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

Jayawardhena and Secretary, Department of Social Services (Social services second review) [2019] AATA 5755 (19 December 2019)
Division:GENERAL DIVISION
File Number: 2019/7078
Re:Mr Nimal Jayawardhena
APPLICANT

AndSecretary, Department of Social Services
RESPONDENT

DECISION
Tribunal:Ms Anna Burke AO Member
Date:19 December 2019
Date of written reasons: 13 January 2020
Place:Melbourne

The Tribunal grants the application under section 29(7) of the Administrative Appeals Tribunal Act 1975 for an extension of time to lodge an application for review of a decision of the Social Services and Child Support Division of the Administrative Appeals Tribunal dated 21 August 2019.
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Ms Anna Burke AO Member
PRACTICE AND PROCEDURE – application for extension of time – delay of one month in lodging application – whether reasonable excuse for delay – where prejudice would be incurred by respondent and public by allowing extension of time – prospects of success – reasonable in all the circumstances to allow extension of time
Legislation
Administrative Appeals Act 1975 (Cth)
Social Security Act 1991 (Cth)
Social Security (Administration) Act 1999 (Cth)
Cases
Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541
Groth v Secretary Department of Social Security [1995] 40 ALD 541
Hunter Valley Developments Pty Ltd; Anthony Neary Walker; Mende Brown v the Honourable Barry Cohen Minister of Home Affairs and Environment (1984) 3 FCR 433
Kuljic, N v Secretary, Department of Social Security [1994] FCA 62 (3 February 1994)
REASONS FOR DECISION
Ms Anna Burke AO Member
13 January 2020

