McCauley and Anor and Secretary, Department of Families, Community Services and Indigenous Affairs and Anor

[2006] AATA 624

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2006] AATA 624

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No T2006/59 and 60

GENERAL ADMINISTRATIVE  DIVISION		)
Re		JOHN McCAULEY

Applicant

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

Respondent

Re                 PATRICIA McCAULEY

Applicant

AndSECRETARY, DEPARTMENT OF EMPLOYMENT AND WORKPLACE RELATIONS

Respondent

DECISION

Tribunal Associate Professor B W Davis AM (Part-time Member)

Date14 July 2006

PlaceHobart

Decision The application for extension of time pursuant to subsection 29(7) of the Administrative Appeals Tribunal Act 1975 is refused.

..............................................

Part-Time Member

CATCHWORDS

Social Security - SSAT decision - cancellation of benefits - application for review - application for extension of time - withdrawal of application - second application for review and extension of time - reasons stated - application refused.

Legislation

Administrative Appeals Tribunal Act 1975 - s29(7)

Guide to Social Security Law

Authorities

Re Johnson and Commonwealth (5 January 1990) AATA 5619

Hunter Valley Developments v Minister for Home Affairs and Environment (1984) 3 FCR 344

Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541

Re Liddell and Secretary, Department of Family and Community Services (2005) AATA 744  

REASONS FOR DECISION

14 July 2006 Associate Professor B W Davis AM (Part-time Member)   

The Application

1.      The Applicants have sought an extension of time for review of a decision made by a Centrelink officer on 23 February 2004, subsequently affirmed by the Social Security Appeals Tribunal (SSAT) on 6 May 2004, cancelling payment of Age Pension and Partner Allowance.    On 26 May 2004 the applicants’ lodged an application for review with the Administrative Appeals Tribunal, but this was subsequently withdrawn on 3 February 2005 after an ARO had set aside a decision rejecting some asset hardship provisions and determined that Age Pension and Newstart Allowance should be granted under asset hardship provisions, backdated to 8 March 2004.

2.      On 10 May 2006 the applicants lodged a second application for review with the Administrative Appeals Tribunal, together with an application for an extension of time.    The respondent opposed the application for extension of time on several grounds, including a claim the applicants were resting on their rights and to delay further would prejudice the respondent and general public, in terms of disruption to established practice.

Evidence

3.       A hearing was conducted in Hobart on 5 July 2006 at which the parties presented their cases.  Mr Ben Bartl of Hobart Community Legal Services represented the applicants; the respondent DFCS and IA and DEWR were represented by Ms Michelle Baulch.   Mrs Patricia McCauley was present at the hearing.

4.      After opening submissions Mrs Patricia McCauley was sworn as witness and responded to a series of questions about her situation prior to, during and after the initial application for review and extension of time had been lodged.

5.      She claimed it was a terrible period of time, with two daughters suffering severe mental problems, including violence and suicide attempts prior to return to Tasmania, where one daughter’s condition had improved under treatment.    Her husband (applicant John McCauley) had been diagnosed with cancer in October 2004, he had also undergone bypass heart surgery with complications and depression.    Mrs McCawley’s mother was operated on for cancer in June 2005 and suffered complications resulting in five months hospitalisation; she was finally released in February 2006.

6.      The applicant was asked how she survived in the period between pensions cancellation in February 2004 and new benefits allocated in February 2005.   She said she sold things and used a credit card which she had great problems servicing.   She was asked why she had withdrawn the initial application for review and extension of time only two days after revised benefits were allotted in February 2005; she admitted it was the favourable ARO decision which induced it.

7.      The applicant was then questioned about her claim the SSAT had erred in its decision about the asset hardship situation when the trading company Jolly Roger Exports Pty Ltd was being wound up.     She and her husband had not submitted a claim as creditors, because they had been guarantors of a bank loan which had not been repaid at that stage.   They had not sought legal advice but had taken work of a commentator.   They had been forced to dispose of their farm and provide some funds to their daughter and son-in-law and in early 2005 had been in a situation of deprived assets.   Ms Baulch for the respondent pointed out they had also been in a situation to submit a claim as creditor and had been further advised of this possibility by Centrelink in April 2005, but had failed to take action, relying upon Commonwealth benefits while they waited in hope of a refund of their investment if a restructured Jolly Roger Company became viable.    Mrs McCauley responded that the welfare benefits they were receiving were limited anyway.

8.        The respondent queried why a second claim for review and extension of time had been lodged some 14 moths after the initial application was withdrawn.   The applicant said she had been very busy and never got around it until recently.   Counsel for the respondent identified many actions taken by the applicant during the intervening period and said that if the applicant and her husband had been serious about a review it would have taken little time to fill in the simple application form and forward it.    Mrs McCauley admitted she was reapplying two years after the initial SSAT decision and not within the prescribed 28 days, but claimed the pressure of events and a deterioration in her own state of health meant she had awaited improved financial circumstances before deciding to reactivate the matter.

9.        In closing submissions for the applicants, Mr Bartl emphasised the stress and anxiety Mrs McCauley had faced and argued her circumstances were different to those in Liddell and SFDCS (2005) AATA 744 cited by the respondent in the Secretary’s Statements about the case. Liddell had involved a delay of more than nine years, here the second application had been lodged within 14 months and with several justifications for delay.

