NXVH and Child Support Registrar (Child support second review)
[2022] AATA 2594
•6 July 2022
NXVH and Child Support Registrar (Child support second review) [2022] AATA 2594 (6 July 2022)
Division:GENERAL DIVISION
File Number: 2021/9722
Re: NXVH
APPLICANT
AndChild Support Registrar
RESPONDENT
AndGNCM
OTHER PARTY
REASONS FOR DECISION
Tribunal: Senior Member C. J. Furnell
Date:6 July 2022
Date of written reasons: 2 August 2022
Place:Melbourne
The Tribunal affirmed the decision the subject of review under section 43(1)(a) of the Administrative Appeals Tribunal Act 1975 (Cth) pursuant to a decision made on 6 July 2022. The following are the written reasons for that decision.
................[SGD]........................................................
Senior Member C. J. Furnell
Names used in all published decisions of this type are pseudonyms. Any references appearing in square brackets indicate that information has been removed from this decision and replaced with generic information so as not to identify involved individuals as required by subsections 16(2AB)–16(2AC) of the Child Support (Registration and Collection) Act 1988 (Cth).
Catchwords
CHILD SUPPORT – previous application dismissed for failure to comply with Tribunal Direction within reasonable time – application for extension of time to lodge a new application for Tribunal review – Social Services and Child Support Division of Tribunal refused application for extension of time – whether Tribunal able to grant extension of time – whether Tribunal functus officio – whether Applicant seeking reinstatement of previous application – principles and criteria relating to extension of time applications – length of delay – reason for delay – prejudice to the respondent and other party – general prejudice – merits of underlying application – decision to refuse extension of time application affirmed
Legislation
Administrative Appeals Tribunal Act 1975 (Cth)
Child Support (Assessment) Act 1989 (Cth)Child Support (Registration and Collection) Act 1988 (Cth)
Cases
Antonious v Comcare [2018] AATA 3968
Australian Appaloosa Association Ltd v Australian Securities and Investments Commission [2018] AATA 3173
Babbington and Comcare (Compensation) [2017] AATA 2421
Bell and Deputy Commissioner of Taxation [2001] AATA 598
BVG17 v BVH17 [2019] FCAFC 17
Brisbane South Regional Health Authority and Taylor (1996) 139 ALR 1
Bristowe v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 690
Budd and Secretary, Department of Education, Employment and Workplace Relations [2008] FCA 1540
Cassaniti and Commissioner of Taxation (Taxation) [2020] AATA 3447
Comcare v A’Hearn (1993) 45 FCR 441
Commonwealth v Snell [2019] FCAFC 57
Custodial Limited and Australian Securities and Investments Commission (2005) 88 ALD 510
DKX17 v Federal Circuit Court of Australia [2019] FCAFC 10
Downing v Minister for Immigration and Border Protection [2019] FCA 1684
Frugtniet v Secretary, Department of Social Services [2017] FCA 1227
Garton and Repatriation Commission (Veterans’ Entitlements) [2022] AATA 647
Gildersleeve and Secretary, Department of Social Services (Social services second review) [2019] AATA 2955
Hunter Valley Developments Pty Ltd v Minister for Home Affairs and Environment (1984) 58 ALR 305
Hutchinson and Comcare (Compensation) [2022] AATA 1661
Jeffrey & Katauskas Pty Ltd v SST Consulting Pty Ltd (2009) 239 CLR 75
Kalafatis and Commissioner of Taxation [2012] AATA 150
Kennedy and Comcare [2018] AATA 4171
Kuchlmayr and Australian Capital Territory (Compensation) [2020] AATA 5072
Kumar v Minister for Immigration and Border Protection [2020] FCAFC 16
Lesianawai v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 896
Linck and Secretary, Department of Social Services (Social services second review) [2021] AATA 28
Lucic v Nolan (1982) 45 ALR 411
Makarov v Minister for Home Affairs [2020] FCA 734
Mason and John Holland Pty Ltd (Compensation) [2018] AATA 415
Matson v Australian Information Commissioner (No 2) [2021] FCA 690
Matusko and Australian Postal Corporation [1995] AATA 14
Mulheron and Australian Telecommunications Corporation, Re (1991) 23 ALD 309
MZABP v Minister for Immigration and Border Protection (2015) 242 FCR 585
MZABP v Minster for Immigration and Border Protection (2016) 152 ALD 478
MZZFQ v Minister for Immigration and Border Protection [2016] FCA 1133
Newell and Secretary, Department of Social Services (Social Services Second Review) [2021] AATA 1102
Nicholson and Secretary, Department of Social Security, Re (1990) 21 ALD 537
Novosel v Comcare [2017] FCA 722
Phillips v Australian Girls’ Choir Pty Ltd [2001] FMCA 109
Quinn v Australian Postal Corporation (1992) 15 AAR 519
Ralkon Agricultural Co Pty Ltd v Aboriginal Development Commission (1982) 43 ALR 535
RLDY and Child Support Registrar (Child Support Second Review) [2020] AATA 688
Saad v Secretary, Department of Social Services [2019] AATA 31
Secretary, Department of Family and Community Services and Roberts [2003] AATA 269
Sharma and Secretary, Department of Social Services (Social services second review) [2020] AATA 3443
Singh v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 150
Social Security, Secretary, Department of Van Den Boogaart (1995) 37 ALD 619
Swanton and Military Rehabilitation and Compensation Commission [2017] FCA 1142
SZTOR v Minister for Immigration & Border Protection [2019] FCA 349
SZTRY v Minister for Immigration and Border Protection [2015] FCAFC 86
SZUTY v Minister for Immigration and Border Protection (No 2) [2016] FCA 289
Tismanaru and Minister for Immigration and Multicultural and Indigenous Affairs [2002] AATA 1322
Twentyman v Secretary, Department of Social Services [2018] FCA 1892
Wekerle v Department of Home Affairs [2020] FCA 1300
Whitlock and Comcare (Compensation) [2019] AATA 1911
Windram and Secretary, Department of Social Services (Social services second review) [2017] AATA 804
YJDX and Child Support Registrar (Child support second review) [2021] AATA 4295
Zizza v Commissioner of Taxation [1999] FCA 848REASONS FOR DECISION
Senior Member C. J. Furnell
2 August 2022
On 12 October 2016, a decision was made by what is now Services Australia, allowing an objection made by GNCM (the other party) to a particular determination.[1] In so doing, the amount of the applicant’s liability to make child support payments to the other party was affected.[2] In that decision, “in the absence of full disclosure… about his financial circumstances,” the applicant’s adjusted taxable income was set at what was then the average income level.[3]
[1] Determination of 14 July 2016 under Part 6A of the Child Support (Assessment) Act 1989 (Cth) granting an application made by the applicant for a change in determination: T48, pp.205-210. Reference to the “T” documents is a reference to documents provided by the respondent under s 37 of the Administrative Appeals Tribunal Act 1975 (Cth). The T documents were marked as Exhibit R1.
