Roger Bell and and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs
[2012] AATA 194
•4 April 2012
[2012] AATA 194
Division GENERAL ADMINISTRATIVE DIVISION File Number(s)
2012/0736
Re
Roger Bell
APPLICANT
And
Secretary, Department of Families, Housing, Community Services and Indigenous Affairs
RESPONDENT
File Number(s)
2012/0745
Re
Roger Bell
APPLICANT
And
Secretary, Department of Families, Housing, Community Services and Indigenous Affairs
RESPONDENT
DECISION
Tribunal Deputy President P E Hack SC
Date 4 April 2012 Place Brisbane Each application for an extension of time within which to seek a review of the respondent’s decisions of 2 August 2006 and 7 December 2007 is refused.
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Deputy President P E Hack SC
Catchwords
PRACTICE AND PROCEDURE – extension of time – age pension – considerable delay – absence of an explanation – absence of any apparent merit – likely prejudice – application refused
Legislation
Administrative Appeals Tribunal Act 1975 (Cth) s 29
Social Security (Administration) Act 1999 (Cth) Division 9, Part 3REASONS FOR DECISION
Deputy President P E Hack SC
4 April 2012
There are two applications before the Tribunal, each made by Mr Roger Bell, for an extension of time for the making by Mr Bell of applications to review decisions made by Centrelink on behalf of the respondent, the Secretary, Department of Families, Housing, Community Services and Indigenous Affairs in August 2006 and December 2007.
There is a considerable procedural history which needs to be set out. It begins on 9 June 2006 with a claim by Mr Bell for age pension. The claim was rejected by Centrelink on 2 August 2006 on the basis that Mr Bell’s assets exceeded the limit applicable to a person in his position. It is material to note that that conclusion was informed by a factual finding that one of Mr Bell’s assets was a loan that had been made by him to a related company, Lucknow Pty Ltd. The outstanding balance of that loan was recorded as $708,769 as at 30 June 2005.
The 2 August 2006 decision was affirmed on internal review and, on 22 February 2007, by the Social Security Appeals Tribunal (Appeal number B32488). According to the reasons of the SSAT Mr Bell challenged the amount of the loan. He is recorded as saying that,
…he would be able to obtain documentation in support of his assertion but in the approximately three months since receiving the authorised review officer’s reasons he had not done so.
The SSAT was satisfied, on the material before it, that Lucknow continued to owe Mr Bell $708,769 and that Mr Bell’s assets exceed the asset limit with the result that Mr Bell was not qualified to receive age pension.
The reasons of the SSAT were despatched on 2 March 2007 and thus the ordinary period in which Mr Bell might seek a review of the decision by this Tribunal expired in early April 2007. No application was made within that time; it was first made on 22 February 2012, a delay in the order of four years and ten months.
Mr Bell made a fresh claim for age pension in November 2007. It was rejected by a decision made on 7 December 2007, apparently on the basis that Mr Bell had failed to provide explanations for a series of transfers into and out of the account of Lucknow, a company of which Mr Bell was, at the time of the transactions, the sole shareholder and one of two directors. That decision was affirmed on internal review and by the SSAT on 20 May 2008 (Appeal number B35356). The SSAT concluded that there was a distinct possibility that the provisions relating to the depravation of assets at undervalue might apply to the transactions and that, in the absence of explanation by Mr Bell of the transactions, it could not be satisfied that Mr Bell was qualified for an age pension.
The reasons for decision of the SSAT were despatched on 27 May 2008 and thus the ordinary time for lodging an application for review expired in early July 2008. Mr Bell’s application was lodged on 22 February 2012, in excess of three years outside the usual time.
Then in January 2009 Mr Bell made a further claim for age pension and, in March 2009, for special pension. Both claims were rejected by Centrelink although the date of that decision does not emerge from the material. The decisions were affirmed by an authorised review officer on 11 May 2009 on the basis that Mr Bell had not provided any information additional to that before the SSAT that reviewed the 7 December 2007 decision. On a review of the decision the SSAT (Appeal number B39202), on 7 August 2009, set aside the decision rejecting the age pension claim and remitted the matter to the Secretary for further consideration of Mr Bell’s financial circumstances following an investigation by the Insolvency and Trustee Service of Australia, apparently on behalf of Mr Bell’s trustee in bankruptcy[1]. The decision to reject the claim for special pension was affirmed.
[1] Mr Bell became a bankrupt on 28 November 2007.
