FEDERAL COURT OF AUSTRALIA

Budd v Secretary, Department of Education, Employment and Workplace Relations [2008] FCA 1540

SOCIAL SECURITY – Mobility allowance – travel test.

PRACTICE AND PROCEDURE – Extension of time to file and serve a notice of appeal – Administrative Appeals Tribunal Act 1975 (Cth) s 44(2A)(a).

Administrative Appeals Tribunal Act 1975 (Cth) ss 44(1), 44(2A)(a), 44(2B)

Federal Court Rules (Cth) O 4 r 1, O 53 r 2(1), O 53 r 3(2)

Human Rights and Equal Opportunity Commission Act 1986 (Cth) s 46PO(2)

Social Security Act 1991 (Cth) s 1035

Anisminic Ltd v Foreign Compensation Commission and Another [1969] 2 AC 147 considered

Budd v Secretary, Department of Education, Employment and Workplace Relations [2008] AATA 137 affirmed

Comcare v Etheridge [2006] FCAFC 27 considered

Craig v The State of South Australia (1995) 184 CLR 163 considered

Minister for Aboriginal Affairs and Another v Peko-Wallsend Limited and Others (1986) 162 CLR 24 followed

Pham v Commonwealth of Australia [2002] FCA 669 considered

Phillips v Australian Girls’ Choir Pty Ltd & Anor [2001] FMCA 109 approved

PAMELA JOAN BUDD v SECRETARY, DEPARTMENT OF EDUCATION, EMPLOYMENT AND WORKPLACE RELATIONS

NSD 451 of 2008

COWDROY J

17 OCTOBER 2008

SYDNEY

THE COURT ORDERS THAT:

1.                  The application be dismissed.

2.                  The Applicant pay the costs of the Respondent.

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

REASONS FOR JUDGMENT

1                     On 21 February 2008 the Administrative Appeals Tribunal (‘the Tribunal’) constituted by Senior Member Bell affirmed a decision of the Social Security Appeals Tribunal (‘the SSAT’) which held that the applicant, Ms Budd, was not entitled to receive a mobility allowance. On 3 April 2008 Ms Budd filed an application in this Court challenging such decision.

2                     The present application was filed pursuant to O 4 r 1 of the Federal Court Rules (Cth) (‘the Rules’) and is accompanied by an affidavit sworn on 14 March 2008. On 21 April 2008 Ms Budd filed another affidavit sworn on 9 April 2008.

3                     Ms Budd’s application to this Court is not in the form of a Notice of Appeal as required by O 53 r 2(1) and r 3(2) of the Rules. Her application was not filed within the time limits prescribed by s 44(2A)(a) of the Administrative Appeals Tribunal Act 1975 (Cth) (‘the AAT Act’) nor was such application accompanied by a draft Notice of Appeal.

4                     At the hearing before it on 23 September 2008 the Court informed Ms Budd that it would treat her application as an application for an extension of time in which to appeal from the Tribunal’s decision.

5                     On 14 August 2008 the respondent filed a Notice of Objection to Competency in response to Ms Budd’s application.

FACTS

6                     Ms Budd suffers from social phobia and agoraphobia. In consequence Ms Budd was unable to attend at Court at the hearing of her application. Instead she appeared by telephone. Ms Budd was not legally represented.

7                     Ms Budd rarely leaves her home unit in Coogee. The evidence before the SSAT reveals that she only left her home four or five times during 2006 and not at all during the first three months of 2007. She is susceptible to panic attacks if she leaves her home, and when she does leave her home she uses a wheel chair. Ms Budd cannot use public transport. She is a member of the half fare taxi scheme operated by the New South Wales Government which is available for persons who cannot readily use public transport.

8                     Ms Budd undertakes voluntary work for St Clare’s Convent in Waverley and for other religious organisations and schools. Her work consists of writing poetry, interpreting scriptures and preparing other religious materials suitable for distribution to Christian organisations. Ms Budd has provided the Court with examples of her work, and Sister Francis of St Clare’s Convent has written letters acknowledging such work.