[2] T61, p.232.
[3] T61, p.236
On 11 November 2021, the Tribunal’s Social Services and Child Support Division (SSCSD) refused the applicant’s application for an extension of time[4] in which to apply for Tribunal review of the 12 October 2016 decision.[5]
[4] The Child Support (Registration and Collection) Act 1988 (Cth) (CSRC Act), s 91, provides that if “…the period for applying for AAT first review has ended, a person may make an application for AAT first review that includes a written application (the extension application) requesting the AAT to consider the application for AAT first review despite the ending of the period.” Such an application is characterised in these reasons as an extension of time application.
[5] T2, pp.16-19. Such review by “AAT1” is provided for in CSRC Act, s 89 on the basis that the decision the subject of review was a decision under s 87(1) of that Act in respect of an objection lodged under s 80(1) of that Act in respect of the determination of 14 July 2016 under Part 6A of the Child Support (Assessment) Act 1989.
On 13 December 2021, the applicant applied to the Tribunal for review of that SSCSD decision.[6]
[6] CSRC Act, s 96A(a) provides for Tribunal review of SSCSD decisions to refuse to grant an extension of time.
In conducting that review, the question in issue is the same as that which confronted the SSCSD. Should the applicant be granted an extension of time in which to apply for Tribunal review of the 12 October 2016 decision?
At the hearing of this proceeding on 6 July 2022, I decided that he should not be granted that extension. I provided reasons for that decision, orally. The applicant has asked, however, that I provide my reasons in writing. I do so now.
CONTEXT
The applicant had 28 days after notice of the 12 October 2016 decision was given to him within which to apply to the Tribunal for review of the decision.[7]
[7] CSRC Act, s 89, noting that the decision of 12 October 2016 was a decision under s 87 of that Act. As the decision of 12 October 2016 was not a “care percentage decision”, the 28-day time period specified in s 29(1)(d) of the Administrative Appeals Tribunal Act 1975 (Cth) would apply to any application for review of the decision.
The applicant had been given notice of the decision by, at the latest, 27 October 2016.[8] In that notice, the applicant was apprised of his right to seek review by the Tribunal and of the 28-day time frame for the exercise of that right.[9]
[8] In discussions with the applicant, he stated that he would not be making the payments and was told he needed to speak to the Tribunal: T63, pp.245-246.
[9] T59, p.230; T61, p.237.
Indeed, on 27 October 2016, the applicant lodged with the Tribunal an application for review of the 12 October 2016 decision.[10] I digress to note that in a statement made by the applicant and tendered into evidence in this proceeding, he said that he had been unable to make such an application as he had to “…prioritise dealing with my diagnosis and ill-health.”[11] When asked at the hearing to explain this apparent inconsistency, the applicant’s evidence was ultimately to the effect that he did not recall making the application.
[10] T67, p.252.
[11] Exhibit A1 (applicant witness statement of 21 April 2022). In November 2016, the applicant had been diagnosed as suffering from multiple myeloma. A similar statement was made by the applicant in a document of 13 December 2021 accompanying his application for review: T1, p.7.
Subsequent to his October 2017 application, there ensued several interactions between the applicant, on the one hand, and the respondent and Tribunal, on the other hand.
On 8 November 2016, the applicant contacted the respondent to provide details of his income. That same day, the respondent contacted the applicant to advise that his income had been fixed by a change of assessment.[12]
[12] T64, pp.247-249.
On 15 December 2016, the applicant participated in a telephone directions hearing conducted by the Tribunal. At that hearing he was told that he would be directed to provide financial institution account statements and evidence in relation to his medical conditions. He was advised that the information and documents would be required to be lodged by 30 January 2017.
The Tribunal then issued directions requiring lodgement by 30 January 2017 of:
“…[a]ll financial institution account statements (including for loans and credit cards) in his name and/or joint names, for the last three months of 2016… [and] [m]edical certificates/reports showing: diagnosis, necessary treatment, effect of condition(s) on ability to undertake usual duties, number of hours per week which can be undertaken, assessment of duration of any incapacity.”[13]
[13] T67, p.252.
The applicant did not comply with that direction.
