PRACTICE AND PROCEDURE - Application for review - application for extension of time to lodge application - application lodged 18 months outside time limits - applicants' reasons for delay considered - no prejudice to the Commonwealth in granting extension of time - case has merit - application for extension of time granted.

Administrative Appeals Tribunal Act 1975 s 29

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

Re Mulheron and Australian Telecommunications Corporation (1991) 14 AAR 42

Maynard v Secretary, Department of Social Security [1993] FCA 698.

Brown v Commissioner of Taxation [1999] FCA 563.

Comcare v A'Hearn [1993] FCA 498; (1993) 119 ALR 85

This is an application by Robert and Valerie Taylor for an extension of time to apply to the Tribunal for review of decisions made by the Social Security Appeals Tribunal (SSAT) on 30 December 2002. The SSAT affirmed decisions that state the applicants had incurred debts of over $40,000 each in relation to payments made to them under the Social Security Act 1991 from 1996 - 2002. These decisions would have reached Mr and Mrs Taylor in early January 2003. They do not dispute that they received them then. Mr and Mrs Taylor had 28 days to make an application to this Tribunal but failed to do so within that time.

In April 2004 summons were issued to Mr and Mrs Taylor commencing criminal proceedings in relation to these social security debts. Their matter is being heard in the Magistrates Court in Hervey Bay. The applicants lodged their applications with the Administrative Appeals Tribunal (the Tribunal) on 20 July 2005, that is, about eighteen months outside the time limits contained in the Administrative Appeals Tribunal Act 1975 (the Act).

Mr and Mrs Taylor have paid back the greater proportion of their respective debts, mostly as lump sum payments borrowed from relatives. They continue to repay the balance by withholdings taken fortnightly from their current social security entitlements. I was told the applicants pleaded guilty to the charges in March 2005, and more recently were refused an application to withdraw that plea. At present the proceedings are stayed in the Magistrates Court.

The amount of any debt the applicants have incurred goes to questions of sentencing in that Court. I was also told that some discussions have occurred about the appropriate forum for determining questions of the quantum of any debt.

It is the issue of the quantum of the debt that is of particular concern to Mr and Mrs Taylor now. I was told that their current legal advice suggests that there is authority for different conclusions than those reached by the SSAT regarding amounts of loans in the balance sheets for the family trust. That is the reason why the Taylors have their overpayments. Mr and Mrs Taylor were legally represented before the SSAT by Welfare Rights Centre. They acknowledge that they were informed of their appeals rights to this Tribunal in writing by the SSAT and orally by their Welfare Rights Centre solicitor.

Mr Taylor said that despite this advice he decided not to appeal as he had no money and did not feel able to represent himself. Mr Taylor and his wife were also heavily involved with the care of Mr Taylor's mother who was aged ninety and frail. She passed away in late 2004. Mr Taylor said that in conversations with Centrelink's Recovery Unit, he was given to understand that if they repaid the money, the matter would end there. He said that on 29 April 2004 they were issued with summonses to appear at the Magistrates Court.

Mr Taylor also acknowledged that when they engaged solicitors to deal with the prosecution matter those solicitors also gave them advice about appeal rights to the Tribunal but they elected not to make an application then, still believing that they could not afford the expense. They now have advice from counsel that the factual matters that they wish to take issue about, concerning the characterisation of the loan, are best dealt with by this Tribunal.

The Act makes provision for time limits and for extending time in s29 of the Act:

...

(2) Subject to subsection (3), the prescribed time for the purposes of paragraph (1)(d) is the period commencing on the day on which the decision is made and ending on the twenty-eighth day after:

(a) if the decision sets out the findings on material questions of fact and the reasons for the decision - the day on which a document setting out the terms of the decision is given to the applicant;

(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 (including a decision made before the commencement of this section) if the Tribunal is satisfied that it is reasonable in all the circumstances to do so.

The discretion under s29(7) is unfettered: Maynard v Secretary, Department of Social Security [1993] FCA 698. However the discretion to extend time is guided by the principles laid down by the Federal Court in the decision of Hunter Valley Developments Pty Ltd v Cohen [1984] FCA 176; (1984) 3 FCR 344 and in the decision of the Tribunal (O'Connor J) in Re Mulheron and Australia Telecom Corporation (1991) 23 ALD 309. Those principles may be summarised as follows:

(1) Prima facie, proceedings should be commenced within the prescribed period. 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 in considering 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 in a like position are relevant to the exercise of the discretion. The question is: is it fair and equitable in the circumstances to extend time?

The Federal Court has reiterated on a number of occasions that too slavish an adherence to "guidelines" when considering the discretion can lead to injustice. The discretion to extend time where the statute otherwise stipulates that there is a time limit is intended as an ameliorating provision to avoid injustice: Brown v Commissioner of Taxation [1999] FCA 563.

In considering the extension of time application the Tribunal must have regard to the extent of the delay, the reasons for the delay, any prejudice to the respondent, as well as the prospects of the applicant succeeding (assuming that the extension of time is granted). It would be a factor militating against the extension of time if the applicants had no prosects of success. I asked the respondent's representative whether she considered the applicants' cases lacked merit. The respondent conceded the applicants' case was not without merit. She said it was simply made too late.

The Tribunal notes that while an explanation of delay should be given, it is not a precondition for the success of an application for an extension of time: Comcare v A'Hearn [1993] FCA 498; (1993) 119 ALR 85. There is no strong explanation of the delay here. The applicants were represented before the SSAT, and told about their appeal rights then, and again by their new solicitors in 2004. As a factor taken on its own I consider that there is no good reason for the delay, even taking into account the applicants' need to care for Mr Taylor's elderly mother and their limited finances. The applicants were properly advised on more than one occasion. I further note social security recipients are not required to pay filing fees in this jurisdiction.

The respondent contended that the department would be unduly prejudiced if the extension of time were granted. The respondent also argued that the argument over the quantum of the debt should have been put to the SSAT. I agree that it was not, and the SSAT made the point in its decision that no submissions were made in respect of the application of the debt provisions and the calculations of quantum.

It seems to me that the respondent has at hand all the materials and information about the debts in question. That would necessarily be the case as this material is required for the prosecution case. It is a debt that is not fully repaid and Centrelink is still recovering it. This is not a case when the respondent is disadvantaged by the effluxion of time, or by matters such as documents being lost, archived, or no longer available. I note also that the applicants have repaid the bulk of these debts and so the recovering authorities are not being disadvantaged by having the recovery of the money further delayed by legal proceedings. The applicants have also withdrawn their application to stay the recovery of further monies. I am satisfied the respondent would not be prejudiced by the grant of the extension of time.

The correct calculation of the debt is particularly important in this case. The quantum of debt will be crucial in determining what sentence may or may not be imposed upon Mr and Mrs Taylor in the proceedings in the Magistrates Court. This Tribunal is the most experienced in conducting merits review of social security matters. Should the applicants be refused access to merits review by reason of their failure to make their application in time? I do not think that they should. There is an arguable case. In reviewing the relevant factors and considering matters of fairness, the applicants should be allowed the opportunity to advance their case.

The Tribunal extends the time for the applicants to appeal to 20 July 2005.

I certify that the 16 preceding paragraphs are a true copy of the reasons for the decision herein of Ms M J Carstairs, Member

Signed: Denise Burton

Administrative Assistant

Date of Hearing 20 October 2005

Date of Decision 25 October 2005

Counsel for the Applicant Mr R Clutterbuck

Solicitor for the Applicant Milburn Guttridge Lawyers

For the Respondent Ms S Oliver, Departmental Advocate