FEDERAL COURT OF AUSTRALIA

Frugtniet v Secretary, Department of Social Services (No 2) [2018] FCA 1767

ORDERS

THE COURT ORDERS THAT:

1.    The application for an extension of time within which to appeal against the judgment and orders of Pagone J made on 19 October 2017 be dismissed.

2.    The applicant pay the respondent’s costs of the proceeding.

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

REASONS FOR JUDGMENT

O’CALLAGHAN J:

1    Mr Frugtniet (the applicant) seeks an extension of time to appeal from an order of a judge of this court (the primary judge) dismissing an appeal from the decision of the Administrative Appeals Tribunal (the Tribunal) refusing an application under s 29(7) of the Administrative Appeals Tribunal Act 1975 (Cth) (the AAT Act) for an extension of time to lodge an application for review of a decision made on 15 February 2016 by the Social Services and Child Support Division of the Tribunal.

2    The applicant had been found by the Tribunal to be a member of a couple for the purposes of the Social Security Act 1991 (Cth) and liable to repay to the Commonwealth excess payments which had been made to him.

3    In order to bring his appeal, the applicant must first obtain an extension of time, under rule 36.05 of the Federal Court Rules 2011 (Cth) (the Rules), to file and serve his notice of appeal from the orders of the primary judge, because he was 8 days late filing the notice.

4    Given that this application is for an extension of time to file a notice of appeal and has not been referred to a Full Court, it is before a single judge: r 36.05 of the Rules.

5    The applicant did not dispute the primary judge’s summary of the relevant facts: see Frugtniet v Secretary, Department of Social Services [2017] FCA 1227 at [2]-[5]. I therefore adopt that summary as follows.

6    The applicant had previously been granted single parenting payments with effect from April 2008 on the basis that he was separated from his former partner, Ms Callychurn. On 24 August 2012 parenting payments to him were cancelled because the applicant’s dependent daughter turned 8 years of age. The applicant was then transferred to Newstart Allowance at the single rate. On 12 December 2012 the applicant advised Centrelink that his son, born on 8 May 2011, had entered his care and in consequence he was re-granted parenting payments with effect from 7 December 2012.

7    The applicant’s entitlements were reviewed during 2013 and 2014, and in November 2014 a decision was made by Centrelink that he had wrongly received $52,159.20 in parenting payments in the period 9 April 2008 to 20 September 2011 due to undisclosed income. (The maximum payment made to “members of a couple” is lower than that payable to single parents, recognising the benefits of shared accommodation, pooling resources and expenses.)

8    The applicant successfully sought review of that decision, but in February 2015 Centrelink made a determination that he was a member of a couple with Ms Callychurn for the purposes of the Social Security Act 1991 (Cth) and suspended further payments to him.

9    The applicant was notified by letter dated 19 May 2015 that he had incurred a recoverable debt of $65,557.46 in the period between 4 May 2011 and 17 February 2015.

10    The applicant unsuccessfully sought to review those decisions. The matter was referred to authorised review officers of Centrelink, and on 1 June 2015 an authorised review officer set aside the decision to suspend the applicant’s parenting payment and substituted a new decision that the payment be cancelled.

11    On 30 September 2015 another authorised review officer varied the decision to raise and recover a debt by increasing the debt amount to $66,349.27 in respect of the period 8 May 2011 to 17 February 2015.

12    In October 2015 the applicant applied to the Tribunal for an independent review of the decisions which had been made by the review officers on 1 June 2015 and 30 September 2015. On 12 February 2016 the Tribunal heard the applicant’s applications and on 15 February 2016 decided the applications by setting them aside but remitting them to the Chief Executive of Centrelink for reconsideration and recalculation of the debt on the basis that the applicant was a member of a couple in the period 8 May 2011 to 17 February 2015. That decision was posted to him on 24 February 2016.

13    The Tribunal reasoned as follows at [13]-[14]:

As pointed out by [the applicant], a person cannot be considered to be partnered if they are living separately and apart from the partner on a permanent or indefinite basis. [The applicant’s] central contention is that during the period under review he and Ms Callychurn did not share a residence at all. [The applicant’s] oral evidence to the Tribunal was that from 2009 on he was residing at Maxweld St Ardeer. The Tribunal does not accept this statement. [The applicant] denied telling the authorised review officer that during the period in question he lived in the house owned by his father at 3/900 Pascoe Vale Rd. The Tribunal could see no reason why the authorised review officer would have made up such a claim. Further to this, [the applicant] has clearly stated on several Centrelink forms in the period and on his 2012 – 13 and 2013 – 14 financial year income tax returns that his residential address is 3/900 Pascoe Vale Road Glenroy. Finally, in his Mod AC Accommodation details form signed on 13 March 2015 … [the applicant] states that he moved to Maxweld St Ardeer on 12 March 2015. These inconsistencies affect the Tribunal’s overall impression of [the applicant’s] credibility.

