Wallis and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2011] AATA 45 (14 January 2011)

Last Updated: 2 February 2011

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2011] AATA 45

ADMINISTRATIVE APPEALS TRIBUNAL )

) No 2010/5227

GENERAL ADMINISTRATIVE DIVISION		)
	Re		MARK WALLIS

Applicant

And

SECRETARY, DEPARTMENT OF FAMILIES, HOUSING, COMMUNITY SERVICES AND INDIGENOUS AFFAIRS

Respondent

DECISION

Tribunal

Deputy President D G Jarvis

Date 14 January 2011

Place Adelaide

Decision

THE TRIBUNAL DIRECTS that: pursuant to section 29(7) of the Administrative Appeals Tribunal Act 1975 (Cth) (the Act), the time for the filing of an application for review of the decision of the respondent is extended to 2 December 2010; on or before 8 February 2011 the respondent is to file and serve the documents required to be lodged pursuant to section 37 of the Act; 3. this matter be listed for hearing on 18 February 2011 at 10:00 am; 4. the applicant is allowed to participate in the hearing by telephone.

.... [Signed] ....
DG Jarvis
Deputy President

CATCHWORDS

PRACTICE AND PROCEDURE – Application for an extension of time – difficulty of evaluating special circumstances when considering ultimate merits – limited weight given to ultimate merits – extension of time granted.

Administrative Appeals Tribunal Act 1975 (Cth), ss 29(7) and 68AA

Social Security (Administration) Act 1999 (Cth), ss 5(1) and 177

Social Security Act 1991 (Cth), s 1184K(1)

Evidence Act 1995 (Cth), s 160

Budd v Secretary, Department of Education, Employment and Workplace Relations [2008] FCA 1540

Comcare v A’Hearn [1993] FCA 498; (1993) 45 FCR 441

Hunter Valley Developments Pty Ltd v Cohen [1984] FCA 176; (1984) 3 FCR 344

Jackamarra v Krakouer [1998] HCA 27; (1998) 195 CLR 516

Lukac v Linfox Armaguard Pty Ltd & Anor [2010] FCA 740

Phillips v Australian Girls’ Choir Pty Ltd & Anor [2001] FMCA 109

Re DHLD and Executive Director, Social Security Appeals Tribunal [2010] AATA 377; (2010) 115 ALD 566

Riddell v Secretary, Department of Social Security [1993] FCA 261; (1993) 42 FCR 443

Secretary, Department of Family and Community Services v Allan [2001] FCA 1160; (2001) 116 FCR 1

WRITTEN REASONS FOR ORAL DECISION

1 February 2011

Deputy President D G Jarvis

1. In May 2010, the applicant, Mark Wallis, lodged claims for Newstart allowance (NSA) and Disability Support Pension (DSP). A Centrelink officer subsequently calculated a compensation preclusion period to commence on the day after Mr Wallis received a lump sum payment in redemption of a claim for workers’ compensation, and ending on 14 April 2011. Mr Wallis’ claims for NSA and DSP were rejected on the basis that benefits were not payable during the compensation preclusion period.
2. This decision was affirmed by an authorised review officer and subsequently, on 12 October 2010, by the Social Security Appeals Tribunal (SSAT). Counsel for the Secretary, Mr G Camilos, advised that the SSAT’s decision was despatched to Mr Wallis on 18 October 2010.
3. On 2 December 2010, Mr Wallis applied to this tribunal for review of the decision of the SSAT. His application was not lodged within the prescribed period of 28 days referred to in s 29(2) of the Administrative Appeals Tribunal Act 1975 (Cth) (AAT Act). He accordingly applied for an extension of time pursuant to s 29(7) of the AAT Act.
4. The application for an extension of time was opposed by the Secretary. I have already decided to grant the application, and I now deliver reasons for my decision.

LEGISLATIVE PROVISIONS

5. The tribunal is given a discretion to extend the time for making an application for review by s 29(7) of the AAT Act. This section provides as follows:

“(7) The Tribunal may, upon application in writing by a person, extend the time for the making by that person of an application to the Tribunal for a review of a decision ... if the Tribunal is satisfied that it is reasonable in all the circumstances to do so.”

6. Provision is made in s 1169(1) of the Social Security Act 1991 (Cth) (SS Act) to the effect that a compensation affected payment is not payable during a lump sum preclusion period.
7. That provision, and other related provisions are to be read subject to s 1184K of the SS Act. That section authorises the Secretary (and this tribunal, standing in the shoes of the Secretary) to disregard the whole or part of a compensation payment in certain circumstances. Subsection 1184K(1) provides as follows.

“1184K(1) For the purposes of this Part, the Secretary may treat the whole or part of a compensation payment as:

(a) not having been made; or
(b) not liable to be made;

if the Secretary thinks it is appropriate to do so in the special circumstances of the case.”

