Martinsen v Secretary, Department of Family & Community Services [2004] FCA 297

FEDERAL COURT OF AUSTRALIA

Martinsen v Secretary, Department of Family & Community Services [2004] FCA 297

SOCIAL SECURITY – Austudy – application for extension of time to appeal from decision of AAT – whether the calculation of "allowable study time" under s 569H(3) Social Security Act 1991 (Cth) is a reviewable decision – whether there is utility in allowing the extension of time – whether delay is adequately explained. Social Security Act 1991 (Cth) ss 569H(1) and 569H(3) Australian Broadcasting Authority v Bond (1990) 170 CLR 321 Gallo v Dawson (1990) 64 ALJR 459 Administrative Appeals Tribunal Act 1975 (Cth) ss 43(1) and 44(2A) Transport Operations (Road Use Management) Act 1995 (Qld) Federal Court Rules O 53, r 7 JEFFREY DALE MARTINSEN v SECRETARY, DEPARTMENT OF FAMILY AND COMMUNITY SERVICES No Q 15 of 2004 SPENDER J BRISBANE 16 MARCH 2004

IN THE FEDERAL COURT OF AUSTRALIA

QUEENSLAND DISTRICT REGISTRY Q 15 OF 2004

BETWEEN: JEFFREY DALE MARTINSEN

APPLICANT

AND: SECRETARY, DEPARTMENT OF FAMILY AND COMMUNITY SERVICES

RESPONDENT

JUDGE: SPENDER J

DATE OF ORDER: 16 MARCH 2004

WHERE MADE: BRISBANE

THE COURT ORDERS THAT: 1. The application for extension of time within which to appeal dated 27 January 2004 is dismissed. 1. There be no order as to costs. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA

QUEENSLAND DISTRICT REGISTRY Q 15 OF 2004

BETWEEN: JEFFREY DALE MARTINSEN

APPLICANT

AND: SECRETARY, DEPARTMENT OF FAMILY AND COMMUNITY SERVICES

RESPONDENT

JUDGE: SPENDER J

DATE: 16 MARCH 2004

PLACE: BRISBANE

REASONS FOR JUDGMENT 1 This is an application for extension of time to file and serve a notice of appeal from a decision of the Administrative Appeals Tribunal ("the AAT"). The AAT decision was given on 15 August 2003. That decision, which is the subject of this application for an extension of time, was as follows: 'The Tribunal sets aside the decision of the Social Security Appeals Tribunal and substitutes a decision that the applicant remain eligible for Austudy as at 26 June 2002.' The decision, therefore, of the AAT is the decision that: '...the applicant remain eligible for Austudy as at 26 June 2002.' 2 A proposed notice of appeal is annexed to the applicant's affidavit of 27 January 2004. The substantive issue behind the proceedings in the AAT involved the payment of Austudy and the period of study in which a student is entitled to receive those benefits. It is necessary to have close regard, on the present application, to the provisions of the Social Security Act 1991 (Cth) ("the Social Security Act"), and in particular Section 569H(1) and 569H(3). Those subsections are as follows: '569H(1) A person who is a full-time student in respect of a tertiary course satisfies the progress rules if: (a) in the case of a person who is enrolled in the course – on the day on which the person enrolled in the course; or (b) in the case of a person who is not yet enrolled in the course but intends to enrol in the course – on the day on which enrolments in the course are next accepted; the time already spent by the student on the course, or on one or more other tertiary courses at the same level as that course, does not exceed the allowable study time for that course. Note: For allowable study time for a course see subsection (3). … 569H(3) The allowable study time for a course undertaken by a full-time student or a 66% concessional study-load student is: (a) if the minimum amount of time needed to complete the course as a full-time student is one year or less – that minimum amount of time; or (b) if the minimum amount of time needed to complete the course as a full-time student is more than 1 year and: (i) the student is enrolled, or intends to enrol, in a year-long subject; or (ii) the student's further progress in the course depends on passing a whole year's work in the course; the minimum amount of time plus 1 year; or (c) in any other case – the minimum amount of time needed to complete the course as a full-time student plus half an academic year.' 3 In the context of the present application, it is relevant to note that the allowable study time is that which is specified in s 569H(3), and the test of satisfaction of the progress rule which is set out in s 569H(1) requires, amongst other things, that the time spent by the student on the course does not exceed the allowable study time for that course. 4 It is the contention on the part of the applicant that he is able to have reviewed what is, or was, the allowable study time that applied to him. The contention for the respondent is that the issue of what was the applicant's allowable study time is, in the circumstances that have occurred, totally academic and hypothetical and there is no utility in the proposed appeal. 5 It is necessary to have regard, then, to the facts in relation to the proposed appeal. 6 On 26 June 2002, Centrelink decided to cancel the payment of Austudy to the applicant on the basis that he had exceeded the allowable study time. Mr Martinsen attended on Centrelink and sought review of that decision to cancel his Austudy. The matter was eventually referred to an Authorised Review Officer, who set aside the decision to cancel payment of Austudy to the applicant on the basis that, as at the end of semester 1 2002, the applicant had completed the equivalent of 3.625 years of full-time study. That decision was affirmed by the Social Security Appeals Tribunal ("the SSAT"). 7 It is relevant to note, particularly on the question of costs to be later considered, that the SSAT decision commenced under the heading "Decision Under Review" with the following: 'A decision made by Centrelink on 6 March 2002 as varied by an authorised review officer to assess Mr Martinsen's total allowable study time for Austudy payment purposes as 4.5 years to expire at the conclusion of semester 1 in 2003.' In the reasons for decision in paragraph 34, the SSAT said: 'Accordingly, the decision under review is affirmed. That is, the applicant's allowable study time is 4.5 years. This expires at the end of semester 1 in the year 2003.' The way in which the decision was expressed by the SSAT is a possible source of the difficulties that have attended this matter. 8 Mr Martinsen sought review of that decision by the AAT. His application for review is contained in a letter dated 16 September 2002. In par 4 under the heading "Issues on Appeal", the following was included: 'The correct amount of allowable study time for my course of study is five years and not 4˝ years, as held by the Tribunal. The amount was, and remains, five years.' In par 14, under the heading "Calculation of Allowable Study Time", Mr Martinsen said: 'How can it be that when I began the course my allowable period was 5 years, and then after 3.625 (or less) time studied my allowable period for the course is somehow reduced to 4.5 years based on the fact that my year-long subjects have now been completed ...' It can be seen that Mr Martinsen then, and it appears also now, is concerned with the correctness of the calculation of the allowable study period. 9 What has to be understood, however, is that the function of the AAT is to review "decisions made under enactment", and as the High Court explained in Australian Broadcasting Authority v Bond (1990) 170 CLR 321, decisions in that context mean operative decisions or final decisions and not steps along the way, or decisions made along the way leading to that final or operative decision. It is this understanding which is crucial for the present application. 