Rundell and Secretary, Department of Social Services (Social services second review)
[2024] AATA 604
•5 April 2024
Rundell and Secretary, Department of Social Services (Social services second review) [2024] AATA 604 (5 April 2024)
Division:GENERAL DIVISION
File Number: 2021/4137
Re:Jeffery Rundell
APPLICANT
AndSecretary, Department of Social Services
RESPONDENT
Decision
Tribunal:Member L M Gallagher
Date:5 April 2024
Place:Perth
The Applicant’s application for an extension of time lodged on 4 August 2021 to review the decision of the Social Services and Child Support Division of the Administrative Appeals Tribunal dated 28 April 2021, is refused.
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Member L M Gallagher
CATCHWORDS
SOCIAL SECURITY – extension of time application – Applicant’s poor health – length of delay – awareness of appeal rights – explanation for delay – prejudice to Respondent or the general public – merits of substantive application – alternative avenues of relief – extension of time application refused
LEGISLATION
Administrative Appeals Tribunal Act 1975 (Cth) – ss 29(2), 29(7)
CASES
Hazelwood v Telstra Corporation [2012] AATA 901
Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344
Knight v Commonwealth Ombudsman [2023] FCA 868
Re Hewson and Australian Postal Corporation (1998) 50 ALD 994
REASONS FOR DECISION
Member L M Gallagher
5 April 2024
ISSUE FOR DETERMINATION
The issue before the Tribunal is whether the Applicant should be granted an extension of time to lodge his application for review of a decision of the Social Services and Child Support Division of the Administrative Appeals Tribunal (AAT1) dated 28 April 2021 (the Reviewable Decision). This in turn begs the question of whether, it is reasonable in all the circumstances to do so.
As it is not in dispute that the Applicant’s application for review was out of time, the sole issue for the Tribunal is whether it should exercise the discretion made available to it under s 29(7) of the Administrative Appeals Tribunal Act 1975 (Cth) (AAT Act).
the application aND BACKGROUND FACTS
The Applicant’s substantive application seeks review of the Reviewable Decision.
The Reviewable Decision was sent to the Applicant on 10 May 2021. The Applicant was hence provided with written notice of the AAT1 decision by at least 14 May 2021 and he had until 11 June 2021 to apply for review the Reviewable Decision.
On 21 June 2021, the Applicant applied for review of the Reviewable Decision. Due to an administrative oversight by the Tribunal, the Applicant’s application for review was forwarded to the Respondent on 5 August 2021.
On 4 August 2021, being 54 days after the expiry of the 28-day time frame for doing so, the Applicant applied to this Tribunal for an extension of time to apply for review of the AAT1 decision. The Applicant’s application for an extension of time was also forwarded to the Respondent on 5 August 2021.
On 19 August 2021, the Respondent filed notices opposing the Applicant’s application for an extension of time.
The present matter concerns the Applicant’s application for an extension of time.
The Tribunal also notes the background facts to these matters as set out in paragraphs 6 to 24 (inclusive) of the Respondent’s submissions filed with the Tribunal on 3 September 2022.
RELEVANT LEGISLATION AND GENERAL PRINCIPLES
As to relevant legislation and general principles, the Tribunal notes those provisions and principles set out in paragraphs 25 to 28, (inclusive) of the Respondent’s submissions, including subsections 29(2) and 29(7) of the AAT Act.
In Re Hewson and Australian Postal Corporation (1998) 50 ALD 994, (Re Hewson) Senior Member Allen stressed the desirability of finality in these matters:
In my opinion the major factor in this matter is that prima facie proceedings commenced outside the limitation period ought not to be entertained. The respondent is entitled to pursue its business on the assumption that claims not pursued within the time limits laid down in the legislation can be regarded as finalised. This principle must give way if an applicant is shown on the materials adduced by either party to have a good case of succeeding in the action and there is little prejudice to the respondent.
A similar view was expressed by Judge Wilcox in the Federal Court decision of Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344 at 348, a decision which also set out the principles commonly referred to (as they were in Re Hewson and numerous other decisions) in considering whether an extension of time should be granted in these matters. Those principles are well-known and have been referred to in more recent cases such as Knight v Commonwealth Ombudsman [2023] FCA 868 and can succinctly be put as:
a.Delay – The length of the delay, awareness of appeal rights and whether the Applicant seeking an extension of time can demonstrate an acceptable explanation for the delay;
a.Prejudice – Any prejudice to the parties or to the general public that might be suffered were an extension to be granted;
b.Merits – The merits of the substantive application; and
c.Fairness – Alternative avenues of relief and considerations of fairness between the Applicant and other persons in a similar position.
evidence
The matter was heard in Perth on 19 October 2023. The Applicant was self-represented and appeared in person. The Respondent was represented by Mr Christopher West, of Services Australia, who appeared by telephone. No witnesses were called.
The Tribunal admitted the following documents into evidence:
a.Statement from Jeffery Rundell dated 28 January 2021 (Exhibit A1); and
a.Respondent’s Outline of Submissions, with Annexures A to J, filed on 3 September 2021 (Exhibit R1).
The Tribunal is satisfied that all the relevant evidence was before the Tribunal and that the parties were provided an opportunity to address it.
consideration
The Applicant, in effect, seeks an order which would have the effect of extending the time for lodging his application for review of the Reviewable Decision.
