002] FCA 669
Phillips v Australian Girls’ Choir Pty Ltd & Anor [2001] FMCA 109
Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589; 36 ALR 3
Re Mulheron and Australian Telecommunications Corporation (1991) 23 ALD 309
Re Rana and Military Rehabilitation and Compensation Commission
Secretary, Department of Family and Community Services v Chamberlain (2002) 116 FCR 348; 71 ALD 423
Smith v Hughes (1871) LR 6 QB 597
Sola Optical Australia Pty Ltd v Mills (1987) 163 CLR 628; 75 ALR 513
Taylor v Johnson (1983) 151 CLR 422; 45 ALR 265
Windshuttle v Commissioner of Taxation (1993) 46 FCR 235; 93 ATC 4992; 27 ATR 88

DECISION AND REASONS FOR DECISION [2008] AATA 1049

ADMINISTRATIVE APPEALS TRIBUNAL     )

)       2008/3298
GENERAL ADMINISTRATIVE DIVISION     )

Re:STEVEN HICKS

Applicant

And:SECRETARY, DEPARTMENT OF EDUCATION, EMPLOYMENT AND WORKPLACE RELATIONS

Respondent

DECISION

Tribunal:                   Deputy President S A Forgie
Date:  21 November 2008
Place:  Melbourne

Decision:The Tribunal has decided to refuse the applicant’s application to extend the time within which to lodge an application for review of a decision of the Social Security Appeals Tribunal affirming a decision of the respondent dated 4 November 2004 and varied on 1 February 2005.

S A Forgie

Deputy President

REASONS FOR DECISION

A delegate of the Secretary of the Department of Education, Employment and Workplace Relations (Secretary) decided to raise and recover a debt of Youth Allowance from Mr Steven Hicks. The delegate did so on 4 November 2004 on the basis that Mr Hicks had not notified Centrelink when he ceased to be a full-time student as it had asked him to do. The decision was varied on 1 February 2005 to vary the period in relation to which the debt was raised. The Social Security Appeals Tribunal (SSAT) affirmed the decision. After Mr Hicks applied to this Tribunal for review of the SSAT’s decision, the Secretary and Mr Hicks entered an agreement under s 182 of the Social Security (Administration) Act 1999 (SSA Act). Under their agreement, Mr Hicks did not have to pay back the whole of the debt. When the Secretary, through Centrelink, gave the Tribunal a copy of that agreement, the effect of s 182 was to dismiss Mr Hicks’ application for review and so bring it to an end. Mr Hicks has now asked that the Tribunal extend the time in which he can lodge an application for review so that he can lodge another application for review of the same decision regarding recovery of the Youth Allowance. I have decided to refuse his application. That means that he is unable to seek review and his obligation to pay the amount agreed with the Secretary remains in place.

BACKGROUND

1. In this section of my reasons, I set out the facts as I understand them to be having taken into account Mr Hicks’ statements during the hearings, Mr Carson’s understanding of them and the reasons of the SSAT.

Payment of Youth Allowance

1. During 2002, Mr Hicks was a full-time student and was paid a Youth Allowance on that basis.  In 2003, he undertook studies on a full time basis at the Northern Melbourne Institute of TAFE.  He was studying for a Diploma of Horticulture.  Centrelink wrote to him in 2003 regarding the payment of his Youth Allowance.  On the basis of the content of two letters dated 25 September 2003 and 23 October 2003 and the payment of a Youth Allowance on a fortnightly basis, I am satisfied that the letters were sent to Mr Hicks each fortnight.  In addition to giving him details of the payment and the withholdings to repay a lump sum advance previously made to him, each letter gave him information about taxation, when to contact Centrelink and what to tell it.  Of relevance to this case, are the following statements found in each letter:

   “WHEN TO CONTACT US

   You must tell us within 14 days about events or changes in circumstances affecting your payment.  You can tell us by writing, phoning or coming into any of our offices.  This is an information notice given under the social security law.

   The rate of your Youth Allowance may need to be adjusted if there are changes in your circumstances.  If you are paid too much allowance because you don’t tell Centrelink when you are required to do so, Centrelink may recover money from you.  There are also penalties for not telling Centrelink what is required.

   WHAT YOU MUST TELL US

   If you …

   …

   stops (sic) being a full-time student;

   …”

1. The Institute advised Centrelink that Mr Hicks stopped studying at the end of Semester 2 2003 and so from 23 December 2003.  The Secretary’s position is that Mr Hicks did not advise it of his having stopped.  It is clear from a letter dated 16 October 2003 that it had some notion that Mr Hicks was not a full-time student at the time.  It was later accepted that he was a full-time student at the time but I note the letter read, in part:

   “We need to make sure you have received the right amount of Youth Allowance.  One way of doing this is to compare records from educational institutions with our records.

   Our current records show that you are enrolled at Deakin University.  We have been unable to confirm your enrolment details for Semester/Term Number 1 this year with this institution.  If you have a document which confirms your enrolment details for this period eg notice of results, you will need to provide a copy of it to the Centrelink Student Review section.  If you don’t have any such document please check your details with your educational institution and ask them for proof of your enrolment for this period.  You will need to provide the Centrelink Student Review section with this information by 6 November 2003.

   If you are not a full-time student and in need of income support you will need to contact Centrelink.

   This is an information notice given under the social security law.  This means that you must contact us by 6 November 2003 to confirm or explain this information.  If you do not reply to this letter, your payments may be stopped and/or penalty imposed.

   …”

1. Centrelink sent Mr Hicks another letter in a form similar to those sent on 25 September and 15 October 2003.  It did so on 17 March 2004 and set out the amount of Youth Allowance that would be paid to him on 31 March 2004.  It contained the same information as had been included in the earlier letters.

1. Quite some time later on 13 September 2004, Centrelink again wrote to Mr Hicks about his Youth Allowance.  Its letter was written on the assumption that Mr Hicks was receiving Youth Allowance on the basis of his undertaking full-time study.  The letter asked Mr Hicks for details of his enrolment and the subjects undertaken.  If he was not a full-time student or had ceased study but was in need of income support, he was asked to contact Centrelink.

Youth Allowance debt raised

1. On 4 November 2004, a delegate of the Secretary decided to raise and recover a debt of being Youth Allowance paid to Mr Hicks.  The amount and the period was varied on 1 February 2005 so that the amount of the debt sought was $7,674.66 and related to the period 23 December 2003 to 3 October 2004.  Mr Hicks’ application to the SSAT was heard and decided on 22 June 2005.  Its decision was to affirm the Secretary’s decision.  Mr Hicks applied to the Tribunal for review of that decision. 

Agreement between Mr Hicks and the Secretary

1. In a letter dated 12 October 2005, an officer of the Centrelink Service Recovery Team wrote to Mr Hicks.  She did so on behalf of the Secretary and made an offer to settle the matter.  That offer was set out in a separate document entitled “Notice of Agreement to Settle Proceedings” (Notice).  The letter stated that the offer was available until 28 October 2005.  If Mr Hicks agreed with the proposed terms set out in the Notice, the officer asked him to sign and date it and return it to her.  She went on to write:

   “I note that the SSAT decision and the legislation that has been applied since the original decision was made.  The AAT will apply the same legislation as the SSAT, as had the original decision maker in respect of whether there are debts and financial hardship.

   I strongly suggest you contact Victoria Legal Aid, in relation to this offer and the prospect of success of your case, and speak to one of their lawyers who can provide you with either telephone or face to face legal advice.  You can contact … on (03) ….

   Please don’t hesitate to ring me on (03) … if you want to discuss the proposed terms or any other aspect of this matter.”

1. The Notice read:

   “1.      These proceedings relate to the recovery of a debt.

   2.The parties have agreed to settle the matter in the following terms:

   I)These proceedings relate to the recovery of Youth Allowance of $7,674.66 for the period 23/12/03 to 3/10/04.

   II)The total amount to be presently recovered is $7532.80, as the applicant has repaid $141.86 to date.

   III)The respondent has offered to waive the recovery of $2302.40 of the debt, within 28 days of the AAT finalising the matter. The remainder of the $5230.40 is to be paid through minimum $15 fortnightly withholdings, pursuant to sections 182 of the Social Security (Administration) Act 1999 and 1237A of the Social Security Act 1991.

   3.The application for review of the decision that is the subject of these proceedings is to be taken to have been dismissed pursuant to section 182 of the Social Security (Administration) Act 1999.”

1. Mr Hicks signed the Notice on 2 November 2005 and returned it to Centrelink with a letter dated 28 October and addressed to the officer who wrote the letter.  He wrote:

   “This offer, made by the Department of Education, Science and Training, is only accepted due to the appeals tribunal not having legislation to waive the matter due to centerlink’s incompetence.  I Steven Hicks accept this as I have no other option.  I Steven Hicks do not admit to providing wrong or no information on the argued matter.”

The Tribunal acknowledged receipt of the signed agreement in a letter dated
2 November 2005.

