Trikeriotis v Minister for Community Services [CSD]

[2003] NSWADTAP 31

Appeal Panel - Internal

CITATION:	Trikeriotis v Minister for Community Services [CSD] [2003] NSWADTAP 31
PARTIES:	APPELLANT Harry Trikeriotis RESPONDENT Minister for Community Services
FILE NUMBER:	039023
HEARING DATES:	25/07/2003
SUBMISSIONS CLOSED:	07/25/2003
DATE OF DECISION:	08/01/2003
DECISION UNDER APPEAL:	Trikeriotis v Minister for Community Services [2003] NSWADT 172
BEFORE:	Hennessy N - Magistrate (Deputy President); Gelin B - Member; Monoghan-Nagle L - Member
CATCHWORDS:	leave to appeal out of time
MATTER FOR DECISION:
FILE NUMBER UNDER APPEAL:	024059
DATE OF DECISION UNDER APPEAL:	04/01/2003
LEGISLATION CITED:	Administrative Appeals Tribunal Act 1975 Administrative Decisions Tribunal Act 1997 Children (Care and Protection) Act 1987 Interpretation Act 1987
CASES CITED:	Lupevo Pty Ltd t/a Ampol Nabiac -v- Bree [2002] NSWADTAP 9 Meschino and Secretary, Department of Family and Community Services [2001] AATA 342 Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344 Goldie and Minister for Immigration and Multicultural Affairs [2001] AATA 513 Hunter Valley Developments, Maric v Comcare (1993) 40 FCR 244
REPRESENTATION:	APPELLANT In person RESPONDENT D Wells, solicitor
ORDERS:	The appellant’s application for the appeal to be accepted out of time is refused.

Section 126 of the Administrative Decisions Tribunal Act 1997 applies to this decision.
Section 126 provides
(1A) This section applies only to the following:

(a) proceedings in the Community Services Division of the Tribunal,

(b) appeals to an Appeal Panel from a decision made by the Tribunal in the Community Services Division,

(c) such other proceedings (or class or classes of proceedings) as may be prescribed by the regulations for the purposes of this section.


(1) A person must not, except with the consent of the Tribunal, publish or broadcast the name of any person:

(a) who appears as a witness before the Tribunal in any proceedings, or

(b) to whom any proceedings before the Tribunal relate, or

(c) who is mentioned or otherwise involved in any proceedings before the Tribunal,


whether before or after the proceedings are disposed of.
Maximum penalty: 10 penalty units or imprisonment for 12 months, or both.
(2) This section does not prohibit the publication or broadcasting of an official report of the proceedings that includes the name of any person the publication or broadcasting of which would otherwise be prohibited by this section.
(3) For the purposes of this section, a reference to the name of a person includes a reference to any information, picture or other material that identifies the person or is likely to lead to the identification of the person.

Introduction

1 This is an appeal against a decision of the Community Services Division of the Tribunal dismissing an application because it was lodged out of time. There was no dispute that the application was lodged out of time and the only question for the Tribunal was whether it should exercise its discretion to accept the application despite that fact.

2 In summary, the Tribunal found that the applicant, Mr Trikeriotis, became aware of the respondent’s decision to refuse his application for a licence to operate a child care service on 17 July 2002. The respondent did not advise him of his right to request an internal review and, after eventually seeking legal advice, the applicant lodged an application with the Tribunal on 10 October 2002, some 3 months later.

3 Ironically, his appeal to the Appeal Panel was also lodged out of time. Whether or not the Appeal Panel should accept his appeal even though it was lodged out of time, is the initial question the Panel must consider.

Jurisdiction

4 The Appeal Panel has jurisdiction to hear this matter pursuant to s 113 of the ADT Act. That section states that:

(1) A party to proceedings in which an appealable decision of the Tribunal is made may appeal to the Tribunal constituted by an Appeal Panel.

(2) An appeal under this Part:

(a) may be made on any question of law, and

(b) with the leave of the Appeal Panel, may extend to a review of the merits of the appealable decision.

(3) An appeal under this Part must be made:
(a) within 28 days after the Tribunal furnishes the party with written reasons for the appealable decision under section 89, or

(b) within such further time as the Appeal Panel may allow.

(4) An appeal under this Part is to be made in the manner prescribed by the rules of the Tribunal.
Out of time

5 Section 113(3) of the ADT Act provides that an appeal must be made within 28 days after the Tribunal furnishes the party with written reasons for the appealable decision or within such further time as the Appeal Panel may allow. The Administrative Decisions Tribunal Rules (Transitional) Regulation 1998, Schedule 1, s 39 sets out the manner for making an appeal to an Appeal Panel.

