Newgreen and Secretary, Department of Family and Community Services
[2004] AATA 1244
•26 November 2004
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2004] AATA 1244
ADMINISTRATIVE APPEALS TRIBUNAL )
) No V2004/1203
GENERAL ADMINISTRATIVE DIVISION ) Re RONALD NEWGREEN Applicant
And
SECRETARY, DEPARTMENT OF FAMILY AND COMMUNITY SERVICES
Respondent
DECISION
Tribunal Mr. John Handley, Senior Member Date26 November 2004
PlaceMelbourne
Decision The Tribunal extends the time for the making of the application dated 20 October 2004 to 21 October 2004. (Sgd) John Handley
Senior Member
PRACTICE AND PROCEDURE – application for review posted to Tribunal – not received and not returned to applicant – subsequent application was received approximately 12 months out of time – whether first application was “lodged” – common law presumption of delivery – whether discretion should be exercised to extend time to lodge subsequent application – whether application has merit
Administrative Appeals Tribunal Act 1975 (Cth) s29(1)(d) s29(7) s68
Social Security (Administration) Act 1999 (Cth) s13 and s179(1)
Veterans’ Entitlements Act 1986 (Cth) s177
Comcare v A’Hearn (1993) 18 AAR 366
Environment (1985) 58 ALR 305
Re Dellar and Repatriation Commission (1994) 33 ALD 255
Australian Trade Commission v Solarex Pty Ltd (1987) 78 ALR 439
Hunter Valley Developments Pty Ltd and Others v Minister For Home Affairs And Angus Fire Armour (Australia) Pty Ltd v Collector of Customs (1998) 83 ALR 449
Re Kiss and Repatriation Commission and Re Donohoe and Repatriation Commission both decided at (1995) 38 ALD 443; 21 AAR 443
Re Robert and Repatriation Commission (1992) 27 ALD 408
Roberts v Repatriation Commission (1992) 16 AAR 559
REASONS FOR DECISION
26 November 2004 Mr. John Handley, Senior Member 1. The applicant applies to extend time for the making of an application to the Tribunal for review of a decision of the Social Security Appeals Tribunal (“SSAT”) made on 25 August 2003.
2. The application was heard on 17 November 2004. Mr Newgreen appeared with his wife. Mr Zita appeared on behalf of the respondent.
3. The circumstances giving rise to the application may be briefly summarised as follows.
4. The decision of the SSAT is recorded as having been “despatched” on 2 September 2003. Mr Newgreen said that he received the application a few days later and then received notification from the SSAT of his appeal rights which included reference to a 28 day limit in the event that a review of that decision was sought. He said that he completed an application form and posted it by pre-paid ordinary mail to the Administrative Appeals Tribunal (“the Tribunal”). Mr Newgreen said that he addressed the envelope to the Tribunal’s postal address which he knew to be – by reference to the information supplied to him by the SSAT – as Level 16 East Tower HWT Building 40 City Road Southgate. The envelope enclosing the application was not ever returned to him.
5. Some months later Mr Newgreen rang the Tribunal and spoke to an officer within the registry. Apparently it was then learnt that the application form had not been received. The registry officer forwarded another application form to Mr Newgreen with the advice that if it were to be returned by mail that the envelope should be addressed to the Tribunal’s post office box. Thereafter Mr Newgreen approached the Legal Aid Commission at both Newport and in Melbourne and it would appear that attempts were made to recover documentation from the file of the SSAT.
6. For reasons which are not immediately clear, nor were they apparent at the hearing, the application form which was eventually forwarded to the Tribunal, in an envelope addressed to its post office box, was received on 21 October 2004. An application for an extension of time is dated 10 October 2004 but it would appear from other documentation on the Tribunal file that it was received on 18 October 2004. Again, the reason for the receipt of the application form to extend time, prior to receipt of the application to review is not clear nor was it apparent at the hearing.
7. In a letter completed by Mr Zita and lodged with the Tribunal on 28 October 2004 it was then submitted that the applicant had failed to provide an adequate reason for the lodgement of his application being more than 12 months after the SSAT made its decision. Whilst it was acknowledged that the applicant had recorded in his application that a previous application had not been received by the Tribunal, no adequate explanation had been given as to why he waited many months after receipt of the second application form before it was lodged.
8. The Tribunal is permitted to extend time to make an application by virtue of the discretionary power given under s29(7) of the Administrative Appeals Tribunal Act 1975 ("the AAT Act"). Additionally time for the making of an application may be extended even though the time permitted to make the application has expired.
