Rankilor v Department of Family & Community Services [2002] FCA 1379

FEDERAL COURT OF AUSTRALIA

Rankilor v Department of Family & Community Services

[2002] FCA 1379

RANKILOR v DEPARTMENT OF FAMILY AND COMMUNITY SERVICES

W274 OF 2002 CARR J 18 OCTOBER 2002 PERTH

IN THE FEDERAL COURT OF AUSTRALIA

WESTERN AUSTRALIA DISTRICT REGISTRY W274 OF 2002

BETWEEN: WENDY ANN RANKILOR

Applicant

AND: DEPARTMENT OF FAMILY AND COMMUNITY SERVICES

Respondent

JUDGE: CARR J

DATE OF ORDER: 18 OCTOBER 2002

WHERE MADE: PERTH

THE COURT ORDERS THAT: 1. The motion be dismissed. 2. The applicant pay the respondent's costs of the motion. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA

WESTERN AUSTRALIA DISTRICT REGISTRY W274 OF 2002

BETWEEN: WENDY ANN RANKILOR

Applicant

AND: DEPARTMENT OF FAMILY AND COMMUNITY SERVICES

Respondent

JUDGE: CARR J

DATE: 18 OCTOBER 2002

PLACE: PERTH

REASONS FOR JUDGMENT 1 This is a motion pursuant to which the applicant seeks an extension of time in which to appeal from a decision of the Administrative Appeals Tribunal made on 2 July 2002. The period limited by the Administrative Appeals Tribunal Act 1975 (Cth) for the filing of such an appeal would appear to have expired on or about 31 July 2002. The motion in this matter was filed on 19 September 2002, so on the face of it, the applicant was about one and a half months out of time at the time she filed her motion. 2 The application to the Tribunal was for review of a decision of the Social Security Appeals Tribunal in relation to a parenting payment. The applicant, so it appears from the material before the Court to date, was in receipt of a partial parenting payment as at September 2001 which was partial because she was working under contract with the Education Department. That employment, as I will call it, ceased on 28 September 2001. The applicant notified Centrelink of that cessation on 15 October 2001 and attended an interview with Centrelink subsequently. 3 The relevant decision was that the applicant's increased rate of parenting payment would commence from the date of the telephone call made by the applicant to Centrelink, namely, 15 October 2001. The applicant's position has at all times been that she should have been paid the increased rate from the date of the occurrence, that is, the cessation of her contract on 28 September 2001. 4 In the papers filed by the applicant and in particular a draft notice of appeal, the applicant quantifies the amount in issue as being $315. I have been told by counsel for the respondent, from the bar table, that the actual amount is $104.85. In those circumstances, had I been disposed to extend time, I would have transferred the matter to the Federal Magistrates Court. My reading of the relevant legislation is that while this Court would have power to extend time, there is some doubt as to whether the Federal Magistrates Court has that power, i.e. to extend time. Certainly the Federal Magistrates Court would have jurisdiction to hear the appeal following a transfer from this Court. 5 The motion was listed for hearing or the making of directions on 2 October 2002, but on that date there was no appearance by the applicant. Indeed there was no appearance on the respondent's part. Contact was made with the applicant and on the same day the applicant sent a fax to the Court indicating that she had made efforts to serve the respondent with the necessary papers. 6 On 2 October 2002, I fixed a further hearing date for this matter, namely, today at 10.30 am. The applicant was notified of that date by two letters, one from my associate dated 2 October 2002 and one from the District Registrar dated 4 October 2002. When the matter was called on today there was no appearance by the applicant. I had the court officer call the applicant and he confirmed that there was no appearance. 7 In those circumstances I thought it was the duty of the Court to explore to some extent whether there was much likelihood of the application for extension being granted had the applicant appeared and put her case. I have formed the opinion that the application is one which does not have the sufficient prospects of success to warrant an extension of time. I have looked at the statutory provisions upon which the applicant would have sought to rely, namely, s 110 of the Social Security (Administration) Act 1999 (Cth) ("the Act"). In my view, on the facts as they are placed before the Court to date, it seems sufficiently clear that s 110(1) applies to the circumstances of the present matter, and that the Tribunal was correct in applying it to the applicant's circumstances. Taking into account the fact that the applicant has twice failed to appear, the second time after having been sent two letters indicating the hearing date of her motion, and the absence of any sufficient prospects of success if time were extended, the motion will be dismissed with costs. I now formally make orders in the following terms: 1. The motion be dismissed. 2. The applicant pay the respondent's costs of the motion. I certify that the preceding seven (7) numbered paragraphs are a true copy of the Reasons for Judgment herein of Justice Carr.