(1) For the purposes of section 113 (4) of the Act, an appeal to an Appeal

Panel may be made by lodging a notice of appeal with the Tribunal.

(2) A notice of appeal must be:

(a) in or to the effect of the approved form, and

(b) duly completed, and

(c) accompanied by the applicable fee (if any) for the lodgement of the appeal.

(3) An appellant who lodges a notice of appeal must serve on each respondent a sealed copy of the notice as soon as practicable after lodging the notice.
6 The Tribunal’s decision is dated 1 April 2003. Mr T says he received the decision on 3 April 2003 and we accept that evidence. In accordance with s 36(1) of the Interpretation Act 1987, “the time shall be reckoned exclusive of” 1 April 2003. Consequently, twenty-eight days from 3 April 2003 is 1 May 2003. For the appeal to have been lodged within 28 days, it should have been filed with the Tribunal by close of business on 1 May 2003. The Notice of Appeal was faxed to the Tribunal on 30 April but it was not accompanied by the filing fee as required by the Rules. It was stamped as received by the registry on 6 May 2003 and that is the date that the filing fee of $200 was paid. Consequently the Notice of Appeal was not lodged within the 28 day period required by the ADT Act. Under s 113(3)(b) of the ADT Act, the Appeal Panel must consider whether it should allow the appellants further time to lodge the appeal. The respondent submitted that the appeal was lodged out of time and that the Tribunal should not extend the time for lodgement.

Factors relevant to accepting an appeal out of time

7 The factors relevant to a consideration of this issue were set out by the Appeal Panel in Lupevo Pty Ltd t/a Ampol Nabiac -v- Bree [2002] NSWADTAP 9. The Tribunal had refused an application by Lupevo Pty Ltd t/a Ampol Nabiac to have the complaint dismissed under s 111 of the Anti-Discrimination Act 1977. Lupevo Pty Ltd appealed against that decision but the appeal was lodged six weeks out of time. The Appeal Panel refused the appellant’s application for leave to file an appeal out of time. At [5] to [9], the Appeal Panel set out the relevant principles to be applied when considering whether to exercise its discretion to extend time:

The section invokes a broad discretion in the Panel to extend the time for the lodgement of the appeal. In that respect, it is on all fours with s 29(7) of the Administrative Appeals Tribunal Act 1975 (Clth) (the AAT Act), albeit that provision refers to the time within which application may be made to the Commonwealth Administrative Appeals Tribunal (the AAT) for a review of an administrative decision. Section 29(7) of the AAT Act has been the subject of a number of AAT decisions, which are helpful in the present context.

In Meschino and Secretary, Department of Family and Community Services [2001] AATA 342 the AAT referred to Re Schmack and Defence Force Retirement and Death Benefits Authority (1981) 3 ALN N77 in reliance upon a number of factors relevant to the exercise of the discretion, which may be re-stated as follows:-

the reason for the failure to lodge the appeal.

the length of the delay in lodging the appeal.

the diligence shown by the Appellant in lodging the appeal after it came to his notice that there were circumstances justifying an appeal.

the nature of the decision below and the consequences of the decision upon the Appellant's rights.

the adequacy of the information conveyed to the Appellant at the time the decision was notified to him, both as to the reasons for the decision and of the Appellant's entitlement to appeal.

the extent of the Appellant's knowledge of the relevant statutory provisions.

the possible prejudice to the Respondent to the appeal.

The AAT also referred to Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344 with approval. The principles to be applied in the exercise of the discretion which were summarised by Wilcox J in Hunter Valley Developments were also applied in Goldie and Minister for Immigration and Multicultural Affairs [2001] AATA 513. Those principles relevantly are:-
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.

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

Any prejudice to the Respondent that would be caused by granting an extension of time is relevant.

The merits of the appeal are relevant.

Fairness of granting the extension of time as between the applicant and other persons in a like position is relevant.

To the last-mentioned principle may be added general considerations of fairness and equity: Hunter Valley Developments, Maric v Comcare (1993) 40 FCR 244 at 249.

Length of delay and Reasons for it.

8 The length of the delay in this case was 5 days. That is a short time, however the appellant could give no persuasive explanation for the delay in lodging the appeal. He said that he “misjudged it by a couple of days” and that they appealed as quickly as they could. The appellant did not dispute that he received a letter from the Tribunal when the reasons were sent to him, telling him that he had 28 days to appeal from the decision.

