JUDGMENT No. esmedOelt 2! CATCHWORDS Practice and procedure - application for extension of time to file an appeal against decision of the Administrative Appeals Tribunal - discretion in the court to grant or refuse extension - relevant circumstances - delay 1n filing application - satisfactory explanation of delay not a precondition to the grant of an extenston - whether it is yust that an extension be granted - no question of law disclosed. Hunter Valley Development Pty. Lid. v, Cohen (1984) 3 FCR 344 Comeare v. Ahearn (1993) 45 FCR 441 (FC) Chalk vy. Commissioner for Superannuation Unreported QG 161 of 1993, Full Court Brisbane, 4 May, 1994 RECEIVED QG96 of "1994 ~2 NOV 1994 Cooper J., Brisbane, 28 October, 1994 OF PRINCIPAL REGISTRY GENERAL DIVISON No, 0696 of 19% BETWEEN: PAUL FORD Applicant AND: SECRETARY TO THE DEPARTMENT OF SOCIAL SECURITY Respondent JUDGE MAKING ORDER: Cooper J. WHERE MADE: Brisbane DATE OF ORDER: 28 October, 1994 MINUTES OF ORDER THE COURT ORDERS THAT: The application be dismissed. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court ' Rules. QUEENSLAND DISTRICT REGISTRY GENERAL DIVISION No, 0G96 of 1994 BETWEEN: PAUL FORD Applicant AND: SECRETARY TO THE DEPARTMENT OF SOCIAL SECURITY Respondent CORAM: Cooper J. PLACE: Bnsbane DATE: 28 October, 1994 REASONS FOR JUDGMENT The applicant seeks an extension of time to file an appeal against a decision of the Administrative Appeals Tribunal ("AAT") given on 11 January, 1988. The applicant has prepared and filed the onginating documents in this court and appeared in person to argue the application. The history of the matter and the nature of the issues before the AAT appear from the Tribunal's reasons :- "4, Mrs. Green outlined a brief history of the matter as follows. The applicant had lodged a supporting Parent's benefit application on 18th September 1979. On Ist October 1979 he notified the Department that he and his son would be going to Italy on 8th October 1979. He gave an address in Italy and requested that payments of his benefit be made to a certain Australian bank account. He Stated, among other things, that his father was ul and his mother had died a few months ago. Supporting parent's benefit was granted and payment was made by cheque. 2. 5. On 8th January, 1980, Mr. Ford notified the Department that he would be travelling around Australia for a couple of months and left a forwarding address for cheques. 6. On 19th March 1980, three cheques were returned unclaimed from this address and payment was accordingly suspended. 7. In mid-June 1980, the Department received a letter from the applicant stating he was 'in holiday in Italy with my kids since January' and requesting payment through his solicitor. In November 1980 the first of a series of telephone calls from Mr. Ford in Italy was recetved, again requesting payment to be made through his solicitor. 8. Numerous inconsistencies were noted in the information supplied from time to time by Mr. Ford. These included the dates of death of his parents, the fact of his departure from Australia eleven days after notifying his intention to travel around Australia, the number of children accompanying him, the reasons for failure to notify his departure and his means of both paying for the tickets to Italy in the first place, and of supporting himself and his son while there. 9. Payment of benefit was cancelled pursuant to subsection 75(1), the Department being in no position to assess eligibility or entitlement as to rate. Mr. Ford was notified by registered letter of 19h January 1981 of the cancellation. 10. The "T" Documents contain no evidence concerning the date of Mr. Ford's return to Australia, but he indicated to the Tribunal that the date of his return was 10th February 1986. He stated that it had been his intention to return to Australia much earlier, but, having sold the house he inherited from his father for A$72,000, he had given the money to a female friend who was robbed in the street on the way to the bank. Thereafter he had been forced to live on charity with no means of paying for his or his son's return ticket to Australia. 11. Mr. Ford believed he was entitled to Supporting parent's benefit for much of the period he spent overseas, although not after 28th August 1984 on which date his son turned 18 years of age. 3. 12. In support of some of his earlier written and verbal statements, Mr. Ford tendered as exhibits, the death certificate of his mother (28th February 1979) and of his father (17th May 1979) as well as a certificate dated 15th December 1986 from Brindisi American High School, attesting that Mr. Ford's son was on that school's registration list for the school year 1979-80. 