LOVEDAY and SECRETARY, DEPARTMENT OF FAMILIES, HOUSING, COMMUNITY SERVICES AND INDIGENOUS AFFAIRS

[2010] AATA 653

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2010] AATA 653

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          Nos 2010/0088 & 2010/2600

GENERAL ADMINISTRATIVE DIVISION		)
Re		BRIAN DAVID LOVEDAY

Applicant

And SECRETARY, DEPARTMENT OF FAMILIES, HOUSING, COMMUNITY SERVICES AND INDIGENOUS AFFAIRS

Respondent

And VERITY LOVEDAY

Other Party

DECISION

Tribunal Senior Member K Bean

Date31 August 2010

PlaceAdelaide

Decision

1. In application 2010/0088, the Tribunal decides not to reinstate the application pursuant to s 42A(10) of the Administrative Appeals Tribunal Act 1975.

2. In application 2010/2600, pursuant to s 29(7) of the Administrative Appeals Tribunal Act 1975, the Tribunal grants an extension of time to the applicant for the making of an application for review of the decision of the Social Security Appeals Tribunal dated 3 December 2009, to 28 June 2010.

  ………………………………………
  K BEAN
  (Senior Member)

CATCHWORDS

PRACTICE AND PROCEDURE – Application for reinstatement – application for extension of time – original application not dismissed in error – application cannot be reinstated – application for extension of time lodged within relatively short time after original application dismissed – acceptable explanation for delay – no prejudice – no unfairness – nothing to suggest substantive application without merit – extension of time granted.

Administrative Appeals Tribunal Act 1975 ss 29, 42A(1B), 42A(10), 44(2A)

Goldie v Minister for Immigration and Multicultural and Indigenous Affairs (2002) 72 ALD 652
Re Pavlovic and Telstra Corp Ltd (1994) 34 ALD 800
Re Mackenzie and Secretary, Department of Social Security (1998) 54 ALD 281
Hunter Valley Developments Pty Ltd v Minister for Home Affairs and Environment (1984) 3 FCR 344
Budd v Secretary, Department of Education, Employment and Workplace Relations [2008] FCA 1540

Brown v Federal Commissioner of Taxation (1999) 42 ATR 118

REASONS FOR DECISION

31 August 2010   Senior Member K Bean    

1.      The applicant, Mr Loveday, and the other party, Ms Loveday, have two children, Amber who is now 16 and Jacob who is now aged 11.  Mr Loveday and Ms Loveday are separated and share the care of the children.

2.      The issue the subject of this application concerns their respective share of the care of Amber and Jacob, for the purpose of assessing their entitlements to Family Tax Benefit (FTB).

3.      The relevant history of the application is that on 15 June 2009, Mr Loveday lodged a claim for FTB with Centrelink on the basis that he had 70 percent care of Amber and 57 percent care of Jacob from 1 January 2009.  On 21 July 2009, a Centrelink officer made a decision to reduce the amount of FTB payments to Ms Loveday on the basis that Ms Loveday had 30 percent shared care of Amber and 43 percent shared care of Jacob from that date. 

4.      Ms Loveday requested a review of that decision and on 19 August 2009 an Authorised Review Officer (ARO) concluded that the decision was correct.  On 4 September 2009, Ms Loveday applied to the Social Security Appeals Tribunal (SSAT) for review of that decision.

5.      On 3 December 2009, the SSAT decided to set aside the ARO decision and substitute a decision that “Ms Loveday has Amber and Jacob in her care for 50% of the period commencing from 1 January 2009 and FTB is payable to her on that basis”[1].

[1] T2

6.      On 4 January 2010, Mr Loveday lodged an application with this Tribunal seeking review of the decision of the SSAT.  That application was lodged within the required period for an application to be made seeking review of an SSAT decision.

7. On 12 May 2010, the Tribunal received a letter from the solicitors then representing Mr Loveday enclosing a signed notice of withdrawal of his application. The application was accordingly taken to have been dismissed pursuant to s 42A(1B) of the Administrative Appeals Tribunal Act 1975 (the AAT Act).

8.      However, on 21 May 2010, the Tribunal received a letter from Mr Loveday requesting that his application be reinstated.  On 28 June 2010 he also lodged with the Tribunal a request for an extension of time for lodging a further application for review of the SSAT decision. 

