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

[2017] AATA 1329

Hyde and Secretary, Department of Social Services (Social services second review) [2017] AATA 1329 (23 August 2017)

Division:GENERAL DIVISION

File Number:           2017/3915

Re:Sondang Hyde

APPLICANT

AndSecretary, Department of Social Services

RESPONDENT

DECISION

Tribunal:Senior Member T. Tavoularis

Date:23 August 2017

Place:Brisbane

Pursuant to section 29(7) of the Administrative Appeals Tribunal Act 1975, the Tribunal refuses the application for an extension of time to lodge this application for review of a decision.

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

Senior Member T. Tavoularis

CATCHWORDS

INTERLOCUTORY DECISION – Extension of time application – Application for Extension of Time considered – where Application for Review filed out of time – where inadequate reason for delay – where unconvincing prospects of success - extension of time refused

LEGISLATION

A New Tax system (Family Assistance) (Administration) Act 1999 (Cth) s 101

Administrative Appeals Tribunal Act 1975 (Cth) s 29

Social Security Act 1991 (Cth) s 1237AAD

CASES

Brisbane South Regional Health Authority v Taylor (1996) 139 ALR 1

Department of Social Security v Van Den Boogaart [1995] FCA 1289

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

REASONS FOR DECISION

Senior Member T. Tavoularis

23 August 2017

INTRODUCTION

1. This is an interlocutory application by Mrs Sondang Hyde (“the Applicant”), who seeks review of a decision of the Social Security Appeals Tribunal (“SSAT” – as it then was) that was made on 18 January 2012.

2. That decision involved a finding that the Applicant was a member of a couple for the period January 1995 - June 2006. That reality has resulted in certain overpayments having been made by the Respondent during that period.

3. The total amount is significant: some $147,327.24. It is particularised in the Respondent’s outline of submissions dated 19 July 2017, in particular, at paragraphs 1.2 and 5.

4. I note for the purposes of this decision that the Applicant had the benefit of an Indonesian interpreter during the hearing and that she otherwise confirmed due receipt of the abovementioned submissions of the Respondent.

5. In addition, I note from the hearing that a representative of the Department contacted the Applicant on 25 July 2017, during which discussion, the Applicant confirmed due receipt of the abovementioned submissions.

   ISSUES

6. Each of the component parts constituting the totality of the amount due comprise debts due to the Commonwealth and, as such, are fully recoverable.

7. As mentioned, the reviewable decision giving rise to these debts was made on 18 January 2012. The Applicant did not lodge any application for substantive review of that reviewable decision until 4 July 2017.

8. The issue before the Tribunal now is whether it is reasonable, in all the circumstances, for an order to be made, extending the time for lodging the substantive application until 4 July 2017.

9. I am not minded to grant the extension of time. My reasons appear below.

   THE COURSE OF THIS PROCEEDING THUS FAR

10. The matter was reviewed by an Authorised Review Officer (“ARO”) of the Department on 9 January 2009, pursuant to a request by the Applicant for a review of the decisions giving rise to (1) the sole parent pension, and (2) parenting payment components of the total debt. These two components are by far the dominant amount of the total debt. The former is in the order of $29,000, while the latter is in the order of $88,000.

11. With reference to these two primary components of the total debt, the ARO affirmed the decision under review.

12. The Applicant then requested a review of the remaining components of the total debt. There are seven of those components. Six of them are, broadly speaking, in the range of $4,000-$7,500. The seventh and final one is in the sum of $181.50.

