Ng and Secretary, Department of Education, Employment and Workplace Relations
[2011] AATA 137
•1 March 2011
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2011] AATA 137
ADMINISTRATIVE APPEALS TRIBUNAL )
) No 2010/4724
GENERAL ADMINISTRATIVE DIVISION ) Re YU SIONG NG Applicant
And
SECRETARY, DEPARTMENT OF EDUCATION, EMPLOYMENT AND WORKPLACE RELATIONS
Respondent
DECISION
Tribunal Senior Member K Bean Date1 March 2011
PlaceAdelaide
Decision Pursuant to s 29(7) of the Administrative Appeals Tribunal Act 1975, the Tribunal grants Mr Ng an extension of time for the making of an application for review of the decision of the SSAT dated 5 August 2010, to 2 November 2010.
..............................................
K BEAN
(Senior Member)
CATCHWORDS
PRACTICE AND PROCEDURE – Application for extension of time – Substantive merits of application apparently weak but some explanation for delay provided and no prejudice – Limited weight given to ultimate merits – Extension of time granted.
Administrative Appeals Tribunal Act 1975 ss 29(7), 44(2A)
Hunter Valley Developments Pty Ltd v Minister for Home Affairs and Environment (1984) 3 FCR 344
Budd v Secretary, Department of Education, Employment and Workplace Relations [2008] FCA 1540
Brown v Federal Commissioner of Taxation (1999) 42 ATR 118
Lukac v Linfox Armaguard Pty Ltd & Anor [2010] FCA 740REASONS FOR DECISION
1 March 2011 Senior Member K Bean introduction
1. The applicant, Mr Ng, was paid Parenting Payment (PP) at the partnered rate between 11 September 1997 and 1 January 2008. However, between 9 July 2003 and 23 October 2007 he received earnings which were either not recorded or not accurately recorded by Centrelink.
2. The discrepancy between the income received by Mr Ng and the earnings recorded by Centrelink ultimately resulted in a debt amount being raised against Mr Ng in relation to PP paid in the relevant period. The debt was initially raised on 17 January 2008 in the amount of $10,736.15, but was subsequently recalculated on a number of occasions.
3. On 5 November 2008, an Authorised Review Officer affirmed the decision to raise a debt, but varied the amount of the debt to $15,105.01. Mr Ng subsequently sought review of that decision by the Social Security Appeals Tribunal (SSAT) and that Tribunal made a request to Centrelink for an explanation as to how the debt had been calculated.
4. On 12 July 2010, a Complex Case Officer provided written debt calculation notes to the SSAT. On 14 July 2010, Centrelink advised Mr Ng that a re-assessment of the overpayment had been done and the debt amount had been changed to $16,951.60.
5. The SSAT accepted Centrelink’s explanation for the PP debt and how it was calculated. It found that Mr Ng did have a PP debt of $16,951.60 for the period 9 July 2003 to 23 October 2007. The SSAT further concluded that there were no grounds upon which that debt should be waived or written off.
6. On 2 November 2010, Mr Ng filed an application for review of the decision of the SSAT by this Tribunal and on 19 November 2010 he also applied for an extension of time to allow him to proceed with that application.
issue
7. The issue currently before me is whether Mr Ng should be granted an extension of time pursuant to s 29(7) of the Administrative Appeals Tribunal Act 1975 (the AAT Act) for the filing of his application for review in relation to the decision of the SSAT.
relevant facts and contentions
8. As noted above, Mr Ng lodged his application with this Tribunal on 2 November 2010, approximately 10 weeks outside the 28 day period allowed for him to seek review of the decision of the SSAT without an extension of time. He filed his application for an extension of time shortly afterwards, on 19 November 2010. In that application, he said his reasons for seeking an extension of time included the fact that his debt had been recalculated a number of times. He also said “I would like to negotiate with Centrelink, I am agree to pay back 70% of the amount which I owed”.
9. He took a similar position at the hearing, acknowledging that he had received more than he was entitled to but querying whether the debt had been correctly calculated and stating that he did not understand how the debt had been calculated. He also said that no one had told him that he only had 28 days to “appeal” the SSAT decision. He repeated his position as stated in his application for an extension of time, that is that he agreed to pay 70 percent of the debt of $16,951.60 which had been raised against him.
