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

[2021] AATA 2762

Kadadi and Secretary, Department of Social Services (Social services second review) [2021] AATA 2762 (9 August 2021)

Division: GENERAL DIVISION

File Number:           2021/4339

Re: Ranya Kadadi

APPLICANT

AndSecretary, Department of Social Services 

RESPONDENT

DECISION

Tribunal:Chris Puplick AM, Senior Member

Date:9 August 2021

Place: Sydney

The application for an extension of time is granted.

........................SGD................................................

Chris Puplick AM, Senior Member

CATCHWORDS

PRACTICE AND PROCEDURE - interlocutory application for an extension of time to lodge an application for review – objection to the granting of an extension of time – basis of Applicant’s appeal – reasons for Applicant’s delay – prejudice to the Respondent or any other party – prospects of success -  application for an extension of time granted

LEGISLATION

A New Tax System (Family Assistance) (Administration) Act 1999 (Cth) ss 95, 97(3)

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

CASES

Berkelaar and Comcare [1997] AATA 12015

Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541

Brown v Federal Commissioner of Taxation [1999] FCA 563

GGGD and Secretary, Department of Social Services [2020] AATA 802

Hunter Valley Developments Pty Ltd and Others v Minister for Home Affairs and Environment (1984) 3 FCR 344

Jamal v Secretary, Department of Social Services [2018] FCA 513

Jackamarra v Krakouer [1998] HCA 27

Kim and Minister for Immigration and Border Protection [2018] AATA 155

Kuljic v Secretary, Department of Social Security [1994] FCA 886

Re Predrag (Peter) Ivovic and Director-General of Social Services [1981] AATA 57

Secretary, Department of Family and Community Services v Roberts [2003] 73 ALD 412

SPWX v Secretary, Department of Social Services [2020] AATA 3883

Stafford and Secretary, Department of Social Services (Social Services Second Review) [2018] AATA 2746

REASONS FOR DECISION

Chris Puplick AM, Senior Member

9 August 2021

1. Ms Ranya Kadadi (‘the Applicant’) is seeking an extension of time (‘EOT’) in which to lodge an application for a review of a decision made by the Social Services and Child Support Division of this Tribunal (‘AAT1’) on 5 December 2019.

2. The Administrative Appeals Tribunal Act 1975 (Cth) provides that appeals against decisions of the Tribunal should be lodged within a period of 28 days of the original decision[1]. However, there is a discretion in the Tribunal to extend that period as provided by section 29(7):

   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 (including a decision made before the commencement of this section) if the Tribunal is satisfied that it is reasonable in all the circumstances to do so.

   [1] Administrative Appeals Tribunal Act 1975 (Cth) s 29(2).

3. In this case the application is 534 days outside the prescribed time limits.

4. The test for granting an application for an EOT is whether it is reasonable in all the circumstances to do so, and as such, consideration must be given to the individual circumstances of each application. Nevertheless, judicial authority has established certain principles for considering such applications.

   PRINCIPLES FOR CONSIDERING EXTENSIONS OF TIME

5. Extensions of time are not granted by the Tribunal as a matter of course and cogent reasons need to be advanced for them being granted.

6. McHugh J in the High Court decision of Brisbane South Regional Health Authority v Taylor[2] gave four reasons why such limitations are an important part of the legal process[3]. His Honour noted that:

   ‘First, as time goes by, relevant evidence is likely to be lost. Secondly, it is oppressive, even “cruel”, to a defendant to allow an action to be brought long after the circumstances which gave rise to it have passed. Thirdly, people should be able to arrange their affairs and utilise their resources on the basis that claims can no longer be made against them.

   …

   The final rationale for limitation periods is that the public interest requires that disputes be settled as quickly as possible.’

   [2] (1996) 186 CLR 541 at [552]-[553].

   [3] Ibid, 552 – 553. Footnotes and citations omitted.

7. It is generally accepted that the ‘check-list’ outlined by Wilcox J in Hunter Valley Developments Pty Ltd and Others v Minister for Home Affairs and Environment[4] should be taken as the guide by this Tribunal in determining EOT matters.

   [4] (1984) 3 FCR 344.

8. That list provides as follows:

   ·an applicant must show an ‘acceptable explanation of the delay’ and that it is ‘fair and equitable in the circumstances’ to extend time;

   ·a distinction is to be made between an applicant who has ‘rested on his rights’ and allowed 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;

   ·any prejudice to the respondent caused by the delay;

   ·any ‘unsettling of people, other than the respondent, or of established practices’;,

   ·the merits of the substantial application; and

   ·‘considerations of fairness as between applicants and other persons’ in a similar position.