13. The ARO reviewed these remaining components of the total debt and, on 27 October 2011, affirmed the decision under review in relation to them. The ARO varied the decision such that the debts were recalculated as:

    (i)2000/2001 = $488.11 (recovery of this amount to be waived under transitional arrangements in place only for the 2000/2001 year)

    (ii)2001/2002 = $1178.95

    (iii)2002/2003 = $1014.70

    (iv)2003/2004 = $4406.04

    (v)2004/2005 = $5503.00

    (vi)2005/2006 = $2794.44

    (vii)Affirmed decision to raise and recover CCB debt of $181.50

14. There then followed a request for review by the Applicant. On 18 January 2012, the SSAT affirmed the decision giving rise to the various components of the total debt.[1]

    [1] It appears the SSAT decision-maker considered the debts to be correctly calculated as per the original decision of the Respondent, rather than the values as calculated in the ARO decision dated 27 October 2011.  In any event, the SSAT affirmed the decision under review and debts were raised against the Applicant.

15. The Respondent contends that the SSAT’s decision was posted to the Applicant on 25 January 2012. This is evidenced by a letter appearing as Annexure A to the Respondent’s abovementioned submissions. There was no contention by or on behalf of the Applicant that she has not seen or has not received the SSAT’s decision.

16. The Applicant elected to do nothing about the SSAT’s decision until (1) 23 June 2017 when she made an Application for Extension of Time for Making an Application for Review of Decision and (2) 4 July 2017, when she applied for review of that decision by the Tribunal. There is no evidence before me supporting any contention by the Applicant that late receipt of the reviewable decision has, somehow, caused her to file this application for review, over 5 years out of time.

17. As I understood the hearing and as I understood the evidence, there is no argument between the parties that the appeal deadline date was 27 February 2012.

    CAN THE TIME BE EXTENDED?

18. Section 29(2) of the Administrative Appeals Tribunal Act 1975 (Cth) (“the AAT Act”) makes it abundantly clear that an application for review of a reviewable decision must be lodged within 28 days of an Applicant receiving notice of that decision.

19. The Tribunal has power, pursuant to s 29(7) of the AAT Act to extend that 28 day period if the Tribunal is satisfied it is reasonable to do so in all the circumstances.

20. The governing authority setting out the factors to be considered in exercising that discretion are summarised in Hunter Valley Developments Pty Ltd v Minister for Home Affairs and Environment (1984) 3 FCR 344.

21. Summarised concisely, those four factors comprise:

    (a)The Applicant’s awareness of her appeal rights and any explanation she may have for the delay;

    (b)The actual length of the delay;

    (c)The Applicant’s prospects of success in any review or appeal of the reviewable decision were the extension of time to be granted for doing so; and

    (d)Does the Applicant have alternate avenues of relief if an extension of time is refused?

    Awareness of appeal rights and explanation for the delay

22. As mentioned earlier, there is little or no doubt in my mind that the Applicant was duly made aware of the reviewable decision when, as she indicates, she received it on 25 January 2012.

23. In these circumstances, I do not accept any contention that could now be put on behalf to the Applicant that she has been oblivious to the time limitation that applies to the bringing of an application for review of the decision giving rise to the total debt. Certainly, no such contention has ever been put on behalf of the Applicant.

24. I therefore accept the Respondent’s contention that the Applicant was fully aware of her appeal rights within the prescribed time limit and, further, that she did not request any review of the relevant decision until the middle part of this year, 2017.

25. There is no explanation from the Applicant for the extraordinary delay of 5 years, 3 months and 27 days. The highest any “explanation” can be put appears in her Application for Second Review of Decision, where she indicates broad disagreement with the reviewable decision. This, to my mind, is not a satisfactory explanation for the delay.

26. The Federal Court (per Kiefel J – as she then was) has provided guidance as to how a decision maker is to assess the credibility of any explanation for delay.[2] In that case, Kiefel J said:

    The matter which most strongly weighs against the grant of an extension of time is the lack of a satisfactory explanation for the delay. The fact of any explanation which appears credible does not suffice… The absence of detail in the explanation suggests that a view may have been taken that, so long as some explanation was made and the respondent did not assert prejudice, the Court would automatically grant the extension. Such a view, if held, could of course disregard the discretion to be exercised by the Court and the level of satisfaction it requires.

