Liddell and Secretary, Department of Family and Community Services

[2005] AATA 744

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2005] AATA 744

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No  Q2004/953

GENERAL ADMINISTRATIVE  DIVISION		)
Re		KENNETH LIDDELL

Applicant

And SECRETARY, DEPARTMENT OF FAMILY AND COMMUNITY SERVICES

Respondent

DECISION

Tribunal Senior Member B J McCabe

Date5 August 2005

PlaceBrisbane

Decision The application for an extension of time is refused.

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

SENIOR MEMBER

CATCHWORDS

PRACTICE AND PROCEDURE – Applications for review – application for an extension of time to review decision – applicant lodged a previous appeal in the Tribunal in relation to the same decision under review – previous application withdrawn – factors to be considered – reasonable excuse – merits of case – prejudice – application refused

Re Manoli and Secretary, Department of Social Security (1994) 35 ALD 133

Hunter Valley Developments Pty Ltd v Cohen (1984) 7 ALD 315

Comcare v A’Hearn (1993) 45 FCR 441

Outboard Marine Australia Pty Ltd v Byrnes [1974] 1 NSWLR 27

Stevenson and Commonwealth of Australia (1987) 13 ALD 524

Eastman and Department of the Treasury (unreported, No 1731, 17 August 1984)

Lower v Comcare [2002] FCA 1394

Administrative Appeals Tribunal Act 1975 (Cth) s42A

REASONS FOR DECISION

5 August 2005  Senior Member B J McCabe

1. Kenneth Liddell is the applicant in these proceedings. He has asked the Tribunal to review a decision of the Social Security Appeals Tribunal made on 20 April 1995. The application was filed out of time and the applicant has asked the Tribunal to exercise its discretion under s 29(7) of the Administrative Appeals Tribunal Act 1975 (the Act) to extend the time for making an application.

2.      Quite apart from the question of delay, the case is unusual because the applicant has been to the Tribunal before.  Mr Liddell lodged an application with the Tribunal to review the same decision in May of 1995 (Q1995/34). On 30 November 1995, after a two day hearing before the Tribunal, the application was withdrawn. A letter from the Deputy Registrar of the Tribunal to the respondent dated 1 December 1995 confirmed the applicant had lodged a withdrawal notification and added:

Pursuant to s 42A(1B) of the Administrative Appeals Tribunal Act 1975, the effect of lodgement of this notification is that the Tribunal is taken to have dismissed the application without proceeding to review the decision.

3.      A telephone hearing in relation to this application was held on 1 February 2005. The applicant and respondent treated the matter as if it were an application for extension of time rather than an application for reinstatement. I asked the respondent to make written submissions on the question of whether or not the Tribunal was able to grant an extension of time if the applicant was really seeking reinstatement.

extension of time

4. Section 29(7) says the Tribunal may grant an extension of time where applications have been filed outside the time allowed by the statute. The exercise of the discretion is guided by principles laid down in the Federal Court decision of Hunter Valley Developments Pty Ltd v Cohen (1984) 7 ALD 315. There are at least three factors I must take into consideration:

·     Is there a satisfactory explanation or excuse for the delay in bringing the matter before the Tribunal?

·     Would the Commonwealth be prejudiced by the delay since the original decision.

·     The merits of the substantive application, although I am not required to conduct a mini-trial

5.       The list is not an exhaustive one. I must ultimately decide whether it is just and appropriate in all the circumstances to make the orders sought.

6.      Mr Liddell claims he withdrew his application in 1997 due to his poor health. The applicant provided to the Tribunal an extensive medical history with supporting documentation from various hospitals and medical centres within south-east Queensland. I am satisfied the applicant was indeed ill at the time he withdrew his previous application. Whatever his state at the time of the decision to withdraw, it is unclear why the applicant waited for nine years before deciding to return to the Tribunal. The applicant’s excuse is not particularly satisfactory, although this is not fatal to his application: see Comcare v A’Hearn(1993) 45 FCR 441.

7.      The respondent claims prejudice exists. Centrelink has destroyed documents gathered in relation to the previous AAT hearings. The department has or can gain access to many (but not all) of the original documents. That is unsurprising: Centrelink and its predecessor were entitled to proceed as though the application was finalised and destroy documents after such a lengthy delay. I also note the Tribunal’s file (Q1995/342) has been destroyed. I am satisfied there would be prejudice to the Commonwealth’s case if the matter were to proceed to hearing. It would be unreasonable to require the department to defend their decision after such a long time.

8.      The Hunter Valley Developments case also suggests I must consider the merits of the substantive application. The respondent has conceded the applicant’s case is not devoid of merit. It is a complex case involving the applicant’s financial affairs and entitlement to unemployment benefits. The respondent claims that if the case proceeds, a thorough examination of the applicant’s state of affairs at the time of the original decision would be required. The passage of time makes that a very complicated task.

