PRACTICE AND PROCEDURE - interlocutory hearing - application for extension of time - whether acceptable explanation of delay - delay to be considered is period after dismissal - whether prejudice to respondent or other persons - merits of the claim and public importance - extension of time granted

Administrative Appeals Tribunal Act 1975 (Cth) ss 29(2), 29(7)

Social Security (Administration) Act 1999 (Cth) s 179

A New Tax System (Family Assistance) Act 1999 (Cth) ss 41(2)(b), 44(1)(c)

A New Tax System (Family Assistance) (Administration) Act 1999 (Cth) s49J

Agar v Australian Postal Corporation (1998) 56 ALD 361

Hua-Aus Pty Ltd v Commissioner of Taxation [2009] FCA 743

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

Moodie v Department of Defence [1993] FCA 387; (1993) 30 ALD 813

Re Australian Telecommunications Commission and Commonwealth and Schmidt (1986) 9 ALD 349

Re Civic Tavern Pty Ltd and ACT Liquor Licensing Board (1993) 32 ALD 381

Re Grafton and Commonwealth (1988) 16 ALD 533

1. Mr Scott Magain has appealed from a decision of the Social Security Appeals Tribunal (SSAT) that he is not entitled to child care benefit and child care rebate for the period 12 January 2009 to 8 November 2009.
2. The decision of the SSAT was published on 22 March 2011 and was despatched on 5 April 2011. Mr Magain did not lodge his application for review with the Administrative Appeals Tribunal (Tribunal) until 23 December 2011. Accordingly, Mr Magain is out of time to seek review by the Tribunal.[1]
3. The issue in this interlocutory hearing is whether an extension of time should be granted so that the Tribunal can hear the matter. The Secretary of the Department of Education, Employment and Workplace Relations (Secretary) does not oppose any grant of an extension of time. Ms Judith Mills, Mr Magain's former partner, and the other party in this matter, does oppose the grant of an extension of time.

1. Mr Magain and Ms Mills, who separated on 30 December 2008, and were divorced on 4 May 2010, share the care of their two children, born in 2004 and 2008.
2. An order by the Federal Magistrates Court on 21 January 2009 states:

...each party will pay one half of all fees associated with both children at ABC Learning Centre Linden Park (after taking into account the Child Care Benefit paid by the Federal Government.

1. A court order of 15 December 2009 confirmed that 'the parties retain joint parental responsibility for the children of the marriage'.
2. On 14 April 2010, Mr Magain submitted a claim online for child care benefit for the period 12 January 2009 to 30 June 2009. On 1 July 2010, he submitted a claim online for child care benefit for 1 July 2009 to 30 May 2010. .
3. There is evidence that the Tribunal accepts that Mr Magain has been responsible for and paid 50 per cent of the child care fees for his two children since 12 January 2009.
4. On 8 October 2010, Centrelink decided that as Mr Magain was not registered with the children's child care centre until May 2010, he was not an individual who had incurred a liability to pay fees. He was, therefore not entitled to child care benefit and child care rebate for the periods claimed. The benefit and the rebate were paid to Mr Magain from 31 May 2010 when his registration was recorded.
5. Subsequently Centrelink advised that Mr Magain was registered in their Usage Data for his children's child care centre from 9 November 2009 and he has been paid benefits since that date. Accordingly, the claim is for the period 12 January 2009 to 8 November 2009 only.
6. Mr Magain sought further review of the decision by a Centrelink authorised review officer (ARO). The ARO decided on 23 December 2010 she did not have jurisdiction to review the decision.
7. Despite that decision, on 4 January 2011, Mr Magain sought review by the Social Security Appeals Tribunal (SSAT). On 22 March 2011, the SSAT decided it had jurisdiction but affirmed the decision.
8. On 23 December 2011, Mr Magain sought review of the SSAT's decision by the Tribunal. As the application was out of time, Mr Magain lodged an application for extension of time on 29 November 2011. An interlocutory hearing was held on 24 January 2012 and adjourned to obtain evidence. A further hearing was held on 14 February 2012. Centrelink provided further documents to the Tribunal at its request on 6 March 2012, and the applicant made final submissions on 7 March 2012.

