Johnston and Secretary, Department of Family and Community Services

[2004] AATA 1113

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2004] AATA 1113

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No  Q2004/609

GENERAL ADMINISTRATIVE DIVISION		)
Re		JEFFREY JOHNSTON

Applicant

And SECRETARY, DEPARTMENT OF FAMILY AND COMMUNITY SERVICES

Respondent

DECISION

Tribunal Senior Member McCabe

Date27 October 2004

PlaceBrisbane

Decision The Tribunal declines to allow an extension of time to lodge an application for review.

...................[Sgd]......................

Senior Member

CATCHWORDS

PRACTICE AND PROCEDURE – application to extend time to lodge application for review – whether Tribunal has power make order – whether Tribunal ought to make order – reason for delay is acceptable – no prejudice to respondent – consideration of merits of application for review – prospects of success – extension of time refused

Comcare v Grimes (1994) 33 ALD 548

Hunter Valley Developments Pty Ltd v Cohen (1984) 7 ALD 315

Comcare v A’Hearn (1993) 119 ALR 85

Minister for Health and Aged Care v Pharmacia and Upjohn Pty Ltd (2001) 65 ALD 76

Veterans’ Entitlements Act 1986

Social Security Act 1991

REASONS FOR DECISION

27 October 2004 Senior Member McCabe

introduction

1. Jeffrey Johnston is unhappy with a decision of the Secretary to recover an amount which the Secretary says represents an overpayment. The Secretary’s decision was affirmed by the Social Security Appeals Tribunal (the SSAT) on 18 May 2004. Mr Johnston delayed in making his application to this Tribunal: his application was nearly two months out of time. He sought an extension of time pursuant to s 29(7) of the Administrative Appeals Tribunal Act 1975. The Secretary opposed the request. Mr Johnston did not appear at the hearing where the question was to be considered, and the application was dismissed.

2.      Mr Johnston now says he missed the hearing because he was told by an officer of the Tribunal that the hearing date was to be changed.  He said he contacted the Tribunal as soon as he learned the application had been dismissed.

3.       Mr Johnston now asks the Tribunal to extend the time in which to make an application notwithstanding the dismissal of the earlier request for an extension of time.

the legislation

4. Section 29(7) of the Act permits the Tribunal to extend the time within which an application for review can be made. The Tribunal has already declined to extend the time in which the application can be made, but the applicant says it was not his fault he did not attend the hearing.

5.      I am satisfied the Tribunal can entertain a fresh application for an extension of time. In Comcare v Grimes (1994) 33 ALD 548, Wilcox J explained (at 555):

Section 29(7) does not impose any express limitation upon the making of applications for extension of time, either in relation to the number of applications that a person may make or the circumstances under which applications may be made.  The policy adopted by Parliament was that these matters should be left to the Tribunal.

6.      The Tribunal might have little sympathy for a fresh application in circumstances where the original application was subject to a full hearing and was dismissed after due consideration. But that is not the case here. The applicant says he failed to attend the hearing as a result of a misunderstanding. The Tribunal did not proceed to review the application in detail. It follows I am able to grant an extension of time if I think it is appropriate to do so.

7. Is it appropriate to exercise the discretion in s 29(7) to grant an extension of time in this case? The discretion is not unconfined: the Federal Court has made it clear in cases like Hunter Valley Developments Pty Ltd v Cohen (1984) 7 ALD 315 that the Tribunal must have regard to a number of matters, including whether or not there was a good excuse, any prejudice that might arise if the extension of time is not permitted, and the merits of the case.

8.      Is there a good excuse for the delay? The absence of a good excuse is not necessarily fatal, but an excuse is ordinarily expected: see Comcare v A’Hearn (1993) 119 ALR 85. I am satisfied in this case that there is a good excuse. The applicant is a very sick man, and he is regularly required to undergo dialysis treatment. I accept his condition was an impediment to the prosecution of his appeal rights. He has not simply rested on those rights. The length of the delay is not unreasonable in the circumstances.

9.      Would any of the parties suffer prejudice if the extension is granted? There was no suggestion the respondent would be prejudiced. I am satisfied an extension of time would not be unfair to the respondent in that sense.

10.     A consideration of the merits of the substantive application raises more difficult issues for the applicant. The respondent says the SSAT decision was right as a matter of law, and there are no special circumstances. It will therefore be necessary for me to consider the SSAT decision in some detail – although it must be emphasised the Tribunal does not conduct a mini-trial involving an extensive merits review at this point: see Minister for Health and Aged Care v Pharmacia and Upjohn Pty Ltd (2001) 65 ALD 76 per Hill, Whitlam and Tamberlin JJ at 78.

The ssat decision

11.     Mr Johnston was in receipt of a disability support pension from Centrelink because he suffers from serious kidney disease. He had previously served with the armed forces and the Department of Veterans’ Affairs notified Centrelink that the applicant was eligible to receive a disability payment (which included an additional payment for being totally and permanently incapacitated) covering the same period as the Centrelink payment. The Department of Veterans Affairs proceeded to withhold an amount equal to the overpayment from the arrears of the pension to pay the Centrelink debt. The debt has now been repaid.

12. Section 205AA of the Veterans’ Entitlements Act 1986 says that a veteran who becomes entitled to receive a pension from the Department of Veterans Affairs in circumstances where the veteran has already received a payment from the Secretary must repay the amount of the payment made through Centrelink by the Secretary. The payment may be recovered through a lump-sum deduction from any entitlement.  The section is designed to prevent being paid twice in respect of the same disability.

13. The SSAT also considered whether the debt ought to be waived under s 1237AAD of the Social Security Act 1991. The section permits the Secretary to waive the right to recover a debt where there are special circumstances (other than financial hardship alone) that justify a waiver. The SSAT considered Mr Johnston’s circumstances and reluctantly concluded there was no basis for the exercise of the discretion.

what are mr johnston’s prospects of success if the appeal proceeds?

14.     At the extension of time hearing on 15 October 2004, Mr Johnston explained he had been having difficulty making ends meet while he was in receipt of the Centrelink benefits and welcomed the more generous payments from the Department of Veterans’ Affairs. He was dismayed to learn that he was required to repay the amounts he received from Centrelink. He felt he was no better off. He was incensed that Centrelink should be able to take money from him that was awarded in respect of pain and suffering – pain and suffering that is ultimately attributable to the circumstances of his military service.

15.     I am unable to identify any error in the SSAT’s approach to the case. Given the findings of fact that it made, the SSAT was bound to apply the law as it did. Mr Johnston was not entitled to be paid twice.

16. The SSAT was unable to satisfy itself that Mr Johnston’s circumstances were special or unusual. It properly acknowledged he is in considerable difficulty because of his health and his financial circumstances, but it said there was no basis for exercising the discretion to waive recovery under s 1237AAD of the Social Security Act 1991.  There was no evidence to suggest the Tribunal might reach a different conclusion if it proceeded to review the SSAT decision at a hearing. I note in any event that the money has already been recovered.

17.     It follows Mr Johnston’s prospects of success are poor if the extension of time were allowed.

conclusion

18.     The SSAT dealt with Mr Johnston sympathetically, but it is obliged to apply the law. So is this Tribunal. Nothing can be achieved by granting an extension of time within which to bring an application for review. I decline to grant the extension.

I certify that the 18 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member McCabe.

Signed:         [Sgd]
  Associate:  Thomas Ritchie

Date of Hearing: 15 October 2004 
Date of Decision: 27 October 2004
The applicant represented himself.
The respondent was represented by Ms Wallis-Dunn, a departmental advocate.