9.      A hearing was held on 7 July 2010 in relation to both the reinstatement and extension of time applications.

issues

10.     It follows that the issues which presently arise for determination by the Tribunal are:

·whether Mr Loveday’s original application should be reinstated; and

·if not, whether his application for an extension of time to lodge a fresh application for review of the SSAT’s decision should be granted.

background facts

11.     In his letter to the Tribunal requesting that his original application be reinstated, Mr Loveday explained his reasons for withdrawing that application as follows:

“…

I was represented by Adey Lawyers in this matter and had been advised that due to the other party refusing to mediate there would be huge costs involved and had therefore decided to represent myself in this matter.

Unfortunately at the time I was contacted by my lawyers as to whether I would like to continue or withdraw this application my wife had only days prior been diagnosed with terminal pancreatic cancer and has only a short time frame left.  I felt at that time quite overwhelmed with grief, and still do, and apart from not thinking straight at the time felt I may not have the emotional stamina to proceed hence my withdrawal of the application.

However, on reflection and with discussions with my wife we feel that the right thing to do would be to continue with this as I am the major carer of my daughter (which relates to this appeal) and she does not wish to spend more time at the other party’s residence.

…”

12.     At the hearing of this matter on 7 July 2010, Mr Loveday also stated that he thought the SSAT decision was wrong and did not reflect the true apportionment of care of the children between the parties.

13.     In her letter to the Tribunal opposing Mr Loveday’s application for reinstatement, Ms Loveday stated:

“…

Brian Loveday has told various stories about the amount of time Amber (and Jacob) have been in his care.  His claims have changed considerably and often and contradict one another constantly.  This man has no credibility and his claims of a higher percentage for Amber (and Jacob although not relevant to this particular matter) should be dismissed as they are obviously untrue.

I would also like to make mention that my claims have always remained consistent.”

14.     At the hearing, Ms Loveday also pointed out that the matter had been going on for some time.  She said the SSAT decision was correct and she did not think it was fair that she be subjected to the further strain of having this matter continue after it had been withdrawn. 

15.     In further written submissions lodged with the Tribunal on 22 July 2010, she also stated:

“I believe the SSAT made the correct decision in December and maintain that care for Amber has always been shared on a 50/50 basis.”

and:

“As to Brian’s reasons for an extension of time, I do not believe that he should use his wife’s illness as a valid reason.  …  Even if they had discussed the appeal her opinion was irrelevant as she was not living with Amber.”

consideration

16.     I propose to consider first whether Mr Loveday’s original application should be reinstated.  The respondent did not oppose reinstatement of that application, but Ms Loveday did.

Should Mr Loveday’s original application be reinstated?

17. The relevant provision of the AAT Act states:

“42A    Discontinuance, dismissal, reinstatement etc. of application

…

(10)If it appears to the Tribunal that an application has been dismissed in error, the Tribunal may, on the application of a party to the proceeding or on its own initiative, reinstate the application and give such directions as appear to it to be appropriate in the circumstances.”

18.     Having regard to the terms of that provision, it is clear that in order for an application to be reinstated, it must first be established that it was dismissed “in error”.  As to what may amount to an “error” for the purposes of this provision, this has been construed quite widely on the authorities[2].  However, unless an error is identified, the Tribunal has no power to reinstate the application[3].

[2]  See Goldie v Minister for Immigration and Multicultural and Indigenous Affairs (2002) 72 ALD 652.

[3]  See Re Pavlovic and Telstra Corp Ltd (1994) 34 ALD 800; Re Mackenzie and Secretary,

19.     In relation to the circumstances of this matter as set out in Mr Loveday’s letter of 17 May 2010, I am unable to identify any error which led to the application being withdrawn and dismissed.  Rather, it appears to me that this was a conscious decision made by Mr Loveday and that he understood that the consequence of his signing a withdrawal form would be that his application would come to an end.  Whilst I accept that his decision was affected by the severe personal stress he was under at that time, it does not follow in my view that the application was dismissed in error. 

20. In the absence of any error affecting the withdrawal and/or dismissal of the application, in my view the discretion conferred by s 42A(10) is not enlivened and it is not open to me to reinstate the original application.

21.     It follows that I must proceed to consider whether an extension of time should be granted to Mr Loveday so as to enable him to lodge a fresh application for review of the SSAT’s decision.  I note that the respondent did not oppose such an extension of time being given, but again, Ms Loveday did oppose an extension of time. 

Should Mr Loveday be granted an extension of time?

