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

[2017] AATA 2408

Lloyd and Secretary, Department of Social Services (Social services second review) [2017] AATA 2408 (12 June 2017)

Division:GENERAL DIVISION

File Number(s):  2017/2168

Re:Trudi Lloyd

APPLICANT

AndSecretary, Department of Social Services

RESPONDENT

AndAndrew Lloyd

OTHER PARTY

DECISION

Tribunal:Deputy President Dr P McDermott RFD

Date:12 June 2017

Date of written reasons:        29 November 2017

Place:Brisbane

Having regard to the requirements of s 29(7) of the Administrative Appeals Tribunal Act 1975 (Cth), the Tribunal revokes its direction dated 5 May 2017 and instead determines that the application by the applicant for an extension of time should not be granted.

.......................[sgd].................................................

Deputy President Dr P McDermott RFD

CATCHWORDS

EXTENSION OF TIME – where extension of time initially granted without seeking the view of the other party – where the application was eight days out of time – where the other party opposed the application for an extension of time – length of delay – excuses for delay – prejudice incurred and suffered – Hunter Valley Developments principles – where applicant has no reasonable excuse for delay – initial extension of time revoked – extension of time refused

LEGISLATION

Administrative Appeals Tribunal Act 1975

(Cth), s 29

Administrative Decision (Judicial Review) Act 1977

(Cth)

CASES

Comcare v Ahearn (1993) 119 ALR 85
Hunter Valley Developments v Minister for Home Affairs and Environment

(1984) 3 FCR 344

Kuljic v Secretary, Department of Social Security (1994) 33 ALD 121

REASONS FOR DECISION

Deputy President Dr P McDermott RFD

29 November 2017

INTRODUCTION

1. The applicant has sought an extension of time to lodge an application for the review of a decision made on 22 February 2017 by the Social Services and Child Support Division (SSCSD) of this Tribunal to affirm a decision relating to the apportionment of a child’s care for the purposes of the Family Tax Benefit. The decision under review by the SSCSD was the decision of the Family Assistance Office to vary the recorded care of the applicant’s child. The applicant had been recorded as having 100% care of the child from 1 July 2013. On 1 August 2016, the care of the child was reviewed and instead recorded as being 50% to the applicant and 50% of the other party from 1 July 2013 and 0% care to the applicant from 16 January 2016. This latter decision was affirmed by the SSCSD and is the finding of which the applicant presently seeks review.

2. The decision of the Social Services and Child Support Division was sent to the parties on 7 March 2017. The applicant lodged her application for review with the Tribunal on 12 April 2017, making it some 8 days out of time.

3. In her application for an extension of time, dated 19 April 2017, the applicant claimed she had never received the decision under review because she had been helping with the clean-up after Cyclone Debbie. The Tribunal sought the views of the respondent regarding the extension of time on the same day. Due to an administrative error, notice was not sent to the other party. The respondent replied to the Tribunal’s notice on 4 May 2017. Before it realised an error had been made, the Tribunal issued a direction on 5 May 2017, granting the extension of time.

4. On 2 June 2017, the respondent wrote to the Tribunal, noting that the other party had not been consulted about the applicant’s extension of time application. Three days later, on     5 June 2017, the Tribunal wrote to the other party, seeking his views on whether an extension of time should be granted. The other party opposed the grant of an extension of time to the applicant, and so an interlocutory hearing was listed for 12 June 2017. At that hearing, the Tribunal decided that its direction of 5 May 2017 should be revoked, and a new direction, refusing the extension of time application, should be granted. The Tribunal’s written reasons for this direction follow.

   CONSIDERATION

5. At the telephone hearing of the application for an extension of time, the applicant represented herself. The other party represented himself and stated that he opposed the application for an extension of time. The other party strongly opposed the application for an extension of time to lodge the application for review. The other party stated that he would be prejudiced if an extension of time was granted. He said he would have to take time off work for the hearing as well as preparing for the case. Ms Vetter appeared on behalf of the respondent.

6. The jurisdiction of this Tribunal to grant an extension of time is conferred by s 29(7) of the Administrative Appeals Tribunal Act 1975 (Cth) which provides:

   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.

7. The applicant has complied with this subsection by making an application in writing for an extension of time.

8. The Federal Court of Australia in Hunter Valley Developments v Minister for Home Affairs and Environment (1984) 3 FCR 344 has provided guidance on the relevant principles which govern an application to extend time under the Administrative Decision (Judicial Review) Act 1977 (Cth). Wilcox J remarked at [18]:

   Although the section does not, in terms, place any onus of proof upon an applicant for extension an application has to be made. Special circumstances need not be shown but the Court will not grant the application unless positively satisfied that it is proper so to do. The "prescribed period" of 28 days is not to be ignored... Indeed it is the prima facie rule that proceedings commenced outside that period will not be entertained... It is a pre-condition to the exercise of discretion in his favour that the applicant for extension show an "acceptable explanation of the delay" and that it is "fair and equitable in the circumstances" to extend time...

