Lomsargis and Secretary, Department of Employment Workplace Relations

[2006] AATA 160

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2006] AATA 160

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No Q2005/809

GENERAL ADMINISTRATIVE DIVISION		)
Re		MR VYTAUTAS LOMSARGIS

Applicant

And SECRETARY, DEPARTMENT OF EMPLOYMENT WORKPLACE RELATIONS

Respondent

DECISION

Tribunal Senior Member B J McCabe

Date24 February 2006

PlaceBrisbane

Decision The Tribunal extends the time for filing the application for review until 14 December 2005 pursuant to s 29(7) of the Administrative Appeals Tribunal Act 1975.

..........[Sgd]........
  BJ McCabe     
  SENIOR MEMBER

CATCHWORDS

PRACTICE AND PROCEDURE – compensation – application for extension of time – applicant under severe stress during appeal period – no reasonable excuse exists – no prejudice to the Commonwealth – application granted

Administrative Appeals Tribunal Act 1975, s 29(7)

Social Security Act 1991, s 1184K

Comcare v A’Hearn (1993) 45 FCR 441

Henderson and Secretary, Department of Family and Community Services [2004] AATA 541

Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344

Minister for Health and Aged Care v Pharmacia and Upjohn Pty Ltd (2001) 65 ALD 76

Thomas and Secretary, Department of Family and Community Services [2003] AATA 843

REASONS FOR DECISION

24 February 2006 Senior Member B J McCabe         

introduction

1. Mr Lomsargis was injured in a motor vehicle accident on 7 March 2001. He sought and received Disability Support Pension (DSP) from 6 June 2003. The applicant received a lump sum settlement as compensation for his injuries on 19 September 2003. Centrelink was informed of the settlement on 26 September 2003 and calculated the preclusion period to be imposed under s 1170 of the Social Security Act 1991. The preclusion period expires on 21 February 2006. Mr Lomsargis’s DSP was cancelled and he was required to repay $2,661.28 in payments that he had already received during the preclusion period.

2. The applicant asked the Secretary on 18 May 2004 to exercise the discretion in s 1184K to shorten the preclusion period so he would become eligible to receive DSP. The respondent refused, and the decision was affirmed on appeal to the Social Security Appeals Tribunal (SSAT) on 8 August 2005. On 14 December 2005, Mr Lomsargis asked this Tribunal to consider the matter.

3. The application for review was lodged some 18 weeks out of time. The applicant acknowledges he was advised of his appeal rights. It is therefore necessary to consider whether the Tribunal should exercise its discretion under s 29(7) of the Administrative Appeals Tribunal Act 1975 to allow an extension of time so he can challenge the decision to refuse to shorten the preclusion period.

4. Section 29(7) of the Administrative Appeals Tribunal Act 1975 says the Tribunal may grant an extension of time in appropriate circumstances. The leading authority of Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344 suggests the Tribunal should have regard to a number of factors when determining whether to exercise the discretion. These include:

·Whether or not the applicant has a proper excuse for the delay; and

·The prejudice to the respondent if the extension of time is granted; and

·The merits of the case.

5.      Mr Lomsargis offers a number of explanations for the delay. The applicant says he was suffering a great deal of stress at the time from caring for his 21 year old bi-polar daughter. He says both he and his wife were also suffering serious health concerns. He says he felt overwhelmed.

6.      It was difficult to reach a concluded view about the genuineness of the applicant’s claims. The Tribunal was only provided with the applicant’s evidence. There was no medical documentation offered in support of the application. The applicant argued the stressors referred to above inhibited him from acting on his appeal rights and prevented him from taking decisive steps to proceed with an appeal during the 18 weeks that followed the SSAT’s decision. In these circumstances I am not prepared to find there was a good excuse for the delay. I note the Full Federal Court observed in Comcare v A’Hearn (1993) 45 FCR 441 that the absence of a good excuse is not necessarily fatal to the application.

7.      Mr Howard (the Centrelink advocate) contends the Commonwealth will suffer prejudice if the application is granted. He says the applicant’s financial position in particular has worsened since the date of the SSAT decision. I am not convinced the Commonwealth is prejudiced by this development during the relatively short period since the decision of the SSAT was handed down. There is no suggestion that documents have been lost, for example.

8. The respondent also questions the merits of the application. Mr Howard says the last application for DSP was made in July 2003. He says the applicant could only succeed if he were able to convince the Tribunal that special circumstances existed within the meaning of s 1184K that would justify shortening the preclusion period so it ended on or before the date Mr Lomsargis began receiving DSP – ie, sometime in July 2003. Mr Howard says that is unlikely in circumstances where the applicant’s problems are attributable to profligate spending. The SSAT appears to have seen the case in this light.

9.      Mr Lomsargis spoke of a number of matters that might amount to special circumstances within the meaning of s 1184K. He mentioned in particular his wife’s delicate mental state and the psychiatric problems of his daughter. He also spoke of his own distress. It is difficult to make a judgement about those matters without proper evidence. I also note that an applicant who “spent it all” is not necessarily precluded from seeking a shorter preclusion period (see, for example, Thomas and Secretary, Department of Family and Community Services [2003] AATA 843; Henderson and Secretary, Department of Family and Community Services [2004] AATA 541) although I acknowledge the Tribunal is less likely to assist an applicant who has not acted responsibly.

10.     The Tribunal is not required to conduct a “mini-trial” in which it exhaustively evaluates all of the evidence on an application to extend time: Minister for Health and Aged Care v Pharmacia and Upjohn Pty Ltd (2001) 65 ALD 76. The perils associated with conducting a peremptory review of the case are particularly serious where an applicant is unrepresented and the evidence is incomplete.

11.     Mr Lomsargis has identified matters that might form the basis of a claim for special circumstances – most obviously the mental health of various members of his family. If the applicant were allowed to proceed to a hearing, he may be able to produce evidence that would support his claim. I am not satisfied his case is so weak that he should be denied the opportunity to do so.

conclusion

12.     I am satisfied the applicant should be given an extension of time until 14 December 2005 to file his application for review.

I certify that the 12 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member B J McCabe

Signed:   Associate  Adam Ryan

Date of Hearing  18 January 2006
Date of Decision  24 February 2006         
The applicant represented himself.
The respondent was represented by Mr Howard.