Naughton and Secretary, Department of Family and Community Services

[2004] AATA 499

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2004] AATA 499

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No N2004/463

GENERAL ADMINISTRATIVE DIVISION		)
Re		KIM MAREE NAUGHTON

Applicant

And SECRETARY, DEPARTMENT OF FAMILY AND COMMUNITY SERVICES

Respondent

DECISION

Tribunal Michael Sassella, Senior Member

Date19 May 2004

PlaceSydney

Decision The application for an extension of the time in which to lodge the application for review in this matter is rejected.

[sgd] M J Sassella

Senior Member

CATCHWORDS

SOCIAL SECURITY – Disability Support Pension – application for review of Social Security Appeals Tribunal decision lodged late – reasonable explanation for delay – applicant told respondent of intention to appeal during period of delay – no prejudice to respondent if extension of time granted – merits of case weak – extension of time refused

Administrative Appeals Tribunal Act 1975 s 29(2)

Social Security Act 1991 Schedule 1B

Hunter Valley Developments Pty Ltd v Cohen (1984) 7 ALD 315

Riverside Nursing Care Pty Ltd v Secretary, Department of Health and Aged Care [2003] FCA 1065

Comcare v A’Hearn (1993) 45 FCR 441

Re Mulheron and Australian Telecommunications Corporation (1991) 14 AAR 42

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

Re Petrou and Australian Postal Corporation (1992) 25 ALD 407

REASONS FOR DECISION

19 May 2004 Michael Sassella, Senior Member           

RESULT

The application for an extension of time is refused as it is unlikely that Ms Naughton would be successful at the tribunal.

BACKGROUND

1. Kim Maree Naughton (“the applicant”) is in receipt of Newstart Allowance from Centrelink. On 20 August 2003 Ms Naughton lodged with Centrelink a claim for Disability Support Pension (“DSP”). A Centrelink officer, on subdelegation from the Secretary, Department of Family and Community Services (“the Secretary”, “the respondent”), assessed the claim and determined to reject it on 11 September 2003. A Centrelink authorised review officer reconsidered the rejection and upheld it. Ms Naughton appealed then to the Social Security Appeals Tribunal (“SSAT”) which affirmed the rejection on 20 January 2004. On 19 April 2004 the Administrative Appeals Tribunal (“the tribunal”) received from Ms Naughton an application for review of the decision as affirmed by the SSAT. Such an application for review should be lodged within 28 days of receipt of the SSAT decision, according to s 29(2) of the Administrative Appeals Tribunal Act 1975 (“the Act”)[1].  That is to say that the application should have reached the tribunal by about 20 February 2004.  It was about two months late.

[1] considering whether to grant an extension of time the tribunal applies the principles in the Federal Court decision, Hunter Valley Developments Pty Ltd v Cohen (1984) 7 ALD 315. There are a number of criteria that arise from that decision. These are most notably:

(a)The applicant should provide a reasonable explanation for the delay. 

(b)The applicant should have taken action other than this application to make the decision-maker aware that he or she contests the finality of the decision.

(c)The respondent should not be unduly prejudiced if the time is extended.

(d)The merits of the substantive application are properly to be taken into account in considering whether an extension is to be granted.  Merkel J in Riverside Nursing Care Pty Ltd v Secretary, Department of Health and Aged Care [2003] FCA 1065 described the test as whether the applicant has a reasonably arguable case of error of law on the part of the decision-maker (paragraph 20). -

3.      There are some additional matters to note.

·In Comcare v A’Hearn (1993) 45 FCR 441 the Federal Court pointed out that the lack of a satisfactory explanation for the delay need not be fatal to an application for an extension of time, although such an explanation should usually be given.

·In the Cohen case (supra) an additional criterion was identified, however, in the current tribunal’s view it has relevance in only some situations.  This criterion is “considerations of fairness as between an applicant and other persons otherwise in a like position”.  It has no relevance in the present case.

·Other cases have laid down principles that are broadly consistent with those in Cohen (supra).  In  Re Mulheron and Australian Telecommunications Corporation (1991) 14 AAR 42 President O’Connor said at page 48:

“The principles to be applied in considering an application for extension of time under s 29(7) … are:

(i)        prima facie proceedings commenced outside the prescribed period will not be entertained.  An extension of time will be granted, however, if it is proper to do so.

(ii)       it is relevant whether the applicant rested on his [or her] rights or took action to make the decision maker aware that the decision was being contested;

(iii)      any prejudice to the respondent that would be caused by granting the extension of time is relevant;

(iv)      any wider prejudice to the general public in terms of disruption to established practices is relevant;

(v)       the merits of the substantial application are relevant; and

(vi)      fairness of granting an extension of time as between the applicant and other persons in like position is relevant.”

4.      The wider prejudice to the general public, as it may be balanced against the interests of the individual applicant receives attention in other cases.

