FEDERAL COURT OF AUSTRALIA Gabor v Secretary, Department of Education, Employment and Workplace Relations [2010] FCA 706 Citation: Gabor v Secretary, Department of Education, Employment and Workplace Relations [2010] FCA 706 Parties: RENEE D GABOR v SECRETARY, DEPARTMENT OF EDUCATION, EMPLOYMENT AND WORKPLACE RELATIONS File number(s): VID 710 of 2009 Judge: BROMBERG J Date of judgment: 6 July 2010 Catchwords: PRACTICE AND PROCEDURE – extension of time to institute an appeal from decision of the AAT – delay of over 6 years without sufficient explanation – need for finality of litigation – application dismissed Legislation: Administrative Appeals Tribunal Act 1975 (Cth), s 44 Administrative Decisions (Judicial Review) Act 1977 (Cth) Social Security Act 1991 (Cth), ss 8, 1223(1) Cases cited: Australian Education Union v Lawler (2008) 169 FCR 327 Booker v Commonwealth (FCA, 14 September 1988, Wilcox J unreported) Department of Social Security v Van Den Boogaart (1995) 37 ALD 619 Hughes v National Trustees Executors & Agency Co of Australasia Ltd [1978] VR 257 Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344 Kuljic v Secretary, Department of Social Security (1994) 33 ALD 121 Marsh v Department of Social Security (1986) 12 FCR 100 Minister for Immigration and Ethnic Affairs v Polat (1995) 57 FCR 98 Parker v The Queen [2002] FCAFC 133 Peacock v Human Rights & Equal Opportunity Commission [2003] FCAFC 50 Secretary, Department of Social Security v McLaughlin (1997) 81 FCR 35 Secretary, Department of Employment and Workplace Relations v Richards [2007] FCA 1710 Date of hearing: 11 May 2010 Place: Melbourne Division: GENERAL DIVISION Category: Catchwords Number of paragraphs: 24 Counsel for the Applicant: Applicant appeared in person Counsel for the Respondent: Ms P Heffernan Solicitor for the Respondent: Australian Government Solicitor IN THE FEDERAL COURT OF AUSTRALIA VICTORIA DISTRICT REGISTRY GENERAL DIVISION VID 710 of 2009 BETWEEN: RENEE D GABOR Applicant AND: SECRETARY, DEPARTMENT OF EDUCATION, EMPLOYMENT AND WORKPLACE RELATIONS Respondent JUDGE: BROMBERG J DATE OF ORDER: 6 JULY 2010 WHERE MADE: MELBOURNE THE COURT ORDERS THAT: 1. The application be dismissed. 2. The applicant pay the respondent's costs. 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 VICTORIA DISTRICT REGISTRY GENERAL DIVISION VID 710 of 2009 BETWEEN: RENEE D GABOR Applicant AND: SECRETARY, DEPARTMENT OF EDUCATION, EMPLOYMENT AND WORKPLACE RELATIONS Respondent JUDGE: BROMBERG J DATE: 6 july 2010 PLACE: MELBOURNE REASONS FOR JUDGMENT INTRODUCTION 1 This is an application for extension of time within which the applicant may institute an appeal pursuant to s 44(2A) of the Administrative Appeals Tribunal Act 1975 (Cth) ("the AAT Act"). 2 The applicant, Ms Gabor, was the subject of a finding of overpayment of a Newstart Allowance in the amount of $3086.18, which now stands as a debt to the Commonwealth under s 1223(1) of the Social Security Act 1991 (Cth) ("the SS Act"). The debt was raised as a result of the applicant reporting her casual earnings to Centrelink in a manner found by the Authorised Review Officer ("ARO") of Centrelink to have been inaccurate. The principal discrepancy concerned the question of whether certain allowances and reimbursements should be classified as 'income', as defined in s 8 of the SS Act. 3 On 5 February 2002, a decision was made by an ARO to raise and recover a debt of $3,086.18 ("the original debt"), said to arise from the overpayment of the Newstart Allowance to Ms Gabor for the period 22 May 2001 to 18 December 2001. Ms Gabor sought a review of the decision of the ARO in the Social Security Appeals Tribunal ("SSAT"), which affirmed the decision of the ARO on 25 June 2002. Ms Gabor subsequently appealed the decision of the SSAT to the Administrative Appeals Tribunal ("the AAT"), which affirmed the decision of the SSAT in a decision dated 11 March 2003 ("the AAT decision"): [2003] AATA 277. 4 The current application seeks to extend the time within which Ms Gabor may challenge the decision of the AAT. For the reasons which follow I have determined to dismiss the application. extension of time – the relevant principles 5 The Court's power to extend time is provided by s 44(2A) of the AAT Act, which states that an appeal by a person under s 44(1) or (2) shall be instituted: a) not later than the twenty eighth day on which a document setting out the terms of the decision of the Tribunal is given to the person or within such further time as the Federal Court of Australia (whether before or after the expiration of that day) allows… The AAT decision was made, and Ms Gabor notified of it, on 11 March 2003. In order to comply with s 44(2A)(a), Ms Gabor should have instituted her appeal by 8 April 2003. That was not done. 6 Ms Gabor's application for an extension of time was accompanied by a notice of appeal. Both documents were filed on 25 September 2009 – more than seventy seven months after the expiration of the 28 day limit. In those highly unusual circumstances, it falls to the Court to consider whether to allow further time pursuant to the discretion granted by s 44(2A)(a). 7 The principles to be considered by the Court in a matter such as this are drawn from various authorities, and summarised by Wilcox J in Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344 at 349. The principles guiding the Court in the exercise of its discretion to extend time under s 44(2A) of the AAT Act are that: (a) whilst special circumstances need not be shown, applications for an extension of time are not to be granted unless the Court is positively satisfied that it is proper to do so; the legislated time limits are not to be ignored. The applicant must show an "acceptable explanation for the delay", and it must be "fair and equitable in the circumstances" to extend time; (b) action taken by the applicant, other than by way of making an application for review, is relevant to the consideration of the question whether an acceptable explanation for the delay has been furnished; a distinction is to be drawn between a person who has made it known that the finality of the decision is contested and a person who has allowed other parties to believe that the matter was finally concluded. The reason for this distinction includes the need for finality of disputes. (c) any prejudice to the respondent in defending the proceedings that is caused by the delay is a material factor militating against the grant of an extension; (d) however, the mere absence of prejudice is not enough to justify the grant of an extension; (e) the merits of the substantial application are to be taken into account in considering whether an extension of time should be granted; and (f) considerations of fairness as between the applicants and other persons otherwise in a like position are relevant to the manner of exercise of the court's discretion. 