Stewart and Secretary, Department of Employment
[2016] AATA 984
•2 November 2016
Stewart and Secretary, Department of Employment [2016] AATA 984 (2 November 2016)
Division
General Division
File Number
2016/5256
Re
Beth Margaret Stewart
APPLICANT
And
Secretary, Department of Employment
RESPONDENT
DECISION
Tribunal Senior Member T. Tavoularis
Date 2 November 2016 Date of written reasons 2 December 2016 Place Brisbane The application for extension of time is refused.
............................[sgd]..........................................
Senior Member T. Tavoularis
EXTENSION OF TIME - Application for Review filed out of time - Application for Extension of Time considered – Inadequate reason for delay - Unconvincing Prospects of Success - Extension of Time Refused
LEGISLATION
Administrative Appeals Tribunal Act 1975 (Cth), s 29
Fair Entitlements Guarantee Act 2012
Fair Work Act 2009 (Cth)
Freedom of Information Act 1982 (Cth)
Industrial Relations Act 1999 (Qld)CASES
Hunter Valley Developments Pty Ltd & Ors v The Hon. Barry Cohen, Minister for Home Affairs and Environment (1984) 3 FCR 244; [1984] FCA 186
ReHewson and Australian Postal Corporation (1998) 50 ALD 994
WRITTEN REASONS
Senior Member T. Tavoularis
2 December 2016
INTRODUCTION
The issue before the Tribunal arises pursuant to s 29(7) of the Administrative Appeals Tribunal Act 1975 (Cth) (the “AAT Act”). It involves a question of whether the Tribunal is satisfied that it is reasonable in all the circumstances to extend the time for Ms Stewart (“the Applicant”) to make an Application for Review of a decision dated 31 May 2016 made by the Secretary, Department of Employment (“the Respondent”) under the Fair Entitlements Guarantee Act 2012 (“FEG Act”).
BACKGROUND
Extension of Time Application and Interlocutory Hearing
2.The Applicant filed an Application for Extension of Time on 28 September 2016. The Applicant requested an extension of time until 14 October 2016 to file an Application for Review. At the request of the Tribunal, the Applicant subsequently filed an Application for Review on 5 October 2016.
An Interlocutory hearing was listed to be held by telephone on 2 November 2016. On 1 November 2016, the Respondent lodged written submissions with the Tribunal opposing the Applicant’s Application for Extension of Time. The Application for Extension of Time proceeded before me on an interlocutory basis on 2 November 2016.
At the conclusion of the Interlocutory hearing, I delivered oral reasons refusing the extension of time. The Respondent has subsequently requested written reasons.
MATERIAL CONSIDERED
5.During the course of this interlocutory hearing, I had regard to the following material:
a)Oral submissions from the Respondent’s representative;
b)Oral submissions from the Applicant;
c)
The Respondent’s Submissions opposing an Extension of Time, received
1 November 2016;
d)The balance of material appearing on the Tribunal’s file.
REASONS FOR DECISION
The Reviewable Decision
6.
The reviewable decision in this instance was a decision made by the Respondent on
31 May 2016. The identification of the reviewable decision was not disputed by the parties.
APPLICABLE PRINCIPLES FOR AN EXTENSION OF TIME
The Federal Court decision of Hunter Valley Developments Pty Ltd v Cohen, Minister for Home Affairs and Environment (1984) 3 FCR 344[1] established a set of principles to which the Tribunal should have regard in determining whether an extension of time should be granted. At the interlocutory hearing, I considered and invited oral submissions about each principle in turn:
[1] Followed in the subsequent decision of Duong v Australian Postal Corporation (2005) FCA 991; also followed by the Full Federal Court in Mentink v Minister for Home Affairs (2013) FCAFC 113.
(i) Length of delay
8.The Applicant acknowledged she received a letter enclosing a copy of the reviewable decision dated 31 May 2016. To be within the required statutory timeframe of 28 days, the Applicant was due to file her Application for Review by 28 June 2016.
The Applicant filed her Application for Review on 5 October 2016,[2] meaning the Application for Review was a total of 99 days[3] or just over three months outside the prescribed statutory time. The existence of a delay was not resisted by the Applicant. I found that a delay of over three months constituted a significant delay.
[2] Explanatory Note: In the Application for an Extension of Time that was filed with the Tribunal on 28 September 2016, the Applicant requested an extension of time until 14 October 2016. However, the Tribunal is only required to extend the time up to the date an Application for Review is filed.
[3] Explanatory Note: the reviewable decision was received on 31 May 2016 and the Application for Review was filed with the Tribunal on 5 October 2016. This equals 127 days minus the allowable 28 days.
