James, Douglas Frederick Vernon v Department of Social Security

[1997] FCA 1150

IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY	QG 48  of   1997

BETWEEN:	DOUGLAS FREDERICK VERNON JAMES APPLICANT
AND:	DEPARTMENT OF SOCIAL SECURITY RESPONDENT
JUDGE(S):		SPENDER J
DATE OF ORDER:		16 OCTOBER 1997
WHERE MADE:		BRISBANE

THE COURT ORDERS THAT:

The application be dismissed with no order as to costs.

Note:Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY	QG 48 of 1997

BETWEEN:	DOUGLAS FREDERICK VERNON JAMES APPLICANT
AND:	DEPARTMENT OF SOCIAL SECURITY RESPONDENT

JUDGE(S):	SPENDER J
DATE:	16 OCTOBER 1997
PLACE:	BRISBANE

REASONS FOR JUDGMENT

This is an application for an extension of time to file and serve a notice of appeal from two decisions of the Administrative Appeals Tribunal (‘the AAT’).  The first decision was given by Deputy President Breen (D P Breen’) on 7 October 1988 (‘the first decision’), and the second was given on 2 June 1994 by a senior member and two members of the AAT (‘the second decision’).

In each case an extension of time is required because the notice of appeal was not filed and served within the time limited by s 44 of the Administrative Appeals Tribunal Act 1975 (‘the AAT Act’). Section 44 of that Act relevantly provides in subs (1):

A party to a proceeding before the Tribunal may appeal to the Federal Court of Australia, on a question of law, from any decision of the Tribunal in that proceeding.

Subsection 2A provides:

An appeal by a person under subsection (1)...shall be instituted:

(a)not later than the twenty-eighth day after the day on which a document setting out the terms of the decision of the Tribunal is furnished to the person or within such further time as the Federal Court of Australia (whether before or after the expiration of that day) allows; and

(b)in such manner as is prescribed by rules of court made under the Federal Court of Australia Act 1976.

Section 44(3) confers jurisdiction on this court to hear and determine appeals instituted here in accordance with s 44(1) and subs 4 provides that:

The Federal Court of Australia shall hear and determine the appeal and may make such order as it thinks appropriate by reason of its decision.

Mr James is appearing for himself on these applications.  I have therefore carefully considered all of the matters that have been raised in the material or which might have been raised on a view of that material by someone experienced in the law.  I have made extensive inquiries of all the documents that are presently available to the court.

The proper approach of the Federal Court in reviewing decisions of the AAT is one of restraint.  In Blackwood Hodge (Australia) Pty Ltd v Collector of Customs (New South Wales) (1980) 47 FLR 131, Fisher J, a member of the Full Court of the Federal Court, said at 145:

It is my firm view that this Court when hearing appeals from a Tribunal constituted for the purpose of reviewing decisions of this nature, should adopt a restrained approach.  Parliament contemplated that only in exceptional circumstances should the decision of the Tribunal not be the final decision.  This does not mean that when an error of law is identified, the court should be reluctant to intervene.  In fact, it is under a duty to do so.  Rather it should heed the comments of Davies LJ (as he then was) in R v Industrial Injuries Commissioner; Ex parte Amalgamated Engineering Union (No 2) [1966] 2 QB 31 at 50:

“  I should like to echo the words of my Lord, Lord Denning, MR, in saying that I deprecate the practice, and hope it would not continue, of attempting to magnify or inflate questions of fact into questions of law and of trying to obtain decisions from the courts on matters which the legislature would appear to have thought suitable for decision by the various bodies and authorities set up under the Act of 1946.”

As Lord Radcliffe said in Edwards (Inspector of Taxes) v Bairstow [1956] AC 14 at 38:

“...by the system that has been set up, the commissioners are the first tribunal to try an appeal, and in the interests of the efficient administration of justice their decisions can only be upset on appeal if they have been positively wrong in law.  The court is not a second opinion, where there is reasonable ground for the first”.

