Rosier; Department of Family and Community Services

[2000] AATA 793

DECISION AND REASONS FOR DECISION [2000] AATA 793

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No V2000/616

GENERAL ADMINISTRATIVE DIVISION          )          
           Re      SECRETARY, DEPARTMENT OF FAMILY AND COMMUNITY SERVICES         
  Applicant
           And    GERALDINE ROSIER       
  Respondent

DECISION

Tribunal        Mr J. T. C. Brassil, AM, Member 

Date7 September 2000

PlaceMelbourne

Decision      The Tribunal decides to refuse the application for an  extension of time.    

.........(Sgd) J. T. C. Brassil...........
  Member
CATCHWORDS
SOCIAL SECURITY – extension of time – reasonable explanation for delay –whether unfair to extend time for lodging – whether issue is meritorious
Administrative Appeals Act 1975       ss 29(1), 29 (2)
Acts Interpretation Act1901 ss 36 (1)
Hunter Valley Developments Pty Ltd v Cohen (1984) 58 ALR 305
Re Mulheron and Australian Telecommunications Corporation (1991) 21 ALD 374
Re Secretary, Department of Family and Community Services and Childs [1999] AATA 630

REASONS FOR DECISION

7 September 2000              Mr J. T. C. Brassil, AM, Member  

1. This is an application for extension of time for lodging an appeal against a decision of the Social Security Appeals Tribunal ("SSAT") which was heard on 12 March 2000 in Melbourne.

2. A copy of the decision was received by the Administrative Law Section of the applicant's department on 28 April 2000.

3. The applicant was not present at the hearing on 30 August 2000 but was represented by Mr James Singh of counsel. The respondent was represented by Ms Carolyn McInnes.

4. Pursuant to subsection 29(1) of the Administrative Appeals Act 1975 ("the Act") the appeal must be lodged with the Administrative Appeals Tribunal ("the Tribunal") within the prescribed time.

5. The prescribed time is defined in subsection 29(2) of the Act as commencing on the day the applicant is furnished with a copy of the decision and ends on the twenty-eighth day after.
   Facts

6. In this matter the prescribed time was completed on Friday 26 May 2000 as the Acts Interpretation Act1901, subsection 36(1), provides that the 28 days are to be calculated from the day after the act or event occurred, in this matter the furnishing of a copy of the decision to the applicant.

7. The appeal was filed with the Tribunal on Monday, 29 April 2000.

8. At the commencement of the hearing the representative of the applicant conceded that the filing of the appeal was one day late, one working day after the due date.
   Issues before the Tribunal

9. In the circumstances it is necessary for the Tribunal to consider the application for an extension to time for lodging.  The Tribunal must consider whether there is a reasonable explanation for the delay, whether it is unfair to grant an extension and whether the issue that would be decided in the appeal is meritorious.
   Submissions

10. Mr Singh submitted that Hunter Valley Developments Pty Ltd v Cohen (1984) 58 ALR 305 should be followed in consideration of this matter. It was the respondent's view that there was no reasonable explanation for the acknowledged delay, that the respondent was entitled to the benefit of the presumption that when the 28 day period had expired the decision could not be disturbed and an extension would be unfair to the respondent.

11. He submitted further that the applicant had the evidentiary burden on the question whether the issue was meritorious.

12. Ms McInnes submitted that the delay was only one working day and the reason was a miscalculation of the 28 day period.  The department had not rested on its rights and at the time of lodging the appeal thought it was within the prescribed period of time.

13. While accepting Hunter Valley she submitted that the issues to be considered in the appeal had merit as the SSAT had misinterpreted the legislation.  The matter concerned family payments and this case could be distinguished from the decision of Senior Member Hallowes in Secretary, Department of Family and Community Services and Childs [1999] AATA 630, 25 August 1999, in that Mrs Rosier had made a request.
    Consideration of the Issues

14. In considering the application for an extension of time the Tribunal adopts Hunter Valley and, in particular, its principles as set out and applied by O'Connor J in Re Mulheron and Australian Telecommunications Corporation (1991) 23 ALD 309 at 314:

    "Briefly these are:

    (a)Prima facie proceedings commenced outside the prescribed period will not be entertained.  An extension of time will be granted, however, if it is proper to do so.

    (b)It is relevant whether the applicant rested on his rights or took action to make the decision-maker aware that the decision was being contested.

    (c)Any prejudice that would be caused by granting the extension of time is relevant.

    (d)Any wider prejudice to the general public in terms of disruption to established practices is relevant.

    (e)The merits of the substantial application are relevant.

    (f)Fairness of granting an extension of time as between the applicant and other persons in a like position is relevant."

15. The Tribunal does not accept that a miscalculation of the prescribed time is an acceptable explanation and particularly so when the applicant has the full weight of the advice and bureaucratic experience of a government department.

16. The Tribunal accepts that to grant an extension may prejudice the respondent as she may have to repay money and also that she claims the benefit of the presumption that at the end of the prescribed period the matter was determined in law.  However this must still be considered against the merits of the appeal.

17. The appeal  relates to an alleged over-payment of over $5,000 in family allowance which was found by the SSAT to be no more than $218.70 in the circumstances that the respondent had already paid, by deductions, some $346 to the Commonwealth.  The issue concerns, inter alia, a module under s 1069 of the relevant Act used to determine the income test for family allowance.  Without evaluating the detail of this particular case the Tribunal is not convinced that it is so meritorious as to justify that it would be proper to ignore the prescription of time in the Act for lodging of an appeal.
    Conclusion

18. The Tribunal will not use its discretion to extend time for lodging this appeal so the application will be dismissed.

    I certify that the eighteen (18) preceding paragraphs are a true copy of the reasons for the decision herein of

    Mr J. T. C. Brassil, AM, Member

    Signed:         .....................................................................................
      Personal Assistant

    Date/s of Hearing  30 August 2000
    Date of Decision  7 September 2000
    Solicitor for the Applicant         Ms C. McInnes, Centrelink
    Counsel for the Respondent    Mr J. Singh
    Solicitor for the Respondent    Eastern Community Legal Centre