FEDERAL COURT OF AUSTRALIA Jones v Administrative Appeals Tribunal [2010] FCA 363 Citation: Jones v Administrative Appeals Tribunal [2010] FCA 363 Appeal from: Jones and Secretary, Department of Education, Employment and Workplace Relations [2009] AATA 623 Parties: HELEN CLAIRE JONES v ADMINISTRATIVE APPEALS TRIBUNAL, SOCIAL SECURITY APPEALS TRIBUNAL and SECRETARY, DEPARTMENT OF EDUCATION, EMPLOYMENT AND WORKPLACE RELATIONS File number: NSD 1180 of 2009 Judge: YATES J Date of judgment: 12 April 2010 Legislation: Administrative Appeals Tribunal Act 1975 (Cth), s 44(2A) Social Security Act 1991 (Cth), ss 23(5C), 593(1)(g)(i), 729 Cases cited: Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344 Date of hearing: 12 April 2010 Place: Sydney Division: GENERAL DIVISION Category: No catchwords Number of paragraphs: 32 Solicitor for the Applicant: The applicant was self represented Solicitor for the Third Respondent: Dr S Thompson of Sparke Helmore Lawyers IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY GENERAL DIVISION NSD 1180 of 2009 ON APPEAL FROM THE ADMINISTRATIVE APPEALS TRIBUNAL BETWEEN: HELEN CLAIRE JONES Applicant AND: ADMINISTRATIVE APPEALS TRIBUNAL First Respondent SOCIAL SECURITY APPEALS TRIBUNAL Second Respondent SECRETARY, DEPARTMENT OF EDUCATION, EMPLOYMENT AND WORKPLACE RELATIONS Third Respondent JUDGE: YATES J DATE OF ORDER: 12 APRIL 2010 WHERE MADE: SYDNEY THE COURT ORDERS THAT: 1. The application for an extension of time within which to institute an appeal from the decision of the first respondent given on 21 August 2009 be refused. 2. The third respondent's notice of motion be dismissed. 3. The costs of the third respondent's notice of motion be costs in this application. 4. The applicant pay the third respondent's costs of the application. Note:Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. The text of entered orders can be located using Federal Law Search on the Court's website. IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY GENERAL DIVISION NSD 1180 of 2009 ON APPEAL FROM THE ADMINISTRATIVE APPEALS TRIBUNAL BETWEEN: HELEN CLAIRE JONES Applicant AND: ADMINISTRATIVE APPEALS TRIBUNAL First Respondent SOCIAL SECURITY APPEALS TRIBUNAL Second Respondent SECRETARY, DEPARTMENT OF EDUCATION, EMPLOYMENT AND WORKPLACE RELATIONS Third Respondent JUDGE: YATES J DATE: 12 APRIL 2010 PLACE: SYDNEY REASONS FOR JUDGMENT (Revised from transcript) 1 The applicant applies for an extension of time in which to file a notice of appeal from a decision of the first respondent, the Administrative Appeals Tribunal, given on 21 August 2009. This decision affirmed a decision of the second respondent, the Social Security Appeals Tribunal, made on 29 March 2009 which, in turn, affirmed a decision made on 4 December 2008 to cancel the applicant's newstart allowance from the date she reached the pension age. 2 The application was filed on 19 October 2009 and is supported by an affidavit, made by the applicant, on 14 October 2009. The applicant appeared in person today. The application is opposed by the third respondent. 3 On 18 November 2009 the third respondent filed a notice of motion seeking summary dismissal of the application or an order that it be permanently stayed, on the ground that the appeal has no reasonable prospects of success or is an abuse of process. If the application for an extension of time is allowed, the third respondent seeks an order that the appeal be summarily dismissed. 4 A party to a proceeding before the first respondent may appeal to this court on a question of law, from any decision given in that proceeding. However, an appeal must be instituted no later than the 28th day after the day on which a document, setting out the terms of the decision, is given to the person, or within such further time as this court, whether before or after the expiration of that day, allows: s 44(2A), Administrative Appeals Tribunal Act 1975 (Cth). 5 The date on which the document setting out the terms of the first respondent's decision was given to the applicant is not in evidence. On the assumption that the date was 21 August 2009, being the date of the decision itself, an appeal to this court should have been instituted no later than 18 September 2009. I was informed by the applicant today that, to the best of her knowledge, she received a copy of the first respondent's decision about two weeks after the hearing. The hearing was on 18 August 2009. Even on that basis, the applicant is out of time. She confirmed this morning her own view that she is out of time. It is plain on such material as is before me that by 19 October 2009, the time prescribed under the Act for instituting an appeal had passed. 6 It follows that the applicant needs leave to institute, in this court, the appeal she wishes to bring. The principles relevant to the exercise of the discretion to extend time in circumstances such as the present are conveniently summarised in Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344 at 348-349. It is not necessary for me to set out those principles. 