Pigram and Secretary, Department of Social Services (Social services second review)

[2016] AATA 982

Pigram and Secretary, Department of Social Services (Social services second review) [2016] AATA 982 (25 October 2016)

Division	GENERAL DIVISION
File Number	2016/4290
Re	Petronella Pigram
APPLICANT
And	Secretary, Department of Social Services
RESPONDENT

DECISION

Tribunal	Senior Member R W Dunne
Date	25 October 2016
Date of written reasons	1 December 2016
Place	Adelaide

The application by Ms Pigram to extend the time in which she may apply to this Tribunal to review the decision of the Social Security Appeals Tribunal made on 20 February 2014, is refused.

............[Sgd]........................................

Senior Member R W Dunne

CATCHWORDS

PRACTICE AND PROCEDURE – application for extension of time to lodge application for review – whether application for extension of time properly made – whether application for review of a decision properly made – whether reasonable in all the circumstances to grant extension – whether reasonable explanation for delay – whether reasonable prospects of success on the substantive application – application refused.

LEGISLATION

Administrative Appeals Tribunal Act 1975 (Cth), s 29(2), s 29(7)

Social Security (Administration) Act 1999 (Cth), s 142

CASES

Hunter Valley Developments Pty Ltd v Minister for Home Affairs and Environment (1984) 58 ALR 305; (1984) 3 FCR 344

Comcare v A’Hearn (1993) 45 FCR 441

Phillips v Australian Girls’ Choir Pty Ltd (2001) FMCA 109 

WRITTEN REASONS FOR ORAL DECISION – GIVEN 25 OCTOBER 2016

Senior Member R W Dunne

1 December 2016

On 1 July 2015, the Social Security Appeals Tribunal amalgamated with the Administrative Appeals Tribunal (“AAT”) and became the Social Services & Child Support Division of the AAT.  Under the transitional provisions in the Tribunals Amalgamation Act 2015 this application for review is taken to be an application for AAT second review.  This means that the Tribunal’s decision and reasons are formally a decision and reasons of the AAT second review.

INTRODUCTION

1. On 14 September 2016, Ms Pigram applied to this Tribunal (the “AAT”) for an extension of time for making an application for review of a decision.  In her application she indicated that the decision she wanted reviewed was a decision of an authorised review officer (“ARO”) of Centrelink made on 27 November 2013.

2. The ARO decision had been affirmed on further review by the Social Security Appeals Tribunal as it then was (“SSAT”) in a decision made on 20 February 2014. 

3. On 25 October 2016, I refused Ms Pigram’s application.  I gave reasons for my decision orally at the time.  Having considered my decision further, I believe there are now also jurisdictional reasons why Ms Pigram’s application should be refused.

4. I now provide written reasons for my decision.

   BACKGROUND

5. Historically, on 28 June 2012 Centrelink made a decision to raise and recover a debt against Ms Pigram for ABSTUDY.  She sought internal review and it was on 27 November 2013 that the ARO affirmed the decision. 

6. Ms Pigram sought further review by the SSAT which heard the matter on 10 February 2014.  At the hearing on 10 February 2014 it appears Ms Pigram believed the SSAT was reviewing the decision of the ARO who had affirmed what had been decided by Centrelink. 

7. On 20 February 2014, the SSAT published its decision on the matter heard on 10 February 2014.  In its decision the SSAT affirmed the ARO decision, which meant that Ms Pigram was unsuccessful.

8. On 16 August 2016, Ms Pigram applied to the Social Services & Child Support Division of the AAT for review of the ARO decision that had been made on 27 November 2013.  Given the content of the application, she has not effectively applied for review of the decision of the SSAT made on 20 February 2014.  Although Ms Pigram appears to have thought she was appealing the ARO decision, her appeal was actually heard by the SSAT.  It appears from the decision of the SSAT that she participated in the hearing herself by conference telephone.

9. Moreover, given the content of the application she made on 14 September 2016, Ms Pigram has not effectively applied for an extension of time for making an application for review of the decision of the SSAT.  This is why her application for review before the Social Services & Child Support Division of the AAT is framed as an application for review of the ARO decision.

   THE REQUIREMENTS OF THE ADMINISTRATIVE APPEALS TRIBUNAL ACT 1975 (CTH) AS TO THE TIME FOR MAKING AN APPLICATION FOR REVIEW OF A DECISION

10. In this matter, the time for making an application for review ended on “the twenty-eighth day after…the day on which a document setting out the terms of the decision [was] given to the applicant” (subsection 29(2)).

11. Subsection 29(7) provides:

    “The Tribunal may, upon application in writing by a person, extend the time for the making by that person of an application to the Tribunal for a review of a decision (including a decision made before the commencement of this section) if the Tribunal is satisfied that it is reasonable in all the circumstances to do so.”

