Social Security Act 1991 Sections 849(1), 855, 887, 887(3), 887(4), 1247, 1247(1), 1247(1A), 1255(4), 1302A, 1304, 1304(1)

Administrative Appeals Tribunal Act 1975 - Sections 29(7), 37, 42A(2), 42A(6), 42A(8)

Administrative Decisions (Judicial Review) Act 1977.

Social Security Legislation Amendment (No. 3) Act 1992 - Section 140

Social Security Act 1947

Lucic v Nolan (1982) 45 ALR 411

Manoli and Secretary, Department of Social Security (unreported, Decision

Mulheron and Australian Telecommunications Commission (1991) 23 ALD 309

Hunter Valley Developments Pty Ltd and Others v Minister for Home Affairs

Davies v Pagett [1986] FCA 106; (1986) 70 ALR 793

Evans v Barlam (1937) AC 473

Lenijamar Pty Ltd and Others v AGC (Advances) Ltd [1990] FCA 520; (1990) 98 ALR 200

Secretary, Department of Social Security v O'Connell [1992] FCA 217; (1992) 16 AAR 46

Secretary, Department of Social Security v Garratt [1992] FCA 337; (1992) 109 ALR 149

Counsel for the Respondent: Mr A Prodromou

Departmental Advocate

The Tribunal refuses Mr Oates' application for reinstatement of his application pursuant to sub-section 42A(8) of the Administrative Appeals Tribunal Act 1975.

S A FORGIE On 2 September, 1993, the applicant, Mr John Oates, applied for review of a decision of the Social Security Appeals Tribunal ("the SSAT") made on 3 August, 1993. The SSAT had decided to set aside a decision of an Authorised Review Officer affirming a decision to cancel Mr Oates' family allowance with effect from 18 September, 1992. In its place, the SSAT substituted a decision that "... family allowance (family payment) continued to be payable to Mr Oates from 17 September, 1992 to the date of the decision, but in view of the operation of sub-section 1255(4) (of the Social Security Act 1991 ("the 1991 Act")), no arrears are payable.

2. Although not part of its decision, the SSAT went on to note that Mr Oates had not been advised that he should apply to it within three months. It recommended that the Department of Social Security ("the Department") obtain further information and investigate whether a payment should be made under Finance Direction 21/3.

3. On 16 March, 1994, I made an order dismissing Mr Oates' application. I made that order pursuant to sub-section 42A(2) of the Administrative Appeals Tribunal Act 1975 ("the AAT Act") and on the basis that he had failed to appear at the hearing, of which he had been given notice, either in person or by a representative. Both he and the Secretary had been sent a notice dated 4 February, 1994 advising that the hearing would be held on 15 March, 1994 at 2.15pm at Melbourne. At the top of the notice, the address of the Melbourne Registry was given. The dismissal was made after an officer of the Tribunal had attempted to call him at his place of work some half an hour after the time scheduled for the hearing to start. She was told that he was at work but that he was unavailable to talk to her. No letter or message had been received from Mr Oates that he was unavailable to attend the hearing.

4. A note was added to the foot of the dismissal order sent to the parties to draw their attention to sub-section 42A(8) of the AAT Act. The note stated:

"The parties' attention is drawn to sub-section 42A(8) of the

Administrative Appeals Tribunal Act 1975 which provides:

'If the Tribunal, under subsection (2), has dismissed an

application (other than an application in respect of a proceeding

in which an order has been made under subsection 41(2), the person

who made the application may, within 28 days after receiving

notification that the application has been dismissed, apply to the

Tribunal for reinstatement of the application.'"

5. Within 28 days of receiving the notice, Mr Oates applied for reinstatement of the application pursuant to sub-section 42A(8). His application was heard over the telephone after 5.00pm on two occasions in order to accommodate his work commitments. The documents I had for consideration were those lodged pursuant to section 37 of the AAT Act ("the T documents"). Both Mr Oates and Mr Prodromou, who is an Advocate with the Department of Social Security ("the Department") and who represented the Secretary of that Department, made oral submissions.

