McAuliffe, G.R. v Department of Social Security, Secretary

[1991] FCA 88

IN THE FEDERAL COURT OF AUSTRALIA	)
1
GENERAL DIVISION	) No. SG 206 of 1990

On the appeal from the General Administrative Division of the Administrative Appeals Tribunal constituted by Mr J.A. Kiosoglous (Senior Member) Dr D.B. Williams (Member) and Dr

T B . Linn (Member)

BETWEEN:

SECRETARY. DEPARTMENT OF

SOCIAL SECURITY

Respondent

TEMPORE REASONS FOR JUDGMENT

Coram: von Doussa J.
15 February 1991

This is an application for an extension of time within which to appeal brought under sub.s.44(2A) of the Administrative Appeals Tribunal Act 1975. Under para.(a) of that sub-section an appeal against a decision of the Administrative Appeals Tribunal should be instituted within 28 days but the court is given power to allow the notice of appeal to be filed within such further time as the Federal Court of Australia allows. This is a general, wide discretion.

proceed, and also to the usual factors which arise on the	the prospect of the appeal succeeding if it is allowed to
exercise of a discretion as to a time limitation imposed on a procedural step, namely the reason for the delay, the length of delay, and the questions of prejudice or hardship to each of the parties involved in the litigation if the discretion is exercised one way or the other.
In my view the applicant has demonstrated a distinct likelihood of success on the substantive merits of the appeal if time is extended. I do not propose to go into the reasons why at any length. I am satisfied that it has been demonstrated that there is a reasonable chance that the appeal would succeed on the ground that the Tribunal failed to give sufficient reasons for its decision as required by s.43(2B) of the Act in that it did not clearly indicate its findings of relevant fact and in that it failed to extract principles from the cases on which it said it relied with the result that the reasons failed to demonstrate how the relevant legal principles were applied to the facts of the case.
I think the applicant has also demonstrated that there is a point upon which he may succeed in relation to the observation of the Tribunal that there was no evidence before it which justified it embarking upon a consideration of the issues that would arise under s.251 of the Social Securitv Act
1947.
The main issue which has been argued before me today concerns the reason for the delay and questions of prejudice. The delay is substantial. It appears that the reasons for the decision did not find their way to the applicant until about Monday, 3 July 1990. The 28 day time limit, which is the prima facie time limit within which the appeal should have been instituted expired, therefore, on or about 31 July 1990. The application for extension of time accompanied by an affidavit verifying the' proposed grounds of appeal was not

The principles upon which that discretion is to be
exercised are not in doubt. It is necessary to have regard to

filed until 12 December 1990.

However, on 5 July 1990 the applicant did write to the Federal Court of Australia endeavouring to appeal against the decision and enclosed a cheque for $500. The letter was particularly brief and merely stated that he desired to appeal against the decision pursuant to s.44 of the Administrative Appeals Tribunal Act:. The letter was not in a form which enabled it to be accepted and it was not accepted by the Registry. The letter and the cheque were returned to the applicant. Unfortunately, he did not at that stage advise the respondent of his intention to appeal. It was not until 6

September 1990 that he contacted the respondent's Department,	and then to advise it that he was intending to seek an
extension of time within which to appeal.
On 5 October 1990 the applicant consulted the Legal Services Commission about the matter. His affidavit does not explain the reason for the delay between 6 September and 5 October 1990, although I expect that during some of the period he was awaiting an appointment with the Commission. Between 5

October and 25 October 1990 the applicant was awaiting a response from counsel briefed by the Legal Services Commission. Thereafter the delay from 25 October until the filing of these proceedings is explained by the applicant primarily on the ground that he did not have the financial means to proceed. That in itself is barely an excuse but I think the picture painted is that the applicant was not lying supine in the period between the delivery of the reasons and the initiation of these proceedings. He was making some attempt to get on with the matter and importantly, in my view, he had advised the Department of his intentions so to do on 6 September.

If he is not given an extension of time clearly he will suffer the hardship of the result of the decision. He will be required to suffer that possibly not knowing the reasons for the decision.

On the other hand there is to be considered the question

of prejudice to the respondent if time is extended. This, as

all its papers, the case turned on the evidence of the	in most cases I imagine, is one where the respondent still has
applicant, not on any evidence led by the respondent, and it is difficult to demonstrate that the position of the respondent will be prejudiced with the passage of time if the appeal succeeds. But it is fundamental to the proper administration of the law, and the Social Security system, that decisions when made have a measure of finality about
them. It is likely to cause prejudice to the respondent's Department if apparently final decisions are opened much outside the prescribed time limits. To allow this to happen is likely to cause disruption to the due administration of the Department. That is a matter that I think I must take into account.
In the end the exercise of the discretion must be a balancing exercise having regard to all the factors involved.
In my view in the present case an extension of time should be granted and the applicant should be allowed to proceed with the appeal.

The order of this Court will be :

(1) Order extending the time for appeal to 13 December 1990;

(2) Refer the matter to the registrar to settle the index;

(3) Fix the date for hearing of the appeal as 3 May 1991;

(4) Reserve the question of costs on the application for

extension to the judge hearing the appeal;

(5) Liberty to apply.

I certify that this and the

t ue copy of the Reasons Y preceding pages are a	for Judgment of M r Justice
von Doussa
Associate: &L q&'JYL

Counsel for the applicant	: Mr G D Hemsley
Solicitor for the applicant	: White Berman & Co.
Counsel for the respondent
Solicitor for the respondent	: Australian Government

Solicitor

Date of hearing : 15 February 1991