Centrelink’s investigations have indicated that from 2009 onwards [the applicant] did not in fact reside at 3/900 Pascoe Vale Road and the Tribunal so finds. The Tribunal also finds that he did not move to Maxweld St Ardeer until at least March 2015, at which time his parenting payment had been suspended. In the absence of any other explanations as to his residence which have been independently verified, the Tribunal finds that in the period 8 May 2011 to 17 February 2015 [the applicant] resided with Ms Callychurn and their children at Horizontal Drive Maribyrnong.

14    For a number of reasons that are not currently material, the Tribunal concluded that “[t]he excess amount paid to [the applicant] from 8 May 2011 to 17 February 2015, once recalculated on the basis of his and Ms Callychurn’s income, is a debt to the Commonwealth under s 1223 of the [Social Security Act 1991 (Cth)]”.

15    The Tribunal also concluded that because the applicant had made a number of false statements to Centrelink regarding his correct whereabouts, and that the Tribunal concluded this had been done with the intention that he continue to be paid monies to which he was not entitled, the Tribunal found that was not appropriate to waive the debt pursuant to section 1237AAD of the Social Security Act 1991 (Cth).

16    As set out above, the applicant did not seek an extension of time to review Tribunal’s decision until almost one year later.

17    The application came on before Member Anna Burke first in April 2017. The application was dismissed, for reasons which the decision of the primary judge records, and which are set out below.

18    As the primary judge said (at [5]):

[The applicant] could have, but did not, seek to review the decision of the Tribunal that [the applicant] was a member of a couple. [The applicant] submitted, however, that he had extensive contact with the Department about the recalculation of the debt after the decision of 15 February 2016 which had found that he was a member of a couple with Ms Callychurn during the period under review. He did not, however, apply for review of that decision until 7 March 2017 when he applied to the Tribunal for review of the decision and applied for an extension of time within which to make the application for review. His application for an extension of time was heard by the Tribunal on 19 April 2017 but was rejected on that day. [The applicant] then sought written reasons for the decision which had been given orally on 19 April 2017 and written reasons were given to him on 1 May 2017. It is from that decision, and on those reasons, that [the applicant] has appealed to this Court.

19    The appeal to the primary judge was brought pursuant to s 44(1) of the AAT Act. As the primary judge said (and the applicant did not dispute before me), that provision “requires there to be, and limits the appeal to, questions of law: see Brown v Repatriation Commission (1985) 7 FCR 302 at 304; TNT Skypack International (Aust) Pty Ltd v Federal Commissioner of Taxation (1988) 82 ALR 175 at 178; Haritos v Federal Commissioner of Taxation (2015) 233 FCR 315 at [90]. Whether an appeal raises a question of law is to be approached as a matter of substance rather than of form, and in cases of doubt, that may require the Court to consider the notice of appeal, the alleged question or questions of law, the grounds raised, the statutory context, and the Tribunal’s reasons for its decision: see Haritos at [62(6)] and [94]”.

20    The applicant (who was, as he is here, self-represented) identified the following questions of law before the primary judge (errors in original):

1. Whether the Tribunal erred in applying the correct legal test and misapplied the legal principles which govern the proper statutory construction to s 29(7)-(8) of the AAT Act, without adequately disclosing its reasoning process in relation to the applicant’s prospects relevant to the merits of an arguable case in relation to the substantive matter.

2. Whether the Tribunal erred by its failure to consider relevant material matters into consideration being jurisdictional facts and not having regard to all the circumstances that the Applicant had not rested on his rights.

3. Whether the Tribunal erred by its failure to consider the prejudice to the Applicant given that the decision made by the Tribunal dated 15 February 2016 involved a partnering decision that would give rise to a debt and you could not have one without the other which has not been resolved to date, is inextricably linked and would cause the Applicant to be bankrupted.

21    The grounds relied upon by the applicant before the primary judge in seeking relief on these questions of law were (errors in original):

1. The Tribunal erred in its application of the statutory scheme in not applying the correct legal test and misapplied the legal principles which govern the proper statutory construction to s 29(7)-(8) as it was not reasonable in all the circumstances to do so, as it did not consider the merits of the Applicant’s case before reaching the conclusion it did (first ground of appeal).

2. The Tribunal erred by its failure to apply the requisite legal principles that governed the exercise of the discretion by its failure to consider the relevant evidence which the Tribunal has not enumerated in its reasoning which would have evidenced that the Applicant had not rested on his rights (second ground of appeal).

3. The Tribunal erred in the exercise of the discretion pursuant to s. 29(7)-(8) of the AAT Act that it was not reasonable in all the circumstances by its failure to consider the prejudice to the Applicant (third ground of appeal).