1. The relevant legislation is Administrative Appeals Tribunal Act 1975 (Cth) ss 29(2) and 29(7), Social Security (Administration) Act 1999 (Cth) s 179, the A New Tax System (Family Assistance) Act 1999 (Cth), ss 41(2)(b) and 44(1)(c), (Act) and the A New Tax System (Family Assistance) (Administration) Act 1999 (Cth) (Administration Act), s49J.

1. The principal issue is whether Mr Magain should be granted an extension of time to lodge an application with the Tribunal.

1. The Tribunal must be satisfied is that the 'that an extension of time is proper"[2] according to criteria identified in the case law.
2. Criteria identified in Hunter Valley Developments Pty Ltd v Cohen [1984] FCA 176; (1984) 3 FCR 344 were paraphrased more recently in Hua-Aus Pty Ltd v Commissioner of Taxation [2009] FCA 743 where, in the context of the equivalent power of the Federal Court to grant an extension of time, Edmonds J said at [10]:

Special circumstances need not be shown but the court will not grant the application unless positively satisfied that it is proper to do so. It is a pre-condition to the exercise of discretion in his favour that the applicant for extension show an 'acceptable explanation of the delay' and that it is 'fair and equitable in the circumstances' to extend time.

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 and a case where the decision-maker was allowed to believe the matter was finally concluded.

Any prejudice to the respondent occasioned by the delay is a material factor militating against the grant of an extension.

The mere absence of prejudice is not enough to justify the grant of an extension.

The merits of the substantial application are properly to be taken into account in considering whether an extension of time should be granted. ...More recently, however, the importance to be attached to the merits of the appeal has, arguably, been downgraded in its ranking among the criteria to be taken into account by the court in exercising its discretion as to whether or not an extension of time should be granted.

1. The stated approach to the merits of the claim before the Federal Court is affected by the appeal rights to that Court from the Tribunal being limited to a 'a question of law'.[3] That limitation is not imposed on the Tribunal exercising its merit jurisdiction. Nonetheless, the downgrading of this criterion reflects the balance at a Tribunal hearing between the preliminary processes involved in an interlocutory hearing and the substantive hearing of a matter. If the claim has no or little prospect of success, an extension of time is unlikely to be granted.

Acceptable explanation for the delay and indications that Mr Magain continued to pursue his rights

