PZVS and Secretary, Department of Social Services VRNH OTHER PARTY

[2015] AATA 460

[2015] AATA 460 

Division	GENERAL ADMINISTRATIVE DIVISION
File Number(s)	2015/2384
Re	PZVS
APPLICANT
And	Secretary, Department of Social Services
RESPONDENT
And	VRNH
OTHER PARTY

DECISION

Tribunal	Dr P McDermott RFD, Senior Member
Date	19 June 2015
Date of written reasons	30 June 2015
Place	Brisbane

The application for an extension of time is not granted.

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Dr P McDermott RFD, Senior Member

CATCHWORDS

EXTENSION OF TIME – application for extension of time – whether reasonable in all the circumstances to extend time – application refused.

LEGISLATION

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

Administrative Decision (Judicial Review) Act 1977 (Cth)
A New Tax System (Family Assistance) Act 1999 (Cth) ss 22, 23

Evidence Act 1995 (Cth)

CASES

Hunter Valley Developments v Minister for Home Affairs and Environment (1984) 3 FCR 344

Comcare v Ahearn (1993) 119 ALR 85

Kuljic v Secretary, Department of Social Security (1994) 33 ALD 121

REASONS FOR DECISION

Dr P McDermott RFD, Senior Member

30 June 2015

1. The applicant has sought an extension of time to lodge an application for the review of decision made by the respondent concerning payment of family tax benefit in respect of a child.

2. On 19 March 2015 a decision was made by the Social Security Appeals Tribunal (“SSAT”) to affirm a decision under review. The decision under review was the decision of the Family Assistance Office on 4 August 2014 to cancel the payment of family tax benefit in respect of that child who had left the care of the applicant on that day. On that date, the Department of Child Safety made an assessment that there was substantiated risk of physical and emotional harm for the child while she was in the care of the applicant and placed the child in the care of the other party.

3. The decision of the SSAT was posted to the parties on 30 March 2015.

4. The application for review of the SSAT decision was received by the Tribunal on 15 May 2015. The applicant did not complete the relevant panel of that application form to indicate when the applicant received the SSAT decision. The applicant later lodged an application for an extension of time in which to lodge an application for review of the SSAT decision. That application which was dated 21 May 2015 was received by this Tribunal on 26 May 2015. The form of that application contains a panel for an applicant to insert the date when the applicant received the decision, that panel was also not completed by the applicant.

5. The other party opposes the application for an extension of time to lodge the application for review. The respondent contends that there is a lack of merit in the application for review of the SSAT decision of the SSAT.

6. The respondent contends that the applicant should have received a copy of the SSAT decision on or about 2 April 2015 and that the application was lodged 14 days out of time. Even if a period of 5 business days (which is the period referred to in the Evidence Act 1995) is allowed for the posting of the decision, the application for review is certainly out of time by some 10 days outside the legislated timeframe. Accordingly the application for review is out of time by a period of at least 10 days if not 14 days.

7. There was a telephone hearing of the application for an extension of time, the applicant represented herself. The other party represented himself and stated that he opposed the application for an extension of time. Mr Warren appeared on behalf of the respondent.

8. The jurisdiction of this Tribunal to grant an extension of time is conferred by s 29(7) of the Administrative Appeals Tribunal Act 1975 (Cth) which 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.

9. The applicant has certainly complied with this subsection by making an application in writing.

10. The Federal Court of Australia in Hunter Valley Developments v Minister for Home Affairs and Environment (1984) 3 FCR 344 has provided guidance on the relevant principles which govern an application to extend time under the Administrative Decision (Judicial Review) Act 1977 (Cth). Wilcox J remarked at [18]:

    Although the section does not, in terms, place any onus of proof upon an applicant for extension an application has to be made. Special circumstances need not be shown but the Court will not grant the application unless positively satisfied that it is proper so to do. The "prescribed period" of 28 days is not to be ignored… Indeed it is the prima facie rule that proceedings commenced outside that period will not be entertained… It is a pre-condition to the exercise of discretion in his favour that the applicant for extension show an "acceptable explanation of the delay" and that it is "fair and equitable in the circumstances" to extend time…

11. There have certainly been cases where this Tribunal in considering applications under

    
    

    s 29(7) of the Administrative Appeals Tribunal Act 1975 (Cth) has applied the principles laid down by Wilcox J. However, the Full Court of the Federal Court of Australia in Comcare v Ahearn (1993) 119 ALR 85, 88 emphasised that an acceptable explanation was not an essential precondition to the exercise of discretion under s 29(7) but certainly any explanation would be considered by this Tribunal in determining whether or not to exercise the discretion.