22. Under s 29(7) of the AAT Act, the Tribunal has the power to extend the time for filing an application for review if “it is reasonable in all the circumstances to do so”. 

23.     Generally, to extend time the Tribunal must consider that there is an acceptable explanation for the delay and it is fair and equitable in the circumstances to extend time: per Hunter Valley Developments Pty Ltd v Minister for Home Affairs and Environment (1984) 3 FCR 344. The applicable principles were summarised by Cowdroy J in Budd v Secretary, Department of Education, Employment and Workplace Relations [2008] FCA 1540, by reference to an earlier decision of Federal Magistrate McInnis, as follows:

“18.  … In Phillips v Australian Girls’ Choir Pty Ltd & Anor [2001] FMCA 109 Federal Magistrate McInnis considered the nature of the discretion contained in s 44(2A)(a) of the AAT Act, and said at [10]:

‘In the light of A’Hearn’s case, it is clear that at least one of the principles referred to by Wilcox J in the Hunter Valley decision needs to be modified namely that it should not be any longer regarded as law that the inexcusable delay on the part of a solicitor should be visited upon the client and nor should it be a principle that there is in fact a pre-condition to the exercise of discretion in favour of the applicant for extension to show an acceptable explanation for delay or that it’s fair and equitable in the circumstances to extend time. In the light of the decision in Ahearn’s [sic] case it is useful to set out in modified form the relevant principles in relation to the exercise of the Court’s discretion when considering an extension of time in a human rights application based upon those principles distilled by Wilcox J in Hunter Valley as follows: 1. There is no onus of proof upon an applicant for extension of time though an application has to be made. Special circumstances need not be shown, but the court will not grant the application unless positively satisfied it is proper to do so. The "prescribed period" of 28 days is not to be ignored (Ralkon v Aboriginal Development Commission (1982) 43 ALR 535 at 550). 2. It is a prima facie rule that the proceedings commenced outside the prescribed period will not be entertained (Lucic v Nolan (1982) 45 ALR 411 at 416). It is not a pre-condition for success in an application for extension of time that an acceptable explanation for delay must be given. It is to be expected that such an explanation will normally be given as a relevant matter to be considered, even though there is no rule that such an explanation is an essential pre-condition (Comcare v A'Hearn [1993] FCA 498; (1993) 45 FCR 441 and Dix v Client Compensation Tribunal (1993) 1 VR 297 at 302). 3. Action taken by the applicant other than by making an application to the court is relevant in assessing the adequacy of the explanation for the delay. It is relevant to consider whether the applicant has rested on his rights and whether the respondent was entitled to regard the claim as being finalised. (See Doyle v Chief of Staff (1982) 42 ALR 283 at 287). 4. Any prejudice to the respondent, including any prejudice in defending the proceeding occasioned by the delay, is a material factor militating against the grant of an extension. (See Doyle at p 287). 5. The mere absence of prejudice is not enough to justify the grant of an extension. (See Lucic at p 416). 6. The merits of the substantial application are properly to be taken into account in considering whether an extension of time should be granted. (See Lucic at p 417). 7. Considerations of fairness as between the applicant and other persons otherwise in a like position are relevant to the manner of exercise of the court’s discretion (Wedesweiller v Cole (1983) 47 ALR 528).

Such principles were applied by Gray J in Pham v Commonwealth of Australia [2002] FCA 669, although in the context of s 46PO(2) of the Human Rightsand Equal Opportunity Commission Act 1986 (Cth).’

19 The Court respectfully approves of McInnis FM’s articulation of the principles in relation to the discretion contained in s 44(2A)(a) of the AAT Act.”

24. The applicable principles were discussed here in the context of s 44(2A)(a) of the AAT Act rather than s 29. It is clear from the relevant authorities however that whilst they ought not be followed in a “slavish” way, these principles are also relevant in the context of s 29[4]. Other matters which have also been found to be relevant in the context of s 29 include the fact that there was a significant issue to be determined, the potential financial loss to an applicant, the length of the delay and ignorance of appeal rights[5]. 

[4] Brown v Federal Commissioner of Taxation (1999) 42 ATR 118.

[5] Pearce, D., Administrative Appeals Tribunal, Butterworths (2^nd Edition, 2007), pp 56-62, [5.6]-[5.20].

25.     I propose to address each of the most relevant criteria in turn below.

Has Mr Loveday provided an acceptable explanation for the delay?

