JEFFERY ROBERT FITTON and SECRETARY, DEPARTMENT OF FAMILIES, HOUSING, COMMUNITY SERVICES AND INDIGENOUS AFFAIRS The Hon R J Groom (Deputy President)

[2010] AATA 527

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2010] AATA 527

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No 2010/1993

GENERAL ADMINISTRATIVE  DIVISION		)
Re		JEFFERY ROBERT FITTON

Applicant

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

Respondent

INTERLOCUTORY DECISION

Tribunal The Hon R J Groom (Deputy President)

Date14 July 2010

PlaceHobart

Decision An extension of time is not granted.

[Sgd Hon R J Groom]

Deputy President

CATCHWORDS

PRACTICE AND PROCEDURE - extension of time in which to lodge application for review - whether extension should be granted - consideration of relevant principles - extension not granted

Hunter Valley Developments v Cohen (1984) 3 FCR 344

Comcare v A'Hearn (1993) 119 ALR 85

Repatriation Commission v Tuite (1992) 37 FCR 571

Re Stevenson and Commonwealth of Australia (1987) 13 ALD 524

Lucic v Nolan (1982) 45 ALR 411

Administrative Appeals Tribunal Act 1975, ss 29(2), 29(7)

REASONS FOR INTERLOCUTORY DECISION

14 July 2010 The Hon R J Groom (Deputy President)

1. This is an application by Mr Jeffery Fitton made pursuant to section 29(7) of the Administrative Appeals Tribunal Act 1975 ("the AAT Act") for an extension of time in which to make an application for a review of a decision made by the Social Security Appeals Tribunal ("SSAT").

2.      Mr Fitton had received a lump sum compensation payment following a motor vehicle accident.  That payment included compensation for loss of income.  He was therefore precluded from receiving social security benefits for a "lump sum preclusion period".  Centrelink originally decided the preclusion period ended on 19 September 2014.  In its subsequent decision the SSAT reduced that period to 29 June 2012.

3.      The decision of the SSAT was made on 19 May 2009.  The written decision with findings and reasons was dispatched to Mr Fitton on 29 May 2009.

4.      On 26 May 2010 Mr Fitton signed an application to this Tribunal for a review of the SSAT decision.  A stamp on the application form states that the application was filed in the Tribunal's Hobart registry on 27 May 2010.

5. Section 29(2) of the AAT Act allows a period of 28 days after the SSAT decision was given to Mr Fitton in which to apply to this Tribunal for a review. Mr Fitton therefore had until 27 June 2009 to lodge his application for review. It was lodged approximately eleven months outside the period prescribed in the Act.

6.      In extension of time applications it is appropriate to have regard to the principles set out by Wilcox J in Hunter Valley Developments v Cohen (1984) 3 FCR 344.

7.      Those principles are essentially as follows:

"(a) It is a pre-condition to the exercise of the discretion 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.

(b) Action taken by the applicant which makes the decision-maker (and presumably also the other party to the decision) aware that he contests the finality of the decision is relevant. If the applicant has "rested on his rights" this may operate against the exercise of the discretion.

(c) Prejudice to the respondent is a material factor militating against the grant of an extension.

(d) The mere absence of prejudice is not enough to justify the grant of an extension. A delay which may result in the unsettling of other people or of established practices is likely to prove fatal to the application.

(e) The merits of the substantial application are properly to be taken into account in considering whether an extension of time should be granted.

(f) Consideration of fairness as between the applicant and other persons in a like position are relevant".

8.      The Full Federal Court in Comcare v A'Hearn (1993) 119 ALR 85 held that there is no rule at law that an acceptable explanation for delay must be given although such explanations would normally be given and are relevant matters for consideration.

9.      Although the merit of the substantive application is also a relevant consideration it is obviously not necessary to embark on a thorough examination of the strength of the applicant's case.  (See Repatriation Commission v Tuite (1992) 37 FCR 571 at 577).

10.     As stated in Lucic v Nolan (1982) 45 ALR 411 at 416, limitation periods of the kind now under consideration are not to be ignored. Proceedings sought to be commenced outside the prescribed period will generally not be entertained. The Court or Tribunal, after considering all relevant factors, must be satisfied there is good reason to extend time. (See Re Stevenson and Commonwealth of Australia (1987) 13 ALD 524).

