PBGZ and Secretary, Department of Social Services (Practice and procedure)

[2025] ARTA 1867

PBGZ and Secretary, Department of Social Services (Practice and procedure) [2025] ARTA 1867 (24 September 2025)

Applicant:PBGZ

Respondent:  Secretary, Department of Social Services

Tribunal Number:                2025/3855

Tribunal:Senior Member J Walsh (second review)

Place:Brisbane

Date:24 September 2025

Decision:The Tribunal refuses the application for an extension of time and, accordingly, dismisses this application for review under section 97 of the Administrative Review Tribunal Act 2024.

Statement made on 24 September 2025 at 12:46pm

Names used in all published decisions 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 201(1A)–201(1B) of the Social Security (Administration) Act 1999

Catchwords: SOCIAL SECURITY – late application for AAT second review – practice and procedure – consideration of deeming provisions relating to notice of Tribunal’s first review decision – finding extension of time required – finding Applicant’s complaints about Centrelink requirements to receive newstart allowance, which was later subject to compensation recovery, unlikely to be taken into account – finding little substantive merit – extension of time refused.

Legislation:

Administrative Review Tribunal Act 2024, ss 19(2) and 97
Social Security Act 1991, s 1184K
Acts Interpretation Act 1901, s 29(1)
Evidence Act 1995, s 160

Secondary Materials:

Administrative Review Tribunal Rules 2024, s 5(3)

Statement of Reasons

1. The Applicant seeks review of a decision, affirmed by the Tribunal on first review, that compensation charges amounting to almost $55,000 in total for periods between 19 September 2017 and 12 April 2021 were properly recovered. The Tribunal’s first review decision was dated 24 February 2025. The material before me shows that a notice of this decision and written reasons were sent by post to the Applicant on the same day, 24 February 2025. The notice was correctly addressed.

2. The Applicant’s second review application was received by the Tribunal on 23 May 2025. It had been sent by post. The Applicant stated in his application that he still had not received notice of the Tribunal’s first review decision. He also completed an extension of time application. In answer to the question to which date he sought an extension of time, he indicated “I don’t understand”.

3. I commenced a telephone hearing on the extension of time issue on 9 September 2025. The Applicant stated he still had not received the first review decision. After checking, he confirmed receipt of the Respondent Secretary’s written outline of submissions, opposing the grant of an extension of time. Material attached to this document included a copy of the first review decision. I decided to allow time for the Applicant to read the reasons for decision and the Secretary’s written submissions. The hearing resumed on 10 September 2025.

Is an extension of time required?

1. The Applicant’s position as to receipt of notice of the Tribunal’s first review decision is straightforward; he had not received anything by the time of his second review application being made. At the earliest, he received the decision and reasons only shortly before 9 September 2025 when he received the Secretary’s material in the post. If I acted on this basis, an extension of time is not required.

2. However, there are provisions which deem service of documents in this context which I must consider. Here, subsection 29(1) of the Acts Interpretation Act 1901 operates to deem service of the notice of the first review decision to have been effected (given) at the time of delivery in the ordinary course of the post. To rebut this presumption, evidence disproving delivery is required: evidence of non-receipt is not sufficient to prove non-delivery. In the absence of any evidence of non-delivery by the postal service, I proceed on the basis the Applicant was given notice of the first review decision. I adopt the presumption in section 160 of the Evidence Act 1995 that the notice was received on the seventh working day after it was posted to the Applicant’s address. On this basis, the Applicant is taken to have received notice of the first review decision on 5 March 2025. He thereafter had 28 days, until 2 April 2025, to apply for second review within time: see subsection 5(3) of the Administrative Review Tribunal Rules 2024.

3. It follows I am satisfied that the second review application received on 23 May 2025 was some seven weeks and two days out of time. The Applicant needs the grant of an extension of time before his case can be considered by the Tribunal. I have to consider whether it is reasonable to extend time in all the circumstances of this case: see subsection 19(2) of the Administrative Review Tribunal Act 2024 (ART Act).

Consideration of the merits of the Applicant’s case

1. The Applicant suffered workplace injuries from an accident in September 2017; he was already receiving social security payments at this time. In due course, he was paid arrears of weekly compensation payments at different times. He subsequently settled a compensation claim in the total sum of $225,000.

2. Since the Applicant was receiving newstart allowance when he was injured, Centrelink correctly assessed his arrears of weekly compensation as income and determined total charge amounts of almost $20,000 due to the arrears of weekly compensation the Applicant was entitled to. Centrelink subsequently assessed a compensation preclusion period from 15 October 2019 to 25 October 2021 resulting from the $225,000 lump sum settlement and determined that almost $38,000 paid in newstart allowance and jobseeker payment in this period was also recoverable as a charge. I detect no error in this respect.

3. An authorised review officer found there had been double-counting of an amount of $2,807.91 and reduced the recoverable amount accordingly. There is no evidence of any other error in the calculations of the charge amounts.

4. The Tribunal’s first review decision affirmed the decisions as to the charge amounts claimed by Centrelink. I note all charge amounts were recovered from the compensation insurer; there is no amount outstanding.

5. The Applicant’s main contentions in bringing this application can be summarised as follows:

   ·     There was no agreement for the monies to be repaid. In this respect, the compensation recovery provisions in the Social Security Act 1991 (Act) do not require the Applicant’s agreement. They operate on the premise that a person should not be paid compensation for a period and also expect to be paid from taxpayer funds for the same period. I am satisfied there is no substance in this contention.

   ·     He met the Centrelink requirements to be paid newstart allowance which involved considerable time and expense. He had to obtain and provide medical certificates, attend appointments and comply with their directions. Here, I accept the Applicant had to spend time and money to meet Centrelink’s requirements, as do many who receive social security payments. It is clear he considered the Centrelink requirements to be inappropriate, given the extent of his injuries and their impact. However, none of this changes the fundamental position that once he received arrears of compensation and then the lump sum settlement, his newstart allowance and jobseeker payments were subject to the compensation recovery provisions in the Act. Again, I find the Applicant’s case in this context is without substance.

6. At the hearing, the Applicant’s real complaint concerned Centrelink having required him to meet the activity test when he was significantly injured and disabled. I can understand this position. He wants to be compensated for the time and expense involved. It seems to me there is very little prospect this aspect can be meaningfully taken into account on this application. I do not consider an exercise of discretion under section 1184K of the Act, to treat some or all of the compensation payments as having not been made, is an available remedy in the circumstances. The Applicant’s complaint about Centrelink’s service and treatment of him is a matter he may be able to pursue elsewhere.

Conclusion

1. Had I considered the Applicant had any realistic prospect of some success in his case, I would have been inclined to grant him the necessary extension of time in the circumstances. However, I do not consider his case has any reasonable prospects of success.

2. In those circumstances, I consider there is no utility in granting an extension of time. I find it is not reasonable to do so. Accordingly, I refuse to grant an extension of time and I dismiss this application under section 97 of the ART Act.