Secretary of the Department of Social Security v Boogaart, K.A.V.D. [1995] FCA 378

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CATCHWORDS

ADMINISTRATIVE APPEALS - appeal to Federal Court - application for extension of time - measurement of time from which to appeal - explanation for delay

Administrative Appeal Tribunals Act 1975 ss 43(2A), 44(2A)

Social Security Act 1991 s 8

Repatriation Commission v Tuite (1992) 37 FCR 571 Appr

Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344 Appr

Kuljic v Secretary, Department of Social Security (1994) 33 ALD 121 Appr

Read v The Commonwealth (1987-8) 167 CLR 57 Refd

Barry v The Repatriation Commission (1993) 41 FCR 529 Refd

Secretary, Department of Social Security v Read (1987) 15 FCR 456 Refd

Maynard v Hudson Delegate of Secretary of Department of Social Security unreported, Northrop J 26 August 1993 Refd

McKnight v Australian Archives unreported, Neaves J 16 July 1993 Refd

Secretary of the Department of Social Security v Kathleen Ann van den Boogaart

No QG136 of 1994

Kiefel J Brisbane 8 June 1995

IN THE FEDERAL COURT OF AUSTRALIA

QUEENSLAND DISTRICT REGISTRY

GENERAL DIVISION No. QG136 of 1994

(ON APPEAL FROM THE GENERAL ADMINISTRATIVE DIVISION OF THE ADMINISTRATIVE APPEALS TRIBUNAL CONSTITUTED BY MR K L BEDDOE SENIOR MEMBER, MR D W MULLER, SENIOR MEMBER AND BRIGADIER T R GIBSON, MEMBER)

BETWEEN:

SECRETARY OF THE DEPARTMENT OF SOCIAL SECURITY

Applicant

AND:

KATHLEEN ANN VAN DEN BOOGAART

Respondent

JUDGE MAKING ORDER: Kiefel J.

DATE OF ORDER: 8 June 1995

WHERE MADE: Brisbane

MINUTES OF ORDERS

THE COURT ORDERS THAT:

1. The application for an extension of time within which to institute an application by way of appeal from the decision of the Administrative Appeals Tribunal be dismissed.

2. The applicant pay the respondent's costs of and incidental to the application to be taxed.

NOTE: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA

QUEENSLAND DISTRICT REGISTRY

GENERAL DIVISION No. QG136 of 1994

BETWEEN:

SECRETARY OF THE DEPARTMENT OF SOCIAL SECURITY

Applicant

AND:

KATHLEEN ANN VAN DEN BOOGAART

Respondent

CORAM: Kiefel J.

DATE: 8 June 1995

PLACE: Brisbane

REASONS FOR JUDGMENT

The applicant seeks an extension of time for the institution of an appeal from the Administrative Appeals Tribunal pursuant to s.44(2A) of the Administrative Appeal Tribunals Act 1975.

The hearing before the Tribunal concerned the question whether monies paid by way of advance or loan to the respondent's husband were "income" within the meaning of s.8 of the Social Security Act 1991, so as to affect the calculation of the respondent's pension. The Tribunal's decision was given ex tempore on 10 August 1994 and the decision in writing, but not the reasons for it, were received by the Department on 19 August. A request was made for reasons and they were received on 12 September 1994
and forwarded to the Department's central office in Canberra. On 28 September 1994 an opinion as to the prospects of an appeal was sought.

Section 44(2A) provides:

"An appeal by a person under subsection (1) or (2) shall be instituted:

(a) not later than the twenty-eighth day after the day on which a document setting out the terms of the decision of the Tribunal is furnished to the person or within such further time as the Federal Court of Australia (whether before or after the expiration of that day) allows; and

(b) in such manner as is prescribed by rules of court made under the Federal Court of Australia Act 1976".

It clearly conveys that time is measured from the furnishing of the document containing the terms of the Tribunal's decision and not the supply of written reasons, which may not always be provided. In that event s.43(2A) provides that a party may request reasons and that procedure was here undertaken by the Department. The measurement of time from decision or the making of an order regardless of the provision of reasons is common enough. Moreover this point, and in connection with s.44(2A), has been the subject of reported decision (Repatriation Commission v. Tuite (1992) 37 FCR 571 affirmed (1992-93) 39 FCR 540). The Notice of Appeal was not filed until 6 October 1994 some twenty days late and it was served on 12 October. An application for an extension of time was not filed until 1 December 1994.

The applicant relies upon an affidavit by a senior advocate in the Department's appeal section who was the person who conducted the hearing in the Tribunal. The explanation offered is simply that:

"The respondent was wrongly proceeding on the assumption that it had twenty eight days from the date of receipt of the written reasons to appeal and overlooked the need to appeal within that number of days from the making of the decision."

It is not suggested that there was any difficulty in construing the requirements of the section or even that a particular view was held about what it required. The "assumption", I then infer, was borne of a failure to refer to the section. No mention is made of the delay, until 1 December, in filing the application for extension. It may be that the state of ignorance of the requirements of the section continued until shortly prior to that date or, if the error had been realised, that it was not considered important to apply promptly.

