FEDERAL COURT OF AUSTRALIA

Light v Administrative Appeals Tribunal [2009] FCA 1358

ADMINISTRATIVE LAW – notice of objection to competency of an appeal from the Administrative Appeals Tribunal – no questions of law identified – appeal incompetent

Held: appeal dismissed

A New Tax System (Family Assistance) Act 1999 (Cth), ss 21, 22, 22A

Administrative Appeals Tribunal Act 1975 (Cth), ss 16(1), 29(1)(d), 29(2), 29(7), 44(1)

Administrative Decisions (Judicial Review) Act 1977 (Cth), s 16(1)

Federal Court of Australia Act 1976 (Cth), s 24(1A)

Judiciary Act 1903 (Cth), s 78B

Social Security Act 1991 (Cth), ss 5(6), 5(15), 23(2), 23(10) 500, 500D  

House v The King (1936) 55 CLR 499

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

JULLIA LIGHT v ADMINISTRATIVE APPEALS TRIBUNAL, SECRETARY, DEPARTMENT OF EDUCATION, EMPLOYMENT AND WORKPLACE RELATIONS and SECRETARY, DEPARTMENT OF FAMILIES, HOUSING, COMMUNITY SERVICES AND INDIGENOUS AFFAIRS

NSD 1023 of 2009

JAGOT J

23 NOVEMBER 2009

SYDNEY

THE COURT ORDERS THAT:

1.         The appeal be dismissed.

2.         The appellant pay the second and third respondents’ costs of the appeal as agreed or taxed.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
The text of entered orders can be located using Federal Law Search on the Court’s website.

REASONS FOR JUDGMENT

1                          These reasons relate to a notice of objection to the competency of this appeal.

2                          Jullia Light is the appellant.  Ms Light filed a notice of appeal on 16 September 2009 nominating the Administrative Appeals Tribunal (the AAT) as the respondent.  The notice of appeal related to a decision of the AAT given on 20 August 2009 refusing an extension of time under s 29(7) of the Administrative Appeals Tribunal Act 1975 (Cth) (the AAT Act). 

3                          Section 29(7) of the AAT Act is as follows:

The Tribunal may, upon application in writing by a person, extend the time for the making by that person of an application to the Tribunal for a review of a decision (including a decision made before the commencement of this section) if the Tribunal is satisfied that it is reasonable in all the circumstances to do so.

4                          The decision which Ms Light sought to review in the AAT was made by the Social Security Appeals Tribunal (the SSAT) on 28 May 2009 and published on 9 June 2009.  The SSAT reviewed a decision by Centrelink to cancel Ms Light’s parenting payment and family tax benefit with effect from 9 July 2008.  The SSAT affirmed Centrelink’s decision.

5                          Under ss 29(1)(d) and 29(2) of the AAT Act the prescribed time for the making of the review application in the circumstances of Ms Light’s case was 28 days from the date on which the SSAT’s decision was given to her.  Although not recorded in the AAT’s decision refusing the extension of time it was (and remains) common ground that the SSAT’s decision was posted to Ms Light on 9 June 2009 but she did not receive it, possibly due to an incorrect posting address.  Be that as it may, Ms Light received the SSAT’s decision on 19 June 2009 after she travelled to Sydney to collect a copy from the SSAT.  Ms Light thus had 28 days from 19 June 2009 in which to file her application for review with the AAT (that is until 17 July 2009).  Ms Light filed her application with the AAT on 27 July 2009.  Accordingly, Ms Light applied to the AAT for an extension of time under s 29(7) of the AAT Act. 

6                          The AAT refused to grant Ms Light the extension of time.  Ms Light requested from the AAT a statement in writing of the reasons for the refusal to extend time.  The AAT published written reasons in accordance with this request on 23 September 2009. 