    [2] Department of the Department of Social Security v Van Den Boogaart [1995] FCA 1289 at [7].

27. In applying the Court’s abovementioned views to this matter, I consider that the absence of any credible explanation for this delay does weigh most strongly against the grant of an extension of time. Put simply, the Applicant has nothing to say about the delay. Not only does she not have any remotely credible explanation for the delay, there is no explanation for it at all.

28. I am satisfied that the Applicant was, in January 2012, and ever since that time, aware of her appeal rights. I consider (and find) that the Applicant has provided no satisfactory explanation for the delay.

    Length of the delay

29. As mentioned, the length of the delay is extraordinary. On any reasonable view, the limitation period for the filing of any further application for review expired at the end of February 2012. The Applicant now approaches this Tribunal with a request for an extension of time on the basis of an application for such relief lodged on 23 June 2017.

30. In effect, she concedes she is 5 years, 3 months and 27 days outside the applicable 28 day period, yet asks the Tribunal to exercise its discretion to extend the time.

31. I consider the length of the delay to be unjustifiable and inexcusable. No satisfactory explanation has been provided for it. I cannot but conclude that the length of the delay weighs heavily against any discretion to extend the time.

    Prospects of success

32. I agree with the Respondent’s contention that the Applicant has poor prospects of success in any further review of the reviewable decision. While it is not incumbent upon the Tribunal to, at this stage, embark on a trial of the merits of any such further review, it is a clearly established legal principle that if an applicant has reasonable to strong merits in any fresh hearing or application, then this may be sufficient to activate a discretion to so extend.

33. There is no evidence before me to suggest the Applicant has anything remotely approaching reasonable prospects, let alone strong prospects of success, in any further review, were an extension of time to be granted.

34. Similarly, there is no evidence before me that any of the component parts of the total debt have been incorrectly calculated, improperly raised or are not debts due to the Commonwealth.

35. The Applicant relies on a certain report from a medical practitioner who, in a written statement,[3] says, inter alia:

    Mrs Sondang Hyde has received a claim for a debt to Centrelink. I believe this is due to Centrelink claiming she was living with John Jackson. She has alwys [sic] lived in her own home and John Jackson lived in his own home. They never lived together. He never supported her. They are no longer friends.

    [3] Attachment F to the Respondent’s Outline of Submissions dated 19 July 2017.

36. The medical practitioner (Dr Sue Heijm) provided this statement on 16 June 2017. One wonders where this evidence was when the SSAT reviewed this matter. Similarly, the Applicant relies upon a rather conveniently-stated commentary from her neighbour, Ms Mary Chapman who, inter alia, says:[4]

    Sondang Hana Hyde… lived next door to me… for about 20 years… did not at anytime have her friend John living with her or any other male. She lived there with her two children. She is an honest, upright citizen and has a true Christian Belief…

    [4] Attachment G to Respondent’s Outline of Submissions.

37. Once again, one wonders where this evidence was at the time of the SSAT review and whether, in fact, both the evidence of Dr Heijm and Ms Chapman has now been procured on a self-serving basis to demonstrate some level of improved prospects of success.

38. To my mind, this evidence goes nowhere when one has regard to the SSAT’s findings that the Applicant was indeed a member of a couple from January 1995 to June 2006. This finding was based – entirely logically – upon a separation agreement dated 5 October 2007 between the Applicant and a Mr John Craig Jackson.[5] The document is clear; one need not have any further regard than to the preamble:

    WHEREAS

    A.    Partner A [Mr Jackson] and Partner B [the Applicant] (hereinafter “the parties”) began their formal co-habitation relationship as defined in s. 264 of the Property Law Act 1974, on January 1995;

    B. The parties lived together in a de facto relationship based on intimacy, trust and personal commitment to each other as defined in s. 261 of the Property Law Act 1974 from January 1995 to 20^th June 2006;

    C.   The parties separated on 20^th June 2006 and then and subsequently regarded their de facto marriage as irretrievably broken down;

    D. The parties wish to settle and compromise and finalise all present and potential claims between them for property settlement under the Property Law Act 1974…

    (my emphasis)

    [5] This separation agreement is duly signed by the parties and duly witnessed by a qualified solicitor.