The reasons for decision by the AAT ought not to be construed minutely with an eye keenly attuned to the perception of error, as was pointed out by Lockhart J in Polities v Federal Commissioner of Taxation (1988) 16 ALD 707. His Honour made a comment at 709 which has a present significance to the circumstances of the present application. His Honour said:

Although couched in terms that the findings give rise to a question of law - namely, - that the decision of the Tribunal as to certain material matters of fact could not reasonably have been made - it is plain to me that in substance the appellant sought to transmute questions of fact into questions of law.  In effect, the appellant asked this court to express a second and favourable opinion on matters of fact which had been found unfavourable to her by the Tribunal.

In the exercise of the power to grant an extension of time, it seems to me that help can be obtained from some of the observations by McHugh J in Gallo v Dawson (1990) 93 ALR 479. In that particular case, McHugh J was concerned with an application for an extension of time within which to file a notice of appeal against an order in the High Court. While the statutory framework is different from the present context, the principles continue to be applicable.

In that case, the application was made some sixteen months after the order in respect of which an appeal was sought to be brought.  Order 70 r 8 of the High Court Rules required a notice of appeal to be lodged within twenty-one days of the date of judgment.  Order 60 r 6 permitted the court or a justice to enlarge the time appointed by the High Court Rules as the justice of the case may require.  McHugh J said at 480:

The grant of an extension of time under [O 60 r 6] is not automatic.  The object of the rule is to ensure that the Rules which fix times for doing acts do not become instruments of injustice.  The discretion to extend time is given for the sole purpose of enabling the court or justice to do justice between the parties: see Hughes v National Trustees Executors & Agency Co of Australasia Ltd [1978] VR 257 at 262. This means that the discretion can only be exercised in favour of an applicant upon proof that strict compliance with the rules will work an injustice upon the applicant. In order to determine whether the rules will work an injustice, it is necessary to have regard to the history of the proceedings, the conduct of the parties, the nature of the litigation, and the consequences for the parties of the grant or refusal of the application for extension of time; see Avery v No 2 Public Service Appeal Board [1973] 2 NZLR 86 at 92, Jeff v Scott (1986) 12 FCR 187 at 194-5; 70 ALR 185. When the application is for an extension of time in which to file an appeal, it is always necessary to consider the prospects of the applicant succeeding in the appeal: see Burns v Grigg [1967] VR 871 at 872; Hughes, at 263-4; Mitchelson v Mitchelson (1979) 24 ALR 522 at 524. It is also necessary to bear in mind in such an application that, upon the expiry of the time for appealing, the respondent has “a vested right to retain the judgment” unless the application is granted: Vilenius v Heinegar (1962) 36 ALJR 200 at 201. It follows that, before the applicant can succeed in this application, there must be material upon which I can be satisfied that to refuse the application would constitute an injustice. As the Judicial Committee of the Privy Council pointed out in Ratnam v Cumarasamy [1965] 1 WLR 8 at 12; [1964] 3 All ER 933 at 935:

“The rules of court must prima facie be obeyed, and in order to justify a court in extending the time during which some step in procedure requires to be taken there must be some material upon which the court can exercise its discretion.”

At 481 his Honour continued:

A case would need to be exceptional before a court would enlarge by many months the time for lodging an appeal simply because the applicant had refrained from appealing until he or she had researched the issues involved.  In Hughes, McInerney J pointed out (at 263) that one object of fixing time under court rules is “to achieve a timetable for the conduct of litigation in order to achieve finality of judicial determinations”.  When the time for appealing has expired, the litigation is at an end; the successful party is entitled to the benefit of the judgment in his or her favour.  At that stage, the successful party has a “vested right to retain the judgment”.  It would make a mockery of O 70 r 3 if, months after the time for appealing has expired, the unsuccessful party could obtain an extension of time on the ground that he or she had delayed appealing because that person wanted to research the issues involved.  Lack of legal knowledge is a misfortune, not a privilege.

I now proceed on the basis of what the evidence before me establishes, and in deference to Mr James’s position as a self-litigant, what that evidence might suggest.

The applicant was born on 9 February 1940 and left school at the age of 14 years.  He worked as a film projectionist on and off for approximately twenty years and later joined General Motors Holden (‘GMH’) at Acacia Ridge as a janitor.  He was unemployed for eight months and then rejoined GMH as a spot welder.

Mr James ceased work at GMH on 15 May 1979 because of neck stiffness, shortness of breath, nausea, vomiting, numbness and pins and needles in his hands and arms.