LEGAL FRAMEWORK AGAINST WHICH APPLICATION CONSIDERED

Entitlement to Youth Allowance

1. Section 540 of the Social Security Act 1991 (SS Act) sets out the criteria that a person must meet before being qualified to receive Youth Allowance.  Among those criteria are that the person is of “youth allowance age”[1] and that, if required to do so, the person satisfies the activity test.  Mr Hicks was required to satisfy the activity test.  That test is set out in s 541, which provided in part in 2003 when the Youth Allowance was paid to Mr Hicks:

   “         Subject to section 541A and subsection (3) of this section, a person satisfies the activity test in respect of a period if:

   (a) the person satisfies the Secretary that, throughout the period, the person is undertaking full-time study (see section 541B); or

   (b) the person satisfies the Secretary that, throughout the period, the person is actively seeking, and willing to undertake, paid work in Australia (other than paid work that is unsuitable for the person); or

   (c) the person takes reasonable steps, throughout the period, to comply with the terms of a Youth Allowance Activity Agreement applying to the person; or

   (d) the person takes reasonable steps to comply, throughout the period, with a requirement of the Secretary notified to the person under subsection (2).

   …”[2]

   [1] SS Act, s 540(b)

   [2] SS Act, s 541(1)

1. Section 541B of the SS Act sets out when a person is undertaking full-time study.  I will not set out its provisions as Mr Hicks acknowledges that he was not studying on any basis during the relevant time.

Secretary’s power to waive a debt

1. The Secretary may waive a debt but only in the circumstances described in the provisions specified in s 1237(1) of the SS Act.  Of relevance in this case are ss 1237A and 1237AAD.

1. Section 1237A(1) provides that:

   “(1)   Subject to subsection (1A), the Secretary must waive the right to recover the proportion of a debt that is attributable solely to an administrative error made by the Commonwealth if the debtor received in good faith the payment or payments that gave rise to that proportion of the debt.

   Note:    Subsection (1) does not allow waiver of a part of a debt that was caused partly by administrative error and partly by one or more other factors (such as error by the debtor).

   (1A)  Subsection (1) only applies if:

   (a)the debt is not raised within period of 6 weeks from the first payment that caused the debt; or

   (b)if the debt arose because a person has complied with a notification obligation, the debt is not raised within a period of 6 weeks from the end of the notification period;

whichever is the later.”

1. Section 1237AAD provides that:

   “The Secretary may waive the right to recover all or part of a debt if the Secretary is satisfied that:

   (a)the debt did not result wholly or partly from the debtor or another person knowingly:

   (i)making a false statement or a false representation; or

   (ii)failing or omitting to comply with a provision of this Act, the Administration Act or the 1947 Act; and

   (b)there are special circumstances (other than financial hardship alone) that makes it desirable to waive; and

   (c)it is more appropriate to waive than to write off the debt or part of the debt.”

1. Each section refers to the word “debt” and gives the Secretary power to waive a “debt”.  That word does not refer to any debt to the Commonwealth however incurred.  It refers only to a “debt” as defined by s 1235 of the SS Act.  That section provides that, in Part 5.4 of Chapter 5, a debt means, among other things:

   “(a)     a debt recoverable by the Commonwealth under Part 5.2; …”[3]

   [3] SS Act, s 1235(a)

When does a payment by Centrelink become a debt due to the Commonwealth?

1. Section 1222A in Part 5.2 of Chapter 5 of the SS Act answers the question I have posed in the heading by providing, in so far as it is relevant to this case, that:

   “If an amount has been paid by way of social security payment, the amount is a debt due to the Commonwealth if, and only if:

   (a)a provision of this Act … expressly provided that it was or expressly provides that it is, as the case may be; or

   (b)…”

1. Again in so far as it is relevant, s 1223(1) provides:

   “… if:

   (a)a social security payment is made; and

   (b)a person who obtains the benefit of the payment was not entitled for any reason to obtain that benefit;

   the amount of the payment is a debt due to the Commonwealth by the person and the debt is taken to arise when the person obtains the benefit of the payment.”

1. Section 1223(1AB) provides in part that:

   “Without limiting by implication the circumstances to which paragraph (1)(b) applies apart from this subsection, a person who obtained the benefit of a social security payment is taken not to have been entitled to obtain the benefit if the payment should not have been made for any one of the following reasons:

   (a)the payment was made to the person by mistake as a result of a computer error or an administrative error;

   (b)the person for whose benefit the payment was intended to be made was not qualified to receive the payment;

   (c)the payment was not payable;

   (d)the payment was made as a result of a contravention of the social security law, a false statement or a misrepresentation;

   (e)…

   (f)…”

The term “social security law” used in s 1223(1AB) of the SS Act is a reference to that Act, the SAA Act or any other Act expressed to form part of the social security law.[4]

[4] SS Act, s 23(17) and see also s 23(18)

1. These waiver provisions all refer to a “social security payment” having been paid.  A “social security payment” includes “social security benefit” which, in turn, includes a Youth Allowance.[5]  Section 68(2) of the SSA Act provides that:

   “The Secretary may give a person to whom this subsection applies a notice that requires the person to do any or all of the following:

   (a)inform the Department if:

   (i)a specified event or change of circumstances occurs; or

   (ii)the person becomes aware that a specified event or change of circumstances is likely to occur;

   (b)give the Department one or more statements about a matter that might affect the payment to the person of the social security payment.

   (c)       …”

   [5] SS Act, s 23(1)

1. Section 68(5) provides that:

   “An event or change of circumstances is not to be specified in a notice under this section unless the occurrence of the event or the change of circumstances might:

   (a)affect the payment of the social security payment …;

   (b)…”

Agreement to settle proceedings relating to recovery of debt in the context of s 182

1. Subdivision B of Division 5 of Part 4 of the SSA Act is headed “Right to review by AAT”.  The right to apply for a review by the Tribunal is given in respect of a decision which the SSAT has reviewed which it has affirmed, varied or set aside.[6]  The decision that is actually reviewed by the Tribunal is the operative decision rather than the decision of the SSAT to affirm, vary or set aside.  So, for example, when the SSAT has affirmed or varied a decision, the operative decision is the decision it reviewed or the decision as varied by it as the case may be.[7]  Section 180 allows an officer to vary a decision or to set it aside and substitute another after an application has been made to the Tribunal at any time before the Tribunal reviews the decision.[8]  The effect of that variation or substitution is that the application to the Tribunal is treated as if it were an application to review the decision as varied or substituted by the officer.[9]

   [6] SSA Act, s 179(1)

   [7] SSA Act, s 179(2)

   [8] SSA Act, ss 180(1)(a) and (2)(a)

   [9] SSA Act, s 180(1)(b) and (2)(b)

1. Some applications to the Tribunal seek review of decisions refusing to grant a pension, allowance or benefit to a person. They require the Tribunal to consider whether the person is entitled to that pension, allowance or benefit. Other applications seek review of decisions to recover money already paid by Centrelink to the person. They will also require the Tribunal to consider whether the person was entitled to the pension, allowance or benefit but may also be characterised as relating to the recovery of a debt. They are the sort of proceedings to which s 182(1) of the SSA Act applies when it provides:

   “The Secretary may agree with other parties to proceedings before the AAT that relate to the recovery of a debt that the proceedings be settled.”

1. The parties to “proceedings before the AAT” are, in the case of an application of this sort, the applicant and the person who made the decision or, in this case, that person’s delegate and so the Secretary. Where the applicant and the Secretary reach such an agreement, s 182(2) comes into play. It provides:

   “If proceedings are settled and the Secretary gives the AAT a copy of the agreement to settle the proceedings, the application for review of the decision the subject of the proceedings is taken to have been dismissed.”

When do parties agree?

1. I have considered this issue because Mr Hicks made statements to the effect that he was very unwilling to enter an agreement.  The ordinary meanings of the word “agree”, which is used in s 182(1), include:

   “… 2. (sometimes followed by with) to be of one mind; harmonise in opinion or feeling: I don’t agree with you. … 4. (sometimes followed by upon) to come to one opinion or mind; come to an arrangement or understanding; arrive at a settlement. …”[10]

   [10] Macquarie Dictionary, 4th edition, 2005, The Macquarie Library Pty Ltd

1. Two people must agree with each other before they can be said to have entered a contract but the fact that they may agree does not lead automatically to the conclusion that they have a contract. Despite that and despite the fact that I do not consider that s 182 is framed in terms of a contract, the law relating to contract may be relevant. Its relevance lies in the sense that, at the heart of a contract, must lie an agreement. After all, the ordinary meanings of the word “contract” include “… an agreement between two or more parties for the doing or not doing of some definite thing. …”.[11]  A contract may be void or voidable at law in certain circumstances where one or other of the parties has not had what has been called a “consenting mind”.[12]  The principles underpinning those circumstances may be relevant in deciding whether a person has agreed with the Secretary for the fact of a written agreement is but one indication (even though a strong indication) of whether there is in fact agreement.

   [11] Macquarie Dictionary, 4th edition, 2005, The Macquarie Library Pty Ltd

   [12] Petelin v Cullen (1975) 132 CLR 355; 6 ALR 129 at 359-360; 133

1. I will briefly refer to two circumstances in which the law recognises that two people may not have agreed.  Both relate to a misunderstanding of what was agreed.  Neither circumstance leads to an automatic conclusion that there is no agreement.

1. The first circumstance arises when the doctrine of non est factum is raised.  It is a doctrine directed to contractual arrangements between two parties.  In a contractual dispute, it is used as a defence, to an action brought by the other party to enforce the contract.  It is not used as a basis for avoiding duties and obligations.  The principles underpinning it are that a person should consent to entering contractual arrangements and that a person cannot properly consent if under a misapprehension as to what is going on.  At the same time, the doctrine recognises that a person must take responsibility for that person’s own actions and that the status quo should generally be retained.