9. However, there are other principles which the Tribunal bears in mind in these considerations. They include

   ·Considering each case on its specific facts and merits, being guided by ‘what the justice of the case requires’ and ensuring that all relevant factors are evaluated.[5]

   ·‘If a consideration of the merits indicates that there is no question to be agitated on the appeal, and there is no prospect of success, it would be futile to grant an extension of time and most unjust to the respondent to subject the respondent to the costs of defending a pointless appeal.’[6]

   ·Considerations of the availability of ‘alternative avenues of relief for the Applicant should the original EOT order not be granted’.[7]

   [5] Brown v Federal Commissioner of Taxation [1999] FCA 563 at [59].

   [6] Kuljic v Secretary, Department of Social Security [1994] FCA 886 at [6].

   [7] Kim and Minister for Immigration and Border Protection [2018] AATA 155 at [20].

10. There is no hard-and-fast rule related to the length of time by which an application falls outside the prescribed lime limits, serving as a guide as to whether or not an extension of time may be granted.

11. In the matter of Roberts, the application was only one day beyond the statutory limit and the Tribunal stated:

    ‘In many cases an extension of 1 day would not be opposed and an order to that effect would be made by the tribunal quite readily. The brevity of the extension sought does not, however, lead automatically to an order extending the time just as the fact that a lengthy period of time has passed does not automatically lead to the refusal of such an order.’[8]

    [8] Secretary, Department of Family and Community Services v Roberts [2003] 73 ALD 412 at [16]. Also Dolan and Comcare [1993] 29 ALD 887 at [888].

12. In Roberts, with just one day delay the extension of time was refused whereas in Berkelaar, where the time delay was 5 years, an extension of time was granted.[9] In 2020 the Tribunal saw fit to grant and extension of time to an applicant who had lodged her request well in excess of eight years after the appealable decision because although ‘the delay in this matter is very substantial’, nevertheless ‘the issues sough to be considered in a review are also of importance’.[10]

    [9] Berkelaar and Comcare [1997] AATA 12015.

    [10] SPWX v Secretary, Department of Social Services [2020] AATA 3883 at [49].

    THE AAT1 DECISION

13. The AAT1 had to consider an appeal by the Applicant against a decision by the Secretary, Department of Social Services (‘the Respondent’) to the effect that she had debts to the Commonwealth arising from overpayment of Family Tax Benefits (‘FTB’).

14. The AAT1 found that under section 97(3) of A New Tax System (Family Assistance) (Administration) Act 1999 (Cth) (‘the Administration Act’) part of the debt (for the financial year 2015/2016) should be waived as it had resulted from ‘sole administrative error’ on the part of the Respondent.[11] This arose where the Respondent failed to change the Applicant’s status from single to partnered after she advised of her marriage and the consequent miscalculation of both relevant income and entitlement for payment.

    [11] AAT1 decision 2019/S142090 at [27]-[28].

15. However, the debts for financial years 2016/2017 and 2017/2018 should not be waived but should be written off under section 95 of the Administration Act until 5 June 2020. In making this decision the Tribunal noted its decision was conditioned by the fact that[12]:

    The Tribunal considers the wording of this notice is misleading. It does not inform Ms Kadadi that she is regarded as a single person, and with the knowledge that she had notified Centrelink of her marriage, it perpetuated her understanding that Centrelink would check her and her husband’s details with the Australian Taxation Office at the end of the year. However, it also notifies Ms Kadadi of the need to advise of changes in her partner’s taxable income.

    [12] Ibid at [30].

    RELEVANT NARRATIVE

16. The relevant narrative for this matter is as follows:

    ·July 2014 the Applicant commenced receipt of Newstart Allowance and FTB by fortnightly instalment with payment made to her at the single rate.

    ·7 November 2015 the Applicant married Mr Vaha Akolo Tuitavake and on 20 November 2015 advised the Respondent of the marriage.

    ·4 October 2019 the Applicant lodged her appeal with the AAT disputing claims of overpayment.

    ·25 November 2019 the Applicant’s husband suddenly and unexpectedly died.

    ·2 December 2019 the funeral of the Applicant’s husband was held.

    ·5 December 2019 the AAT1 hearing was conducted and decision with cover letter setting out right of appeal sent to the Applicant on 11 December 2019.

    ·8 January 2020 expiry of the 28-day period for appeal to be lodged.

    ·20 May 2020 the Applicant was advised by the Respondent (Centrelink), by letter that she had ‘been identified as a member of the class action’ being commenced in the Federal Court as part of the so-called ‘Robodebt’ class action.

    ·19 January 2021 Applicant advised by the Respondent that settlement had been agreed to in the Robodebt class action and was invited to indicate if she objected to the terms of that settlement. She did not.

