Murray and Department of Family and Community Services [2000] AATA 879 (5 October 2000)

Last Updated: 12 October 2000

DECISION AND REASONS FOR DECISION [2000] aata 879

ADMINISTRATIVE APPEALS TRIBUNAL )

) No V2000/0767

GENERAL ADMINISTRATIVE DIVISION )

Re ALLISON F MURRAY

Applicant

And DEPARTMENT OF FAMILY AND COMMUNITY SERVICES

Respondent

DECISION

Tribunal Mr J. Handley, Senior Member

Date 5 October 2000

Place Melbourne

Decision The application to extend time to lodge these proceedings is refused.

...Sgd. Mr J. Handley...

Senior

SOCIAL SECURITY: SSAT decision reviewed on 8 July 1999; AAT application lodged on 26 June 2000; applicant at all times legally represented; whether appropriate to extend time to permit proceedings to be lodged; application refused.

REASONS FOR DECISION

5 October 2000 Mr J. Handley, Senior Member

1. The applicant applies to review a decision of the Social Security Appeals Tribunal ("SSAT") made on 29 April 1999. The application was received by the applicant's solicitors on 8 July 1999. An application was lodged in this Tribunal ("AAT") to review the decision of the SSAT on 26 June 2000. The period of time permitted to lodge proceedings by way of review against a decision of the SSAT is 28 days. The application was lodged almost 12 months beyond the time permitted by both the Administrative Appeals Tribunal Act and Social Security Act. The applicant applies to extend the time to lodge these proceedings. The respondent opposed the application. The application to extend the time was heard in Bendigo on 27 September 2000. Mr O'Donnell, a solicitor, appeared on behalf of the applicant. Ms Bradley appeared on behalf of the respondent.

2. The application concerns an alleged overpayment to Ms Murray of New Start Allowance during the period 1995 to 1996 when it was alleged she was in a "married like relationship" with another person. It was put by the respondent that the nature of the relationship had not been disclosed to the department and by reason of this omission, benefit had been overpaid.

3. Mr O'Donnell submitted that the Director of Public Prosecutions had initially laid charges against Ms Murray but they were subsequently withdrawn in September 1998. At all relevant times, his office acted on behalf of Ms Murray pro bono, including appearing with her at the Social Security Appeals Tribunal.

4. When the decision of that Tribunal was received and instructions were obtained to seek review at the AAT, Mr O'Donnell sought funding from the Victorian Legal Aid Commission. He said that funding was initially refused but subsequently the Commission agreed to accept an equitable charge over real estate which had been left to Ms Murray from the intestate estate of her late father, however, this could not be obtained because transfer applications through the Victorian Titles Office had not been completed and there was subsequent delay. The process of securing aid from the Legal Aid Commission was described as being "very long and drawn out".

5. Mr O'Donnell submitted that Ms Murray was "incapable of making this application" and had relied on the "goodwill of others to bring all proceedings including defending the criminal proceedings". He admitted that his office had been in error and "could have been more efficient and it would have been more appropriate to file an application and seek a deferment while dealing with the Legal Aid Commission". Whilst he acknowledged that the respondent would submit that its capacity to call evidence with respect to the relationship in 1995 and 1996 was jeopardised by the period of time that had subsequently elapsed he said that it had no difficulty defending its position before the Social Security Appeals Tribunal 12 months earlier. He also pointed to the SSAT apparently being capable of dealing with the evidence then received and making a decision on the evidence.

6. It was submitted that the AAT would not be prejudiced and he noted that there were documents presently available which would assist both parties and the Tribunal in its review. He said the proceedings before this Tribunal would largely involve legal argument concerning the nature of the relationship between his client and Mr Jesser, the person with whom it was alleged Ms Murray had had a married like relationship. He submitted that despite his client recently inheriting real estate it was in an advanced state of disrepair, his client was impecunious and was unable to afford the cost of repairs.

7. Mr O'Donnell submitted that his client's application had merit and she should not be denied the opportunity to argue her case.

8. Ms Bradley filed Statement of Contentions prior to the commencement of the hearing in objection to an extension of time to lodge the proceedings.