1. The High Court explained the doctrine in Petelin v Cullen[13] saying that it was not capable of easy formulation and was available only as a defence to a limited

group of persons:

“… It is available to those who are unable to read owing to blindness or illiteracy and who must rely on others for advice as to what they are signing; it is also available to those who through no fault of their own are unable to have any understanding of the purport of a particular document.  To make out the defence a defendant must show that he signed the document in the belief that it was radically different from what it was in fact and that, at least as against innocent persons, his failure to read and understand it was not due to carelessness on his part.  Finally, it is accepted that there is a heavy onus on a defendant who seeks to establish the defence.  All this is made clear by the recent decision of the House of Lords in Saunders v Anglia Building Society (Gallie v Lee) …”[14]

[13] (1975) 132 CLR 355; 6 ALR 129

[14] (1975) 132 CLR 355; 6 ALR 129 at 359-360; 133

1. Carelessness is different from an inability to have an understanding.  In the context of the doctrine, it is a reference:

   “… to a mere failure to take reasonable precautions in ascertaining the character of a document before signing it.  The insistence that such precautions should be taken as a condition of making out the defence is of fundamental importance when the defence is asserted against an innocent person, whether a third party to the transaction or not, who relies on the document and the signature which it bears and who is unaware of the circumstances in which it came to be executed.  It is otherwise when the defence is asserted against the other party to the transaction who is aware of the circumstances in which it came to be executed and who knows (because the document was signed on his representation) or has reason to suspect that it was executed under some misapprehension as to its character.  In such a case the law must give effect to the policy which requires that a person should not be held to a bargain to which he has not brought a consenting mind for there is no conflicting or countervailing consideration to be accommodated – no innocent person has placed reliance on the signature without reason to doubt its validity.”[15]

   [15] (1975) 132 CLR 355; 6 ALR 129 at 360; 134

1. One of the essential features of the doctrine is that the document signed by the person must be “radically different” from the document that the person thought he or she was signing.  The High Court in Petelin v Cullen did not give any guidance as to what is meant by “radically different”.  In that case, though, Mr Petelin thought that he was signing a receipt when he was actually signing a six month extension of a lapsed option for Mr Cullen to purchase his land.  The High Court held that the defence succeeded in that case.  Commenting upon the case, Handley JA, with whom Stein and Heydon JJA agreed in Child v Commonwealth Development Bank,[16] described the difference between the two documents as “radical on any view”.[17]  He did not give any guidance either but concluded that:

   “… In my judgment a sentimental preference, however strong, for one grazing property to be mortgaged rather than another to secure the same debt did not, in the circumstances of this case, make the mortgage over ‘Sneaths’ essentially different in substance or in kind from the mortgage over ‘Ewandon’.  Accordingly I would reject the defence of non est factum …”[18]

   [16] [2000] NSWCA 256

   [17] [2000] NSWCA 256 at [26]

   [18] [2000] NSWCA 256 at [27]

1. Given the emphasis of the doctrine of non est factum on the presence, or more importantly, the absence of a consenting mind, reference to its principles may assist in deciding whether a person has agreed within the meaning of s 182 of the SSA Act.

1. The second circumstance that may be relevant in considering whether there has been agreement arises from the law relating to mistake in the law of contract.  The Australian authorities on mistake are more sparse than the English and the principles on which they are based are sometimes difficult to distil.  They are, however, clear that a mistake by one party to a contract, and so a unilateral mistake, may render a contract void.  Mistakes may be made as to the identity or existence of the other party to the contract and as to the terms of the contract.  They are discussed in Contract Law in Australia by JW Carter, Elisabeth Peden and GJ Tolhurst.[19]  In relation to a mistake as to the terms of a contract, it is clear that not all mistakes will render a contract void.  So, for example, a mistake as to the quality of goods that a person is buying, as opposed to the character of the goods, is not necessarily sufficient and that is illustrated by a case such as Smith v Hughes.[20] In so far as the principles of mistake can be extrapolated to assist in deciding whether there has been agreement for the purposes of s 182 of the SSA Act, it will not be every mistake that will lead to a conclusion that a person has not agreed with the Secretary. There may well be agreement even though a person or the Secretary made, for example, an arithmetical error.

   [19] 5^th edition, 2007, Butterworths, Chapter 20

   [20] (1871) LR 6 QB 597

1. Other situations occur in which a court may set a contract aside if one party to a contract has engaged in unconscionable conduct in order to influence the other party to enter the contract, if the terms of the contract are unconscionable[21] or if a misrepresentation has been made by one party to the other.[22]  Misrepresentation may lead to a rescission of the contract in certain circumstances.  Those circumstances may include fraudulent misrepresentation.  That arises when a representation is made by a party to a contract who knows it to be untrue or who makes it recklessly not caring whether it is true or not and who intends that the other party should act upon it.  What is intended by the person making the representation is determined by reference to a subjective, and not objective, test.[23]

   [21] Commercial Bank of Australia v Amadio (1983) 151 CLR 447; 46 ALR 402 and Taylor v Johnson (1983) 151 CLR 422; 45 ALR 265

   [22] Derry v Peek (1989) 14 AC 337

   [23] John McGrath Motors (Canberra) Pty Ltd v Applebee (1964) 110 CLR 656 at 659-660 per Kitto, Taylor and Owen JJ

1. Setting aside a contract if one of these grounds is made out is a different matter from concluding that there never was agreement between the parties.  The effect of the authorities is that there was an agreement but that the agreement can be set aside either with or without conditions.  That means that principles relating to unconscionability and misrepresentation are not relevant in a consideration of whether a person has “agreed” as understood by s 182(1) and so reached an “agreement” with the Secretary as understood by ss 182(1) and (2) of the SSA Act. If there has been an agreement in fact, these principles cannot be relied upon to set it aside or to treat it as never having been made. That is not to say that unconscionability and misrepresentation would be irrelevant were they to be established. They would certainly be relevant in deciding whether to grant an extension of time within which to apply for review of the decision relating to the recovery of a debt.

Does a doctrine of estoppel apply to proceedings in the Tribunal?

1. Mr Carson submitted that, even if the time within which the application may be made were extended, the Tribunal would be estopped from reviewing the decision. He did not develop the estoppel argument in any great depth. In light of the previous authorities, it seems to me that estoppel has no place in proceedings in the Tribunal. Regard must always be had to the Tribunal’s sources of power. If that source of power requires the Tribunal to review a decision, it must do so. If the source of power has been exhausted, it may not. The source of power will be exhausted in relation to a particular decision and a particular application for review once the Tribunal has reviewed that decision on the application of that person. A consideration about the source of power is not a consideration of the principles of estoppel and it seems to me from the authorities that estoppel has no place in the Tribunal or in relation to s 182(2) of the SSA Act.

1. In support of that conclusion, I refer to my consideration of estoppel and its application to the Tribunal in Re Rana and Military Rehabilitation and Compensation Commission.[24]  It was a lengthy consideration and, while I do not intend to repeat it, I do adopt it.[25]  I will draw only on a couple of the conclusions that I reached in Re Rana after considering the authorities.

   [24] [2008] AATA 558

   [25] [2008] AATA 558 at [24]-[92]

1. The ordinary meaning of “estoppel” is that of:

   “a bar or impediment preventing a party from asserting a fact or a claim inconsistent with a position he or she previously took, either by conduct or words, especially where a representation has been relied or acted upon by others.”[26]

   [26] Macquarie Dictionary, 4th edition, 2005, The Macquarie Library Pty Ltd

1. It also has a wider meaning at law as was explained by Dixon J in Blair v Curran[27] as:

   “       A judicial determination directly involving an issue of fact or of law disposes once for all of the issue, so that it cannot afterwards be raised between the same parties or their privies.  The estoppel covers only those matters which the prior judgment, decree or order necessarily established as the legal foundation or justification of its conclusion, whether that conclusion is that a money sum be recovered or that the doing of an act be commanded or be restrained or that rights be declared.”

When used in this wider sense, the Privy Council succinctly specified the three essential elements that must exist if the doctrine is to apply:

“(1) that the same question has been decided; (2) that the judicial decision which is said to create the estoppel was final; and, (3) that the parties to the judicial decision or their privies were the same persons as the parties to the proceedings in which the estoppel is raised or their privies.”[28]

[27] (1939) 62 CLR 464 at 531-532 and approved in cases such as Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589; 36 ALR 3 at 597-599; 7-8

[28] Carl Zeiss Stiftung v Rayner & Keeler Ltd (No 2) [1967] 1 AC 853 at 935 per Lord Guest

1. There are many authorities in which estoppel has been considered in one or other of these sense.  As Ryan and Gyles JJ said In Miller v University of New South Wales,[29] “… it is difficult, if not impossible, to reconcile all that has been said in this array of authority.”[30]  I attempted a reconciliation in Re Rana under headings reflecting the main situations in which reference is made to estoppel although there are variations to be found in each.  They are: estoppel; issue estoppel; cause of action estoppel; res judicata; and Anshun estoppel.  They are situations that relate on the whole proceedings between the same parties in courts but there is reference to the effect on court proceedings on matters decided in a tribunal and to the effect in the tribunal of matters decided in a court.  There are also situations that apply to proceedings in the Tribunal where the parties have been engaged in earlier proceedings in the Tribunal or had earlier dealings between them and certain representations were made or facts conceded.

