PAUL BERESFORD and AUSTRALIAN DEFENCE FORCE RESERVES EMPLOYER SUPPORT PAYMENT SCHEME
[2009] AATA 310
•5 May 2009
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2009] AATA 310
ADMINISTRATIVE APPEALS TRIBUNAL )
) No 2009/1288
GENERAL ADMINISTRATIVE DIVISION ) Re PAUL BERESFORD Applicant
And
AUSTRALIAN DEFENCE FORCE RESERVES EMPLOYER SUPPORT PAYMENT SCHEME
Respondent
DECISION
Tribunal Mr S. Webb, Member Date5 May 2009
PlaceCanberra
Decision For the reasons stated orally at the conclusion of the hearing, Mr Beresford’s application for an extension of time is refused. .
........[Signed].........................
Mr S. Webb, Member
CATCHWORDS
Practice and procedure - extension of time - ADF Reserves Employer Support Payment Scheme - delays in decision making process - application for review out of time - ignorance and other circumstances do not justify the grant of an extension of time - extension of time refused
Defence Act 1903 s 58B
Administrative Appeals Tribunal Act 1975 s29, 43
Defence (Employer Support Payments) Determination 2005, s 3C.
Hunter Valley Development Pty Limited v Cohen (1984) 3 FCR 344.
Comcare v A’Hearn (1993) 45 FCR 441.
Budd v Secretary, Department of Education, Employment & Workplace Relations [2008] FCA 1540.
Re Mulheron and Australian Telecommunications Corporation (1991) 23 ALD 309.Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541.
Kuljic v Secretary, Department of Social Security (1994) 33 ALD 121.
Riverside Nursing Care Pty Ltd v Secretary, Department of Health and Aged Care [2003] FCA 1065.REASONS FOR DECISION
5 May 2009 Mr S. Webb, Member 1. At the conclusion of the hearing of the above matter the terms of the decision and the reasons for it were stated orally. Pursuant to sub‑section 43(2A) of the Administrative Appeals Tribunal Act 1975 Mr Beresford requested a written statement of the decision and reasons.
2. Mr Beresford is a member of the Australian Defence Force Reserves. In 2006 he was employed as a youth mentor by Life Without Barriers (ACN 101252171) on a part time basis. Prior to commencing a period of continuous military service in October 2006, Mr Beresford agreed to change the basis of his employment with his employer, becoming a contracted sole trader rather than an employee. He applied for employer support payments as a sole trader under the ADF Reserves Employer Support Payment Scheme. His application was refused by primary determination and on reconsideration. Unhappy with this result, Mr Beresford has brought the matter forward for review. Before doing so, however, a period of many months elapsed, placing his application well outside the statutory period of 28 days.
3. Thus, before Mr Beresford’s substantive application can be dealt with it is first necessary to determine whether it is reasonable in all of the circumstances to grant him an extension of time in which to make the substantive application.
4. Mr Beresford asserts that he should be granted the extension of time because he was not properly informed about the Employer Support Payment Scheme in 2006. He says that he was not provided with sufficient information to make a properly informed decision concerning his employment arrangements prior to commencing a period of continuous reserve service from October 2006 to February 2007. Furthermore, Mr Beresford maintains that it would be unfair to deny him the right to make the substantive application because the Commonwealth took 18 months to decide his application and his delay in bringing the application is less than one year. Finally, in Mr Beresford’s submission, he should be provided with an opportunity to be heard on the substantive questions raised by his substantive application as there is a substantial amount of money involved and the adverse decisions are unfair and are not consistent with information he was provided at the time.
5. As will appear I do not agree.
6. The statutory period in which an application is to be made is 28 days.[1] This period is not modified by the Defence Act 1903, or by the Defence (Employer Support Payments) Determination 2005 made pursuant to s58B of that Act. An extension of time in which to make an application may be granted pursuant to subs 29(7) of the Administrative Appeals Tribunal Act 1975.
[1] Administrative Appeals Tribunal Act 1975 s 29(2).
7. Principles concerning the exercise of the discretion to extend time have been discussed in the oft cited cases of Hunter Valley Developments Pty Ltd v Cohen[2], Comcare v A’Hearn,[3] and more recently in Budd v Secretary, Department of Education, Employment and Workplace Relations.[4] In Budd’s case, Cowdroy J set out the principles to be considered when deciding whether to grant an extension of time in which to make an application for review:[5]
“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.