THE PRINCIPLES TO BE APPLIED IN CONSIDERING AN APPLICATION FOR REINSTATEMENT

6. Mr Prodromou submitted that I should adopt the principles expressed by Fitzgerald J in Lucic v Nolan (1982) 45 ALR 411 (Fitzgerald J) in considering the application for reinstatement. In that case, the applicant sought an extension of time within which to lodge an application to review a decision of the Public Service Board under the Administrative Decisions (Judicial Review) Act 1977. Fitzgerald J considered that he should take into account considerations much broader than the interests of the applicant. Speaking in general terms, he went on to say:

"Further, whilst there will be some matters which are relevant to the

question whether time should be extended (in ordinary litigation inter

partes) which are also relevant in this context, it seems to me likely

that the overlap is only partial and that different emphasis is

appropriate to some of the common factors. It may be that exceptional

circumstances need not always be shown before time can be extended.

However, I consider that an applicant for an extension of time

maintains throughout the burden of showing why, in all the

circumstances, the extension of time should be granted. I do not

think that, given proof of certain matters by an applicant, if an

explanation for his delay in making application, an evidentiary onus

shifts to the respondents to establish that prejudice will result if

the extension is granted; nor, in my opinion, if the delay is

explained and there will be no personal prejudice to the named

respondents, should an extension always be granted. All else aside,

there will often be no question of prejudice to a respondent

decision-maker.

It is neither necessary or desirable, if indeed it would be possible

to enumerate the great variety of possibly material circumstances to

be considered on an application for an extension of time. Nor, in my

opinion, is it possible to identify particular circumstances which

must automatically be excluded from consideration. Each individual

case should be dealt with individually, giving due weight to prior

decisions and what they reveal of judicial attitudes: cf s11(4) and

(5). Whilst there are obvious reasons why there should be no attempt

at a full investigation of the merits of the application for review on

an application for an extension of time, I would not exclude from

consideration in an appropriate case some obvious strength or weakness

in an applicant's case or matters which might justify the refusal of

relief, if the court has a discretion to do so where a ground for

relief is made out."

7. I am only aware of one case in this Tribunal in which an application for reinstatement under sub-section 42A(8) has been considered. That is the case of Manoli and Secretary, Department of Social Security (unreported, Decision No. 9505, 9 May, 1994, Senior Member Hallowes). It referred to the principles set out in Mulheron and Australian Telecommunications Commission (1991) 23 ALD 309 in relation to an application for an extension of time under sub-section 29(7) of the AAT Act. That case concerned an application for an extension of time after an earlier application had been dismissed through the applicant's failure to appear at a conference.

8. The principles set out mirror those set out by Wilcox J in Hunter Valley Developments Pty Ltd and Others v Minister for Home Affairs and Environment (1984)58 ALR 305. Without intending to set out an exhaustive list, he set out a number of principles to guide a court in reaching a decision on the application. The essential features of those principles are set out in the headnote to the case which reads:

(a) the fact that the applicant bears the onus of rebutting the prima

facie rule that no ... proceedings commenced outside the prescribed

period will be entertained by the court by showing an 'acceptable

explanation of the delay' and that it would be 'fair and equitable in

the circumstances' to extend the time;

(b) any action taken by the applicant, apart from the actual making of

an application for review under the ADJR Act, which continues to make

the decision-maker aware that the finality of his decision is being

contested;

(c) any prejudice to the respondent which may have resulted from the

delay;

(d) any unsettling of people, other than the respondent, or of

established practices;

(e) the merits of the substantial ... application;

(f) considerations of fairness as between applicants and other persons

in like positions: it is not only prejudice vis-a-vis the parties but

against the wider public interest which must also be taken into

consideration."

9. Although an application for reinstatement of a dismissed application is not the same as an application to extend time, they are similar in that, at the heart of each application is a request that the Tribunal give the applicant special consideration and alter what would otherwise be the applicant's position.

10. There are also similarities between an application for reinstatement under sub-section 42A(8) and applications to set aside a judgement entered against a defendant as a result of its failing to take certain action or an application to set aside an order dismissing a proceeding because of a person's delay in prosecuting it or in failing to comply with procedural directions. Applications such as those are made in other jurisdictions and whether they are made by way of appeal or by of an application for the reinstatement of the original application or proceeding depends on the Rules of Court under which they are made.