In mid-1979, the applicant lodged a claim for sickness benefit with the Department of Social Security (‘the DSS’).  I say mid-1979 because it is not possible on the material available to me to be more precise.

The applicant was granted sickness benefits on 19 June 1979.  The sickness benefits were backdated so that he in fact received payments from 25 May 1979 to 10 August 1983 (‘the sickness benefit period’).  On 10 August 1983 he was granted an invalid pension.  In the material before me there are differing amounts cited as the total of the sickness benefits paid during this period to Mr James.  In the first decision, the amount is said to be $24,509.65.  However, there is another figure of $24,240.03, and yet a third figure, which I think is the correct figure, namely $23,233.03.  That is the figure that is referred to at page 2.9 of the second decision.

During the sickness benefit period, the applicant received medical attention from numerous doctors and also attended examination for and on behalf of the DSS.  Those doctors assessed him in relation to psychotic medical difficulties rather than in relation to what in fact was later accepted as the true complaint, namely, carpal tunnel syndrome.  That complaint ultimately led to a payment from the Workers’ Compensation Board of Queensland (‘the Board’) of a lump sum.  The evidence from Mr James asserts that at GMH he worked at a machine which later the Board accepted was the cause of his carpal tunnel syndrome.

On 20 June 1979, that is to say, the day after the date on which sickness benefits were first paid, he lodged a claim with the Board.  The Board initially rejected that claim, but on 3 February 1987, eight years approximately after the claim had been lodged, he was awarded $48,080.17 (‘the compensation award’).  The compensation award was in respect of weekly payments commencing from 19 June 1979 until 9 April 1985.  It extended beyond the sickness benefit period, which, it will be remembered, was from 25 May 1979 to 10 August 1983.

At the time that Mr James received his compensation award, it appears from the second decision of the AAT that sickness benefits were refundable under the then relevant legislation, whereas invalid pensions were not.  Division 3A of the Social Services Act 1947 (Cth) was inserted by the Social Services Amendment Act 1979 (Cth), and commenced operation on 1 August 1982.

The DSS was of the view that the weekly payments of the compensation ward were for the same incapacity and for the same period for which sickness benefits were paid, and that the whole amount of the sickness benefits was recoverable.  The DSS accordingly sought to recover the total amount of sickness benefits that the applicant had received until August 1983, being the amount of $23,233.03.

The DSS gave notice to the Board of its claims under the then s 115 of the Act, and the Board refunded the amount of that DSS claim.  The decision by the DSS to recover the sickness benefits was made pursuant to ss 115 and 115B of the Social Services Act 1947 (‘the Act’).  In essence, those provisions provided that sickness benefit could not be paid for the same period for which Workers’ Compensation was paid.

In 1986 the legislation was amended by the Social Security and Veterans’ Affairs (Miscellaneous Amendments) Act 1986, being Act No 186 of 1986, and the consequence of the amendments was to allow for the recovery of invalid pensions as well as sickness payments. However, the amendments effected by that Act did not apply to payments of the invalid pension to Mr James.

The Board paid the money directly to the DSS as it was required to do under the legislation then in force.  Mr James was eventually paid the difference between the award of $48,080.17 and the payments to the DSS from the Board of $23,233.03.

I now turn to the first decision.  On 6 July 1987 Mr James lodged an appeal to the Social Security Appeals Tribunal (‘the SSAT’) against the decision of the DSS to demand the refund.  He was unsuccessful.  Mr James then sought review of the SSAT decision at the AAT.  The matter was heard by D P Breen.

At that hearing, two issues were raised by counsel who appeared for Mr James.  The first was whether the applicant’s lump sum compensation payment was a payment in respect of the same incapacity for which the applicant received sickness benefits.  The second was whether “special circumstances” existed, such as to allow the discretion to be exercised in favour of Mr James under the then s 115E of the Act.

The matter proceeded by way of a statement of Mr James which outlined agreed or accepted facts, which is not now available to the court.  Mr Walsh, Manager of the Administrative Law Section of the DSS, deposes that the original file from 1988 of Mr James has been subsequently destroyed, so that none of the original application documents were able to be provided to this court.  This circumstance has a relevance to the present question.  It indicates that delay is inimical to the interests of justice, and one respect in which that might happen is that documents which would have been relevant to any appeal have been destroyed or misplaced.

