Secretary, Department of Social Services v Charlish
[2014] FCA 279
•18 March 2014
FEDERAL COURT OF AUSTRALIA
Secretary, Department of Social Services v Charlish [2014] FCA 279
Citation: Secretary, Department of Social Services v Charlish [2014] FCA 279 Appeal from: Application for extension of time to appeal from Lindsay Robert Charlish and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2013] AATA 434 Parties: SECRETARY, DEPARTMENT OF SOCIAL SERVICES v LINDSAY ROBERT CHARLISH and ALISON ESTELLE CHARLISH File number(s): QUD 506 of 2013 Judge(s): GREENWOOD J Date of judgment: 18 March 2014 Catchwords: PRACTICE AND PROCEDURE – consideration of an application for extension of time to appeal decision of the Administrative Appeals Tribunal – whether a satisfactory explanation provided by applicant for failure to institute appeal within time – where applicant miscalculated last day for lodging appeal – whether the applicant’s proposed appeal raises an arguable question of law Legislation: Administrative Appeals Tribunal Act 1975 (Cth), s 44
Social Security Act 1991 (Cth), s 13(3AA)Cases cited: Secretary, Department of Social Security v Knight (1996) 72 FCR 115 – cited Date of hearing: 18 March 2014 Date of last submissions: 18 March 2014 Place: Brisbane Division: GENERAL DIVISION Category: Catchwords Number of paragraphs: 19 Counsel for the Applicant: Mr A Dillon Solicitor for the Applicant: Australian Government Solicitor Counsel for the Respondents: Mr M Black Solicitor for the Respondents: Welfare Rights Centre
IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY
GENERAL DIVISION
QUD 506 of 2013
BETWEEN: SECRETARY, DEPARTMENT OF SOCIAL SERVICES
ApplicantAND: LINDSAY ROBERT CHARLISH
First RespondentALISON ESTELLE CHARLISH
Second Respondent
JUDGE:
GREENWOOD J
DATE OF ORDER:
18 MARCH 2014
WHERE MADE:
BRISBANE
THE COURT ORDERS THAT:
1.The time for the applicant to file a notice of appeal under s 44 of the Administrative Appeals Tribunal Act 1975 (Cth) in relation to the decision of the Administrative Appeals Tribunal dated 26 June 2013, in matter numbers 2012/4913 and 2012/4932, is extended to 25 March 2014.
2.The applicant pay the respondents’ costs of this application.
Note:Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY
GENERAL DIVISION
QUD 506 of 2013
BETWEEN: SECRETARY, DEPARTMENT OF SOCIAL SERVICES
ApplicantAND: LINDSAY ROBERT CHARLISH
First RespondentALISON ESTELLE CHARLISH
Second Respondent
JUDGE:
GREENWOOD J
DATE:
18 MARCH 2014
PLACE:
BRISBANE
EX TEMPORE REASONS FOR JUDGMENT
This is an application for an extension of time for the filing of a notice of appeal from a decision of the Administrative Appeals Tribunal. The notice of appeal was not filed in time and thus an application is necessary for an extension of time for the filing of the appeal. In fact, the notice of appeal seems not to have been filed at all because the Registry of the Federal Court elected to reject the notice of appeal for filing on the footing that the Registry had formed the view that the notice of appeal was out of time and thus the applicant appellant would need to make an application for an extension of time before the document could be accepted.
In the ordinary course of events, the Registry would accept the document for filing and if there was a question about the efficacy of the notice of appeal or its validity, then the parties would be left to make an application about that matter. However, in any event, in this matter the notice of appeal was not accepted for filing.
The application for an extension of time was filed on 5 August 2013.
The applicant is the Secretary of the Department of Social Services. The applicant, on this application, has sought to principally demonstrate two factors. The first is that there is an explanation for the failure to file in time. I will return to the timeframe in a moment. The second factor is whether there is an arguable question sought to be agitated on the appeal should time be extended.