On 10 February 2017, the Tribunal wrote to the applicant, asking him to show cause as to why his application for review should not be dismissed and inviting him to make submissions by 17 February 2017. The letter stated: “If you do not respond to this letter, we will decide whether to dismiss your application for review without any further contact with you”.[14]
[14] T67, p.253.
The applicant did not respond to the letter.
On 24 February 2017, the applicant’s application for review was dismissed under subparagraph 42A(5)(b) of the Administrative Appeals Tribunal Act 1975 on the basis that he had failed within a reasonable time to comply with a direction by the Tribunal in relation to the application.[15]
[15] T67, pp.251-253.
After dismissal of that application, the applicant continued to liaise with the respondent.
On 10 May 2017, the applicant contacted the respondent in relation to an assessment notice, stating that the income used for him was incorrect. He was told that his income had been set by a change of assessment and to change it he would need to lodge an application for a change of assessment.[16]
[16] T71, p.261.
On 23 September 2020, the applicant contacted the respondent with a third party to discuss his child support payment arrears.[17] He was told that to change the amount of income attributed to him he would need to lodge a change of assessment application.
[17] T80, pp.274-275.
In November 2020, the “child support case” of relevance in this proceeding ceased.[18]
[18] Respondent’s Outline of Submissions of 19 May 2022.
On 14 April 2021, the applicant and his legal representative contacted the respondent and, amongst other things, discussed the decision of 12 October 2016. The respondent was asked to provide certain documents in connection with the potential making by the applicant of applications to the Tribunal for review of the 12 October 2016 decision and for an extension of time.[19]
[19] T81, pp.276-277.
On 11 August 2021, the Applicant applied to the SSCSD for an extension of time to review the decision of 12 October 2016.[20]
[20] T4, pp.43-76.
As mentioned earlier, on 11 November 2021, the SSCSD refused the applicant’s extension of time application.[21]
[21] T2, pp.16-19.
On 13 December 2021, application was made to the Tribunal for review of the SSCSD decision.
I turn now to address four preliminary issues.
PRELIMINARY ISSUES
First, it is arguable that there are no provisions under which the Tribunal could, in the circumstances, grant an extension of time.
In this proceeding, the Tribunal stands in the shoes of the SSCSD. In those shoes, the provisions of the Tribunal’s legislation applicable to an extension of time grant do not apply.[22] As for the provisions of the CSRC Act which provide for extension of time applications, they require that a person making such an application “…state the reasons for the person’s failure to apply for the review within the period.”[23] Arguably, implicit in this is a limitation in the scope of operation of the provisions so that they do not apply where, as here, there has been no “failure to apply for the review within the period.”
[22] CSRC Act, s 91(3.)
[23] CSRC Act, s 91(2).
I take this argument no further. The parties did not address it. Each of them proceeded on the assumption that the Tribunal did have jurisdiction to grant an extension. I am content also to so proceed given that any conclusion I managed to arrive at in response to the argument would not change the result I ultimately arrived at.
The second preliminary issue also arises because of the applicant’s earlier application to the Tribunal for review of the 12 October 2016 decision. It is whether the Tribunal now has capacity to review the decision. Having dismissed the applicant’s 2016 review application, is the Tribunal now functus officio?[24]
[24] Kuchlmayr and Australian Capital Territory (Compensation) [2020] AATA 5072 where at [13]-[15], it is said that “The power granted under a statute to undertake a review of a particular decision can, as a general rule, be exercised only once. It is the power to review a specific reviewable decision; once it has reviewed that decision and decided to affirm it, overturn it or remit it for fresh assessment to the decision-maker, its statutory power to review is exhausted. At that point it is functus officio [Latin: having performed his office], meaning that it no longer has any power to change or reconsider the decision it has made.” See also Garton and Repatriation Commission (Veterans’ Entitlements) [2022] AATA 647 at [34] “…once exercised, the Tribunal’s power to review a decision is exhausted and it is functus officio.”
It is not.
The respondent rightly referred the Tribunal to two decisions which were said to suggest that the Tribunal was indeed, functus and, hence, did not now have capacity to review the relevant decision. The first decision to which reference was made was Bell.[25] There, it was argued that a proceeding that had been dismissed might either be the subject of reinstatement or appeal but not made the subject of a fresh application.[26] In response, the Tribunal stated that it was inclined[27] to accept this argument, suggesting that it was not open to pursue an extension of time application “where [as here] there has been an application lodged within time and dismissed pursuant to section 42A(5)(b).” The basis for that suggestion is, however, one that does not apply in this proceeding.[28]
[25] Bell and Deputy Commissioner of Taxation [2001] AATA 598.
[26] Ibid at [188].
[27] Ibid at [195].
[28] The suggestion in Bell was based on a view as to the effect of interaction of certain provisions of the Taxation Administration Act 1953 (Cth) and the Tribunal’s constituent legislation.
The second decision to which reference was made is Tismanaru.[29] There, in circumstances similar to those in this proceeding, the Tribunal considered there to be merit in the contention that it did not have power to grant an extension of time.[30] It did not, however, arrive at a conclusion in response to that contention as, on the facts before it, it was unnecessary to do so.
[29] Tismanaru and Minister for Immigration and Multicultural and Indigenous Affairs [2002] AATA 1322.
[30] Ibid at [54].