CONSIDERATION

8. In support of his helpful argument, Mr Camilos referred to the principles formulated in the well-known case of Hunter Valley Developments Pty Ltd v Cohen [1984] FCA 176; (1984) 3 FCR 344, as reformulated by McInnis FM in Phillips v Australian Girls’ Choir Pty Ltd & Anor [2001] FMCA 109 at [10]. The principles so reformulated take into account the decision in Comcare v A’Hearn [1993] FCA 498; (1993) 45 FCR 441 to the effect that although in an application for an extension of time, an explanation for the delay in bringing the substantive application will normally be given, such an explanation is not an essential pre-condition for the granting of the extension. I note that the principles set out in Phillips (supra) were approved by Cowdroy J in Budd v Secretary, Department of Education, Employment and Workplace Relations [2008] FCA 1540 at [19].
9. The propositions in Phillips (supra) are, with respect, most helpful, and I will consider the present application by reference to each proposition in turn. I would, however, comment that in my view it is also relevant to take into account a further consideration, namely the extent of the delay. In addition, I think that the sixth proposition, namely that the “merits of the substantial application are properly to be taken into account in considering whether an extension of time should be granted” is a matter which, according to later authorities, should be given less weight: see Lukac v Linfox Armaguard Pty Ltd & Anor [2010] FCA 740 at [12] and the authorities there cited.
10. Extent of delay: As I said above, the decision of the SSAT was despatched on 18 October 2010. Mr Wallis said that he lives in the country in the south-east of South Australia, and it usually takes about a week for mail to reach him from the city. He thought that he had received the decision of the SSAT between 22 and 26 October 2010, when he went to the post office to collect his mail. The Secretary contended by reference to s 68AA(1)(b) of the AAT Act that Mr Wallis was taken to have received the communication from the SSAT on 22 October 2010, allowing three working days for the ordinary course of post.
11. I have some doubts as to whether s 68AA of the AAT Act applies in order to determine the date when a decision of the SSAT is given to an applicant because in its context, s 68AA could be interpreted as applying to the giving of documents to persons as required by the AAT Act, and not to determine the deemed date of the giving of documents to a person by the SSAT. The Social Security (Administration) Act 1999 (Cth) provides, in subdivision E of Division 4 of Part 4, for the SSAT to give notice of its decisions to each party, and s 5(1) provides that if a provision of the social security law requires that a written notice be given to a person, it is sufficient compliance with that provision for notices to be given in a manner approved by the Secretary. If (as I assume is the case) the Secretary has approved the despatch of decisions of the SSAT by post, then it seems to me that s 160 of the Evidence Act 1995 (Cth) would apply, and that section deems postal articles to be received at addresses within Australia on the fourth working day after having been posted. I agree, with respect, with the analysis of Deputy President Forgie in Re DHLD and Executive Director, Social Security Appeals Tribunal [2010] AATA 377; (2010) 115 ALD 566, where she concludes at [61] that s 160 of the Evidence Act could be applied to determine the deemed date of receipt of a document (in that case, copy of a decision of a delegate of the Child Support Registrar), notwithstanding that the Evidence Act does not apply to the Tribunal, and the Tribunal is not bound by the rules of evidence. On this analysis, Mr Wallis would have received the decision of the SSAT on 23 October 2010. However, the question of whether s 68AA of the AAT Act or s 160 of the Evidence Act applies is immaterial in the circumstances of this case.
12. The application to this Tribunal was lodged on 2 December 2010. The 28 day time limit in which the application should have been lodged accordingly expired between 19 and 23 November 2010, depending on whether the decision of the SSAT was given, or taken to have been given, to Mr Wallis on a date between 22 and 26 October 2010. The application was accordingly between 9 and 13 days late.
13. It was contended on behalf of the Secretary that the extent of delay was significant. I do not accept this contention. Having regard to the explanation for the delay (to which I refer below) and in the context of the time which has already been involved since Mr Wallis first claimed NSA and DSP and the time already inevitably entailed in processing and receiving those claims, I regard a delay of up to 13 days as a minor delay.
14. The applicant’s reasons for the delay: Mr Wallis said that the letter enclosing the decision of the SSAT advised him of his rights to appeal to this Tribunal, and provided a telephone number or the Tribunal’s website for further information. He said that he telephoned the Tribunal, and was told that the application needed to be made in writing and that the Tribunal would send the necessary form to him. He said that about a week later he received the application for review form from the Tribunal, and faxed it back to the Tribunal on the day he received it. In an earlier communication with the Tribunal he said that he had made this telephone call within the 28-day period from receiving the copy of the SSAT decision, but in his evidence in support of his application for an extension of time, he thought that the telephone call was roughly on 24 November 2010 (in which case it was just outside the prescribed 28-day period for applying for review).
15. It was accepted by the Secretary that, as Mr Wallis said, the letter from the SSAT enclosing its decision did not stipulate that an application to this Tribunal for review should be in writing. It may be, as was contended on behalf of the Secretary, that Mr Wallis should have realised that this was required. However, he has provided a plausible explanation for the short delay in applying to this Tribunal, and I accept that his explanation is honest.
16. Whether the applicant rested on his rights: It is correct that during the relatively short period between the expiry of the prescribed time and when the application was lodged, there is no evidence that Mr Wallis advised Centrelink that he proposed to apply to this Tribunal for review. However, it was not suggested that Centrelink was prejudiced because it had not been made aware during this period that there would not be an appeal. Further, Mr Wallis made the telephone inquiry of the Tribunal to which I have referred above, and to that extent did not rest on his rights.
17. Merits of the applicant’s case: It was submitted on behalf of the Secretary that there was no merit in Mr Wallis’ application for review. Mr Camilos correctly pointed out that the application for review does not provide any reasons in support of the application, and a subsequent handwritten note from Mr Wallis received by the Tribunal on 15 December 2010 refers to matters that do not indicate any error in the decision of the SSAT in imposing the preclusion period.
18. However, in matters of this kind, it is also necessary for decision-makers to consider whether all or some part of the compensation payment should be treated as not having been paid in the special circumstances of the case. The hand-written note from Mr Wallis refers to his present financial stringencies that affect both him and his 16-year-old son, who is still at school and is living with him. It also says that his son’s mother has not paid maintenance since the son came into Mr Wallis’ care in August 2009, and refers to his inability to work due to a severe back condition.
19. The issue of special circumstances is dealt with in the decision of the SSAT. Mr Wallis does not apparently dispute the factual matters referred to in that decision. However, at the time of the application for the extension of time, there was little information before me as to matters that might be relevant to the issue of special circumstances. The section 37 documents had not been lodged, and I had no medical evidence before me as to the effect of Mr Wallis’ medical condition, or as to his own cost of living and the costs he is incurring in supporting his son, the extent to which he has gone into debt, the liability of his ex-wife for child support or the prospects of his enforcing any such liability, or (to the extent that this might be relevant) the basis or break up of the two compensation payments that he had received.
20. It is apparent from the authorities that a very wide range of circumstances can be taken into account in determining whether special circumstances exist within the meaning of sections such as s 1184K. For example, in Riddell v Secretary, Department of Social Security [1993] FCA 261; (1993) 42 FCR 443, a Full Court of the Federal Court (Neaves, Burchett and O’Loughlin JJ) said, at page 450:

“Each particular case must be considered on its merits. It is the essential nature of the provision to create a broad discretion to meet the great variety of circumstances which must occur, raising considerations of individual hardship, need, fairness, reasonableness, and whatever else may move an administrator, keeping in mind the scope and purposes of the Act, to make a decision one way or the other.”

21. In a similar vein Heerey J, in Secretary, Department of Family and Community Services v Allan [2001] FCA 1160; (2001) 116 FCR 1, said at [17]:

“It is not sensible to lay down precise limits or precise rules as to what may constitute special circumstances ... ill health, financial circumstances and the unfairness of a strict application of the Act are some matters which may in an individual case, constitute special circumstances.” (References omitted).

22. It is also clear that whilst some events may not in themselves constitute special circumstances, they can in combination with other matters constitute special circumstances.
23. As a general rule, the tribunal is not in a position to make a considered assessment of the merits of an application in the course of determining an application for an extension of time, and it is not appropriate that it should do so. There may of course be some cases where it is clear that an application for review would clearly be untenable, such as where an applicant had not obtained some remedy or entitlement because a statutory pre-condition of that entitlement (such as a requirement to give notice of an application, or a minimum residential pre-requisite) had not been complied with, and where there is no discretion to waive compliance. However, in cases such as the present, where there is provision to alleviate the application of a statutory provision in an appropriate case because of special circumstances, the tribunal would generally not be appraised of all of the facts that might ultimately be taken into account in order to determine whether or not special circumstances exist, and if so, whether it is appropriate to exercise the relevant statutory discretion. In such cases, the tribunal would not generally, on an extension of time application, be in a position to conclude that (to use the language of Kirby J in Jackamarra v Krakouer [1998] HCA 27; (1998) 195 CLR 516 at [66]) the application could be characterised as “hopeless, unarguable or bound to fail” on the merits. I did not think that the application in the present case could be so characterised, on the information before me.
24. I am also mindful of the recent authorities referred to in paragraph 9 above to the effect that less weight should be given to the merits of the substantial application when considering an application for an extension of time.
25. Prejudice to the respondent: The consequence of extending the time is that the Secretary will be put to the expense of a hearing. However, matters of this kind are invariably concluded within about half a day, and it seems to me that this consideration, and the further principle that the mere absence of prejudice is not enough to justify the grant of an extension, are of little significance in this case.
26. Fairness between applicant and other persons: It was not suggested that the grant of an extension of time in this case would produce unfairness as between Mr Wallis and other persons in a like position.
27. After taking into account all of the above considerations, I concluded that it was reasonable in all of the circumstances to grant an extension of time to the extent of the short period involved. I accordingly granted the application, and proceeded to make consequential directions.
    

I certify that the 27 preceding paragraphs are a true

copy of the reasons for the decision herein of

Deputy President D G Jarvis

.... [Signed] ....

N Misiajlo Associate

Date/s of Hearing 14 January 2011

Date of Decision 14 January 2011

Date of Written Reasons 1 February 2011

Applicant In person

Counsel for the Respondent Mr G Camilos

Solicitor for the Respondent Centrelink Advocacy Branch