   [29] (2003) 132 FCR 147; 200 ALR 565

   [30] (2003) 132 FCR 147; 200 ALR 565 at 169; 584; [63]

1. None of these situations is deals with the situation in this case but there is a principle that is clear from the authorities.  The principle is that the Tribunal must look first to the source of its power to review a decision and then to the particular decision of which review is sought in every case.  That source will always be a legislative source of some sort.  It will set out the criteria that must be met before the Tribunal may exercise the power it gives to it.  If those criteria are satisfied in a particular factual situation, the Tribunal may proceed to exercise the power unless it has already exercised it in relation to that particular decision on an earlier occasion.  If it has already used that power to review that particular decision, it is said to have exhausted its power or to be functus officio.  Care must be taken to examine both the power and the decision because appearances can be deceptive.

1. I will illustrate these principles by reference to the judgment of Weinberg J in Bramwell v Repatriation Commission,[31] in which his Honour rejected the contention that estoppel applied.  He referred to Minister for Immigration and Multicultural Affairs v Daniele,[32] Commonwealth v Sciacca,[33] Midland Metals Overseas Limited v Comptroller-General of Customs[34] and Minister for Immigration and Ethnic Affairs v Kurtovic.[35]  His Honour did not analyse the authorities relying instead on the statement by the Full Court of the Federal Court in Commonwealth v Sciacca that:

   “A finding by an administrative tribunal will not give rise to an issue estoppel.”[36]

   [31] (1998) 158 ALR 623; 51 ALD 56

   [32] (1981) 61 FLR 354; 39 ALR 649; 5 ALD 135

   [33] (1988) 17 FCR 476; 78 ALR 279

   [34] (1991) 30 FCR 87; 24 ALD 424

   [35] (1990) 21 FCR 193; 92 ALR 93

   [36] (1998) 158 ALR 623; 51 ALD 56 at 635; 68

1. The facts of the case were these.  The Repatriation Commission had decided that the late Mr Bramwell had rendered operational service but that there was no reasonable hypothesis connecting his death with that service.  The Veterans’ Review Board (VRB) affirmed the decision and, in doing so, accepted that he had operational service without question.  When Mrs Bramwell applied to the Tribunal for review of the VRB’s decision, the Repatriation Commission contended that
   Mr Bramwell had not rendered operational service.  The Tribunal decided that
   Mr Bramwell had not rendered operational service and that his widow was not able to satisfy the more stringent standard of proof that inevitably followed that decision.  It affirmed the decision of the Commission as affirmed by the VRB.

1. Weinberg J referred to s 175(1)(a) of the Veterans’ Entitlements Act 1986 (VE Act), which provides that, where a decision of the Repatriation Commission has been reviewed by the VRB and has been affirmed, an application may be made to the Tribunal for review of that decision.  The decision of the Repatriation Commission had been that Mr Bramwell’s death was not war-caused and that the claim for pension was refused.  His Honour said that:

   “         The fact that the delegate was prepared to treat the deceased as having rendered operational service while working towards the determination that his death was not war-related did not, in my opinion, quarantine that finding, and exclude it from the parameters of ‘the decision of the Commission that was so affirmed’, which decision formed the subject of review.

   In a case of merit review there is a distinction to be drawn between the decision of the Commission, as affirmed by the Board, and its reasons for decision. The tribunal is given the task of reviewing ‘the decision of the Commission that was so affirmed’ by the Board: s 175(1)(a). It is the whole of that decision which is to be reviewed. In merit review that must include a capacity to depart from the process of reasoning which led to that ultimate decision. In carrying out its statutory responsibility, the tribunal is in no way inhibited by the language of s 175(1) from reasoning to a conclusion upon a basis which differs from that which found favour with the Commission, and with the Board.

   …

   It was the function of the tribunal in reviewing the decision of the Commission, as affirmed by the Board, to consider the matter afresh.  It was, in other words, its task to conduct a merits review.  It was obliged to review that decision upon the material before it, together with the material which had been before the Commission and before the Board.  Its responsibility was to arrive at the correct and [sic] preferable decision.  This responsibility could not be discharged if the tribunal were prevented from considering what standard of proof should govern the resolution of the issue before it. ”[37]

   [37] Bramwell v Repatriation Commission (1998) 158 ALR 623; 51 ALD 56 at 631-632; 64-65

1. Weinberg J also considered whether the Tribunal should not have considered a contention that Mr Bramwell did not have operational service for it was unconscionable to permit the Repatriation Commission to change its position at that stage.  This argument was based on a form of estoppel by conduct recognised by the High Court in Commonwealth v Verwayen[38] and consistent with the ordinary meaning of the word “estoppel”, to which I referred at [38] above. Weinberg J dealt with this argument by referring to Formosa v Secretary, Department of Social Security.[39]  In that case:

   “… Davies and Gummow JJ, in a joint judgment, dealt with the question of estoppel at 695-6.  Their Honours concluded that estoppel has no role to play where the issues to be determined involved rights and obligations rather than the exercise of administrative decisions.  The authority of a decision-maker cannot be extended beyond that given by the statute through the mechanism of an estoppel.

   The question whether the deceased rendered operational service so as to bring into play the provisions of ss 8, 120(1) and (3) seems to me to involve the determination of rights and obligations rather than the exercise of any administrative discretions.  The principles laid down in Formosa are, therefore, strongly against this particular contention by the applicant.”[40]

   [38] (1990) 170 CLR 394; 95 ALR 321

   [39] (1988) 46 FCR 117; 81 ALR 687; 15 ALD 657

   [40] (1998) 158 ALR 623; 51 ALD 56 at 636; 68-69

2. The case of Bogaards v McMahon[41] looks at the issue from a different point of view.  The headnote summarises the proceedings and decisions leading to the proceedings before Pincus J in the Federal Court under the Compensation (Commonwealth Government Employees) Act 1971 (1971 Act) then in force:

   “         The applicant was being paid compensation arising from an injury sustained while an RAAF cadet.  Disputes arose concerning the proper rate of compensation to be paid, relating to questions of what future promotion position the cadet might have achieved.  On three occasions the tribunal made consent orders giving effect to a view of the law favourable to the applicant.  The tribunal was then invited to consider the point afresh, with a view to producing the result that two of its three previous orders and what had been done under them over a period of years would be invalidated.

   The tribunal held that it had jurisdiction to review the matters contained in the previous consent orders while hearing the fresh application (N87/899).  Prohibition, and a declaration, was sought restraining the tribunal from further proceeding with N87/899.”[42]

   [41] (1988) 80 ALR 342

   [42] (1988) 80 ALR 342 at 342

1. I would add that the Tribunal’s third decision directed the Commissioner for Employees’ Compensation (CEC) to make a determination in accordance with its decision.  The CEC did so and it was from that determination that the respondent sought review by the Tribunal.  Mr Bogaards argued that the Tribunal had previously decided the precise dispute so that it was now functus officio and could not do so again.  The Tribunal decided that it had jurisdiction to hear the matter as its previous decisions had been made by consent and the issues had not been tested.

1. Pincus J described the power and role of the Tribunal:

   “         The tribunal, whether or not constituted by a judge, is one of a class which does not in general exercise judicial power: Drake v Minister for Immigration and Ethnic Affairs (1979) 24 ALR 577 at 584. Such bodies, however, may have the function of ascertaining facts and applying the law to them: R v Trade Practices Tribunal; Ex parte Tasmanian Breweries Pty Ltd (1970) 123 CLR 361 at 411.  The decisions of the tribunal may be based on, or indeed consist of, determination of questions of law is necessarily implicit in
   s 44(1), which gives the right of appeal to this court on such questions, and s 43(2B) recognises its right to resolve questions of fact.

   The tribunal may, if an application before it succeeds, make an order which is then deemed to be a decision of the original decision maker under s 43(6).  It may, in such a case as this, substitute its own decision for the determination of the delegate; but that substituted decision cannot be itself the subject of a further application to the tribunal, as s 43(6) makes clear.

   The other sort of decision the tribunal can make is to remit the matter ‘for reconsideration in accordance with any directions or recommendations of the tribunal’ under para (ii) of s 43(1)(c); then s 43(6) does not apply.

   It is noticeable that the AAT Act nowhere says expressly whether either sort of decision is binding.  It is necessarily implicit in the provisions relating to the first class of decision just discussed (that is, those where the tribunal substitutes a new decision for that challenged) that the Tribunal’s decision is at least as binding as that which was challenged.  The binding quality of decisions of the other sort, where the matter is merely remitted for reconsideration, is not so obvious.  Whatever may be the position as to ‘recommendations’ of the tribunal, in my opinion the word ‘directions’ imports a binding quality.  The intention is that the directions shall constrain the decision maker in making his new decision, and that the new decision may not lawfully be made in a way which conflicts with the directions.  In Spackman v Plumstead District Board of Works (1885) 10 App Cas 229 at 235, Lord Selborne LC, spoke of a statute providing for an administrative decision:

   ‘… “decided” implies that there is a matter which may admit of difference, which may require a determination.  Prima facie that would mean determination so as to bind those who are to be affected by it.’

