Meschino and Secretary, Department of Family and Community Services - [2001] AATA 342

DECISION AND REASONS FOR DECISION [2001] AATA 342

ADMINISTRATIVE APPEALS TRIBUNAL )

) No S2001/99

GENERAL ADMINISTRATIVE DIVISION       )
           Re      CARLO MESCHINO
  Applicant
           And    SECRETARY, DEPARTMENT OF FAMILY AND COMMUNIT SERVICES
  Respondent

DECISION

Tribunal Senior Member J.A. Kiosoglous MBE

Date26 April 2001
PlaceAdelaide

Decision      The Tribunal refuses to grant an extension of time to the applicant in which to seek review of the decision of the Social Security Appeals Tribunal dated 16 December 1999.
  (Signed)
  J.A. KIOSOGLOUS
  (Senior Member)
CATCHWORDS
PRACTICE AND PROCEDURE - EXTENSION OF TIME – 13-14 month delay – relevant factors considered – prejudice – explanation for delay – merit in substantial matter
Administrative Appeals Tribunal Act 1975 ss.29, 42
Re Schmack and Defence Force Retirement and Death Benefits Authority (1981) 3 ALN N77
Hunter Valley Developments Pty Ltd v Cohen (1984) 7 ALD 315
Re Mulheron and Australian Telecommunications Corporation (1991-2) 14 AAR 4
Re Killen and Defence Force Retirement & Death Benefits Authority [1999] AATA 517

REASONS FOR DECISION

26 April 2001 Senior Member J.A. Kiosoglous MBE

This is an application by Mr Carlo Meschino (the applicant) for an extension of time in which to seek review of a decision of the Social Security Appeals Tribunal (SSAT) dated 16 December 1999. This Tribunal received the application for review of that decision on 16 March 2001.
The Tribunal heard evidence from the applicant, who represented himself. Mr R. Kilderry, a departmental advocate, represented the respondent.
history of the application
The application arises in the context of a considerable history of litigation between the applicant and respondent. On 30 June 1999 a consent order of this Tribunal resolved a dispute between the applicant and respondent over Family Payment entitlements. The order was implemented by way of a delegate's determination dated 26 July 1999. The applicant complained about the manner of implementation, and the delegate referred the matter to Authorised Review Officer (ARO) Cursaro. ARO Cursaro reviewed the matter and affirmed the delegate's determination on 16 August 1999. The applicant then sought review of the "decision" to refer the matter to ARO Cursaro without his consent.
This was then considered by ARO Boyle, who subsequently decided that he did not have jurisdiction to undertake a review of the decision relating to Family Payment entitlements, as such had already been undertaken by ARO Cursaro. The applicant appealed to the SSAT on two separate counts, seeking review of the "decision" to refer the matter to an ARO without his consent, and also seeking review of ARO Boyle's decision that he did not have jurisdiction to undertake a review. That latter matter was heard and decided by the SSAT on 16 December 1999, with the decision being sent to the applicant on 22 December 1999 affirming ARO Boyle's decision that he lacked jurisdiction. That is the decision which the applicant now seeks to have reviewed by this Tribunal.
The former decision relating to the "decision" to refer the matter to an ARO without the applicant's consent or at his request was reviewed by the SSAT on 19 November 1999, affirmed by this Tribunal (differently constituted) on 27 October 2000 and by Von Doussa J in the Federal Court on 6 February 2001. Von Doussa J dismissed the applicant's appeal with costs. The applicant indicated to the Tribunal that he has now appealed that decision to the Full Bench of the Federal Court.
applicant's evidence and submissions
The applicant contended before this Tribunal that he did not lodge his appeal in respect of the current application in time, because he had a lack of understanding of the proper processes in late 1999/early 2000. He considered that being able to seek review in this matter would provide finality and provide an opportunity to correct the systemic errors that had been made by the respondent.
The applicant told the Tribunal that since he was pursuing the issue of the "decision" to refer to an ARO without his consent or at his request, he did not make application in respect of the latter SSAT decision dated 16 December 1999, pending the outcome of the first issue. If the original referral was "illegitimate", then he would be able to get an ARO review at his request, and be involved in the review process. The applicant expressed his concern that the referral to an ARO without his involvement had denied him procedural fairness.
respondent's submissions
Mr Kilderry submitted that the current matter was frivolous, and that the applicant had still not sought review by the SSAT of the decision of the ARO dated 16 August 1999 which concerned the substantive matter of the applicant's Family Payment eligibility. He submitted that the applicant had a much more direct process available by which he could resolve the Family Payment issues, and cited the recommendation made by Von Doussa J in the decision made in respect of the "decision" to refer the matter to an ARO at paragraph 33, wherein his Honour stated:
"33. It is most regrettable that the real issue which gave rise to the long campaign which the applicant has seen fit to wage against Centrelink remains to be determined even after all the proceedings mentioned in this judgement, and a number of others as well. That question is a simple one: is the calculation made by Centrelink of the applicant's entitlement to family payment in accordance with the settlement reached before the AAT on 30 June 1999? Unsurprisingly the applicant says this question should be answered by interpreting the terms of the settlement as recorded in the consent order of the AAT, not by an attempt to artificially apply the terms of the Act as Centrelink officers have done. This outstanding question could have been submitted to the SSAT by the applicant seeking to review the substantive decision made by ARO Cursaro on 16 August 1999. The Court was informed in argument that it is still open to the applicant to apply to have the substantive decision reviewed. He should do so without delay, as the peripheral skirmishes he is conducting at present are frivolous and will achieve nothing."

