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

[2018] AATA 752

Mecca and Secretary, Department of Social Services (Social services second review) [2018] AATA 752 (15 March 2018)

Division:GENERAL DIVISION

File Number(s):  2018/0496

Re:Ms Fiona Mecca

APPLICANT

AndSecretary, Department of Social Services

RESPONDENT

DECISION

Tribunal:Deputy President Gary Humphries

Date:15 March 2018

Date of written reasons:         5 April 2018

Place:Canberra

Pursuant to section 29(7) of the Administrative Appeals Tribunal Act1975, and upon written application by the Applicant dated 5 February 2018, the Tribunal extends the time for the making of an application for review of the decision of the Respondent to 5 February 2018.

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Deputy President Gary Humphries

Catchwords

PRACTICE AND PROCEDURE – extension of time application – disability support pension – whether reasonable in all the circumstances – explanation of the delay – whether any prejudice to the Respondent – whether applicant has an arguable case – extension of time granted.

Legislation

Administrative Appeals Tribunal Act 1975 s 29
Social Security Act 1991

Cases
Bahonko v Nurses Board of Victoria (No 4) [2007] FCA 1449
Comcare v A'hearn[1993] FCA 498
Jackamarra v Krakouer [1998] HCA 27
Hunter Valley Developments Pty Ltd & Ors v Cohen [1984] FCA 186
Phillips v Australian Girls’ Choir Pty Ltd & Anor [2001] FMCA 109

REASONS FOR DECISION

Deputy President Gary Humphries

5 April 2018

1. This is an application under s 29(7) of the Administrative Appeals Tribunal Act 1975 (the Act) for an extension of time in which to lodge an application for review of a decision made by the Tribunal at first tier. That section provides that the Tribunal may extend the time for making an application if satisfied that it is reasonable in all the circumstances to do so.

2. The Applicant, Ms Fiona Mecca, sought a disability support pension (DSP) from Centrelink on 2 September 2016. Her application was rejected in October 2016. She sought review of that decision by the Tribunal at first tier, and her application was heard on 11 July 2017, at which she appeared by telephone. The Tribunal member affirmed Centrelink’s decision on that day and gave oral reasons. On 25 July 2017 Ms Mecca sought review at second tier of that decision. In October 2017, Ms Mecca made a second application to Centrelink for a DSP, and on this occasion she was successful.

3. At a directions hearing held on 6 December 2017, Ms Mecca indicated that she was withdrawing her application for second tier review. At that time the Senior Member presiding dismissed the application by consent pursuant to s 42A(1) of the Act. However, on 5 February 2018 Ms Mecca again lodged an application for review of the first-tier Tribunal decision of 11 July 2017. As her application was some six months outside the 28-day period prescribed in the Social Security Act 1991 for lodgement of an application for second-tier review, she also made an application for an extension of time. This application was heard on 15 March 2018, with the Respondent, the Secretary of the Department of Social Services, opposing the extension of time.

4. Although Ms Mecca is currently in receipt of the DSP, she indicated that she wished to pursue review of the first-tier decision in order to obtain what she called back pay, that is, DSP payments for the period between her original application on 2 September 2016 and her successful application in October 2017.

   Principles governing an extension of time

5. The discretion given to the Tribunal in s 29 is broadly expressed. The Tribunal has to be satisfied that it is reasonable in all the circumstances to grant the extension. However, a number of decisions provide guidance as to the circumstances in which this broad discretion should be exercised.

6. In Re Hunter Valley Developments Pty Limited v Minister of Home Affairs and Environment [1984] FCA 176 the Federal Court (per Wilcox J) articulated the now often-quoted criteria to be considered in an application for an extension of time to review a decision:

   a)    Although the section does not, in terms, place any onus of proof upon an applicant for extension an application has to be made. Special circumstances need not be shown but the Court will not grant the application unless positively satisfied that it is proper so to do. The "prescribed period" of 28 days is not to be ignored (Ralkon v Aboriginal Development Commission [1982] FCA 153; (1982) 43 ALR 535 at p 550) Indeed it is the prima facie rule that proceedings commenced outside that period will not be entertained (Lucic v Nolan (1982) 45 ALR 411 at p 416) It is a pre-condition to the exercise of discretion in his favour that the applicant for extension show an "acceptable explanation of the delay" and that it is "fair and equitable in the circumstances" to extend time (Duff at p 485; Chapman v Reilly, Neaves J, 9 December 1983, not reported, at p 7).