Counsel for Mr James at the hearing of 1988, Mr Suthers, said as to the second issue that the applicant sought the exercise of discretion on certain bases as set out in the statement.

Mr Suthers said:

Just generally, the history of the matter is such that he has, of his own undertaking, after many years secured what was his rightful compensation, and, having paid off the debts which he incurred during the nine year struggle, he is now no better off than he was when he got his Workers’ Compensation, save for the fact that he has paid his debts and he does not have the cash.  His financial situation is set out in his statement.

Later Mr Suthers said:

He claims not only on the basis of financial hardship but also on the basis that the Department has given him no consideration in relation to those matters which he has undertaken of his own volition, with no assistance from the Department, at great expense to himself, and from which he then gets no credit at the end of the day in the form of an exercise of any discretion by the Department.

It was further submitted that the timing of the medical reports which gave rise to a change from sickness benefits to pension benefits, was entirely in the hands of the DSS.  It was not brought about by any action on behalf of the applicant.  It was “left to the AAT whether it ought to exercise its discretion in whole or in part”.

Counsel for Mr James did not expressly deal with each of the bases upon which DP Breen was asked to exercise the discretion.  He asked:

...that all matters be taken into account and that if it be found that this was an incapacity which gave rise to the obligations to repay, the case was a fit and proper case for the benefit to be given to James.

Before D P Breen it was argued, inter alia, for the DSS that (1) the compensation award received by Mr James were payments for the same incapacity and for the same period during which sickness benefits were paid, and therefore that the whole of the amount of sickness benefits was recoverable; (2) the only basis on which  Mr James could succeed was if the AAT exercised the discretion in s 115E in favour of the applicant and found that “special circumstances” existed; (3) the failure of the medical profession to correctly diagnose Mr James’s condition did not constitute a special circumstance; and (4) the intention of the legislation was to prevent double dipping.

As to the first issue, D P Breen found that there was insufficient evidence to support the contention that the nature of the illness upon which sickness benefits was based was different from the nature of the injury eventually compensated for.  On the issue of special circumstances however, the AAT found in favour of the applicant, in that the respondent had failed to ensure that the applicant was properly assessed, had been dilatory in transferring the applicant onto the invalid pension, and improper medical assessment of the applicant had exacerbated the mental condition of the applicant.

The AAT in fact did not consider the applicant’s eligibility for an invalid pension.  In my opinion, this is an important historical circumstance.  The question identified by D P Breen was whether the “somewhat tardy conduct of the respondent in granting the benefit”, together with the applicant’s “zeal and his current financial position”, constituted “special circumstances” for the purposes of the then s 115E of the Act.

That section then provided:

For the purpose of this Division, the Secretary may treat the whole or a part of payment by way of compensation that has been, or that will be, made in respect of an incapacity as not having been made, or as not being, or as not likely to become liable to be made, if the Secretary considers that, in the special circumstances of the case, it is appropriate to do so.

Special circumstances were said to exist in the context of s 115E of the Act (which subsequently was renumbered to 156), “if strict enforcement of the liability to repayment of the benefit is unjust, unreasonable, or inappropriate”: re Ivovic v Director-General of Social Services (1981) 3 ALN N95.

The appeal by Mr James in 1988 was partially successful.  The AAT set aside the decision under review, and the matter was remitted to the SSAT with the direction that “special circumstances existed to warrant the waiver of the Commonwealth’s right to recover a debt for the period of time that the invalid pension was initially refused”.  The AAT concluded that there were special circumstances to suggest that the discretion ought to be exercised in favour of Mr James, because to insist on strict enforcement of the liability in the circumstances would be unjust, unreasonable, and inappropriate. The practical effect of the first decision was that Mr James received a refund of $9,279.85 in November 1988.