7 In her affidavit, the applicant advanced three reasons why an extension of time should be granted. First, she submitted that an extension of time should be granted because the decision to which the application relates involves a question of law, or matters of law, that are of general public importance in the administration of the justice system in Australia, that adversely affect the rights, interests and legitimate expectations of the Australian public. Secondly, she submits that the matters she seeks to raise have significant public interest and require the resolution of questions of law, which justifies the granting of an extension of time. Thirdly, she submits that she has encountered substantial delay in making the application, as it took her time to look for help to type the documents, as she is on her own, and help is not easy to find. 8 The last reason, of itself, is not an adequate or sufficient reason to grant the leave that is sought. The first two reasons may provide adequate and sufficient reasons, in a given case, to grant such leave. Much will depend on the question or questions of law that are said to be involved in the proposed appeal. 9 It therefore becomes necessary to give consideration to the questions of law and grounds of appeal that are proposed to be put forward. The applicant has annexed a draft notice of appeal to her affidavit. 10 Before turning to consider the draft notice of appeal, it is necessary to give consideration to the context in which this application arises. 11 The applicant was born on 24 April 1945. Up until 24 October 2008 she was receiving a newstart allowance. The payment of a newstart allowance is provided for in Chapter 2, Part 2.12 of the Social Security Act 1991 (Cth). Section 593 of the Social Security Act sets out the qualification criteria for a newstart allowance. 12 One criterion that is mandatory for all recipients of a newstart allowance is that the person satisfy a specific age qualification. Section 593(1)(g)(i) provides, as follows: 593 Qualification for newstart allowance (1) Subject to sections 596, 596A, 597 and 598, a person is qualified for a newstart allowance in respect of a period if: … (g) throughout the period the person: (i) subject to subsection (2B), is at least 21 years of age and has not reached the pension age; … 13 Section 593(2B) has been repealed. According to s 593(1)(g)(i), a person is not entitled to a newstart allowance once he or she has reached the pension age. Section 23 of the Social Security Act defines the pension age for the purposes of that Act. The pension age for men and women is different. In the case of women the pension age varies, depending on the period within which the woman was born. Section 23(5C) provides as follows: 23 General definitions … (5C) A woman born within the period specified in column 2 of an item in the following Table reaches pension age when she turns the age specified in column 3 of that item. Table—Pension age for women Column 1 Column 2 Column 3 Item no. Period within which woman was born (both dates inclusive) Pension age 1. From 1 July 1935 to 31 December 1936 60 years and 6 months 2. From 1 January 1937 to 30 June 1938 61 years 3. From 1 July 1938 to 31 December 1939 61 years and 6 months 4. From 1 January 1940 to 30 June 1941 62 years 5. From 1 July 1941 to 31 December 1942 62 years and 6 months 6. From 1 January 1943 to 30 June 1944 63 years 7. From 1 July 1944 to 31 December 1945 63 years and 6 months 8. From 1 January 1946 to 30 June 1947 64 years 9. From 1 July 1947 to 31 December 1948 64 years and 6 months 14 It can be seen by reference to item 7 of the table in s 23(5C) that, in the case of women born within the period 1 July 1944 to 31 December 1945, the pension age is 63 years and 6 months. The applicant was born within that period. On 24 October 2008 she had reached the age of 63 years and 6 months. She had, therefore, reached the pension age on that date. It follows that, from that date, she ceased to be qualified to receive a newstart allowance. This is the reason why the applicant's newstart allowance was cancelled. 15 Since 24 October 2008, she has been in receipt unwillingly of an age pension. In the hearing before the second respondent, the applicant provided a statement of facts. In that statement of facts, she said: Around mid-October last year I was advised my NSA payment was to cease due to age pension. The above-mentioned is the fact I had reached the age where I had to accept age pension. Set by law and I could no longer be a NSA client like before, lodging every two weeks my forms. I have now been on the age pension for nearly five months. I am not happy with this and feel lost. My daily life has changed the loss of the NSA has left me devastated. I cannot accept the situation, and it is for this very reason I am asking for my NSA to be returned even though the law says other wise. [Errors in original] After recording certain matters, including her desire to get a job and start work as soon as possible, she said: I do not think it fair I am on the age pension. This makes me very mad indeed. I am eager to move on in my life. Please ensure this happens. After setting out certain other facts on which she relied, the applicant said: I am going to plead here: give back NSA even if it's on a trial basis as the age pension is no good for me. I am able to work and full time. Please consider all before you make a decision re me. I want to be returned to the job network on NSA and receive all assistance as before not on a special age program. I hope the Tribunal members hear and listen to what I am saying here and act with compassion and restore me back to the NSA. I am an active woman capable of employment also with skilling. As you make your decision just thimk about me and put yourselves in my shoes, it's hard I know to even contemplate. But I need any chance you can give. … I will finish now in the hope you will answer my plea and I go back to doing what I did before the age pension. [Errors in original] 16 The applicant expressed the same sentiments in court this morning when addressing me on the grounds of her application. 