9.      I am hesitant to refuse an application where there may well be matters in issue between the parties. I acknowledge courts and tribunals prefer to take a benign view of late applications where there are genuine matters in dispute and it would not be unfair to all concerned: see, for example, Outboard Marine Australia Pty Ltd v Byrnes[1974] 1 NSWLR 27 at 30 per Reynolds, Hutley and Bowen. But I am not satisfied the discretion ought to be exercised in this case. The length of the delay suggests the applicant has rested on his rights. He had the opportunity to dispose of the matter in 1995, and he withdrew the proceedings. He could have sought review long before now if he changed his mind. In the meantime, the respondent has destroyed its file. That makes it more difficult for the respondent to assist the Tribunal to reach the correct or preferable decision.

reinstatement?

10.     Although I have decided that an extension of time should not be granted, I thought it appropriate to consider whether the applicant would fare any better upon an application for reinstatement.

11.     The respondent referred me to the Tribunal’s decision in Stevenson and Commonwealth of Australia (1987) 13 ALD 524. Deputy President Thompson explained that a person who withdraws an application for review may lodge a fresh application in relation to the same decision at a later point, subject to an extension of time being granted (if required) under s 29(7). The learned Deputy President appeared to adopt a more generous view than the Tribunal had done in its earlier decision in Eastman and Department of the Treasury (unreported, No 1731, 17 August 1984). In Eastman, the Tribunal distinguished between the withdrawal of an application and a dismissal under s 42A. While the Tribunal was prepared to allow an applicant who had withdrawn an application to “come again”, it appeared unsympathetic to applications for reinstatement where an earlier application in relation to the same decision had already been dismissed pursuant to s 42A(1).

12. Sections 42A(1A) and (1B) were inserted into the Act in 1993 – after the decisions in Stevenson and Eastman, but before withdrawal of the earlier proceedings in this case. Those subsections provide:

(1A) A person who has made an application to the Tribunal for a review of a decision may, in writing lodged with the Tribunal, at any time notify the Tribunal to the effect that the application is discontinued or withdrawn.

(1B) If notification is so given, the Tribunal is taken to have dismissed the application without proceeding to review the decision.

13.     The correct approach to these provisions was discussed in Lower v Comcare [2002] FCA 1394. The applicant in that case had instructed his solicitors to withdraw an application before the Tribunal in 1992. The Tribunal dismissed the proceedings with the consent of the parties pursuant to s 42A(1). The applicant later sought to have the proceedings reinstated pursuant to s 42A(10) on the basis his solicitors should not have consented to a dismissal of the proceedings when his instructions were merely to withdraw. Tamberlin J acknowledged (at paragraph 17) there was a right to seek reinstatement of proceedings that had been unilaterally withdrawn in1992. But his Honour appeared to accept the situation was different where the application was dismissed under s 42A. His Honour said (at paragraph 20) that the effect of the 1993 amendments was to treat even unilateral withdrawals as dismissals. His Honour explained (at paragraph 8):

…upon notification of withdrawal, the proceeding is to be treated as if it were a dismissal of the proceedings with the ensuing consequences which are set out in subs (6), subs (8), subs (9) and subs (10). That is to say s 42A proceeds on the basis that thereafter what is not in fact a dismissal shall be deemed to be a dismissal.

14. Section 42A(6) says the dismissal of the earlier application concludes the matter “unless it is reinstated pursuant to sub-section (9) or (10).” There is no suggestion of error in this case, so subsection (10) is not available. Subsection (9) is only available where the dismissal occurs pursuant to subsection (2). It follows there is no power to reinstate the case.

conclusion

15. I am uncomfortable with an approach that suggests an applicant whose application has been dismissed following a withdrawal pursuant to s 42A(1B) is able to circumvent the restrictions on reinstatement by simply seeking an extension of time. I acknowledge that approach has been followed in a number of cases in the past, but many of those authorities were decided before the amendments to the Act introducing ss 42A(1A) and (1B). I also acknowledge, subsection (1B) refers to dismissal of an application “without proceeding to review the decision”. The drafting of the subsection might permit the Tribunal to conclude the proceedings have been terminated, but the applicant’s right to seek review might still be available in fresh proceedings.

16.     As it happens, I do not need to express a concluded view on the point as the applicant does not succeed in any event. The question can be left for another day.

17.     The application for an extension of time is refused, and the application cannot be reinstated.

I certify that the 17 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member B J McCabe.

Signed:         .....................................................................................
  Associate:     Sam J Appleton

Date of Hearing  1 February 2005
Date of Decision  5 August 2005

The applicant appeared in person.

The respondent was represented by Ms Dwyer.