JOSEPH MICHAEL SUSNJA and SECRETARY, DEPARTMENT OF EDUCATION, EMPLOYMENT AND WORKPLACE RELATIONS Ms A F Cunningham (Senior Member)

[2009] AATA 836

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2009] AATA 836

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No 2009/4759

GENERAL ADMINISTRATIVE  DIVISION		)
Re		JOSEPH MICHAEL SUSNJA

Applicant

And SECRETARY, DEPARTMENT OF EDUCATION, EMPLOYMENT AND WORKPLACE RELATIONS

Respondent

WRITTEN REASONS FOR ORAL INTERLOCUTORY DECISION

Tribunal Ms A F Cunningham (Senior Member)

Date28 October 2009

PlaceHobart

Decision The application for extension of time to lodge an application for review is refused.   

[Sgd Ms A F Cunningham]

Senior Member

CATCHWORDS

Application for extension of time refused

Administrative Appeals Tribunal Act 1975, s 29(7)

Re Johnston and the Commonwealth (5 January 1990 No 5619)

WRITTEN REASONS FOR ORAL INTERLOCUTORY DECISION

29 October 2009 Ms A F Cunningham (Senior Member)   

1.      On 31 October 2008 the Social Security Appeals Tribunal (SSAT) made a decision that Mr Susnja had been paid excess Newstart Allowance of $8,612.05 for the period 21 August 2002 to 13 December 2006.

2.      Mr Susnja did not seek a review of the SSAT's decision within the requisite timeframe of 28 days.  He lodged an application for an extension of time to do so with the AAT on 6 October 2009.  This was the hearing of that application.

3.      Mr Susnja gave oral evidence at the hearing and was cross-examined by Mr Sparkes on behalf of the respondent. 

4.      The application is made pursuant to section 29(7) of the Administrative Appeals Tribunal Act 1975. The only guidance for the Tribunal is that it be satisfied that it is reasonable in all of the circumstances to extend time.

5.      It is generally accepted that the discretion is not to be exercised lightly and that the usual rule is that the statutory timeframe should be adhered to and the granting of an extension is the exception.  That is it must be justified by the particular circumstances of the applicant. 

6.      The Tribunal in Re Johnston and the Commonwealth (5 January 1990 No 5619), laid down a number of guiding criteria regarding those circumstances which are now generally followed in the exercise of the Tribunal's discretion.  They are:

i)         whether or not the applicant rested on his rights or took action to make      the decision maker aware that the decision was contested;

ii)        any prejudice to the respondent that would be caused by granting the        extension of time;

iii)       any wider prejudice to the general public in terms of disruption to     established practices;

iv)       the merits of the substantive application;  and

v)        fairness in granting the extension of time as between the applicant and      other persons in a like position.

7.      Mr Sparkes referred me to a number of other authorities where an extension of time had not been granted where those criteria were considered not to be met.

8.      Mr Susnja offered several explanations as to why he had not lodged his application for review within the required time period.  He maintained that due to problems he was experiencing with a personal relationship and problems at work that this matter was not a priority for him and I accept this.  However the question is whether his reasons were reasonable in the circumstances, which requires an objective assessment. 

9.      Mr Susnja says that he has no specific recollection of receiving the decision which may be the case.  He says that he was on anti-depressant medication at the time.  Mr Susnja however does not dispute that he did receive the decision of the SSAT with a notice of his appeal rights.  In any event he would have been aware that there was to be a decision as he attended the hearing by telephone.  This was only in part however as it was Mr Susnja's decision to adjourn the proceedings.  It seems that he did not make himself available for a resumption of  the hearing.  There was no evidence that Mr Susnja took any active steps to participate or have the matter concluded.  Mr Susnja was aware of the proceedings and knew that a Centrelink officer had made a decision in 2006 which raised a debt of over $8,000.00.  If he chose not to treat this issue seriously and a priority at the time, that is a matter for him.  He had the position of warehouse manager which role obviously carried certain responsibilities and indicates that he was not incompetent. 

10.     The question is whether Mr Susnja should be given the opportunity to re-agitate the matter almost three years after the original decision was made.  I think not.

11.     Mr Susnja could not satisfy me that there is any merit to his appeal.  He did not dispute that he was living in government housing and receiving rent assistance at the time.  He contends that he was not aware that the Brooker Avenue property was government housing.  He says that this was not discussed at the SSAT hearing.  However at paragraph 9 of the SSAT decision it is recorded that Mr Susnja had told the Tribunal that he did not know that 353 Brooker Highway was a government house.  This factor was obviously taken into account by the SSAT in the course of its decision and considered not to be a defence to the issue in hand.  Mr Susnja conceded that he knew the Cadbury Road house was government housing.

12.     I am satisfied that at some stage during the twelve month period Mr Susnja was aware of the appeal period and took no action because as he said, it was not a priority for him at the time.  Even if I accepted that following the receipt of the SSAT decision Mr Susnja was preoccupied by a number of factors including work and relationship problems and a period of incarceration, there were several months following his release from prison when he still took no action.

13.     I am not satisfied there is any basis upon which it would be reasonable to exercise the discretion and grant an extension of time for the period sought.  There is the potential of a very real prejudice to the respondent in doing so given the lapse of time and for the wider community members who do treat such matters as a question of priority and attempt to abide by the statutory requirements.  The application is accordingly dismissed.

I certify that the 12 preceding paragraphs are a true copy of the written reasons for the oral interlocutory decision herein of Ms A F Cunningham (Senior Member)

Signed:  [R Hunt]............................
               R Hunt (Administrative Assistant)

Date/s of Interlocutory Hearing      28 October 2009
Date of Oral Decision  28 October 2009
Date of Written Reasons                29 October 2009
Solicitor for the Applicant               Applicant on his own behalf
Solicitor for the Respondent          Mr B Sparkes, Centrelink Legal Services