The decision of the SSAT in Appeal B39202 was reviewed in this Tribunal[2]. The decision relation to special pension was affirmed and that relating to age pension was set aside, restoring the original decision that Mr Bell was not qualified to receive age pension. Senior Member McCabe, who constituted the Tribunal on that occasion, was not satisfied that Mr Bell “was qualified in the period under review to receive the age pension”. He noted, however, that Mr Bell had made a fresh application which he observed would have to be assessed on its merits and “without reference to the confusing evidence of what was occurring in 2009”.
[2] See [2010] AATA 349.
That application was successful and Mr Bell has been receiving age pension since 10 March 2010.
Mr Bell now seeks an extension of time within which to seek review of the decisions of 2 August 2006 and 7 December 2007. Those applications are considerably outside the 28 day time limit prescribed in s 29 of the Administrative Appeals Tribunal Act 1975 (Cth). The Secretary opposes the application. Mr Hamilton, who appeared for the Secretary, advanced two particular arguments – that the Tribunal has already heard and determined the matters in issue and that the Tribunal ought not permit such matters to again be raised and, alternatively, that a favourable decision can have no utility – as well as submitting, more generally, that the circumstances of the case do not warrant the favourable exercise of the discretion to extend time for Mr Bell.
The first of these arguments is based on the use of the expression “period under review” in Senior Member McCabe’s decision of 24 March 2010 and the notion that that period was the period from 9 June 2006 (the date of the first claim for age pension) to 22 May 2009 (the date of the third SSAT hearing). I do not accept the argument. It is true that the SSAT decision records the fact of the two earlier decisions and the results of Mr Bell’s attempt to have them reviewed. But those matters cannot be other than a record of the history of the proceedings. It was not open to the SSAT to again consider the merits of the earlier decisions because those merits had already been considered by the SSAT. The subject matter of the third application in the SSAT was the correctness of the Centrelink decisions rejecting Mr Bell’s claims for age pension in January 2009 and special benefit in March 2009. The correctness of those decisions turned on Mr Bell’s qualifications at the time of the applications and in the 13 weeks thereafter.
The result is that the period under review, referred to in Senior Member McCabe’s decision was not the period from 6 June 2006 to 22 May 2009 as the Secretary contends. It cannot have been other than the period of 13 weeks from 16 January 2009. It follows that Mr Bell’s qualification to be paid age pension have not been the subject of proceedings in this Tribunal and I reject the Secretary’s first argument.
The second argument is based upon the fact that Mr Bell has been receiving age pension since March 2010 and the operation of Division 9 of Part 3 of the Social Security (Administration) Act 1999 (Cth). The effect of those provisions, the Secretary submitted is that, were Mr Bell to succeed in his application, and the original decisions were set aside and decisions made that Mr Bell was qualified for age pension, the earliest date from which it could be paid would be the date of his application to the Tribunal i.e. 22 February 2012.
I am able to determine the matter by reference to more mundane considerations – the length of the delay, the absence of an explanation for that delay, the absence of any apparent merit in the proposed applications and the likely prejudice caused by the lengthy delay.
There is a very considerable delay in each application – in excess of three years at least – and Mr Bell proffers no explanation for that delay beyond the information that having availed himself of the opportunity to access documents under the Freedom of Information Act 1982 (Cth) he is now in a position to demonstrate that there was maladministration[3] in his case. Whether that is correct or not need not be considered. It is never necessary, in fact it is likely irrelevant, to demonstrate maladministration in this Tribunal because the Tribunal undertakes merits review: it is entirely unconcerned with supposed errors of fact or law, or indeed bias, denial of procedural fairness or any of the other matters relied upon by Mr Bell. Mr Bell also seeks to demonstrate that the decisions made were, with the benefit of hindsight following the administration of his estate in bankruptcy, wrong. I do not consider that subsequent events can arguably demonstrate that there is merit in the applications proposed by Mr Bell.
[3] The term is mine, and is used to describe the collection of complaints in Mr Bell’s submissions of 20 March 2012.
The passage of time has undoubtedly made it more difficult for the Secretary to ascertain, with any degree of certainty, what the true position with Mr Bell’s assets was at the time in question: there is, to that extent, a prejudice arising from the delay. When taken together with the absence of any apparent merit in the applications and the lengthy and unexplained delay, I am not satisfied that an extension of time is warranted in the circumstances of this case. The applications are refused.
I certify that the preceding 16 (sixteen) paragraphs are a true copy of the reasons for the decision herein of Deputy President P E Hack SC.
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Associate
Dated 4 April 2012
Date(s) of hearing 29 March 2012 Applicant In person Advocate for the Respondent Mr R Hamilton, Centrelink Legal Services
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