FEDERAL COURT OF AUSTRALIA

Mori v Secretary, Department of Social Security [2014] FCA 1014

THE COURT ORDERS THAT:

1.    The application for an extension of time and leave to appeal filed 4 July 2014 (the application) be treated as an application for an extension of time to file a notice of appeal.

2.    The application be dismissed with costs.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

1    On 4 July 2014 the applicant (Ms Mori) filed an application for an extension of time and leave to appeal in relation to a judgment of Foster J given on 3 April 2014: Mori v Secretary, Department of Social Services [2014] FCA 333. The proceeding before his Honour was in the nature of an appeal by Ms Mori against a decision of the Administrative Appeals Tribunal (the Tribunal) dated 10 October 2013: Shinko Mori v Secretary, Department of Social Services [2013] AATA 737 brought pursuant to s 44(1) of the Administrative Appeals Tribunal Act 1975 (Cth) (AAT Act). Section 44(1) provides that a party to a proceeding before the Tribunal may appeal to the Federal Court on a question of law.

2    I should say at once that I do not consider Ms Mori requires leave to appeal against the primary judge’s judgment because it was final rather than interlocutory. His Honour did not deal with Ms Mori’s application on a summary basis but dismissed it following a final hearing.

3    Ms Mori did not commence an appeal within the time permitted by Federal Court Rules 2011 (Cth) (FCR) which required that she do so within 21 days from the date of the primary judge’s judgment. The application now before me was not filed until 4 July 2014. It was therefore filed approximately 2 months after the date upon which any notice of appeal should have been filed.

4    I propose to treat Ms Mori’s application as if it were an application for an extension of time to file her appeal.

5    On 22 July 2014 I made an order that Ms Mori’s application be dealt on the papers and without an oral hearing. Written submissions were filed by both parties. These included written materials provided by Ms Mori dated 30 June, 31 July and 2 August 2014, including a document entitled “Record of Events”, and reply submissions filed or received on 14 August 2014. I have had regard to all such submissions. I have also had regard to Ms Mori’s affidavit filed on 4 July 2014 in which she explains, amongst other things, the reasons behind the delay in filing her application for leave to appeal (sic). It is apparent from a reading of this material that it is, for the most part, directed to the merits of Ms Mori’s complaints, and does not assist in ascertaining what question of law is raised in Ms Mori’s appeal.

6    By its decision, the Tribunal refused to reinstate an earlier application (Ms Mori’s original application) which Ms Mori had made and which had been dismissed by operation of s 182(2) of the Social Security (Administration) Act 1999 (Cth) (SSA Act). The broad effect of that provision is apparent from [1] of the primary judge’s reasons in which his Honour said:

Ms Mori’s original application had been resolved consensually and dismissed as a result of the application of s 182(2) of the [SSA Act] which provides that, if proceedings in the Tribunal that relate to the recovery of a social security debt are settled and the Secretary of the Department of Social Services gives a copy of the settlement agreement to the Tribunal, then the AAT proceeding is taken to have been dismissed by reason of those actions and without the need for any specific dismissal order to be made by the Tribunal.

7    The relevant principles which inform the exercise of the discretion to extend the time within which a party may file a notice of appeal were considered by Jess v Scott (1986) 12 FCR 187 at 195 in the context of O 52, r 15(2) of the former Federal Court Rules. I note, however, that an applicant for an extension of time is no longer required to establish “special reasons” as a condition of obtaining an extension of time.

8    Be that as it may, the strength of an applicant’s proposed appeal has always been a relevant consideration in determining whether or not to grant an extension of time within which to lodge an appeal. How closely the Court evaluates the strength of the proposed appeal will depend upon the circumstances. Ultimately, as Gummow and Hayne JJ explained in Jackamarra v Krakouer (1998) 195 CLR 516 at 527, the rules of the court and the time limits they prescribe are an aid to the attainment of justice.

9    At the hearing before the primary judge there were two questions of law which were said by Ms Mori to be raised in the appeal. The first of these suggested that the dismissal of Ms Mori’s original application was in error because the terms of settlement signed by Ms Mori which resulted in the dismissal of her application were the result of mental fatigue, and were entered into with the encouragement of well-meaning friends. The second question of law said by Ms Mori was more opaque. The Amended Notice of Appeal identified the second question of law in these terms: “Applicable discretion of regulation on informing within 14 days.”

10    The primary judge referred to and quoted from the Tribunal’s decision in some length at [9] to [16] as follows:

[9]    In its Reasons for Decision, after outlining briefly the general nature of the application before it and referring to some other matters of history (at [1]-[3]), the Tribunal said (at [4]-[8]):

    4.    The brief facts follow –

        (a)    on 20 July 2011, Ms Mori applied for review of a decision of the Social Security Appeals Tribunal, affirming a decision made by the Secretary to raise and recover a debt in the amount of $2,446.23 in respect of earnings in 2008 that Ms Mori reported in June 2009;

        (b)    on or about 15 September 2011 the Secretary served draft terms of settlement;

        (c)    Ms Mori refused to accept the terms offered;

        (d)    on 30 September 2011, relevant issues were discussed in a preliminary conference before a Tribunal Conference Registrar;

        (e)    on 17 October 2011, apparently following discussions between a Departmental officer and Ms Mori’s friend and neighbour, Mr Mayple, the Secretary provided Ms Mori with further terms of settlement and clearly informed her that consent would lead to dismissal of her application before the Tribunal;

        (f)    Ms Mori signed the draft terms of settlement and she also signed a consent for the Secretary to lodge the terms of agreement in the Tribunal;

        (g)    on 28 October 2011, terms of settlement were filed in the Tribunal;

        (h)    on 31 October 2011, notice of dismissal was sent to Ms Mori and to the Secretary;

        (i)    on 2 September 2013, Ms Mori sought reinstatement of the application.