Mr Jayawardhena (the applicant) sought an extension of time for the review of a decision under s 29(7) of the Administrative Appeals Tribunal Act 1975 (Cth) (the Act). The decision was made by the Social Services and Child Support Division of the Administrative Appeals Tribunal (AAT1) on 21 August 2019. The applicant lodged his application for review of that decision as well as his application for an extension of time on 31 October 2019.
On 25 March 2019, Centrelink issued a notice to Mr Jayawardhena that he had a legally recoverable newstart allowance debt of $6,055.28 for the period 11 September 2017 to 24 November 2018, as the correct amount of his earnings was not taken into account. Centrelink is the service provider for the Department of Social Services (the Department).
The extension of time application was heard on 19 December 2019. Mr Jayawardhena was self-represented and Mr Allan Quanchi, government lawyer in the Freedom of Information and Litigation Team of the Department of Human Services, appeared for the Secretary, Department of Social Services (the respondent).
The Tribunal provided an oral decision at the hearing granting the request for an extension of time, as it was satisfied that the request was reasonable. The respondent has subsequently requested written reasons for the decision in accordance with s 43(2A) of the Act; these are those reasons.
THE ISSUE IN CONTENTION
The issue in contention is whether the Tribunal is satisfied that it is reasonable in all the circumstances to extend the time for Mr Jayawardhena to make an application for review under section 29(7) of the Act.
BACKGROUND
In respect of the issue before the Tribunal, Mr Jayawardhena was in receipt of a newstart allowance from 16 November 2016 and was at various times receiving income from IPA Personnel Services Pty Ltd (IPA) and Australia Post.
On 25 March 2019, Centrelink apportioned income detected in Mr Jayawardhena’s Australian Taxation Office matched data and determined that he had been overpaid newstart allowance by $6,055.28 in the period 11 September 2017 to 24 November 2018, because he had failed to declare his income correctly.
On 3 May 2019, Centrelink recalculated the debt based on the payslips Mr Jayawardhena provided from IPA, which reduced the debt to $5,695.25.
On 20 May 2019, on internal review, a departmental Authorised Review Officer (ARO) affirmed the original decision and found in relation to Mr Jayawardhena that:
You have a debt because you failed to correctly declare your income from employment. As the debt was not caused solely by the department’s error the debt cannot be waivered for this reason.
On 21 August 2019, AAT1 set aside the decision of the ARO and sent the matter back to the Department to recalculate the debt using payslips to be obtained from IPA and Australia Post for the whole period. The Member wrote:
Mr Jayawardhena reported income during some periods in which he worked but for the majority of the debt period he did not report income. Mr Jayawardhena provided some payslip information but part of the debt was apportioned according to information contained in the Centrelink documents in the absence of payslip information for the periods 1 August 2017 to 3 September 2017 and from 10 September 2017 to 1 October 2017.
Mr Jayawardhena told the tribunal that he commenced a Certificate III in aged care at Holmesglen TAFE in the middle of April 2018 until September 2018. During this period Mr Jayawardhena did not work at all.
The tribunal accepts Mr Jayawardhena’s evidence that he did not undertake any paid employment while he was undertaking the course at Holmesglen TAFE.
The tribunal does not accept the apportionment of income in the absence of payslips or payment summary information is an accurate way to calculate a debt and therefore the tribunal is not satisfied that the debt amount is correct. Mr Jayawardhena said he did not work for IPA at the same time he was working for Australia Post directly.
The debt is to be recalculated based on payslip information obtained by Centrelink from IPA and Australia Post. The tribunal directs that payslip only information is used as the payslips from IPA have the actual dates that Mr Jayawardhena worked for IPA.
On 14 October 2019, Centrelink advised Mr Jayawardhena that his debt had been recalculated in accordance with the AAT1 determination and he now owed $5292.38 for the period 1 December 2016 to 18 April 2018.
On 24 October 2019, Mr Jayawardhena sought an extension of time for a review of the AAT1 decision by this division of the Tribunal, stating “Letter from Centrelink advising new amount (recalculated amount) was received on 15 October 2019 (dated 14 October 2019). AAT decision was made on 30 August 2019 but I was waiting for Centrelink correspondence for recalculated amount payable.”
RELEVANT LEGISLATION AND ISSUES
Section 29(7) – (10) of the Act provides that:
(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. (emphasis added)
(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 the Tribunal determines an application for an extension of time, the Tribunal or an officer of the Tribunal may:
(a)give notice of the application to any persons the Tribunal or officer considers to be affected by the application; or
(b) require the applicant to give notice to those persons.
(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 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.
CONSIDERATION
The Act provides the Tribunal with a broad discretion power to grant an extension of time if it is satisfied that it is reasonable in all the circumstances to do so. The Act does not provide guidance on what is reasonable, however the Tribunal has been guided by the principles outlined in Hunter Valley Developments Pty Ltd; Anthony Neary Walker; Mende Brown v the Honourable Barry Cohen Minister of Home Affairs and Environment (1984) 3 FCR 433, in which Justice Wilcox states:
Section 11 of the Administrative Decisions (Judicial Review) Act does not set out any criteria by reference to which the Court's decision to extend time for an application for review under s.5 is to be exercised. Already there have been a number of decisions of Judges of this Court, all sitting at first instance, dealing with the approach proper to be taken. They differ a little, both in language and in emphasis, but I venture to suggest that from them may be distilled the following principles to guide, not in any exhaustive manner, the exercise of the Court's discretion:
(a) Although the section does not, in terms, place any onus of proof upon an applicant for extension an application has to be made. Special circumstances need not be shown but the Court will not grant the application unless positively satisfied that it is proper so to do. The "prescribed period" of 28 days is not to be ignored (Ralkon v Aboriginal Development Commission [1982] FCA 153; (1982) 43 ALR 535 at p 550) Indeed it is the prima facie rule that proceedings commenced outside that period will not be entertained (Lucic v Nolan (1982) 45 ALR 411 at p 416). 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 (Duff at p 485; Chapman v Reilly, Neaves J, 9 December 1983, not reported, at p 7).
Given the above, whilst the Tribunal accepts that there is no pre-condition for an acceptable delay to be given, it is expected that an explanation will be provided and as such the Tribunal first explored with Mr Jayawardhena his reason for delay in submitting his application for review.
Mr Jayawardhena advised the Tribunal he was unaware of the 28 day rule to lodge an appeal and he had been awaiting advice from Centrelink about the re-calculation of his debt, and this had taken over one and a half months from the outcome of the original AAT1 hearing.
Mr Jayawardhena also advised the Tribunal that during this period his mother was quite unwell, was hospitalised and eventually passed away. He stated that during this period his thoughts were with his mother, that he had travelled twice overseas to visit her and that he was not in a position to consider other issues.
The respondent contended that Mr Jayawardhena’s explanation for the delay was not adequate. The respondent contended that Mr Jayawardhena had been advised by the AAT1 that it was highly likely he would still have a debt following the recalculation, such a debt would be recoverable and therefore it was incumbent upon him to lodge his appeal in time.
The Tribunal was satisfied with Mr Jayawardhena’s explanation for his delay, as he was concerned with his mother’s illness and subsequent death during this period. Additionally, the Tribunal found that Mr Jayawardhena’s action in waiting for the recalculation from Centrelink was not unreasonable, as this may have influenced his decision whether to appeal the AAT1 outcome.
As Justice Wilcox stated in Hunter Valley Developments, special circumstances must be shown to grant an extension of time and this guidance was further explored in Kuljic, N v Secretary, Department of Social Security [1994] FCA 62 (3 February 1994), where Justice Von Doussa stated:
One of the principal considerations to be addressed in deciding whether it is fair and equitable in all the circumstances to extend time is whether the merits of the proposed appeal are such that if an extension of time is granted there is some prospect of success in the appeal. If a consideration of the merits indicates that there is no question to be agitated on the appeal, and there is no prospect of success, it would be futile to grant an extension of time and most unjust to the respondent to subject the respondent to the costs of defending a pointless appeal. Two questions therefore arise on the papers before the Court in this case: (1) whether an acceptable explanation for the delay has been proffered; and (2) whether, on the merits, there is any prospect of the appeal succeeding.
The Tribunal next explored the prospect of any success in respect of Mr Jayawardhena’s appeal, and explored with him any additional information he could offer to the Tribunal that would aid his case.
Mr Jayawardhena advised the Tribunal that he was not satisfied with the recalculation made by Centrelink as it was unclear how they had arrived at the figure. He accepted that the payslips were correct as he had worked during the period concerned, but was still unclear as to how Centrelink had arrived at the debt amount and disputed that he owed such a large sum.
Mr Jayawardhena advised the Tribunal that Centrelink had not looked at the bigger picture, which was that he had undertaken a training course so that he could get work so that he would no longer be reliant upon Centrelink payments and a drag on the taxpayers. He stated that he had been saddened by the Centrelink officers’ claim that he had defrauded the system, which the officer had said twice; he did not think he had ever defrauded the system. Mr Jayawardhena said that he was 60 years of age and was working to ensure that he no longer needed to be on newstart, but that he had to look after his health and provide for his 15-year-old child.
Mr Jayawardhena emphasised that during the period he needed the money, that there had been a couple of payslips that he had not been able to put through the system and that this had happened because he wanted to do a training course so that he could eventually find work. He was adamant he had not done this deliberately, that he had not been lying, that the system should go after the big people and that he was actually here to save Centrelink money. Indeed he believed he had saved Centrelink money and that the Tribunal needed to consider the bigger picture.
The respondent submitted that Mr Jayawardhena’s substantive application was without merit and had no reasonable prospects of success. The submissions included that Mr Jayawardhena had failed to declare income from his employment with IPA and had under reported his income from Australia Post throughout the debt period. Simply put, he had received more newstart allowance than he was entitled. Furthermore, the respondent submitted that the applicant had advised the AAT1 that he had knowingly underreported his income.