9. The principles often considered when exercising the discretion to extend time are found within the Federal Court Decision of Hunter Valley Developments Pty Ltd and Others v Minister For Home Affairs And Environment (1985) 58 ALR 305 at 310 to 311 (“Hunter Valley”).
10. In the present application (and by reference to some of those principles) there was no evidence of the respondent suffering any prejudice nor of unfairness to other persons or any offence to established practices if an extension of time were to be granted.
11. Subject to whether the application has merit (which I will deal with later) Wilcox J in Hunter Valley decided that it was a pre-condition in the exercise of the discretion to enquire whether there was any “acceptable explanation of the delay” and whether it would be “fair and equitable in the circumstances” to extend time. That principle has been modified slightly by a decision of the Full Federal Court in Comcare v A’Hearn (1993) 18 AAR 366 (“A’Hearn”) where the Court then decided that whilst it would be expected that an acceptable explanation for delay will be provided, there was no rule that such an explanation was an essential pre-condition (page 369).
12. The application is unusual. I am satisfied and find as a fact that within 28 days of receipt of the decision of the SSAT, Mr Newgreen did forward to the Tribunal an application seeking a review of that decision in an envelope which was pre-paid and which was properly addressed. I am also satisfied and find as a fact that the envelope and its contents were not returned. I am also satisfied and find as a fact that the envelope and its contents were not received by the Melbourne Registry.
13. I had cause to consider a similar application in Re Dellar and Repatriation Commission (1994) 33 ALD 255 (“Dellar”) where I was satisfied that an application had been forwarded by an applicant’s solicitors using the facilities of the Australian Document Exchange. I also found that the document was forwarded to the Australian Document Exchange within time and it could have been reasonably inferred that the application would have been lodged within time. I then found that there was a presumption of delivery – being a common law presumption – and in making a finding that the application was “lodged” within time I relied on the provisions of the Full Federal Court decision of Australian Trade Commission v Solarex Pty Ltd (1987) 78 ALR 439 (“Solarex”).
14. If I were to follow that decision in the present application I would have found that the application posted within 28 days of receipt of the SSAT decision was in fact “lodged” and there would be no need to consider an application to extend time. Having regard to a number of Federal Court decisions subsequently and decisions made by former Presidents of this Tribunal (they being Federal Court Judges) I am not now satisfied that the conclusion I reached in Dellar was incorrect and for reasons which follow, I could not find as a matter of law that the application posted in 2003 in the present application was “lodged”.
15. As a prelude to the following discussion, s29(1)(d) of the AAT Act provides that an application for review of a decision shall be “lodged with the Tribunal”. Section 68 of the AAT Act in its reference to the “lodging of documents” provides that documents shall be “lodged at a registry of the Tribunal”. Regulation 9 of the Administrative Appeals Tribunal Regulations (“AAT Regulations”) provides that the Registrar shall record the date upon which a document was “lodged or received at his office” and provides under sub-regulation (2) that the Registrar shall “acknowledge in writing the receipt of an application under subsection . . . 29(7) . . .”.
16. Section 29(7) of the AAT Act does not refer to an extension of time to lodge an application but rather refers to an extension of time “for the making . . . of an application to the Tribunal . . .”. Section 179(1) of the Social Security (Administration) Act 1999 provides that an application may be “made” to the AAT for review of a decision of the SSAT.
17. In the Full Federal Court decision of Angus Fire Armour (Australia) Pty Ltd v Collector of Customs (1998) 83 ALR 449 (“Angus Fire Armour”) the Court considered a matter where an application was received by the registry but a filing fee was not appended. The Court decided that the application was “lodged” and “lodgement” within the meaning of s68 of the AAT Act – whether by post or by personal delivery - required a handing or delivering of a document and a physical acceptance. In the circumstances of that case the application was “lodged” when it was physically accepted by a member of the registry staff.
18. In Re Roberts and Repatriation Commission (1992) 27 ALD 408 (“Re Roberts”) O’Connor J, being a former President of this Tribunal, considered an application to extend time where a veteran – in error – forwarded his application for review to the Department of Veterans’ Affairs instead of the Tribunal. When that error had been detected, more than three months had expired from the date of delivery of the decision of the Veterans’ Review Board, which for the purposes of the Veterans’ Entitlements Act 1986 (“Veterans’ Entitlements Act”), had considerable consequences upon an entitlement to arrears of pension in the event that the application ultimately succeeded. Her Honour ultimately decided that the word “made” as it appeared within s177 of the Veterans’ Entitlements Act had the equivalent meaning of the word “lodged” as appears within the AAT Act and the word “lodged” meant that an application must be deposited and accepted. The Full Federal Court of Black CJ, Gray and Ryan JJ, upheld an appeal against her Honour’s decision in Roberts v Repatriation Commission (1992) 16 AAR 559. The Court acknowledged that a “benevolent construction” should be given to an interpretation of the Veterans’ Entitlements Act. However, having regard to the language of the Act and the manner in which the word “made” should be interpreted – having regard to its location within s177 – it was not permissible to find in the circumstances that an application for review had been “made” because to do so would “strain benevolence beyond tolerable limits” (page 561).