39. Mr Jackson’s solicitors provided a copy of the separation agreement to Centrelink under cover of a letter dated 7 August 2008. A copy of that letter and the separation agreement has been obtained by the Respondent who, in accordance with its status as a model litigant, has duly provided a copy of both the covering letter and the enclosed separation agreement to the Applicant. The covering letter (and, indeed cl 6 of the separation agreement) records that Mr Jackson paid the Applicant the sum of $125,000 as part of the global settlement of relationship property between them.

40. I have little difficulty in preferring the contemporaneous evidence of the separation agreement and the covering letter from the solicitors to Centrelink over and above the very recently-acquired evidence of Dr Heijm and Ms Chapman.

41. The Applicant cannot now seek to argue that all or part of the total debt should be waived due to “special circumstances” pursuant to s 1237AAD of the Social Security Act 1991 (Cth) or under s 101 of the A New Tax System (Family Assistance) (Administration) Act 1999 (Cth) owing to the fact those debts arose as a result of the Applicant not disclosing her relationship with Mr Jackson to the Respondent. This further worsens the prospects of success of any fresh review of the reviewable decision.

    Alternative avenues of relief

42. The Tribunal must proceed with caution where any refusal of an extension of time would preclude the Applicant, finally and entirely, from any particular relief. If that is a distinct possibility, consideration should be given to a possible extension.

43. I do not consider it is a possibility here. Even if an extension of time is refused, the Applicant can nevertheless approach the Respondent and, on the basis of proven special circumstances, could reasonably request some type of amelioration of some or all of the total debt. That is not to say she will succeed in any such endeavour, but she most certainly has the right to approach the Respondent on this basis.

    Prejudice

44. I must also consider the element of whether an extension of time occasions prejudice to the Respondent. It quite clearly does. It is no doubt prejudicial to the Respondent, were an extension of time to be granted, to be required to respond to factual circumstances that are well past a decade old. Indeed, the actual debt period commenced over 20 years ago.

45. The Respondent (and its derivative entities) no doubt comprise a colossal governmental undertaking. It has responsibility for a vast number of files and matters. It has, in my view, every right to reasonably expect that a matter now beyond five years from the end of the relevant appeal deadline, has been finalised.

46. There is High Court authority supporting this contention – Brisbane South Regional Health Authority v Taylor [1996] 139 ALR 1 at 9 per McHugh J:

    … people should be able to arrange their affairs and utilise their resources on the basis that claims can no longer be made against them… Insurers, public institutions and businesses… have a significant interest in knowing that they have no liabilities beyond a definite period… The final rationale for limitation periods is that the public interest requires that disputes be settled as quickly as possible.

    CONCLUSION

47. I find:

    (a)The Applicant was aware of her appeal rights;

    (b)She has not provided an adequate reason for a delay approaching five and a half years;

    (c)Her prospects of success – were the extension of time to be granted – are poor;

    (d)Alternate relief is open to her in the event an extension of time is refused;

    (e)Significant prejudice would be occasioned to the Respondent were the Applicant granted an extension of time to re-ventilate a matter heard and determined in early 2012; and

    (f)The justice of the case does not merit exercise of the Tribunal’s discretion to extend the time for making an application for review.

48. In accordance with the power vested in the Tribunal by virtue of s 29(7) of the AAT Act, the Application for an extension of time is refused.

I certify that the preceding 48 (forty-eight) paragraphs are a true copy of the reasons for the decision herein of Senior Member T. Tavoularis

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Associate

Dated: 23 August 2017

Date of hearing:	11 August 2017
Applicant:	By telephone
Advocate for the Respondent:	Ms J. Driver
Solicitors for the Respondent:	Department of Human Services