In reaching its conclusion, DP Breen identified a number of special circumstances.  First, the applicant’s resolution in pursuing his rights under the Workers’ Compensation Act 1916 (Qld) to the advantage of the respondent made it unreasonable that over half of the compensation payment should be paid to the DSS; secondly, for a considerable time, the applicant’s true medical condition went unrecognised by the DSS, which meant that the applicant was refused an invalid pension until October 1993; thirdly, the DSS was somewhat dilatory in making the grant of an invalid pension, despite numerous medical examinations of the applicant; and fourthly, subsequent events proved that the assessment of the applicant’s medical condition was incorrect.

DP Breen did give consideration to the period between June 1979 and October 1981, but he was not satisfied that the applicant should be completely relieved of the burden of repayment, having regard to the nature and purpose of the Act.  He chose the time at which the invalid pension was refused by the DSS, (October 1981), as the appropriate point at which the applicant should be relieved of repayment.  In his opinion, the special circumstances existed only for the period commencing on the refusal of the invalid pension in or about October 1981, until the time the invalid pension was in fact granted to him in August 1983.  It is this aspect of the matter that Mr James is seeking, by his application, to have reversed.

I turn now to the second decision.  On 2 November 1990, Mr James lodged an application for review with the SSAT.  He claimed that he should not have had any of the sickness benefit payments taken out of his compensation award.  He was told that the SSAT had no jurisdiction to review the matter, because there already had been a determination by the AAT in 1988.

Another application was lodged by Mr James in January 1991, and a similar response was given.  On 5 March 1993 Mr James lodged yet another application to the SSAT.  The SSAT determined that it did not have jurisdiction to review the application in respect of the recovery of sickness benefits, nor did it have the jurisdiction to review the application in respect of the commencement date of the invalid pension.

On 14 October 1993, Mr James applied to the AAT for a review of the 1993 SSAT decision.  The grounds of his application were, inter alia, that the illness for which he received sickness benefits was different from the illness for which he received a compensation payment and that the date of the commencement of his invalid pension should have been 19 June 1979, not August 1983.

In 1994 the following submissions were made to the AAT on behalf of Mr James:

1)        An application for a sickness benefit was an application for the same type of benefit as an invalid pension and Mr James’s application in mid-1979 should now be treated as an application for invalid pension.

2)        There was medical evidence to the effect that Mr James would have qualified for the invalid pension from 19 June 1979 if his medical problems had been correctly diagnosed and if he had not been discouraged from applying for an invalid pension because of the various mis-diagnoses.

3)        The AAT should award the invalid pension retrospectively to 19 June 1979 with the consequence that DSS would have to refund the balance of the money paid to DSS from Mr James’s workers’ compensation payments.

4)        This was not a matter that had been adjudicated upon by the AAT because it was not specifically raised before Deputy President Breen in October 1988.

It will be remembered that D P Breen, in 1988, had dealt with the period between June 1979 and October 1981 but determined that, in respect of the sickness benefit received during that period, Mr James should not be relieved of his obligation to repay the amount of sickness benefit for that period.  Mr James argued that subsequent medical evidence proved that he should have been entitled to invalid pension from the very beginning of his incapacity to work which was June 1979.  This is the crux of Mr James’s present application and it is the same matter that he wishes to reach by a successful appeal in this court.

On 2 June 1994 the AAT determined that it had no jurisdiction to review the decision of the AAT in 1988.  The applicant had sought to place further material before the AAT and submit that a further discretion should be exercised by it to remove completely all debt owed to the Commonwealth.  In the AAT’s view:

This amounted to an attempt to reopen the case for special circumstances put to Deputy President Breen by putting new evidence of further special circumstances before the AAT.

It accordingly decided that the SSAT was correct in deciding that it did not have jurisdiction to deal with the matter.

I turn now to the merits of the application for an extension of time within which to appeal.  At the hearing of the present application, Mr James said that in 1979 there was no reason for him to apply to the DSS for an invalid pension.  He applied for sickness benefits because he did not know whether his disabilities were going to be permanent or temporary.  He asserts that, from 1979, all relevant medical evidence that would have shown that he was in fact totally and permanently incapacitated, was withheld from him. He maintains that he was “misdiagnosed and misunderstood” by both the Department and (initially) by the Board.  He asserts this to demonstrate that he would in fact have qualified for an invalid pension.

If it can be demonstrated that Mr James ought not to have been paid sickness benefits in 1979 but an invalid pension, the effect would be that the sickness benefit payments he received would not have been repayable under the provisions of the Act in force at the time.

