Richards and Secretary, Department of Family and Community Services

[2005] AATA 277

Administrative

Appeals

Tribunal

 

DECISION AND ORAL REASONS FOR DECISION [2005] AATA 277

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No S2004/450

GENERAL ADMINISTRATIVE  DIVISION		)
Re		BARRY JAMES RICHARDS

Applicant

And SECRETARY, DEPARTMENT OF FAMILY AND COMMUNITY SERVICES

Respondent

DECISION

Tribunal Senior Member WJF Purcell

Date16 March 2005

PlaceAdelaide

Decision For the reasons given orally at the Hearing of this matter, the Tribunal reinstates the application for extension of time, but refuses to extend the time for filing an application for review.

(Signed)

WJF PURCELL
  (Senior Member)

CATCHWORDS

PRACTICE AND PROCEDURE – application for reinstatement – dismissed by non-appearance of applicant at extension of time hearing – application three years late – application for extension of time reinstated but refused

Administrative Appeals Tribunal Act 1975 s 42A

Hunter Valley Developments Pty Ltd and Others v Minister for Home Affairs and Environment (1984) 58 ALR 305

ORAL REASONS FOR DECISION

16 March 2005   Senior Member WJF Purcell     

1.      On 31 December 2004, the applicant lodged an application (dated 28 November 2004) for review of a decision of the Social Security Appeals Tribunal (SSAT) dated 10 December 2001.  He described the decision as follows:

“Centrelink were advised I had a business and was working more than 30 hours allowed on DSP. I had others working but they were part-timers and were paid cash in hand.  Centrelink had no evidence that I was working more than the 30 hours apart from hearsay.  (The person who informed them that I was) and other than that the landlord stating hours shop was open.  The hours a shop trades doesn’t mean one person works the full time.  Debt raised incorrectly.”

His reasons for lodging an application were:

“Debt wrongfully raised seeking reimbursement for total amount or a minimum of 70% of debt.  I know that my hours may have been more than 30 hours some weeks but not on a regular basis and work was only light duties.  Max hours would’ve been 40 hrs maybe for 30% of the time (maximum) no more.  Most likely less.”

2.      The applicant also lodged an application for extension of time (dated 28 November 2004) on 31 December 2004.  He outlined his reasons for the delay in lodging his application as:

“Wasn’t told had to be in 28 days.  Have sought other action to be taken on this through Centrelink.  No action taken by them.  I feel there was no reason or evidence from Centrelink that I was working over 30 hours p/wk.  I want reimbursement of overpayment.”

3.      The applicant lodged also a request for an order varying or revoking an order about the operation or implementation of a decision, again dated 28 November 2004).  His grounds for request were:

“Probably too late but am seeking a stay on Centrelink taking balance of “so called debt” if they have already.  Can you get them to reverse funds back into my account till this is settled.  Thank you.  BJR

This is important

I shouldn’t get a phone call saying they are taking funds without prior knowledge or request from Centrelink.”

4.      The respondent (the Department) opposed the extension of time on the basis that the applicant has rested on his rights for over three years, and there was insufficient reason to justify the granting of an extension of time in this matter.  In addition, the substantive matter has no prospect of success.

5.      The matter was listed for a face-to-face Extension of Time Hearing on 27 January 2005 at 10.30 am before Senior Member Hastwell.  The applicant did not appear, and did not contact the Tribunal by telephone.  A Tribunal officer phoned the applicant on his mobile phone, but got voice mail.  His home phone was out of order.

6.      Senior Member Hastwell made the following order:

“UPON NOTING that the applicant failed to appear before the Tribunal at 10.30 am on 27 January 2005, being the time listed for the hearing of his application for an extension of time in which to lodge a review, and further that the Tribunal has unsuccessfully endeavoured to make telephone contact with the applicant;

THE TRIBUNAL orders:

1.that within 21 days of this date the applicant advise the Tribunal in writing if he wishes to proceed with his application to enable to Tribunal to set a new hearing date;

2.that in the event of the applicant failing to provide such written notice within the stipulated time then his application for an extension of time for lodging an application for review of a decision dated 28 November 2004 and filed on 31 December 2004 shall be dismissed; and

3.that this order be sent by registered post to the applicant’s last known address.”

7. The order was sent by registered post and received by the applicant on 2 February 2005. As no response was received from the applicant within 21 days, the Tribunal dismissed the application on 18 February 2005, pursuant to s 42A(2) of the Administrative Appeals Tribunal Act 1975 (the Act), which provides:

“(2)If a party to a proceeding before the Tribunal in respect of an application for the review of a decision (not being the person who made the decision) fails either to appear in person or to appear by a representative at a directions hearing, a conference mentioned in section 34, or a mediation under section 34A, held in relation to the application, or at the hearing of the proceeding, the Tribunal may:

(a)if the person who failed to appear is the applicant - dismiss the application without proceeding to review the decision; or

(b)in any other case - direct that the person who failed to appear shall cease to be a party to the proceeding.”

