FEDERAL COURT OF AUSTRALIA Ubachs v Secretary of the Department of Family & Community Services of the Commonwealth [2004] FCA 310 PRACTICE AND PROCEDURE - application for an extension of time within which to appeal from a decision of the Administrative Appeals Tribunal – whether the appeal has any prospect of success – whether a question of law has been raised Administrative Appeals Tribunal Act 1975 s 44 Gallo v Dawson (1990) 93 ALR 479 - cited Re Commonwealth of Australia; Ex parte Marks (2000) 177 ALR 491 - cited Herald & Weekly Times Ltd v Gregory D Williams (2003) 201 ALR 489 - cited DANNY UBACHS V SECRETARY OF THE DEPARTMENT OF FAMILY AND COMMUNITY SERVICES OF THE COMMONWEALTH V 11 OF 2004 MERKEL J 19 MARCH 2004 MELBOURNE IN THE FEDERAL COURT OF AUSTRALIA VICTORIA DISTRICT REGISTRY V11 OF 2004 BETWEEN: DANNY UBACHS APPLICANT AND: SECRETARY OF THE DEPARTMENT OF FAMILY AND COMMUNITY SERVICES OF THE COMMONWEALTH RESPONDENT JUDGE: MERKEL J DATE OF ORDER: 19 MARCH 2004 WHERE MADE: MELBOURNE THE COURT ORDERS THAT the application for an extension of time within which to file and serve a notice of appeal be dismissed. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. IN THE FEDERAL COURT OF AUSTRALIA VICTORIA DISTRICT REGISTRY V11 OF 2004 BETWEEN: DANNY UBACHS APPLICANT AND: SECRETARY OF THE DEPARTMENT OF FAMILY AND COMMUNITY SERVICES OF THE COMMONWEALTH RESPONDENT JUDGE: MERKEL J DATE: 19 MARCH 2004 PLACE: MELBOURNE REASONS FOR JUDGMENT 1 In this matter the applicant has applied for an extension of time in which to file a notice of appeal in relation to a decision of the Administrative Appeals Tribunal ("the AAT"). 2 On 19 August 2002 a delegate of the respondent decided to raise and recover a debt of $4708.69 from the applicant. That amount had been paid to the applicant as austudy between 23 November 2001 and 30 June 2002, during which time the applicant was not entitled to receive austudy. On 25 October 2002 an authorised review officer varied the decision by reducing the amount to $3081.65, which represented the money paid to the applicant between 8 February 2002 to 30 June 2002. On 18 March 2003 the Social Security Appeals Tribunal ("the SSAT") affirmed that decision. On 14 October 2003 the AAT affirmed the decision of the SSAT. 3 The applicant filed a form dated 17 November 2003 in the Court's registry seeking a fee waiver in relation to his proposed notice of appeal, which was subsequently filed on 1 December 2003. Section 44(1)(a) of the Administrative Appeals Tribunal Act 1975 ("the AAT Act") requires that appeals from the AAT to the Federal Court must be instituted no later than the twenty-eighth day after the AAT's decision is furnished to the person appealing. The applicant therefore seeks an extension of time. 4 The applicant has given an explanation for at least some of the delay. That explanation is that he was awaiting the outcome of his fee waiver application, since he did not wish to proceed unless that application was successful. However it appears that the fee waiver application itself was filed after the time for appealing had expired. Despite this, I accept that the applicant's reason for his delay may be a sufficient one for the purpose of extending time, provided that the other matters to be considered are favourable to him. 5 One of the matters which must be considered in an application for an extension of time in which to appeal is the prospect of success of the appeal itself. If the Court is satisfied that the appeal has no prospect of success then an extension of time is unlikely to be granted: see Gallo v Dawson (1990) 93 ALR 479 at 480; Re Commonwealth of Australia; Ex parte Marks (2000) 177 ALR 491 at 495 ([13]); Herald & Weekly Times Ltd v Gregory D Williams (2003) 201 ALR 489 at 495 ([19]). 6 Before the AAT the applicant accepted that he had been overpaid. The issue in dispute was whether the applicant's debt should be waived. On appeal he seeks to argue that the AAT failed to properly exercise its power to reduce or waive the debt. In its decision the AAT dealt with that issue as follows: "15. On the question of recovery of the debt, s1237AAD of the [Social Security] Act provides: 1237AAD The Secretary may waive the right to recover all or part of a debt if the Secretary is satisfied that: (a) the debt did not result wholly or partly from the debtor or another person knowingly: (i) making a false statement or false representation; or (ii) failing or omitting to comply with a provision of this Act or the 1947 Act; and (b) there are special circumstances (other than financial hardship alone) that make it desirable to waive; and (c) it is more appropriate to waive than to write off the debt or part of the debt. 16. There are limited circumstances where the discretion under s1237AAD of the Act is to be exercised. The circumstances must be unusual, uncommon or exceptional (Re Beadle and Director-General of Social Security (1984) 6 ALD 1; Groth v Secretary, Department of Social Security (1996) 40 ALD 541). 17. The applicant is living on a limited and variable income. However, he has no other financial commitments and did not cite any exceptional circumstances that would warrant a favourable exercise of the discretion. The Tribunal must balance the several factors that arise in cases where people seek relief from the repayment of monies owed to the Commonwealth. These include the fact that they have received public moneys to which they were not entitled, the circumstances in which the debt arose and the prospects of recovery in the context of the person's overall financial circumstances: Director-General of Social Services v Hales (1983) 47 ALR 281. Taking into account the applicant's overall circumstances, the Tribunal did not consider that the basis of waiver was made out. It would appear from the applicant's circumstances that a low rate of repayment will need to be negotiated by Centrelink. 18. The applicant referred to notices sent by Centrelink being inadequate to sufficiently alert recipients to their responsibility to advise matters such as a change in enrolment. He also said that he did not receive the notices that were said to have been sent in December 2001 and January 2002. However, the Tribunal was satisfied that the payment of austudy to the applicant in 2002 did not occur solely due to an administrative error made by the Commonwealth, so that s1237A of the Act, which allows another basis for waiver of a debt, does not arise for consideration." 7 Under s 44(1) of the AAT Act the applicant may only appeal to the Court on a question of law. The applicant's complaints about the decision of the AAT relate to the merits rather than any error of law by the AAT. I have carefully considered the decision and am not satisfied that the applicant has any arguable case of legal error by the AAT. The AAT stated the requirements of the relevant legislation, considered the circumstances of the case, and formed a view on the merits. While different tribunals may form different views on the merits, there is no apparent error of law made by the AAT in arriving at the view that it did on both of the relevant provisions dealing with the waiver of social security debts. 8 Accordingly I am not satisfied that the appeal has any prospect of success. It is therefore appropriate to refuse the applicant's application for an extension of time in which to file a notice of appeal. That application is dismissed. I certify that the preceding eight (8) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Merkel. Associate: Dated: 23 March 2004 Counsel for the Applicant: Applicant appeared in person Counsel for the Respondent: Solicitor appearing for the respondent Ms M Stratos Solicitor for the Respondent: Department of Family and Community Services Date of Hearing: 19 March 2004 Date of Judgment: 19 March 2004