Laughlin and Secretary, Attorney-General's Department

[2020] AATA 4940

Laughlin and Secretary, Attorney-General's Department [2020] AATA 4940 (4 December 2020)

Division:GENERAL DIVISION

File Number(s):      2020/6465

Re:James Francis Laughlin

APPLICANT

AndSecretary, Attorney-General's Department

RESPONDENT

DECISION

Tribunal:Member R West

Date:4 December 2020

Place:Melbourne

The Tribunal refuses the application for an extension of time under s. 29(7) of the Administrative Appeals Act 1975 (Cth).

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Member West

Catchwords

FAIR ENTITLEMENTS GUARANTEE – FEG assistance refused – appeal lodged out of time – application for extension of time under s.29(7) of the AAT Act – no reasonable prospect of success – application refused.

Legislation

Administrative Appeals Tribunal Act 1975 (Cth)
Fair Entitlements Guarantee Act 2012 (Cth)
Freedom of Information Act 1982 (Cth)

Cases

Budd and Secretary, Department of Education, Employment and Workplace Relations [2008] FCA 1540

Hunter Valley Developments Pty Ltd and Others and Cohen [1984] FCA 176

REASONS FOR DECISION

Member R West

4 December 2020

1. The decision that the Applicant seeks to review is the decision of the authorised review officer of the Respondent dated 29 October 2019 (Decision), to determine that the Applicant was not eligible for the Fair Entitlements Guarantee assistance (FEG assistance) under the Fair Entitlements Guarantee Act 2012 (Cth) (FEG Act). A written statement of the reasons for the Decision was received by the Applicant on 14 November 2019.

2. The Applicant lodged an application for the review of the Decision by the Tribunal on 19 October 2020.

3. Subsection 29(2) of the Administrative Appeals Tribunal Act 1975 (Cth) (AAT Act) provides that the prescribed time for lodging an application with the AAT is within 28 days after notice of a decision is given to an Applicant.

4. The application for review of the Decision was required to be lodged with the Tribunal by 12 December 2019 and so the application is approximately ten months out of time.

5. Subsection 29(7) of the AAT Act allows the Tribunal to extend the time for making an application for review if an application for an extension of time is made in writing by the Applicant.  In this case, the Applicant lodged a written application for an extension of time on 20 October 2020. 

6. Under s.29(7), the Tribunal may grant an extension of time if it is satisfied that it is reasonable in all the circumstances to do so.

7. If the extension of time is opposed by the Respondent, s.29(10) of the AAT Act requires the Tribunal to give the parties a reasonable opportunity of presenting their respective cases.  In this case, the Respondent objected to the extension of time and the parties were afforded the opportunity to file documents and present their respective cases at a directions hearing conducted by telephone on 2 December 2020.  The Applicant was represented by his friend Mr Charlie O’Neill and the Respondent was represented by Mr Zheng He, a solicitor with Clayton Utz.

   APPLICANT’S SUBMISSION

8. The Applicant raised the following arguments in support of an extension of time:

   a. The Applicant had delayed lodging the application for review pending the outcome of three Freedom of Information Act (FOI Act) requests to the Respondent seeking records of his communication with the Respondent regarding his application for the FEG assistance.

   b. The Applicant did not have enough money to pay the application fee required by the Tribunal.

   RESPONDENT’S SUBMISSION

9. The Respondent raised the following arguments in opposing the extension of time:

   a. The Applicant’s substantive application for review of the Decision had no reasonable prospect of success; and

   b. The Applicant has not advanced any acceptable explanation for the delay in making his application.

   RELEVANT CONSIDERATIONS

10. The Federal Court has confirmed the prima facie rule that proceedings commenced outside the 28-day period should not be entertained.  In relation to the discretion to extend time under s.29(7), the Court said:

    It is a pre-condition to the exercise of the discretion in his favour that the application of an extension of time show an ‘acceptable explanation of the delay’ and that it is ‘fair and equitable in the circumstances’ to extend time.[1]

    [1] Hunter Valley Developments Pty Ltd Hunter and Others and Cohen [1984] FCA 176 at [18]

11. The relevant considerations for the exercise of the discretion may be summarised[2]  as follows:

    a. there is no onus of proof upon an applicant for an extension of time but special circumstances need not be shown, and the Tribunal should not grant the application unless positively satisfied it is proper to do so;

    b. it is not a pre-condition for success in an application for extension of time that an acceptable explanation for delay be given but such an explanation will normally be given and is a relevant matter to be considered;

    c. action taken by the applicant other than making an application to the Tribunal is relevant in assessing the adequacy of the explanation for the delay;

    d. it is relevant to consider whether the applicant has rested on their rights;

    e. any prejudice to the respondent, including any prejudice in defending the proceeding occasioned by the delay, is a relevant consideration, but the absence of prejudice is not enough to justify the grant of an extension;

    f. it is appropriate to take the merits of the substantial application into account; and

    g. considerations of fairness as between the applicant and other persons in a similar position may be relevant.