9                     Ms Budd undertakes her work from home. Ms Budd usually sends her work to its recipients by facsimile transmission or delivers it personally by way of taxi. On occasions her son has delivered her work to its recipients.

10                  On 17 October 2006 Ms Budd lodged an application for a mobility allowance with Centrelink. Section 1035 of the Social Security Act 1991 (Cth) (‘the Act’) contains the applicable tests for determining whether Ms Budd qualifies for such an allowance. Section 1035 of the Act relevantly provides as follows:

(1)     A person is qualified for a mobility allowance at the rate specified in subsection 1044(1) if the person satisfies the travel test set out in subsection (2) and:

(a)  all of the following apply:

(i)     the person is a handicapped person;

(ii)    the person is engaged in gainful employment;

(iii)   the Secretary is of the opinion that:

(A)    the person is unable to use public transport without substantial assistance, either permanently or for an extended period; and

(B)     the person’s inability to use public transport without substantial assistance is due to the person’s physical or mental disability; and

(C)    the person is engaged in the gainful employment for at least 32 hours in every 4 weeks on a continuing basis;

         ……

(2)     A person satisfies the travel test mentioned in subsection (1) if the person is required to travel to and from the person’s home for the purpose of undertaking:

(a)  gainful employment; or

(b)  vocational training; or

(c)  job search activities; or

(d)  voluntary work ; or

(e)  a vocational rehabilitation program.

(3)     In this section:

…….

“voluntary work”means work approved by the Secretary undertaken in a voluntary capacity for charitable, welfare or community organisations.

11                  On 14 November 2006 a Centrelink delegate dismissed Ms Budd’s application on the ground that she was not required to travel in order to undertake her voluntary work and accordingly did not satisfy the travel test in s 1035(2) of the Act.

12                  On 10 January 2007 the decision of the Centrelink delegate was reviewed by an Authorised Review Officer who affirmed the decision.

13                  On 16 January 2007 Ms Budd appealed from Centrelink’s decision to the SSAT. On 11 April 2007 the SSAT affirmed Centrelink’s decision. The SSAT concluded that Ms Budd failed to qualify for a mobility allowance because she was not required to travel to and from her home for the purpose of her work.

14                  Ms Budd applied to the Tribunal for a review of the SSAT decision and participated in a hearing before the Tribunal by way of telephone. The Tribunal delivered its decision on 21 February 2008 affirming the SSAT decision and dismissing Ms Budd’s application: see Budd v Secretary, Department of Education, Employment and Workplace Relations [2008] AATA 137. In such decision the Tribunal at [8] made the following finding of fact:

She seldom goes out of the house and will only do so to get stationary [sic] supplies and post letters. That is the extent of her travelling. Ms Budd also stated in her letter dated 26 November 2006 that she does not leave the house to do her voluntary work and instead writes the poems at home and then sends them to St Clare’s Church. In a letter, undated but received by the Tribunal on 5 November 2007, Ms Budd stated that “St Clare’s does not need me to do “face to face” work”.

15                  The Tribunal concluded at [9]:

I find that Ms Budd does not satisfy the travel test because the nature of her voluntary work does not require her to travel to and from her home for the purpose of undertaking that work. Ms Budd is able to conduct her voluntary work from home. In making my finding I have taken into consideration the reports of Dr Hugo Rodriguez, the letters from Sister Francis, the letter from Senator John Faulkner and several letters that Ms Budd sent the Tribunal.

MS BUDD’S APPLICATION

16                  Where a notice of appeal is not filed within the time limits prescribed by s 44(2A)(a) of the AAT Act, s 44(2B) thereof provides:

In the interest of justice, the grounds on which the Federal Court of Australia may allow further time under paragraph (2A)(a) include, but are not limited to, the following grounds:

(a)  if the Tribunal made an oral statement as to the reasons for the decision and afterwards gave a written statement of reasons for the decision--the written statement contains reasons that were not mentioned in the oral statement;

(b)  the text of the decision or a statement of reasons for the decision has been altered under section 43AA.