10.      Counsel for the respondent said there was every indication in the McCauley case of a “storing up” in the hope of later favourable circumstances; there was a need for the applicants to provide detailed full explanation of reasons for seeking further delay.     The documentary justifications were scarce, despite Mrs McCauley’s assertions.   She was attempting to persuade the Tribunal she was too busy to have re-applied earlier, but there was ample evidence of many other actions undertaken, in fact almost anything other than submitting a simple application form for review of the SSAT decision.    With respect to the latter, it was clear she could have submitted a claim as a creditor of Jolly Roger Export Pty Ltd at any stage during the winding up process, but chose not to do so, because winding up might have yielded far less than delaying in the hope of re-establishment of the business.   The Tribunal was now required to consider the matter further, the method of doing so and several useful authorities were set out in the Secretary’s Statement (Exhibit R1), but it was the respondent’s contention no grounds existed to grant a further extension of time.

Analysis

11. Sub-section 29(7) of the Administrative Appeals Tribunal Act 1975 states:

“The Tribunal may, upon application in writing by a person, extend the time for the making by that person of an application to the Tribunal for a review of a decision (including a decision made before the commencement of this section) if the Tribunal is satisfied that it is reasonable in all the circumstances to do so.”

12.      The issue for this Tribunal is whether there are grounds for granting the applicants John and Patricia McCauley an extension of time for review of the original decision.    Whilst the likelihood of a successful appeal may be a relevant consideration, the real issue is whether it is reasonable to extend the period of time taking account of all the relevant circumstances.

13.      Considerations relevant to the exercise of a decision were listed by the Tribunal in Re Johnson and Commonwealth (5 January 1990, 5619) as follows:

(a)whether or not the applicant rested on his rights or took action to make the decision-maker aware the decision was contested;

(b)any prejudice to the respondent would be caused by granting the extension of time;

(c)any wider prejudice to the public in terms of disruption of established practices;

(d)the merits of the substantive application; and

(e)fairness in granting the extension of time as between the applicant and other persons in a like position.

Resting on Rights?

14.      The general rule enunciated by the High Court is that limitation periods are the “general rule” and only special circumstances warrant exception from it. (Brisbane South Regional Health Authority v Taylor (1996) 185 CLR 541). The Tribunal accepts that the initial claim for review was properly lodged, and the reason for its withdrawal in February 2005 appears to be related to benefit payments granted under asset hardship provisions and backdated to 8 March 2004. The applicants have admitted the ARO’s decision was an influential factor and at the time they appeared satisfied with it.

15.      The second application for review and extension of time came some 14 months later, in May 2006, and there is no explanation for it, other than they had been too preoccupied  with problems to give it earlier consideration.    But as the respondent has correctly noted, they were engaging in a range of other matters, including the lodgement of claims for improved pension rates and other forms of benefits, so there was no valid excuse for delaying the second request for review, if they were serious about it.    The respondent considered the whole approach smacked of “second thoughts” and the storing up of possible claims for the future, although the applicants were always free to make other applications if they wished.

Prejudice to the Respondent

16.      The respondent has argued that to reactivate the matter once more would necessitate the updating of evidence and perhaps the pursuit of more, impinging upon departmental caseloads.   The issue for the Tribunal, if it were to hear the matter, is whether on the basis of evidence presented at the time, the decision initially made was the correct or preferable decision at the time it was made, not at a point two years later.    Little would be gained by granting a further extension of time to re-examine these realities.

Prejudice to the General Public

17.      As earlier noted, the prescribed period for appeal of 28 days is not to be ignored.    Clearly the initial application for review met the criteria, but the second application for review and extension of time did not.   The applicants had to provide a detailed justification for two years delay between the SSAT decision of 6 May 2004 and lodgement of their new review claim on 10 May 2006, but in the Tribunal’s view they have failed to do so.

18.      There is a potential prejudice to the wider public in allowing the applicant an extension of over 14 months to lodge a further application for review, when other applicants are required to comply with legislative provisions and lodge their applications within 28 days.

Merits of the Substantive Application

19.      In making its decision on 6 May 2004, the SSAT drew upon a very wide range of evidence, fully considered the applicants’ submissions and relevant case law, before determining the decision to cancel the applicant’s Age Pensions and Partner Allowance was correct.   The issues received further consideration by the ARO on 1 February 2005 and resulted in the applicant’s being granted Age Pension and Newstart Allowance backdated to 8 March 2004, under asset hardship provisions.   It was an outcome seemingly acceptable to them at the time, but involved some complex financial arrangements which led the applicants to fail to lodge an application as creditors of Jolly Roger Exports Pty Ltd and Jolly Roger Holdings, even if they were advised to do so.   No details have been submitted to the Tribunal as to why an extension of time is essential in this particular matter, nor have other general reasons for delay or grounds for further extension of time been produced.   For the foregoing reasons it is not proper to allow the application and the Tribunal has decided to refuse it.

Decision

20. The application for extension of time pursuant to subsection 29(7) of the Administrative Appeals Tribunal Act 1975 is refused.

I certify that the 20 preceding paragraphs are a true copy of the reasons for the decision herein of Associate Professor B W Davis AM (Part-time Member)

Signed:  K L Miller (Administrative Assistant)

Date/s of Hearing  5 July 2006
Date of Decision  14 July 2006
Counsel for the Applicant         Mr Ben Bartl
Solicitor for the Applicant          Hobart Community Legal Services
Counsel for the Respondent     Ms Michelle Baulch
Solicitor for the Respondent     Centrelink