Both these decisions were recently considered by DP Humphries in Linck[31] in the context of his review of a number of decisions which, as he noted, pull in different directions. In the end, the Deputy President concluded[32] that the Tribunal did have jurisdiction to consider an extension of time application in the context of a previously dismissed review application, adopting a view expressed by her Honour Justice O'Connor in Mulheron.[33] In that case, her Honour endorsed DP Forgie’s statement in Nicholson[34] that it:
“…follows that the Tribunal may have exercised all of its powers in relation to a particular application when it dismisses it but it does not follow that it has exercised all of its powers in relation to review of a decision. It follows that the applicant may bring a fresh application to review that decision."[35]
[31] Linck and Secretary, Department of Social Services (Social services second review) [2021] AATA 28. Note also that in Gildersleeve and Secretary, Department of Social Services (Social services second review) [2019] AATA 2955 at [35], the Tribunal proceeded to hear an extension of time application despite its having been referred to the cases raised in this proceeding by the respondent.
[32] Linck at [19].
[33] Re Mulheron and Australian Telecommunications Corporation (1991) 23 ALD 309 at [8]-[16].
[34] Re Nicholson and Secretary Department of Social Security (1990) 21 ALD 537 at p.544.
[35] See also Kalafatis and Commissioner of Taxation [2012] AATA 150 at [57].
With respect, I adopt the conclusion arrived at by DP Humphries. While dismissal of a review application might exhaust the Tribunal’s powers with respect to the application, it does not necessarily exhaust the Tribunal’s powers with respect to the decision the subject of the application. This is in a context where, as here, dismissal is expressed to occur “without proceeding to review” the relevant decision.[36]
[36] See s 42A(5) of the Administrative Appeals Tribunal Act 1975.
The third preliminary issue concerns the scope of the review sought by the applicant. As already mentioned, it is a review of the SSCSD’s decision to refuse to grant an extension of time.
I do not treat this as a reinstatement application.[37] There are cases in which the relevant application has been treated as both an extension of time application and an application to reinstate an earlier, dismissed, application. In those cases, however, the applicant concerned had either expressly or implicitly sought reinstatement of the earlier, dismissed application.[38] Here, the applicant had not acknowledged that he had already made an application, let alone seek its reinstatement.[39]
[37] Application to reinstate a proceeding which has been dismissed might be made under s 42A(10) of the Administrative Appeals Tribunal Act 1975.
[38] In Sharma and Secretary, Department of Social Services (Social services second review) [2020] AATA 3443, in making an extension of time application, the relevant applicant expressly sought to “reopen” her original application. In those circumstances, the respondent (and the Tribunal) took the application to be for reinstatement as well as for an extension of time. In Bell and Deputy Commissioner of Taxation [2001] AATA 598, the applicant expressly sought reinstatement as an alternative to the grant of an extension of time.
[39] In the applicant’s statement of 21 April 2022, he states that “I recall contacting SACS shortly after being diagnosed [November 2016] to notify them of my illness soon after receiving the objection decision. I was informed the process had been finalised and my only option was to appeal to the AAT. I was not able to make an application at that time as I had to prioritise dealing with my diagnosis and ill-health.”
I note, however, that, were this proceeding to have been or included a reinstatement application, I would likely have refused it. Reinstatement may occur where an application has been dismissed in error. No material before me suggests that error attended dismissal of the applicant’s application in February 2017.
The last preliminary issue I wish to address simply involves mentioning that I have not considered in detail the issue of whether, should an extension of time now be granted, the resultant proceeding to review the 12 October 2016 decision would be one liable to dismissal as an abuse of process.[40] I note, however, that while an abuse of process might be considered to arise when issues previously decided by the Tribunal are relitigated,[41] the proceeding contemplated by the applicant would not entail re-litigation. The 2016 proceeding was dismissed without conducting a review of the 12 October 2016 decision.[42]
[40] See s 42B of the Tribunal’s constituent legislation and SM Kirk’s discussion of s 42B in Whitlock and Comcare (Compensation) [2019] AATA 1911, noting that, prior to amendments to s 42B made in 2015, the power to dismiss was limited to an application that the Tribunal was satisfied was frivolous or vexatious [(at [43]).
[41] Contrary to the admonition in Quinn v Australian Postal Corporation (1992) 15 AAR 519 at 526, this is subject to exceptions, such as where there is fresh evidence: Matusko and Australian Postal Corporation [1995] AATA 14 at [33]; Commonwealth v Snell [2019] FCAFC 57 at [76]. Re-litigation is not the only circumstance in which an abuse of process might arise, however, noting that “…it is to be kept in mind that the categories of cases which fit that description are not closed and cannot be exhaustively defined.” Commonwealth v Snell [2019] FCAFC 57 at [78]. For instance, an abuse of process might arise when there are multiple proceedings “…likely to cause improper vexation or oppression.” See Jeffrey & Katauskas Pty Ltd v SST Consulting Pty Ltd (2009) 239 CLR 75 at [47].
[42] Hence, the proceeding which the applicant wishes to pursue is distinguishable from that considered by Member West in Hutchinson and Comcare (Compensation) [2022] AATA 1661. See also Perry J in Novosel v Comcare [2017] FCA 722 at [106] where her Honour stated that “…even in cases where re-litigation of an issue may not be barred by res judicata or an issue estoppel, nonetheless the institution or continued pursuit of proceedings may constitute an abuse of process.” See also Kennedy and Comcare [2018] AATA 4171 at [63].
I turn now to consider the applicant’s extension of time application by reference to certain principles and criteria.
PRINCIPLES AND CRITERIA CONSIDERED
While, as mentioned earlier, the provisions of the Tribunal’s legislation applicable to the grant of an extension of time do not apply in the circumstances, principles and criteria usually considered in the context of those provisions are also considered in the context of extension of time applications under the provision relied upon by the applicant in this proceeding.[43] This is unsurprising. Indeed, it is usual for those principles and criteria to be considered in the context of extension of time applications, whether made in the context of the Tribunal’s constituent legislation[44] or more generally.[45]
[43] YJDX and Child Support Registrar (Child support second review) [2021] AATA 4295 at [38]. RLDY and Child Support Registrar (Child Support Second Review) [2020] AATA 688 at [11]-[14].
