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

[2024] AATA 2721

Martelli and Secretary, Department of Social Services (Social services second review) [2024] AATA 2721 (2 August 2024)

Division:GENERAL DIVISION

File Number:          2024/3461

Re:Carmela Martelli

APPLICANT

AndSecretary, Department of Social Services

RESPONDENT

DECISION

Tribunal:Senior Member D. J. Morris

Date:2 August 2024

Place:Hobart

In the interests of justice, acting pursuant to s 29(7) of the Administrative Appeals TribunalAct 1975 (Cth), the Tribunal extends time for the Applicant to lodge her application for second review.

..................................[signed]......................................

Senior Member D. J. Morris

Catchwords

PRACTICE AND PROCEDURE – family tax benefit debt – where applicant sought second review – where application for second review lodged out of time – where dispute about whether letter received – where first review provided oral decision but no written reasons – where tribunal later advised applicant she could seek written reasons – where relevant Act requires applicant to be told at same time oral reasons are given – where aspects of Tribunal’s letter to applicant ambiguous – where letter deemed to have been received – but where practice followed led to lack of procedural fairness – interests of justice favour time being extended for second review – extension of time granted

Legislation

A New Tax System (Family Assistance)(Administration) Act 1999 (Cth)
Administrative Appeals Tribunal Act 1975 (Cth)

Evidence Act 1995 (Cth)

Cases

R v Secretary of State for the Home Department; Ex Parte Mehta (1975) All ER 1084; [1975] WLR 1087

REASONS FOR DECISION

Senior Member D. J. Morris

2 August 2024

1. On 26 July 2024 an interlocutory hearing was held, by telephone under s 33A of the Administrative AppealsTribunal Act 1975 (‘the AAT Act’), to consider a request by the Applicant, Mrs Carmela Martelli, for an extension of time to enable her to seek second review of a decision (‘first review’) of the Social Services and Child Support Division (‘SSCSD’) of the Tribunal, made on 9 April 2024, that she had a family tax benefit debt for the 2022-2023 financial year in the amount of $8,188.18.

2. At the hearing, the Applicant represented herself, and the Respondent was represented by Mrs Aarabi Raveendiran, a senior lawyer with the Respondent’s Department.

3. The Tribunal had before it an application for extension of time from the Applicant, dated 4 June 2024. In her application, Mrs Martelli wrote:

   I didn’t know I could apply for second review. Only when I call[ed] I found out I could apply for second review.

4. Also before the Tribunal was a document titled Secretary’s Outline of Submissions, dated 22 July 2024 and extensive annexures marked as ‘A’ documents.

5. At the commencement of the hearing, the Tribunal stressed to the parties that it was considering whether time should be extended to allow Mrs Martelli to lodge her application, not the substantive merits of her case.

   First review on 9 April 2024

6. The first review of Mrs Martelli’s application was held on 9 April 2024 by telephone. At the conclusion of the hearing, the Tribunal Member affirmed the decision. He later issued a written notice of the decision in the following terms:

   For the reasons given orally on 9 April 2024, the decision under review is affirmed.

7. After the hearing, the registry of the SSCSD wrote a letter to Mrs Martelli which is dated 9 April 2024. The letter was in the following terms:

   Dear Mrs Martelli

   NOTICE OF AAT’S DECISION

   After the conclusion of the hearing on Tuesday, 9 April, 2024, the AAT gave oral reasons for its decision.

   Written notice of the decision is enclosed.

   You may request written reasons for the decision within 14 days after the oral reasons were given. A request for written reasons can be made in writing or by calling us on [redacted]

   You may apply to the AAT for second review of the decision. An application for second review must be made online or in writing. Information about how to apply is available at or by calling us on [redacted]. There are time limits for the filing [sic] of an application for review (28 days from giving of the statement of the AAT’s decision).

   Yours sincerely

   For the Registrar

8. There are a number of problems with this letter. It is not a letter in a form I have seen before, and the Respondent echoed that view at the hearing. The first obvious point is that the oral decision was given at the end of the hearing, not after it. The second point is that the author rightly advises the recipient that she may request written reasons for the decision within 14 days after the oral decision was given. However, it would appear, on its face, that the 14-day period commenced on 9 April 2024 but the advice of the right to apply for written reasons would not be received by the Applicant until she received the letter, which significantly shortens the 14-day period. Thirdly, and this is not a major infelicity, the letter advises that there are time limits for ‘filing’ (by which it is assumed to mean ‘lodging’ – documents are not filed in the Tribunal by any party) an ‘application for review’, by which it is assumed to mean the second review, and that the time limit is 28 days from ‘giving of the statement’ of the Tribunal’s decision.

