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

Case [2018] AATA 2243

Jones and Secretary, Department of Social Services (Social services second review) [2018] AATA 2243 (16 July 2018)

Division:GENERAL DIVISION

File Number(s):     2018/2210

Re:Peter Jones

APPLICANT

AndSecretary, Department of Social Services

RESPONDENT

DECISION

Tribunal:Member C Edwardes

Date:16 July 2018

Place:Perth

The Applicant’s application for an extension of time is refused.

........................................................................

Member C Edwardes

CATCHWORDS

PRACTICE AND PROCEDURE – application for extension of time to lodge application for review of decision – Tribunal refuses to grant an extension of time – disability support pension  

LEGISLATION

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

Social Security Act 1991 (Cth) – ss94(1), ss 94(2), ss 94(3B)

Social Security (Active Participation for Disability Support Pension) Determination 2014

Social Security (Administration) Act 1999 (Cth) – sch 2 cl 4

Social Security (Tables for the Assessment of Work-related Impairment for Disability

Support Pension) Determination 2011 (Cth)

CASES

Augustynski and Secretary, Dept of Families, Housing, Community Services and Indigenous Affairs, Re [2013] AATA 507 

Bobera and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2012] AATA 922

Brown v Federal Commissioner of Taxation (1999) 99 ATC 4516

Chattopadhyay and Secretary, Department of Social Services [2015] AATA 158

Comcare v A’Hearn (1993) 45 FCR 441

DHLD and Executive Director, Social Security Appeals Tribunal [2010] AATA 377

Gallacher v Secretary, Department of Social Services [2015] FCA 1123

Hunter Valley Developments Pty Ltd v Cohen, Minister for Home Affairs and Environment (1984) 58 ALR 305

Kok Yong Tey and DSS [2013] AATA 753

Kuljic v Secretary, Department of Social Security (1994) 33 ALD 121

Re Grafton and Commonwealth (1988) 16 ALD 533

Re Romeo and Secretary, Department of Social Security (1992) 26 ALD 248

Re Civic Tavern Pty Ltd and ACT Liquor Licensing Board (1993) 32 ALD 381

Re Veronica Lesley Johnson and Commonwealth of Australia; Commission of the Safety, Rehabilitation and Compensation of Commonwealth Employees [1990] AATA 1

Secretary, Department of Family and Community Services and Roberts [2003] AATA 269

Swanson and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2009] AATA 606

VMXC and  Secretary,  FaHCSIA [2013] AATA 663

Zizza v Federal Commissioner of Taxation [1999] FCA 37 

REASONS FOR DECISION

Member C Edwardes

16 July 2018

THE APPLICATION

  1. This is an application for an extension of time to make an application for review of a decision, dated 23 January 2018, made by the Social Services & Child Support Division of the Administrative Appeals Tribunal (AAT1).  This decision affirmed a decision to refuse the Applicant a disability support pension (DSP).

    ISSUE

  2. The issue before the Tribunal is whether the Tribunal should exercise its discretion to grant leave for an extension of time for the Applicant to make an application to the Tribunal for a substantive review of the decision made by AAT1 (AAT1 decision) dated 23 January 2018.

  3. The Applicant lodged her Application for Review of the Decision with the Tribunal on 03 May 2018.

  4. The time for making…

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AGLC
Jones and Secretary, Department of Social Services (Social services second review) [2018] AATA 2243
Case
[2018] AATA 2243
Decision Date

CaseChat Overview and Summary

The Administrative Appeals Tribunal (AAT) considered an application by the Applicant for an extension of time to lodge an application for a second review of a decision concerning a disability support pension. The Applicant sought to review a decision made by AAT1 on 23 January 2018, having lodged their application for a second review with the AAT on 26 April 2018, and an application for an extension of time on 8 May 2018. The Secretary, Department of Social Services, opposed the application for an extension of time.

The primary legal issue before the Tribunal was whether it should exercise its discretion under subsection 29(7) of the Administrative Appeals Tribunal Act 1975 to extend the time for the Applicant to lodge their application for review. This required the Tribunal to consider several factors, including the length of the delay, whether the Applicant was aware of their appeal rights, any prejudice to the Respondent or the public interest, and the merits of the Applicant's substantive application. The Tribunal was also required to assess whether the Applicant had taken any action to contest the decision or had rested on their rights, and whether there were any alternative avenues of relief available to the Applicant.