11. An application to set aside a judgement entered against a defendant as a result of his failing to take certain action was considered by the Full Court of the Federal Court in Davies v Pagett [1986] FCA 106; (1986) 70 ALR 793 (Morling, Beaumont and Wilcox JJ). The Full Court quoted a passage from Lord Wright in Evans v Barlam (1937) AC 473 at 489 when he said:

"A discretion necessarily involves a latitude of individual choice

according to the particular circumstances, and differs from a case

where the decision follows ex debito justitiae once the facts are

ascertained. In a case like the present there is a judgment, which

though by default, is a regular judgment, and the applicant must show

grounds why the discretion to set it aside should be exercised in his

favour. The primary consideration is whether he has merits to which

the court should pay heed; if merits are shown the court will not

prima facie desire to let a judgment pass on which there has been no

proper adjudication."

12. After considering other authorities, the Full Court went on to say:

"Since the decision of the House of Lords in Evans v Barlam, supra,

the settled course of authority in England and in this country has

emphasised, as fundamental to the exercise of the judicial discretion

to set aside a default judgment, the need for a defendant to show a

prima facie defence on the merits. In the language of Lord Wright, in

the passage cited by the learned judge, this is 'the primary

consideration'.

It is true, as Lord Atkin said in Evans v Bartlam (at 480), that it is

inappropriate to lay down rigid rules to govern the exercise of the

discretion. On the other hand, speaking generally, the cases show

that a defendant who has an apparently good defence should not be

refused the opportunity of defending, even though a lengthy interval

of time has elapsed, provided that no irreparable prejudice is thereby

done to the plaintiff (see Atwood v Chichester (1878) 3 QBD 722;

Rosing v Ben Shemesh [1960] VicRp 28; (1960) VR 173; National Mutual Life Association

of Australasia Ltd v Oasis Developments Pty Ltd (1983) 2 Qd R 441 at

449)." (page 798)

13. The Full Court considered the delays in the case and agreed with the description of them by the Judge at first instance as "gross and inexcusable" (pages 798-799). Even in view of such delays, the Full Court continued:

"It is, however, another question whether the concern about the extent

of delays, either in a particular case or generally, should, in the

absence of prejudice in the particular case, be taken into account in

exercising a discretion to set aside a default judgment. The

fundamental duty of the court is to do justice between the parties.

It is, in turn, fundamental to that duty that the parties should each

be allowed a proper opportunity to put their cases upon the merits of

the matter. Any limitation upon that opportunity will generally be

justified only by the necessity to avoid prejudice to the interests of

some other party, occasioned by misconduct, in the case, of the party

upon whom the limitation is sought to be imposed. The temptation to

impose a limitation through motives of professional discipline or

general deterrence is readily understandable; but, in our opinion it

is an erroneous exercise of the relevant discretion to yield to that

temptation. The problem of delays in the courts, egregious as it is,

must be dealt with in other ways: for example, by disciplinary actions

against offending practitioners and by a comprehensive system of

directions hearings or other pretrial procedures which enable the

court to supervise progress - and, more pertinently, non-progress - in

all actions. In this respect we note, and respectfully endorse, the

remarks made by O'Leary J, as the Chief Justice then was, in

Patsalidies v Magoulias (1984)29 NTR 1 at 7." (page 799)

14. The general principle to be gleaned from the judgement in Davies v Pagett seem to be that justice must be achieved between the parties. In considering what is a just resolution, regard must be had to whether the party seeking the order for reinstatement has an apparent good case and whether there is any prejudice to the other side caused by the applicant's conduct. Any delays or failure to comply with procedural obligations were considered in that context only.