8. Where an application has been dismissed under s 42A(2) of the Act, the party who made the application may, within 28 days after receiving notification that the applicant has been dismissed, apply to the Tribunal for reinstatement of the application, pursuant to ss 42A(8) and (9) of the Act, which provide:

“(8)If the Tribunal, under subsection (2), has dismissed an application (other than an application in respect of a proceeding in which an order has been made under subsection 41 (2)), the person who made the application may, within 28 days after receiving notification that the application has been dismissed, apply to the Tribunal for reinstatement of the application.

(9)If it considers it appropriate to do so, the Tribunal may reinstate the application and give such directions as appear to it to be appropriate in the circumstances.”

9.      On 24 February 2005, the Tribunal received a letter from the applicant dated 12 February 2005 which reads as follows:

“Please note that I was sick on tribunal hearing date and that I would like to have the matter re-listed thank you.  As I have children at school I need a time for a hearing between 11-1.30 if possible.

Thank you for your time.”

As this letter was outside the 21 days stated in the order, the Tribunal treated it as an application to reinstate the application, and the matter was listed for a Reinstatement Hearing today at 11.30am, and if granted, the extension of time could be argued as well.

10.     The applicant attended today’s Hearing.  Mr Goldie represented the Department.  The applicant said that he is an asthmatic, and was too ill with asthma and chest pain to reply within 21 days of receipt of the Tribunal’s letter on 2 February 2005.  In relation to the Hearing listed for 27 January 2005, he said that he forgot.  I decided to reinstate the application and we proceeded on that basis.

11.     The applicant gave evidence that although he probably read the notice from the SSAT, which accompanied it’s Decision of 10 December 2001 [Exhibit R2], advising that he must apply to the AAT for review within 28 days, but that if he had good reasons for not meeting the time limit, he could write to the AAT and ask for an extension of time.  He said he did not take any notice of the letter.  He says that soon after the SSAT decision he went to the Centrelink office at Modbury, where he was told that the debt would stand.  The debt recovery people reduced the amount they were recovering fortnightly; and an examination of Exhibit R1 discloses that fortnightly withholding recovery has continued.  The present balance of the debt is $7,960.17.

12.     The applicant said in evidence that although he was convinced that he should not have a debt of this magnitude, he told Centrelink of his concerns a few times over the first year, but nobody told him about going to the AAT.  He says that he rang the SSAT, and they did not tell him about the AAT.  He told Centrelink again early in 2002 that he was dissatisfied.  He said that they probably told him about the AAT, but he thought it was probably useless because the 28 days had passed, and there was no other avenue.  He said that dealing with Centrelink was like “knocking my head against a brick wall”.  He said also, that at about the time of the SSAT Decision, he had been in hospital because of a car accident, he had problems with the children, and other problems, “a lot on my plate”.

13.     The applicant said in evidence that he applied to the AAT in December 2004 because he was generally dissatisfied that he had the debt.  He was sure he worked less than 30 hours, and Centrelink could not prove that he did work more than 30 hours.  Centrelink had garnisheed money he had received from his motor vehicle accident, and applied it to the balance of his debt.  He says that he was told by a counter officer at Centrelink that he could apply to the AAT for an extension of time.

14.     The applicant’s compensation claim in relation to the vehicle accident, which  occurred on 11 May 2001, was settled on 11 October 2004 for $16,885.80.  Centrelink’s Debt Recovery Section telephoned the applicant at 11.30am, on 27 October 2004, and advised him that they had decided to garnishee the payment.  The sum of $7,960.17 was received from Allianz Insurance on 3 November 2004 [Exhibit R1], but the amount was refunded subsequently, because Centrelink decided that the settlement was not covered by its compensation provisions; there is a note on the computer printout which reads in part:

“… Please look at the follow-up of settlement monies for ordinary income/assets only.  … comp section had no interest in recovery  but put call through to debt recovery for their possible action.”  [Exhibit R1]

Recovery continues at $75.00 per fortnight.  This action prompted the applicant’s application to the Tribunal dated 28 November 2004 to reverse the funds transfer.

15.     I am satisfied on the evidence that it was Centrelink’s garnishee action which prompted the applicant’s application for review, and application for extension of time of the same date.  The applicant said that what he is seeking is a reduction of the outstanding debt, because the debt should not have been raised in the first place.  He said in evidence that the garnishee action triggered his memory that he should have done something about the debt earlier, but had thought “What is the point?”.

16.     In the matter of Hunter Valley Developments Pty Ltd and Others v Minister for Home Affairs and Environment (1984) 58 ALR 305, Wilcox J, without intending to set out an exhaustive list, set out a number of principles to guide a Court in reaching a decision on an application for an extension of time, and deemed relevant considerations in determining the exercise of the Commission’s discretion:

·     Whether the applicant provided an acceptable explanation for the delay such that it would be fair and equitable in the circumstances to extend the time.

·     Any action taken by the applicant to make the Commissioner aware that the decision was being contested.

·     Any prejudice to the Commissioner which may have resulted from the delay.

·     Any wider prejudice to the general public in terms of disruption to established practices.

·     The merits of the application.