1. The decision for which Mr Magain seeks review is the decision of the Social Security Appeals Tribunal dated 22 March 2011, sent out on 5 April 2011. Mr Magain did not lodge an application to the Tribunal until 23 December 2011. That means the delay in seeking review by the Tribunal was roughly 7 months.
2. Mr Magain's reasons for the delay follow. The first reason relates to the history of the claim. His application to be paid child care benefit from January 2009 to 31 May 2010 was rejected by a primary decision-maker at Centrelink on 8 May 2010. He sought further internal review of that decision which was affirmed on 27 October 2010. On further review by an Authorised Review Officer (ARO), the ARO refused to consider the claim on 23 December 2010.
3. The ARO claimed that advice from the Department of Education, Employment and Workplace Relations was that Centrelink had no jurisdiction in the matter. Nonetheless, the ARO's letter stated that there was a right of appeal to the SSAT and that Mr Magain would only be paid arrears from the date of his application unless he appealed within 13 weeks of the date of receipt of the ARO's letter. The letter also noted that there was a further right of appeal to the Tribunal. No time limit was provided for the Tribunal appeal.
4. Mr Magain did appeal to the SSAT on 4 January 2011. In other words his response following the ARO decision was prompt. The SSAT made a decision on 22 March 2011 and the letter was sent out on 5 April 2011.
5. Mr Magain claimed he was not advised of his right to seek review by the Tribunal. He was not advised specifically of the time limit for his application to the Tribunal. The advice that he had a right of review by the Tribunal was in the letter from Centrelink ARO dated 23 December 2010. No time limit for lodging the application with the Tribunal was mentioned. The advice related specifically to the right to seek review by the SSAT, a time limit for which was noted.
6. The decision of the SSAT held by the Tribunal contains no information about a time limit within which to exercise the right of review to the Tribunal. That information may be in a covering letter which is not with the documents provided to the Tribunal. However, in the absence of any such evidence, the Tribunal is prepared to assume that Mr Magain was aware of his right of review to the Tribunal and he could have checked the Tribunal website to ascertain whether any time limits applied. However, since the decision of the SSAT was not received until early April, it may be assumed that he did not contemplate his right of review by the Tribunal until that time.
7. Mr Magain claimed he was told by someone in Centrelink that he could not take the matter further through the tribunal system but must pursue his claim directly against Ms Mills through the civil court system. The date of this advice has not been established. There was nothing in the ARO's letter to confirm that this was the case. However, it is consistent with the advice given to the ARO by DEEWR in an email dated 23 December 2010, that 'If the father wishes to pursue this matter he will have to [do] so directly with the other parent'. It is likely that, in turn, this advice was provided orally to Mr Magain, and he said that the advice was given by Ms Magenta Deluxe, the ARO. This is consistent with the information that it was to Ms Deluxe that DEEWR provided the information on 23 December 2010. It is also consistent with her subsequent decision that she had no jurisdiction in the matter, based on that advice.
8. At first sight, however, Mr Magain's application to the SSAT is inconsistent with this claim. If he had believed he had no further right of review within the tribunal system he would not have lodged his application with the SSAT. However, it is not known when Mr Magain obtained that advice from the ARO. Since Mr Magain lodged his application with the SSAT on 4 January 2011 and the ARO decision was made on 23 December 2010, it is likely, given the Christmas/New Year break, that he had not received that advice before 4 January 2011. In addition, since Mr Magain did not receive the outcome at the SSAT until April it is likely that he did not seek that advice until sometime after then. In which event, the inconsistency is explained.
9. Mr Magain had accepted the advice that he should pursue the claim directly against Ms Mills in the civil court system. He did so through the civil courts. The only information on this issue held by the Tribunal is that on 2 September 2011 the matter was heard in the Adelaide Magistrates Court (Civil Division). Mr Magain was again unsuccessful. There is no information as to when he made the application and how long he waited for the outcome. If Mr Magain had been advised by the ARO to take this action sometime in April, there was a delay from the time of receipt of that information to the outcome in the civil action of some 4.5 months. That is not excessive given delays in obtaining hearing dates and outcomes in the civil law system, even at the lowest level.
10. In addition, following receipt of the SSAT decision in the first part of April 2010, Mr Magain sought documents relating to his claim from Centrelink under the Freedom of Information Act 1982 (Cth) (FOI Act). The Tribunal has no information as to the date of the application. The documents were provided on 4 August 2011.The standard time for responding to an FOI request is 30 days.[4] If that time limit applied, the application would have been made some time in June 2011. That was some 2 months after receipt of the outcome of his SSAT application.
11. At the same time, an extension of time may have been sought by Centrelink to respond to the request if the application was considered to be 'complex or voluminous'.[5] Since Mr Magain was provided with 75 documents, that was a possibility. If that had occurred, his application could have been made earlier than mid-April. In which case the delay in taking action following the decision in mid-April would have been less than two months, an acceptable period.
12. The submission from Welfare Rights representing Mr Magain, dated 23 January 2011, asserts that Mr Magain 'sought advice from Welfare Rights and Legal Centre late last year, and an appeal was lodged as soon as adequate instructions had been obtained'.
13. In summary, although Mr Magain did not seek review by the Tribunal until December 2011, when consideration is given to the whole period involved,[6] it is apparent that he continued to pursue his claim beyond the expiration of the time for appeal to the AAT. He has not rested on his rights[7] and the Tribunal finds, given the outcome in the SSAT application, the advice he received about taking action in the civil courts, his FOI application seeking documents from Centrelink, and his eventual seeking of representation through Welfare Rights, that there is an acceptable explanation for the delay.

