Hunter and Secretary, Department of Families, Community Services and Indigenous Affairs

[2006] AATA 1062

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2006] AATA 1062

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No S2006/303

GENERAL ADMINISTRATIVE DIVISION		)
Re		WILLIAM HUNTER

Applicant

And SECRETARY, DEPARTMENT OF FAMILIES, COMMUNITY SERVICES AND INDIGENOUS AFFAIRS

Respondent

DECISION

Tribunal Senior Member L Hastwell

Date11 December 2006

PlaceAdelaide

Decision The Tribunal refuses the application for an extension of time.

..............................................

L HASTWELL
  (Senior Member)

CATCHWORDS

PRACTICE AND PROCEDURE – application for extension of time – jurisdiction – second application for review with respect to SSAT decision – terms of consent settlement lodged with AAT with respect to the first application – first application for review dismissed pursuant to s 42A(1) of the Administrative Appeals Tribunal Act 1975 – is AAT functus officio with respect to second application for review – Tribunal’s process of review with respect to SSAT decision not exhausted – no decision or consent decision with respect to first application –extension of time application – circumstances of settlement with respect to first application a consideration – parties have acted in good faith upon terms of settlement of first application – extension of time refused

Social Security (Administration) Act 1999 s 182

Administrative Appeals Tribunal Act 1975 s 42A(1), 29(7), 29(8), 29(9), 29(10)

Re Mulheron and Australian Telecommunications Corporation (1991) 23 ALD 309
Administration of Papua New Guinea v Daera Guba (1972) 130 CLR 353
Bogaards v McMahon (1988) 15 ALD 313
Re Nicholson and Secretary, Department of Social Security (1991) 21 ALD 537

REASONS FOR DECISION

11 December 2006   Senior Member L Hastwell

1.      This case involved an application for extension of time in which to lodge an application for review to the Administrative Appeals Tribunal (the AAT).

2.      William Hunter (the applicant) seeks review of a Social Security Appeals Tribunal (the SSAT) decision of 24 February 2003. 

3. On 2 April 2003 the applicant had lodged a previous application for review of the same SSAT decision (the first application). On 17 February 2004 the AAT received terms of settlement signed by the applicant and the respondent (the Department) which purported to settle entirely the first application. The terms of settlement included a request that the first application for review be dismissed, pursuant to s 182 of the Social Security (Administration) Act 1999 (the Administration Act).

4.      On 17 February 2004 the AAT, having received and considered the terms of settlement, dismissed the first application for review.  Under the terms of that settlement $2,500 of a total debt of $9,117.72 owed by the applicant to the Department was waived.  The parties resolved terms of repayment between themselves and the applicant has made payments in reduction of the debt since that time.

5.      The applicant lodged an application for review of the same SSAT decision (the second application) with the AAT on 14 September 2006.  He simultaneously lodged an application for extension of time in which to lodge his second application as it was out of time.

6.      The Department opposes the application for an extension of time on the basis that the SSAT decision of 24 February 2003 has already been the subject of the first application and that application was dismissed by consent.  The Department asserts that the AAT has no jurisdiction to entertain the application to extend time with respect to the second application for review as there is no jurisdiction in the Tribunal to deal with the second application.

relevant legislation

7. Section 182 of the Administration Act provides:

“(1)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. The agreement must be in writing.

(2)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.”

8. Section 42A(1) of the Administrative Appeals Tribunal Act 1975 (the AAT Act) provides one of several ways in which the Tribunal can deal with an application for review. Section 42A(1) of the AAT Act provides:

“(1)Where all the parties to an application before the Tribunal for a review of a decision consent, the Tribunal may dismiss the application without proceeding to review the decision or, if the Tribunal has commenced to review the decision, without completing the review.”

9. The Tribunal’s power to deal with an extension of time is set out in the following sections of the AAT Act:

“29(7)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.

(8)The time for making an application to the Tribunal for a review of a decision may be extended under subsection (7) although that time has expired.

(9)Before determining an application for an extension of time, the Tribunal may, if it thinks fit, require the applicant to give notice of the application to a specified person or persons, being a person or persons whom the Tribunal considers to be affected by the application.