The applicant contends that on the basis of the affidavit of Mr Hamilton and the affidavit of Mr Bush, which were filed respectively on 5 August 2013 and 6 August 2013, facts are deposed to which extensively demonstrate the chronology of events from the moment in time that the Tribunal delivered its reasons for decision and the decision itself on 26 June 2013. The contention, based on that factual material, is that the applicant did not simply “go to sleep”, to put the matter anecdotally, on the filing of a notice of appeal. Throughout the period that the matter was dealt with by the applicant, there was an extensive series of exchanges which sought to, firstly, address the timeframe within which an appeal had to be lodged and, secondly, the decision‑making protocols within the applicant for reaching a decision to file a notice of appeal.
The threshold proposition in answer to the failure to file a notice of appeal within the time limited by the s 44(2A) of the Administrative Appeals Tribunal Act 1975 (Cth) is that Mr Hamilton received the electronic reasons of the Tribunal on 27 June 2013. He then received, on 1 July 2013, the Tribunal’s letter which was dated 26 June 2013 which included the decision and reasons for decision. In that letter, the Tribunal said that the parties should note that an appeal to the Federal Court must be lodged either “no later than 28 days after you receive a copy of the Tribunal’s decision; or if the decision was posted to you at the last address you gave us, no later than 28 days after it was delivered to that address”.
Of course, the 28 day period runs from the moment in time that that party receives the reasons and the reasons were received on 26 June 2013 by the representative of the party in the proceedings. However, Mr Hamilton, having received the letter from the Tribunal on 1 July 2013, set about calculating the 28 days from that date and determined that the notice of appeal would need to be filed on or before 29 July 2013. Thereafter, communications from him to other officers within the legal unit within the relevant department acting on behalf of the party and the litigation itself, contained, at the head of the emails, the notification that the deadline for filing an appeal was 29 July 2013.
Throughout the period of seeking to address the issues raised by the Tribunal’s decision, there is no doubt that the litigant in the proceeding before the Tribunal (the Secretary, Department of Families, Housing, Community Services and Indigenous Affairs) and those administratively acting upon an analysis of the Tribunal’s decision with a view to providing advice about it to the Secretary, were progressing towards reaching a decision about whether an appeal should be filed on or before 29 July 2013. In the result, a decision was made to lodge an appeal but the communication of that decision was made sufficiently late on 29 July 2013 that the document came to be filed by the Australian Government Solicitor after the time for electronic closing of the Registry of the Federal Court with the result that under the Federal Court Rules 2011, the document was treated as being “filed” but relevantly filed on the following day which then, of course, put the filing of the notice of appeal beyond the time limited for filing a notice of appeal.
The second factor relied upon, on the basis of the affidavit material, is that there is a process adopted within the administration of a government for making decisions in relation to questions arising under the Social Security Act 1991 (Cth) of the kind in issue in the proceedings before the Tribunal concerning Mr and Mrs Charlish.
The arrangement deposed to by Mr Hamilton is that the Program Litigation and Review Branch of what was called the Department of Human Services (“DHS”) provides administrative analysis and support to the Department of Families, Housing, Community Services and Indigenous Affairs in dealing with questions such as whether or not the decision and reasons for decision of the Tribunal raise a question of law which would warrant making a decision to file a notice of appeal before the Federal Court of Australia.
In Mr Hamilton’s affidavit he sets out a series of exchanges between himself and Ms Hannelore Schuster within DHS and then further exchanges between Ms Schuster and Mr Timothy de Uray and then communications between Mr de Uray and officers within the Department of Families, Housing, Community Services and Indigenous Affairs. The sequence of events demonstrates that the material was ultimately sent to the party to the AAT proceedings on 9 July 2013. Exchanges took place on 22 July 2013. Advice from the Australian Government Solicitor was sought on 22 July 2013 and then further advice was sought and communicated on or about 26 July 2013. In the affidavit from Mr Bush, he explains the sequence of events from about 26 July 2013 through to the events of 29 July 2013. As I have already indicated, this chronology of events demonstrates that the departmental officers had not ignored the relevant timeframes and had been attempting to deal with the questions alive in relation to an appeal and had been attempting to deal with the relevant questions within the timeframe mistakenly selected as the relevant timeframe.