The respondent submitted that the debt had been recalculated using actual income obtained from IPA and Australia Post, and was no longer based on calculations from apportioning income.
The respondent contended that if an extension of time were to be granted, Mr Jayawardhena could not seek a review of the recalculated amount as in accordance with s179(2)(d) of the Social Security (Administrative) Act 1999, only a review of the AAT1 direction could be considered. Additionally, the respondent advised Mr Jayawardhena that he could seek a review from Centrelink at any time in respect of monies owed. However, as discussed at the Tribunal this was complicated by the fact that any request for review received by Centrelink 13 weeks after being notified about a decision could only be backdated to the time the review was requested. Mr Jayawardhena advised the Tribunal that he had assumed he had followed the appropriate procedure by appealing the outcome of the AAT1 hearing.
Section 1237A(1) of the Social Security Act 1991 (the SS Act) provides grounds for the decision maker to write off or waive the right of recovery of any part of the debt. The SS Act provides waiver of a debt if it was attributable solely to an administrative error made by the Commonwealth. The Tribunal found the recalculated debt was not attributed solely to an administrative error.
Section 1236 of the SS Act confers the discretion on the Secretary to write off a debt if and only if the debt is irrecoverable at law; or the debtor has no capacity to repay the debt; or the debtor’s whereabouts are unknown after all reasonable efforts have been made to locate the debtor; or it is not cost effective for the Commonwealth to take action to recover the debt. The Tribunal found that this did not apply to Mr Jayawardhena, however the Tribunal noted Mr Jayawardhena’s current financial difficulties and had recommended he speak to the debt recovery unit to negotiate a repayment plan. Mr Jayawardhena advised the Tribunal that he had sought to discuss his situation with Centrelink but his experience to date had not been good.
Section 1237AAD of the SS Act confers discretion on the Secretary to waive all or part of the debt if there are special circumstances (other than financial hardship alone) that make it desirable to waive. The expression “special circumstances” has not been defined in the SS Act. However, guidance can be found in Groth v Secretary Department of Social Security [1995] 40 ALD 541 where Kiefel J said: “…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. That was, I consider, the only enquiry to be undertaken in this 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”.
The Tribunal found that Mr Jayawardhena did present factors to the Tribunal that demonstrated hardship and unfairness, and were sufficient to justify consideration of waiving part or whole of his Centrelink debt. These factors included that Mr Jayawardhena was unclear as to how Centrelink had arrived at the debt recalculation that was now based on a different time period, the complexity of the system, that his health prevented him from working more than four hours per day, that he was struggling financially, that he was mourning the death of his mother and was caring for his 15-year-old child.
The respondent submitted there was no substantive reason or evidence provided by Mr Jayawardhena that would impugn the correctness of the decision made at the AAT1 hearing.
The respondent submitted it was against the public interest to grant an extension of time and destruct established practices on appeal, which the justice of the case does not warrant. The Tribunal therefore considered whether there was prejudice to the public in allowing Mr Jayawardhena’s application, referring to the judgement of McHugh J in Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541:
An applicant for an extension of time who satisfies those conditions is entitled to ask the court to exercise its discretion in his or her favour. But the applicant still bears the onus of showing that the justice of the case requires the exercise of the discretion in his or her favour.
The discretion to extend time must be exercised in the context of the rationales for the existence of limitation periods. For nearly 400 years, the policy of the law has been to fix definite time limits (usually six but often three years) for prosecuting civil claims. The enactment of time limitations has been driven by the general perception that "[w]here there is delay the whole quality of justice deteriorates."….
... 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”. 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.

The Tribunal concluded that Mr Jayawardhena was entitled to the Tribunal exercising its discretion in his favour to grant an extension of time and that this was not against the public interest.
CONCLUSION
Finally, the Tribunal noted the submissions made about the merits of Mr Jayawardhena’s case by both parties. The Tribunal was, on the basis of its finding, satisfied that there was a plausible explanation for the short delay and whilst the prospects of success could not be said to be great, they were not hopeless. The Tribunal was satisfied that it was reasonable in all the circumstances to grant an extension of time for the applicant to lodge an application for review.

I certify that the preceding 35 (thirty-five) paragraphs are a true copy of the reasons for the decision herein of Ms Anna Burke, Member

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Associate
Dated: 13 January 2020

Dates of interlocutory hearing 19 December 2019

Applicant By telephone

Advocate for the Respondent

Solicitors for the Respondent

Mr Allan Quanchi

Department of Human Services,
Freedom of Information & Litigation Branch

[2019] AATA 5755

19 December 2019

Key Legal Topics

Areas of Law

Administrative Law

Statutory Interpretation

Legal Concepts

Appeal

Judicial Review

Procedural Fairness

Standing

Statutory Construction