9. Mrs Martelli said at the interlocutory hearing that the Member did not advise her during the hearing that she had the right to request written reasons, nor of any timeframe she had to lodge an application for second review.

10. Mrs Martelli also told the hearing that she did not receive the letter from the Tribunal’s Registry sent on 9 April 2024.

    Was the letter received?

11. In this case, the letter was posted to Mrs Martelli. It was not emailed as the Respondent assumed and on which the Respondent based a large part his submissions, as Mrs Raveendiran conceded at the hearing. That means that the presumptions relating to something ‘sent by post’ come into play.

12. Section 160 of the Evidence Act 1995 (Cth) (‘the Evidence Act’) provides:

    Postal articles

    (1)It is presumed (unless evidence sufficient to raise doubt about the presumption is adduced), that a postal article sent by prepaid post addressed to a person at a specified address in Australia or in an external territory was received at that address on the seventh working day after having been posted.

    …

    (3)         In this section, “working day” means a day that is not

    (a)         a Saturday or a Sunday; or

    (b)a public holiday or a bank holiday in the place to which the postal article was addressed.

13. Section 163 of the Evidence Act further provides:

    Proof of letters having been sent by Commonwealth agencies

    (1)  A letter from a Commonwealth agency addressed to a person at a specified address is presumed (unless evidence sufficient to raise doubt about the presumption is adduced) to have been sent by prepaid post to that address on the fifth business day after the date (if any) that, because of its placement on the letter or otherwise, purports to be the date on which the letter was prepared.

    (2)  In this section, “business day” means a day that is not:

    (a)a Saturday or a Sunday; or

    (b)A public holiday or a bank holiday in the place in which the letter was prepared.

    …

14. Therefore, given that the letter was sent by the Tribunal and the Tribunal is a Commonwealth agency, the general ‘sent by post’ presumptions provide that the letter was presumed to have been posted five business days after the date on the letter, and to have been delivered seven days after being posted.

15. In this case, however, there was evidence before the Tribunal confirming that the registry of the Social Services and Child Support Division despatched the letter informing the Applicant of the decision, together with a notice of the decision, on Tuesday 9 April 2024. It is therefore presumed to have been delivered to Mrs Martelli’s address on Thursday 18 April 2024.

16. Mrs Martelli told the Tribunal that she did not receive it in the post. Without casting doubt on that statement, the Tribunal would require more evidence, as the Evidence Act says, which would be sufficient to raise doubt about the statutory presumption regarding an item sent by post. The Tribunal finds that the letter was delivered to the Applicant on that day.

17. The Applicant therefore had until 16 May 2024 to lodge her application for second review. She lodged it on 27 May 2024, so was eleven days out of time.

    Special legislative provisions in this sort of case

18. The general provision in s 28(1) of the AAT Act provides that a person may seek a statement of reasons and the person who made the decision shall give to the applicant a statement of reasons within 28 days. However, this provision does not apply to a first review decision under the A New Tax System (Family Assistance)(Administration) Act 1999 (‘FAA Act’): s s28(1AAA) of the AAT Act. Mrs Martelli’s debt matter relates to the FAA Act.

19. There is a special provision in s 126 of the FAA Act that provides:

    (1)If, on AAT first review of a decision, the AAT makes a decision under subsection 43(1) of the AAT Act to affirm the decision under review, the AAT must, within 14 days of making the decision:

    (a)       give a written notice to the parties that sets out the decision; and

    (b)       either:

    (i)   give reasons for the decision orally to the parties and explain that they may request a written statement of reasons; or

    (ii)  give the parties a written statement of reasons for the decision.

    (2)If, on AAT first review of a decision, the AAT makes a decision under subsection 43(1) of the AAT Act that is other than to affirm the decision under review, the AAT must, within 14 days of making the decision:

    (a)       give a written notice to the parties that sets out the decision; and

    (b)       give the parties a written statement of reasons for the decision.

    (3)A failure to comply with subsection (1) or (2) does not affect the validity of the decision.