9. There have certainly been cases where this Tribunal in considering applications under s 29(7) of the Administrative Appeals Tribunal Act 1975 (Cth) has applied the principles laid down by Wilcox J. However, the Full Court of the Federal Court of Australia in Comcare v Ahearn (1993) 119 ALR 85, 88 emphasised that an acceptable explanation was not an essential precondition to the exercise of discretion under s 29(7) but certainly any explanation would be considered by this Tribunal in determining whether or not to exercise the discretion.

10. I now turn to considering the reason that was provided by the applicant in her application for an extension of time. In her application for an extension of time, the applicant stated that she had (1) not received the decision under review, and (2) been pre-occupied with helping out with Cyclone Debbie.

11. The former of these statements is a mere assertion that is inconsistent with other materials on the file provided by the applicant, and indeed is contradicted by the applicant’s own statements during the hearing, when she said she was unable to state the actual date when she had received the decision. In her application for review form, she noted that she had received the decision under review on 8 March 2017 and provided to the Tribunal a copy of the decision under review, with a covering letter dated 7 March 2017 that clearly notified her of the 28-day time limit for applying to the Tribunal for review of the decision. I prefer this information and therefore find that the applicant was not prevented from lodging her application for review by not receiving the decision under review. Put simply, this assertion is not accepted by the Tribunal.

12. With respect to the second statement, as I have found the applicant was in receipt of the decision on 8 March 2017, she still had a period of at least two weeks before Cyclone Debbie had begun to form, and around three weeks until it began to dissipate.  Simply, the applicant would have had the decision for some time before when Cyclone Debbie reached South East Queensland after 28 March 2017. I note that the applicant did not maintain that Cyclone Debbie prevented her from making her application within the time prescribed by Parliament. Further, the fact that the applicant made a decision to undertake volunteering after Cyclone Debbie, while admirable, does not in itself provide an explanation, much less an acceptable explanation, for why her application was not lodged within the 28 day period prescribed by Parliament. I further note that the applicant provided neither any detailed explanation of her activities in volunteering after Cyclone Debbie, nor any other evidence to support the contention that she had been volunteering.

13. I am not satisfied that there is any legitimate or acceptable explanation for why the applicant lodged her application for review out of time.

14. There would certainly be prejudice to the other party if the application for an extension of time was granted. The other party stated that he would have to take time off work if an extension of time was granted. The decision of the SSCSD records that the other party is a cattle agent who works “on the road”. I accept that he would certainly be prejudiced if the Tribunal were to extend time to allow the applicant to lodge an application. The applicant did not challenge the contention of the other party in this regard.

15. A decision by this Tribunal to extend the time for the making of an application for review should also consider the prospects of success of the review application. In Kuljic v Secretary, Department of Social Security (1994) 33 ALD 121 Von Doussa J explained (at 122):

    One of the principal considerations to be addressed in deciding whether it is fair and equitable in all the circumstances to extend time is whether the merits of the proposed appeal are such that if an extension of time is granted there is some prospect of success in the appeal. 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.

16. Before this Tribunal will grant an extension of time it needs to be “satisfied that it is reasonable in all the circumstances to do so”. That is a requirement which is imposed upon this Tribunal by s 29(7) of the Administrative Appeals Tribunal Act 1975 (Cth).

17. The applicant does not contest that she had 0% care from 16 January 2016. She maintains, however, that from 1 July 2013 until 15 January 2016, she had 100% care of the child. The applicant did not advance any cogent reason why the decision of the SSCSD to accord equal care to each parent should be set aside. The unchallenged evidence before that Division was that the other party has incurred a very large debt as he has been solely responsible for the private school fees of the child (as well as of other children). In these circumstances it is understandable that the Division accepted that the other party had continually provided care and support. Without any cogent evidence that the decision was not reasonable, the Tribunal does not consider that there is any prospect of a successful review of the respondent’s decision. The facts of this case are somewhat unusual in that the family property was two adjacent properties with two separate houses and there was no fence separating the properties.

    DECISION

18. Having regard to the requirements of s 29(7) of the Administrative Appeals Tribunal Act 1975 (Cth) the Tribunal revokes its direction dated 5 May 2017 and instead determines that the application by the applicant for an extension of time should not be granted because it is not satisfied that it is reasonable in all the circumstances to do so.

I certify that the preceding 18 (eighteen) paragraphs are a true copy of the reasons for the decision herein of Deputy President Dr P McDermott RFD

.....................[sgd]...................................................

Associate

Dated: 29 November 2017

Date(s) of hearing:	12 June 2017
Applicant:	By telephone
Advocate for the Respondent:	Ms Jackie Vetter
Solicitors for the Respondent:	Department of Human Services
Other Party:	By telephone