17.      In this matter the applicant maintains that he has at all times been dissatisfied with the decision, but has not followed it through.  The Department maintains, in effect, that the applicant has not provided an acceptable explanation for the delay; that it is prejudiced by the delay, and that there is no merit in his case.

18.     In the course of its Reasons for Decision, the SSAT said:

“…

The Tribunal found it difficult to accept that Mr Richards was not working more than 30 hours per week in his business.

Mr Richards was unable to provide any substantial evidence to support the hours worked by other staff.  Statements made by Mr Richards to Centrelink regarding his business income and expenses are not conclusive.  Nevertheless, both shops needed to be staffed for considerable hours each day.  The shop at Osborne was open from 8 am to 6 pm and the shop at Glanville was open from 8 am to 9 pm.  The Tribunal does not accept that Mr Richards was paying staff to work all those hours, particularly as Mr Richards was living on-site.

Mr Richards seemed uncomfortable about answering some of the Tribunal’s questions.  His main argument against Centrelink’s case was that it could not prove that he did work 30 hours per week, but on the other hand he could not prove that he did not.

As Mr Richards was the manager of a delicatessen over the period of the overpayment, he would have served customers for a number of hours each day as well [as] being responsible for managing the business. This would have included ordering and paying for stock, arranging staff rosters and maintaining records of his business.  The Tribunal is satisfied that Mr Richards was working in excess of 30 hours per week in the business.

FINDINGS OF FACT

The Tribunal made the following findings:-

·Mr Richards was in receipt of disability support pension.

·Mr Richards was notified by letter dated 6 July 1999 that he must notify Centrelink if he started any form of business or self employment.

·Mr Richards commenced trading in a business on 1 November 1999.

·Mr Richards managed the business and worked in the shop on a daily basis.

·Mr Richards was working more than 30 hours per week in his business.

·Mr Richards ceased to have a continuing inability to work for [sic] 1 November 1999.

·Mr Richards failed to notify Centrelink within 14 days that he had started a business.

·Mr Richards has been overpaid $12,153.16 for the period 1 November 1999 to 19 December 2000.

…

Mr Richards managed both the businesses at Osborne and Glanville.  He told the Tribunal that he would usually work in the shop for about four hours per day for six days per week.  He agreed that sometimes he would work more than 30 hours a week in the shop but not every week.

The Tribunal’s view if that as Mr Richards was responsible for the management of the business and the business was operating for at least 10 hours per day six to seven days per week, Mr Richards’ involvement in the shop was very likely to be more than 30 hours per week.  Mr Richards has conceded both to Centrelink and to the Tribunal that he did sometimes work more than 30 hours a week.  His responsibilities in running of the business extended beyond merely serving customers, and also included the ordering of stock, managing staff, organising staff rosters and maintaining the books.

Mr Richards was unable to substantiate the income derived from the business during the period of the overpayment, as he has not provided any returns to the Australian Taxation Office.

The Tribunal’s view is that Mr Richards was operating both the businesses on a full time basis, and as such the Tribunal is satisfied that he did not have a continuing inability to work from 1 November 1999.  As such Mr Richards ceased to be qualified for the disability support pension from 1 November 1999.

…”  [pages 5-7]

19.     The applicant said in evidence that he was paying “family, friends and locals” to help him in the shop.  All of these people were on Social Security benefits, so he paid them cash.  He kept notes of who he paid, and the amounts, but they were not “staff records”.  He has no tax returns to substantiate his income and outgoings.  Any records he had (including his school records) were stolen when his home was burgled when he went to hospital in August 2000.  Clearly he maintains now, as he did before the SSAT, that he did not work more than 30 hours, and that Centrelink cannot prove that he did.  He has nothing more to back up his assertions.  The Department maintains that it is disadvantaged because it is now so long since these “family, friends and locals” allegedly worked for the applicant, that it would be unable to cross-examine these people.  I would have thought that if they were in receipt of benefits, as the applicant alleges, they might be less than willing to give evidence.  The applicant did not call any of these people at the SSAT Hearing.

20.     In my view, taking into account the relevant considerations outlined in Hunter Valley, the applicant has not provided an acceptable explanation for the three year delay such that it would be fair and equitable in the circumstances to extend time.  It is clear on the evidence, that he has from time to time approached Centrelink Recovery Section regarding the quantum of withholdings, but there is no evidence of his making the Department aware that the SSAT decision was being contested.  I accept the Department’s submission that it is prejudiced by the delay, and I consider finally, that on the whole of the evidence, there is little merit in the application, and that the applicant would be unlikely to succeed.  In these circumstances, it is not appropriate, in my view, to extend the time for lodging the application.

21.     For these reasons the Tribunal reinstates the application for extension of time, but refuses to extend the time for filing of an application for review.

I certify that the 21 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member WJF Purcell

Signed:         ..............(Signed).....................................................
  Associate

Date of Hearing  16 March 2005
Date of Decision  16 March 2005
Counsel for the Applicant         In person
Solicitor for the Applicant          -
Counsel for the Respondent     Mr A Goldie
Solicitor for the Respondent     Service Recovery Team