15. A differently constituted Full Court of the Federal Court seems, at first sight, to have given case management considerations a different emphasis from that given by the Full Court in Davies v Pagett. It said that

"... the existence of a case management system within this court is

the backdrop against which the relevant rules must be considered and

applied." (Lenijamar Pty Ltd and Others v AGC (Advances) Ltd (1990) 98

ALR 200 at 207)

16. It went on to set out Order 10 Rule 7 of the Federal Court Rules which authorise the Court to make a number of orders, including an order to dismiss the proceeding if an applicant is in default. Wilcox and Gummow JJ said that Order 10 Rule 7 did not mean that any failure to comply would result in an order to dismiss an application if requested by the other party. The rules must be administered sensibly, they said, and it must be kept in mind that some delays are unavoidable. They thought it undesirable to attempt to make an exhaustive statement of the circumstances in which the power to dismiss should be exercised as it is impossible to foresee all of the circumstances in which an order to dismiss might be sought under Order 10 Rule 7. Wilcox and Gummow JJ did say, however, that two situations would be

"... obvious candidates for the exercise of the power: cases in which

the history of non-compliance by an applicant is such as to indicate

an inability or unwillingness to cooperate with the court and the

other party or parties in having the matter ready for trial within an

acceptable period and cases - whatever the applicant's state of mind

or resources - in which the non-compliance is continuing and

occasioning unnecessary delay, expense or other prejudice to the

respondent. Although the history of the matter will always be

relevant, it is more likely to be decisive in the first of these two

situations. Even though the most recent non-compliance may be minor,

the cumulative effect of an applicant's defaults may be such as to

satisfy the judge that the applicant is either subjectively unwilling

to cooperate or, for some reason, is unable to do so. Such a

conclusion would not readily be reached; but, where it was, fairness

to the respondent would normally require the summary dismissal of the

proceeding.

In the second of the two situations we postulate, a significant

continuing default, it does not really matter whether there have been

earlier omissions to comply with the court's directions. Ex hypothesi

the default is continuing and imposing an unacceptable burden on the

respondent. But the continuance of non-compliance is of the essence

of this situation. If, when the court looks at the matter, the

direction has already been complied with, the defaulting applicant may

be ordered to pay any wasted costs; but it would be difficult to

justify the dismissal of the proceeding solely because of that

default." (pages 208-209)

17. Pincus J agreed with Wilcox and Gummow JJ that it is undesirable to make an exhaustive statement and continued:

"Such a range of considerations may be material to the just exercise

of the discretion that attempts by this court to prescribe and

indicate their weight are not likely to be helpful. In some

circumstances, the court may, in my opinion, take into account such

matters as whether the claim or defence of the party in default

appears to have substance, whether the case is one in which delay in

hearing is likely to be particularly damaging to prospects of

correctly deciding the dispute, whether the party applying for

dismissal has itself transgressed, whether the party in default has

gained some advantage by delay (for example, where it has had the

benefit of an interlocutory injunction), whether credible assurances

(supported, perhaps, by arrangements to commit the conduct of the

matter to another firm or other counsel) have been given as to the

prompt carrying out of future steps and whether the delay has been

such as to induce the party not in default to think that the matter

has probably gone to sleep; as to the last point, I refer to

Commonwealth v Verwayen (1990) 95 ALR 321; 64 ALJR 540 at 561R, 568L.

In that case, the party which had adopted a particular attitude in

litigation was held to be absolutely precluded from departing from it.

But short of that, the existence of reasonable expectations that a

claim has been abandoned may be a relevant factor in exercising the

discretion under O10, r7." (pages 214-215)

18. When regard is had to these cases, it would seem that courts approach applications for reinstatement or to set aside default judgements from a slightly different premiss from that they adopt for applications for extension of time. The latter start from the premiss that proceedings which are out of time should not be entertained and so not only are issues of the substantive merits of the application and fairness and equity between the parties relevant but also questions of public interest concerning fairness between the party in default and other people in a similar position. The former do not seem to be based on a premiss that application should not be reinstated. Rather, they seem to adopt a view that, provided the party seeking reinstatement can establish a prima facie case and it is fair to the other party to reinstate the application, it will be reinstated. If they do start from a premiss, it is that the person whose proceedings have been dismissed should not be prevented from presenting his or her case provided that person's misconduct has not prejudiced the other party.

