John and Secretary, Department of Social Services

[2017] AATA 887

John and Secretary, Department of Social Services [2017] AATA 887 (21 February 2017)

Division:GENERAL DIVISION

File Number(s):      2016/6456

Re:Alan John

APPLICANT

AndSecretary, Department of Social Services

RESPONDENT

DECISION

Tribunal:Senior Member A Poljak

Date:21 February 2017

Place:Sydney

The extension of time application is refused.

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

Senior Member A Poljak

CATCHWORDS

PRACTICE AND PROCEDURE – extension of time – no prospects of success in the substantive matter – extension of time refused

LEGISLATION

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

Evidence Act 1995 (Cth) s 160

Social Security (Administration) Act 1999 (Cth) s 179

CASES

Comcare v A’Hearn [1993] FCA 498; (1993) 45 FCR 441

Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344

REASONS FOR DECISION

Senior Member A Poljak

21 February 2017

1. These interlocutory proceedings concern an application for an extension of time to lodge a substantive application for review pursuant to section 29(7) of the Administrative Appeals Tribunals Act 1975 (Cth) (the “AAT Act”).

2. The substantive decision under review is the decision of the Administrative Appeals Tribunal Social Services and Child Support Division (“SSCSD”) made on 26 August 2016. The SSCSD set aside the decision of the Authorised Review Officer of the Department of Social Services rejecting the applicant’s claim for the disability support pension (“DSP”). The SSCSD found that the applicant is medically qualified for DSP and, subject to satisfying other relevant criteria, is qualified to be paid DSP from 21 January 2016 (the “decision under review”).

3. The applicant filed an application for review and an extension of time application with the Tribunal on 30 November 2016.

4. Ordinarily, an application for review of a decision must be lodged with the Tribunal within 28 days from the day on which the decision is given to the applicant pursuant to subsection 29(2)(a) of the AAT Act.

5. The decision under review was posted to the applicant on 7 September 2016. Pursuant to section 160 of the Evidence Act 1995, it is presumed  the applicant would have received a copy of the decision on the fourth working day after having been posted, that is, by 13 September 2016. Accordingly, the applicant’s application is one month, two weeks and five days out of time.

6. The issue to be decided in this interlocutory proceeding is whether it is reasonable in all circumstances to extend the time for the applicant to file an application for review of the substantive matter to 30 November 2016.

7. By consent, the extension of time application was heard on the papers.

   BACKGROUND

8. On 17 January 2014, the applicant applied for DSP. This claim was rejected on 30 January 2014 on the basis that the applicant was not qualified for DSP.

9. On 18 June 2015, the applicant lodged another claim for DSP. This claim is yet to be determined.

10. In regards to this application, the applicant lodged a claim for DSP on 21 January 2016.

    PRINCIPLES TO BE APPLIED

11. The Tribunal may extend the time for lodging an application if it “is satisfied that it is reasonable in all the circumstances to do so” pursuant to section 29(7) of the AAT Act.

12. The principles to be applied in determining an application for an extension of time are well-known.  In Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344, Wilcox J said, at 348 and 349, that the principles guiding the exercise of the discretion could be distilled from the authorities as including, although “not in any exhaustive manner”:

    (a)it is the prima facie rule that proceedings commenced outside the prescribed period will not be entertained, and an applicant must show an “acceptable explanation of the delay” and that it is “fair and equitable in the circumstances” to extend time;

    (b)a distinction is to be made between an applicant who has “rested on his rights”, allowing the decision-maker to believe that the matter was finally concluded, and one who has continued to make the decision-maker aware that he or she contests the finality of the decision;

    (c)any prejudice to the respondent caused by the delay is a material factor militating against granting an extension;

    (d)the mere absence of prejudice is not enough to justify an extension; 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;

    (f)“Considerations of fairness as between the applicants and other persons” in a similar position are relevant.

13. These principles are not to be applied mechanically. For example, an “acceptable explanation for the delay” is not an essential precondition to the exercise of the discretion, although it is to be expected that such an explanation will normally be given: Comcare v A’Hearn [1993] FCA 498; (1993) 45 FCR 441.

14. All of the circumstances of the case must be considered, the overriding consideration being whether it is reasonable in all the circumstances to grant the extension.

    MERITS OF SUBSTANTIVE MATTER

15. Although it is neither necessary nor appropriate for me to determine the substantive matter in these interlocutory proceedings, it is relevant for me to form a view as to the prospects of Mr John’s application for review.

16. It appears that the applicant seeks review of the substantive matter only in regards to the date from when he should be paid DSP. He says that he should be paid DSP from when he lodged his first claim for DSP on 17 January 2014.

17. The Secretary contends that Mr John’s prospects of success in the substantive matter are very poor and that the Tribunal has no jurisdiction to determine the matter in dispute.

18. I only have jurisdiction to review the decision of the SSCSD pursuant to section 179 of the Social Security (Administration) Act 1999 (Cth) (“the Administration Act”). The decision under review in these proceedings is the applicant’s DSP claim which was lodged on 21 January 2016.

19. I do not have jurisdiction to review the applicant’s earlier DSP claim which was lodged on 17 January 2014. It is not the decision under review.

20. Accordingly I find that the applicant has no prospects of success. His DSP claim which was lodged on 18 June 2015 is still yet to be determined and if successful, may provide partial relief to what the applicant is seeking here.

21. Since I have found that the applicant has no prospects of success in the substantive matter for the relief which he seeks, it is not necessary for me to consider other factors in determining whether an extension of time should be granted.

    CONCLUSION

22. Taking into account all of the information before me, I am not satisfied that it is reasonable in all the circumstances to grant the extension of time.

23. The extension of time application is refused.

I certify that the preceding 23 (twenty-three) paragraphs are a true copy of the reasons for the decision herein of Senior Member A Poljak

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

Associate

Dated: 21 February 2017

Date(s) of hearing:	20 January 2017 (heard on the papers)
Applicant:	Self-represented
Solicitors for the Respondent:	Department of Human Services