   b) Action taken by the applicant, other than by making an application for review under the Act, is relevant to the consideration of the question whether an acceptable explanation for the delay has been furnished. A distinction is to be made between the case of a person who, by non-curial means, has continued to make the decision maker aware that he contests the finality of the decision (who has not "rested on his rights": per Fisher J in Doyle v Chief of Staff [1982] FCA 124; (1982) 42 ALR 283 at p 287) and a case where the decision maker was allowed to believe that the matter was finally concluded. Compare Doyle, Chapman, Ralkon and Douglas v Allen (Morling J, 3 April 1984, not reported) at p 18 with Lucic at pp 414-415 and Hickey v Australian Telecommunications Commission (1983) 48 ALR 517 at p 519. The reasons for this distinction are not only the "need for finality in disputes" (see Lucic at p 410) but also the "fading from memory" problem referred to in Wedesweiller v Cole [1983] FCA 94; (1983) 47 ALR 528.

   c)    Any prejudice to the respondent including any prejudice in defending the proceedings occasioned by the delay is a material factor militating against the grant of an extension: see Doyle at p 287, Duff at pp 484-485, Hickey at pp 525-527 and Wedesweiller at pp 533-534.

   d)    However, the mere absence of prejudice is not enough to justify the grant of an extension: Douglas at p 18, Lucic at p 416, Hickey at p 523. In this context, public considerations often intrude (Lucic, Hickey). A delay which may result, if the application is successful, in the unsettling of other people (Ralkon p 550, Becerra pp12-13) or of established practices (Douglas p 19) is likely to prove fatal to the application.

   e)    The merits of the substantial application are properly to be taken into account in considering whether an extension of time should be granted: Lucic p 417, Chapman p 6.

   f)     Considerations of fairness as between the applicants and other persons otherwise in a like position are relevant to the manner of exercise of the Court's discretion: Wedesweiller at pp 534-535.

7. The Federal Court in Comcare v A'hearn[1993] FCA 498 modified these principles. There, the Full Court upheld the decision of a primary judge who upheld an appeal from the Tribunal, which had refused an application for an extension of time within which to review a decision of Comcare. The Full Court found at [11] that:

   In our view the primary judge was correct in concluding that the reasons for decision reveal an error of law on the part of the Tribunal. The error was that the Tribunal considered that what is found was an inexcusable delay on the part of the solicitors could not constitute an acceptable explanation for the delay in making the application.

   The court added (at [15]):

   We note that the Tribunal used language that might be taken to suggest that it is a pre-condition for success in such an application that an acceptable explanation for the delay must be given. Although it is to be expected that such an explanation will normally be given, as a relevant matter to be considered, there is no rule that such an explanation is an essential precondition…

8. The Federal Magistrates Court in Phillips v Australian Girls’ Choir Pty Ltd & Anor [2001] FMCA 109, summarised the new position following A’Hearn as follows (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 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:

   1There 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] FCA 153; (1982) 43 ALR 535 at 550).

   2It 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] VicRp 21: (1992) 1 VR 297 at 302).

   3Action 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] FCA 124: (1982) 42 ALR 283 at 287).

   4Any 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 p287).

   5The mere absence of prejudice is not enough to justify the grant of an extension. (See Lucic at p 416).

   6The 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).

   7Considerations 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; [1983] FCA 94).

9. In Bahonko v Nurses Board of Victoria (No 4) [2007] FCA 1449 at [48] these considerations were condensed as follows:

   ·the explanation of the delay;

   ·any prejudice to the respondent; and

   ·whether the applicant has an arguable case.

   Consideration

10. Following the classification headings suggested in Bahonko, the Tribunal considered the following arguments in relation to the extension of time application.

    Explanation of the delay

11. Ms Mecca explained to the Tribunal that she was very stressed at the time she consented to the dismissal of her original application in December 2017. The representative of the Secretary said that the consequences of Ms Mecca’s consent to dismissal were explained to her at the time by the Senior Member presiding, but that she made the decision notwithstanding that explanation.