    ·11 June 2021 publication of the Robodebt class action decision, Prygodicz v Commonwealth.[13]

    ·23 June 2021 the Applicant was advised that the Robodebt proceedings did not encompass any matters previously decided by the AAT1.[14]

    ·25 June 2021 Applicant lodged appeal in this Tribunal.

    [13] (No 2) [2021] FCA 634.

    [14] Outline of Submissions for the Applicant (undated) Filed 22 July 2021 at [21]. There is no indication as to the source of this advice.

    BASIS OF THE APPLICANT’S APPEAL

17. The Tribunal must consider the reasons advanced by the Applicant in support of her being granted an extension of time against the principles which it has outlined above.

18. It notes that the Respondent bases its opposition to the extension of time being granted primarily on the basis that no satisfactory reason for the delay has been advanced and that in any event the matter is lacking in merit and would have little substantive prospect of success if subjected to a full merits-based hearing. The Respondent also notes that the Applicant could also apply directly to the Respondent for a write-off or waiver of the debts or the negotiation of an appropriate repayment plan in instalments.

19. It urges this as a course of not requiring the matter to ‘be agitated at the AAT2’.[15] While there is merit in this suggestion it also leaves open that failure of the parties to reach agreement would only lead to the matter coming back on appeal to the AAT at an event later date. It is for that reason that this Tribunal will proceed to make a decision in the matter.

    [15] Respondent’s Statement of Facts, Issues and Contentions at [49].

    Reasons for the delay

20. The Tribunal will not normally grant an EOT unless there are compelling reasons to do so, although it is recognised that an acceptable reason is not, in itself a pre-requisite for success.[16] In this instance, the Applicant states:

    ·At the time of the AAT1 hearing she was in a state of high distress and emotional instability following the unexpected death of her husband and the fact that the Tribunal hearing took place three days after his funeral. Although the Tribunal decision indicates that the Applicant participated in the proceedings and gave certain information to the Tribunal, the Applicant now states that she cannot remember any engagement of ‘more than twenty seconds’ in order to tell the Tribunal that she was not well enough to participate in any meaningful sense.

    ·The Applicant believed that the Robodebt proceedings involved consideration of her FTB payments and that, as a result of those proceedings she was somehow relieved of any debt repayment obligations.

    ·Throughout the period of time during which she should have lodged her appeal, her state of health and emotional wellbeing was such that she could not make rational decisions about such issues and that, according to a report by her General Practitioner (Dr Debra Tattersall, dated 16 July 2021), ‘Her ability to cope with all activities of daily life were severely impaired during this period of grief’.

    [16] Phillips v Australian Girls’ Choir Pty Ltd & Anor [2001] FMA 2019 at [10]; Comcare v A’Hearn [1993] 119 ALR 85 at [88].

21. The Tribunal is sympathetic to these submissions. It accepts that the shock of her husband’s death (a heart attack while playing football) and his funeral made it exceptionally problematic for her to be able to participate in the AAT1 hearing in a meaningful fashion.

22. Secondly, while the Centrelink letters advising that the Applicant had been identified as being encompassed within the Robodebt appeal, on the basis that she was in receipt of Newstart Allowance, it is not unreasonable on the part of the Tribunal, to accept that the Applicant did not understand that her FTB matters were not part of the Robodebt considerations. While it is clear  that FTB matters were not listed among the 12 Centrelink payments (including Widow A Allowance and Widow B Pension) as outlined in the 5 pages of attachment to the notification letter, it may well be that at the time the Applicant failed to read or understand the correspondence properly.

23. Thirdly, it appears that as soon as the correct position in relation to her FTB/Robodebt situation was made clear, the Applicant proceeded with her application for an EOT.

24. In this respect the Tribunal does not believe that the Applicant can be said to have rested on her rights or otherwise failed to be active in pursuit of her claim.

    PREJUDICE TO THE RESPONDENT OR ANY OTHER PARTY

25. Although the Respondent is entitled to a presumption of some certainty and finality in such matters, it would not, in the opinion of the Tribunal suffer any particular prejudice. There is no suggestion of any loss of documentary or other evidence necessary for the Respondent to address the issues of merit should they be reconsidered,[17] and the ‘burden of proof’ in this instance lies with the Applicant.

    [17] Berkelaar and Comcare [1997] AATA 12015 at [31].

26. Indeed, as the Respondent’s representative very properly pointed out before the Tribunal, to reopen the matter could theoretically lead to the AAT1 decision waiving the 2015/2016 debt being set aside and instead added to the total debt repayable to the Commonwealth.

27. There is no significant prejudice to other applicants, although those who have complied with time limits, may feel aggrieved nor is there any relevant consideration of comparative fairness in dealing with other applicants in a similar position.