1. Centrelink does not object to the matter being heard by the Tribunal. In other words it is not claiming prejudice to its interests.
2. On the other hand, Ms Mills has objected. Her arguments in brief are that Mr Magain has already appealed to the Magistrates' Court in Adelaide and was unsuccessful, and he then appealed to the SSAT and was again unsuccessful. Her contention is that there is accordingly little prospect of success before the Tribunal. In addition she claims that pursuit of the claim puts both financial and emotional strain on herself and the children. She claims that these continuing claims have caused detriment to her personal and professional life.
3. The Tribunal concedes that the impact on Ms Mills and the children of the marriage, as well as the financial impact on Ms Mills need to be given weight in balancing the factors which must be taken into account in deciding whether to grant the application for an extension of time. As an Other Party in this matter, however, Ms Mills does not have to bear costs in time and money to the extent involved for the principal parties. Nonetheless, there are financial disadvantages for her in any further action.
4. Further, she claims that Mr Magain was aware of his right to appeal to the Tribunal and chose not to do so. She argues that he did not meet the time limit for appeal to the Tribunal because he was disorganised. These arguments have been considered and discounted in the previous discussion of the issues. Finally she denies that the issues raised in this application involve matters of public importance. These arguments which relate to the merits of the case, as well as the general significance of the claim are considered in the material which follows.

Merits of the claim and public importance of the matter

1. The outcome in the SSAT application which the Tribunal would review if an extension of time is granted was equivocal. Although the decision under review was affirmed, Mr Magain succeeded on one issue. The principal reason of Centrelink for rejecting the application was that Mr Magain was not a person who, under the relevant Acts, met the tests for eligibility for receipt of child care benefit and child care allowance. As to this argument, the SSAT stated: 'The Tribunal is of the opinion that it is open to it to determine that Mr Magain was a person who had incurred a liability to pay child care fees and it so finds'. In other words he was successful on that issue.
2. The second argument on which Mr Magain was not successful, was that as Mr Magain's claim was for a past period and covered two financial years the claim was ineffective.[8] In documents subsequently identified and provided to the Tribunal, it has been established that Mr Magain lodged his applications for the relevant period online, that two separate applications were made, and that each pertained to a single financial year. Centrelink information also is that Mr Magain's applications were not ineffective in accordance with the legislation. On that basis, Mr Magain should have succeeded on this ground too at the SSAT. In other words there is merit in his application.
3. A further issue which was not considered by the SSAT but is an issue for the Tribunal is the legality of Centrelink's requirement that Mr Magain be registered with the child care centre providing care to his children, and show evidence of usage to be eligible to receive the benefit and rebate. This issue may also be of more general significance and is a reason for this matter being taken up by Welfare Rights.
4. Finally, Ms Mills acknowledged at the first interlocutory hearing on 23 January 2012, that since January 2009 Mr Mills had been paying half the child care fees he owed directly into her account, but she had received all the Centrelink child care benefit and allowances for a period without reimbursing Mr Magain for 50 per cent of the receipts. The Tribunal notes her honesty in disclosing this information. However, it raises an equitable issue which is a factor weighing in favour of the application going ahead.

1. On balance, the Tribunal is prepared to grant Mr Magain an extension of time in this matter. While the Tribunal is conscious that this will have an adverse impact on Ms Mills, there is no prejudice to Centrelink, Mr Magain's actions indicate he relied on advice and did not rest on his rights during the 7 months he was out of time for this application, the merits of the application are reasonable, depending on arguments relating to the criteria used to assess eligibility for the allowance and rebate, and that these are matters of public importance. For these reasons, the time for application is extended to 23 December 2011, and the application is permitted to proceed.

I certify that the preceding 40 (forty) paragraphs are a true copy of the reasons for the decision herein of Professor RM Creyke, Senior Member .

...........................[sgd].............................................

Centrelink Program Litigation and Review Branch

[1] Administrative Appeals Tribunal Act 1975 (Cth) s 29(2); Social Security (Administration) Act 1999 (Cth) s 179.

[2] Re Australian Telecommunications Commission and Commonwealth and Schmidt (1986) 9 ALD 349 at 350 (DP Jennings QC)

[3] Administrative Appeals Tribunal Act 1975 (Cth) s 44(1).

[4] Freedom of Information Act 1982 (Cth) (FOI Act) s 15AA(5)(b).

[6] Agar v Australian Postal Corporation (1998) 56 ALD 361.

[7] Cf Re Grafton and Commonwealth (1988) 16 ALD 533; Re Civic Tavern Pty Ltd and ACT Liquor Licensing Board (1993) 32 ALD 381.

[8] A New Taz System (Family Assistance (Administration)) Act 1999 (Cth) s 49J(2)(a)