22    As to the first ground of appeal, the primary judge held as follows at [8]-[14]:

[The applicant’s] first ground of appeal was that the Tribunal had not applied the correct legal test by not considering the merits of his case before reaching its conclusion. The Secretary’s submissions identified two main elements of [the applicant’s] first ground of appeal, namely, (a) that the Tribunal had required an acceptable explanation for the delay as a precondition for the grant of an extension of time and therefore had applied the wrong legal test, and (b) that the Tribunal had failed to consider the merits of [the applicant’s] substantive application. In oral argument, however, a third basis emerged which [the applicant] submitted was also to be seen from the first question in his amended notice of appeal, namely, that the Tribunal’s reasons were insufficient.

[The applicant’s] application to the Tribunal for an extension of time was made on 7 March 2017. The Secretary had opposed that application and had filed written submissions dated 21 March 2017 in opposition. On 9 April 2017 [the applicant] filed written submissions with an annexure in support of his application for an extension of time and an oral hearing was held by Member Burke on the following day. [The applicant] claimed at the hearing before Member Burke, and in his written submissions, that the reason he had not sought to review the decision within the time prescribed was that he had been in extensive communication with Centrelink before the expiry of the period and had been told “to wait as the decision had not been implemented, and if not satisfied could then appeal the decision, rather than fragment the process”. The evidence [the applicant] relied upon was his own statement and some documents which the Tribunal did not consider sufficient to establish [the applicant’s] claim, but Member Burke expressed her concern during the hearing on 10 April about whether [the applicant’s] factual claims of not having appealed because of his having been told to wait had foundation and informed [the applicant] during the course of the hearing on 10 April 2017 that she would adjourn the hearing to enable those representing the Secretary to explore what Centrelink had been saying to him over the preceding 12 month period “to be scrupulously fair” in determining how to proceed with the matter. The learned member went on specifically to inform [the applicant] that she wanted to adjourn the proceeding because she wanted the Secretary’s representative to explore what [the applicant] had been told.

The Tribunal resumed hearing the application for an extension of time on 19 April 2017. [The applicant] filed additional written submissions dated 18 April 2017 although they had not been seen by the Tribunal member until shortly before resumption of the hearing on the 19th. Both [the applicant] and the representative for the Secretary were heard and the Secretary’s case continued to be that the length of delay was inordinate and had not been explained but there was produced no further material to support [the applicant’s] claim of having been told not to wait for the recalculation of the debt before seeking to appeal the decision which had been made on the basis that [the applicant] and Ms Callychurn were a couple for the purposes of the Social Security Act 1991 (Cth).

The Tribunal, as mentioned above, gave oral reasons when deciding against [the applicant’s] application for an extension of time. [The applicant] then made a formal request for the Tribunal to give written reasons. The Tribunal member informed [the applicant] that she would give written reasons but explained that they would be no longer than the oral reasons she had given to the effect that it was not reasonable to grant the extension of time he had sought. Section 43(2B) of the AAT Act required the Tribunal when giving written reasons to include “its findings on material questions of fact and a reference to the evidence or other material on which those findings are based”. The Tribunal’s written reasons were provided on 1 May 2017 in respect of the decision which had made on 19 April 2017 rejecting [the applicant’s] application for an extension of time.

…

The Tribunal was not obliged to extend the time within which [the applicant] could make his application for review of a decision which had been made on 15 February 2016. The Tribunal had a discretion to extend the time for [the applicant] to make the application and [the applicant] must show in his appeal to this Court that the Tribunal erred in exercising its discretion (citing and quoting House v R (1936) 55 CLR 499 at 504-505).

…

[The applicant’s] claim to the Tribunal had been that he had not exercised his right to seek review of the Tribunal’s decision because of what he had been told by the defendant. The Tribunal was not obliged to accept the claim made by [the applicant] that the reason he had not sought review of the decision of 15 February 2016 was that he had been “told to wait” and that he could subsequently appeal if not satisfied once the decision which had been made came to be implemented. [The applicant’s] claim was plausible of having been told to await the recalculation of the debt before deciding whether to appeal the foundation of the decision but the Tribunal member did not accept, and was not bound to accept, the claims which [the applicant] had made. The explanation he had given for his delay in making the application for review was that he had been told to wait until the decision was implemented and the Tribunal member plainly engaged with, and rejected, the evidentiary foundation upon which that submission was made. At [6]-[8] the Tribunal said:

[The applicant] contended that he was waiting for Centrelink to action the direction of the Social Security and Child Support Division of the Tribunal (AAT1) of 15 February 2015. The substance of the decision did not change when it was actioned. The Applicant was aware of what that decision was. It was an assessment of whether he was a member of a couple. In the absence of an explanation, it is reasonable to conclude that by waiting for Centrelink to recalculate the debt he tacitly accepted the decision.