19. Returning to the particular provisions of sub-section 42A(8) of the AAT Act, it seems to me that applications made under its provisions are more akin to applications made in other courts concerned with issues of reinstatement and the setting aside of default judgements rather than with applications for extension of the time allowed to commence proceedings in the first place. It must be remembered, however, that Davies v Pagett and Lenijamar Pty Ltd and Others v AGC (Advances) Ltd were concerned with actions between two parties whereas cases such as Lucic v Nolan and the Hunter Valley case considered an application for an extension of time in actions between two parties but in the context of the review of administrative decisions. Does that context make a difference to the matters which I should take into account in considering an application for reinstatement under sub-section 42A(8)? In considering what is fair, should regard be had to a wider public interest of what is fair between the applicant and persons in a like position rather than to simply what is fair between the parties?

20. When compared with applications for an extension of time, the group of persons in a position like that of an applicant seeking reinstatement of his application, will be substantially smaller. The group does not comprise those in respect of whom a particular type of administrative decision has been made but those who have actually sought review but failed to appear at the appropriate time and whose applications have been dismissed. Arguably, the public interest shifts from ensuring certainty in administrative decision making and consistency of treatment of those affected by decisions to ensuring the efficient operation of a case management scheme and consistency of treatment of those affected by that scheme. Having had regard to the cases of Davies v Pagett and Lenijamar Pty Ltd and Others v AGC (Advances) Ltd, I do not think that the public interest in this sense is directly relevant in its own right. What will be relevant is the regard which the parties have paid to that case management system. It will be relevant in assessing whether the respondent has been prejudiced and whether the respondent is likely to be prejudiced again in the future by the applicant's conduct.

21. Ordinarily, I would not need to consider the merits of the case exhaustively in considering the application but only whether Mr Oates' application appeared to have merit. I have considered the merits of the case exhaustively on this occasion, however, for the hearing proceeded on the basis that, if Mr Oates were successful in his application for reinstatement, I should then determine the merits of his substantive application. That is to say, the hearing of the application for reinstatement was also a hearing of the substantive merits of the case.

22. There is no dispute between the parties as to the facts on the substantive merits of this case. The only dispute is in relation to the application of the 1991 Act to those facts. In view of the lack of disagreement and on the basis of the written material, I have made a number of findings of fact which I will now set out.

23. On 6 July, 1990, Mr Oates claimed family allowance in respect of his son, John, who was born on 12 September, 1983. His claim was granted but on 24 September, 1992, a delegate of the Secretary cancelled the family allowance. He or she did so on the basis that Mr Oates' tax file number ("the number") had not been supplied as requested by the Department.

24. There is a computer entry which shows the code "BFP/CAN-NTC" and the words "About Your Family Payment" together with the date 24 September, 1992 (T documents, page 33). The text of the letter, which advised him of the cancellation and which he did not receive, appears at pages 33 to 39 and it reads, in part,

"I am writing to you about your family payment.

We wrote before asking for your Tax File Number but you have not given

us the information. This means that your Family Allowance will have

to stop. Your last family allowance payment was on 17 September 1992.

No more payments will be made after 17 September 1992 unless you tell

us your tax file number. This decision is made under section 882 of

the Social Security Act 1991."

If you do not have a Tax File Number or do not know what it is, you

can call at our office or phone us." (T documents, page 6)

25. The letter went on to tell Mr Oates of his rights to have the decision reviewed by an Authorised Review Officer or by the Social Security Appeals Tribunal. It also added:

"If you do not apply for a review of the decision or appeal within

three months of the date of this letter, you can only receive arrears

from the date you ask for a review or appeal." (T documents, page 38)

26. Although failure to supply the number was the basis for the cancellation, Mr Oates had in fact replied to the request for the number. He had received a letter requesting the number and had answered it. A little time later, he received a telephone call from a staff member of the Department and was advised that the number he had given was incorrect. On the same day, 25 September, 1992, he received a letter from the Australian Taxation Office advising him that he had made a declaration disclosing an incorrect number. Mr Oates telephoned the Department and corrected the earlier error.

27. Upon going through his bank statements in approximately February, 1993, Mr Oates found that there was no record of the allowance's being paid to him. When he telephoned the Department, he was told that the family allowance had been cancelled. As a result of that information, he drove from his home at Kyabram to Shepparton and gave the Department his number for a third time. His family payments were reinstated from 5 February, 1993.

