Gabor v Secretary, Department of Education, Employment and Workplace Relations

Federal Court of Australia|2010-07-06|Before: Wilcox J, Ms P, Bromberg J

INTRODUCTION 1 This is an application for extension of time within which the applicant may institute an appeal pursuant to s 44(2A) of the Administrative Appeals Tribunal Act 1975 (Cth) ("the AAT Act"). 2 The applicant, Ms Gabor, was the subject of a finding of overpayment of a Newstart Allowance in the amount of $3086.18, which now stands as a debt to the Commonwealth under s 1223(1) of the Social Security Act 1991 (Cth) ("the SS Act"). The debt was raised as a result of the applicant reporting her casual earnings to Centrelink in a manner found by the Authorised Review Officer ("ARO") of Centrelink to have been inaccurate. The principal discrepancy concerned the question of whether certain allowances and reimbursements should be classified as 'income', as defined in s 8 of the SS Act. 3 On 5 February 2002, a decision was made by an ARO to raise and recover a debt of $3,086.18 ("the original debt"), said to arise from the overpayment of the Newstart Allowance to Ms Gabor for the period 22 May 2001 to 18 December 2001. Ms Gabor sought a review of the decision of the ARO in the Social Security Appeals Tribunal ("SSAT"), which affirmed the decision of the ARO on 25 June 2002. Ms Gabor subsequently appealed the decision of the SSAT to the Administrative Appeals Tribunal ("the AAT"), which affirmed the decision of the SSAT in a decision dated 11 March 2003 ("the AAT decision"): [2003] AATA 277. 4 The current application seeks to extend the time within which Ms Gabor may challenge the decision of the AAT. For the reasons which follow I have determined to dismiss the application.

Explanation for the delay 12 In this case, there is no apparent reason for the long delay. The applicant's affidavit says that her "heart and mind" has been on a proceeding in the Supreme Court of Victoria. That matter was not expressly put as an explanation for the delay nor was it substantiated beyond the bare reference which I have recounted. 13 At the hearing, the applicant herself acknowledged that "six years is a long time to apply for an extension of time to file an untimely appeal". She alluded to a debt which has recently been raised against her by Centrelink on substantially the same basis as the original debt, being overpayment of Newstart Allowance as a result of a failure to report various categories of reimbursements and allowances as income. This debt ("the 2008 debt") was raised in 2008 and is in the amount of $4,151.19. Ms Gabor made a request of the Court in the following terms: If… this application is successful, I would ask your Honour to bar subsequent proceedings involved [sic] in the same issues between the same parties. 14 This request exposes Ms Gabor's idea that if she were successful in challenging the original debt, this Court would have the power not only to quash the original debt, but also to bar Centrelink from raising further debts against the applicant on the same grounds as those underpinning the original debt, including the 2008 debt. As an extension of this logic, it seems that Ms Gabor believes that she may be estopped from challenging the 2008 debt until such time as she has successfully challenged the original debt. This notion is clearly misconceived. Estoppel will not operate so as to contradict a statute or to extend the authority of a decision-maker beyond that given by the statute: Minister for Immigration and Ethnic Affairs v Polat (1995) 57 FCR 98 at 105-107 per Davies and Branson JJ; Australian Education Union v Lawler (2008) 169 FCR 327 at [185] per Jessup J (Lander J agreeing). 15 Ms Gabor's misconception about the law has apparently driven her re-agitation of the correctness of the AAT decision. That, however, provides no sufficient explanation for the applicant's delay in prosecuting her right to appeal.

prejudice 16 A delay of more than six years may cause prejudice to the parties, particularly with regard to the availability of documentary evidence necessary to any reconsideration of the decision, should the appeal succeed. 17 The Court was advised that in keeping with usual procedures, the AAT file has been destroyed. While the respondent concedes that it has retained its copies of documents relevant to the AAT appeal, there is no certainty as to the completeness of the respondent's file. Even if the respondent's file is reasonably complete, it is distinctly possible that in any reconsideration of the AAT decision, resort may need to be had to the original records of Ms Gabor's employers. Given the passage of time, it is unlikely that records of that kind will be readily available. 18 There is therefore a real possibility of prejudice, including to the respondent. In any event, the mere absence of prejudice will not justify the grant of an extension.

Merits of the intended appeal 19 I am satisfied that there may be merit in the appeal which the applicant seeks to agitate, particularly as regards the meaning of "income" for the purposes of s 8 of the SS Act: Marsh v Department of Social Security (1986) 12 FCR 100 at 104; Secretary, Department of Employment and Workplace Relations v Richards [2007] FCA 1710 at [41]-[48]; Secretary, Department of Social Security v McLaughlin (1997) 81 FCR 35. 20 The AAT rejected the applicant's contention that allowances paid to her by various employers for travel, telephone calls and training should not have been regarded as income. It did that without any consideration of the cases to which I have referred and without any analysis of the definition of income in the SS Act. The AAT may well have erred in that conclusion and if it did, its error would have constituted an error of law appeallable to this Court pursuant to s 44 of the AAT Act. However, it is unnecessary that I form a definitive view as to the prospects of the applicant on an appeal. For the purposes of this application, I will assume that Ms Gabor has a good prospect of successfully prosecuting her appeal.

conclusion 21 The assumption I have just made as to Ms Gabor's prospects on appeal does not outweigh the powerful considerations which support the conclusion that this application must be dismissed. 22 A delay of over six years is an insurmountable barrier for the applicant's application. Only the rarest of exceptional circumstances could justify the grant of an application for an extension of time involving such a long delay. 23 The interest of justice in the finality of litigation is a powerful impediment which of itself would deny the applicant's success. Additionally, the applicant has failed to provide any sufficient explanation for her delay. Her motivation for agitating her application is misconceived and there may be prejudice to the respondent. 24 It would not be fair and equitable to grant Ms Gabor's application, and it will be dismissed. The usual order is that costs are paid by the unsuccessful party. No submissions were made to the contrary. I will order that Ms Gabor pay the respondent's costs. I certify that the preceding twenty-four (24) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Bromberg.

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