5.      In Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541 (High Court) McHugh J discussed the reasons for limitation of actions. At pages 551-552 he makes the following comments:

“The enactment of time limitations has been driven by the general perception that ‘[w]here there is delay the whole quality of justice deteriorates’. …

“…it must often happen that important, perhaps decisive, evidence has disappeared without anybody now ‘knowing’ that it ever existed. …

“A verdict may appear well based on the evidence given in the proceedings, but, if the tribunal of fact had all the evidence concerning the matter, an opposite result may have ensued.  The longer the delay in commencing proceedings, the more likely it is that the case will be decided on less evidence than was available to the parties at the time that the cause of action arose. …

“The effect of delay on the quality of justice is no doubt one of the most important influences motivating a legislature to enact limitation periods for commencing actions.  But it is not the only one.  Courts and commentators have perceived four broad rationales for the enactment of limitation periods.  First, as time goes by, relevant evidence is likely to be lost.  Second, it is oppressive, even ‘cruel’ to a defendant to allow an action to be brought long after the circumstances which gave rise to it have passed.  Third, people should be able to arrange their affairs and utilise their resources on the basis that claims can no longer be made against them.  Insurers, public institutions and businesses, particularly limited liability companies, have a significant interest in knowing that they have no liabilities beyond a definite period.”

6.      In Re Petrou and Australian Postal Corporation (1992) 25 ALD 407 at 411 the Tribunal cited with approval a comment by Deputy President McMahon in an earlier decision where he said:

“Any delay, of course, is prejudicial.  The more time that elapses between the events to be examined and the date of the hearing, the more difficult it is to present meaningful evidence … Even if this were not so, however, the mere absence of prejudice would not be enough to justify the grant of an extension.”

7.      Senior Member McGirr said on the same page:

“Courts and tribunals ought as far as possible to assist litigants and the profession in the timely and efficient disposition of cases.  At some point in time parties and their legal representatives ought to be able to consider that a case has been finalised.”

8.      The issues are, therefore:

(a)Has Ms Naughton a reasonable explanation for her delay?

(b)During the period of delay did she act to inform the respondent that she was challenging the decision?

(c)Is the respondent prejudiced if the extension of time is granted?

(d)Does Ms Naughton’s case have merit?

FINDINGS ON MATERIAL QUESTIONS OF FACT WITH REFERENCE TO THE EVIDENCE AND OTHER MATERIAL IN SUPPORT OF THOSE FINDINGS

(a)      Has Ms Naughton a reasonable explanation for her delay?

9.      Ms Naughton has a reasonable explanation for her delay.  She sent an application for review to the tribunal in mid-February 2004 which the tribunal did not receive.  She heard no more and made inquiries in April.  When she was told no application had been received she sent a second application.

(b)      During the period of delay did she act to inform the respondent that she was challenging the decision?

10.     Ms Naughton had an appointment with a Centrelink DSP officer at Charlestown in February and she told this officer that she intended to appeal.  This suffices as notice to Centrelink that she was not accepting of the decision.

(c)      Is the respondent prejudiced if the extension of time is granted?

11.     Mr Zhang of Centrelink submitted that the respondent would be prejudiced if an extension of time were granted.  He said that any fresh medical evidence produced by Ms Naughton would be nine months newer than that obtained by Centrelink.  He said too that any new medical evidence would need to comment retrospectively on Ms Naughton’s status as at the date of claim.  Ms Naughton told the tribunal that her back now is “a bit worse” than when the first assessment was made.  She said that her general practitioner, Dr Lack, was well aware of the history of her condition.

12.     I do not see any substantial prejudice flowing to the respondent if this extension is granted.  The period involved is very short so any prejudice would likely have existed had Ms Naughton’s application been received on time.  The tribunal regularly in the social security, compensation, veterans and other jurisdictions has to consider medical conditions as they would have been at some time in the past. 

(d)      Does Ms Naughton’s case have merit?

13. Mr Zhang submitted that Ms Naughton’s case lacks merit. Ms Naughton was assessed for her right ankle injury and was accorded 10 points under the Impairment Tables in Schedule 1B of the Social Security Act 1991 (“the SS Act”)[2].  At the SSAT hearing Ms Naughton is quoted as agreeing with this assessment. 

[2] Naughton wishes consideration to be given also to her back and hip disabilities.  The SSAT did not do this for several reasons.  One was that Dr Lack in material given to Centrelink had suggested that the hip and back problems were related to the ankle.  Another was that there was no evidence of any imaging studies of these conditions or any assessments by specialists.  The introduction to the Impairment Tables requires that a condition must be diagnosed, treated and stabilised before it can be accorded an impairment rating.  That had not occurred in this instance. 

15.     Mr Zhang also suggested that Ms Naughton has a continuing ability to work despite her disabilities.  This was not addressed in the SSAT decision.

16.     On the current state of the material available to the tribunal it appears unlikely that Ms Naughton would succeed in her application.  I consider that the merits of the case are weak.

CONCLUSION

17.     There is little point in allowing an application to proceed that has little or no chance of success.  Ms Naughton would be best advised to speak to Dr Lack and ascertain what he sees as the likely diagnosis of her hip and back problems and whether he will refer her for x-rays and specialist attention.  She could then consider lodging a fresh claim.

DECISION

18.     The application for an extension of the time in which to lodge the application for review in this matter is rejected.

I certify that the 18 preceding paragraphs are a true copy of the reasons for the decision herein of Michael Sassella, Senior Member

Signed:         .....................................................................................
  Associate

Date of Hearing  17 May 2004
Date of Decision  19 May 2004
Advocate for the applicant        Self-represented
Advocate for the respondent     Mr Andrew Zhang, Centrelink