13. Section 14 of the Social Services Act 1947, as then in force, provided: 'Whenever it appears to the Director-General that Sufficient reason exists for reviewing a determination, direction, decision or approval of an officer under this Act (including a determination, direction, decision or approval of the Director-General), the Director- General may review the determination, direction, decision or approval and may affirm, vary or annul it.' Subsection 74(6) of the Act provided: 'A pensioner shall not leave Australia without first giving to a Director notice of her intended departure from Australia. Penalty: Forty Dollars.' Subsection 75(1) of the Act provided: af - (a) _ having regard to the income of a pensioner; (6) by reason of the failure of a pensioner to comply with either of the last two preceding sections; or (c) for any other reason, the Director-General considers that the pension which is being paid to a pensioner should be cancelled or suspended, or that the rate of the pension which is being paid to a pensioner is greater or less than it Should be, the Director-General may cancel or Suspend the pension, or reduce or increase the rate of the pension, accordingly.' 14, The Tribunal finds that Mr. Ford had not notified the Director-General of his intended absence from 4, Australia at the time he left as required by subsection 74(6) and, upon the reasons for this being investigated, he provided numerous conflicting explanations, as well as insufficient and at times erroneous information, giving sufficient and appropriate grounds for cancellation of supporting parent's benefit under subsection 75(1) of the Act." The Tribunal affirmed the decision under review. In support of his application for an extension of time, the applicant deposes :- "My name is Paul Graham Ford. I was sentenced at the Administrative Tribunal the 11--1-88. I should appeal within 28 days but I was overseas and I just came back so I'm entitled to appeal now. The nature of the case is as I was overseas without advice [sic] Social Security they cancelled my supporting parents benefits and the child was with me. I received a telex and I left Australia in two hours so was impossible to advise them." Attached to his affidavit is a draft notice of appeal which relevantly provides :- "2. The Questions of Law raised on the appeal are: The Social Security stated to me that my pension will be paid trough [sic] Geneva and after they illegaly [sic] cancelled the pension. 3. Orders sought: I want to get paid the pensin [sic] from January 1980 to August 1984. 4, Grounds: Even if I am overseas the pension must be paid." The respondent, in opposing the application, filed an affidavit of Murray 5. Belcher, a legal officer employed by the Australian Government Solicitor, and an affidavit of Gregory Mark Saphin, an officer of the Entry Branch and Trips International Sub- section of the Department of Immigration and Ethnic Affairs. Mr. Saphin deposes that the records of the Department of Immigration and Ethnic Affairs reveal that since 1 January, 1986 the applicant arrived at Sydney Airport on flight QF16 on 10 February, 1986, departed Australia from Brisbane on 20 July, 1988 and returned to Australia on 25 January, 1989. Since that time the applicant 1s not recorded as having left Australia on any occasion. Mr. Belcher deposes to the history of other proceedings in this court initiated by the applicant against the Department of Social Security 1n proceedings QG117 of 1992. In those proceedings, filed on 14 August, 1992, the applicant sought an extension of time to file an appeal from the decision of a differently constituted AAT given on 19 December, 1989. In support of that application the applicant filed, on 2 September, 1992, an affidavit which he prepared and in which he deposed :- "I couldn't appear at the right time for appeal because I was overseas and I wasn't in Australia for a long time so I appeal now so as I'm entitled for an appeal I ask an extension of time." Mr. Belcher deposes that the transcript of proceedings before the AAT on 22 August, 1989 shows that the applicant attended before the Tribunal and gave oral evidence in support of his application. He further deposes that the application QG117 of 1992 was listed for mention before Drummond J. on 26 November, 1992 and both Mr. Belcher and the applicant attended and appeared before his Honour. On that occasion 6. directions were made as to the filing and service of maternal in support or opposition to the application and a hearing date was set for 8 February, 1993. Mr. Belcher served the applicant with the respondent's