Valkai and Secretary, Department of Family and Community Services

[2005] AATA 80

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2005] AATA 80

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No N2004/1522

GENERAL ADMINISTRATIVE DIVISION		)
Re		FRANK VALKAI

Applicant

And SECRETARY, DEPARTMENT OF FAMILY AND COMMUNITY SERVICES

Respondent

DECISION – APPLICATION FOR EXTENSION OF TIME

Tribunal Mrs Josephine Kelly, Senior Member

Date17 January 2005

PlaceSydney

Decision Pursuant to s 29(7) of the Administrative Appeals Tribunal Act1975, the time in which the Applicant can lodge his application is extended to the period up to and including close of business on 23 November 2004.

[sgd] Senior Member

CATCHWORDS

SOCIAL SECURITY – extension of time – application 6 years out of time – whether acceptable explanation for delay – whether fair and equitable in the circumstances – applicant unaware of appeal rights – prejudice to applicant’s livelihood from previous decision arising only now – application granted
LEGISLATION
Social Security Act (1991) sections 1213, 1237A, 1237AD
CASELAW
Hunter Valley Developments Proprietary Limited v The Minister for Home Affairs and Environment (1984) 58 ALR
Zizza v The Federal Commissioner of Taxation (1999) 55 ALD 451
Kuljic v The Secretary, Department of Social Security (1994) 33 ALD 121

REASONS FOR DECISION

17 January 2005 Mrs Josephine Kelly, Senior Member      

1. This is my decision in the matter of Frank Valkai and The Secretary, Department of Family and Community Services. Mr Valkai has applied pursuant to section 29(7) of the Administrative Appeals Tribunal Act for an extension of time within which to appeal against the decision of the Social Security Appeal Tribunal made on 28 October 1998. That decision confirmed that a debt be raised against Mr Valkai for over payment of Newstart allowance.

2.      In addition to the debt, Mr Valkai was charged with an offence of knowingly obtaining payment when not payable.  He said he pleaded guilty to that offence on advice from a solicitor.  A good behaviour bond for two years was imposed.  The Department's computer records show the sentence was imposed on 9 April 1999.  Mr Valkai believed he was not sentenced until after he had repaid the debt which the Department's records show occurred on 16 February 2000.  I do not need to resolve this difference for the purpose of this decision.

3.      The consequence for Mr Valkai is that renewal of his security guard licence was refused last year because of the criminal offence.  He has appealed against that refusal to the appropriate review body and the hearing is to take place in March of this year.  Mr Valkai had a five year licence.

4.      He explained how the overpayment of the Newstart allowance occurred.  He said he did not receive the dole forms and did not know he was being paid.  He also did not receive payment notices which it was conceded by Centrelink were not sent during the relevant period. 

5.      He was working as a security guard at the time and his work payments and Newstart allowance were paid into the same account.  He did not notice those payments and took little notice of the balance of the account.  At the relevant time, the security work varied.  When there was little work he lodged an application for Newstart allowance.  At the time he also had family problems and was kicked out of home.  He also believed that someone was taking his mail.  He said he did not receive several packages.

6.      The implication was that the forms Centrelink sent to him had also gone missing.  He also tried to establish a business unsuccessfully with the assistance of his father whom he has paid back.  Do the circumstances set out by Mr Valkai establish grounds for an extension of time?

7.      Mr Zhang appearing for the Department opposed the application.  I have the benefit of comprehensive submissions which usefully refer to the waiver provisions of the Social Security Act (1991) sections 1213, 1237A and 1237AD and cases which deal with the extension of time period including Hunter Valley Developments Proprietary Limited v The Minister for Home Affairs and Environment (1984) 58 ALR at page 305 in which Justice Wilcox said:

“The “prescribed period” of 28 days is not to be ignored.  Indeed, it is a prima facie rule that proceedings commenced outside the period will not be entertained. 

It is a precondition to the exercise of the discretion in his favour that the application for an extension of time show an “acceptable explanation of the delay” and that it is “fair and equitable in the circumstances” to extend time.”

8. Some relevant factors that may be referred to have been set out in the matter of Zizza v The Federal Commissioner of Taxation (1999) 55 ALD 451 and those factors include merits of the applicant's case and significant issue to be determined, length of delay, awareness of rights and if there is an acceptable reason for the delay.

9. A further case referred to by Mr Zhang was Kuljic v The Secretary, Department of Social Security (1994) 33 ALD 121 where Justice Von Doussa said at page 122:

“One of the principal considerations to be addressed in deciding whether it is fair and equitable in all the circumstances to extend time is whether the merits of the proposed appeal are such that if an extension of time is granted there is some prospect of success in the appeal.  If consideration of the merits indicate that there is no question to be agitated on appeal, and there is no prospect of success, it would be futile to grant an extension of time and most unjust to the respondent to subject the respondent to the costs of defending a pointless appeal.”

10.     Section 1237A does not apply in this case as there is no administrative error made by the Commonwealth.  Mr Zhang argued that section 1237AD did not apply.  He said the provisions provide for a waiver of debt if there are special circumstances that make it desirable to do so.  In this case he said Mr Valkai knowingly failed to advise the Commonwealth of his correct earnings over an extending period of time.  He referred to the length of delay which was about six years and that the reason for the 28 day time limit was to have a finality for government decisions.

11.     The SSAT decision was despatched on 11 November 1998.  Mr Valkai lodged his application in this Tribunal on 23 November 2004.  I accept that there has been a very lengthy delay.  However, I am also concerned that Mr Valkai's ability to earn an income is at risk because of the criminal offence arising from the decision under review.

12.     I conclude that Mr Valkai was not concerned about appealing against the decision because from 1998 until 2004 there had been no adverse consequence for his ability to earn a living.  He also said that he was unaware until last year where he contacted an assistance line that he had such a right.

13.     Although the SSAT decision may have spelt out that right, I accept that Mr Valkai did not appreciate the consequences of not exercising it assuming he understood what was meant.  I have some concern from his evidence that his ability to understand formal documents is rather limited.  Also at the time, he was paying off the debt.  However, as stated above, most importantly, it was only last year that his livelihood was put at risk.

14.     I was impressed by Mr Valkai's efforts to earn his living and not rely on the dole.  Mr Zhang's argument that Mr Valkai knowingly failed to advise the Commonwealth of his earnings is not beyond argument.  I consider that Mr Valkai should have the opportunity to put his circumstances before this Tribunal.

15. Accordingly, I extend the time for lodging the application pursuant to section 29(7) until 23 November 2004. Those are my reasons for the decision.

I certify that the 15 preceding paragraphs are a true copy of the reasons for the decision herein of Mrs Josephine Kelly, Senior Member

Signed: Guy Moloney           .....................................................................................

Associate

Date/s of Hearing  13 January 2005
Date of Decision  17 January 2005
Applicant’s Representative      Self           
Advocate for the Respondent   Andrew Zhang