There was, obviously enough, consciousness about the timeframe within which the notice of appeal had to be filed. The disappointing feature of the matter, in some respects, is that on 29 July 2013 when it was transparently plain to all those involved, that the notice of appeal had to be filed on that day by at least the closure of the Registry “electronically”, there seemed to be no particular sense of urgency about ensuring that the document was filed on that day, within time. Events took their course with a decision in principle being made by one part of the Policy Secretariat within the Department at 2.18pm with questions being asked of the Means Test policy section at about 2.32pm for its input into the decision‑making to file a notice of appeal.
Ultimately, Mr Bush made a decision when returning to his office at 4.00pm from another meeting that the notice of appeal ought to be filed and then the Australian Government Solicitor was instructed to file the notice of appeal which led to the filing of the document electronically, out of time. Although this sequence of events, on the particular day, is disappointing it seems to me that the interests of justice are served in granting an extension of time having regard to some factors I will mention in a moment. It would seem to me to be an improper exercise of the discretion to hold the litigant out of a determination of questions it seeks to agitate in the exercise of the judicial power of the Commonwealth on the footing that there were some unfortunate events which occurred on the assumed last day for filing of the document although the assumed time was itself an error. The actual time limited for filing an appeal expired on either 24 or 25 July 2013. However, the error in the calculation of the time has been recognised and accepted as an error by Mr Hamilton.
The interests of justice are properly served having regard to the explanation of the delay, in my view, in allowing the litigant to agitate the question it seeks to agitate in the appeal on the footing or assumption that there is a serious question to be agitated in the appeal. I use the phrase “serious question” but, in truth, the question is whether there is an arguable question to be agitated. I use the phrase “serious question” because it seems to me that there is more than an arguable question alive in the proposed appeal.
In the decision of the Tribunal, a question arose as to whether or not there had been an “entry contribution” into the residential or retirement home arrangements adopted by Mr and Mrs Charlish. The Tribunal came to a decision about rental questions in that context, having regard to a decision which it relied upon described as Secretary, Department of Social Security v Knight (1996) 72 FCR 115, otherwise known as the Knight decision. The Tribunal relied upon the statement of principle derived from the Knight decision in determining the question before it so far as the issues alive with Mr and Mrs Charlish were concerned.
In dealing with that matter, the Tribunal did not turn its mind expressly on the face of the reasons to the operation of s 13(3AA) which forms part of the definition of rent in Part 1.2 of the Social Security Act 1991 (Cth). It seems to me that if the Tribunal was to act dispositively in the matters before it in reliance upon the Knight decision, it would need to have dealt with that decision in the context of s 13(3AA), which was introduced to address expressly the outcome in the Knight decision. It may be that the Tribunal inferentially dealt with that question in paragraphs of its reasons and it may be that s 13(3AA) which deals in part with the definition of rent is not enlivened by reason of other findings made by the Tribunal. However, I am satisfied that that matter is itself at least a seriously arguable question.
It follows from these observations that I am satisfied that there is an explanation for the delay which demonstrates that the imperative of the timeframe required by the legislation was not ignored. It could have been better dealt with and there ought not to have been the mistake that gave rise to the miscalculation of the relevant date. However, the determination of questions on an application like this, involving the exercise of a discretion, ought not to decisively be influenced by a mistake made by a person which is properly explained and particularly in circumstances where it is accepted by the respondent to the application that there is no prejudice to the respondent.
It follows from these observations that time is to be extended for the filing of a notice of appeal.
Because there is no filed notice of appeal and the time cannot be extended to the date of filing to validate the filing, the order will be that time will be extended for seven days from today for the filing of a notice of appeal.
I certify that the preceding nineteen (19) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Greenwood. Associate:
Dated: 18 March 2014
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