26.     In relation to the question of delay, it is relevant that Mr Loveday’s application was taken to have been dismissed on 12 May 2010 and his letter seeking reinstatement was dated 17 May 2010 and received by the Tribunal on 21 May 2010.  In other words, the application had only been dismissed for approximately five days before Mr Loveday took action to attempt to have it reinstated.  As noted above, he had originally applied for review of the SSAT’s decision within the required time.

27. In this respect, Mr Loveday’s circumstances differ from those of the usual applicant for an extension of time, who has typically failed to apply for review of the relevant decision within the required time frame of 28 days as provided by s 29 of the AAT Act. Unlike most applicants for an extension of time, the reason Mr Loveday requires an extension is not because he delayed in seeking review of the decision, but because his original application was subsequently dismissed in the circumstances set out in his letter of 17 May 2010. In these circumstances it is clearly not necessary for him to provide any explanation in relation to the period up until 11 May 2010, during which his original application remained on foot.

28.     Furthermore, although Mr Loveday did not seek an extension of time until 28 June 2010, in substantive terms there has been virtually no hiatus in the proceedings caused by his decision to withdraw his original application, as Mr Loveday took action almost immediately to attempt to reinstate the application.  Therefore, since filing his original application he has had an application on foot continuously, other than for the short period between when he withdrew his original application and when he sought to reinstate it.

29.     In these circumstances, I am satisfied that Mr Loveday has provided an acceptable explanation for the delay in lodging his further application, which he did on 28 June 2010.

Prejudice

30.     As noted above, the respondent does not oppose the application for an extension of time and, in the circumstances outlined above, I do not consider that Ms Loveday will suffer any prejudice if the extension is granted.

Other actions taken by the applicant

31.     As outlined above, Mr Loveday had an application on foot  until 12 May 2010 and took action to reinstate it on 17 May 2010.  He has therefore continued to contest the correctness of the SSAT’s decision from the time it was handed down until the present time, apart from the brief period of time between when his application was dismissed and he sought to have it reinstated.

Fairness

32.     In the unusual and unfortunate circumstances surrounding this application, I do not consider that considerations of fairness as against other applicants militate against the granting of the application.  In my view, there would be no unfairness to other applicants in granting an extension of time to Mr Loveday in circumstances where he lodged his original application within time and has continued to pursue that application, other than for a period of approximately five days.

Merits of the substantive application

33.     It is neither necessary nor appropriate in this context for me to canvass in detail the merits of Mr Loveday’s substantive application. 

34.     As outlined above, the application concerns the share of care of Amber and Jacob as between Mr and Ms Loveday during the period commencing on 1 January 2009.  The SSAT decided that Mr and Ms Loveday shared the care of Amber and Jacob equally from that date onwards.  Essentially the SSAT considered there was no reliable basis on which to depart from the previous shared care arrangement of 50/50 for both children as it was prior to 1 January 2009[6].  The SSAT also preferred Ms Loveday’s evidence to that of Mr Loveday and placed greater reliance on her evidence in reaching its conclusion. 

[6] T2/20

35.     However, there is nothing before me to suggest that Mr Loveday’s application to this Tribunal is futile or without merit.  In applications of this kind, it is often the case that this Tribunal receives more extensive evidence than that which was received by the SSAT and it is possible that, if additional evidence is provided to this Tribunal, a different conclusion may be reached.

conclusion

36.     Having regard to the applicable principles outlined above, including the fact that Mr Loveday has continued to contest the correctness of the SSAT decision since shortly after it was handed down, and there is nothing before me to suggest that his application is without merit, I have decided to grant the extension of time sought by Mr Loveday.

decision

37. In application 2010/0088, the Tribunal decides not to reinstate the application pursuant to s 42A(10) of the Administrative Appeals Tribunal Act 1975.

38. In application 2010/2600, pursuant to s 29(7) of the Administrative Appeals Tribunal Act 1975, the Tribunal grants an extension of time to the applicant for the making of an application for review of the decision of the SSAT dated 3 December 2009, to 28 June 2010.

I certify that the 38 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member K Bean

Signed:         .....................................................................................
  Associate

Date of Hearing  7 July 2010
Date of Decision  31 August 2010
Advocate for the Applicant       Self-represented

Advocate for the Respondent   Ms L Giaretto

Centrelink Advocacy Branch
Advocate for the Other Party     Self-represented

   Department of Social Security (1998) 54 ALD 281.