17                  The Court considers that neither paragraph (2B)(a) nor paragraph (2B)(b) applies in the present circumstances.

18                  In considering whether it is in the interest of justice to grant an extension of time under s 44(2A)(a) of the AAT Act, the Court notes that it is ‘not limited to’ the grounds contained in paragraphs (2B)(a) and (2B)(b). In Phillips v Australian Girls’ Choir Pty Ltd & Anor [2001] FMCA 109 Federal Magistrate McInnis considered the nature of the discretion contained in s 44(2A)(a) of the AAT Act, and said at [10]:

In the light of A’Hearn’s case, it is clear that at least one of the principles referred to by Wilcox J in the Hunter Valley decision needs to be modified namely that it should not be any longer regarded as law that the inexcusable delay on the part of a solicitor should be visited upon the client and nor should it be a principle that there is in fact a pre-condition to the exercise of discretion in favour of the applicant for extension to show an acceptable explanation for delay or that it’s fair and equitable in the circumstances to extend time. In the light of the decision in Ahearn’s [sic] case it is useful to set out in modified form the relevant principles in relation to the exercise of the Court’s discretion when considering an extension of time in a human rights application based upon those principles distilled by Wilcox J in Hunter Valley as follows:

1.    There is no onus of proof upon an applicant for extension of time though an application has to be made. Special circumstances need not be shown, but the court will not grant the application unless positively satisfied it is proper to do so. The “prescribed period” of 28 days is not to be ignored (Ralkon v Aboriginal Development Commission (1982) 43 ALR 535 at 550).

2.    It is a prima facie rule that the proceedings commenced outside the prescribed period will not be entertained (Lucic v Nolan (1982) 45 ALR 411 at 416). It is not a pre-condition for success in an application for extension of time that an acceptable explanation for delay must be given. It is to be expected that such an explanation will normally be given as a relevant matter to be considered, even though there is no rule that such an explanation is an essential pre-condition (Comcare v A'Hearn [1993] FCA 498; (1993) 45 FCR 441 and Dix v Client Compensation Tribunal (1993) 1 VR 297 at 302).

3.    Action taken by the applicant other than by making an application to the court is relevant in assessing the adequacy of the explanation for the delay. It is relevant to consider whether the applicant has rested on his rights and whether the respondent was entitled to regard the claim as being finalised. (See Doyle v Chief of Staff (1982) 42 ALR 283 at 287).

4.    Any prejudice to the respondent, including any prejudice in defending the proceeding occasioned by the delay, is a material factor militating against the grant of an extension. (See Doyle at p 287).

5.    The mere absence of prejudice is not enough to justify the grant of an extension. (See Lucic at p 416).

6.    The merits of the substantial application are properly to be taken into account in considering whether an extension of time should be granted. (See Lucic at p 417).

7.    Considerations of fairness as between the applicant and other persons otherwise in a like position are relevant to the manner of exercise of the court’s discretion (Wedesweiller v Cole (1983) 47 ALR 528).

Such principles were applied by Gray J in Pham v Commonwealth of Australia [2002] FCA 669, although in the context of s 46PO(2) of the Human Rights and Equal Opportunity Commission Act 1986 (Cth). 

19                  The Court respectfully approves of McInnis FM’s articulation of the principles in relation to the discretion contained in s 44(2A)(a) of the AAT Act.

FINDINGS

20                  Although an acceptable explanation for the delay is not a pre-condition for the granting of leave, the Court accepts Ms Budd’s explanation that, because of her psychological difficulties and her lack of legal representation, she was not aware that a time limit applied to the making of an appeal. The Court also finds that the respondent would not suffer undue prejudice if the Court were to grant leave to Ms Budd to file and serve a notice of appeal out of time.