In determining whether to grant the extension, the Tribunal applied established legal principles governing the exercise of discretion under section 29(7) of the AAT Act. These principles, drawn from cases such as *Hunter Valley Developments Pty Ltd v Cohen* and *Brown v Federal Commissioner of Taxation*, emphasise that while the prescribed time limit is the prima facie rule, an extension may be granted if it is proper to do so. The Tribunal considered the Applicant's delay of approximately 55 days to be substantial, weighing against the grant of an extension. It also noted that the mere absence of prejudice to the respondent is insufficient to justify an extension, and that the merits of the substantive application and considerations of fairness between applicants are relevant factors.

The Tribunal ultimately determined that it was not reasonable in all the circumstances to grant the extension of time. The Applicant's delay was significant, and while the merits of the substantive application were considered, the Tribunal found that the delay and the lack of a compelling explanation for it, coupled with the public interest in the efficient conduct of merits review processes, weighed against exercising its discretion in favour of the Applicant.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

The Tribunal notes commentary in paragraph 37 of DHLD and Executive Director, Social Security Appeals Tribunal [2010] AATA 377 in considering the manner in which the discretion to grant an extension of time should be exercised: …It is not a pre-condition for success in an application for extension of time that an acceptable explanation for delay must be given. It is, however, to be expected that such an explanation will normally be given as a relevant matter to be considered, even though there is no rule that such an explanation is an essential pre-condition (Comcare v A’Hearn [1993] FCA 498; (1993) 45 FCR 441 and Dix v Client Compensation Tribunal [1993] VicRp 21; (1993) 1 VR 297 at 302).3. Action taken by the applicant other than by making an application to the court (Tribunal) is relevant in assessing the adequacy of the explanation for the delay. It is relevant to consider whether the applicant has rested on his rights and whether the respondent was entitled to regard the claim as being finalised. (See Doyle v Chief of Staff [1982] FCA 124; (1982) 42 ALR 283 at 287)4. Any prejudice to the respondent, including any prejudice in defending the proceeding occasioned by the delay, is a material factor militating against the grant of an extension. (See Doyle at p 287).5. The mere absence of prejudice is not enough to justify the grant of an extension. (See Lucic at p 416).The merits of the substantial application are properly to be taken into account in considering whether an extension of time should be granted. (See Lucic at 417).…7. Considerations of fairness as between the applicant and other persons otherwise in a like position are relevant to the manner of exercise of the court’s discretion (Wedesweiller v Cole (1983) 47 ALR 528).”[55] EVIDENCE The application was heard in Perth on 20 June 2018. The Applicant appeared in person by telephone and the Respondent was represented by Ms De Vito and appeared by telephone. The Tribunal received the following exhibits:·Exhibit A1 – Application for Extension of Time to apply for review dated 8 May 2018·Exhibit A2 – Application for Second Review of Decision received 27 April 2018.·Exhibit A3 - Report of Dr Abu Abraham dated 8 March 2018.·Exhibit A4 – Letter of Paul Norman dated 15 March 2018.·Exhibit A5 – Letter of Dr Jamie Chiew dated 22 March 2018.·Exhibit R1 – Secretary’s Outline of Submissions dated 21 May 2018.·Exhibit R2 – Annexure A to R01 ·Exhibit R3 – Annexure B to R01 ·Exhibit R4 – Annexure C to R01·Exhibit R5 – Annexure D to R01 ·Exhibit R6 – Annexure E to R01 ·Exhibit R7 – Annexure F to R01·Exhibit R8 – Annexure G to R01 ·Exhibit R9 – Annexure H to R01 ·Exhibit R10 – Annexure I to R01 ·Exhibit R11 – Annexure J to R01 ·Exhibit R12 – Annexure K to R01 ·Exhibit R13 – Annexure L to R01 ·Exhibit R14 – Notice of Opposing Application for Extension of Time. The matter was heard on 20 June 2018. The Applicant appeared in person. The Respondent was represented by Ms De Vito.CONSIDERATION