2. It is a prima facie rule that the proceedings commenced outside the prescribed period will not be entertained. 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.
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.
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.
5. The mere absence of prejudice is not enough to justify the grant of an extension.
6. The merits of the substantial application are properly to be taken into account in considering whether an extension of time should be granted.
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.” (Citations removed)
[2] (1984) 3 FCR 344.
[3] (1993) 45 FCR 441.
[4] [2008] FCA 1540.
[5] [2008] FCA 1540 at [18].
8. It is plain enough from the cases that such principles should not be applied rigidly. Consideration must be given to the legislative context. What is required is the careful consideration of all relevant factors, weighing the related evidence, to determine whether it is fair and equitable in the particular circumstances to grant an extension of time. In that consideration prescribed limitation periods must be taken into account as the general rule, with any extension of time being an exception to the general rule.[6]
[6] Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541.
explanation for delay
9. I am reasonably satisfied that Mr Beresford was provided with information about his right to apply for review of Mr Stedman’s reconsideration decision[7] affirming the primary determination[8] to reject his claim for employer support payments.[9] It is plain enough that Mr Stedman informed Mr Beresford that such an application “must be made within 28 days of your notification of this decision”.[10] Mr Beresford informed me that he recalled receiving notification within approximately one week of the date of Mr Stedman’s decision: 14 April 2008. I accept that he did and so find. I am satisfied that Mr Beresford was properly notified that he could apply to the Administrative Appeals Tribunal for review and that a 28 day time limit applied.
[7] Extension of Time document 14.
[8] Extension of Time document 10.
[9] Extension of Time document 5.
[10] Extension of Time document 14, folio 45.
10. Nevertheless, Mr Beresford’s explanation for the delay in lodging an application for review of Mr Stedman’s decision is, essentially, that he was ignorant about the review process and related time limits. Plainly enough that explanation must be viewed in relation to the information that he was provided by Mr Stedman. Mr Beresford’s evidence is that he may not have read the entire document and even if he did, he put it to one side and did not consider the matter further at that point, believing Mr Stedman’s decision to be final. I do not accept Mr Beresford’s submission that he was not properly informed about his right to apply for review of the decision, nor do I accept that he was informed that Mr Stedman’s decision would be final with no further right of review.
action taken
11. Mr Beresford informed me that on receiving Mr Stedman’s decision he did not inform anyone in the ADF Reserves Employer Support Payment Scheme section that he was unhappy with the decision or that he harboured any intention to challenge it; nor did he retain a copy of the decision. That situation remained unaltered until February 2009. On Mr Beresford’s evidence, the matter arose in discussions with his father concerning media reports about ADF Reserve service. Mr Beresford gave evidence that following such discussions, he obtained another copy of Mr Stedman’s decision from the Employer Payment Support Scheme section.[11] With this in hand he decided to lodge an application for review of Mr Stedman’s decision, and did so on 27 March 2009.
[11] See also Extension of Time document 15.
12. Mr Beresford asserts that he did not properly comprehend his appeal rights concerning Mr Stedman’s decision or the prescribed time limits attaching to those rights. If that is correct it is as a result of his own inattention or inaction, effectively resting on his rights at the time. Purported ignorance in such circumstances cannot simply be aligned with unfairness and it is not a compelling reason to extend the prescribed time in which an application can be made.
prejudice
13. I was informed, correctly in my opinion, that there is no significant prejudice against the Commonwealth as a result of the delay. Nor is there prejudice to the public concerning the disruption of established practices. The mere absence of prejudice does not mean, however, that an extension of time must be granted.
merit
14. The issue raised by Mr Beresford’s purported substantive application is to be determined under the Defence (Employer Support Payments) Determination 2005.
15. It is to that Determination that one must turn in order to assess the prospective merits of his application. I note that it is not disputed that Mr Beresford was employed as a sole trader (ABN 65363988067) under contract to Life Without Barriers from 2 October 2006.[12] It is plain enough that he ceased to be an employee of Life Without Barriers on 2 October 2006 and that Life Without Barriers, therefore, was not entitled to claimed employer support payments in respect of Mr Beresford.
[12] Extension of Time document 8.