12. I should consider the reason that was provided by the applicant in her application for an extension of time. In her application she stated that she was “waiting for another decision”. The applicant did not disclose any other reason in her written application. At the interlocutory hearing she stated that she wanted to ensure that the “other matter” was resolved before lodging an application to this Tribunal. Unless and until the decision of the SSAT is reviewed, that decision stands. No decision outside the review process (or any judicial process) could affect the operation of the decision of the SSAT. At the hearing the applicant also mentioned that she holds the power of attorney for some elderly people and she was coordinating the treatment of an elderly man. I do not consider that the applicant has shown cogent reasons why she did not lodge an application within the time that has been stipulated by Parliament. For that reason alone the application for an extension of time should not be granted.

13. There would be prejudice to the other party if the application for an extension of time was granted. The other party stated that he has had to take time off work to litigate. In my view he would certainly be prejudiced if the Tribunal were to extend time to allow the applicant to lodge an application.

14. A decision by this Tribunal to extend the time for the making of an application for review should consider the prospects of success of the review application. In Kuljic v Secretary, Department of Social Security (1994) 33 ALD 121 Von Doussa J explained (at 122):

    One of the principal considerations to be addressed in deciding whether it is fair and equitable in all the circumstances to extend time is whether the merits of the proposed appeal are such that if an extension of time is granted there is some prospect of success in the appeal. If a consideration of the merits indicates that there is no question to be agitated on the appeal, and there is no prospect of success, it would be futile to grant an extension of time and most unjust to the respondent to subject the respondent to the costs of defending a pointless appeal.

15. Before this Tribunal will grant an extension of time it needs to be “satisfied that it is reasonable in all the circumstances to do so”. That is a requirement which is imposed upon this Tribunal by s 29(7) of the Administrative Appeals Tribunal Act 1975 (Cth).

16. The case of the applicant is that she took “reasonable steps” to have the daughter returned to her after the Department of Child Safety placed the daughter into the care of the other party. The applicant has asserted that she made an application for the return of the daughter which was lodged in court on 3 September 2014, this was nearly a month after the father regained care of the child. However, at that time the court order of 25 February 2011 provided for the daughter to reside with the other party.

17. The consent orders which were drafted in September 2013 were not operative as the other party had certainly not consented to the arrangement of care.  This is a matter where before the SSAT the parties agreed that the other party had a pattern of 100% care of the child from 4 August 2014. The SSAT found that the applicant had not complied with the court order by having 100% care of the child.

18. There is no indication in the material before me that there is an event within the meaning of s 23(1)(b) of the A New Tax System (Family Assistance) Act 1999 (Cth): such an event is an essential precondition to the operation of s 23 of that Act which applies where “the adult takes reasonable steps to have the child again in the adult’s care”. The event that is referred to in s 23(1)(b) of the Act is “an event [that] occurs in relation to the child without the adult's consent that prevents the child being in the adult's care.” The relevant event on 4 August 2014 was when the Department of Child Services had returned the child to the care of the other party. The SSAT found that the court order of 25 February 2011 provided for the child to reside with the other party. Section 23 of the Act does not apply if s 23(1)(b) of the Act is not satisfied. I conclude that s 23 (1)(b) of the Act does not appear to be satisfied where the court order provided for the child to reside with the other party.

19. In these circumstances this Tribunal does not consider that there is any prospect of a successful review of the respondent’s decision.

20. I have decided in these reasons to keep confidential the names of the applicant and other party. The applicant and the other party, who have distinctive names, have a child who attends school.

    DECISION

21. Having regard to the requirements of s 29(7) of the Administrative Appeals Tribunal Act 1975 (Cth) the Tribunal determines that the written application by the applicant dated 14 May 2015 for an extension of time should not be granted because it is not satisfied that it is reasonable in all the circumstances to do so.

I certify that the preceding 21 (twenty -one) paragraphs are a true copy of the reasons for the decision herein of Dr P McDermott RFD, Senior Member

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Associate

Dated 30 June 2015

Date(s) of hearing	19 June 2015
Applicant	In person
Solicitors for the Respondent	Mr N Warren, Department of Human Services
Other Party	In person