17 I should add that the third respondent has a discretion conferred by s 729 of the Social Security Act to determine that a special benefit should be granted to a person during a period. Section 729 relevantly provides as follows: 729 Qualification for special benefit (2) The Secretary may, in his or her discretion, determine that a special benefit should be granted to a person for a period if: (a) no social security pension is payable to the person during the period; and (b) no other social security benefit is payable to the person for the period; … 18 Thus, a special benefit is only available to a person who cannot be paid any other social security pension or benefit. The applicant can be paid, and is being paid, an age pension even though she does not wish to receive benefits under the Social Security Act as an age pensioner. 19 With this background in mind, I now turn to consider the grounds raised in the draft notice of appeal. 20 The draft notice of appeal proffers the following as questions of law that are said to arise from the first respondent's decision: (a) Whether Centrelink made error in cancelling my Newstart Allowance without giving me an option to elect to be transferred to Special Benefit or Age pension. (b) Whether subparagraph 593(1)(g)(ii) of the Social Security Act 1991 states a provision that a person ceases to receive Newstart Allowance when she/he reaches the pension age. (c) Whether s.23 (5C) of the Act states a provision that a woman must retire or it is compulsary to retire when she turns the age specified in column 3 of the table under the Act. (d) Whether the Applicant has an option not to retire even when she turns the aged pension age or the age specified in the Table-Pension Age for Women under s.23(5C) of the Act. (e) Whether s. 23(5C) of the Act forces a person or the Applicant into retirement without an option to elect. (f) Whether the Applicant could be granted a relief to be transferred to Special Benefit as the Applicant is not ready to retire yet and should be able to elect. (g) Whether the determination that a special benefit should be granted to a person under s.729(2) of the Act depends on the discretion of the Secretary to take into account and consideration that I was not given an option to elect to be transferred to Special Benefit before transferring to Age Pension when my payment was stopped and as such I had no other option. [Errors in original] 21 The grounds of appeal are set out as follows: (a) The Administrative Appeals Tribunal erred in law by failing to determine that Social Security Appeals Tribunal failed to find that Centrelink made error in cancelling my Newstart Allowance without giving me an option to elect to be transferred to Special Benefit or Age Pension. (b) The Administrative Decisions Tribunal erred in law by failing to correctly apply or misapplied the wrong principle of subparagraph 593(1)(g)(ii) of the Social Security Act 1991, which does not state a provision that a person ceases to receive Newstart Allowance when she/ he reaches the pension age. (c) The Administrative Decisions Tribunal erred in law by failing to correctly apply or misapplied the wrong principle of s.23 (5C) of the Act that a woman reaches pension age when she turns the age specified in column 3 of the table under but does not state a provision that a woman must retire or it is compulsary to retire when she turns the age specified in column 3 of the table under the Act. (d) The Administrative Decisions Tribunal erred in law when it failed to correctly apply or misapplied a wrong principle of s.729 (2) of the Act that the Secretary may in his or her discretion determine that a special benefit should be granted to a person for a period if no social security pension is payable to the person during the period; and no other social security benefit is payable to the person for the period as I was not given an option to elect to be transferred to Special Benefit before transferring to age pension when my payment was stopped and as such I had no other option. (e) The Administrative Appeals Tribunal erred in law by failing to take into account and consideration to grant me an exemption to elect not to retire yet and be transferred to Special Benefit as I am not ready to retire yet and should be able to elect, which denies me of fairness. (f) The Administrative Appeals Tribunal erred in law by failing to take into account and consideration that Centrelink failed to give me an option to elect to be transferred to Special Benefit before transferring to Age Pension when my payment was stopped and as such I had no other option. (g) The Administrative Appeals Tribunal erred in law when it affirmed the decision of the Social Security Appeals Tribunal that I am not eligible for Special Benefit, which affects my rights, interests, and legitimate expectations. [Errors in original] 22 In the course of the hearing, the applicant made clear that in drafting the notice of appeal she intended to refer to s 593(1)(g)(i) of the Social Security Act, not s 593(1)(g)(ii) which imposes certain residential requirements on persons seeking a newstart allowance. I have considered the draft notice of appeal as if it had been amended to reflect that change. 