28. On the same day as payments were restored, Mr Oates asked that he be paid the family payments for the period between 15 September, 1992 and 5 February, 1993 (T documents, pages 30-31). His request was refused on the basis that Mr Oates had not made contact with the Department within the three month period referred to in sub-section 887(3) of the 1991 Act (T documents, page 32). An Authorised Review Officer then examined Mr Oates' case on 11 February, 1993. He described the decision he was reviewing as the "Department's decision of 24 September, 1992 to cancel ... (Mr Oates') family allowance payments." (T documents, page 40) The Authorised Review Officer wrote to Mr Oates on 18 February, 1993 affirming the decision and setting out his or her reasons for doing so. He or she referred to the letter of 24 September, 1992 sent to Mr Oates and to sub-section 887(3) of the 1991 Act.

29. The Authorised Review Officer's letter went on to advise Mr Oates that he could apply to the SSAT and, if still dissatisfied, to this Tribunal. He was not advised that he should apply within three months of receiving the notification of the Authorised Review Officer's decision or that the time in which he applied was in anyway relevant at all (T documents, pages 42-43).

30. I have considered this matter in three sections. The first relates to the decision made to cancel Mr Oates' family allowance on 24 September, 1992. The second relates to the decision made by a delegate and an Authorised Review Officer when they reviewed that decision. The third relates to the date of effect of a decision of the SSAT.

31. The papers I have do not include any evidence of the Department's having required Mr Oates to supply his number. The authority for a person to be required to tell the Department is found in section 855 of the 1991 Act. That section provides that

"The Secretary may require a recipient of, or a claimant for, family

payment, to give the Secretary a written statement of the person's tax

file number."

32. There is no indication that the Secretary must give the notice in writing or that it may be given orally. This is unlike the general power given to the Secretary under section 1304 to obtain information or documents. A requirement made under section 1304 must be made in writing and given to the person required to comply with it (sub-section 1304(1)).

33. Presumably, Mr Oates was asked at some time to give the Department his number but, without a copy of a letter or of a file note recording an oral request, I am unable to go beyond that finding. In particular, I am unable to find that he was required to give the information to the Department within 28 Days after the requirement was made. That is significant as the only ground upon which the Secretary could cancel Mr Oates' family allowance was if he had failed to comply with the requirement in 28 days. That follows from sub-section 849(1) which provides:

"(1) Family payment is not payable to a person if:

(a) the person is required under section 855 to give the Secretary a

written statement of the person's tax file number; and

(b) at the end of the period of 28 days after the requirement is made,

the person has neither:

(i) given the Secretary a written statement of the person's tax file

number; nor

(ii) given the Secretary a declaration by the person in a form

approved by the Secretary and satisfied either subsection (2) or (3)."

34. As there is no evidence that there was any 28 day time period imposed upon him, I find that Mr Oates did not fail to comply with the Secretary's requirement and so there was no ground for the cancellation of his pension.

The decision of the delegate and of the Authorised Review Officer in reviewing the decision to cancel the family payment

35. The delegate and the Authorised Review Officer did not review the merits of the decision of 24 September, 1992 but decided the issue instead on the basis of the provisions of sub-section 887(3) of the 1991 Act. Section 887 operates when a person applies to the Secretary for review of a decision. This is what Mr Oates did when he asked to be given the family payment for the period between September, 1992 and February, 1993. He applied on 5 February, 1993, which was more than three months after the decision was made on 24 September, 1992.

36. Sub-section 887(3) of the 1991 Act provides that:

"If:

(a) a decision (the 'previous decision') is made in relation to a

family payment; and

(b) a notice is given to the recipient advising the recipient of the

making of the previous decision; and

(c) the recipient applies to the Secretary under section 1240, more

than 13 weeks after the notice is given, for review of the previous

decision; and

(d) a favourable determination is made as a result of the application

for review; and

(e) subsections (6), (7) and (8) do not apply to the determination;

the determination takes effect on the day on which the recipient

sought the review."