Prejudice to the parties

9 The applicant said that he would be prejudiced if the Appeal is not heard because it would prevent him from having the substantive matter determined. He said that he is “broke” and that the respondent has slandered him. He does not have a child care licence at the moment and is just operating a before and after school service. He said that his wife will apply for a licence but is still aggrieved by the alleged conduct of the respondent in investigating the child care service which he was operating and believes that the decision not to grant him a licence is not justified. Mr Wells, on behalf of the respondent, said that there would be very little, if any, prejudice to Mr Trikeriotis if the appeal is not heard because there is no current development consent in existence to cover the entire property at 588 King Georges Road Penshurst. The existence of the required development consents is a pre-requisite to the granting of a licence. There is a dispute which will be determined shortly in the Land and Environment Court in relation to the existence or otherwise of a development consent in relation to part of 588 King Georges Road. We are not in a position to make any finding about the existence or otherwise of the necessary development consents or whether the licence application would have to be refused in any case because of the absence of the relevant development consent.

Strength of the appellant’s appeal

10 The respondent submitted, and we agree, that Mr Trikeriotis’ appeal has very little prospect of success because he does not appear to have identified any question of law.

11 In its decision, the Tribunal correctly identified two relevant requirements in s 55(1) of the ADT Act which must be satisfied before a person may apply to the Tribunal for a review of a reviewable decision. Those requirements are firstly that an internal review is taken to have been finalised under section 53 (9), and secondly that the application is made within such period as may be prescribed by the rules of the Tribunal following the date on which the internal review is taken to have been finalised under s 53(9).

12 In relation to the first requirement, an internal review is taken to have been finalised under s 53(9) when the applicant is notified of the outcome of the review, or where the applicant is not notified of the outcome of the review within 21 days after the application for the review is lodged. In this case, since no application for internal review was ever made, the internal review cannot have been “finalised” or taken to have been finalised under s 53(9). Similarly, the applicant has not complied with the second relevant requirement which is that the application is made within 28 days from the date the internal review was finalised or deemed to be finalised. However, in situations where either or both of these requirements has not been complied with, section 55(2) gives the Tribunal discretion to review a reviewable decision in circumstances where the reviewable decision has not been the subject of internal review.

13 In this case the Tribunal must be satisfied, pursuant to s 55(2)(c) that “it is necessary for the Tribunal to deal with the application in order to protect the person’s interests and the application to the Tribunal was made within a reasonable time following the decision of the administrator concerned.” Section 55(3) lists the factors to which the Tribunal is to have regard in determining whether an application to the Tribunal was made within a reasonable time:

(3) In determining whether a late application for internal review was unreasonably refused or whether an application to the Tribunal was made within a reasonable time for the purposes of subsection (2), the Tribunal is to have regard to:
(a) the time when the applicant became aware of the making of the decision, and

(b) in a case to which subsection (2) (b) applies—the period prescribed by or under section 53 for the lodging of an application for an internal review, and

(c) such other matters as it considers relevant.

14 The Tribunal is bound to take into account the factors listed in s 55(3)(a) and (c) as 55(3)(b) does not apply to the facts of this case.

15 What factors did the Tribunal take into account? The Tribunal took into account, at [42] the time when the applicant became aware of the making of the decision. The Tribunal took other factors it considered relevant into account including:

· The fact that the respondent had not advised the applicant of his rights of internal review or of appeal to the Tribunal; [45]

· The fact that the applicant sought legal advice in September 2002 but did not take any steps to apply to the Tribunal for a further 3 weeks [46]

· The applicant’s explanation for the delay, namely that he was unaware of his rights and that he had been pre-occupied with defending alleged breaches of his child care licence in the Local Court.[42]

16 The Tribunal appears to have exercised its discretion lawfully. It has taken into account the considerations that it is bound to take into account. Furthermore it has taken into account all the relevant considerations and has not taken into account any irrelevant considerations. In those circumstances the appellant’s case on appeal is extremely weak.

17 Having weighed all the factors relevant to determining whether we should give Mr Trikeriotis leave to appeal out of time, we are of the view that we should not do so. He could provide no reason for the delay in lodging the appeal and the appeal itself is unlikely to succeed. Although Mr Trikeriotis is only 5 days late with the appeal, prima facie, proceedings commenced outside the prescribed period will not be entertained. The factors favouring acceptance of his appeal out of time are insufficient to persuade us that we should do so.

I