[44] Australian Appaloosa Association Ltd v Australian Securities and Investments Commission [2018] AATA 3173 at [27]; Antonious v Comcare [2018] AATA 3968 at [10]-[11]; Saad v Secretary, Department of Social Services [2019] AATA 31 at [12]. See also Zizza v Commissioner of Taxation [1999] FCA 848 at [17].
[45] Hunter Valley Developments Pty Ltd v Minister for Home Affairs and Environment (1984) 48 ALR 305 at [349]-[350]; MZZFQ v Minister for Immigration and Border Protection [2016] FCA 1133 at [10]; SZTRY v Minister for Immigration and Border Protection [2015] FCAFC 86 at [6]; BVG17 v BVH17 [2019] FCAFC 17 at [34].
I note first the starting position when applying those principles and criteria. It is that it is not open to the Tribunal to simply ignore the fact that the legislature has prescribed a limited time within which to make review applications of the type sought to be pursued by the applicant.[46] Indeed, it is “…a prima facie rule that the proceedings commenced outside the prescribed period will not be entertained.”[47]
[46] Hunter Valley Developments Pty Ltd v Minister for Home Affairs and Environment (1984) 48 ALR 305 at 310; Ralkon Agricultural Co Pty Ltd v Aboriginal Development Commission (1982) 43 ALR 535 at 530; Secretary, Department of Family and Community Services and Roberts [2003] AATA 269 at [10]; Budd and Secretary, Department of Education, Employment and Workplace Relations [2008] FCA 1540.
[47] Budd and Secretary, Department of Education, Employment and Workplace Relations [2008] FCA 1540 at [18] citing, and at [19] approving of, various principles articulated in Phillips v Australian Girls’ Choir Pty Ltd [2001] FMCA 109 at [10] which, in turn, was citing Lucic v Nolan (1982) 45 ALR 411 at 416.
It is, therefore, for the person seeking an extension “…to show that his or her case is a justifiable exception to the rule that the welfare of the State is best served by the limitation period in question. Accordingly, when an applicant seeks an extension of time to commence an action after a limitation period has expired, he or she has the positive burden of demonstrating that the justice of the case requires that extension.”[48] Hence, “…an extension should not be granted unless the court is satisfied that it is proper to do so. The prescribed period is not to be ignored.”[49]
[48] Brisbane South Regional Health Authority and Taylor (1996) 139 ALR 1 at 10 per McHugh J, recognising, however, that there is no onus or burden of proof in the context of Tribunal proceedings, albeit that circumstances can dictate that a party effectively has a burden of persuasion.
[49] Downing v Minister for Immigration and Border Protection [2019] FCA 1684 at [5].See also BVG17 v BVH17 [2019] FCAFC 17 at [134].
Second, while certainly not exhaustive,[50] the focus in these types of applications traditionally falls on several, particular, principles or criteria.[51]
[50] Zizza v Commissioner of Taxation [1999] FCA 848 at [17].
[51] See, for example, Downing v Minister for Immigration and Border Protection [2019] FCA 1684 at [5]; Singh v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 150 at [9]; Matson v Australian Information Commissioner (No 2) [2021] FCA 690 at [118].
In Twentyman,[52] it was said that the “…principles governing the exercise of the Court’s discretion to grant an extension of time are well established. The Court must have regard to factors such as the length of, and reasons for, the delay, any prejudice to the respondent, and the merits – or lack thereof – of the proposed grounds of appeal.”
[52] Twentyman v Secretary, Department of Social Services [2018] FCA 1892 at [64].
Similarly, in Wekerle,[53] it was said that relevant “…considerations in assessing whether an extension of time for the filing of an application should be granted include the length of the delay, any explanation for the delay, any prejudice to the respondent and whether the application for review would have any prospect of success if the extension were granted.”
[53] Wekerle v Department of Home Affairs [2020] FCA 1300 at [6].
I turn now to consider these principles and criteria in the context of this proceeding
Length of delay
Given the 28-day time frame for the making of an application for Tribunal review of the 12 October 2016 decision, in seeking review in August 2021 of that decision the applicant was roughly 4.75 years late.[54]
[54] The respondent has submitted that the delay is 4 years, 8 months and 27 days.
This is a very significant delay. In this regard, “…[i]t is a matter of common sense that the longer the delay the more difficult it will be for an applicant to persuade any tribunal that an extension of time should be granted.”[55]
[55] Makarov v Minister for Home Affairs [2020] FCA 734 [36].
This delay occurred in a context where the applicant was well aware of the time frame within which a review application ought to be made. He was not only told about that time frame, he acted within that time frame to lodge a review application.
Explanation for Delay
Particularly in the context of such a significant delay, it is of importance (albeit not essential)[56] that there be an adequate explanation for it.[57] While the absence of such an explanation is not fatal to an extension application, it does weigh heavily against its grant.[58] An adequate explanation is normally to be expected.[59] In Singh, it was said that , “it is always necessary to examine what explanation, if any, is given for delay and the adequacy of that explanation.”[60]
[56] Comcare v A’Hearn (1993) 45 FCR 441.
[57] In Makarov v Minister for Home Affairs [2020] FCA 734 at [36], it was said to be “a matter of common sense that the longer the delay the better the explanation will need to be”.
[58] Social Security, Secretary, Department of Van Den Boogaart (1995) 37 ALD 619 at 261.