(ii) Explanation for Delay and Awareness of Appeal Rights
10.I considered whether the Applicant provided an acceptable explanation for the delay and whether the Applicant was aware of her appeal rights. It is well established that applications sought to be commenced outside a prescribed period ought not be entertained, unless accompanied by an acceptable explanation for the delay. The rationale for that principle is that a large and heavily regulated entity such as the Respondent is entitled to proceed on the presumption that claims not pursued within applicable time limits can be regarded as finalised.[4]
[4] Re Hewson and Australian Postal Corporation (1998) 50 ALD 994; Hunter Valley Developments Pty Ltd & Ors v The Hon. Barry Cohen, Minister for Home Affairs and Environment (1984) 3 FCR 244; [1984] FCA 186.
In explaining her reason for the delay, the Applicant submitted she failed to lodge the Application for Review within the applicable 28 day statutory period because:
... I have had to obtain information from Fair Entitlements Guarantee under Freedom of Information and Fair Work Ombudsman as well which caused significant delays to me to put together my Appeal documents. I have only received the FOI information from FEG on 13/9/16.
During the Interlocutory hearing, the Applicant submitted the Freedom of Information (“the FOI request”) difficulties somehow arose as a result of the Federal election. The Respondent submitted that the FOI request was independent of the Applicant’s ability to lodge a review with the Tribunal. I accepted the Respondent’s contention that the process of applying for review is independent from an FOI request and the FOI request cannot absolve the Applicant from a statutory obligation to seek prompt review of the reviewable decision.
Neither the Applicant’s oral or written submissions satisfied me that she has provided any acceptable explanation for the delay.
The Applicant accepts she was notified by the Respondent of the 28 day period to lodge an appeal with this Tribunal, via the decision dated 31 May 2016. At the Interlocutory hearing, the Applicant acknowledged she was familiar with the 28 day review period.
I was therefore satisfied the applicant was adequately made aware of her appeal rights.
(iii) Potential Loss to the Applicant
16.I considered whether the Applicant would suffer financial loss as a result of refusing the extension of time. I accepted that aside from the alleged non-payment of wages and leave entitlements of which the Applicant seeks review she will suffer no further financial loss if the Tribunal dismisses her application for an extension of time.
(iv) Prejudice / Unfairness to A Party
17.I considered whether the Respondent would be prejudiced if an extension of time was granted in this matter and note expenses to the Respondent include additional legal fees, instructions and other administrative costs, which, in all probability, would not be recoverable by the Respondent if put to the cost of resisting the Application for Review sought to be agitated. I accept the Respondent’s submission in this regard.
(v) Prospects of Success
18.My final consideration involved the Applicant’s prospects of success in the event the requested extension was granted for her to ventilate and application for review of the decision dated 31 May 2016. Based on the material before me, I accepted the Respondent’s contention that the Applicant has little to no prospects of succeeding in the review of this decision.
Without the benefit of hearing the matter in full, the material presented to me showed that the Applicant’s intention to proceed with an application for review is most likely ill-founded or otherwise misconceived. The material indicates an overwhelming likelihood she has in fact received all she is entitled to under the Fair Entitlements Guarantee Act 2012 (Cth). The maximum amount payable to the Applicant in respect of the 13 week wages entitlement period from 20 January 2015 to 20 April 2015 has been paid.
At the interlocutory hearing, the Respondent’s submissions (with reference to specific documents) made it clear that liability for any annual leave and long service leave entitlements was, on 30 March 2015, transferred from Havcorp Pty Ltd (“Havcorp”) to Keeart Pty Ltd (“Keeart”). This was a consequence of a certain sale contract between Havcorp and Keeart made 30 March 2015, and by operation the Fair Work Act 2009 (Cth) and the Industrial Relations Act 1999 (Qld). I accepted the Respondent’s contentions in this regard.
Considering the virtual absence of any discretion under the FEG Act to disturb the practical effect of the decision dated 31 May 2016, I find this application for review has little to no prospects of success.
CONCLUSION
I find that the applicant has failed to satisfy the relevant principles necessary to cause the Tribunal to exercise its discretion to extend time.
The application for an extension of time is refused.
I certify that the preceding 23 (twenty-three) paragraphs are a true copy of the reasons for the decision herein of Senior Member Tavoularis...................[sgd]..................................
Associate
Dated 2 December 2016
Date of hearing 2 November 2016 Applicant By telephone Respondent By telephone Solicitor for the Respondent HWL Ebsworth Lawyers
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