7                          The AAT’s reasons (at [4]) record its application of the principles in Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344 to Ms Light’s application for an extension of time.  The AAT correctly identified that, amongst other things, the merits of the substantive application are relevant to the exercise of the discretion to extend time.  The AAT noted that the delay was “relatively minor” and therefore the factor of the length of delay was not an important consideration (at [5]).  It also accepted that the prejudice of the respondent to the AAT proceedings (the Secretary, Department of Education, Employment and Workplace Relations) was limited to the time and cost which the respondent alleged would be wasted as the substantive application had no prospects of success (at [6]).  As the force of this latter submission depended on the merits of Ms Light’s substantive application, the AAT considered that factor (at [7]-[18]).

8                          The AAT explained in its reasons at [7]-[18] that Ms Light’s daughter received Youth Allowance in November 2008 with payments backdated to 9 July 2008.  Ms Light, between July and October 2008, was also receiving a parenting payment and family tax benefit on account of her daughter.  To qualify for the parenting payment a person must have “at least one PP child” (s 500(1)(a) of the Social Security Act 1991 (Cth)).  Section 500D of the Social Security Act defines the circumstances in which a person is taken to have a PP child.  Relevantly, the person must be the child’s “principal carer” (s 500D(1)(d)).  This term is defined in s 5(15) by reference to a child under 16 who is a “dependent child” (s 5(15)(a)).  A child cannot be a dependent child if the child receives a social security benefit (s 5(6)(b)). 

9                          In terms of the Family Tax Benefit, s 21(1)(a)(i) of A New Tax System (Family Assistance) Act 1999 (Cth) provides that a person is eligible for the payment if the person has “at least one FTB child”.  Section 22 of this Act defines the circumstances in which a child will be an “FTB child”.  Section 22 is subject to s 22A which includes a table defining when a child cannot be an “FTB child”.  One excluded circumstance is where the child is of any age and receives a social security benefit. 

10                        Ms Light’s daughter received the Youth Allowance backdated to July 2008.  The Youth Allowance is a social security benefit.  It follows that from July 2008 Ms Light’s daughter was no longer a “PP child” or an “FTB child”.  The AAT rejected Ms Light’s argument that as her daughter only received the Youth Allowance from December 2008 it could not be said that she received a social security benefit before that date.  The AAT pointed out (at [15]-[18]) that s 23(2) of the Social Security Act provides that:

For the purposes of this Act (other than section 735), a person is taken to be receiving a payment under this Act from the earliest day on which the payment is payable to the person even if the first instalment of the payment is not paid until a later day.

11                        The AAT thus concluded that from 9 July 2008 Ms Light’s daughter was neither a “PP child” nor a “FTB child”.  It followed that from that date Ms Light had no entitlement to receive a parenting payment or family tax benefit.  Because it found that Ms Light’s substantive application had no merit, the AAT refused to extend time under s 29(7) of the AAT Act. 

12                        At the first return date of the appeal a representative for the AAT appeared as well as a representative for the Secretary, Department of Education, Employment and Workplace Relations and the Secretary, Department of Families, Housing, Community Services and Indigenous Affairs.  I made an order joining the Secretaries of these Departments as the second and third respondents to the appeal.  The Secretary, Department of Education, Employment and Workplace Relations was the respondent to the AAT proceeding and thus a necessary part to the appeal.  According to the solicitor for the second and third respondents, the Secretary, Department of Families, Housing, Community Services and Indigenous Affairs also has responsibility for the decisions in question and thus was also joined as a party.  I excused the AAT’s representative from any further attendance.

13                        Also at the first return date the solicitor for the second and third respondents foreshadowed the filing of a notice of objection to the competency of the appeal on the basis that the appeal documents did not disclose any question of law as required by s 44(1) of the AAT Act.  Section 44(1) provides as follows:

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.

14                        I gave Ms Light an opportunity to file and serve further documents identifying the questions of law she sought to raise.  Ms Light filed a document entitled “Reply to File a Notice of Objection to Competency” on 6 October 2009 but the second and third respondents maintained that no question of law had been identified and thus filed and served their notice of objection to competency on 27 October 2009.