(10)If a person to whom a notice is given under subsection (9), within the prescribed time after the notice is received by him or her, gives notice to the Tribunal, as prescribed, stating that he or she wishes to oppose the application, the Tribunal shall not determine the application except after a hearing at which the applicant and any person who so gave notice to the Tribunal are given a reasonable opportunity of presenting their respective cases.”

issues for determination

10.     The issues for the Tribunal to determine in this case are:

·does the Tribunal have jurisdiction to entertain the second application for review; and if so

·is it appropriate to exercise the discretion to extend time in this case?

the hearing

11.     The applicant represented himself at the hearing.  Ms Boylan represented the Department.

12.     The applicant identified his signature on the terms of settlement received by the Tribunal on 17 February 2004 (the terms of settlement).  He acknowledged that he had finalised his first application for review at that time.  He has continued to pay his debt back to the Department over time, and the balance now owed is considerably less than the original debt.

13.     Although he was reluctant to sign the terms of settlement (as he considered that the debt had been incurred by his ex-wife) he had done so, and he had understood at the time what he was doing.  His evidence was that he was not put under any pressure to settle the matter and that it was his own decision to resolve the matter.

14.     His current application arises from the fact that in 2006 he has received three separate letters from the Department each of which contains a different statement as to the balance of debt owed by him.  The first was received in March 2006 and advised him that the debt was $4,444; in the same month he was sent another letter telling him that the debt was approximately $2,500.  In September 2006, and shortly before he lodged the second application, he received a letter advising him that the debt was in excess of $8,000.

15.     He is adamant that the first and third figures are wrong.  He has had some difficulty in establishing a good communication with the Department about this issue, and so he decided to apply once more to the AAT for review of the original decision.  His applications were lodged immediately after receipt of the third letter.

consideration

16.     The Tribunal can only entertain the applicant’s application for extension of time with respect to the second application, if the Tribunal has jurisdiction to deal with the second application for review.  If the Tribunal finds that it has the jurisdiction to hear the second application then the application for extension of time can be considered.

17. In this case the first application was dismissed by consent as terms of settlement had been reached. The Tribunal did not proceed to a review, nor were the settlement terms contained in an order of this Tribunal. The power under s 42A(1) of the AAT Act was used to dismiss the application.

18.     In the case of Re Mulheron and Australian Telecommunications Corporation (1991) 23 ALD 309 President O’Connor considered the power of the Tribunal to consider a second application for review with respect to a decision once a first application is dismissed.

19.     She pointed out that there are four different ways in which the Tribunal can dispose of an application for review of a decision.  She commented (at paragraph 6) in the following terms:

“(6)     The AAT Act provides 4 ways in which the Tribunal can dispose of an application for review of a decision.  These are:

(a) by exercising the powers and discretions of the person who made the decision and making a decision in writing affirming, varying or setting aside the decision under review in accordance with s 43 (a decision on the merits);

(b)by making a decision in accordance with the terms of an agreement between the parties or their representatives (written, signed and lodged with the Tribunal), the terms of which would be within the powers of the Tribunal, in accordance with s 34(2) (a consent decision).  A consent decision can only be made after a conference has been held under s 34(1);

(c)by dismissing an application without proceeding to review the decision (or if the Tribunal has commenced to review the decision, without completing the review) where all the parties consent in accordance with s 42A(1) (a consent dismissal); and

(d)by dismissing an application without proceeding to review the decision if a party (not being the person who made the decision) does not appear at either a preliminary conference or at the hearing in accordance with s 42A(2)(a) (a dismissal for non-appearance).  An application cannot be dismissed for non-appearance if there are any parties to the proceeding other than the decision-maker and the party who does not appear.

…”

20.     In this case the Tribunal is not being asked to reinstate the first application, but to extend time with respect to a second.

21.     Justice O’Connor drew a distinction between cases where an application for review has been disposed of by a decision on the merits or a consent decision and cases such as this one where an application for review has been dismissed.  In the former case there is strong authority that the Tribunal is estopped from entertaining further applications for review of that decision.  She referred to Administration of Papua New Guinea v Daera Guba (1972) 130 CLR 353 and to Bogaards v McMahon (1988) 15 ALD 313 as clear authority for that proposition.