Before considering matters relating to each of the relevant principles, the Tribunal makes the following preliminary comments and findings:
a.The discretion to allow further time to request reconsideration is unfettered, the exercise of which is informed by the statutory time limit in subsection 29(2) of the AAT Act as well as the power granted by subsection 29(7) of the AAT Act to extend that time limit.
a.The Applicant has not put any arguments forward to the effect that his application for review was lodged within time.
3.Therefore, the Tribunal proceeds on the basis that it is not in dispute that the Applicant’s request was filed out of time and hence the issue for review is as previously stated.
a.The Applicant lodged his application for an extension of time on 4 August 2021, approximately 54 days after the 28-day time frame prescribed by subsection 29(2) of the AAT Act.
b.The Applicant has not taken any issue with having received the Reviewable Decision dated 28 April 2021 by 14 May 2021, or the related notice which refers to his appeal rights to this Tribunal and to the 28-day time limit for doing so.
Delay
In relation to the Applicant’s explanation for his delay in lodging his application for review of the Reviewable Decision, the Applicant attributes the delay to his poor health, including his having suffered a transient ischaemic attack and strokes in early 2021, dental issues in October 2021, his chronic heart condition and his related additional medical appointments.
At the hearing, the Applicant gave evidence that while he did receive the AAT1 decision and the related notice setting out his appeal rights, he was often away in remote areas and his then partner handled the paperwork and liaised with the Tribunal. The Applicant said that his health issues were such that he nearly died in hospital, which affected his ability to apply for a review.
The Respondent made several submissions regarding awareness of appeal rights the length of the delay and explanation for the delay.
At the hearing, the Respondent added that the Applicant’s health issues appeared to emerge in January 2021 and that he was still able to give telephone evidence at the AAT1 hearing in April 2021.
The Tribunal notes the letter sent by the AAT1 on 10 May 2021 with the delegate’s decision of the same date refers to the Applicant’s appeal rights and the 28-day time limit for lodging the appeal. In the context of the substantive decision, the length of the delay of 54 days is not overly extensive, however in the Tribunal’s view it is still significant. The Tribunal also notes the Applicant had in fact lodged his application for review on 21 June 2021, being 10 days after the expiry of the time period for doing so. This also serves to indicate the Applicant did receive the Reviewable Decision and related notice in or around this period.
The Applicant did not make any submissions to the effect that he did not receive the letter setting out his appeal rights. The Applicant accepted as such at the hearing. There are several authorities in which the Tribunal declined to grant an extension of time where it was satisfied that the Applicant was fully aware of the right to seek review of the decision in question.
Prejudice and fairness
As to prejudice and fairness, the Respondent submitted it is not specifically prejudiced by the extension of time application.
The Applicant made no submissions as to prejudice and fairness.
In the Tribunal’s view, the Respondent is not prejudiced by the Applicants’ application other than incurring the costs of defending the application.
As to the wider prejudice to the general public, the Tribunal notes that the public interest and the interest of those applicants who comply with the prescribed time limits are unsettled by perceptions of unfairness and uncertainty if an extension of time is granted where the justice of the case does not permit that this should occur.
As to fairness, the Tribunal notes that to refuse the extension of time in the Applicant’s case would not have the effect of denying the Applicant any relief. For example, it is open to the Applicant, at any time, to enter into a debt repayment plan with the Respondent.
Further, the Reviewable Decision was remitted with a direction that the Agency recalculate the total of the Applicant’s debt. The Tribunal understands the Agency did so and the Applicant sought review of that decision by an ARO of the Agency. This resulted in an ARO decision dated 11 July 2023. It is open to the Applicant to seek review of that ARO decision.
Merits
The Applicant made no particular submission regarding the merits of his substantive application, other than the Applicant stating he does not understand how he owes a debt, that he is a very honest person and he doesn’t owe anyone anything.
Regarding merit, the Respondent made a number of submissions regarding the prospects of success of the proposed appeal of the Reviewable Decision.
At the hearing, the Respondent added that the Applicant has not provided any new evidence to say why the Reviewable Decision is wrong.
The Tribunal finds that the Applicant would face significant hurdles given the matters raised by the Respondent. The Tribunal considers that while the Applicant’s substantive claim clearly presents with a number of issues, it is neither necessary nor appropriate for the Tribunal to attempt to do anything other than gauge the apparent merit of the proposed case.
conclusion
Having considered the relevant principles and related submissions and evidence, the Tribunal has found that none of them are made out in favour of the Applicant. Therefore, the Tribunal finds the extension of time is not warranted under subsection 29(7) of the AAT Act.
decision
The Applicant’s application for an extension of time lodged on 4 August 2021 to review the decision of the Social Services and Child Support Division of the Administrative Appeals Tribunal dated 28 April 2021, is refused.
| I certify that the preceding 35 (thirty five) paragraphs are a true copy of the reasons for the decision herein of Member L M Gallagher |
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Associate
Dated: 5 April 2024
| Date of hearing: 19 October 2023 |
| Applicant’s Representative: Self represented |
| Respondent’s Representative: Mr Christopher West, Services Australia |
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