   It would seem easy enough to conclude that, to the extent that the tribunal deals directly with a decision under review (for example, by substituting another), its functions are exhausted.  It would be absurd to suppose that the legislature intended that the tribunal, having on Monday set aside a decision under review, should have jurisdiction on Tuesday (on precisely the same facts) to affirm it, perhaps acting by a different member.  The same result must follow where the tribunal’s decision is made by consent; at least as a general rule, a consent order can support a plea of res judicata …”[43]

   [43] (1988) 80 ALR 342 at 349-350

What is the consequence of the proceedings being taken to have been dismissed?

1. As Mr Carson submitted, s 42A(6) of the AAT Act has no application in a case such as this.  That section provides:

   “If, under this Act, the Tribunal dismisses an application or an application is dismissed on its behalf, the proceeding to which the application relates, unless it is reinstated under subsection (9) or (10), is taken to be concluded.”

The reference to an application’s being “dismissed on its behalf” must be read as qualified by the opening words to the subsection i.e. by the words “under this Act” being the AAT Act. That is a reference to s 42A(1B) of the AAT Act, which provides that the Tribunal is taken to have dismissed an application without proceeding to review the decision if the applicant notifies it that the application is discontinued or withdrawn. It cannot be a reference to s 182(2) of the SSA Act as the application is dismissed under it and so under the SSA Act. It is not dismissed under the AAT Act.

1. For all that, the result is the same.  The ordinary meanings of the word “dismiss” include:

   “… 6. to discard or reject. 7. to put off or away; lay aside, especially to put aside from consideration.  8. to have done with (a subject) after summary treatment. 9. Law to put out of court, as a complaint or appeal. …”[44]

What is rejected, laid aside, had done with or put out of the Tribunal is the “application for review of the decision the subject of the proceedings”.  The “proceedings” referred to in s 182(2) are those referred to in s 182(1) i.e. “proceedings before the AAT that relate to the recovery of a debt”.  Therefore, it is the application for review that is at an end or, to use the expression adopted in s 42A(6) of the AAT Act in another context, “is … concluded’.  In the absence of any legislative provision to the contrary, the end of the application cannot be read as an affirmation of the decision under review or any expression on the correctness or otherwise of the decision under review.  It cannot be understood as any expression of the Tribunal’s exercising its powers of review whether under s 43 of the AAT Act or otherwise.

[44] Macquarie Dictionary, 4th edition, 2005, The Macquarie Library Pty Ltd

1. This conclusion is consistent with the reasoning of Justice O’Connor, the then President of the Tribunal, in Re Mulheron and Australian Telecommunications Corporation.[45]  As her Honour noted:

   “         The distinction between a decision and a dismissal of an application was raised by Deputy President Thompson in Re Nolan and Minister for Immigration and Ethnic Affairs (unreported, No 3557, 29 August 1987):  “Section 42A provides simply for the dismissal of an application.  Such dismissal results in the termination of the proceedings on the application; consequently the decision of which review was sought remains unchanged.  But no decision is made to affirm the decision under review, as may be made after the hearing of an application for review”: at 2.  It follow that “the Tribunal may have exercised all of its powers in relation to a particular application when it dismisses it but it does not follow that it has exercised all of its power in relation to review of a decision.  If follows that the applicant may bring a fresh application to review that decision”: Re Nicholson and Secretary, Department of Social Security (1991) 21 ALD 537 at 544 per Deputy President Forgie.

   In my view this is an accurate statement of the effect of dismissal under s 42A. …”[46]

Does the fact that Mr Hicks entered an agreement with the Secretary prevent him from seeking to apply for review?

[45] (1991) 23 ALD 309

[46] (1991) 23 ALD 309 at 313-314

1. The question I have posed is a version of the question that Weinberg J asked himself in Bramwell v Repatriation Commission. Did Mr Hicks’ own conduct in settling the proceedings for review of the decision prevent him from later seeking review of that decision. It is conduct that might prevent him in a court proceeding but not in this Tribunal. Again, the matter must be considered by reference to the Tribunal’s power given to it by Parliament. Unless a legislative provision removes a person’s rights if that person engages in some form of conduct or takes a particular step, the person cannot give those rights away by engaging in that conduct or taking that step. There is no suggestion in the SSA Act generally or in s 182 in particular that the person’s rights are intended to be removed by settling the proceedings and entering the agreement.

Is the agreement of any significance?

1. The fact that the only legal consequence of the agreement is that the application for review of the decision is taken to be dismissed does not mean that the agreement is without any significance at all. It has practical consequences in that the recovery of the debt, if any, will be affected by the terms of the agreement. If any part of the debt remains to be recovered, the Secretary, through Centrelink, will take steps to recover it. The applicant will be have paid or be paying any amount of the debt still outstanding whether directly or by debiting other amounts payable to the applicant. The relative positions of Mr Hicks and of the Secretary changed as a result of their entering an agreement under s 182 and both, even though reluctantly in the case of Mr Hicks, will have altered their positions on the basis of it. It becomes a factor to be considered in the context of Mr Hicks’ application to extend the time to lodge a further application for review of the decision.

The power that Parliament has given the Tribunal to extend time

1. Parliament established the Tribunal when it passed the Administrative Appeals Tribunal Act 1975 (AAT Act).  Its main function is to review decisions, which have been made as a result of the exercise of powers given to decision-makers under other Acts or enactments and which Parliament has said the Tribunal may review.[47]  When an enactment provides that an application may be made to the Tribunal for review of a decision, any person whose interests are affected by such a decision may apply to the Tribunal for review of it.[48]  The person’s rights to apply are not unrestricted.  So, for example, a person cannot telephone the Tribunal to apply for review but must apply for review in writing.[49]  The person must apply for review within the time limits specified in s 29. 

   [47] AAT Act, ss 25(1) and (4)

   [48] AAT Act, s 27(1)

   [49] AAT Act, s 29(1)(a)

1. Generally, a 28 day period is allowed to lodge an application.  It is measured from the day on which a document setting out the terms of the decision is given to the person.[50]  That time may be extended.  Section 29(7) of the AAT Act provides that:

   “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.”

   [50] AAT Act, s 29(2)

The basis on which the Tribunal may exercise the power to extend time

1. In considering the manner in which the discretion to grant an extension should be exercised, regard is frequently paid to the principles set out by Wilcox J in Hunter Valley Developments Pty Ltd v Cohen.[51] In that case Wilcox J considered an application for extension of time pursuant to s 11 of the Administrative Decisions (Judicial Review) Act 1977 (ADJR Act) rather than s 29 of the AAT Act. After noting that s 11 does not set out any criteria to be followed in exercising the Court’s discretion and that there had been a number of decisions of judges of the Federal Court all sitting at first instance, he distilled six factors that are relevant in deciding to exercise the discretion. The first factor[52] was modified by the Full Court of the Federal Court in Comcare v A’Hearn.[53]  Allowing for that modification, the factors were summarised by Federal Magistrate McInnis, as he then was, in Phillips v Australian Girls’ Choir Pty Ltd & Anor[54] when he said:

   [51] (1984) 3 FCR 344; 58 ALR 305; 7 ALD 315

   [52] It read in part that “It is a pre-condition to the exercise of discretion in his favour that the applicant for extension show an ‘acceptable explanation of the delay’ and that it is ‘fair and equitable in the circumstances’ to extend time …”: (1984) 3 FCR 344; 58 ALR 305; 7 ALD 315 at 348; 310-311; 320

   [53] (1993) 45 FCR 441; 119 ALR 85

   [54] [2001] FMCA 109

   “         In the light of A’Hearn’s case, it is clear that at least one of the principles referred to by Wilcox J in the Hunter Valley decision needs to be modified namely that it should not be any longer regarded as law that the 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 pre-condition to the exercise of discretion in favour of the applicant for extension to show an acceptable explanation for delay or that it’s fair and equitable in the circumstances to extend time. In the light of the decision in Ahearn’s [sic] case it is useful to set out in modified form the relevant principles in relation to the exercise of the Court’s discretion when considering an extension of time in a human rights application based upon those principles distilled by Wilcox J in Hunter Valley as follows:

   1. There is no onus of proof upon an applicant for extension of time though an application has to be made. Special circumstances need not be shown, but the court will not grant the application unless positively satisfied it is proper to do so. The ‘prescribed period’ of 28 days is not to be ignored (Ralkon v Aboriginal Development Commission (1982) 43 ALR 535 at 550).

   2. It is a prima facie rule that the proceedings commenced outside the prescribed period will not be entertained (Lucic v Nolan (1982)
   45 ALR 411 at 416). It is not a pre-condition for success in an application for extension of time that an acceptable explanation for delay must be given. It is to be expected 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 pre-condition (Comcare v A'Hearn [1993] FCA 498; (1993) 45 FCR 441 and Dix v Client Compensation Tribunal (1993) 1 VR 297 at 302).

   3. Action taken by the applicant other than by making an application to the court is relevant in assessing the adequacy of the explanation for the delay.  It is relevant to consider whether the applicant has rested on his rights and whether the respondent was entitled to regard the claim as being finalised. (See Doyle v Chief of Staff (1982) 42 ALR 283 at 287).

   4. Any prejudice to the respondent, including any prejudice in defending the proceeding occasioned by the delay, is a material factor militating against the grant of an extension. (See Doyle at p 287).