10. At the hearing, Mr Ng also directed attention to the calculation of that part of his debt which related to the 2004/2005 tax year. He pointed out, as he had before the SSAT, that his income for the 2004/2005 year was $4,618 and this should not have been “annualised”, as it was by Centrelink, to calculate his debt.
11. Further submissions were made by the respondent after the hearing in relation to this issue. The respondent pointed out that Mr Ng’s income as a sole trader for the tax year 2004/2005 was $4,618 according to his tax return. Pursuant to Centrelink’s usual approach in assessing entitlements, this amount was annualised to $9,236 and then divided by 26 fortnights to give Mr Ng’s assessable income of $355.23 per fortnight over the six month period from 1 January 2005 to 30 June 2005. The respondent pointed out that, although Mr Ng objected to his income being “annualised” this had not resulted in any unfairness to him since the annualised amount was only taken into account for the relevant six month period. Accordingly, even if the actual income earned by Mr Ng was assessed over the six month period in which it was earned, this still yielded a figure of $355.23 per fortnight. Accordingly, whether an annualised figure was used in relation to the relevant six month period or reference was had to Mr Ng’s actual income, the result in terms of calculating his income was the same.
12. After the hearing, Mr Ng also supplied copies of correspondence which substantiated his claim that his debt had been recalculated on many occasions and the debt amount had changed many times. The correspondence also indicated that as at 20 October 2010, the outstanding debt amount was $12,343.60.
consideration
13. Under s 29(7) of the AAT Act, the Tribunal has the power to extend the time for filing an application for review if “it is reasonable in all the circumstances to do so”.
14. Generally, to extend time the Tribunal must consider that there is an acceptable explanation for the delay and it is fair and equitable in the circumstances to extend time: per Hunter Valley Developments Pty Ltd v Minister for Home Affairs and Environment (1984) 3 FCR 344. The applicable principles were summarised by Cowdroy J in Budd v Secretary, Department of Education, Employment and Workplace Relations [2008] FCA 1540, by reference to an earlier decision of Federal Magistrate McInnis, as follows:
“18. … In Phillips v Australian Girls’ Choir Pty Ltd & Anor [2001] FMCA 109 Federal Magistrate McInnis considered the nature of the discretion contained in s 44(2A)(a) of the AAT Act, and said 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 [sic] 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: 1. There 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) 43 ALR 535 at 550). 2. It 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) 1 VR 297 at 302). 3. Action 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) 42 ALR 283 at 287). 4. Any 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 p 287). 5. The mere absence of prejudice is not enough to justify the grant of an extension. (See Lucic at p 416). 6. The 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). 7. Considerations 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).
Such principles were applied by Gray J in Pham v Commonwealth of Australia [2002] FCA 669, although in the context of s 46PO(2) of the Human Rightsand Equal Opportunity Commission Act 1986 (Cth).’
19 The Court respectfully approves of McInnis FM’s articulation of the principles in relation to the discretion contained in s 44(2A)(a) of the AAT Act.”
15. The applicable principles were discussed here in the context of s 44(2A)(a) of the AAT Act rather than s 29. It is clear from the relevant authorities however that whilst they ought not be followed in a “slavish” way, these principles are also relevant in the context of s 29[1]. Other matters which have also been found to be relevant in the context of s 29 include the fact that there was a significant issue to be determined, the potential financial loss to an applicant, the length of the delay and ignorance of appeal rights[2].
[1] Brown v Federal Commissioner of Taxation (1999) 42 ATR 118.
[2] Pearce, D., Administrative Appeals Tribunal, Butterworths (2nd Edition, 2007), pp 56-62, [5.6]-[5.20].
16. Whilst the merits of the substantial application are clearly a relevant consideration, recent authorities have also suggested that caution should be exercised in reaching a view on the merits of an application in the context of an extension of time application and that a court or tribunal should be “slow to reject an application for an extension of time for no reason other than that the appeal, if prosecuted, would be unlikely – even very unlikely – to succeed”[3].
[3] See Lukac v Linfox Armaguard Pty Ltd & Anor [2010] FCA 740 at [12]-[13] and the authorities there referred to.