10 What is or is not the particular allowable study period for Mr Martinsen at any particular time is not a decision made under an enactment. The relevant decision is the eligibility for the payment of Austudy: that entitlement may require a determination of what is the appropriate allowable study time, but it need not necessarily involve that question. This case is an example of where the entitlement to Austudy, on any view, was determined to be at a time that was within the allowable study time for Mr Martinsen. The fact of the matter is that Mr Martinsen's persistence in his claim that the appropriate period is 5 years, or some other period rather than 4.5 years, is not to the point in determining his entitlement to Austudy then, or at any time up until now. 11 It may be that, were he to apply for Austudy in the future, there would need to be determined whether he was a person who satisfied the progress test, and that in turn would involve consideration of whether he was within the allowable study time and whether the time already spent by him on the course, or on one or more other tertiary courses at the same level as that course, exceeded the allowable study time for that course. But that matter is truly hypothetical and does not call for decision in the present matter. 12 On an application for extension of time within which to appeal, the Court's primary concern is to do that which will enable justice to be done between the parties. As McHugh J said in Gallo v Dawson (1990) 64 ALJR 459: 'The grant of an extension of time ... is not automatic. The object of the rule is to ensure that those Rules which fix times for doing acts do not become instruments of injustice. The discretion to extend time is given for the sole purpose of enabling the Court or Justice to do justice between the parties: see Hughes v National Trustees Executors and Agency Company of Australasia Limited [1978] VR 257 at 262. This means that the discretion can only be exercised in favour of an applicant upon proof that strict compliance with the rules will work an injustice upon the applicant. In order to determine whether the rules will work an injustice, it is necessary to have regard to the history of the proceedings, the conduct of the parties, the nature of the litigation, and the consequences for the parties of the grant or refusal of the application for extension of time. See Avery v No 2 Public Service Appeal Board [1973] 2 NZLR 86 at 92; Jess v Scott (1986) 12 FCR 187 at 194-195. When the application is for an extension of time in which to file an appeal, it is always necessary to consider the prospects of the applicant succeeding in the appeal: see Burnes v Grigg [1967] VR 871 at 872; Hughes at 263-264; Mitchelson v Mitchelson (1979) 24 ALR 522 at 524.' 13 The time limit for appeals from the AAT to the Federal Court is provided for by s 44(2A) of the Administrative Appeals Tribunal Act 1975 (Cth) ("the AAT Act") as twenty-eight days. The decision of the AAT in the present case was received by the applicant on 15 August 2003. An application for an extension of time was made by the applicant to the Federal Court on 27 January 2004, more than four months after the time limited by the AAT Act. 14 Order 53, rule 7 of the Federal Court Rules provides that an application can be made for an extension of the time specified in s 44(2A) of the AAT Act. Mr Martinsen has filed a number of affidavits, directed to the reason for the delay. Amongst other things, he says that he was self-represented in District Court proceedings concerning a conviction under the Transport Operations (Road Use Management) Act 1995 (Qld), which was extremely time consuming; he was suffering extreme financial hardship; he had an ongoing medical condition resulting from stress and anxiety; he had been involved in two separate car accidents and had suffered injuries. There is a medical certificate from the West End Family Clinic dated 12 March 2004 which rather boldly says: 'This is to certify that Mr Jeffrey Dale Martinsen is receiving medical treatment and was unfit to make a court application from 25.8.03 to 18.9.03 inclusive.' 15 That report indicates that Mr Martinsen was seen by a Dr Chesmond on 25 August 2003. He had then been unwell, according to Dr Chesmond, for two weeks, with increasing symptoms of acute exacerbation of chronic obstructive pulmonary disease. The doctor says that his symptoms settled slowly over the next couple of weeks with antibiotic treatment. 'I also saw Mr Martinsen on 9.10.03 when he complained of a twitch and some grittiness in his eye, and I referred him to an optometrist.' Mr Martinsen says that he was treated in respect of that matter, and after visiting the optometrist his eye difficulty settled. 16 The difficulties which Mr Martinsen was experiencing do not immediately leap out as a sufficient reason for the extension of time which he seeks. But if one accepts, for present purposes, that there is some reasonable explanation as to why the application could not be brought within the twenty-eight days, there is the further difficulty that the delay is more than four months. I am not prepared, however, to decline to grant an extension of time on the basis of a failure adequately to explain the delay that did in fact occur; but in my judgment the application for an extension of time should be refused nonetheless. 17 There is, in my judgment, no reasonable prospect of success in respect of the present application, in that what Mr Martinsen is seeking to do is to debate the correctness of a matter which is not a reviewable decision. Whether the allowable study time was 4.5 years rather than the 5 years calculated by the applicant is quite irrelevant to the justice of the disposition of this application. If it be that that issue needs to be canvassed again in the event that Mr Martinsen makes a further application for Austudy, then and only then, is it a matter that has to be considered, and even then as a decision along the way to whether Mr Martinsen is, or is not entitled to Austudy at that time. 18 There is, in my view, no utility to be served in extending the time for an appeal. The primary reason is that the decision of the AAT was not adverse to the applicant, did not result in the cessation of payment of Austudy to him, and any appeal has no prospects of success. 