22. Justice O’Connor considered a dismissal under s 42A(1) of the AAT Act to be a different situation, and not dealt with in the authorities that she had referred to. She reviewed the case law and determined that s 42A refers to “dismissing the application” rather than making a decision.  She observed:

“Had the legislature intended dismissal to have the same result as a decision it presumably would have in my view used the same language.”

23.     She concluded that DP Forgie was correct in Re Nicholson and Secretary, Department of Social Security (1991) 21 ALD 537 when she observed:

“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 powers in relation to a review of that decision.  It follows that the applicant may bring a fresh application to review that decision.”

24. Based on this line of authorities the Tribunal determines that it does have the power to entertain the second application for review in relation to the SSAT decision as the Tribunal has not previously exercised its power of review with respect that decision. The Tribunal merely exercised its power under s 42A(1) of the AAT Act to dismiss the first application.

25. The Tribunal then turns to the matter immediately before it, namely should the Tribunal use its powers under s 29 of the AAT Act and extend the time within which the applicant may apply to review the decision of the SSAT.

26. Section 29(7) of the AAT Act provides a discretion with respect to extension of time applications. The Tribunal can extend time if it considers that it is reasonable in all the circumstances to do so.

27.     The case law has established a number of factors that the Tribunal should consider when considering such an application.  In Re Mulheron Justice O’Connor was considering a second application for review.  She commented as follows:

“(17)The principles to be applied in considering an application for extension of time under s 29(7) were considered by Deputy President Todd in Re Johnson and Commonwealth of Australia (unreported, No 5619, 5 January 1990).  Briefly, these are:

(a)Prima facie proceedings commenced outside the prescribed period will not be entertained.  An extension of time will be granted, however, if it is proper to do so.

(b)It is relevant whether the applicant rested on his rights or took action to make the decision-maker aware that the decision was being contested.

(c)Any prejudice to the respondent that would be caused by granting the extension of time is relevant.

(d)Any wider prejudice to the general public in terms of disruption to established practice is relevant.

(e)The merits of the substantial application are relevant.

(f)Fairness of granting the extension of time as between the applicant and other persons in a like position is relevant.

18.The balancing of these factors will depend on the individual case.  In cases where there is a second application, the earlier application having been dismissed, the circumstances in which the first application was dismissed will be highly relevant particularly in terms of (b) and (d) above. For instance, where an applicant consented to dismissal of his or her application as part of a settlement agreement which has been honoured by the respondent, the factors favouring the grant of an extension of time would have to be very strong indeed. On the other hand, there may be cases where the applicant did not understand the implications of signing a document in which he or she consented (or purported to consent) to dismissal. Where an application is dismissed for non-appearance the Tribunal will consider any history of non-appearance at earlier preliminary conferences or hearings relating to the first application, failure to comply with directions of the Tribunal and the reasons for non-appearance or non-compliance. It may also be relevant to consider if the applicant is unrepresented and failed to understand the Tribunal's procedures.”

28.     In this case there are a number of factors that influence the Tribunal in deciding not to exercise the discretion to extend time with respect to the filing of the second application for review.

29.     The applicant resolved a consent settlement with the Department in circumstances where he was not under pressure and knew full well what he was doing.  It was at the mutual request of both parties that the first application was dismissed.

30.     Both parties have acted on the basis of that settlement for a period of two years.  The Department has honoured their part of the settlement, and it would seem that the current debt figures provided by the Department to the applicant are part of an administrative error that should be capable of being corrected.

31.     The applicant’s complaint is not with the terms of settlement nor does it rest any longer with the SSAT decision, but with the Department’s apparent incompetence in sending him letters containing conflicting and, in his view, incorrect statements with respect to the balance of the debt still owed.

32.     The applicant has a ready avenue of review with respect to the level of debt that the Department now says that he owes.  He can ask for an Authorised Review Officer to review the most recent decision with respect to the debt he owes.  He could then take that matter to the SSAT if unsuccessful upon review.

33.     In the circumstances, the Tribunal is not willing to grant the extension of time sought by the applicant within which to lodge the second application.

I certify that the 33 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member L Hastwell

Signed:         .............J Coulthard...........................................
  Associate

Date of Hearing  19 October 2006
Date of Decision  11 December 2006
Applicant  In person

Advocate for the Respondent   Ms M Boylan

Centrelink Legal Services Branch