11.     In his application to this Tribunal for a review of the SSAT decision Mr Fitton stated as follows:

"Can not find work and have no money coming in except for $100.00 per fortnight for being a carer.  Would be good if I could get a full carer's pension if I can't get my pension back".

12.     At the hearing on 29 June 2010 Mr Fitton said the main reason for seeking a review of the SSAT decision was his present financial plight.  He said his only income was $106.70 per fortnight paid to him as a carer.  He said he had expended all of his compensation money including on the purchase of a house at Hamilton in Tasmania for $149,000.00.  Mr Fitton said he had just turned 50 and was making a big effort to obtain work but so far without success.  Mr Fitton said all he was asking for was a "fair go".

13.     Mr Fitton said in oral evidence that he had spoken to a lady at Centrelink after he had received a letter informing him of the SSAT decision.  He had asked that person about the possibility of appealing the decision.  He said this was within the 28 day period allowed for lodging an appeal.  He was aware that there was a 28 day period in which to appeal the decision.  Mr Fitton said the lady had told him "you can't go any further ... you won't do any good".  He also said he had contacted the Ombudsman for advice.  It is unclear on the evidence as to whether he received advice and if he had what that advice was. 

14.     Mr Fitton did not point to any particular error in the SSAT decision except to suggest that the preclusion period should have commenced at an earlier point in time.  He did not provide any basis in the Act, the Regulations or elsewhere for that suggestion.

15.     The Tribunal has no doubt that Mr Fitton has given a truthful account of his extremely difficult financial plight.  However that, in itself, is not a reason for granting an extension of time.

16.     In the Tribunal's view consideration of the merits of the substantive application is particularly significant.  If there is no merit in that application then it would be a waste of everyone's time, including the applicant's, to proceed further.

17.     As has been mentioned it is not necessary to finally determine the merits of the case.  The Tribunal is only required to consider whether the substantive application has sufficient merit to justify an extension of time.

18.     The applicant has not pointed to any particular error in the SSAT's reasoning or approach other than a general and unclear proposition that the preclusion period should have commenced earlier.  He confirmed at the hearing that the reason he is seeking a review is his lack of a reasonable income rather than any particular error by the SSAT.

19.     This Tribunal has examined the SSAT decision and is unable to detect any clear error in its decision or reasoning.  It reduced the compensation part of the lump sum from $250,267.89 to $162,246.10, a reduction of $88,421.79.  As a result the preclusion period, which was to end on 19 September 2014 is now to end on 29 June 2012.  It is difficult to see any fault in that decision and as has been said none was pointed out by the applicant.   The Tribunal concludes that the applicant has no realistic prospect of success should his substantive application be considered by the Tribunal.

20.     The delay in this case is lengthy.  It is some eleven months.  Although Mr Fitton may have been told by a person at Centrelink that he would "... not do any good" if he appealed, that early conversation was not a plausible explanation for the whole of the period of delay of eleven months. 

21.     After taking into account all of the material before it the Tribunal is not satisfied that proper grounds exist for granting an extension of time to allow a review of the SSAT decision.  The length of the delay and the Tribunal's conclusion that there appears to be no real merit in Mr Fitton's substantial application are significant factors influencing the Tribunal to arrive at this decision.

22.     The Tribunal makes particular note of the suggestion made by Mr Sparkes who appeared for the respondent that Mr Fitton has the right to make a fresh application to Centrelink for a disability support pension.  Although such an application may again be unsuccessful the Tribunal is assured it would be treated on its merits and would provide a new opportunity for Centrelink to give consideration to all of the circumstances including Mr Fitton's current dire financial plight.

Decision

23.     An extension of time is not granted.

I certify that the 23 preceding paragraphs are a true copy of the reasons for the interlocutory decision herein of The Hon R J Groom (Deputy President)

Signed:  R Hunt (Administrative Assistant)

Date/s of Hearing  29 June 2010
Date of Decision  14 July 2010
Solicitor for the Applicant          Applicant on his own behalf
Solicitor for the Respondent    Mr B Sparkes, Centrelink Advocacy Branch