Decision

Reasons for decision

The issue before the Tribunal is whether the Tribunal should exercise its discretion to grant leave for an extension of time for the Applicant to make an application to the Tribunal for a substantive review of the decision made by AAT1 (AAT1 decision) dated 23 January 2018. The Applicant lodged her Application for Review of the Decision with the Tribunal on 03 May 2018. The time for making the application is 28 days from “the day on which a document setting out the terms of the decision is given to the Applicant”: paragraph 29(2)(a) Administrative Appeals Tribunal Act 1975 (AAT Act). BACKGROUND On 30 March 2017 the Applicant lodged a claim for DSP. On 13 June 2017, the Department rejected the claim. That decision was reviewed and affirmed by an Authorised Review Officer (ARO) on 18 August 2017. On 23 January 2018, the decision of the ARO was reviewed and affirmed by AAT1. In the his Application for Extension of Time for Making an Application for Review of Decision and Application for Second Review of Decision, the Applicant stated that he received the AAT1 decision on 23 January 2018. The Applicant made the Application for Second Review (the Application) of the AAT1 decision with the Administrative Appeals Tribunal General Division (the AAT2) on 26 April 2018. The Applicant received a “Notice of AAT’s Decision” letter, (relevant to the AAT1 decision), dated 25 January 2018. On the 27 April 2018 the Tribunal received an application for second review followed by an application for extension of time on the 8 May 2018. RELEVANT LEGISLATION AND LEGAL PRINCIPLES Generally, under subsection 29(2) of the AAT Act, an application for review must be lodged within the 28 days of the Applicant receiving notice of the decision. However, subsection 29(7) of the AAT Act states that “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… if the Tribunal is satisfied that it is reasonable in all circumstances to do so.” In Hunter Valley Developments Pty Ltd v Cohen, Minister for Home Affairs and Environment (1984) 3 FCR 344 at [18], Wilcox J stated …The ‘prescribed period’ of 28 days is not to be ignored... Indeed, it is the prima facie rule that proceedings commenced outside the period will not be entertained... The Tribunal notes paragraph 6 of Brown v Federal Commissioner of Taxation [1999] FCA 563 that reinforces and provides guidance concerning the exercise of discretion to extend the time for commencement of proceedings: …(i)prima facie, proceedings commenced outside the prescribed period will not be entertained. An extension of time will be granted, however, if it is proper to do so;(ii)it is relevant whether the Applicant rested on his rights or took action to make the decision-maker aware that the decision was being contested;(iii)any prejudice to the respondent that would be caused by granting the extension of time is relevant;(iv)any wider prejudice to the general public in terms of disruption to established practices is relevant;(v)the merits of the substantial application are relevant; and(vi)fairness of granting the extension of time as between the applicant and other persons in a like position is relevant.

Ratio Decidendi

Legal Principle Established

The matter was heard on 20 June 2018. The Applicant appeared in person. The Respondent was represented by Ms De Vito.CONSIDERATION The Tribunal will consider the following:·Was there a significant delay in lodging an application to the Tribunal? ·Was the Applicant aware of his appeal rights and did the Applicant provide an acceptable explanation for the delay? ·Will the grant of an extension of time application prejudice the Respondent or the wider public? ·What are the merits of the Applicant’s substantial application – does the Applicant have reasonable prospects of success in proceeding with their substantial application? ·Does the Applicant have an alternative avenue of relief? Was there a significant delay in lodging an application to the Tribunal? The Tribunal notes and agrees with the Secretary’s contentions in relation to the length of the delay: 14. The Application for Extension of Time for Making an Application for Review of Decision (EOT Application), dated 8 May 2018, indicates that the Applicant received the relevant decision on 23 January 2018. Given that this was the date of the AAT1 hearing, it is assumed that this was not the date of receipt of the AAT1 decision. 15. The Notice of AAT’s Decision was dated 25 January 2018. It is assumed that the AAT1 decision was posted on this day. Subsection 29(1) of the Acts Interpretation Act 1901 states that meaning of service by post is that:…the service shall be deemed to be effected by properly addressing, prepaying and posting the document as a letter and, unless the contrary is proved, to have been effected at the time at which the letter would be delivered in the ordinary course of post.16. The Australia Post website states that it would take 2-6 business days by use of regular post for a letter to be sent from the AAT in Perth, WA, 6000 to the Applicant’s residence in Thornlie, WA, 6103. Therefore, it is assumed that the latest date the Applicant received the AAT1 decision is 2 February 2018.17. The 28th day after 2 February 2018 is 2 March 2018. Accordingly, the 28 day limit to lodge an appeal with the AAT2 expired on 2 March 2018. The 28 day application limit is prescribed by subsection 29(2) of the AAT Act and refers to “day” not “working day”.18. The Applicant’s Application was received by the AAT2 on 26 April 2018 according to AAT2 correspondence. Accordingly, the Applicant’s application is 55 days out of time (approximately 8 weeks). The Secretary contends that a delay of this kind constitutes a substantial delay in the statutory context.19. The Secretary contends that it would not be reasonable in the circumstances to grant an extension of time for a delay of 55 days. The Secretary notes that there is a public interest in the efficient conduct of merits review processes, such that timely decisions can be made and acted upon with finality.20. The length of delay involved in a case will be a relevant consideration. Moreover, even if the delay is not considered to be lengthy, the “brevity of the extension sought does not, however, lead automatically to an order extending the time” (Secretary, Department of Family and Community Services and Roberts [2003] AATA 269, [16]).21. The Secretary contends that the length of the delay weighs against the exercise of the discretion to grant an extension of time. (emphasis added) Was the Applicant aware of his appeal rights?