discussion and findings

The Tribunal is empowered by sub-section 29(7) of the Administrative Appeals Tribunal Act 1975 to extend the time for a making of an application to this Tribunal. That is a discretionary power. In exercising its discretion, the Tribunal must take into account all relevant considerations. In Re Schmack and Defence Force Retirement and Death Benefits Authority (1981) 3 ALN N77 the Tribunal set out various relevant criterion when considering extension of time applications (at pN78 (inter alia)):
"…
(ii) The factors which ought to be taken into account in deciding whether to exercise this discretion included:
(a)the reason for the failure to lodge the request for reconsideration within the 30 days allowed by Parliament for making that request as of right;
(b)the length of the further time sought to be allowed;
(c)the diligence shown by the member in lodging his request for reconsideration after it came to his notice that there were circumstances justifying that request;
(d)the nature of the decision of which reconsideration was requested and the consequence of the decision upon the member's rights or obligations under the Act;
(e)the adequacy of the information conveyed to the member at the time when the Authority's decision was notified to him — both as to the basis of the decision and of his entitlement to request reconsideration;
(f)the extent of the applicant's knowledge of the relevant provisions of the Act and his awareness that the decision in question involved a discretionary element the exercise or non-exercise of which might affect the ultimate decision;
(g)the possible prejudice to the benefits scheme established by the Act if the time for reconsideration was extended as requested by the member; and
(h)the administrative difficulties in reconsidering the decision due to the absence or inadequacy of relevant evidentiary material after such a lapse of time.
…"
The Tribunal is also mindful of similar considerations as applied in Hunter Valley Developments Pty Ltd v Cohen (1984) 7 ALD 315 at p320, Re Mulheron and Australian Telecommunications Corporation (1991-2) 14 AAR 42 and Re Killen and Defence Force Retirement & Death Benefits Authority [1999] AATA 517 and of the principles enunciated therefrom.
In the present matter, the Tribunal is not satisfied that a reasonable explanation has been offered for the delay in lodging an application with this Tribunal. The applicant is not an inexperienced litigant. The Tribunal does not accept that he remained completely unaware of the processes and procedures involved. By December 1999 he had already appeared before the SSAT on at least two occasions, and had received a decision from that body in November 1999. He was able to appeal that decision to this Tribunal without delay of some 13 to 14 months. He had further prior knowledge of this Tribunal as a result of the appeal which resulted in the 30 June 1999 consent agreement. The cover sheet which accompanied the 16 December 1999 SSAT decision contained the standard SSAT information sheet, which includes the paragraph:
"…
If you wish the AAT to review the decision, you must apply to the AAT within 28 days of the date you received the decision. If you have good reason for not meeting the time limit, you can write to the AAT and ask for an extension of time, giving details of your reason(s).
…"
In the Tribunal's opinion, the applicant's excuse is not reasonable. He contends that he did not seek review of the SSAT decision dated 16 December 1999 as he was awaiting the outcome of his other appeal. There are two distinct issues involved however, one concerning the question of whether there is a "decision" to be reviewed, and the other concerning whether ARO Boyle could perform a review Indeed if the applicant has now appealed the other matter to the Full Federal Court, there is no merit to his argument that he was awaiting finalisation of that matter before pursuing the appeal in relation to the 16 December 1999 SSAT decision. Finalisation has still not been achieved and yet the applicant decided to belatedly appeal the 16 December 1999 decision in any event.
The Tribunal finds that there is no reasonable excuse for the delay. It considers that the applicant rested on his rights in not seeking review at an earlier stage. Further to that, a delay of some 13 to 14 months is not insubstantial. In order to consider granting such an extension of time, the Tribunal would require more substantive reasons by way of explanation than what the applicant has put forward.
Furthermore, the Tribunal can see no merit in allowing the applicant to pursue review of the decision dated 16 December 1999. It would still fail to resolve the substantive question as to how much Family Payment the applicant should have received. This Tribunal is not in the habit of engaging in semantic review exercises. It is here to review matters of substance. The issue of whether or not ARO Boyle had jurisdiction to conduct a review may be an interesting intellectual puzzle, but it does not resolve the substantive question of how much Family Payment the applicant should have been paid. If the applicant has concerns about procedural unfairness, then he should engage the Commonwealth Ombudsman.
For arguments sake, if the Tribunal were to find that ARO Boyle did have jurisdiction, then he could conduct a review, and either the applicant would be successful, or could then appeal to the SSAT. Rather than engage in a two or three step process, the applicant can simply seek review by the SSAT of ARO Cursaro's decision of 16 August 1999 as it relates to the substantive issue. In this regard, the Tribunal concurs with the sentiments expressed by Von Doussa J. Pursuit of all the peripheral issues is not helping to resolve the entitlement issue, and this Tribunal is here to review substantial entitlement issues.
Whilst there is no prejudice to the respondent, the Tribunal does note the written submission made by Mr Underwood, that there would be an unreasonable diversion of resources to such a frivolous matter were an extension to be granted.
The Tribunal finds therefore, in the absence of a reasonable explanation for the delay, the applicant having rested on his rights, and there being no merit in allowing the application to proceed, that the extension of time in which to seek review is refused.
In the alternative, this Tribunal would have to give serious consideration to whether or not the application was frivolous or vexatious and should therefore be dismissed, pursuant to section 42B of the Administrative Appeals Tribunal Act 1975. As no submissions were heard on this issue however, the Tribunal makes no conclusive finding in that regard.
decision
For the reasons given the Tribunal refuses to grant an extension of time to the applicant in which to seek review of the decision of the Social Security Appeals Tribunal dated 16 December 1999.

I certify that the 19 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member J.A. Kiosoglous MBE
Signed:         .....................................................................................
  Personal Assistant
Date/s of Hearing  9 April 2001
Date of Decision  26 April 2001
Counsel for the Applicant        In person
Solicitor for the Applicant         -
Counsel for the Respondent    Mr R. Kilderry
Solicitor for the Respondent    Centrelink