12. It is submitted for Ms Pigram that, at the time of the ARO decision and the SSAT decision, she had not received any legal advice and was not legally represented.  Until she received legal advice in October 2016 regarding these decisions, she understood the review before the SSAT was the ARO review. 

13. However, it is not clear why, on 16 August 2016, Ms Pigram applied for review of the ARO decision to the Social Services & Child Support Division of the AAT. It is also not clear why, having regard to the provisions of s 142 of the Social Security (Administration) Act 1999 (“Administration Act”), her application was made to this Tribunal.

14. For Ms Pigram, it was submitted that the Tribunal should be guided by the principles as stated in Hunter Valley Developments Pty Ltd v Minister for Home Affairs and Environment [1], modified in Comcare v A’Hearn [2] in the context of s 29(7) and re-stated in Phillips v Australian Girls’ Choir Pty Ltd [3].

    [1] (1984) 58 ALR 305 at [310 - 311].

    [2] (1993) 45 FCR 441.

    [3] (2001) FMCA 109.

15. Applying these principles, the length of delay involved in a case is a relevant factor.  In relation to the SSAT hearing, in the ordinary course of the post Ms Pigram would have received the SSAT decision no later than 4 March 2014.  The 28 day deadline for lodging an appeal would have elapsed a month later.  The application for review was lodged on 16 August 2016, making it almost two and a half years out of time, but it related to the ARO decision and not the SSAT decision.  As such, the application was not effective and was not jurisdictionally correct.

16. In relation to the application for an extension of time, this was also out of time. The extension of time Ms Pigram was applying for related, not to the SSAT decision, but to the ARO decision. Applying s 142 of the Administration Act, if an application for an extension of time was required it should have been directed, if at all, to the Social Services & Child Support Division of the AAT. To be jurisdictionally correct, the application for an extension of time in relation to the SSAT decision should have been made to this Tribunal.

17. Considerable submissions were provided for Ms Pigram in relation to the merits of her substantive case.  However, when considering an application for an extension of time it is generally not appropriate to analyse the substantive merits of a case in deciding whether an extension of time is appropriate.  I am aware that it is not an error of law for a Tribunal to take the merits of an applicant’s case into account when considering whether to grant an extension of time, provided that the information before the Tribunal is complete.  It was possible for me to analyse the outline of submissions that was prepared for Ms Pigram.  Although extensive in themselves, it was necessary for me to review the principles that generally apply in considering an application for an extension of time. 

18. The cases that have been outlined for Ms Pigram that contain the principles that apply in considering whether she should be successful in her application are noted.  However, in my view the decision of McInnis FM in Australian Girls’ Choir Pty Ltd and Anor contains the most useful summary.

    CONSIDERATION

19. In Phillips v Australian Girls’ Choir Pty Ltd & Anor[4], McInnis FM summarised the applicable principles as follows at [10]:

    [4] [2001] FMCA 109 at [10].

    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] FCA 153; (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] VicRp 21: (1992) 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] FCA 124: (1982) 42 ALR 283 at 287).

    4.    Any prejudice to the responded, 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 p287).

    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; [1983] FCA 94).

20. Whilst I consider the above principles to be applicable, it should be noted that the discretion given to the Tribunal in s 29 of the Act is very wide.  The Tribunal has to be satisfied that it is reasonable “in all the circumstances” to grant the extension.

21. In paragraph 4.2 of the outline of submissions for Ms Pigram, I note that she does not agree with the view that the length of delay is a relevant consideration for the Tribunal in determining whether to grant and extension of time.  I agree that the length of delay alone cannot be a factor weighing against granting an extension of time, but when taken into account with the other circumstances surrounding the need for an extension of time, both jurisdictionally and otherwise, the length of delay is relevant. 

22. I am aware that on the morning of 25 October 2016 before the extension of time hearing, an outline of additional submissions for the applicant was provided.  Given the unfortunate lateness of these additional submissions and the fact that they would probably have been of little assistance in deciding the question of whether an extension of time should be granted, I was simply unable to analyse the submissions in any detail.

23. I note that the Secretary has submitted that, if Ms Pigram’s circumstances have changed since the SSAT decision was made, there is no bar on her contacting the Department and requesting a review of the recovery of the debt (either in part or in full) due to the presence of special circumstances in her case.  Moreover, I note that the outline of submissions for Ms Pigram, (paragraph 4.4), with respect to alternative avenues of relief, says that the Secretary assumes that the debt has been properly raised, that the decision by the SSAT is correct and, that Ms Pigram is liable to repay the debt.  Ms Pigram is seeking a review of that decision, with the potential outcome that she is not required to repay any of the debt.

    CONCLUSION

24. The application by Ms Pigram to extend the time in which she may apply to this Tribunal to review the decision of the SSAT made on 20 February 2014, is refused.