Kitson v D.F.C.S.
[2007] FMCA 966
•21 June 2007
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| KITSON v D.F.C.S. | [2007] FMCA 966 |
| ADMINISTRATIVE LAW – Appeal against decision of Administrative Appeals Tribunal – Application for leave to appeal out of time – principles to be applied – application refused with costs. |
| Social Security Act 1991 (Cth) Administrative Appeals TribunalAct 1975 (Cth) |
| Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344 Lucic v Nolan (1982) 45 ALR 411 Secretary, Department of Social Security v Van Den Boogaart (1995) 37 ALD 619 |
| Applicant: | PETER WILLIAM KITSON |
| Respondent: | SECRETARY, DEPARTMENT OF FAMILY COMMUNITY SERVICES |
| File number: | BRG 104 of 2007 |
| Judgment of: | Baumann FM |
| Hearing date: | 29 May 2007 |
| Delivered at: | Brisbane |
| Delivered on: | 21 June 2007 |
REPRESENTATION
| the Applicant: | Appearing on his own behalf |
| Solicitors for the Respondent: | Ms Copley, Minter Ellison |
ORDERS
That the application for extension of time to file an appeal be dismissed.
That the applicant make a contribution to the costs of the respondent fixed in the sum of $2,000 within 60 days.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT BRISBANE |
BRG 104 of 2007
| PETER WILLIAM KITSON |
Applicant
And
| SECRETARY, DEPARTMENT OF FAMILY AND COMMUNITY SERVICES |
Respondent
REASONS FOR JUDGMENT
Introduction
On 18 January 2007, Peter Kitson (“the Applicant”) filed in the Federal Court of Australia, an application for an extension of time to file and serve a notice of appeal against a decision of the Administrative Appeals Tribunal (“AAT”) constituted by Senior Member McCabe published 25 May 2005 (“the decision”).
The decisions affirmed a decision effectively by Centrelink, to limit the payment of disability support pension to the Applicant while he was overseas, to 13 weeks, in accordance with amendments to the Social Security Act 1991 (Cth) that commenced on 1 July 2004.
The application for an extension of time was transferred to this Court by Collier J on 8 February 2007 and after a direction hearing before me on 13 March 2007, I listed the application for hearing on 29 May 2007.
Statutory framework
An appeal lies to this Court against a decision of the AAT “on a question of law” (s44(1) of the Administrative Appeals Tribunal Act 1975 (Cth). Any such appeal shall be instituted “not later than the twenty-eighth day after the day on which a document setting out the terms of the decision of the Tribunal is given to the person….” (s44(2A) of the AAT Act).
This court may give further time to institute an appeal and the principles which guide the exercise of my discretion to do so were summarised by Wilcox J in Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344 at 348-330. Those principles, enunciated in respect to an application for orders of review of an administrative decision, have been applied in respect of applications under s44 of the AAT Act and in this Court, and establish the following non-exhaustive criteria for consideration:-
a)The prescribed time limit is not to be “ignored” and “indeed, it is the prima facie rule that proceedings commenced outside that period will not be entertained” (see also Lucic v Nolan (1982) 45 ALR 411 at 416).
b)An explanation for the delay, including actions taken by the applicant other than filing the appeal.
c)Any prejudice to the respondent that would occur if leave was granted.
d)The mere absence of prejudice is not enough to justify the grant of an extension and “public considerations often intrude”.
e)The merits of the substantive application are relevant to the exercise of discretion.
f)“Consideration of fairness as between the applicants and other persons otherwise in a like position are relevant”.
The respondent does not assert that it will suffer any prejudice if the application is granted. I do not ignore principle 5(d) above, but regard an examination of principles 5(a), (b) and (c) above necessary to explain the reasons for my decision.
In this regard, apart from the reasons for the decision, I have considered the application filed 18 January 2007 and the applicant’s affidavits filed 18 January 2007 and 28 May 2007.
Time limits
On December 2005 the AAT furnished a document “setting out the terms of the decision”, but was not requested to provide written reasons until on or about 24 April 2006. Those reasons were provided and published on 25 May 2006.