[59] Swanton and Military Rehabilitation and Compensation Commission [2017] FCA 1142 at [33]; Downing v Minister for Immigration and Border Protection [2019] FCA 1684 at [5].
[60] Singh v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 150 at [9].
As mentioned earlier, the applicant had managed to lodge with the Tribunal an application for review of the October 2016 decision within the requisite 28-day time frame (something which in his witness statement he said he had been unable to do). Hence, at the hearing, the applicant did not seek to explain any delay in making a timely application to the Tribunal; there had been no such delay. Rather, on the applicant’s behalf, the explanation effectively offered was of his failure to pursue the application he had made to the Tribunal in October 2016 and, once that was dismissed, his delay in subsequently re-engaging with the Tribunal until August 2021. That explanation was that the applicant’s medical conditions (and the treatment thereof), together with the impact of the COVID-19 pandemic, affected his capacity to do those things to such an extent as to make it reasonable to allow for the making now of an application to the Tribunal to review the October 2016 decision.
I am not satisfied that the applicant’s explanation for his failure to pursue the application he made in October 2016 and for his delay in subsequently re-engaging with the Tribunal until August 2021 is adequate.
As just indicated, it was contended that the applicant’s delay was, at least in part, explicable by reason of the COVID-19 pandemic. In his April 2022 statement, the applicant said that the pandemic declared in 2020 necessitated a “…focus on personal hygiene and conforming to public health orders while managing my illness due to immunocompromised status.”[61]
[61] I note that in a report of a consultant haematologist of 12 March 2021, the applicant was said to be very vigilant about adherence to recommended isolation and hygiene procedures: T1, p.15.
The pandemic was declared in early 2020. It can offer no explanation for the applicant’s delay in re-engaging with the Tribunal prior to its declaration and after the dismissal of the applicant’s initial Tribunal application in February 2017. Moreover, as was pointed out at the hearing, others have managed to lodge timely applications with the Tribunal during the course of the pandemic. Indeed, despite the pandemic, the applicant managed to lodge an application with the Tribunal in August 2021. In that context, on the material before me, I am not satisfied that the applicant’s focus on matters to do with the pandemic offers any explanation for his delay in re-engaging with the Tribunal.
In his witness statement, the applicant spoke of a number of medical conditions and their effects on him. Without seeking to be exhaustive, I note his statements to the effect that:
(a)In November 2016, he was diagnosed with multiple myeloma.
(b)In April 2017, he underwent stem cell transplant surgery.
(c)From August 2019 until August 2021, he underwent chemotherapy treatment, causing debilitating side effects such as nausea.
(d)In 2016, he experienced “depression, anxiety, fluctuating intense fevers, extreme fatigue, and pain and decreased mobility in shoulder throughout the entire year.”
(e)In each of the 2017 to 2021 years, he experienced “depression, anxiety, extreme fatigue and pain and decreased mobility in shoulder throughout the entire year.”
(f)These experiences resulted in a lack of ability to focus and concentrate.
In a June 2021 report, the person who I take to be (or to have been) the applicant’s general practitioner, Dr Nayak, stated that the applicant:
(a)Has a history of multiple myeloma (a condition diagnosed in November 2016) which is being managed with chemotherapy, causing nausea.
(b)Has a history of chronic left shoulder pain, for which he is seeing an osteopath.
(c)Mentions intermittent fluctuating anxiety and depression symptoms.
(d)Has a history of ongoing intermittent tiredness, fluctuating anxiety and depression symptoms.[62]
[62] T1, p.12.
Hence, there is material before me which corroborates the applicant’s claim to suffer from some of the conditions mentioned in his statement of April 2022. Apart from uncorroborated assertions made by him,[63] however, there is little in the material before me as to the extent of the effect of those conditions (and of the treatment thereof) on the applicant’s capacity to pursue his October 2016 application to the Tribunal or to re-engage with the Tribunal after the dismissal of that application in February 2017.
[63] See, for example, T1, pp.5-6; T4, pp.52-53; exhibit A1 (witness statement of April 2022).
The applicant’s evidence as to the extent of that effect spoke of consequences for him which would not naturally be assumed to occur as a result of the conditions from which he suffered. For instance, one might reasonably infer that the capacity of the applicant to concentrate and focus was, at times, impaired as a result of his various medical conditions. The applicant’s evidence was not of impairment, however. Instead, he spoke of lacking an ability or having an inability to concentrate and focus.[64] Absent corroboration, I do not accept evidence of that nature, especially where there is some material before me suggestive of the applicant not being incapacitated or impaired to an extent consistent with his evidence. In this regard, I note that:
(a)As indicated earlier, the applicant was able to manage some liaison and discussions with the respondent in the relevant period.
(b)The applicant’s general practitioner suggested that the applicant had a capacity for sedentary work.
(c)The applicant stated that applications for a disability support pension were rejected in the relevant period because it was not considered that he had a continuing inability to work.
[64] Exhibit A1 (witness statement of April 2022).
According to Dr Nayak, the applicant’s medical conditions and the side effects of his treatment for myeloma “…seems to have affected his capacity to work full time/heavy exertion But he can try suitable light/sedentary duties as tolerated, not involving excessive, repetitive use of left shoulder, heavy lifting…”.[65]
[65] T1, p.12.
In a March 2021 report, a consultant haematologist, Dr Bajel, stated that the applicant’s main issue was nausea and that he was taking medication to treat it.[66]
[66] T1, p.14.