19 The evidence before the Court from Mr Martinsen is that on 25 July 2003 he was excluded from full-time study of law at the QUT for non-payment of student loans. The evidence is that he has not resumed his studies since. His enrolment was terminated from the QUT from 25 July 2003, and Mr Martinsen has not been entitled to the payment of Austudy since that time. This is a consequence of s 569A(c) of the Social Security Act. The evidence also is that up until the time he ceased full-time study he had, in fact, received the payment of Austudy. He cannot currently qualify for a further payment of Austudy. Seeking to have the matter returned to the AAT involves a misconstruction of the role of that Tribunal. 20 In the context of this case, the AAT can only decide current or past entitlements to Austudy. The AAT exercises its powers by virtue of s 43(1) of the AAT Act, being the decisions that the AAT could make. The provisions of the Social Security Act are such that the entitlement to Austudy requires ongoing satisfaction of the activity test set out in s 568 of the Social Security Act, which in turn requires that the claimant is continuing to satisfy the activity test - see s 569 - which in turn requires the claimant to be undertaking qualifying study. 21 Payment of Austudy is by instalments and in arrears. The corollary is that entitlement to such payments can only arise following the completion of the study to which the payment related, and if qualification continued to be met for the duration of it. Despite the concession by the AAT that the applicant would continue to satisfy the progress rules until the end of September 2, 2003, Mr Martinsen's inability to otherwise remain qualified meant that he was not entitled to the payment of Austudy for that entire period. 22 If the matter were returned to the AAT, it could do no more than find that the applicant is not currently entitled to the payment of Austudy. It would have neither the jurisdiction nor the evidence before it to make a decision in relation to his future entitlement to Austudy in the event that he made an application for it. Whether he would have such an entitlement for a future period when he recommences full-time study, if he does, is a matter for a separate decision at that time. 23 Even if one accepts Mr Martinsen's contention that the appropriate allowable study time in his case was five years or some other time, that contention had simply no bearing on the decision of the Tribunal and so, even if the AAT's view of the matter was wrong, such an error cannot be said to have affected the decision as to his entitlement to Austudy. Appeals are brought from decisions made under an enactment. There can be no prospect of the appeal succeeding, because the disagreement as to what is the allowable study period does not have any effect on the decision which was properly the subject of dispute. 24 In the circumstances, in my judgment, the proposed appeal will have no utility. The purpose of allowing an extension of time is to avoid an injustice. Where the pursuit of the appeal will have no practical purpose there is no injustice to the applicant in refusing to allow the extension of time. For these reasons, Mr Martinsen's application is dismissed. 25 As to costs, there is a letter of 15 August 2003 in evidence which accompanied the decision and reasons of the Tribunal. The second paragraph of it reads: 'Under Section 44 of the above Act the party may appeal to the Federal Court of Australia on a question of law from any decision of the Tribunal. Any appeal to the Federal Court must be made within 28 days after a party receives a copy of the Tribunal's decision. The Federal Court may extend the time in which to lodge an appeal.' The next paragraph reads: 'An application fee of $1148 must be paid in order to lodge an appeal to the Federal Court. An application for waiver of the fee, however, may be made to the Court on the ground of financial hardship.' It then gives the address of the Federal Court's registry. 26 The letter makes no mention of exposure to costs in the event that an appeal lodged in the Federal Court is unsuccessful. In the ordinary course, the question of costs is dealt with by the Federal Court Rules, and generally a successful party is entitled to his costs. In this case, there are a number of matters which trouble me and which are sufficient for me to decline to make any order as to costs on this application. 27 The first is that there is no mention in the letter advising of appeal rights to the Federal Court of a potential exposure to costs. That in itself probably would not be sufficient to depart from the usual order as to costs, but in addition, in both the formulation by the SSAT of the decision which the SSAT considered and in the statement of its conclusion, the decision said to be the subject of review was not, in fact, the decision which was reviewable, namely, the entitlement to Austudy. The SSAT focused on a subsidiary question which was, in truth, an irrelevant consideration, namely, what was the precise allowable study period. It was irrelevant because on any view of what was the correct allowable study period, that element of the progress test was satisfied. 28 That difficulty was also repeated to a lesser degree in the reasons of the AAT. 29 There is, therefore, some basis for the fundamental misconception of what is a reviewable decision, which misconception, in my judgment, infects Mr Martinsen's application to this Court. 30 On the whole of the material and including those particular aspects I decline to make any order as to costs on this application. I certify that the preceding thirty (30) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Spender .