23 In my view, the grounds of appeal proceed on a number of fundamental misconceptions. 24 First, once a person has reached the pension age, as defined for that person in the Social Security Act, then he or she is no longer qualified to receive a newstart allowance. The age requirement in s 593(1)(g)(i) is a necessary qualification imposed by the Social Security Act. Once a person has reached the pension age, that person may or may not be entitled, depending on his or her personal circumstances, assessed in accordance with other requirements, to receive a pension or other benefit under the Social Security Act. But it is clear beyond argument that, not being qualified to receive a newstart allowance, a person does not have an option to continue to retain that allowance. 25 Secondly, in defining the pension age, s 23(5C) does not talk in terms of retirement. The applicant's draft notice of appeal is overlaid with the notion that "pension age" is defined by reference to the concept of retirement from work. It is plain, however, that the definition of "pension age" relevant to the applicant, is one based on the specification of age alone. 26 Thirdly, the third respondent's discretion to determine that a special benefit be granted to a person is conditioned on the requirement that no social security pension, or other social security benefit, is payable to the person. If that requirement is not met in a given case, then the power conferred by s 729 cannot be exercised. In the case of the applicant, the requirement was not met. She is, and was, entitled to be paid an age pension, even though she would like to be paid other allowances or benefits which, in her case, the Social Security Act does not provide. 27 Fourthly, and in a similar vein, the grounds of appeal are predicated on the asserted existence of elections and options. The applicant pleads that she has an option to elect to be transferred to a special benefit or age pension; an option to elect to be transferred to a special benefit before transferring to an age pension; and an option to elect not to retire yet and be transferred to a special benefit. None of the options or elections to which the proposed grounds of appeal relate are entitlements conferred on the applicant by the Social Security Act. She does not have, more generally, the option or election of choosing between pensions, benefits and allowances under the Social Security Act, as best suits her desires or perceived needs. The only entitlements that the applicant has, in this regard, are those that are specifically conferred on a person in her position by that Act. 28 Although the applicant has spoken eloquently, and indeed passionately, about her situation, in my view none of the grounds of appeal raised in the draft notice of appeal can succeed. The terms of s 593(1)(g)(i), s 23(5C) and s 729(1)-(2) are clear. The applicant is not entitled, and was not entitled, from 24 October 2008 to a newstart allowance, because on that day she had reached the pension age applicable to her. She is not a person in respect of whom the third respondent can exercise a discretion to grant a special benefit. Unfortunately for her, she does not have the options and elections to which the grounds of appeal relate. It follows that the first respondent did not err, as alleged, in the draft notice of appeal. 29 In light of the fact that none of the grounds of appeal can succeed, leave to extend the time for bringing an appeal should be refused. 30 It is unnecessary to deal with the notice of motion filed by the third respondent. The notice of motion should be dismissed, but the costs of the motion should be costs in the application. 31 The third respondent seeks an order for costs. In the normal course, costs would follow the event. Ms Jones resists an order for costs, on the basis of her current financial circumstances. Unfortunately, in my view, that is not a sufficient basis for not making an order for costs against her. I propose to make an order that the applicant pay the third respondent's costs. It will be a matter for the third respondent as to what, if any, steps it may take in that regard. 32 The orders of the court will be: 1. The application for an extension of time within which to institute an appeal from the decision of the first respondent given on 21 August 2009 be refused. 2. The third respondent's notice of motion be dismissed. 3. The costs of the third respondent's notice of motion be costs in this application. 4. The applicant pay the third respondent's costs of the application. I certify that the preceding thirty-two (32) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Yates. Associate: Dated: 16 April 2010