Hence, together with Dr Nayak’s June 2021 report, the material before me suggests that the applicant suffered nausea (or some nausea) as a result of the chemotherapy treatment commenced in August 2019 (for which he was being treated), shoulder pain, fluctuating anxiety and depression symptoms and intermittent tiredness. In addition, that material suggests that the applicant’s capacity to work full time and engage in “heavy exertion” was impaired as a result of the conditions from which he suffers or suffered (and the treatment thereof).
The material before me, however, is not such as to satisfy me that the applicant’s medical conditions (and the treatment thereof) affected him to an extent which explains adequately his failure to pursue his October 2016 application to the Tribunal and, after dismissal of that application in February 2017, his delay in re-engaging with the Tribunal until August 2021.
In response to being asked where the extent of any incapacity suffered by the applicant was addressed in the material before the Tribunal, the applicant’s counsel submitted (in effect) that this was a matter which could be inferred.
As mentioned earlier, on the material before me, it might well be open to arrive at some findings, based on inference, such as a finding that the applicant’s capacity to concentrate and focus was at times impaired.
The finding I was being asked to make, however, was that the applicant had adequately explained his failure to pursue his October 2016 application to the Tribunal and his delay in re-engaging with the Tribunal until August 2021 based on an inference as to the extent to which he was incapacitated as a result of his medical conditions (and their treatment).
On the material before me, such a finding would not be a matter of inference. It would be mere conjecture. No reasonable and definite conclusion that the applicant was incapacitated in the period October 2016 to August 2021 to an extent consistent with the finding is available[67] or reasonably open[68] on the facts before me.
[67] Bristowe v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 690 at [20].
[68] Kumar v Minister for Immigration and Border Protection [2020] FCAFC 16 at [124].
Put simply, while the applicant’s capacity to make a timely application to the Tribunal for review of the 12 October 2016 decision may have been (and probably was) impaired as a result of his various medical conditions (and their treatment), it is not open to me to infer that the extent of that impairment was such as to explain adequately a 4.75 year delay.
The applicant cites SM Poljak’s decision in Babbington[69] in support of a submission that the impacts of chemotherapy can of themselves constitute an adequate explanation for delay.
[69] Babbington and Comcare (Compensation) [2017] AATA 2421.
In that case, evidence from the applicant was accepted to the effect that “…the treatment was aggressive and debilitating and …[the applicant] was not able to consider his options for reviewing the decision until he had sufficiently recovered.”[70]
[70] Ibid at [7].
Babbington is relevantly distinguishable. Compared to the 4.75 years of delay in this matter, the delay in that case was relatively minor (105 days). Moreover, in that case, the chemotherapy treatment was being administered at the time of the decision under review, not, as here, almost three years after that decision.
Also cited by the applicant is Member Reitano’s decision in Cassaniti.[71] In that case the explanation for delay was that the applicant “…had to care for her children and her sick father as well as her involvement in other litigation.”[72] While that explanation for delay was found to be acceptable, at the same time it was said to be “…difficult to make a value judgment about the ‘acceptability’ of the reason for the delay other than to say this is not a case where the explanation is so compelling as to of itself warrant an extension or so non-compelling as to be dismissive about it.”[73]
[71] Cassaniti and Commissioner of Taxation (Taxation) [2020] AATA 3447.
[72] Ibid at [22].
[73] Ibid at [26].
Again, Cassaniti is relevantly distinguishable. There, a compound explanation for delay was proffered elements of which do not apply in this proceeding. Moreover, an inference concerning the extent to which a person’s capacity to make a timely application to the Tribunal is affected might more readily be made when delay is attributed to having to care for a terminally ill father (who subsequently died) than where delay is attributed to various medical conditions and certain treatment.
I am not satisfied that the applicant was incapacitated to an extent such as to explain adequately his failure to pursue his October 2016 application or his delay in re-engaging with the Tribunal until August 2021. Instead, after lodging a review application with respect to the 12 October 2016 decision in October 2016, the applicant would appear to have sat on his rights. This weighs against the Tribunal granting the indulgence which he now seeks.[74]
[74] Custodial Limited and Australian Securities and Investments Commission (2005) 88 ALD 510. See also Windram and Secretary, Department of Social Services (Social services second review) [2017] AATA 804 at [30].
Prejudice in Granting Extension
As I see it, while there would be no specific prejudice to the respondent were the applicant’s extension application granted,[75] I infer that the other party would suffer specific prejudice. Moreover, there would be general prejudice to the public interest.
[75] The absence of prejudice to the respondent, indeed the absence of any prejudice, “does not warrant an order for extension of time”: Matson v Australian Information Commissioner (No 2) [2021] FCA 690 [127]. See also Lesianawai v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 896 [17].
As for specific prejudice, while it might normally be the case that a party who claims to be prejudiced should adduce evidence showing its nature and extent,[76] to some extent prejudice might be inferred from the mere passage of time. Such prejudice does not require evidence “…beyond the inferences flowing from the passage of time and the common knowledge that memory may fade with time and that making inquiries to test facts which are asserted may become increasingly difficult over time…”.[77]
[76] Zizza v Commissioner of Taxation [1999] FCA 37.
[77] Frugtniet v Secretary, Department of Social Services [2017] FCA 1227 at [18].
Here, given the very significant passage of time involved, I infer that the other party would be prejudiced by the delay in the applicant seeking review of the 12 October 2016 decision. That decision allowed an objection made to a determination of 14 July 2016 which changed an assessment applicable from March 2016. A review of that decision would require, amongst other things, consideration of whether or not to change that assessment.[78] Information as to income and expenditure in 2016 would be of relevance to that review. Given the lapse of time, the Tribunal infers that the other party would have some difficulty in recalling, gathering and, potentially, challenging such information.