    5.    The issue is to be decided under s 42A of the [AAT Act]. The discretion to reinstate an application is enlivened if the request for reinstatement is made within 28 days of notice of dismissal, or if the dismissal was in error.

    6.    Clearly, Ms Mori’s request for reinstatement was not made within 28 days of notice of dismissal. It follows that reinstatement may only be made under s 42A(10), in the case of error.

    7.    Ms Mori says that there are several errors. She maintains that she was unwell and that this affected her action to agree to terms of settlement. She says that she agreed to the terms of settlement in order to reduce her mental fatigue and stress. Furthermore, she said that she agreed to the terms and signed them in order to show appreciation and respect to her friendly neighbour, Mr Mayple, and to her friends in Japan, all of whom encouraged her to sign the draft terms. She told me that the terms of settlement do not address her primary goal in making the original application in July 2011, which was correcting incorrect records held by Centrelink in respect of her 2008 income reporting. This, she says, was an error on her part – she should not have accepted terms that did not address this objective. A further element of error, in her submission, may be that she misunderstood what the Tribunal can do in respect of amending records held by Centrelink. Finally, if I understand Ms Mori correctly, part of her complaint is that she was not properly informed about the reinstatement provisions of the AAT Act before or very soon after she signed the terms of settlement.

    8.    To my mind none of these submissions suggest that Ms Mori’s 2011 application was dismissed in error.

[10]    At [9] the Tribunal held that the evidence before it did not establish that, in October 2011, when she settled her previous application, Ms Mori was so unwell that her mental faculties were affected to the extent that she did not understand or misconstrued the effect of signing the Terms of Settlement which led to Ms Mori’s original application being dismissed. The Tribunal found that her own sworn evidence was that she did understand what she was signing. The Tribunal went on to say that, while she experienced fatigue and stress at the time, she signed the Terms of Settlement to bring the matter to an end and thereby to reduce the level of her stress. In the Tribunal’s opinion that did not expose any error in effecting the dismissal of the previous proceedings within the meaning of s 42A(10) of the AAT Act.

[11]    At [10] the Tribunal said:

        At this point it is important to observe that under s 182(2) of the [SSA Act], in the event that the Secretary and a claimant agree to settle on terms in respect of the recovery of a debt, the proceedings in the Tribunal are taken to be dismissed. Thus, once signed terms of agreement were lodged in the Tribunal, the application was taken to be dismissed by operation of s 182(2) of the [SSA Act]. There is no error in the manner in which Ms Mori’s application was taken to have been dismissed.

[12]    At [11], the Tribunal held that, acting in a respectful manner to friends who had provided support and advice, does not constitute an error unless there is some element of that support or advice that, of itself, may constitute an error. The Tribunal held that no error could be seen in respect of the support and advice which Ms Mori’s friends had provided. In any event, none of the matters relied upon revealed an error in the process that led to the dismissal of Ms Mori’s application.

[13]    At [12], the Tribunal held that Ms Mori’s issues about amending allegedly incorrect Departmental records or not fully understanding the extent of the Tribunal’s jurisdiction or power do not expose an error in the procedures, circumstances or manner in which her 2011 application was dismissed.

[14]    At [13], the Tribunal held that, even if it were to accept Ms Mori’s assertion that she only became aware of the possibility of reinstatement after making her decision to settle and sign the proposed terms, this does not expose any error in the dismissal of her application.

[15]    At [14]-[15], the Tribunal said:

        On her evidence, the Tribunal provided her with information about reinstatement options within several weeks of the notice of dismissal. It appears that the $1,000 reduction in her overpayment debt was refunded to her following settlement and dismissal of her application in the Tribunal, but she returned it to Centrelink. She told me that it is a matter of honour and respect – she has done nothing wrong and the record should reflect this. That may be so, but Ms Mori did not finally act to seek reinstatement until 2 September 2013. This delay does not suggest that Ms Mori was pressing her avowed desire to step back from the terms of settlement to which she had agreed, and that resulted in her application being dismissed.

        Finally, I accept that Ms Mori now regrets the decision she made to sign the terms proposed to her by the Secretary, and that she wishes she had not done so. Unfortunately for her, regret at having done something, or wishing it was not done or could be undone, having had a change of heart, does not constitute an error for the purposes of s 42A(10).

[16]    For all of the above reasons, the Tribunal declined to exercise its discretion to reinstate Ms Mori’s application pursuant to s 42A(10) of the AAT Act.

11    The primary judge referred at [36] of his reasons to Ms Mori’s written submissions in which she expressed her grievances in some detail. According to the primary judge, Ms Mori’s written submissions did not address the Tribunal’s decision the subject of her appeal nor did they address the questions of law she sought to raise. The primary judge went on to conclude that the two questions of law identified by Ms Mori were not questions of law at all, and that Ms Mori was instead seeking merits review by the Court.

12    As I have mentioned, the primary judge’s judgment was final rather than interlocutory and no question of leave to appeal arises. I approach Ms Mori’s application on that basis.

13    The Draft Notice of Appeal filed in support of Ms Mori’s application for an extension of time does not engage with the primary judge’s reasoning. In particular, it does not identify any error on the part of the primary judge.

14    I do not think there is any reason to doubt the correctness of the primary judge’s decision. In my view, Ms Mori’s proposed appeal does not raise any arguable question of law. I am satisfied that Ms Mori’s proposed appeal has no prospects of success and that, for this reason, her application for an extension of time should be dismissed with costs.

15    The orders I make are as follows:

(1)    The application for an extension of time and leave to appeal filed 4 July 2014 (the application) be treated as an application for an extension of time to file a notice of appeal.

(2)    The application be dismissed with costs.

Associate:

Dated:    18 September 2014