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

[2018] AATA 4095

Murdoch and Secretary, Department of Social Services (Social services second review) [2018] AATA 4095 (2 November 2018)

Division:GENERAL DIVISION

File Number(s):      2018/5297

Re:Peter Murdoch

APPLICANT

AndSecretary, Department of Social Services

RESPONDENT

DECISION

Tribunal:Ms S Taglieri SC, Member

Date:2 November 2018

Place:Hobart

The application for an extension of time is refused.

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Ms S Taglieri SC, Member

CATCHWORDS

PRACTICE AND PROCEDURE – application for extension of time – principles relevant to the grant of an extension of time – Tribunal not satisfied that reasonable in all the circumstances to grant extension of time – application for extension of time refused

LEGISLATION

Administrative Appeals Tribunal Act 1975 (Cth), s 29

A New Tax System (Family Assistance) (Administration) Act 1999 (Cth), s 10

CASES

Aldefeary v Secretary, Department of Education, Employment and Workplace Relations [2012] FCA 633
Germain and Secretary, Department of Social Services [2016] AATA 541
Groth v Secretary, Department of Social Security [1995] FCA 1708; (1995) 61 FCR 240
Hunter Valley Developments Pty Ltd v Minister for Home Affairs and Environment [1984] FCA 176; (1984) 3 FCR 344
Lucic v Nolan [1982] FCA 217; (1982) 45 ALR 411
Murdoch and Secretary, Department of Social Services [2016] AATA 669
Murphy and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2010] AATA 115
Peter and Secretary, Department of Social Services [2014] AATA 2
Ralkon Agricultural Co Pty Ltd v Aboriginal Development Commission [1982] FCA 153; (1982) 69 FLR 328

Secretary, Department of Social Security v Hales [1998] FCA 219

REASONS FOR DECISION

Ms S Taglieri SC, Member

2 November 2018

INTRODUCTION AND BACKGROUND

1. On 18 September 2018 Mr Murdoch filed a second tier review application concerning a decision that had been made by Member Breheny on 24 July 2018 (the first tier decision). The first tier decision related to a claim by Mr Murdoch for lump sum family tax benefit (FTB) for the financial year 2015/2016 (the FTB claim). Mr Murdoch had made the FTB claim on 16 October 2017, outside of the timeframe required by s 10 of the A New Tax System (Family Assistance) (Administration) Act 1999 (the Act).[1] Member Breheny concluded that because Mr Murdoch had made his claim late and there were no special circumstances for that, the FTB claim could not be accepted.

   [1] 30 June 2017.

   SECOND TIER REVIEW

2. Section 29 of the Administrative Appeals Tribunal Act 1975 (the AAT Act) permits an application for review of a first tier decision if the application for review is made within 28 days (second tier application).

3. As Mr Murdoch’s second tier application was received by the Tribunal on 18 September 2018 and Mr Murdoch acknowledged that he received notice of the decision by email on 30 July 2018,[2] his application was outside the time limit prescribed by s 29 of the AAT Act.

   [2] Section 2 of Mr Murdoch’s ‘Application for Extension of Time for Making an Application for Review of Decision’ dated 18 September 2018.

4. On 19 October 2018 a hearing was conducted with respect to Mr Murdoch’s application to extend time to make the second tier application.

   EVIDENCE BEFORE THE TRIBUNAL

5. During the hearing Mr Murdoch gave oral evidence, the effect of which was very similar to the evidence he had given to Member Breheny as to why the FTB claim should be accepted.

6. He also briefly addressed the reasons for late filing of the second tier application. In essence his reasons were that he was a busy, self-employed contractor with no administrative or secretarial support and that he cared for his daughter, leaving him little time to file the second tier application.

7. Mr Murdoch claimed that the delay in lodging the second tier application was only three or four days, but in cross-examination he conceded that the delay was about 16 days.

8. When asked why he considered he had an argument that the late making of the FTB claim involved special circumstances, Mr Murdoch stated that he was aware FTB claims were to be in writing and made before the expiry of 12 months from the end of the financial year to which the claim related. Despite this he had an understanding that after the Tribunal made its decision relating to percentage of care case on 1 September 2016,[3] Centrelink would automatically ‘fix up’ (that is, arrange payment of) the FTB to which he was entitled based on the 50/50% care decision.