   5. The mere absence of prejudice is not enough to justify the grant of an extension. (See Lucic at p 416).

   6. The merits of the substantial application are properly to be taken into account in considering whether an extension of time should be granted. (See Lucic at p 417).

   7. Considerations of fairness as between the applicant and other persons otherwise in a like position are relevant to the manner of exercise of the court’s discretion (Wedesweiller v Cole (1983) 47 ALR 528).”[55]

   [55] [2001] FMCA 109 at [10]

1. Cowdroy J approved and applied these factors in the context of s 44(2A)(a) of the AAT Act.[56]  They are, however, not factors that are applied rigidly for it is apparent from other judgments of the Federal Court that they are factors or principles that must be shaped by reference to the legislative context in which the power is given.  They were factors or principles developed by Wilcox J in Hunter Valley in the context of the ADJR Act. They were modified by the Full Court of the Federal Court in A’Hearn in the context of the extension of time provisions in s 29(7) of the AAT Act.  It may be that in a particular context the principles remain the same but it may be that they do not.  That this is so is clear from the observations made by Hill J in Brown v Federal Commissioner of Taxation.[57]

   [56] Budd v Secretary, Department of Education, Employment and Workplace Relations [2008] FCA 1540 at [19]. Section 44(2A) provides that an appeal instituted under ss 44(1) or (2) shall be instituted within the time set out in s 44(2A)(a) and in such manner as is prescribed by the Federal Court Rules: s 44(2A)(b). His Honour also noted at [18] that “Such principles were applied by Gray J in Pham v Commonwealth of Australia [2002] FCA 669, although in the context of s 46PO(2) of the Human Rights and Equal Opportunity Commission Act 1986 (Cth).”

   [57] (1999) 99 ATC 4516; 42 ATR 118; [1999] FCA 563 at 4523-4524; 127; [33]-[37]

1. By way of illustration, I note that the formulation of the power to extend time may affect the principles. The way in which it is formulated in s 11(1) of the ADJR Act, with which Wilcox J was concerned, differs from the way in which it is formulated in s 29(7) of the AAT Act. Whereas s 11(1) gives the court power to extend the time for lodgement “within such further time as the court concerned … allows”, s 29(7) provides that the Tribunal may extend the time if it “is satisfied that it is reasonable in all the circumstances to do so.”  In determining what is “reasonable in all the circumstances”, it seems to me that I should have regard not only to the principles set out by Wilcox J in the Hunter Valley case but that I should look further to more general considerations of the sort referred to in Chalk v Commissioner for Superannuation[58] and Brisbane South Regional Health Authority v Taylor[59] and to the Tribunal’s objective in s 2A of the AAT Act.  Section 2A provides that:

   “In carrying out its functions, the Tribunal must pursue the objective of providing a mechanism of review that is fair, just, economical, informal and quick.”

   [58] (1994) 50 FCR 150; 33 ALD 420

   [59] (1996) 186 CLR 541; 139 ALR 1

1. The apparent strengths or weaknesses of any applicant’s case are the subject of factor 6 in McInnis FM’s summary in Phillips v Australian Girls’ Choir Pty Ltd & Anor and were included by Wilcox J in the Hunter Valley case in his list.  The particular application for an extension of time will be relevant in deciding how those strengths and weaknesses are to be “properly to be taken into account”. An application for an extension of time for lodging an objection under the now repealed s 188A of the Income Tax Assessment Act 1936,[60] for example, might have led to a view of what might properly have been taken into account that is different from the view of what may properly be taken into account if the application were made under s 29(7) of the AAT Act.  The authorities may adopt what appear to be slightly different approaches although their ultimate conclusions are consistent i.e. a consideration of the merits of the substantive or substantial application does not translate into a requirement to undertake a full consideration of the merits of a substantive application were time extended and it were to be lodged. 

   [60] Similar provisions are now found in s 14ZW of the Taxation Administration Act 1953.

1. Von Doussa J explained their relevance of issues relating to the merits of the substantial application in Windshuttle v Commissioner of Taxation.[61]  His Honour said:

   “The issue which the AAT was required to consider was whether, for the purposes of the exercise of the discretion under s 188A [of the Income Tax Assessment Act 1936], the applicant’s case had prospects of success, and what those prospects were.  It is sufficient for that purpose, if the parties chose to so argue their case, to merely identify the factual assertions which the applicant made in the objection, and then to consider whether the application of the law to those assertions would bring about the result for which the applicant contends.  In other words the assertions can, if the parties so choose, be treated as pleadings are treated where an application is made to strike out an action on the ground that the pleadings disclose no cause of action.  On an application of that kind the true existence of the facts alleged in the pleadings is not explored by evidence.  That is left for the trial if there is an arguable case on the pleadings.  It would, of course, have been open before the AAT for the Commissioner to attack the history of the transaction asserted by the applicant.  If it could have been demonstrated that an essential part of that history was wrong, that would go directly to the prospects of success to the objection.  However the Commissioner chose not to attack the veracity of the facts alleged by the applicant, and this is understandable having regard to judicial pronouncements to the effect that where the issue is whether leave should be given to extend time it is inappropriate for the tribunal concerned to embark on a full scale trial of the merits of the underlying question which will be agitated only if time is extended.  See Barrett v Minister for Immigration, Local Government and Ethnic Affairs (1989) 18 ALD 129 at 130, Repatriation Commission v Tuite (1992) 37 FCR 571 at 577. It would not be appropriate on an application to extend time to seek to attack the facts alleged on the ground that the credit of the applicant, or that of supporting witnesses, should not be accepted. Arguments of that kind are best left for later consideration if and when an extension of time is granted. Only where there is some obvious and easily demonstrated flaw in the applicant's case would it be appropriate to challenge the factual basis for the asserted claim on an application to extend time.”[62]

   [61] (1993) 46 FCR 235; 93 ATC 4992; 27 ATR 88

   [62] (1993) 46 FCR 235; 93 ATC 4992; 27 ATR 88 at 243-244; 4999 and 95 and approved by Federal Commissioner of Taxation v Brown [1999] FCA 1198 at [12] per Drummond, Sackville and Hely JJ

1. In the later case of Brown v Federal Commissioner of Taxation, Hill J commented upon the relevance of particular principles set out in the Hunter Valley case to an application for an extension of time under the Taxation Administration Act1953.  The taxpayer had sought an extension of time within which to lodge an objection from an assessment but the Commissioner of Taxation (Commissioner) had refused it.  The Tribunal affirmed the Commissioner’s decision and the taxpayer appealed to the Federal Court.  Against that background, Hill J said:

   “… there is much to be said for the view that the merits of the objection are of less concern when an application for an extension of time to object is under consideration than would be the case where judicial review of an administrative decision is sought.  For it is only after the objection is lodged within the time which is extended that the Commissioner is placed under a duty to consider the objection and allow or disallow it or allow it in part.  I do not wish to be taken as saying that the merits of the objection are totally irrelevant.  For present purposes I am prepared to accept the view of von Doussa J in Windshuttle [v Deputy Federal Commissioner of Taxation (1993) 93 ATC 4992] that an applicant should show that he or she has an arguable case.  No doubt if the objection on the face of it is one which is frivolous or bound to fail as a matter of law it would be a futility to permit an extension of time to enable it to be considered.  But this points to quite a low threshold.  What is involved is whether the objection on its face discloses a case which is arguable, not whether having regard to other matters, including evidence which may not even be known to the taxpayer at the time of making the application, the case is one that the taxpayer will or will probably lose.”[63]

   [63] (1999) 99 ATC 4516; (1999) 42 ATR 118; [1999] FCA 563 at at 4526-7; 131; [56]

1. While his Honour’s comments were noted on appeal, the Full Court made no particular observation other than to clarify the Tribunal’s power to have regard to the apparent strengths and weaknesses of the taxpayer’s case.[64]  It said:

   “28 We wish to make it clear, however, that the AAT is not precluded from taking into account the apparent strength or weakness of taxpayer’s case, when determining whether an extension of time should be granted, if the overall circumstances are such that the apparent strength or weakness of that case is properly to be regarded as a material consideration.  In the present case, for example, while the AAT should not have resolved the application by rejecting the taxpayer’s evidence as unworthy of belief, it could have taken into account the obvious difficulties confronting the taxpayer’s claim when deciding whether, in the light of all the circumstances, an extension of time was appropriate.  The AAT might well have concluded that, having regard to the taxpayer’s delay in lodging the application, the fact that he had been prepared at one stage to accept that the assessed amount was income and the contemporaneous documentary evidence casting doubt upon his claims, the case did not warrant an extension of time.  But this is not the basis on which the AAT chose to proceed.”[65]

   [64] Federal Commissioner of Taxation v Brown (1999) 99 ATC 4852; 42 ATR 672; [1999] FCA 1198

   [65] Federal Commissioner of Taxation v Brown(1999) 99 ATC 4852; 42 ATR 672; [1999] FCA 1198 at at 4860; 680-681; [28]

1. The spirit in which an application for an extension should be approached is a matter that Davies J, with whom Black CJ agreed, considered in Chalk v Commissioner for Superannuation.[66]  He said:

   “       Most provisions which authorise an extension of time are instances of beneficial legislation which, accordingly, should be applied beneficially.  With respect to such discretions in rules of court, Reynolds, Hutley and Bowen JJA said, in Outboard Marine Australia Pty Ltd v Byrnes: Bauknecht (Third Party) [1974] 1 NSWLR 27 at 30:

   ‘We appreciate that the rules of court, particularly those relating to time, should never be allowed to be an instrument of tyranny.  They do, however, have purposes, one of which is that the parties may know where they stand and regulate their affairs accordingly.  It is also appreciated that where genuine issues ought to be litigated, if such can be done with fairness to all concerned, it is appropriate to take a benign view of applications to extend time.’