Matters usually considered by the Courts in connection with extensions of time were conveniently listed by Wilcox J. in Hunter Valley Developments Pty Ltd v. Cohen (1984) 3 FCR 344, 348 and have been held applicable to applications under s.44 of the Administrative Appeals Tribunal Act: Kuljic v. Secretary, Department of Social Security (1994) 33 ALD 121, 122. In this case no prejudice is asserted by the respondent. The delay in filing the appeal is not said to have had that effect. The Department has also undertaken to pay the respondent's costs of any appeal. And this is a case where the merits of an appeal are capable of assessment. The respondent's husband, a real estate agent, was in late 1992 to become entitled to commission of $1950 on the completion of a contract of sale. The contract was however conditional. By arrangement with his employer he was paid "drawings or advances" up to this sum between 30 September 1992
and 21 November 1992. The Tribunal's description of these sums as "loans" is not challenged. Those amounts were then taken into account as "income" under the section for the period in question. Section 8 of the Social Security Act defines "income" as follows:

"INCOME TEST DEFINITIONS

...

"income", in relation to a person, means:

(a) an income amount earned, derived or received by the person for the person's own use or benefit; or

(b) a periodical payment by way of gift or allowance; or

(c) a periodical benefit by way of gift or allowance;

and "income amount":

"income account" means:

(a) valuable consideration; or

(b) personal earnings; or

(c) moneys; or

(d) profits;

(whether of a capital nature or not);"

Section 8(2) further explains the reference to "income amount earned, derived or received" in these terms:

"A reference to this Act to an income amount earned, derived or received is a reference to:

(a) an income amount earned, derived or received by any means; and

(b) an income amount earned, derived or received from any source (whether within or outside Australia)."

The Tribunal however held that the husband could not be taken to have "earned derived or received income" until settlement of the contract since no "gain" could be said to have been made by him until that time. Such an approach is apposite to a consideration as to whether a profit has been made: see Read v. The Commonwealth (1987-8) 167 CLR 57, 65, 67. The applicant's point is that the loans were nevertheless "moneys" ..."received" by the respondent's husband for his "own use or benefit" and that the contingent liability to repay, or to have future commissions adjusted in the event that the contract did not settle, did not detract from this. In this the applicant has the support of the judgment in Barry v. The Repatriation Commission (1993) 41 FCR 529 and that of in Secretary, Department of Social Security v. Read (1987) 15 FCR 456, 464. The matter is then clearly arguable.

It is appropriate then to consider the effect of a refusal to extend time (see Maynard v. Delegate of Secretary of Department of Social Security, unreported decision of Northrop J. 26.8.93). The applicant is of course in a different position to other litigants, but, whilst it may not suffer loss in a personal sense from an inability to further litigate, decisions affecting the meaning of the Act administered by the Department may be of wider and public importance. The submission for the applicant was indeed that a decision in this matter may have wider application, from which however I infer that there would be no shortage of suitable vehicles for decision by the Courts on this aspect of the definition section. It was not suggested that there were presently other applications for pension rights which were awaiting decision here, nor was it suggested that this case is exceptional in its facts.

The matter which most strongly weighs against the grant of an extension of time is the lack of a satisfactory explanation for the delay. The fact of any explanation which appears credible does not suffice. The prima facie rule is that proceedings commenced outside the period of twenty eight days will not be entertained: Hunter Valley Developments Pty Ltd v. Cohen, 348, McKnight v. Australian Archives, unreported decision of Neaves J. 16.7.93. As Wilcox J explained in the Hunter Valley case (348), the Court will not grant the application unless "positively satisfied that it is proper to do so" and the applicant must show an "acceptable explanation of the delay". All that is proffered here is that an assumption was made, but no basis is given for it and none is apparent. It was made by a legally qualified person employed within a department which regularly litigates in the Tribunal and this Court. The absence of detail in the explanation suggests that a view may have been taken that, so long as some explanation was made and the respondent did not assert prejudice, the Court would automatically grant the extension. Such a view, if held, could of course disregard the discretion to be exercised by the Court and the level of satisfaction it requires.

The applicant was right to apprehend the need to address the question of prejudice to the respondent. An arrangement or undertaking to pay the respondent's costs may in an appropriate case be an important factor. But when the Court does not consider the explanation for delay acceptable, to permit an extension because prejudice was removed by this means would, I consider, be tantamount to permitting the purchase of a right of appeal. The fact that the argument sought to be advanced is one which has
apparent merit does not, by itself, conclude the question and here, in any event it cannot be said that any perceived need for clarification of the section cannot be otherwise met.

The application for extension will be dismissed, with costs.

I certify that this and the preceding six pages are a true copy of the reasons for judgment herein of the Honourable Justice Kiefel.

Associate

Date: 8 June 1995

Counsel for the applicant: Mr P Applegarth

Solicitors for the applicant: Australian Government Solicitor

Counsel for the respondent: Mr G K Flint and Mr R F Quinn

Solicitors for the respondent: Hawthorn Cuppaidge & Badgery

Date of Hearing: 2 June 1995

Place of Hearing: Brisbane

Date of Judgment: 8 June 1995

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