I adopt the conclusion reached by Kiefel J in Secretary, Department of Social Security v Van Den Boogaart (1995) 37 ALD 619 at 620 that the 28 days fixed by s44(2A) for instituting an appeal is measured from the furnishing of the document containing the terms of the Tribunal’s decision and not the supply of written reasons.
On this basis, the present application for leave to appeal filed 18 January 2007 was more than 12 months out of time. I regard this as a significant delay.
Explanation for delay
I agree with the respondent’s submission that the applicant’s explanation for the delay “is vague in its detail”. At best the applicant asserts after receiving the “verbal decision” he made verbal enquiries and requested written reasons. It is unclear whether the applicant’s arranged trip to Thailand “with the intention of staying there for three (3) months” took place before he received the written reasons or after. In any event, the written reasons (which the applicant claims were very different to the oral decision – “including the statement he did not believe me”), were published in a timely manner and a further totally unexplained delay of nearly 8 months accrued before the applicant filed his application for leave to appeal. I regard this delay as almost determinative against the success of the application
Merits of substantive application
As previously observed, the only available basis of an appeal lies on a question of law. A merits review by this Court is not permissible.
Where a litigant is unrepresented, a Court should not be too critical if a claim is not articulated within legal precision. However, it is still necessary to be able to discern the basis on which the applicant contends that an error of law has occurred. Although the facts are jumbled, the grounds of appeal say:-
“I wish to specify the decision to limit payment of my disability pension to be paid overseas to 13 weeks at a time whilst overseas. I wish to appeal against being denied notice of the Savings Provision Act clause 135 to schedule 1A and coheresed (sic) by Centrelink. Denied my rights. I should be allowed unlimited time whilst overseas for my pension to be paid”.
The learned member’s reasons are succinct but, consistent with the applicant’s statements, when the applicant went overseas in November 2003 he had been told by Centrelink before his departure that he was not regarded as being severely disabled although he understood that decision would be reviewed. He was told he was eligible to stay away for a maximum of 52 weeks. After the review, the applicant was told his pension would be cut off after the 52 week period elapsed because he was not considered to be severely disabled.
Whilst the applicant was overseas, an amendment to the relevant provisions of the Social Security Act 1991 came into force on 1 July 2004, as a result of the Family and Community Services and Veterans’ Affairs Legislation Amendment (2003 Budget and Other Measures Act 2003 (Cth).
Relevantly, s.1217 of the Social Security Act provides such that all persons who were entitled to a disability support pension were only permitted to remain overseas for 13 weeks, unless clause 135 of the Schedule 1A applied. Furthermore as a consequence of sub-clause 128(2) being inserted, a person who was otherwise entitled to a benefit, upon returning to Australia, would be subject to the amended section 1217 and the duration they were permitted to remain overseas whilst receiving the disability pension was then limited to 13 weeks.
The learned member found that the applicant suffers from a number of health problems and prefers to spend time in Thailand where he says “the climate and the pace of life are more conducive to good health”. The applicant asserts that he was coerced into returning to Australia and was not made aware of the provisions of clause 135 of Schedule 1A, and if he had been aware of the new provision (and I infer the effect of returning to Australia), he would not have returned to Australia and could continue with the maximum portability period being unlimited.
The applicant did return to Australia and for the reasons given by the AAT he was unable to satisfy clause 135 (1)(c) because he had not ceased to be an Australian resident. Such factual finding of residence was made by the AAT. The appeal is without merit.
Conclusion
For the reasons I set out above, the application for extension of time to file an appeal should be dismissed. The applicant had been put on notice as to costs. It is an appropriate case where costs should follow the event.
I will order the applicant to make a contribution to the costs of the Respondent fixed in the sum of $2,000 within 60 days.
I make the orders which appear at the commencement of these reasons.
I certify that the preceding twenty-one (21) paragraphs are a true copy of the reasons for judgment of Baumann FM
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