12. I note that one of the conditions on which her original application for DSP was based was a mental health condition. When lodging her original application for review on 25 July 2017 Ms Mecca referred to her Problems with concentration, memory recalls, constant fainting… Stress is a trigger… Moreover, it was evident on the day of the hearing of this application that she was experiencing some stress then.

13. I accept that stress played a part in the delay in lodging her application for review following the dismissal in December 2017. I am satisfied that Ms Mecca has provided some explanation for her failure to proceed, noting that, following A’hearn, an acceptable explanation is in any case not a precondition for the grant of an extension of time.

    Any prejudice to the respondent

14. The Secretary placed the greatest weight on the argument that there was an interest, for both the Secretary and the general public, in finality in proceedings, especially when an applicant has indicated that she does not wish to proceed to exercise her rights of further review. The granting of applications for an extension of time necessarily has an adverse effect on other applicants seeking merits review by the Tribunal.

15. It is axiomatic that the greater the time that has elapsed since a legislative deadline has passed without an application being lodged, the greater the prejudice to the respondent occasioned by a late application, theoretically speaking. Ms Mecca’s application is approximately six months out of time, and ordinarily the Tribunal would regard a delay of that length as weighing fairly heavily against the grant of an extension. In the present circumstances, however, it should be noted that Ms Mecca did lodge an application for review within the statutory timeframe and progressed the matter until dismissal by consent in December 2017. In effect, the Secretary has been entitled to assume for only two months, rather than six months, that the applicant had rested on her rights. No actual prejudice was pointed to by that delay. I do not regard an effective delay of that length as being substantial; in my opinion, it adds only slightly to the weight of argument against granting the extension of time.

    Whether the applicant has an arguable case

16. The Secretary’s representative argued that the prospects of success for Ms Mecca’s substantive application were not strong. She pointed out that two Job Capacity Assessments and a Health Professionals Advisory Unit report were conducted in 2016 and 2017 after Ms Mecca lodged her application in September 2016, all of which concluded that she did not achieve the 20 points under the impairment tables necessary to qualify for the DSP. The representative conceded, however, that there had been an earlier Job Capacity Assessment in February 2015 which found that Ms Mecca achieved 25 points, under two tables, for a heart condition and for peripheral vascular disease. She further conceded that this assessment may have reflected her condition at that time (i.e. 2015) but is less relevant than the reports commissioned in 2016 and 2017 to the relevant period under in which impairment must be assessed – 2 September 2016 to 2 December 2016. The Tribunal was told that there was other medical evidence advanced on Ms Mecca’s behalf.

17. The Tribunal is not required, in the circumstances of an application like this, to conduct a thorough appraisal of an applicant’s case. A rough and ready assessment will suffice (per the High Court in Jackamarra v Krakouer [1998] HCA 27 at [9]). The threshold which an applicant needs to meet to demonstrate an arguable case is, of course, lower than one demonstrating that he or she has a strong case, or even a probable case. An applicant need only demonstrate that their contentions, based on the available evidence, have a modest prospect of success.

18. Although I consider that the weight of evidence – judged against the very rough overview available to the Tribunal at the hearing – seems to fall against Ms Mecca, it appears nonetheless that her case is far from unarguable. The Secretary put forward the proposition that there was evidence available in 2015 suggesting that Ms Mecca had garnered 25 points, that in 2017 she undisputedly attracted the 20 points necessary to achieve the DSP, but that, in 2016, between these two points in time – with apparently no change in her underlying conditions – she had no prospects of achieving 20 points. This proposition no sooner needs to be stated than its inherent improbability presents itself.

    Conclusion

19. On balance, I am satisfied that it is reasonable in all the circumstances to exercise the discretion in s 29(7) in favour of Ms Mecca. She has offered some explanation for her delay in lodging her application, any prejudice to the Secretary from granting the application is likely to be minimal and her case has some prospect of success.

20. Pursuant to section 29(7) of the Administrative Appeals Tribunal Act1975, the Tribunal extends the time for the making of an application for review of the decision of the Respondent to 5 February 2018.

I certify that the preceding 20 (twenty) paragraphs are a true copy of the reasons for the decision herein of Deputy President Gary Humphries

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Associate

Dated: 5 April 2018

Date(s) of hearing:	15 March 2018
Date final submissions received:	15 March 2018
Applicant:	In person
Solicitors for the Respondent:	Ms S Saggers, Department of Human Services