affidavit material at New Farm, Bnsbane on 8 January, 1993. The apphcation was heard by Drummond J. on 8 February, 1993. His Honour refused the application. His Honour did not accept that the applicant was continuously out of the country as he claimed. In rejecting the clam, Drummond J. recorded 1n his reasons what had occurred at the hearing on the issue of the applicant's presence in or absence from Australia. His Honour said :- "First, Mr. Ford initially said he left and entered through Brisbane on the occasion of his departure in January 1990 and return in June or July 1992. But when he was cross- examined about what Immigration departmental records were likely to reveal about his exit and re-entry into Australia, he Said that he came back, not through Brisbane, but through Sydney - plainly it seems to me, to provide some form of explanation for why there might well be no record of re-entry through Brisbane at the time he suggested. Secondly, Mr. Ford said he left Australia at the end of January 1990 and, after referring to a document which he produced from his clothing in the witness box, he gave 25 January as the specific date. He was, I think, quite evasive when asked what the document was. He said it was just some notes and that he did not have any record of the date he re-entered. Finally, in the course of evidence, I gave Mr. Ford an opportunity to say anything he wished to say about why he wanted the extension of time and, in particular, I gave him an opportunity to say if there was anything else he wished to say about being out of the country in the period he claims to have been absent from the end of January 1990 to the middle of 1992. He satd: 'I was away a couple of years ~ I got married in Italy' and appeared not to want to say anything further about the matter. Accepting what he said there at face value, that is inconsistent with what he apparently told the Tribunal back in 1989. At page 5 of the reasons for decision, the Tribunal said: 7. 'He (Mr. Ford) gave evidence that he used a credit card to travel to Italy on 25 July 1988 and to come back on 25 January 1989. He said that while in Italy this last time he married a sixteen year old girl.'" On 10 February, 1993 the applicant filed an appeal QG16 of 1993 from the judgment of Drummond J. On 15 March, 1993 the applicant filed a notice of motion and supporting affidavit seeking a refund from the respondent of monies deducted from his pension from 24 December, 1987 to December, 1989. On 23 March, 1993 the applicant filed a notice of motion in QG16 of 1993 seeking :- "I want a Court order to approve my extension of time because at the time of appeal I was overseas for business and marriage also I want a court order when I face the Full Court to get back the money that Social Security took off illegally from my pension from 24-12-87 to December 89." An affidavit was filed in support of the notice of motion. All of these documents are handwritten and purport to have been filed by the applicant personally. On | April, 1993 a mention of the applicant's application for leave to appeal was heard before Spender J. The applicant attended on the hearing. On 7 Apni, 1993 the applicant and Mr. Belcher attended before Deputy Registrar Allen to settle the index to the appeal books. The matter QG16 of 1993 was not proceeded with and Mr. Belcher deposes that on 5 May, 1993 and 6 May, 1993 he met the applicant to obtain his signature to consent orders dismissing proceedings QGi6 of 1993. Mr. Belcher swore that he had seen the applicant on at least two occasions in Brunswick Street, Fortitude Valley, Brisbane since May, 1993. Before me the following statements were made from the Bar table :- "HIS HONOUR: Yes. Well, you are out of time for a long time and you have to persuade me that I ought to grant you the extension of time. Now, why do you say I should grant you an extension of time? MR FORD: Because I got my wife in Italy, and every few weeks I go in Italy. I go every few weeks. HIS HONOUR: During- - - MR FORD: But I do not go away to an air company, I go away to private plane. I go practically every three weeks, because I got my wife in Italy, and until I can bring her to Australia, I got trouble. I got a court case at the District Court I do not know when. The District Court is starting 19h of September between myself and the Nominal Defendant. And I am asking 198,000 and $500. When I got that money, I got the money to bring my wife in Australia and settle down here. But until that I can do nothing. HIS HONOUR: Well, you say you have been out of Australia, do you, during that time? MR FORD: Pardon? HIS HONOUR: You say that you have been