19. In Re Kiss and Repatriation Commission and Re Donohoe and Repatriation Commission both decided at (1995) 38 ALD 443; 21 AAR 443 Mathews J, a former President of this Tribunal, heard an application (again under the Veterans’ legislation) where applications for review had been placed by the Australian Document Exchange in a box located at the Parramatta Registry of the Tribunal. The Tribunal had ceased to function from that location and had ended its subscription of that Australian Document Exchange box but had not notified practitioners. More than three months had expired after the applications had been deposited in that Australian Document Exchange box when it was learnt that mail was being received in error. The Tribunal was then required to decide whether, in the circumstances, those applications for review had been “lodged”.
20. Her Honour followed the Full Court decision of Angus Fire Armour and had regard also to reg 9(1) of the AAT Regulations. Her Honour decided that it was arguable that the “office” of the Tribunal could be extended to other areas – specifically cited by her as a Document Exchange box (DX) – thereby permitting a finding of receipt of an application at those premises falling within reg 9(1). However Her Honour decided that she was bound to follow the Full Court decision in Angus Fire Armour and applying, as she did, the “physical acceptance” test as she understood the rationale of that decision, depositing of documents in a Document Exchange box did not amount to “lodgement” even if the box had been within the control of the Tribunal.
21. Ultimately Her Honour decided that the applications were not lodged within the relevant three month period but she decided that the circumstances caused it to be appropriate for her to make decisions under s29(7) of the AAT Act to extend time to lodge new applications which were completed by the veterans solicitors.
22. I am obliged in the circumstances to do the same.
23. I cannot, having regard to the above authorities, find that the application posted by Mr Newgreen within 28 days of the SSAT decision was handed or delivered and physically accepted (refer Angus Fire Armour) nor can I find that it was “deposited and accepted” (Re Roberts).
24. The common law presumption of “delivery” cannot – having regard to the above authorities – apply in the present case because of the requirement by the AAT Act to consider whether an application has been “lodged”. Beaumont J in Solarex decided that the legislation then applying did not restrict the method or proof of receipt of a claim. A review of the language of the AAT Act and its Regulations – reinforced by the Federal Court authorities recited earlier - indicates that there must be a deposit and acceptance. Acknowledgement of acceptance can be found by the recording of the date of acceptance (reg 9(1)). The elements constitute the physical acceptance test” as labelled by Matthews J and has its genesis, unlike Solarex, in the AAT Act and Regulations.
25. It follows therefore that this application to extend time should proceed and consideration should be given as to whether time should be extended for the making of the application dated 20 October 2004. I am satisfied that that application was in fact “lodged” and despite it having been lodged more than 12 months beyond the time permitted for the making of an application I am satisfied that an explanation for delay has been given and it would be fair and reasonable in the circumstances to extend the time to allow the application to be made. Mr Newgreen was entitled to assume that his application of September 2003 would have been received by the Registry. Although he did make enquiries approximately two months later, and having learnt that it was not received, he was forwarded another application and he did make enquiries of the Legal Aid Commission. It could not be said that he rested on his rights. Additionally – as I have decided above – there is no evidence of any prejudice to the respondent or any offence to existing practices.
whether the application has merit
26. I explained to Mr and Mrs Newgreen that I did not intend to conduct a review of the decision made by the SSAT but I did intend to seek some information concerning the background of the application in order to decide whether the review here had merit.
27. Briefly, the circumstances giving rise to the claim for pension upon Centrelink may be summarised as follows.
28. Mr Newgreen “retired” from employment with MTD Detroit Diesel Allison Australia Limited on 20 December 2002. He was then 66 years of age. He intended to seek age pension. It was then understood however that his employer would ask him to return on a casual basis to train or be a mentor to his replacement. The dates upon which he was to be called back for that casual employment were not then known.