16. On 4 October 2006 Mr Beresford lodged an application for employer support payments as a sole trader.[13] The terms ‘contractor’, ‘employer’, ‘employment’, ‘legitimate business’ and ‘self-employed member’ are defined at section 3 of the Determination. I note that ‘employment’ is defined to exclude work as an independent contractor. In order to succeed in his claim Mr Beresford must be able to establish either that his business was the principal source of his income for a continuous period of six months, or that his business was the principal source of his employment during such a period.
[13] Extension of Time document 5.
17. It is difficult to see how Mr Beresford could satisfy either test as his sole trader business commenced on 2 October 2006. Even if evidence is adduced that Mr Beresford was given incorrect information about the employer support payment scheme, and I note that Mr Beresford was apparently given information that was out of date,[14] it would not assist his case. There is no discretion conferred upon a decision-maker that permits a favourable determination, in the case of manifest unfairness for example, if all of the preconditioning factors for entitlement are not properly established. Subsections 3C(6) and (8) of the Determination are directive and the limited discretion conferred by subsection 3C(6) is essentially preconditioned by the requirement that the subject business has provided the member’s principal source of employment for a continuous period of at least six months. Mr Beresford’s submission that he remained an employee of Life Without Barriers at all material times is not consistent with the material evidence. Thus, as it appears to me on the present evidence, permitting Mr Beresford’s substantive application to proceed would be an exercise in futility;[15] although it must be said that if the matter proceeds it may turn on evidence that is not before me. The evidence that is before me indicates the likely futility of Mr Beresford’s application and it does not suggest that the decision in question was improperly made or infected with legal error.[16]
[14] See Exhibit 1.
[15] See Kuljic v Secretary, Department of Social Security (1994) 33 ALD 121 at 122.
[16] Riverside Nursing Care Pty Ltd v Secretary, Department of Health and Aged Care [2003] FCA 1065 at [20].
fairness to others
18. No issues of fairness were raised in relation to other persons who may be in a similar position to Mr Beresford. Plainly enough, it would be unfair to permit Mr Beresford to proceed with his application out of time and without a compelling reason to do so, and there is none, if other persons in a similar position adhered to the prescribed time limit without pursuing an application that was out of time.
conclusion
19. Carefully considering Mr Beresford’s evidence and the submissions that have been made, I am reasonably satisfied that there are no reasonable grounds to extend the time for Mr Beresford to make an application for review of Mr Stedman’s decision. There is neither compelling evidence nor sufficient merit in the matter he seeks to agitate to justify such a decision. The prescribed time limit cannot simply be ignored or bypassed and rendered insignificant in the overall scheme for merits review of administrative decisions by this tribunal. It is an important aspect of the statutory scheme for merits review of Commonwealth decisions that enables an orderly approach, and Mr Beresford’s circumstances do not support its extension.
20. The Tribunal does not exercise power at large and is bound to apply the Determination in its terms. Absent relevant discretion, further consideration of the matters raised by Mr Beresford in his submissions is most unlikely to lead to the result for which he contends.
21. If as Mr Beresford asserts he was given information that was deficient or incorrect, or he was treated unfairly, there may be other avenues open to him to seek redress of those matters. I note, however, on the present evidence it appears to me that Mr Beresford’s circumstances are the product of his own making. He agreed to change his employment status with his previous employer; he attempted to obtain relevant information from the ADF Reserves administration, but he did not press for clarification of matters that were unclear to him; he declined to pursue his rights of review and, apparently, he failed to read the entire content of the decision he now seeks to challenge; and, finally, he did not seek independent advice or professional assistance concerning any of the matters presently in view. It appears that Mr Beresford relied upon his previous experience of the employer support payments scheme in 2001 or 2002 when deciding to change his employment status. Unfortunately for him, relevant aspects of the scheme changed in 2003, when the Determination was amended to provide a six month waiting period for self-employed claimants. If Mr Beresford had obtained or been provided with that information in September 2006 he may not have agreed to change his employment status. Absent discretion to address such circumstances, however, that contention does not assist his case.
22. Having considered all of the circumstances, Mr Bereford’s application for an extension of time in which to lodge an application for review of Mr Stedman’s reconsideration decision is refused.
I certify that the 22 preceding paragraphs are a true copy of the reasons for the decision herein of Mr S Webb, Member.
Signed: .....[Signed]................................................
Demelza-Rose Gale
AssociateDate of Hearing 4 May 2009
Date of Decision 5 May 2009
Representative for the Applicant: Unrepresented
Solicitor for the Respondent: Mr A. Reilly
DLA Phillips Fox
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