21                  In the present case the Court considers that the merits of Ms Budd’s proposed appeal are particularly significant in deciding whether to exercise its discretion under s 44(2A)(a) of the AAT Act. As Ms Budd has not provided the Court with a draft Notice of Appeal the Court will treat the arguments raised in Ms Budd’s application and affidavits as her proposed grounds of appeal.

22                  The first proposed ground of appeal alleges that the Tribunal denied Ms Budd natural justice. Ms Budd submits that the Tribunal member misconceived ‘the medical reports’ and failedto ‘apply the proper logic and reasoning to my medical reports of Dr Rodriguiez [sic] dated 19 June 2007’. Ms Budd also claims that the Tribunal member misunderstood her evidence; ‘went wrong’ in ‘logic and reasoning’; and denied her a ‘fair proper review due to a wrong reasoning error in law’.

23                  A denial of natural justice may arise in a variety of different circumstances. It can for example result from a misconstruction of the powers provided to the Tribunal (see Anisminic Ltd v Foreign Compensation Commission and Another [1969] 2 AC 147 at 171) or where a Tribunal identifies a wrong issue, asks itself the wrong question, ignores relevant material, relies upon irrelevant material or, in some circumstances, makes an erroneous finding or reaches a mistaken conclusion: see Craig v The State of South Australia (1995) 184 CLR 163 at 179.

24                  In considering Ms Budd’s submission that the Tribunal failed ‘to apply the proper logic and reasoning’ to the medical report of Dr Rodriguez dated 19 June 2007, the Court observes that the Tribunal referred to such medical report in its decision. The Tribunal found that Ms Budd was able to conduct her work from home, and in so finding took into account, among other evidence, the report of Dr Rodriguez dated 19 June 2007. The Court finds that the Tribunal took Dr Rodriguez’s evidence into account and did not err in its consideration of such evidence.

25                  There is no evidence to support Ms Budd’s claim that there has been a denial of natural justice. Ms Budd was afforded a full hearing before the Tribunal and the matters she raises do not constitute any basis for a finding of a denial of natural justice.

26                  The second proposed ground of appeal alleges that the Tribunal was wrong in finding that Ms Budd did not qualify for a mobility allowance. Ms Budd also claims that the Tribunal failed to appreciate that she cannot work other than at home because of her condition and that her need to travel by taxi arises from such condition.

27                  The challenged finding, namely that Ms Budd does not satisfy the criteria for a mobility allowance, is one of fact and not of law. Section 44(1) of the AAT Act provides:

A party to a proceeding before the Tribunal may appeal to the Federal Court of Australia, on a question of law, from any decision of the Tribunal in that proceeding.

28                  The Court is satisfied that Ms Budd seeks a merits review of the Tribunal’s findings by challenging the factual finding that her circumstances do not satisfy the travel test.

29                  The Court observes that it has a limited power to review questions of fact (see Comcare v Etheridge [2006] FCAFC 27 at [13]-[16]), but such power only arises ‘after the Court has given consideration of the questions of law which constitute the subject matter of the appeal’: see Comcare at [17]. In the current proceeding however no question of law is raised.

30                  In these circumstances, the Court cannot substitute its own decision for that of the Tribunal: seeMinister for Aboriginal Affairs and Another v Peko-Wallsend Limited and Others (1986) 162 CLR 24per Mason J at 40-41.

31                  Although it is inappropriate for the Court to trespass into the merits, the Court notes that Ms Budd misinterprets the travel test in s 1035(2) of the Act. Her submissions at hearing and her correspondence with the Court continually reiterated that she ‘does the work’ and that she ‘does the travel’. However, the existence of these two facts in isolation does not satisfy the travel test in s 1035(2). The determinative issue before the Tribunal was whether she was required to travel in order to perform the work. The Tribunal found against Ms Budd on such issue and this Court cannot interfere with that finding.

32                  It follows from the above that it is not ‘in the interest of justice’ to grant leave to Ms Budd to file and serve a notice of appeal out of time pursuant to s 44(2A)(a) of the AAT Act. The Court accordingly dismisses the application with costs.

Associate:

Dated:         17 October 2008