   [3] Murdoch and Secretary, Department of Social Services [2016] AATA 669.

9. Mr Murdoch’s evidence about the ‘understanding’ relied heavily on a statement he claimed had been made by Mr Sparkes.[4] Mr Murdoch stated in his evidence words to the effect that ‘at the end of the hearing in September 2016 when he asked what he needed to do, Mr Sparkes had told him he didn’t need to do anything, Centrelink would fix the payments up’.[5]

   [4] The Respondent’s counsel in the proceedings to which the 1 September 2016 decision related.

   [5] This was the same evidence he had given on the first tier review.

10. To further explain the reasons for not making a written FTB claim by 30 June 2017, Mr Murdoch also said that in November 2016 Centrelink reconciled and made payments in respect of the 2013/2014 year, so he assumed they would also do the same for the 2014/2015 and 2015/2016 years. He also stated that by late June 2017 this had not happened so he tried to phone Centrelink to find out why, but that was in the last few days before 30 June 2017 and he had not been able to speak to a member of their staff.

11. Under cross-examination, Mr Murdoch maintained the claim that Mr Sparkes had made statements causing him to have the understanding referred to at [8] and [9] but did not adequately answer why he thought his understanding would apply for all future claims rather than just the period to which the 1 September 2016 decision related. Mr Murdoch also agreed that he could probably have followed up with Centrelink sooner than just before the end of the 2017 financial year.

12. Information was sought from the Respondent by the Tribunal about what written claims had been made by Mr Murdoch and what payments for FTB had been made for the period after 2011. This information was filed on 24 October 2018 and Mr Murdoch was given the opportunity to comment upon it and did so on 26 October 2018. The Tribunal subsequently requested additional clarification from the Respondent as to the information filed on 24 October and was provided with such on 29 October 2018.

    WHETHER AN EXTENSION OF TIME SHOULD BE GRANTED

13. The legal principles which apply when determining if an extension of time should be granted pursuant to s 29(2) of the AAT Act have been the subject of many Federal Court and Tribunal decisions.[6] In summary the applicable principles are:

    ·Whether there has been a satisfactory explanation for the delay;

    ·Whether the review sought has some arguable merit;

    ·Whether there is prejudice to the Respondent in granting the extension of time; and

    ·Whether the justice of the case requires an extension of time to be permitted.

    [6] See, eg, Hunter Valley Developments Pty Ltd v Minister for Home Affairs and Environment (1984) 3 FCR 344, 348-349; and Aldefeary v Secretary, Department of Education, Employment and Workplace Relations [2012] FCA 633.

14. All of the above principles have been considered and evaluated for the purposes of determining whether Mr Murdoch should be granted an extension of time.

15. In summary, the Respondent’s opposition to an extension of time relied on contentions that Mr Murdoch had failed to give a satisfactory explanation for the delay in filing his second tier application. Further, that Mr Murdoch did not have an arguable case in relation to whether his FTB claim should be accepted due to special circumstances, despite being made late.

16. Although Mr Murdoch initially underestimated the length of time by which his second tier application was late, he did properly concede that it was a period of 16 days. The Tribunal regards this length of time as relatively short and indeed the Respondent’s counsel conceded as much. Further the Respondent’s counsel properly acknowledged that there was no particular prejudice to the Respondent caused by the delay in making the second tier application.

17. However, Mr Murdoch’s explanation for the delay referred to at [16] was, in the Tribunal’s view, not particularly satisfactory. Many people lead very busy lives and have to juggle work and family responsibilities. If sufficiently aggrieved by a decision of a government entity, it is the Tribunal’s view that it is reasonable for an individual to give priority to ensuring they comply with time limits for review. The discretion to extend time should not be exercised too readily.[7]

    [7] Peter and Secretary, Department of Social Services [2014] AATA 2, [10] citing Ralkon Agricultural Co Pty Ltd v Aboriginal Development Commission [1982] FCA 153 and Lucic v Nolan [1982] FCA 217.