It is apparent from the chronology I have set out that the delay in the present case is very considerable and it would be truly an extraordinary case if delays of nearly ten years in the case of the 1988 decision, and more than two years in respect of the 1994 decision, could be dismissed as being not productive of injustice.

It is relevant that both in 1988 and in 1994 Mr James was represented by counsel.  In the present proceedings, he is acting for himself.  In paragraph 14 of his affidavit in these proceedings, Mr James says that he received advice concerning his appeal rights in June 1994.  A letter from the AAT dated 2 June 1994 stated:

Any appeal to the Federal Court must be instituted not later than 28 days after a copy of the decision is furnished to a party or within such further time as the court allows.

The respondent submits that there is adequate evidence that Mr James knew that he had to file a notice of appeal to the court within a certain time and that there is no real explanation for the delay.  Mr James in his affidavit says:

...my delay in applying to this court has been caused:
a)        by my ignorance of legal process;

b)by differing opinions which have been given to me by the Ombudsman, DSS representatives and representatives at the office of he SSAT and Federal Court.

For the DSS it was further submitted that the question of whether Mr James ought to have been paid an invalid pension from 1979 was not put to the AAT in 1988.  It was said that Mr James was not able to establish any error of law on behalf of the AAT because the error that he alleges was made related to a matter that was not put to the AAT at that time.  This in fact is correct, as I have indicated in my summary of the events of 1988 which I have earlier set out in some detail.

From my analysis of the various documents and the two proceedings, it would appear that there are inconsistencies between the way in which Mr James perceived the matter to have been considered and the way in which D P Breen in fact dealt with the matter.

Putting to one side the very significant questions of delay, the prospects of success of the appeal must be considered in light of the legislation at the relevant time, i e, from mid-1979 until 6 October 1981.  That is the time between the original application by Mr James for sickness benefits and the date of his application for an invalid pension.

At that time, a sickness benefit was an income support payment paid to a person who was unable to work and unable to obtain an income.  Section 108 disqualified a person from receiving a sickness benefit if he or she was already in receipt of an invalid pension under Part III.

That section relevantly provided, as at Act 79 of 1972:

Subject to this Part, a person (not being a person in receipt of a pension under Part III or Part IV or an allowance under Part VIIA or a service pension under the Repatriation Act 1920 to 1972) who:

a)has attained the age of 16 years but, being a male, has not attained the age of 65 years or, being female, has not attained the age of 60 years;

b)is residing in Australia on the date on which he lodges his claim for a benefit and:

(i)has been continuously so resident for a period of not less than 12 months immediately preceding that date; or

(ii)satisfies the Director-General that he is likely to remain permanently in Australia; and

c)satisfies the Director-General that he is temporarily incapacitated for work by reason of sickness or accident and has thereby suffered a loss of salary, wages or other income,

shall, unless the Director-General is satisfied that the incapacity was brought about with a view to obtaining a sickness benefit, be qualified to receive a sickness benefit.

Thus, a person was qualified to receive a sickness benefit if he was aged between sixteen and sixty-five years of age, resident in Australia, and the Director-General was satisfied that the claimant was temporarily incapacitated for work because of sickness or accident and had thereby suffered a loss of income.  A person was disqualified from receipt of sickness benefit if the incapacity was brought about with a view to obtaining a sickness benefit: s 108(1B).

So far as eligibility for an invalid pension is concerned, the relevant date to which I direct attention is 6 October 1981.  Section 24 of the Social Services Act 1947 (Cth) (as it then was) dealt with the requirements.  The effect of the statutory provision was that a person qualified under that Act to receive an invalid pension if he was sixteen years of age, not receiving an age pension and his degree of permanent incapacity for work was not less than 85 per cent .  The applicant also had to be residing in Australia at the date of lodging the claim for a pension.

Section 25 of the Act imposed certain conditions upon the grant of an invalid pension.  Relevantly, an invalid pension was not payable to a person if he had an enforceable claim for adequate compensation against any person under any law or contract, in respect of his permanent incapacity.  The form of the claim for an invalid pension had to be in accordance with s 37 of the Act, which provided:

A claim for an age or invalid pension -

(a)shall be made in writing in accordance with a form approved by the Director-General;

(b)shall be supported by such declaration as is approved by the Director-General; and

(c)shall be lodged with the Registrar whose office is nearest to the place of residence of the claimant or, in the case of a claimant who is outside Australia, at a place approved for the purpose by the Director-General.

