Yachmenikova and Secretary, Department of Employment and Workplace Relations

[2006] AATA 596

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2006] AATA 596

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No A2006/123

GENERAL ADMINISTRATIVE  DIVISION		)
Re		KATERINA YACHMENIKOVA

Applicant

And SECRETARY, DEPARTMENT OF EMPLOYMENT AND WORKPLACE RELATIONS

Respondent

DECISION

Tribunal Mr S. Webb, Member

Date5 July 2006

PlaceCanberra

Decision Extension of time in which to lodge an application is not granted.

..............................................

Mr S. Webb, Member

CATCHWORDS

PRACTICE & PROCEDURE - Newstart Allowance - extension of time - application to Social Security Appeals Tribunal out of time - claim for arrears - arrears payment precluded by statutory time limit - application futile - no extension granted

Administrative Appeals Tribunal Act 1975 ss 29, 43

Social Security (Administration) Act 1999 ss 109, 152, 179

Maric v Comcare (1993) 17 AAR 259

Duong v Australian Postal Corporation [2005] FCA 991

Comcare v A’Hearn (1993) 45 FCR 441

Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541

Kuljic v Secretary, Department of Social Security (1994) 33 ALD 121

REASONS FOR DECISION

5 July 2006 Mr S. Webb, Member         

1.      Katerina Yachmenikova is claiming payment of Newstart Allowance in arrears.  Her application to the Tribunal for review of a decision of the Social Security Appeals Tribunal is out of time. 

2.      The issue for the Tribunal to determine is whether it is appropriate to extend the time in which Ms Yachmenikova may lodge an application for review.

3.      It is convenient to briefly set out the background facts.  Ms Yachmenikova claimed and was granted Newstart Allowance in October 2004, but failed to satisfy her activity test obligations very soon thereafter.  Her Newstart Allowance was cancelled on 11 October 2004.  Ms Yachmenikova was subsequently treated for a psychological condition in the course of which she was hospitalised.  She was discharged from hospital on 9 January 2005.  With the assistance of her father, Mr Yachmen (who represented her in these proceedings), Ms Yachmenikova reapplied for and was granted Newstart Allowance from 2 February 2005.  Subsequently Ms Yachmenikova requested a review of the decision to cancel her Newstart Allowance.  Her application was out of time. 

4.      On 6 April 2005 an Authorised Review Officer decided that Ms Yachmenikova had not applied for Newstart Allowance because of her medical condition, and decided to back-date her entitlement by four weeks.  However, the ARO also decided that Newstart Allowance could not be paid in arrears from 11 October 2004 because Ms Yachmenikova’s application for review of the cancellation decision was made after the expiration of 13 weeks.

5.      On 23 December 2005 Ms Yachmenikova applied to the Social Security Appeals Tribunal for review of the ARO’s decision.  Her application was out of time.  On 23 February 2006 that tribunal decided to affirm the ARO’s decision because arrears would not be payable to Ms Yachmenikova prior to 23 December 2005 as a result of her late application for review, thereby rendering the review without any possible practical effect.  The Social Security Appeals Tribunal decision was apparently dispatched on 3 March 2006.

6.      Ms Yachmenikova applied to this Tribunal for review on 18 May 2006.

7. Pursuant to subs.29(2) of the Administrative Appeals Tribunal Act 1975 (“the AAT Act”) the time in which a person may apply for review is the period of 28 days from the day on which the person is given the reviewable decision. Ms Yachmenikova had until 31 March 2006 (subject to the manner in which the decision was given) to make her application for review. It follows that Ms Yachmenikova’s application was out of time.

Is it appropriate in all the circumstances to grant an extension of time?

8.      Mr Yachmen informed the Tribunal that he should be given an opportunity to present his daughter’s case.

9. The AAT Act does not set out criteria for the exercise of the Tribunal’s discretion to extend the time in which an application for review may be lodged. However, the discretion must be exercised judicially with regard to the particular facts (Maric v Comcare (1993) 17 AAR 259).

10.     Wilcox J set out guiding principles concerning applications to extend time limits imposed under the Administrative Decisions (Judicial Review) Act 1977 in the often quoted case of Hunter Valley Developments v Cohen (1984) 3 FCR 344 at 348 to 350. Those guiding principles were considered with approval by Edmonds J in Duong v Australian Postal Corporation [2005] FCA 991 at [17]:

“…Those principles may be summarised as follows:

(1) Prima facie, proceedings should be commenced within the prescribed period and an applicant for extension must show ‘an acceptable explanation of the delay’ and that it is ‘fair and equitable in the circumstances’ to extend time;
(2) Any action taken by the applicant, other than by making an application for review, is relevant to the consideration of the question whether an acceptable explanation for the delay has been furnished. A distinction is to be made between the case of a person who, by non-curial means, has continued to make the decision-maker aware that he contests the finality of the decision (who has not ‘rested on his rights’) and a case where the decision-maker was allowed to believe that the matter was finally concluded.
(3) Any prejudice to the respondent including any prejudice in defending the proceedings occasioned by the delay is a material factor militating against the grant of an extension.
(4) However, the mere absence of prejudice is not enough to justify the grant of an extension. In this context, public considerations often intrude. A delay which may result, if the application is successful, in the unsettling of other people or of established practices is likely to prove fatal to the application.
(5) The merits of the substantial application are properly to be taken into account in considering whether an extension of time should be granted.
(6) Considerations of fairness as between the applicants and other persons otherwise in a like position are relevant to the manner of exercise of the court’s discretion.”