18. The Respondent strongly contended that there was an absence of an arguable case in relation to subject matter of the first tier decision and this warranted refusal of the extension of time.

19. If the Tribunal were persuaded that there was some arguable merit in Mr Murdoch’s claim that the decision of Member Breheny was not correct or preferable, on balance it would be in the interests of justice, taking into account all considerations referred to at [13], to grant the extension of time.

20. Accordingly, the Tribunal closely analysed Mr Murdoch’s reasons for not making a written FTB claim before 30 June 2017 and considered whether they amounted to an arguable case. There was no hearing in September 2016 at which Mr Sparkes could have made the statements attributed to him by Mr Murdoch. The hearing in the percentage of care case that Mr Murdoch refers to occurred on 11 July 2016.[8] The Tribunal published its decision on 1 September 2016 but no hearing occurred at that time. If the statements attributed to Mr Sparkes by Mr Murdoch were made, they were not at a hearing. This does raise a doubt about the accuracy of Mr Murdoch’s evidence but it is unnecessary to make any finding about whether Mr Sparkes made the statement attributed to him.

    [8] Murdoch and Secretary, Department of Social Services [2016] AATA 669.

21. Even if Mr Murdoch had a particular understanding of something Mr Sparkes or another representative of the Respondent stated, it was based on either an assumption, an erroneous interpretation of what he was told or erroneous advice given to him. Regardless of which, by his own admission, Mr Murdoch did nothing between November 2016[9] and very late June 2017, to attempt to follow up Centrelink.

    [9] When he received payment of FTB for the 2013/2014 year.

22. The evidence and arguments likely to be put during the second tier application are therefore no different to those which were considered by Member Breheny and Mr Murdoch has not identified evidence, argument, legal authority or error that may suggest there were special circumstances within the meaning of that term under the social security law.

23. The law is well settled that Centrelink and its employees and agents have no legal obligation to notify potential social security recipients of legal requirements under the social security laws. In particular in this case they were not obliged to inform Mr Murdoch that he had to make a written application at any particular time, or by a particular time.[10]

    [10] See Murphy and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2010] AATA 115, [17].

24. To the extent that Mr Murdoch agitated that there were special circumstances because there had been a misunderstanding of what would transpire after the decision on 1 September 2016 and that the Respondent ought to take some responsibility for the misunderstanding, that is not the position at law.[11]

    [11] ‘Special’ denotes something different from the usual or ordinary: see Groth v Secretary, Department of Social Security [1995] FCA 1708; (1995) 61 FCR 240 and Secretary, Department of Social Security v Hales [1998] FCA 219.

25. Many parts of the social security law (including the Act) are prescriptive in nature and specify time limits for public policy reasons. Consequently, it is not uncommon that applicants come to the Tribunal arguing that they were not told things or were not provided with information, misunderstood or simply were unaware of the statutory requirements. The common theme and degree of frequency of such claims are highly likely to be demonstrative of an absence of special circumstances within the meaning of that term at law as referred to at [24].

26. Accordingly, it is not open for the Tribunal to be satisfied that Mr Murdoch may have an arguable case concerning special circumstances. The Tribunal is fortified in arriving at this view by the statements at [41]-[42] of Germain and Secretary, Department of Social Services [2016] AATA 541 (Germain). Germain was a case in which similar arguments to those sought to be advanced by Mr Murdoch were rejected as special circumstances for late lodgement of FTB claims.

    DECISION

27. Although the delay is fairly short and there is no clear prejudice to the Respondent, the explanation for delay is not particularly satisfactory and Mr Murdoch has failed to identify an arguable case on merits. The application for extension of time is refused.

I certify that the preceding 27 (twenty- seven) paragraphs are a true copy of the reasons for the decision herein of Ms S Taglieri SC, Member

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Associate

Dated: 2 November 2018

Date(s) of hearing:	19 October 2018
Date final submissions received:	29 October 2018
Applicant:	By phone
Counsel for the Respondent:	Mr B Sparkes, FOI and Litigation Branch, Department of Human Services