[The applicant] further argued that if he was to lodge an application in respect of the 15 February 2015 decision, it may leave him in a situation where he had two applications before the Tribunal. He argued that he had contacted the Respondent about an appeal and been told to wait until the decision was implemented, and that he was only relying on such advice when he made his decision to wait.

I was not persuaded by the Applicant’s claims that he had contacted the Department of Human Services and made the enquiries he purports to have made. The only evidence the Applicant produced to support these claims was correspondence between the Applicant and the Commonwealth Ombudsman, and a letter from the Department of Human Services dated 24 February 2017 which related an assessment of an unspecified benefit. These were provided to the Tribunal and the Respondent after close of business the day before the interlocutory hearing, after it had already been adjourned to accommodate late submissions by the Applicant on the first occasion. These documents only establish that the Applicant complained to the Ombudsman and that at a point in time, the Department was making an assessment of a benefit he was receiving. They do not prove any history of contact with the department about possible appeals.

In these passages the Tribunal complied with its obligation under s 43(2B) of the AAT Act of stating its findings on material questions of fact with a reference to the evidence and other material upon which the Tribunal’s findings were based.

The Tribunal was guided in the exercise of the discretion by the often cited passage in Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344 and the words of s 29(7). The latter required that the Tribunal be satisfied that “it is reasonable in all the circumstances” to extend the time within which a person may make an application. There is a wide discretion granted by s 29(7) of the AAT Act but guidance in the exercise of that discretion may be gained from the observations made by Wilcox J in Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344 at 348-9 [which the primary judge then set out]

…

These principles, as his Honour observed at 348, were “to guide, not in any exhaustive manner, the exercise” of the discretion and were not to be applied as if imposing strict rules or preconditions. Indeed, in Comcare v A’hern (1993) 119 ALR 85 the Full Court observed that an acceptable explanation for delay was not a precondition or prerequisite to the grant of an extension of time, although it was a factor that may be relevant and may warrant a favourable exercise of the discretion in an appropriate case.

23    Having set out in detail the relevant procedural history and the applicant’s submissions in respect of the first ground of appeal argued before him, the primary judge held that the ground had no merit, reasoning as follows at [15]-[16]:

The reasons given by the Tribunal were in part expressed in a way that might suggest the elevation of a requirement to provide an explanation for the delay as an impermissible precondition or prerequisite to the grant of an extension of time, but what the Tribunal said in that regard must be read in context. The Tribunal did not make a finding of inadequacy of an explanation (or even a finding of no explanation) as the basis for determining the application for an extension of time against [the applicant]. [The applicant] had provided an explanation and had made his explanation the basis for his application for an extension of time but the Tribunal was not persuaded by what he had said. The adjournment had not resulted in confirmation of what he had claimed and no further material was produced to support what he had said. The Secretary’s submissions to the Tribunal, both written and oral, continued to rely upon the absence of merits in [the applicant’s] case and that the Secretary would suffer prejudice if the application were granted. The Tribunal took into account both submissions and in relation to the merits of [the applicant’s] case concluded that nothing in the application before the Tribunal indicated sufficient prospects of success which outweighed the significant, unacceptably explained, delay and the consequential prejudice suffered by the respondent and the public if the extension were to be granted.

The decision was made by the Tribunal on 19 April 2017 following a hearing at which the Secretary’s submissions about lack of merit and prejudice were made. The Tribunal was not obliged to embark on a trial of the merits when evaluating that as a factor in deciding whether to grant an extension of time: see Brown v Federal Commissioner of Taxation (1999) 42 ATR 118 at [24] and [25]. The subsequent reasons were brief but brevity is not an error (see NAXT v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 279 at [15]) and the Tribunal had taken into account the submissions which had been made. The Tribunal did not treat the need for an acceptable explanation for the delay as a precondition for the granting of an extension of time but took into account the absence of an acceptable explanation in the context of other factors which included the Tribunal’s finding that [the applicant] was aware, as he conceded at the hearing of the appeal, of a time limit of 28 days within which to make an application, that he had elected to wait for a recalculation of amounts following the decision of 15 February 2015, the absence of sufficient prospects of success outweighing an unexplained delay, and the consequential prejudice in the grant of an extension. Accordingly, there is no error in the test applied by the Tribunal. The Tribunal’s reasons were not insufficient and it had not required an explanation for the delay as a precondition for the grant of an extension.