11.     As has been observed in the authorities, these guiding principles are not exhaustive in relation to the Tribunal’s discretion.  I note that the absence of a reasonable explanation for the delay in bringing an application is not necessarily determinative of the question whether to grant an extension of time (Comcare v A’Hearn (1993) 45 FCR 441). What is required is the careful consideration of all relevant factors, weighing the related evidence, to determine whether it is fair and equitable in the particular circumstances to grant an extension of time. In that consideration prescribed limitation periods must be regarded as the general rule and any extension of time is the exception to the general rule (Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541).

12.     Mr Yachmen stated that the reason for the delay in lodging the application for review was that he was busy and his daughter was in employment elsewhere.  He accepted that he knew and had been informed that a 28 day time limit applied to an application for review of the Social Security Appeals Tribunal decision (see Social Security Appeals Tribunal letter dated 3 March 2006).  It does not appear that Mr Yachmen or his daughter informed the Respondent of their intention to apply for review.

13.     The Respondent submitted that a decision to grant an extension of time will cause inconvenience and will be unfair to other people who have not attempted to lodge applications for review that are out of time or have been unsuccessful in that regard.  I am satisfied that inconvenience does not represent a significant prejudice to the Respondent.  However, the public interest in a consistent approach to applying the general rule concerning adherence to statutorily imposed time limits, and any resultant unfairness to others who have complied with the general rule must be taken into account.

14.     To that extent I accept that there will be prejudice to the public interest if an extension of time is granted.  I note that the substantive matter in issue does not raise serious issues of public importance concerning the application or maladministration of the applicable law, and there will be no public interest prejudice forthcoming if the extension of time is not granted.

15.     In the Respondent’s submission the significant and compelling factor against the grant of an extension of time is the lack of merit in the application.  I am compelled to agree.

16. Ms Yachmenikova’s various applications for review of the decision to cancel her Newstart Allowance on 11 October 2004 have each been out of time. In each case the applicable legislation has applied to reduce the period in which arrears may have been payable, even if she was to succeed (see ss109 and 152, Social Security (Administration) Act 1999 (“the Administration Act”)). That effect is made explicit in the reasons given for the Social Security Appeals Tribunal decision.

17. To be clear, even if the Social Security Appeals Tribunal had found in her favour on the merits of her case s152(4) of the Administration Act applied to prevent payment of any arrears prior to the date of her application to that tribunal for review, that is, prior to 23 December 2005. Effectively, a favourable decision could have no practical effect as Ms Yachmenikova was in employment on that date.

18. Under s179 of the Administration Act application may be made to the Tribunal for review of the Social Security Appeals Tribunal decision. In the case of such a review, the decision that is before the tribunal is (in the present case) the decision of the ARO as affirmed by the Social Security Appeals Tribunal. For the purposes of review, the Tribunal exercises all of the powers and discretions conferred on the person who made the decision (s43, AAT Act) and does not exercise judicial powers or power at large. That being so the Tribunal does not have power or discretion to waive the effect of s152 concerning the date of effect of the Social Security Appeals Tribunal decision. The Tribunal may either affirm, vary or set aside that decision. Even if the Tribunal decided to set aside the Social Security Appeals Tribunal decision in a manner favourable to Ms Yachmenikova, subs152(4) would still apply and no amount of Newstart Allowance would be payable to her prior to 23 December 2005. That means the present application, even if successful, could have no practical effect.

19.     As Von Doussa J stated in Kuljic v Secretary, Department of Social Security (1994) 33 ALD 121 at 122 the merit of the proposed appeal is a principle consideration when deciding whether it is fair and equitable to grant an extension of time, however “[i]f 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 cost of defending a pointless appeal”.  With that I respectfully agree.  In this matter the prospective appeal may not suffer for want of merit in relation to the central issue, however, any success in relation to that issue if the matter were to proceed would be without possible effect.  Thus, there is little purpose to be served in granting an extension of time in order to permit proceedings to be commenced in a matter that is, for all practical purposes, rendered futile.

20.     Weighing all of the relevant factors, including any actual or perceived unfairness to Ms Yachmenikova, I find that her application is futile and lacks merit.  I do not comprehend her case to be one of principle alone.

21.     Weighing the relevant factors, I am satisfied and find that there are no persuasive grounds to warrant the grant of an extension of time in which to lodge an application in this case.  That being so, Ms Yachmenikova’s application for an extension of time is refused.

I certify that the 21 preceding paragraphs are a true copy of the reasons for the decision herein of Mr S. Webb, Member

Signed:         Peter Edwards                 .....................................................................................
  Associate

Date of Hearing   27 June 2006
Date of Decision   5 July 2006
Representative for the Applicant              John Yachmen
Representative for the Respondent         Andrew Zhang