Martyn and Department of Family and Community Services - [2000] AATA 604

DECISION AND REASONS FOR DECISION [2000] AATA 604

ADMINISTRATIVE APPEALS TRIBUNAL )

) No V2000/0436

GENERAL ADMINISTRATIVE DIVISION          )
           Re      JOYCE MARTYN
  Applicant
           And    DEPARTMENT OF FAMILY AND COMMUNITY SERVICES
  Respondent

DECISION

Tribunal Mr J. Handley, Senior Member

Date25 July 2000
PlaceMelbourne

Decision The application to extend time to lodge these proceedings is refused.

…………………..….
Senior Member

SOCIAL SECURITY: Jurisdiction – whether any decision capable of being reviewed; Extension of time – applicant lodged two years after last Social Security Appeals Tribunal review; application refused.
Administrative Appeals Tribunal Act s43(2)(A)

REASONS FOR DECISION

25 July 2000 Mr J. Handley, Senior Member

The above application was heard on 29 June 2000. The application then was to extend the time to lodge these proceedings. The application was refused and oral reasons for the refusal were then given. Subsequently the applicant has requested written reasons. These reasons are provided pursuant to s43(2)(A) of the Administrative Appeals Tribunal Act.
At the hearing Ms Martyn appeared without representation. Ms Cunningham represented the respondent.
The circumstances may be briefly summarised as follows.
In April 1990 the applicant was in receipt of Wife's Pension. As a result of certain inquiries conducted by the respondent, pension was then cancelled and an overpayment and consequent debt was raised against the applicant in the sum of $22,725. Some time later in 1990 the applicant was granted Age Pension, which she continues to receive. Recovery of the above overpayment continued by withholdings.
The applicant subsequently appealed to the Social Security Appeals Tribunal with respect to the recovery of the debt and with respect to a refusal by the respondent to grant her an amnesty in late 1990. It appears that the Social Security Appeals Tribunal on 20 February 1991 affirmed the decision with respect to the amnesty but did not deal with the issue of the debt.
An application was subsequently lodged with this Tribunal in March 1991 (V91/298) with respect to the decision of the Social Security Appeals Tribunal and following a decision made by the respondent to waive recovery of the debt for a period of 12 months, subject to further review, both parties in September 1991, consented to dismissing the application.
In December 1992 the applicant was convicted of certain offences which gave rise to the creation of the overpayment and a reparation order was made.
The applicant subsequently appealed to the Social Security Appeals Tribunal against a decision made in January 1996 by the respondent to recover the overpayment at $50 per fortnight. On 20 January 1998 the Social Security Appeals Tribunal affirmed the rate of recovery.
In April 1998 the applicant applied to the Administrative Appeals Tribunal (V98/442) to review the decision of the Social Security Appeals Tribunal, however, on 1 July 1998 the application was withdrawn.
The applicant lodged these proceedings on 11 April 2000.
At the present time the outstanding debt is in the vicinity of $16,900. The applicant continues to be paid age pension and receives a pension from the United Kingdom.
The application was listed for an extension of time to lodge the proceedings. The application was opposed. It was not clear which decision the applicant sought to review in the event that time was extended.
In her application to the Tribunal the applicant said that the decision she sought to appeal was "my overpayment". Against the section where the applicant was asked to record the date that the decision (sought to be reviewed) was made and the date that that decision was received the applicant has recorded "as per my record".
So far as I can determine from the applicant's file, the records indicate that all decisions previously made by Social Security Appeals Tribunal giving rise to an entitlement to review in this Tribunal have been concluded. That is to say, it would appear from the records, that the applicant has challenged decisions of the respondent on two occasions and sought review at the Social Security Appeals Tribunal. Subsequently the applicant has sought review in this Tribunal against those decisions. On both occasions that the applicant has previously sought review in this Tribunal the proceedings have either been dismissed by consent (September 1991) or were withdrawn (July 1998). I am not aware of any decision of the Social Security Appeals Tribunal, which is capable of review at this Tribunal.
If it is arguable that the application to this Tribunal in April 1998 was with respect to the rate of recovery of withholdings and/or the existence of a debt, it would appear that that application was lodged out of time. Nonetheless, it does appear from the file that the respondent consented to an extension of time with respect to the rate of recovery but did not consent to time being extended to permit a review of the decision made with respect to the debt. Before that issue was determined, it would appear the applicant withdrew the whole of her application.
If the applicant is of the opinion that that part of the Social Security Appeals Tribunal decision of January 1998 remains capable of being reviewed I would find that the application she made to this Tribunal in April 1998, having been withdrawn, ends any opportunity for review by the present application. In the alternative, or additionally, I am satisfied that this Tribunal presently has no jurisdiction with respect to the applicant's application. There is no decision currently capable of being reviewed. Even if this Tribunal could review the debt or its quantum, I note that the reparation order made by the Magistrates Court in December 1992 obliges the applicant to repay.
Further in the alternative, if it were submitted that the applicant's earlier withdrawal preserves a right of review (because the withdrawal denied review by this Tribunal) I would find the present application has been lodged out of time. I would not exercise the discretion to extend time because it is more than two years after the Social Security Appeals Tribunal made its decision, no explanation has been given for the delay, the respondent is entitled to have assumed the litigation had ended and, having regard to the history of the relationship between the parties (subject to financial circumstances from time-to-time) the litigation should end.
It did appear that the applicant was concerned as to the rate of pension withholdings. Ms Cunningham indicated that there had not been a review of the rate of withholding of pension since January 1998. She undertook to have the local Centrelink Office forward to Mrs Martyn a statement of financial circumstances for completion. This would permit Centrelink to review the applicant's present financial circumstances and determine whether the rate of pension withholdings can be varied. It was for all of the above reasons that the decisions was made not to extend time to lodge these proceedings.

I certify that the eighteen (18) preceding paragraphs are a true copy of the reasons for the decision herein of Mr J. Handley, Senior Member
Signed:    Linda Nemeth    ............................................
                 Secretary
Date of Hearing  29 June 2000
Date of Decision  04 July 2000
Written Reasons  25 July 2000
Counsel for the Applicant        Unrepresented
Solicitor for the Applicant
Counsel for the Respondent    Ms K Cunningham
Solicitor for the Respondent