24    The primary judge then turned to consider the second ground of appeal before him. The primary judge held that the ground was without merit, reasoning as follows at [17]:

The second ground of appeal was that the Tribunal failed to consider the evidence which would have shown that he had not rested on his rights. However at [6]-[8] of the Tribunal’s reasons (quoted above), the Tribunal considered, but rejected, [the applicant’s] claims of having contacted Centrelink and of having been told by Centrelink that there was no need to appeal until after the implementation of the decision which had been made on 15 February 2016. The decision made on 15 February 2016 required a recalculation upon a finding that [the applicant] was a member of [a] couple. The Tribunal noted at [8] that the evidence [the applicant] had produced to support his claims of having been told that he could wait was correspondence he had had with Commonwealth Ombudsman, and a letter from the Department of Human Services dated 24 February 2017, relating to an assessment of an unspecified benefit. Those documents were found by the Tribunal to establish only that [the applicant] had complained to the Ombudsman and that at a point in time the Department had been making an assessment of a benefit he was receiving, but that they did not prove a history of contact with the Department about possible appeals.

25    The third ground of appeal was also held to be without merit, as follows at [18]:

The third ground relied upon by [the applicant] was a failure to have considered prejudice to him and that the Secretary had failed to adduce evidence of prejudice to the Secretary by reason of granting an extension of time after a lengthy period of delay. In that regard [the applicant] relied upon authorities indicating that a party opposing an extension on the grounds of prejudice should adduce evidence which shows the nature and extent of that prejudice: see Windschuttle v Deputy Commissioner of Taxation (1993) 46 FCR 235, 249 250; see also Brown v Federal Commissioner of Taxation at [32], [51] [54]. In this case, however, the relevant prejudice to the respondent and to the public was the inherent impact of the passage of time. That was not prejudice requiring evidence beyond the inferences flowing from the passage of time and the common knowledge that memory may fade with time and that making inquiries to test facts which are asserted may become increasingly difficult over time and to evaluate reliably. The prejudice to the Secretary may, on one view, not have been great but it was a factor able to be relied upon by the Tribunal as it did.

Proposed appeal to the Full Court

26    The proposed grounds of appeal contended for on this application are as follows (errors in original):

1. The learned trial judge erred in deciding that it was open to the Administrative Appeals Tribunal to find that the claims by Appellant that he contacted the Department and had been told to await the outcome were not supported by what he had claimed, when the Secretary had been informed by the Tribunal to check such claims but offered no contradiction of same in which the Secretary suffered no prejudice, and no aspect of brevity evaluated the merits, rather in a global sense preferred that the reasons for delay not accepted far outweighed the prospects of success and prejudice suffered by the respondent, was a reasonable exercise of the discretion pursuant to s 29(7) and (8) of the Administrative Appeals Tribunal Act 1975 (Cth) (“the AAT Act”): FC [15]- [16]

2. The learned trial judge ought to have found that, on its proper construction, section 43(2B) of the AAT Act required the Tribunal when giving written reasons to include “its findings on material questions of fact and a reference to the evidence or other material on which those findings are based” given that its findings were not just insufficient but did not articulate its reasoning process by evaluation to such evidence, so that section s 29(7) and (8) which required that the Tribunal to be satisfied if it were to extend the time if it be reasonable in all the circumstances to do so was not exercised and constituted jurisdictional error.

3. The learned trial judge erred in deciding that it was open to the Administrative Appeals Tribunal to find that the Respondent had suffered prejudice, albeit by the passage of time notwithstanding no witnesses for the Respondent or that of the public would gave evidence or would be required to give evidence.

4. The learned trial judge erred in deciding that it was open to the Administrative Appeals Tribunal to find that the Appellant explanation for the delay which was not accepted could be upheld, but failed to consider that the delay arose from the debt arising as a result of the partnering decision, there been no time limitation in bringing an application if the debt were not to be accepted, which was outstanding at the time the application for an extension of time was lodged but has only just been resolved by the department, whereas it is inextricably linked that one is derived from the other although the debt has no time limitation in bringing proceedings but in order to do so the merits of the partnering decision as clearly evidenced is to be impugned.

Extension of time

27    Rule 36.03 of the Rules requires a notice of appeal to be filed and served within 21 days after the date when the orders or judgments were pronounced. The discretionary power to extend this time period is in r 36.05. Specifically, these rules provide:

36.03 Time for filing and serving notice of appeal

An appellant must file a notice of appeal:

(a) within 21 days after:

(i) the date on which the judgment appealed from was pronounced or the order was made; or

(ii) the date on which leave to appeal was granted; or

(b) on or before a date fixed for that purpose by the court appealed from.

36.05 Extension of time to file notice of appeal

(1) A party who wants to apply for an extension of time within which to file a notice of appeal must file an application, in accordance with Form 67.

(2) The application may be made during or after the period mentioned in rule 36.03.

(3) The application must be accompanied by the following:

(a) the judgment or orders from which the appeal is to be brought;

(b) the reasons for the judgment or orders, if published;

(c) an affidavit stating:

(i) briefly but specifically, the facts on which the application relies; and

(ii) why the notice of appeal was not filed within time;

(d) a draft notice of appeal that complies with rules 36.01(1) and (2).