37. If a person does lodge an application within three months of a decision's being notified, sub-section 887(4) is applicable. That sub-section provides:

"If:

(a) a decision ('the previous decision') is made in relation to a

family payment; and

(b) no notice is given to the recipient advising the recipient of the

making of the previous decision; and

(c) the recipient applies to the Secretary under section 1240 for

review of the previous decision; and

(d) a favourable determination is made as a result of the application

for review; and

(e) subsections (6), (7) and (8) do not apply to the determination;

the determination takes effect on the day on which the previous

decision took effect."

38. The crucial aspect of both of these sub-sections is the date on which Mr Oates was notified of the decision. When a person is given notice of a decision is dealt with in section 1302A of the 1991 Act. That section provides, in so far as it is relevant, that:

"(1) If a notice of a decision under this Act is:

(a) delivered to a person personally; or

(b) left at the address of the place of residence or business of the

person last known to the Secretary; or

(c) sent by pre-paid post to the address of the place of residence or

business of the person last known to the Secretary;

notice of the decision is taken, for the purposes of this Act, to have

been given to the person.

(2) Notice of a decision under this Act may be given to a person by

properly addressing, prepaying and posting the document as a letter.

(3) If notice of a decision under this Act is given in accordance with

subsection (2), notice of the decision is taken to have been given to

the person at the time at which the letter would be delivered in the

ordinary course of post unless the contrary is proved.

..."

39. Section 1302A was inserted by section 140 of the Social Security Legislation Amendment (No. 3) Act 1992 ("the amendment Act") and came into operation on 24 December, 1992 (see paragraph 2(1)(b) of the amendment Act. As it did not come into operation until after the letter of 24 September, 1992 was written to Mr Oates, it is not relevant in deciding whether or not he was notified of the decision.

40. I have, therefore, had regard to two decisions of the Federal Court of Australia, which has considered whether notice was "given" under the Social Security Act 1947 ("the 1947 Act"). The first is Secretary, Department of Social Security v O'Connell [1992] FCA 217; (1992) 16 AAR 46, in which Jenkinson J said that if the 1947 Act referred to "... giving notice it must mean actual giving of notice in a way that in the ordinary course of events will be communicated to the intended recipient." (page 58) In the second case, Secretary, Department of Social Security v Garratt [1992] FCA 337; (1992) 109 ALR 149, Gummow J reached a similar conclusion.

41. In this case, I have found that Mr Oates did not receive the letter of 24 September, 1992. That is the letter which told him that his family allowance had been cancelled. It follows that he was not given notice of the decision and that the provisions of sub-section 887(4), and not of 887(3), are applicable. Applying the provisions of sub-section 887(4), Mr Oates' family allowance should have been restored from 17 September, 1992. If there were no other aspect of this case to consider, the SSAT and I would have set aside the decision under review and substituted a decision to that effect. Unfortunately, there is another aspect of the case and I turn to that now.

42. The decision of the Authorised Review Officer was sent to Mr Oates by a letter dated 18 February, 1993. There is no question that Mr Oates received the letter. There is no evidence, however, as to how he came to receive the letter i.e. whether it was posted to him, delivered personally or left at his address. In another case, that might have some relevance for it would be necessary to establish the way in which notice of the decision was given if the Secretary wishes to rely on the provisions of section 1302A. In this case, it is not relevant to do so as Mr Oates received the letter of 18 February, 1993. In view of the Federal Court's decisions in O'Connell and Garratt, Mr Oates has been given notice of the Authorised Review Officer's decision.

43. Mr Oates did not argue that he received the letter of 18 February, 1983 much later than one normally would expect and so within three months of his lodging the application for review with the SSAT. In view of that and allowing for a generous time for the letter to travel from Melbourne to Kyabram, I have concluded that, when Mr Oates applied to the SSAT on either 20 June, 1993 (the date on which he signed his application) or 23 June, 1993 (the date on which it is marked as having been received by the SSAT), it was more than three months after he had been given notice of the Authorised Review Officer's decision.