    MERITS – PROSPECTS OF SUCCESS

28. In Jamal, Bromwich J stated:

    ‘The last relevant principle set out in Hunter Valley Developments was that the merits of the substantive appeal should be taken into account. Her Honour followed the view expressed by Mortimer J in MZABP v Minister for Immigration & Border Protection [2015] FCA 1391; 242 FCR 585 at [62], upheld by the Full Court in MZABP v Minister for Immigration & Border Protection [2016] FCAFC 110; 152 ALD 478, to the effect that it will seldom be in the interests of justice to grant an extension of time where an appeal would have little prospect of success, given the additional resource demands that it would impose upon the parties and the Court, and the inevitable impact it would have on other users of the Court.’[18]

    [18] Jamal v Secretary, Department of Social Services [2018] FCA 513 at [6].

29. In Jackamarra, the High Court stated:

    ‘The understanding of counsel for the appellant as to how the Court would examine “the merits” was consistent with the practice of the courts in a number of common law jurisdictions dealing with applications to extend the time for appealing. In R v Secretary of State for the Home Department; Ex parte Mehta, for example, Lord Denning MR said:

    “We often like to know the outline of the case. If it appears to be a case which is strong on the merits and which ought to be heard, in fairness to the parties, we may think it is proper that the case should be allowed to proceed, and we extend the time accordingly. If it appears to be a flimsy case and weak on the merits, we may not extend the time. We never go into much detail on the merits, but we do like to know something about the case before deciding whether or not to extend the time.”’ [19]

    [19] Jackamarra v Krakouer [1998] HCA 27; 195 CLR 516 at [3]. Per Brennan CJ and McHugh J [also Kirby J at 66]. Citations omitted.

30. The Tribunal is persuaded that there are several matters of substance which should be open to review on their merits.

31. It is clear that the Respondent wrote on numerous occasions to the Applicant requiring her to provide certain information which she failed to do.[20] The AAT1 accepted that for at least part of the debt period in question there had been ‘sole administrative error’ on the part of the Respondent. It may be argued that given Tribunal decisions in matters such as GGGD[21] and Stafford[22] this finding is open to challenge.

    [20] Respondent’s Statement of Facts, Issues and Contentions at [6].

    [21] GGGD and Secretary, Department of Social Services [2020] AATA 802 at [79]-[81].

    [22] Stafford and Secretary, Department of Social Services (Social Services Second Review) [2018] AATA 2746 at [78]-[79].

32. More cogently, the questions of

    ·the Applicant’s competence at the time of the AAT1 hearing;

    ·the not unreasonable assumptions she had made about the Robodebt proceedings;

    ·the admitted errors on the part of the Respondent in not properly recording details of her marriage (and hence miscalculating entitlements);

    ·the potentially ‘misleading’ correspondence from the Respondent which may have perpetuated the Applicant’s misunderstanding and non-compliance and also led her to accept payments ‘in good faith’; and

    ·the Applicant’s current financial circumstances, given that her only source of income at the present is the Jobseeker (formerly Newstart Allowance) and that enforced repayment of the debts (which total $22,455.28 plus any accrued interest)

    might be such as to warrant consideration as special circumstances or otherwise attract the ameliorative provisions of the Administration Act.

33. As the Tribunal noted in Ivovic the term ‘special circumstances’ invites consideration of the particular circumstances of each case and should respond to those circumstances where ‘strict enforcement of the liability created … would be unjust, unreasonable or otherwise inappropriate’.[23]

    [23] Re Predrag (Peter) Ivovic and Director-General of Social Services [1981] AATA 57 at [45].

1. The Tribunal thus concludes that there is sufficient merit in the application going forward and that the Applicant is not without some prospect of success in her appeal.

   DISCUSSION

2. The Tribunal has considered the particular circumstances of the Applicant against the application against the principles laid down in Hunter Valley and concluded that a reasonable explanation for the delay in lodging this application has been established and that the Applicant is not without some prospects of success in a full merits hearing.

3. Although the delay is extensive, the circumstances, especially related to the intertwining of this matter with the extraordinary and protracted Robodebt proceedings bring the Tribunal to the same conclusion as reached in SPWX that ‘The delay in this matter is very substantial and the issues sought to be considered in a review are also of importance[24]’ leading, on balance, to favour the granting of an extension of time.

   [24] SPWX v Secretary, Department of Social Services [2020] AATA 3883 at [49].

   DECISION

4. The application for an extension of time is granted.

I certify that the preceding 37 (thirty-seven) paragraphs are a true copy of the reasons for the decision herein of

.............................SGD...........................................

Associate

Dated:  9 August 2021

Date of hearing:	26 July 2021
Solicitors for the Applicant:	Mr D Turner
Solicitors for the Respondent:	Ms C Hammerton