Delay and explanation for delay

28    The notice of appeal should have been filed by 9 November 2017. The application for an extension of time and draft notice of appeal were filed on 17 November 2017, 8 days out of time.

29    The applicant swore an affidavit in which he said this:

2. I refer to my Draft Notice of Appeal dated 16 November 2017, which encompasses the grounds of appeal.

3. I lodged my Notice of Appeal on the 28th day as I was under the misapprehension that I had twenty-eight days to file my application.

4. I also confirm that this was in part largely because I was preparing for a Full Federal Court hearing in which I was the Respondent party in the matter of Migration Agents Registration Authority v Rudy Frugtniet which was heard on the 14 November 2017, but has not been concluded yet, with further written submissions to be provided before the decision may be reserved and judgment delivered.

5. I also refer to the fact that I was in the process of lodging an application for special leave to appeal to the High Court from a decision of the Full Federal Court between Rudy Frugtniet v Australian Securities and Investment Commission which I lodged on the 9 October 2017, within the twenty-eight days provided for instead of the twenty-one, which caused me to be confused, resulting in my lodging my application on the twenty eighth day.

6. I respectfully request this Honourable Court grant the extension of time application and give directions for the conduct of this matter before the Full Court of Australia.

30    The respondent accepted in the hearing before me that, if the extension of time were to be granted, she would not suffer any prejudice beyond the public interest in the finality of administrative decision making and costs.

Merits

31    It is proper to take into account the merits of an applicant’s substantive application in considering whether to extend time. The Court will not grant an extension of time where an applicant has no arguable case for relief: Hunter Valley Developments Pty Ltd v Minister for Home Affairs and Environment (1984) 3 FCR 344 at 348-349; Re Commonwealth of Australia; Ex parte Marks (2000) 75 ALJR 470; [2000] HCA 67 at [17]; WAJU v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 150 at [18] per Moore J.

32    It is apparent that proposed ground one, two and three raise the same issues as the first and second grounds of appeal before the primary judge and proposed ground three is, relevantly, the same as ground of appeal three.

33    In my view, each proposed ground of appeal is bound to fail and the application for an extension of time within which to appeal against the decision of the primary judge should be refused. It is unnecessary in those circumstances to address the anterior question of whether the applicant has given an adequate explanation for the (relatively minor) delay.

34    The applicant’s first proposed ground of appeal is in substance that the primary judge erred in deciding that it was open to the Tribunal to reject the applicant’s evidence supporting his claim that he had contacted the respondent and had been told to await the debt recalculation in circumstances where the respondent had not provided any evidence to the contrary.

35    The primary judge dealt with this point at paragraphs [9], [10], and [17] of his reasons. His Honour found that “no further material [was produced] to support [the applicant’s] claim of having been told to wait for the recalculation of the debt before seeking to appeal the decision …” The primary judge at [13] held that the Tribunal was not obliged to accept the applicant’s claim that he had been told to wait for the recalculation, and that while this was “plausible” the Tribunal “did not accept, and was not bound to accept, the claims which [the applicant] had made”. The primary judge noted that the Tribunal had “plainly engaged with, and rejected, the evidentiary foundation upon which that submission was made” and referred specifically to the findings of the Tribunal at paragraphs [6]-[8]. No appealable error can be demonstrated.

36    At the hearing in this court, the applicant elaborated on this ground in his oral submissions, claiming as follows:

I should, of course, end, your Honour, in this respect. When your Honour should look at it more in the context of what is this legislation, you know, in terms of debts that have arisen, the opportunity, the fact that, yes, there was that delay, you know. Why was that – why was that delay? Was there an explanation given? Now, the fact that the AAT one put on evidence to say what one had done and it comes back – it’s my understanding that you can’t draw upon conclusions when you have incontrovertible evidence given of people’s names, phone numbers. This is not about additional evidence, so I can take your Honour probably – if your Honour doesn’t have the transcript, I can point to all those passages so when they came back – but – so to merely just suggest that a decision-maker can either accept or not accept, not give adequate reasons, draw upon conclusions, if you like, it speaks volumes.

37    I do not accept that the applicant’s evidence led in support of the applicant’s claim that the delay in bringing proceedings was attributable to advice from the department was “incontrovertible”. To the contrary, the Tribunal found the following at paragraph [8] of its reasons:

I was not persuaded by the Applicant’s claims that he had contacted the Department of Human Services and made the enquiries he purports to have made. The only evidence the Applicant produced to support these claims was correspondence between the Applicant and the Commonwealth Ombudsman, and a letter from the Department of Human Services dated 24 February 2017 which related an assessment of an unspecified benefit. These were provided to the Tribunal and the Respondent after close of business the day before the interlocutory hearing, after it had already been adjourned to accommodate late submissions by the Applicant on the first occasion. These documents only establish that the Applicant complained to the Ombudsman and that at a point in time, the Department was making an assessment of a benefit he was receiving. They do not prove any history of contact with the department about possible appeals.