out of Australia during that time and could not- - - MR FORD: Yes, I have been out of Australia several times. HIS HONOUR: And could not bring the proceedings because you have been out of Australia, is that right? MR FORD: Yes. HIS HONOUR: All right. Now, are there any other reasons why you say that I should grant you leave - an extension of time to bring the application? MR FORD: I think are not other reason. When - when I was impossible for me to appear here - no, excuse me, your Honour; before I been overseas, I came four times here and 9. all the four times they knock me back because [ was not presenting question of rule. But I been four times here. HIS HONOUR: But not in relation to this decision you have not? MR FORD: Yes, in relation to this decision. HIS HONOUR: No, a different - a different AAT. MR FORD: No. HIS HONOUR: That AAT that you came to this court about was an Administrative Appeals Tribunal constituted by MR FORD: Mr. Lynch, Mr. Horrigan, and I forgot the other one. HIS HONOUR: Mr. Muller? MR FORD: Muller, yes, Lynch and Horrigan. HIS HONOUR: Yes. Well, that is not the one that you are seeking now to appeal against. The one you are seeking to appeal against now is a different Administrative Appeals Tribunal. The decision that you are now seeking leave to appeal against is the decision of Mr Breen, Mrs Pavlin - - - MR FORD: Yes, Breen - - - HIS HONOUR: And Mr Horrigan. MR FORD: Wait a minute, I got a copy here. I think I got a copy here. HIS HONOUR: Well, if you were here four times in relation to the other matter, why didn't you file an application in relation to this matter? MR FORD: I applied on this case - I applied on this case and four times they knock me back. HIS HONOUR: Have you got any further material in support of your application for an extension of time? 10. MR FORD: The main - the main ground: that was impossible for me io appear here before now. HIS HONOUR: All right. MR FORD: That was the most important thing: was impossible for me. because every three or four weeks I go in Italy because I've got a wife in Italy." The applicant also tendered a bundle of documents, the effect of which was to show that his son was present with him in Italy and attending school there. On the material, which I accept, the applicant was in Australia between 11 January, 1988 (the date of the AAT decision) and 20 July, 1988 when he departed Australia from Brisbane. The applicant has made no attempt to expiain why neither an appeal was filed within this period nor an application made for an extension of time to appeal. I find that the applicant was out of Australia from 20 July, 1988 to 25 January, 1989. From that time I find that he has been resident in Australia. I do not accept his evidence in his affidavit that he was overseas and could not appeal within 28 days of the decision being given. Nor do I accept that as at 28 July, 1994 he had just come back to Australia. I do not accept that the applicant regularly travels out of Australia to Italy in such a way that his movements are not recorded by the Department of Immigration and Ethme Affairs. The applicant has given no explanation why he has not sought from the time of his return to Australia m January, 1989 an extension of time to appeal the decision of the AAT given on 11 January, 1988, I accept that the applicant has acted throughout on his own behalf. However, it is clear that from at least 2 September, 1992 ll. the applicant has been aware of the relevant time limit 1n which to appeal from decisions of the AAT and the ability to apply to this court for an extension of time if the appeal penod has expired. Additionally, having appeared on 8 February, 1993 before Drummond J., who gave an extempore judgment refusing the application, the applicant ought reasonably to have had some idea of what was expected of mm to obtain an extension of trme. The applicant has again sought to explain the delay by falsely asserting that he was out of the country and unable to appeal within time or seek an extension of time to appeal. That he sought to exercise his right to apply for an extension of time in QG117 of 1992, makes it impossible for the applicant to contend that he was unaware of his right to make the present application at that time. I do not accept his assertion that he attempted four times to make the application but that it was refused because it did not disclose a question of law. That was a convenient answer when he had been shown to have been regularly in contact with this court since September, 1992. Aside from the question of delay, the material does not disclose any question of law arising out of the proceedings