For completeness, I point out that s 145 of the Act, so far as is relevant, provided that:

145.  Where a person makes a claim...for a pension...under a particular provision of this Act, and the circumstances are such that the claim might properly have been made...under some other provision of this Act...the Director-General may, if he considers it reasonable to do so, and subject to the lodgement of a claim in accordance with the appropriate form, treat the first-mentioned claim, for the purpose of determining the date from which a pension...is payable to that person under this Act, as a claim for whichever pension...is appropriate in the circumstances and as having been lodged with the appropriate office.

The power under s 145 of the Act was not exercised by the Director-General at any time.

It is unclear whether Mr James ever in fact applied for an invalid pension.  The absence of a document styled “Application for Invalid Pension” was averted to in the course of submissions, as there is no record of a claim for an invalid pension being lodged in October 1981.

In a letter from the Secretary to the Minister of the DSS at the time, the DSS says that the applicant did not apply for the invalid pension.  The position was that for a considerable time, the applicant’s true medical condition went unrecognised by the DSS which meant that, until 1983, the applicant was refused an invalid pension.  The 1988 decision said, in part:

While the applicant’s lack of success in either being properly diagnosed or, as a result, not being granted an invalid pension [was not] solely the responsibility of the respondent...the respondent in part should assume some responsibility.

D P Breen continued:

The respondent was somewhat dilatory in making the invalid pension grant.  As a result, the applicant remained in receipt of sickness benefits and the amount eventually recovered by the respondent was thereby increased.

In summary then, the position is this: Mr James now argues that the AAT should have back-dated the decision to award him an invalid pension.  That argument, in my opinion, was not put to he AAT in 1988.  I have looked at those proceedings and the reasons for decision, and have carefully considered and summarised them in these reasons.  Apart from the lengthy delay, the main problem with the present application is that it relates to the review of the exercise of a discretion by D P Breen under the then s 115E of the Act.

The necessary error of law for any successful appeal in the present proceedings is difficult, if not impossible, to identify.  Mr James seeks a different result, on the merits, in relation to what he achieved via the decision of the AAT in 1988.  This consideration is highly relevant in considering whether, if an extension be granted, any appeal would enjoy a real prospect of success.

In the present case, the prospects of a successful appeal, (which has to be limited to a question of law) are not such as to permit me to grant an extension of time within which to appeal.  This conclusion is quite separate from the very real difficulties of the time that has elapsed since DP Breen’s decision in 1988 and the decision of the AAT in 1994.

For these reasons I have decided to refuse the application seeking an extension of time within which to appeal, and the application should be dismissed.

In the ordinary way, the DSS, because it has been successful in resisting Mr James’s application, would be entitled to an order for costs.  However, in the circumstances of this case, I have decided to make no order as to costs in favour of the DSS.  There is a number of circumstances which lead me to that view.  The first of those is that Mr James is acting for himself and that there are matters about which he feels aggrieved.  That of course would not, on its own, avoid a costs order in favour of the DSS, but there are other aspects which have a relevance on the question of costs.

One of those, for instance, was the fact that Mr James, at expense to him, both in terms of money and inconvenience, travelled from Maryborough to Brisbane for a directions hearing in relation to this matter but that hearing was adjourned because of the late filing of an affidavit by the DSS.  I think that that circumstance and the other aspects concerning inconvenience to Mr James can be reflected by not giving the DSS the costs which they otherwise might expect.

For these reasons, then, the application for an extension of time to file and serve a notice of appeal from the two decisions is dismissed, but there is no order as to costs.

I certify that this and the preceding fifteen (15) pages are a true copy of the Reasons for Judgment herein of the Honourable Justice Spender

Associate:

Dated:            16 October 1997

The applicant appeared in person
Solicitor for the Respondent:	Mr Melville of Australian Government Solicitor
Date of Hearing:	16 October 1997
Date of Judgment:	16 October 1997