Whelan and Secretary, Department of Social Services (Social services second review)
[2019] AATA 6
•9 January 2019
Whelan and Secretary, Department of Social Services (Social services second review) [2019] AATA 6 (9 January 2019)
Division:GENERAL DIVISION
File Number(s): 2018/5739
Re:Maree Whelan
APPLICANT
AndSecretary, Department of Social Services
RESPONDENT
DECISION
Tribunal:Chris Puplick AM, Senior Member
Date:09 January 2019
Place:Sydney
The extension of time application is refused.
............................[sgd]............................................
Chris Puplick AM, Senior Member
CATCHWORDS
PRACTICE AND PROCEDURE – extension of time – delay of 11 years in lodging application - explanation for delay – whether Applicant rested on her rights - where prejudice would be incurred by respondent and public by allowing extension of time –merits of substantive application – extension of time refused
LEGISLATION
Administrative Appeals Tribunal Act 1975 (Cth)
CASES
Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541
Crick and Prosegur Australia Pty Ltd [2016] AATA 313
Frugtniet v Secretary, Department of Social Services [2017] AATA 577
Hicks and Secretary, Department of Education, Employment and Workplace Relations [2008] AATA 1049
Hyde and Secretary, Department of Social Services [2017] AATA 1329
Jamal v Secretary, Department of Social Services [2018] FCA 513
McKenzie and Secretary, Department of Social Security [1998] AATA 841
Re Mulheron and Australian Telecommunications Corporation [1991] 23 ALD 309
Re Nicholson and Secretary, Department of Social Security [1990] AATA 212
Re Romeo and Secretary, Department of Social Security [1992] 26 ALD 248
Ronaki v Minister for Home Affairs [2018] FCA 427
REASONS FOR DECISION
Chris Puplick AM, Senior Member
09 January 2019
Ms Maree Whelan (the Applicant) applied to the Tribunal on 18 September 2018 for an extension of time under section 29(7) of the Administrative Appeals Tribunal Act 1975 (Cth) (the Act) in order to lodge an appeal against a decision made by the former Social Services Appeals Tribunal[1] (SSAT) on 23 August 2007.
[1] The SSAT was amalgamated into the Administrative Appeals Tribunal on 1 July 2015.
The Act provides that appeals against decisions falling within the Tribunal’s remit are to be lodged within 28 days (section 29(2)) unless an extension of time is granted. The application has been lodged just over eleven (11) years out of time.
It should be noted that the Applicant appealed against the original SSAT decision, within the prescribed time, on 26 September 2007 but then withdrew that appeal on 23 October 2007.
SUBSEQUENT APPEALS
The Applicant is entitled to lodge a second (or subsequent) application for review of a decision despite having withdrawn an earlier appeal.[2] This right is not contested by the Secretary (the Respondent).
[2] Re Nicholson and Secretary, Department of Social Security [1990] AATA 212; Re Mulheron and Australian Telecommunications Corporation [1991] 23 ALD 309; Hicks and Secretary, Department of Education, Employment and Workplace Relations [2008] AATA 1049.
TRIBUNAL PROCEEDINGS
The Tribunal received the Applicant’s request for an extension of time on 18 September 2018 and processed it in the normal fashion, notifying the Applicant of both receipt of her application and then of the date for the interlocutory hearing. Notifications were sent to the postal address provided by the Applicant who did not have/provide an email address. In the weeks preceding the hearings repeated attempts were made to contact the Applicant both by post, by sms messaging to the mobile telephone number provided and by attempts to contact her on a landline number provided by her to the Department. No response was received to any of the mobile phone contacts and the landline number was reported as “disconnected.” On the day of the hearing numerous further attempts were made to contact the Applicant who failed to respond to any of them.
Although section 42A(2) of the Act provides that a matter may be dismissed if the Applicant fails to appear, this section relates to appeals in relation to a “review of a decision” or a “directions hearing”. Nevertheless the Tribunal is of the opinion that this section is also applicable in this instance and on this basis the application should be refused.
However, in the event that the Tribunal is in error on this point, it has given consideration to the application on the basis of the material put before it by the Applicant in their formal application of 18 September 2018.
EXTENSION OF TIME APPLICATIONS
Appeals for extensions of time may be granted by the Tribunal under section 29(7) of the Act
“.. if the Tribunal is satisfied that it is reasonable in all the circumstances to do so.”
The immediate issue before the Tribunal is whether or not the delay (11 years) is reasonable or not having regard to all the circumstances and the interests of all relevant parties.
In dealing with extension of time applications the Tribunal is mindful of the rationale set out clearly by McHugh J in the High Court case of Brisbane South Regional Health Authority v Taylor[3] indicating why statutory time limits are an important part of the legal process. His Honour noted that:
First, as time goes by, relevant evidence is likely to be lost. Second, it is oppressive, even “cruel”, to a defendant to allow an action to be brought long after the circumstances which gave rise to it have passed. Third, people should be able to arrange their affairs and utilise their resources on the basis that claims can no longer be made against them.
The final rationale for limitation periods is that the public interest requires that disputes be settled as quickly as possible.