[78] T48, p.205.
The applicant contends that any “…prejudice to the other parent is less than the prejudice incumbent on myself caused by contending with an imposing debt that is continuing to accrue with no end in sight while I am struggling to manage my illness and other affairs on a small government benefit.”[79] That contention mistakes the nature of the prejudice to which regard is being had. Assuming the applicant is allowed to pursue his underlying application, it is, in essence, prejudice to the ability to participate effectively in the consequent proceeding which a party would be caused to suffer by reason of the delay in lodging the application. The “imposing debt” to which the applicant refers is not a prejudice of that nature. It is not one he has been caused to suffer by the applicant’s delay in lodging his review application. Rather, insofar as it is a prejudice suffered by the applicant, it arises by reason of the 12 October 2016 decision coupled with the applicant’s inaction. As I see it, prejudice which a party suffers by reason of the party’s own inaction is not prejudice which the party has been caused to suffer. Nor is it a prejudice caused by reason of the delay in lodgement of a review application affecting the applicant’s capacity to participate in the underlying proceeding. Similarly, any difficulties the applicant has had to confront by reason of his illness and lack of income are not prejudice he has been caused to suffer by reason of delay in lodgement of his review application.
[79] T1, p.11.
As for general prejudice, the public has an interest “…in the finality of litigation, and in resolving litigation in a timely fashion,”[80] as well as an interest in the prevention of “…disruption to established practices.”[81] That there are these interests is consistent with a public expectation that there be a degree of certainty of time limits.[82]
[80] SZTOR v Minister for Immigration & Border Protection [2019] FCA 349 at [6] but cf Matson v Australian Information Commissioner (No 2) [2021] FCA 690 at [127].
[81] Mason and John Holland Pty Ltd (Compensation) [2018] AATA 415 at [31]; See also Hutchinson and Comcare (Compensation) [2018] AATA 4600 at [28].
[82] See Newell and Secretary, Department of Social Services (Social Services Second Review) [2021] AATA 1102 at [29].
Neither of those interests or that expectation would be served by granting the applicant’s extension application.
Merits of Underlying Application
As a general proposition, it “will seldom be in the interests of the administration of justice to grant an extension of time where the proposed application has little or no prospects of success.”[83]
[83] DKX17 v Federal Circuit Court of Australia [2019] FCAFC 10 at [57]. See also Wekerle v Department of Home Affairs [2020] FCA 1300 at [7]. In Wekerle v Department of Home Affairs [2020] FCA 1300 at [7] it was said that if “…it appears… that the proposed review application has no realistic prospect of success, it would not ordinarily be in the interests of justice to grant an extension of time.”
A consideration of an applicant’s prospects of success does not require, and nor would it be appropriate to undertake, an in-depth assessment of the applicant’s claims. Rather, the “…applicant's proposed grounds should be considered on their face and examined at a 'reasonably impressionistic level'”.[84]
[84] Wekerle v Department of Home Affairs [2020] FCA 1300 at [7]. See also Lesianawai v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 896 at [20]: “It is necessary for the Court to consider the merits of Mr Lesianawai’s proposed grounds only on an impressionistic basis for the purposes of determining whether an extension of time ought to be granted: MZABP v Minister for Immigration and Border Protection [2015] FCA 1391; (2015) 242 FCR 585 (at [58]-[63]), approved by the Full Court in MZABP v Minster for Immigration and Border Protection [2016] FCAFC 110; (2016) 152 ALD 478 (at [38]).”
Here, assessed at an impressionistic level, I do not find that the applicant’s underlying review application would have little or no prospects of success. As to whether the applicant has a strong case,[85] however, much would depend on findings made in relation to issues about which I am in no position to do more than guess. While I consider it unlikely that he would continue to be attributed with, what was, in 2016, an average income (especially after August 2019 when his chemotherapy treatment commenced for a condition only diagnosed after the 12 October 2016 decision[86] and noting the June 2021 opinion of Dr Nayak as to the applicant’s work capacity), the income that would be attributed to him over the 2016 to 2020 period would, at least in part, be a function of whether he is considered to have undertaken paid work in the period, something he denies but which the other party disputes.[87]
[85] SZUTY v Minister for Immigration and Border Protection (No 2) [2016] FCA 289 at [53] per Katzmann J: “… a strong case will weigh heavily in the applicant's favour”.
[86] Noting the nausea that he is said to have suffered from that treatment and the applicant’s comment that chemotherapy “had a particularly significant impact on my life.”: T1, p.6.
[87] I note that the decision on 12 October 2016 involved a rejection of the applicant’s evidence that government benefits were his only source of income, given that the income he declared fell short of his expenses: T61, p.234.
CONCLUSION
The applicant submits that, in the circumstances, it would be reasonable to grant his extension of time application.
I do not accept that submission. The delay in seeking review was very significant, there was not an adequate explanation for it, there would be some prejudice to the public interest and to the other party were the extension application granted and I have not found the merits of the applicant’s claim (assessed at an impressionistic level) to be so strong as to weigh significantly in his favour.
In these circumstances, the applicant’s extension of time application is refused.
Hence, the Tribunal affirms the decision under review.
I certify that the preceding 86 (eighty-six) paragraphs are a true copy of the reasons for the decision of Senior Member C. J. Furnell.
.................[SGD].......................................................
Associate
Dated: 2 August 2022
Date of hearing: 6 July 2022 Counsel for the Applicant: Val Stoilkovska Solicitors for the Applicant: Victoria Legal Aid Advocate for the Respondent: Bellona Dzang Solicitors for the Respondent: Legal Services Division, Services Australia Other Party: Self-represented
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