Thus, as the primary judge identified, far from being “incontrovertible”, the Tribunal in fact found that the applicant’s evidence “did not prove a history of contact with the Department about possible appeals”.

38    The first proposed ground of appeal also includes the contention that the primary judge erred in deciding that the Tribunal had considered the merits of the substantive matter. This is to be read with the second proposed ground of appeal, viz that the primary judge should have found, in accordance with s 43(2B) of the AAT Act, that the Tribunal needed to “articulate its reasoning process” in deciding whether it was reasonable in all the circumstances to extend time in accordance with s 29(7) of the AAT Act – not just a finding that the reasons “were not insufficient”. Properly understood, this is an “inadequate reasons” ground.

39    The primary judge was not satisfied that the Tribunal had failed to provide adequate reasons in accordance with s 43(2B) of the AAT Act (see [13]). He found at [16] that the Tribunal's decision was made following a hearing at which submissions were made regarding the merits of the substantive application and that the Tribunal was not obliged to embark on a trial of the merits when evaluating that as a factor to grant an extension of time (citing Brown v Federal Commissioner of Taxation [1999] FCA 563 at [24] and [25]). The primary judge recognised that Tribunal’s reasons were brief, but as the judge said “brevity is not an error”: NAXT v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 279 at [15]. As Jacobson J explained in that case (at [12]-[15]):

However, it is well established that the RRT was not bound to accept what the applicant said and it was up to the Tribunal to decide whether or not to accept the applicant's claims. There are many examples of this; see Abebe v The Commonwealth of Australia 197 CLR 510 at [84] and [187].

It is also well established that question of whether an applicant should be believed on a claim is a finding of credibility for the Tribunal to make. In Re Minister for Immigration and Multicultural Affairs ex parte Durairajasingham (1999) 168 ALR 407; 74 ALJR 405 at [67] McHugh J said:

However, this was essentially a finding as to whether the prosecutor should be believed in his claim - a finding on credibility which is the function of the primary decision maker par excellence. If the primary decision maker has stated that he or she does not believe a particular witness, no detailed reasons need to be given as to why that particular witness was not believed. The tribunal must give the reasons for its decision, not the sub-set of reasons why it accepted or rejected individual pieces of evidence. In any event, the reason for the disbelief is apparent in this case from the use of the word "implausible". The disbelief arose from the tribunal's view that it was inherently unlikely that the events had occurred as alleged.

McHugh J’s decision has been followed by the Full Court on a number of occasions. The decision was followed recently in NAOL v Minister for Immigration and Multicultural and Indigenous Affairs (2003) FCAFC 243.

Here the RRT did not use the word "implausible" but the language of its decision is framed in terms of "improbability". The reasons which were given for the finding were short but brevity is not an error. The RRT was entitled to make the credibility findings which it did and no error is disclosed in the RRT’s reasons.

40    That reasoning applies with equal weight in this case. Accordingly, there is no merit in either the proposed first or second grounds of appeal.

41    The applicant’s third proposed ground of appeal is that the primary judge erred in deciding that it was open to the Tribunal to find that the respondent would have suffered prejudice. The applicant’s submission is that this was an error because no witnesses for the respondent or the public would have been required to give evidence. In this regard, the respondent submitted:

In relation to witness evidence, the respondent notes that the issue before the Tribunal on first review was whether the applicant was a member of a couple for a period 8 May 2011 to 17 February 2015. Accordingly, the primary witnesses would have been Ms Callychurn and the applicant.

Before the primary judge, the respondent submitted that the Tribunal's comments regarding the passage of time and the reliability of witness evidence were relevant factors to be considered in determining whether or not an extension of time should be granted. The respondent also submitted that there was a public interest that there be an end to disputes and that the public interest and unsettling established principles was a relevant factor to be considered in accordance with Hunter Valley. There was no suggestion by the respondent that any witnesses (other than the applicant and Ms Callychurn) would have been required to give evidence.

The primary judge [at 18] found that the relevant prejudice to the respondent and the public was the inherent impact of the passage of time. The respondent submits that the applicant's third ground of appeal does not identify any error on behalf of the primary judge or the Tribunal.

42    I agree with those submissions. The third proposed ground of appeal is thus also without merit.

43    The applicant’s fourth proposed ground of appeal is that primary judge failed to consider that, because the debt had not been recalculated, there was no time limit yet for an appeal to be lodged with the Tribunal in respect of that decision and that this was “inextricably linked” to the decision regarding whether he was a member of a couple.