before the AAT or the reasons of the Tribunal in affirming the decision appealed from. The effect of the Tnbunal's decision is that factually sufficient and appropriate circumstances existed for the Director-General to cancel the applicant's supporting parent's benefit under section 75(1) of the Social Services Act 1947 as then in force. The applicant does not seek to address that issue and identify any question of law which he contends was wrongly decided by the Tribunal arising out of the Tnbunal's determination of the issue for determination by it. Rather, 12. the applicant appears to wish to prove that he was as a matter of fact 1n Italy with his son who was being supported by the applicant and thereby contend that he had an entitlement to the benefit. The Tnbunal in paragraph 12 of its reasons appears to accept that the applicant and his son were in Italy and that his son attended the Brindis: American High School for the school year 1979-1980. However, that fact was not determinative of the issue before the AAT and upon which it gave judgment on 11 January, 1988. If the time for appealing the decision of the AAT is extended, it 1s highly unlikely that the applicant will be able to formulate any question of law to mount a successful appeal. At the present time he wishes to re-litigate questions of fact which he considers justify the payment of the supporting parent's benefit. Notwithstanding that they are questions of fact and not justiciable in this court on an appeal from the AAT, they are not the primary questions of fact with which the AAT was concerned, namely, whether or not there were factually sufficient and appropriate grounds for cancellation of the supporting parent's benefit under section 75(1) of the Social Services Act 1947 as then 1n force. A satisfactory explanation of the delay in filing an appeal or in seeking an extension of time is not a pre-condition to the grant of an extension (Comcare vy, Ahearn (1993) 45 FCR 441 (FC); Chalk v. Commissioner for Superannuation (Unreported QG 161 of 1993, Full Court Bnsbane, 4 May, 1994)). However it 1s usual that some explanation of the delay 1s given, for in that explanation the justice in granting the extension is demonstrated. A court, when deciding whether to grant an extension of time, will look at all the relevant circumstances, including the period of delay, the reason for 13. delay, the conduct or knowledge of the applicant as to his or her nghts to appeal or apply for an extension of time, questions of prejudice and the like. Some, but not all relevant circumstances, are identified and discussed in Hunter Valley Development Pty. Ltd, v. Cohen (1984) 3 FCR 344 at 348-349. The decision in Hunter Valley Development concerned an application extension of time under section 11 of the Admunistrative Decisions (Judicial Review) Act 1977. However, the approach to the granting of an extension under that Act is no different to an application under section 44 of the Administrative Appeals Tobunal Act 1975. The purpose of the examination is to ascertain, having regard to the interests of all parties, whether it 1s just that the extension be granted to the applicant. In the instant case there is no demonstrated likelihood that the applicant can mount a successful appeal or even one with some prospect of success. The delay is six years and nine months. The only explanation for the delay has been a false assertion. Since at least September, 1992 the applicant has been aware of the need to obtain an extension of time to appeal the decision and has refrained from doing so. This he has done at a time when he has been actively seeking to obtain an extension of time to appeal another later decision of the AAT. Although there is no evidence of prejudice to the respondent from the delay, a mere absence of prejudice is not of itself enough to grant an extension. The applicant has failed to demonstrate that it is, 1n all circumstances, just that he should be allowed to proceed with an appeal against the decision of the AAT of 11 January, 1988 and for that purpose an extension of time to file an appeal ought not to 14. be granted. The application 1s dismissed. I will hear the parties as to costs. THE COURT ORDERS THAT: The application be dismissed. I certify that this and the preceding thirteen (13) pages are a true copy of the reasons for judgment herein of his Honour Justice Cooper. Date: 28 October, 1994 7 Wye _ Applicant in person: Mr. P. Ford Counsel for the Respondent: Mr. P. Matthews Solicitor for the Respondent: Australian Government Solicitor Date of Hearing: 22 August, 1994 Place of Hearing: Brisbane Date of Judgment: 28 October, 1994