His Honour also noted that:
An applicant for an extension of time who satisfies those conditions [i.e. the conditions laid down in the relevant Act] is entitled to ask the court to exercise its discretion in his or her favour. But the applicant still bears the onus of showing that the justice of the case requires the exercise of the discretion in his or her favour.[4]
[3] Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541 at [552]-[553]. Footnotes and citations omitted.
[4] Ibid at [551].
It is generally accepted that the “check-list” outlined by Wilcox J in Hunter Valley Developments Pty Ltd and Others v Minister for Home Affairs and Environment[5] should be taken as the guide by this Tribunal in determining EOT matters.
[5] Hunter Valley Developments Pty Ltd and Others v Minister for Home Affairs and Environment (1984) 3 FCR 344.
That list provides as follows:
·an applicant must show an “acceptable explanation of the delay” and that it is “fair and equitable in the circumstances” to extend time;
·a distinction is to be made between an applicant who has “rested on his rights” and allowed the decision-maker to believe that the matter was finally concluded, and one who has continued to make the decision-maker aware that he or she contests the finality of the decision;
·any prejudice to the respondent caused by the delay;
·whether any others or the general public would suffer any prejudice as a result of the extension, or established practices be upset;
·the merits of the substantial application; and
·“considerations of fairness as between the applicant and other persons” in a similar position.
Wilcox J did, however, warn that:
Although the section [s 11 of the Administrative Decisions (Judicial Review) Act] does not, in terms, place any onus of proof upon an applicant for extension, an application has to be made. Special circumstances need not be shown, but the court will not grant the application unless positively satisfied that it is proper so to do. The “prescribed period”….. is not to be ignored.” (Ralkon v Aboriginal Development Commission (1982) 43 ALR 535 at 530). Indeed it is the prima facie rule that proceedings outside that period will not be entertained (Lucic v Nolan (1962) 45 ALR 411 at 416). It is a precondition to the exercise of discretion in his favour that the applicant for extension show an “acceptable; explanation of the delay” and that it is “fair and equitable in the circumstances” to extend time. (Duff v Freijah (1982) 43 ALR 479 at 485; Chapman v Reilly, Neaves J, 9 December 1983, not reported at 7).[6]
[6] Hunter Valley Developments Pty Ltd and Others v Minister for Home Affairs and Environment (1984) 3 FCR 344 at [348].
In considering each of the Hunter Valley criteria:
1.The Applicant has provided no acceptable explanation for the delay in lodging this application, although the Tribunal notes that there is no legislative requirements that such an explanation be provided[7]. However, noting the comments of Wilcox J (above) it is clear that there is nothing before the Tribunal to allow it to be “positively satisfied” that there is a reason for such an application to be granted.
2.Any reasonable decision-maker would, in the opinion of the Tribunal, come to the conclusion that the Applicant had rested on her rights[8] in occasioning a delay of 11 years before seeking to resume proceedings which she had discontinued previously. The length of the delay itself meets the test of being “unjustifiable and inexcusable”[9] such that the application should be rejected on that ground alone.
3.There is clearly prejudice to the Respondent should it be placed in a position that its decisions were to be subject of attack eleven years after being made, initially appealed against and then allowed to remain in place. Prejudice arises from the inherent passage of time[10] and the burden which this places on responding agencies or parties.
4.Established practices would be upset to the extent that delays of this magnitude would have the effect of bringing the whole appeal and review system into disrepute were such lengthy delays countenanced by the Tribunal without overwhelming and compelling evidence to do so.
5.In this instance the Tribunal is also satisfied that, on the basis of the material submitted, the appeal itself is frivolous and lacking in any degree of substance. This alone would be sufficient for its rejection[11]. In relation to matters with no prospect of success, the Federal Court has stated:
“….. it will seldom be in the interests of justice to grant an extension of time where an appeal would have little prospect of success, given the additional resource demands that it would impose upon the parties and the Court, and the inevitable impact it would have on other users of the Court.”[12]
[7] McKenzie and Secretary, Department of Social Security [1998] AATA 841 at [25].
[8] Re Romeo and Secretary, Department of Social Security [1992] 26 ALD 248 at [19].
[9] Hyde and Secretary, Department of Social Services [2017] AATA 1329 at [31].
[10] Frugtniet v Secretary, Department of Social Services [2017] AATA 577.
[11] Ronaki v Minister for Home Affairs [2018] FCA 427 at [37].
[12] Jamal v Secretary, Department of Social Services [2018] FCA 513 at [6].
To allow an appeal eleven years out of time would be unfair in relation to all those other applicants who conform with the statutory requirements related to time limits, or whose appeals for an extension of time are more reasonable, well based and meritorious.
CONCLUSION
This Tribunal in Crick stated clearly that “All the circumstances of the case must be considered, the overriding consideration being whether it is ‘reasonable in all the circumstances’ to grant the extension.”[13]
[13] Crick and Prosegur Australia Pty Ltd [2016] AATA 313 at [14].
For the reasons outlined above the Tribunal finds that it is not reasonable in all the circumstances for the extension of time to be granted.
DECISION
The extension of time application is refused.
I certify that the preceding 18 (eighteen) paragraphs are a true copy of the reasons for the decision herein of Chris Puplick AM, Senior Member
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Associate
Dated: 09 January 2019
Date(s) of hearing: 8 January 2019 Solicitor for the Respondent: Mr G Lozynski, Department of Human Services (by phone)
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