44    It is of course true that the precise amount of any debt was subject to the finding as to whether or not the applicant was a member of a couple. But that is entirely beside the point. The applicant was bound to lodge an application for review with the Tribunal within 28 days. He waited almost a year, in circumstances where the Tribunal did not accept his only reason for not having acted in a timely way. The primary judge was clearly correct to dismiss that ground.

45    In my view, and in any event, the Tribunal may well have been justified in refusing the application for an extension of time primarily on the ground of the near year long delay.

46    In Hamden v Secretary, Department of Human Services [2013] FCA 3 Besanko J summarised the factors that guide courts in exercising that discretionary power as follows (at [35]-[36]):

The factors the Court takes into consideration in deciding whether to extend the time limit … are well established. Relevant to this case I think they are as follows:

1. The length of the delay;

2. The explanation for the delay;

3. The prejudice to the applicant if an extension of time is not granted;

4. The prejudice to the respondent and any third parties if an extension of time is granted;

5. The nature of the decision and, in that context, relevant public interest considerations including the need for finality in litigation; and

6. The merits of the substantive application.

(Hunter Valley Developments Pty Ltd v Cohen [1984] FCA 176; (1984) 3 FCR 344 at 348-349 per Wilcox J).

This Court has said in the context of the time limit under the Federal Court Rules 1979 (Cth) O 52 r 15(2)) that something very persuasive will be required to justify a grant of an extension of time after, for example, a year: Jess v Scott (1986) 12 FCR 187 at 195. McHugh J made a similar observation in the context of the High Court’s jurisdiction to issue prerogative writs: Re Commonwealth of Australia; Ex parte Marks [2000] HCA 67; (2000) 75 ALJR 470 at 474 [16] ….

47    The judgment of the Full Court in Jess v Scott (1986) 12 FCR 187 to which Besanko J referred concerned the rules of court then in force (r 15(2)) to the effect that the appeal period of 21 days could be extended “for special reasons … at any time…”. The passage to which his Honour referred is as follows (at 195):

It should not be overlooked that r 15(2) enables leave to be given “at any time”; the “special reasons” relevant to such a power cannot but describe an elastic test, suitable for application across a range of situations, from an oversight of a day to a neglect persisted in during a prolonged period. It would require something very persuasive indeed to justify a grant of leave after, for example, a year; equally, it may be said, something much less significant might justify leave where a party is a few days late. “Special reasons” must be understood in a sense capable of accommodating both types of situation. It is an expression describing a flexible discretionary power, but one requiring a case to be made upon grounds sufficient to justify a departure, in the particular circumstances, from the ordinary rule prescribing a period within which an appeal must be filed and served.

(Emphasis added.)

48    Similarly, in Re Commonwealth of Australia; Ex parte Marks (2000) 75 ALJR 470; [2000] HCA 67 at [16], the passage of the judgment of McHugh J to which Besanko J referred is as follows:

Independently of the merits of the case, I find it difficult to see how a person who, with knowledge of the decision, delays 17 months before seeking relief could ever be granted an extension of time to quash such a decision unless some conduct of the respondent or the public body or official had brought about the delay. As the Judicial Committee of the Privy Council said in Ratnam v Cumarasamy, “[t]he rules of court must prima facie be obeyed”. The time for seeking certiorari is six times, and the time for seeking mandamus is twice, the period in which an application for special leave to appeal to this court can be brought against a judgment or decision. The periods for applying for certiorari and mandamus give a person affected by an adverse decision or judgment ample time in which to commence proceedings in this court. In all but very exceptional cases, they should be rigidly applied when, as here, more than one year has elapsed between the decision and the commencement of proceedings in this court.

(Emphasis added. Citations omitted.)

49    There is, of course, no “blue line” rule that a delay of about a year means that an extension of time is impossible. As the Full Court in Jess v Scott (1986) 12 FCR 187 said (at 196):

… a discretion to relax the requirement of general rules should not itself become entangled in a web of rules spun out of the court's discretionary decisions. The tendency in some of the decisions we have discussed to regard a particular factor considered previously, in the light of other circumstances, as requiring the same effect to be given to it in the different situation before a court on a later occasion is a temptation which a court should resist. Decisions are not authorities upon the facts but upon principles; the facts must be regarded as unique to the particular case.

50    Nonetheless, as the Full Court in that case said, “[i]t would require something very persuasive indeed to justify a grant of leave … a year”. In my view, having explained why she rejected the applicant’s contention that someone in the department had he told him to wait to appeal until the recalculation of the precise amount owing, the Tribunal member was, in light of an otherwise unexplained almost year long delay, correct to dismiss the application for an extension of time.

Disposition

51    The application for an extension of time will be dismissed, with costs.

Associate:

Dated:    16 November 2018