9. She submitted that it was apparent from the period of time between the admitted receipt of the reasons for decision of the SSAT and the lodgement of proceedings at the AAT that nothing was done to put the respondent on notice that the decision was being contested and Centrelink was entitled to infer that the applicant had rested on her rights. It was submitted that the applicant had failed to take all reasonable steps to lodge the proceedings in a timely manner.

10. Ms Bradley did not contend that her client was prejudiced to the extent that files had not been destroyed but she submitted that the review would involve an inquiry into a relationship that existed between 1995 and 1996 and that the recollections of witnesses could have faded.

11. It was submitted that there was wider prejudice to the community because public and established practices would be relaxed by not adhering to time limitations which she said was not in the public interest.

12. Ms Bradley submitted that the application was without merit and that the case of the respondent was strong. She said the SSAT had been satisfied that there was a married like relationship and whilst she acknowledged that there was no need to inquire broadly into the merits of the application during an extension of time hearing, nonetheless, it was unlikely that the application for review - if permitted - would be successful.

13. In conclusion, Ms Bradley submitted that it would be substantially unfair to other persons who had been unsuccessful in extension of time applications to permit the present application to succeed. She said there was nothing to prevent the lodging of an application within time and she noted that the applicant's legal representatives had acknowledged that they were in error in not lodging the proceedings within time.

conclusion and reasons for decision

14. Mr O'Donnell distinguished this application from a decision I delivered in an application of Box and Department of Family and Community Services (V2000/0221) delivered on 13 April 2000. He said the present application was different to re Box in the sense that his client was incapable of making an application and that she had relied on him and other persons to assist her.

15. For the purposes of the present application I adopt the conclusions in part recorded in re Box at paragraphs 18 to 20 inclusive.

16. I am not satisfied that time should be extended to permit these proceedings to be lodged.

17. It would not appear that the respondent would be prejudiced by the proceedings continuing, despite the passage of time since 1995/1996, I would be satisfied that the memories of witnesses could be refreshed by documents apparently completed at or about the time the inquiries were made giving rise to the original decision.

18. On the documents prepared, whilst it would appear that the application by the respondent has merit, I would not be prepared for the purposes of this application to reach any concluded view. Indeed it would be inappropriate and improper in the absence of evidence.

19. I am persuaded however that the failure to lodge the proceedings by the applicant's legal representatives is insurmountable.

20. On the one hand it might be submitted that the applicant should not be penalised having put faith in her legal representatives to bring proceedings within time. The responsibility however of persons who are legally trained and would be familiar with the practices of the courts and tribunals imposing time limits is a matter which cannot be ignored. The application could have been lodged within 28 days and a request made to defer its listing pending representations to the Legal Aid Commission. The solicitors having acted without fee is obviously commendable yet the delay in lodging these proceedings occurred largely because fees were sought. It would have cost no more than maybe five minutes in time and a postage stamp to insure that the application was lodged within time.

21. I am also satisfied that it would not be fair against other applicant's who had been unsuccessful in applying to have time extended where they were unrepresented. That is to say a person, who has the benefit of legal advice and representation should not be in any more elevated position than those who have been unrepresented and who have not lodged their applications within time and who have been denied an extension of time to commence proceedings.

22. I also note that the applicant continued to allow the respondent to withhold monies from her pension paid subsequent to the SSAT decision to repay the debt which is in issue in these proceedings. If the applicant had regarded that as being unfair or inappropriate she could have brought it to the attention of the respondent. This might have put the respondent on notice that the decision was being challenged. But she did not. The applicant did nothing, after the SSAT made its decision to put the respondent on notice that this decision would be challenged. The respondent was entitled to assume that it would not be challenged.

23. In the circumstances time should not be extended to permit these proceedings to be lodged.

I certify that the preceding twenty three (23) paragraphs are a true copy of the reasons for the decision herein of Mr J. Handley, Senior Member

Signed: Linda A Nemeth ............................................

Secretary

Date of Hearing 27 September 2000

Date of Decision 5 October 2000

Solicitor for the Applicant Mr Bill O'Donnell

Solicitor the Respondent Ms Rhonda Bradley, Departmental Advocate