29. On 6 January 2003 Mrs Newgreen rang the Centrelink 1300 telephone number to enquire as to her husband’s entitlement to pension. She spoke with a male person and informed that person that whilst her husband had retired it was likely that he would return to work on some casual days and whether, in those circumstances, he should make an application for pension at that time or when the casual days had been completed. She said that she was notified to make the application for pension at the later date. Mrs Newgreen confirmed that she did not give her name or her husband’s name at that time. Mrs Newgreen was adamant that she specifically enquired whether pension would become payable to her husband from 20 December 2002 – being the date of retirement – and was informed that it would be. Later she either heard or learnt from other persons that there was some doubt concerning an entitlement to retrospective payments and again rang the 1300 number. She said she then spoke with a person and upon making an enquiry as to whether pension would be paid retrospectively was informed “I should hope so”.
30. Mr Newgreen ceased all employment in mid-February 2003. He rang the Newport office of Centrelink on 27 March 2003, and was advised that there was no record of the telephone call having been made on 6 January 2003. There was a recording of the enquiry of 27 March 2003 and Centrelink was satisfied that he may then be entitled to age pension. An appointment was made for Mr Newgreen to attend the Newport office on 8 April 2003 and in the interim a written notice acknowledging the contact of 27 March 2003 was posted to him. Having regard to the appointment on 8 April 2003 and the documentation then provided, Mr Newgreen qualified for age pension and it was paid to him from 27 March 2003.
31. It appears that entitlement to be paid from 27 March 2003 is consistent with the provisions of s13(1) of the Social Security (Administration) Act which is in the following terms:
13 Deemed claim—person contacting Department about a claim for a social security payment
(1)For the purposes of the social security law, if:
(a)the Department is contacted by or on behalf of a person in relation to a claim for a social security payment; and
(b)the person is, on the day on which the Department is contacted, qualified for the social security payment; and
(c)the Secretary gives the person a written notice acknowledging that the Department has been contacted in relation to the making of the claim; and
(d)the person lodges a claim for the social security payment within 14 days after the Department is contacted;
the person is taken to have made a claim for the social security payment on the day on which the Department was contacted.
32. Mr Zita submitted that the application does not have merit because a claim for pension was not made within 14 days of 20 December 2002 or 6 January 2003. He accepted that there was a contact made on 6 January 2003 by telephone but there was probably was no recording of it, having regard to Centrelink practices of only recording telephone enquiries where the telephone consultant has access to a person’s file at the time of enquiry.
33. It was acknowledged that by the provisions of s13(1)(c), unless “the Secretary” provides a written notice acknowledging the telephone contact, all of the sub-sections to s13(1) could not be satisfied and an entitlement to pension would not exist from the date of the telephone enquiry.
34. I am of the view that the application does have merit and Mr Newgreen should be entitled to argue his entitlement. The SSAT decided that entitlement existed only from 27 March 2003 because “there was no earlier application lodged” but it made no finding as to whether there was a contact made with Centrelink on 6 January 2003. Whilst the SSAT discussed at paragraph 8 of its decision that it was “possible” that contact was made with Centrelink on 6 January 2003 it was “not in dispute” that he did not receive a letter about that contact and he did not lodge a claim prior to 8 April 2003.
35. I am concerned that if it is ultimately found as a fact that there was contact with Centrelink by telephone on 6 January 2003 and on that date it was also found that Mr Newgreen qualified for age pension, that unless “the Secretary” gives a written notice acknowledging that contact and a claim form was made and lodged within 14 days, there can be no deeming of the claim for pension having been made on the date of the telephone contact.
36. It would appear from what was learnt at the extension of time hearing that some of the provisions of s13(1) will be satisfied but sub-section (c) could not be satisfied but not for any inadvertence or omission or error on the part of Mr Newgreen. In those circumstances he could not ever have qualified for age pension from 6 January 2003.
37. Whilst there would not appear to be any lawful basis to find that there was entitlement from 20 December 2002 there may be a legal basis to find that there was entitlement from 6 January 2003. I am of the view that Mr Newgreen should be entitled to make submissions upon that or any other issue and I am satisfied in the circumstances that his claim does have merit.
38. Accordingly the application should be remitted within the Tribunal to a Conference Registrar and a pre-hearing conference should be convened.
I certify that the 38 preceding paragraphs are a true copy of the reasons for the decision herein of
Mr. John Handley, Senior MemberSigned: Holly Weston
AssociateDate of Hearing 17 November 2004
Date of Decision 26 November 2004
Solicitor for the Applicant Self Represented
Departmental Advocate Mr W Zita
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