   Those remarks indicate the importance of forming a view as to whether it is in the interests of justice that time be extended...”[67]

   [66] (1994) 50 FCR 150; 33 ALD 420

   [67] (1994) 50 FCR 150; 33 ALD 420 at 155; 425

1. Similar sentiments were expressed by McHugh J in the High Court in Brisbane South Regional Health Authority v Taylor:[68]

   “Even where the cause of action relates to personal injuries …, it will be often just as unfair to make the shareholders, ratepayers or taxpayers of today ultimately liable for a wrong of the distant past, as it is to refuse a plaintiff the right to reinstate a spent action arising from that wrong.  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.  The extension provision is a legislative recognition that general conceptions of what justice requires in particular categories of cases may sometimes be overridden by the facts of an individual case.  The purpose of a provision such as s 31 is ‘to eliminate the injustice a prospective plaintiff might suffer by reason of the imposition of a rigid time limit within which an action was to be commenced.’ ^[[69]]  But whether injustice has occurred must be evaluated by reference to the rationales of the limitation period that has barred the action.  The discretion to extend should therefore be seen as requiring the applicant to show that his or her case is a justifiable exception to the rule that the welfare of the State is best served by the limitation period in question.  Accordingly, when an applicant seeks an extension of time to commence an action after a limitation period has expired, he or she has the positive burden of demonstrating that the justice of the case requires that extension.”[70]

CONSIDERATION

[68] (1996) 186 CLR 541; 139 ALR 1

[69] Sola Optical Australia Pty Ltd v Mills (1987) 163 CLR 628; 75 ALR 513 at 635; 518

[70] (1996) 186 CLR 541; 139 ALR 1 at 553-554; 9-10

Was there an agreement within the meaning of s 182?

1. Mr Hicks said that he signed the document sent to him by Centrelink out of fear of going to gaol.  He did not admit fault and that was clear from the letter he sent to Centrelink that he did not admit fault.  Mr Hicks said that he had no legal representative and was barely a man at the time.  He was extremely disappointed that the Tribunal had not kept the file relating to his previous application.[71]

   [71] I note that its destruction in 2007 is consistent with a practice or procedure of the Tribunal approved by the Archives Act 1983 in accordance with s 24(2)(b).

1. It is clear from the letter that Mr Hicks wrote that he did not admit that the debt arose because of any fault of his.  I accept unquestioningly that this continues to be his view.  That it was and is his view does not alter the fact that he entered the agreement with Centrelink to settle his application for review of the SSAT’s decision.  He entered that agreement fully understanding that the proceedings in the Tribunal were all about the recovery of a debt that Centrelink claimed he owed because of payments of Youth Allowance it had made to him.  The Notice he was sent and that he signed made it clear that Centrelink would waive part of the alleged debt and that the remaining amount of the alleged debt would be recovered from him.  Mr Hicks did not seek to suggest that he did not understand that this would be the case.  Equally, he did not seek to suggest that he had not understood that the effect of his signing the agreement would be that his application to the Tribunal would be taken to be dismissed. 

1. In light of his understanding, I cannot find that principles inherent in the doctrine of non est factum lead me to conclude that Mr Hicks did not have an understanding of what he was signing and so what he was agreeing to. While he did not agree that he owed any money at all, he could not be said to be mistaken about anything in the Notice and certainly not in a sense that would satisfy me that he did not reach an agreement with Centrelink. I am satisfied, therefore, that there is an agreement between Mr Hicks and the Secretary in the sense in which it is used in s 182 of the SSA Act. Therefore, Mr Hick’s application was deemed to have been dismissed the moment that the Secretary, through Centrelink, gave a copy of it to the Tribunal.

The merits of the application: is there a debt?

1. Mr Hicks said at the second hearing that Centrelink had been

incompetent before 2003.  He handed me a note of what had happened:

“End of 2003 I was notified by Centrelink to inform them of my future Int. eg study/… ect.  I went in and sat down with a man at centerlink to sort it out.  He had trouble accessing my file and became frustrated with the system.  After several attempts to gain entry with no success he said ‘give me your personal detail.’…”

1. In its reasons for decision, the SSAT sets out a fuller statement of Mr Hicks’ view:

   “He ceased study at the end of 2003.

   He got a letter from Centrelink in November 2003 asking him about whether he was finishing study.  He went in to Centrelink and told the officer he saw that he was finishing study.  At a guess this would have been within a week or so of getting the letter.

   When he went in the Centrelink computer was not working.  The officer he saw was frustrated that he could not get into the computer system.  Mr Hicks can’t remember if he took the letter in with him as he didn’t need to fill it in as he was not continuing to study.  He still has the letter and presented it to the Tribunal.

   He is sure he identified himself when he went to Centrelink.  He told the officer that he wasn’t going to study but if he had a change of heart he would let him know.

   The officer said “I’ll take care of it”.  He also told Mr Hicks he would put him on jobsearch and that Mr Hicks could earn $6,000 without having any effect on his payment.

   In response to a question from the Tribunal Mr Hicks said that he didn’t get any follow up letter from Centrelink to say he was on jobsearch.  He assumed everything was ok.  He expected the information would have been put onto the computer when it was working.  He thought he had been put on jobsearch.

   Mr Hicks said he thought jobsearch was a “subsector” of youth allowance.  He wasn’t given any specifics about this from the officer.  He had been on jobsearch before studying but couldn’t remember if he had to fill in regular forms for that.  He did remember having a diary that he had to fill in with the names of places he looked for work.  However, in November 2003 the Centrelink officer didn’t say anything about having another diary.  He thought he would be told if he needed to fill one in.

   He knows there is no record to show that he went into tell Centrelink he had finished study in 2003.  The Centrelink system is not flawless.  Originally they raised a debt against him of $12,000 back to 2002 saying he didn’t study.  He had to give them his enrolment papers to prove he was studying in 2003 and get the debt recalculated.  Also he told them in November 2004 that he had moved and had to tell them several times.  They didn’t action this and still sent letters to his old address.  If took until January 2005 for them to change his address.  This shows they do make mistakes just like anyone and could have failed to record his visit in November 2003.

   After November 2003 he thought he was being paid jobsearch.  He thought he could get youth allowance if he was under 25 and either studying or looking for work.  He tried to get a few jobs and did do some casual work.  He looked for work in the papers and through friends.  He didn’t earn more than the $6,000 he was allowed so he didn’t think he needed to tell Centrelink about this casual work.  He was a casual with PAK Industries from January 2004 to May 2004.  He also worked casually for Print A Sign after June 2004.  He got both those jobs through friends.  He didn’t register with any employment agencies.

   The Tribunal asked Mr Hicks about the Centrelink letter he received dated 17 March 2004 stating he was being paid youth allowance and to advise if he cased fulltime study.  He said he thought he could get youth allowance as he was looking for work.  He also didn’t really read the details in the letters.  He might have done so back in 1998 when he first went onto payments but really thought the letters were just a statement.

   He hasn’t made any repayments on the debt.  He received a letter about it a month ago but is waiting to finalise the appeal before he responds.  He lives at home and his family help him financially.  He can’t think of any special circumstances except the issues he had discussed.  In particular, Centrelink can make mistakes and because the Centrelink officer couldn’t access the computer there is no record of his visit in November 2003.  There must be doubt about the system.”

Centrelink had also been in error more recently, Mr Hicks said.  In respect of the more recent occasion, he had received a letter of apology.  It was dated 1 October 2008 and related to an error that had been made by a Centrelink officer when recording details he had provided.  The events relating to the earlier occasion to which Mr Hicks referred are set out in the SSAT’s reasons for decision. 

1. I have approached this case on the basis adopted by von Doussa J in Windshuttle v Commissioner of Taxation.[72]  In particular, I have asked myself whether Mr Hicks would have an arguable case if all of the facts were ultimately found to be those that he has put forward.  In view of that, I have accepted Mr Hicks’ view of events for the purposes of deciding his application for an extension of time.  When I do that, I have come to the view that only one finding would be open to me on the question of whether or not he owed the Commonwealth a debt.  That finding would be that Mr Hicks does owe a debt because a social security payment in the form of Youth Allowance was made to him, he obtained the benefit of it and he was not qualified to receive it.[73]  Only the last aspect of this finding requires explanation.  Mr Hicks was not entitled to Youth Allowance because he could not satisfy the “… the Secretary that, throughout the period, the person is undertaking full-time study” within the meaning of s 541(a) of the SS Act.  On his own view of the facts, he was not studying at all in the relevant period. 

   [72] See [60] above

   [73] SS Act, ss 1223(1) and (1AB)

1. I do not reach a different conclusion if I accept without question Mr Hicks’ statements that he thought that he was entitled to job allowance and was led to have that understanding by a Centrelink officer.  Mr Hicks is correct in his understanding that Youth Allowance may be paid to a person who met the age criterion on a basis other than the person’s studying on a full-time basis.  One of the other bases is found in s 541(1)(b).  That basis requires the person to satisfy the Secretary that, throughout the period, the person is actively seeking, and willing to undertake, paid work in Australia (other than paid work that is unsuitable for the person).  Even if the Tribunal were to accept Mr Hicks’ view of events in its entirety, it would have insufficient evidence on which to be satisfied that he was actively seeking paid work of this sort in the relevant period. 