15                        At the hearing on 12 November 2009 I gave Ms Light an opportunity to identify any questions of law that she said arose on the appeal.  Insofar as I can understand the propositions that she put in response, Ms Light said: - (i) the AAT’s decision was interlocutory and thus leave to appeal was required under s 24(1A) of the Federal Court of Australia Act 1976 (Cth), (ii) the test for leave to appeal is whether Ms Light would suffer a substantial injustice supposing the decision of the AAT to be wrong, (iii) Ms Light would suffer such a substantial injustice because the AAT had limited powers of review and could not make a decision based on all relevant factual circumstances, (iv) because the AAT has such limited powers its decision did not determine all of the rights between the parties, (v) only a court can consider all of the issues and determine the rights of the parties, (vi) for these reasons Ms Light had served notices under s 78B of the Judiciary Act 1903 (Cth), (vii) the Federal Court’s powers include making orders as it thinks fit (in respect of which Ms Light referred to s 16 of “The Judicial Review Act 1997” which I identify as the Administrative Decisions (Judicial Review) Act 1977 (Cth), s 16(1) of which sets out the powers of the Federal Court and Federal Magistrates Court on a review under that Act).

16                        The difficulty for Ms Light is that although she believes her documents and oral submissions identify and explain the questions of law she says arise from the AAT’s decision, they do not do so.  It may be acknowledged that the AAT’s decision was interlocutory; however, contrary to Ms Light’s submission, leave to appeal is not required.  Section 24(1A) of the Federal Court of Australia Act does not apply to appeals from decisions of the AAT.  Section 44(1) of the AAT provides that an appeal to this Court may be made from any decision of the AAT.  In any event, an appeal may only be brought from a decision of the AAT on a question of law.  In a case such as the present, where the AAT made a decision not to extend the time for the filing of an application for review, the difficulty for a person in Ms Light’s position is to identify a question of law in respect of a discretionary decision.

17                        An appellate court will not interfere with a discretionary decision unless some operative error of principle is found (House v The King (1936) 55 CLR 499 at 504-505).  Ms Light’s written and oral submissions appear to relate to matters separate from the AAT’s decision but which she believes form part of the relevant background.  I accept the genuineness of her beliefs but that does not make them correct or relevant in law.  As the second and third respondents submitted it is well established that in an appeal under s 44(1) of the AAT Act the appellant must identify a question of law on which the AAT’s decision depended.  This pre-condition must be satisfied in order to found the Court’s jurisdiction.  Failure to do so means that the Court does not have jurisdiction to determine the appeal.

18                        The AAT’s statement in writing does not disclose any legal error.  It appears to contain a correct analysis of statutory provisions which provide that Ms Light lost her entitlement to a parenting payment and family tax benefit from the time her daughter received the Youth Allowance back dated to the first notional payment date of 9 July 2008.  In circumstances where the AAT considered that the substantive application had no prospects of success it was open to the AAT to decide not to extend time for the filing of the application for review despite its acceptance that the delay was minor.  I see no possible basis upon which an appeal against the AAT’s decision could succeed. 

19                        Insofar as substantial injustice would be relevant on an application for leave to appeal (which, as noted, has not been filed by Ms Light), there can be no injustice in the AAT properly applying statutory provisions in order to found its decision that the substantive application had no prospects of success and that, in consequence, no extension of time should be granted. 

20                        The other matters Ms Light raised (some of which I have referred to above and others of which I am unable to articulate in any meaningful way) appear to be unconnected to the AAT’s decision despite Ms Light’s beliefs to the contrary.  Her concerns about the jurisdiction of the AAT appear to be misplaced given that the AAT is vested with the relevant power to review the decision of the SSAT.  Her concerns appear to flow from the fact, noted by the SSAT in its own decision, that Ms Light considered many things to be relevant to her entitlement which could not be considered relevant under the applicable statutory regime. 

21                        No question of law has been identified arising from the AAT’s decision against which the appeal is brought.  It follows that the notice of objection to competency must be upheld and the appeal dismissed with costs.

Associate:

Dated:         23 November 2009