17. I propose to address each of the most relevant criteria in turn below.
Has Mr Ng provided an acceptable explanation for the delay?
18. As noted above, in his evidence Mr Ng said that he had not been advised that he needed to challenge the SSAT decision within 28 days. In his original application however he indicated that he had received the SSAT’s decision on 19 August 2010, that is two days after the decision was despatched.
19. Ordinarily, as I understand it, a covering letter would have been sent to Mr Ng with the SSAT’s decision, advising him of his right to appeal to this Tribunal and of
the applicable time limit. I therefore have some reservations as to the accuracy of Mr Ng’s assertion that he was not advised of the time limit. However, I do not have a copy of any letter which was sent to Mr Ng before me and nor was Mr Ng questioned in relation to this aspect of his evidence. In those circumstances, I consider the evidence directed toward this criteria to be somewhat equivocal.
Prejudice
20. The respondent appropriately did not contend that it would suffer any prejudice if an extension of time was granted.
Other actions taken by the applicant
21. There is nothing before me to suggest that Mr Ng took any other action to contest the correctness of the SSAT’s decision.
Fairness
22. In my view, consideration of fairness as against other applicants would tend to militate against the granting of Mr Ng’s application, although not as strongly as it would if he had not put forward a potential explanation for the delay.
The merits of the substantive application
23. As noted above, Mr Ng does not dispute that he has been overpaid PP and owes a debt to Centrelink. At the hearing, he did question the amount of the debt, pointing out that it had been recalculated a number of times. However, he did not specifically challenge any aspect of the calculation of the debt, other than that relating to the 2004/2005 tax year as discussed above. In relation to that issue, for present purposes, I accept the contentions of the respondent that Mr Ng’s income for that year of $4,618 was appropriately taken into account in calculating his debt for that tax year.
24. In relation to the remainder of the debt, whilst I do not have all of the relevant material before me, I note that the SSAT gave detailed consideration to this issue and the concerns raised by Mr Ng, concluding that the PP debt of $16,951.60 for the period 9 July 2003 to 23 October 2007 had been correctly raised and calculated.
25. I accept that Mr Ng is troubled by the changes to the debt amount and has indicated that he considers he should only pay 70 percent of the debt which has been raised. However, apart from the issue relating to the 2004/2005 tax year, he did not seek to complain about or criticise any other aspect of the manner in which his debt had been calculated, or the income amount upon which those calculations were based. Nor did he seek to put forward any basis upon which the debt should be waived or written off and he confirmed at the hearing that he was currently employed, apparently on a full-time basis.
26. On the material available to me, Mr Ng’s prospects on the merits would therefore appear to be weak. Indeed, his only real complaint about the SSAT decision relates to calculation of the debt amount, however he has not pointed to any error in the calculation of his debt, other than that relating to the 2004/2005 tax year which in my view is unfounded. Further, he has indicated that he is happy to pay 70 percent of the debt, confirming his acceptance of the fact that the debt which has been raised against him is substantially correct.
Overall assessment
27. I consider this application to be quite finely balanced. As indicated above, in my view, Mr Ng does not have strong prospects on the merits. However he claims not to have been aware that he only had 28 days to challenge the SSAT’s decision, and that evidence was not challenged or contradicted by the respondent. Mr Ng’s debt is a relatively large one which has been recalculated numerous times and I do not have sufficient material before me to be satisfied that the current debt amount is correct. Further the delay is not especially long and the respondent has not claimed any prejudice. On balance therefore and having regard to the recent authorities to the effect that the Tribunal should be “slow” to reject an application for an extension simply because the merits of the application appear to be weak, I have concluded that Mr Ng’s application for an extension of time should be granted.
decision
28. Pursuant to s 29(7) of the Administrative Appeals Tribunal Act 1975, the Tribunal grants Mr Ng an extension of time for the making of an application for review of the decision of the SSAT dated 5 August 2010, to 2 November 2010.
I certify that the 28 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member K Bean
Signed: ..............J Coulthard.........................................
AssociateDates of Hearing 9 December 2010 & 11 January 2011
Date of Decision 1 March 2011
Advocate for the Applicant Self-representedAdvocate for the Respondent Mr A Parker
Centrelink Advocacy Branch
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