    [2] See Budd and Secretary, Department of Education, Employment and Workplace Relations [2008] FCA 1540

    ASSESSMENT

12. The principal issue in considering this application is the likelihood that the Applicant could succeed if the appeal were to proceed.

13. The basis of the review officer’s finding that the Applicant was not eligible for the FEG assistance was his failure to make a valid application within the time specified in the FEG Act.  Section 10(1)(h) of the FEG Act provides that a claimant must lodge an effective claim in order to be eligible for assistance.  Under s.14(2) of the FEG Act, an applicant must lodge a claim on an approved claim form with the supporting documents required by the Respondent, before the end of 12 months after the later of either an insolvency event or the end of the applicant’s employment.  An insolvency event is defined in s.5 of the FEG Act to include the appointment of a liquidator. 

14. In the Applicant’s case, a liquidator was appointed to his former employer and the Applicant’s employment was terminated on 18 May 2016.  Accordingly, for the Applicant to have been eligible for FEG assistance, he was required to make a valid application to the Respondent by 18 May 2017.

15. The Respondent asserted that it did not receive an FEG claim form from the Applicant until 1 September 2019, and even then, it did not include all relevant information required by the Respondent, in particular proof of the Applicant’s citizenship or permanent resident status.  The Respondent requested the Applicant to provide this evidence and he subsequently provided a copy of his birth certificate. The Applicant contested the date upon which the claim form was lodged but conceded that the Applicant provided a claim form to the Respondent in about July 2017 and certainly after May 2017.  The Applicant did not dispute that the Applicant failed to provide his birth certificate with his application and the birth certificate subsequently provided to the Respondent was issued by the Registry of Births, Deaths and Marriages on 24 September 2019.

16. The Applicant asserted that he had contacted the Respondent on at least two occasions before lodging his claim for the FEG assistance to seek help in completing the form.  He stated that he had made three FOI requests to obtain documents to substantiate this claim.  The Applicant said that his first two FOI requests on 10 December 2019 and 6 February 2020 were not responded to by the Respondent.  The Respondent denied receiving either of these requests.  The Applicant produced the Respondent’s response to his alleged third request dated 11 September 2019.  The Applicant confirmed that in that response dated 12 October 2020, the Respondent did not produce any record of communication between the Applicant and officers of the Respondent prior to 2019.

17. On the basis of this evidence, it is clear to the Tribunal that the Applicant has no legitimate basis for seeking a review of the Decision.  Even accepting the Applicant’s version of events, the Applicant did not become eligible for the FEG assistance because he failed to make a valid application within the time specified in s.14(2) of the FEG Act.  The FEG Act does not confer a discretion on the Respondent (and therefore on the Tribunal on review) to extend the period for making a claim under the FEG Act.

18. A hearing in these circumstances would be an unnecessary use of the Tribunal’s resources and it would be unfair to the Respondent to have to participate in a hearing.

19. Further, the Tribunal is not satisfied that the Applicant had an acceptable explanation for the delay in filing his application for review.  The Applicant’s stated purpose for pursuing an FOI request did not address the essential basis for the refusal of his claim for the FEG assistance.  Even if the Applicant could have obtained the documentary evidence he sought, all it would have shown is that the Applicant had contacted officers of the Respondent regarding queries he had with the application forms.  He did not claim that it would show anything relevant to the fact that he did not lodge a valid claim within the

    
    

    12-month period required by the FEG Act.

20. The Applicant’s assertion regarding his inability to pay the Tribunal’s fees was not supported by evidence and did not address the options available for applicants to seek a waiver of the fees in cases of financial hardship.

21. Having regard to these matters, the Tribunal is not satisfied that it would be reasonable in all the circumstances to extend the time for the Applicant to lodge his application.

    DECISION

22. The application for an extension of time under s. 29(7) of the AAT Act is refused.

    
    
    

I certify that the preceding twenty-two (22) paragraphs are a true copy of the reasons for the decision herein of Member R West.

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Associate

Dated: 4 December 2020

Date of hearing:	2 December 2020
Applicant:	By phone
Advocate for the Respondent:	Mr Z. He, Clayton Utz