    (4)A party to whom oral reasons are given may, within 14 days after the oral reasons were given, request a written statement of reasons for the decision. If the party does so, the AAT must give the party the statement requested within 14 days after receiving the request.

    Procedures not followed in this case

20. The problem with the procedures that were followed in this case is that the decision was affirmed in an oral decision. A written notice setting out the decision was issued to the Applicant and appended to the letter the Tribunal sent to her on 9 April 2024. Because there were no written reasons before it, the Tribunal has listened to the audio recording of the first review hearing and noted that the Member was painstaking in setting out the law and taking the Applicant through the evidence before him, and taking into account Mrs Martelli’s submissions. However, at the end of the hearing, the Member said:

    That concludes the hearing. After the hearing, I will issue a formal notice, so you and Centrelink know what the result is. You and Centrelink will get that within two weeks of today.

21. Section 126(1) of the FAA Act is therefore relevant, as the Member at first review affirmed the decision. But this is conjunctive subsection, and as no written reasons were provided, s 126(1)(b)(i) of the FAA Act applies. It was not complied with. Having made an oral decision, the Member did not explain to the Applicant she could request written reasons.

22. True it is that the letter subsequently despatched to the Applicant, awkwardly written as it was, did advise her that she could request written reasons “within 14 days after the oral reasons were given” but it would seem to me, given the clear provisions in s 126(1)(b) of the FAA Act that the right to request written reasons must be ‘explained’ when an oral decision is given, that the letter is intended to be a reminder of something the Applicant had already been told.

23. Section 126(4) provides that a party who has received oral reasons may, within 14 days, request written reasons. But by the time I find the Applicant was advised of that (which is the date I have found she is deemed to have received the Tribunal’s letter), the period was by then not 14 days, it was five days (remembering, here, that ‘days’ in s 126 of the FAA Act means calendar days, not ‘business days’ or ‘working days’).

24. I consider that, because of what unfolded in this case, procedural fairness was not given to the Applicant. She was not given notice that she could request written reasons at the time of the oral decision, and, when she was, it significantly ate into the period of time she had to request written reasons. Not having written reasons would hamper any applicant in applying for second review.

25. An additional unfortunate aspect of this matter is that, having sought second review, the usual internal practice of the General Division of the Tribunal is to make an internal request to the Social Services and Child Support Division for written reasons for the first review decision. It appears that did not happen in this case. The upshot was that neither party, nor the Tribunal, had written reasons before them. That is why I had to resort to listening to the audio-recording.

26. While the Applicant was out of time by a few days in seeking second review, I believe the combination of factors I have outlined above weigh in favour of granting an extension of time.

    An arguable case need not be a strong case

27. In terms of whether the Applicant has an arguable case, the Tribunal asked the Respondent directly if the Secretary had a view as to whether this was a case where a statutory requirement, for instance, had not been met, which would make the case futile (an example is where an applicant for citizenship has not completed the mandatory citizenship test and has had their application rejected on that basis).  Mrs Raveendiran agreed that Mrs Martelli had an arguable case to put.

28. The Tribunal made the point that it is not necessary for a case to be strong for time to be extended; it need only be arguable. If it is a weak case, that might militate against extending time: see Lord Denning MR in R v Secretary of State for the Home Department; Ex ParteMehta (1975) 2 All ER 1084; [1975] 1 WLR 1087.

    Summation

29. It is in the interests of justice, given the administrative procedures which were not followed in this case by the Tribunal, to extend time for the Applicant to apply for a second review. The purpose of the Tribunal, when it commenced in 1976 under President Brennan, was to enable members of the community aggrieved by administrative decisions to have a mechanism of review that was not expensive or overly legalistic and which was accessible to self-represented applicants. Extending time in this case is consistent with that purpose.

    DECISION

30. In the interests of justice, acting pursuant to s 29(7) of the AAT Act, the Tribunal extends time for the Applicant to lodge her application for second review.

I certify that the preceding 30 (thirty) paragraphs are a true copy of the reasons for the decision herein of Senior Member D. J. Morris

..................................[sgn]......................................

Associate

Dated: 2 August 2024

Date of hearing:	26 July 2024
Applicant:	Self-represented
Advocate for the Respondent:	Mrs Aarabi Raveendiran
Solicitors for the Respondent:	Services Australia Litigation Branch