44. This means that sub-section 1255(4) of the 1991 Act comes into play. That sub-section provides:

"If:

(a) a person is given written notice of a decision under this Act; and

(b) the person applies to the SSAT more than 3 months after the notice

was given, for review of the decision; and

(c) the SSAT varies the decision or sets the decision aside and

substitutes a new decision; and

(d) the effect of the SSAT's decision is:

(i) to grant the person's claim for a pension, benefit or allowance;

or

(ii) to direct the making of a payment of pension, benefit or

allowance to the person; or

(iii) to increase the rate of the person's pension, benefit or

allowance;

subsection (3) applies as if references in that subsection to the day

on which the decision under review had effect were references to the

day on which the application was made to the SSAT for review of the

decision under review."

45. I have considered sub-section 1255(4) in the light of section 1247. Sub-sections 1247(1) and (1A) are relevant and provide:

"Subject to section 1250, if:

(a) a decision has been reviewed by the Secretary or an authorised

review officer under section 1243; and

(b) the decision has been affirmed, varied or set aside;

(ba) a decision of an officer under the Farm Household Support Act

1992;

a person whose interests are affected by the decision of the Secretary

or the authorised review officer may apply to the Social Security

Appeals Tribunal for review of that decision.

(1A) For the purposes of subsection (1), the decision made by the

Secretary or the authorised review officer is taken to be:

(a) if the Secretary or the authorised review officer affirms a

decision - the decision as affirmed; and

(b) if the Secretary or the authorised review officer varies a

decision - the decision as varied; and

(c) if the Secretary or the authorised review officer sets a decision

aside and substitutes a new decision - the new decision."

46. I have given consideration to whether the decision referred to in sub-section 1255(4) is the decision of the Authorised Review Officer dated 18 February, 1993 or the operative cancellation decision dated 24 September, 1993. If reference is had only to sub-section 1247(1A), it would be the operative decision in this case for that has effectively been affirmed by the Authorised Review Officer and is, therefore, the decision under review. When the whole of Part 6.2 is read, however, I think that sub-section 1255(4) is referring to the notification of the Authorised Review Officer's decision itself. To reach a different conclusion would mean that very few would ever be able to apply to the SSAT within three months of having been notified of the primary operative decision where that decision has simply been affirmed on review. Such an impractical result can not have been intended.

47. As Mr Oates was outside the three month period, the earliest day on which the SSAT's decision could have effect would be the date of his application to it i.e. the 20 June, 1993 or 23 June, 1993. Such a decision would not benefit Mr Oates at all in recovering the payments of family allowance between 17 September, 1992 and 5 February, 1993.

The principles other than those relating to the merits of the substantive application

48. Mr Oates said at the hearing on 6 June, 1994 that he understood that the hearing was to be by telephone. If that was so, it does not explain why he neither telephoned the Tribunal when he was not telephoned for the hearing by the Tribunal nor was available when the Tribunal did telephone him at approximately 2.45pm. Had I decided that Mr Oates had a prima facie case on his substantive application, I would have explored this aspect further. I would have done so in the context of determining whether Mr Oates is likely to prejudice the Secretary's presentation of his case by failing to attend a further hearing. As it is, he attended the two hearings connected with these proceedings and it is irrelevant to consider any prejudice to the Secretary caused by Mr Oates' failure to appear at the last hearing or his likely conduct in the future.

49. I am not aware of any particular action Mr Oates has taken to advise the Department that he wished to reinstate the application but again this is of no consequence. The time between the dismissal and the application was less than four weeks and there is no evidence that the Secretary has been at all disadvantaged. He may have been led to believe briefly that the matter had been concluded, as indeed it had been by virtue of sub-section 42A(6) of the AAT Act. That belief was short-lived, however, as Mr Oates has acted promptly following the dismissal of his application and there is no evidence that the Secretary has been prejudiced by the application for reinstatement. There is no evidence that other people in a position similar to Mr Oates would be prejudiced or in any way affected whether his application for reinstatement is granted or refused.

CONCLUSION REGARDING THE APPLICATION FOR REINSTATEMENT OF APPLICATION

50. In view of the fact that both the application for reinstatement and the merits of the substantive application were heard at the same time, I consider that I do not need to consider all of the relevant matters in determining what is fair in this case for the conclusion I have reached regarding the merits of Mr Oates' substantive application is determinative of the application for reinstatement on this occasion. I have decided, therefore, to refuse his application for reinstatement of his application pursuant to sub-section 42A(8).