1. These considerations mean that the Tribunal would find that Mr Hicks owed a debt to the Commonwealth being the amount of Youth Allowance he was paid in the period from 23 December 2003 to 31 October 2004.  This would be the finding even if the Tribunal were also to accept without question that Mr Hicks had notified Centrelink that he was no longer studying on a full-time basis.

The merits of the application: waiver of the debt under s 1237A(1)

1. If the Tribunal were to accept Mr Hicks’ evidence without question and without regard to any other information or material, it would be open to it to find that the debt he owes was contributed to by an administrative error of the Commonwealth.  It would be open to it to find that it was caused solely by its error at the outset and even throughout the whole of the period from 23 December 2003 to 31 October 2004. 

1. As I said, it would be open to the Tribunal to make this finding but only if it were to accept Mr Hicks’ evidence without question.  The Tribunal would not be able to accept it without question for Centrelink has a completely different point of view of what happened.  It is already apparent that Centrelink does not share Mr Hicks’ point of view regarding his having informed it of his having ceased to be a full-time student.  Centrelink has no records of his having told it or of his having made contact with it during the relevant time.  It may be that its records are deficient but the problem facing the Tribunal would be that neither Mr Hicks nor Centrelink would have any independent evidence to support his or its contentions. 

1. The letters that Centrelink continued to send Mr Hicks and that were in the form of those dated 25 September 2003 and 23 October 2003 do not assist either of them.  While the letters required Mr Hicks to notify Centrelink if he stopped being a full-time student, they equally required him to notify it if he “start[ed] paid work or any from of profession, trade, business or self employment”.  The letters are multi-purpose and do not greatly assist either Mr Hicks’ or Centrelink’s view of what happened.

1. Mr Hicks refers to more recent events where Centrelink has made errors but it is difficult to translate errors on other occasions into its having necessarily made an error on this.  Regard would also need to be had to the fact that Mr Hicks did not give Centrelink proof of his having looked for work during the period and it did not ask him for that proof.  The fact that it did not ask him for it could be regarded as an administrative error by it initially if it knew that Mr Hicks was not studying full-time.  The fact that it never asked him starts to indicate that Mr Hicks might have been in error in that, if the conversation with Centrelink went as he said it did, there is a reasonable expectation that he would have known that he had to give Centrelink some evidence of his job hunting efforts.

1. As I have said, it is not my role to make any determination of the merits of the case when reviewing the decision under s 1237A(1) and deciding whether to waive the debt on the basis of administrative error.  I have pointed out some of the difficulties with both arguments to illustrate that the merits are unclear.  It is feasible that the Tribunal reviewing the decision on its merits would reach the conclusion that it did not know what happened.  If that were the case, it would have to leave the original decision in place and affirm the decision.

The merits of the application: waiver of the debt under s 1237AAD

1. The debt may only be waived if the second aspect of s 1237AAD is also satisfied.  That is it can only be waived if there are special circumstances that make it desirable to waive.  The expression, “special circumstances”, has been considered in the past.  I have had regard first to the words of the Full Court of the Federal Court when it said that it is not “... possible to lay down precise limits or precise rules.”[74]  Of the expression “special circumstances”, it has been said by Kiefel J in Groth v Secretary, Department of Social Security[75]  that:

   “… although imprecise [it] is sufficiently understood not to require judicial gloss: Beadle’s case [(1985) 60 ALR 225, 7 ALD 670] (at ALR 229; ALD 674), and for present purposes it is sufficient to observe that it would require something to distinguish Mr Groth’s case from others, to take it out of the usual or ordinary case…  It would of course follow that if one were to conclude that something unfair, unintended or unjust had occurred that there must be some feature out of the ordinary.”[76]

   [74] Beadle v Director-General of Social Security (1985) 60 ALR 225; (1985) 7 ALD 670 at 228; 674 Bowen CJ, Fisher and Lockhart JJ

   [75] (1995) 40 ALD 541

   [76] (1995) 40 ALD 541 at 545

1. More recently, the expression was considered again by Kiefel J in a different context in Secretary, Department of Family and Community Services v Chamberlain.[77]  Her Honour adopted similar principles and considered their application in the context of determining the length of a preclusion period when a person has received a compensation payment.  In doing so, she clearly referred not only to the circumstances of the individual affected by the preclusion provisions of the Act but to the effect that those preclusion provisions were intended to achieve and the consequences for every person who was affected by them.  Having regard to all of the circumstances, would the result be one that is unfair, unintended or unjust so that the circumstances may be described as special?

[77] (2002) 116 FCR 348; 71 ALD 423

1. In this case, the provisions of the Act are clearly intended to characterise as debts owed to the Commonwealth amounts of Commonwealth money paid to a person who was not entitled to receive them regardless of whether that person received them in good faith or not.  The objective is to recover those debts but latitude is allowed if there are special circumstances. 

1. The merits of the case regarding special circumstances under
   s 1237AAD are no clearer.  Even if it were accepted without question that Mr Hicks had not failed or omitted to comply with a notice and so with a provision of the
   SS Act, the material regarding his being in special circumstances is tenuous.  I understand that Mr Hicks feels very hard done but, in order for it to waive the debt under s 1237AAD, the Tribunal would have to be satisfied that his circumstances are special circumstances.  The material that I have at the moment does not point to a conclusion that it would be an unfair or an unintended or unjust consequence of the legislation that he should be required to pay money to which he was not entitled.  The fact that he faces financial difficulties, does not make his circumstances special circumstances.  The difficulties he faces are faced by others in his situation and they will often include financial difficulties.

   
   
   

Should I extend the time within which Mr Hicks may apply for review?

1. It follows from what I have said that the merits of Mr Hick’s application are not strong.  If I were to extend the time and his application were heard, I fear that the outcome would be to leave him paying the whole of the debt of $7,674.66 for the period 23 December 2003 to 3 October 2004 rather than the lesser sum of $5230.40 agreed between them.  The review would be based on the merits of the decision and would not only not be bound by the agreement reached between Mr Hicks and the Secretary but would have no regard to the settlement reached between them.  That follows from the fact that the Tribunal must decide for itself what is the correct decision and whether it is the right and proper thing to do to waive any part of a debt.  It cannot be influenced in that by anything other than the law and the evidence and, in so far as it accords with the law, any relevant policy developed by the Secretary.  In particular, it cannot be influenced by what the parties think or agree between themselves.  

1. Even if my fears are ungrounded and the merits of Mr Hicks’ case for review were strong, I would refuse to extend the time in this case.  The decision he seeks to overturn was made almost four years ago in 2004.  He reached an agreement with the Secretary to settle the matter a year or so later and so some three years ago.  Until he lodged an application in the Tribunal in July 2008, the Secretary and, through him, Centrelink, had spent two and a half years thinking that the matter was at an end.  It was clearly not at an end for Mr Hicks but two and a half years is a long time for everyone else to think that something is at an end.  Memories fade because there is no need to keep events in mind.  As a consequence, it becomes more difficult to track potential witnesses.  Those difficulties are not just difficulties for the Secretary.  They are real difficulties for the Tribunal which must consider evidence that may be less reliable than it would have been had it been gathered closer to the events. 

1. I have also had regard to the fact that, as a general rule, the Tribunal will not entertain proceedings commenced outside the 28 day time period allowed by s 29(2) of the AAT Act. The general rule is, of course, qualified by s 29(7) which allows the Tribunal to extend that period. Although a provision such as s 182 of the SSA Act does not qualify the qualification in s 29(7), I would venture to say that it should be taken into account. While giving a copy of the agreement to the Tribunal brings the particular application for review to an end, it is inherent in s 182(2) that it is also intended to bring the dispute between the applicant and the Secretary to an end. For the reasons that I gave earlier, I do not think that dismissal necessarily does that but I do think that the intention should be taken into account.

1. While there may be cases in which an extension of time should be given in order to allow a person to seek review of a decision in the Tribunal even when there has been an agreement under s 182, I do not think that this is such a case. Mr Hicks says that he signed the agreement because he feared going to gaol. I do not question that he was fearful but Centrelink behaved properly in the way in which it presented its offer to him. In particular, it invited him to obtain independent legal advice and in giving him a contact name and number at Legal Aid. As I understand his family situation, he was not estranged from them and was not without support. He could have chosen to pursue his right to ask the Tribunal to review the decision at the time. To allow him to seek review of a decision that has been in place for a lengthy period of time is not fair to other would be applicants who find themselves in the same situation.

1. Having regard to all of the matters raised by Mr Hicks’ application for an extension of time within which to lodge an application for review of a decision of the SSAT dated 22 June 2005, I have decided to refuse his application.

I certify that the preceding eighty six paragraphs are a true copy of the reasons for the decision herein of
Deputy President S A Forgie,

Signed:           .......................................................................
  Kate Conners   Associate

Dates of Hearing   5 September and 1 and 16 October 2008

Date of Decision   21 November 2008

Representative for the Applicant   Self represented

Representative for the Respondent Mr A Carson
  Centrelink Legal Services