8 These considerations, while considered in the context of the Administrative Decisions (Judicial Review) Act 1977 (Cth), have been held applicable to applications under s 44 of the AAT Act: Booker v Commonwealth (FCA, Wilcox J, 14 September 1988, unreported); Department of Social Security v Van Den Boogaart (1995) 37 ALD 619 at 620; Kuljic v Secretary, Department of Social Security (1994) 33 ALD 121 at 122. 9 As a Full Court noted in a similar context at [13] of Parker v The Queen [2002] FCAFC 133, the Court's power to extend time is a flexible power, designed to enable substantial justice to prevail over technical default. 10 However, the goal of enabling substantial justice or facilitating a "fair and equitable" result must be considered from the perspectives of all parties to an extension application. In Peacock v Human Rights & Equal Opportunity Commission [2003] FCAFC 50, Kiefel and Allsop JJ at [29] observed that: There is an interest of justice in the finality of litigation: Branir v Owston (citing Crampton v R (2000) 176 ALR 369, [15], [157]); Metwally v University of Wollongong [No 2] (1985) 60 ALR 68, 71; JB Chandler Investment Co Ltd (In voluntary liquidation) v Federal Commissioner of Taxation (1993) 47 FCR 588, 593 11 The importance of the finality of litigation, and the properly held assumption of a successful litigant that once a time limit has lapsed, that party is safe from further attack must be given due weight. How this consideration is to be addressed was dealt with by Spender, O'Loughlin and Dowsett JJ at paragraph [10] of their reasons in Parker. Their Honours quoted with approval the remarks of McInerney J in Hughes v National Trustees Executors & Agency Co of Australasia Ltd [1978] VR 257 at 262-263: "The object of the rule is to give the court a discretion to extend the time with the view to the avoidance of an injustice ... One object of fixing times under the rules is to achieve a timetable for the conduct of litigation in order to achieve finality of judicial determinations. A successful litigant has an interest in knowing that a claim against him has been determined and that he is no longer 'at risk' ... Higinbotham J, referred to the interest of litigants in achieving finality of determination when he said, in Youngman v Melbourne Storage Co Ltd (1885) 7 ALT 53 at 54: 'When the time has been allowed to elapse that gives the defendant a vested interest in the judgment, his vested interest ought not to be disturbed unless there is some good reason for disturbing it.' The phrase 'good reason' imports, I think, a consideration of whether justice as between the parties is best served by granting or refusing the extension sought ..." Explanation for the delay 12 In this case, there is no apparent reason for the long delay. The applicant's affidavit says that her "heart and mind" has been on a proceeding in the Supreme Court of Victoria. That matter was not expressly put as an explanation for the delay nor was it substantiated beyond the bare reference which I have recounted. 13 At the hearing, the applicant herself acknowledged that "six years is a long time to apply for an extension of time to file an untimely appeal". She alluded to a debt which has recently been raised against her by Centrelink on substantially the same basis as the original debt, being overpayment of Newstart Allowance as a result of a failure to report various categories of reimbursements and allowances as income. This debt ("the 2008 debt") was raised in 2008 and is in the amount of $4,151.19. Ms Gabor made a request of the Court in the following terms: If… this application is successful, I would ask your Honour to bar subsequent proceedings involved [sic] in the same issues between the same parties. 14 This request exposes Ms Gabor's idea that if she were successful in challenging the original debt, this Court would have the power not only to quash the original debt, but also to bar Centrelink from raising further debts against the applicant on the same grounds as those underpinning the original debt, including the 2008 debt. As an extension of this logic, it seems that Ms Gabor believes that she may be estopped from challenging the 2008 debt until such time as she has successfully challenged the original debt. This notion is clearly misconceived. Estoppel will not operate so as to contradict a statute or to extend the authority of a decision-maker beyond that given by the statute: Minister for Immigration and Ethnic Affairs v Polat (1995) 57 FCR 98 at 105-107 per Davies and Branson JJ; Australian Education Union v Lawler (2008) 169 FCR 327 at [185] per Jessup J (Lander J agreeing). 15 Ms Gabor's misconception about the law has apparently driven her re-agitation of the correctness of the AAT decision. That, however, provides no sufficient explanation for the applicant's delay in prosecuting her right to appeal. prejudice 16 A delay of more than six years may cause prejudice to the parties, particularly with regard to the availability of documentary evidence necessary to any reconsideration of the decision, should the appeal succeed. 17 The Court was advised that in keeping with usual procedures, the AAT file has been destroyed. While the respondent concedes that it has retained its copies of documents relevant to the AAT appeal, there is no certainty as to the completeness of the respondent's file. Even if the respondent's file is reasonably complete, it is distinctly possible that in any reconsideration of the AAT decision, resort may need to be had to the original records of Ms Gabor's employers. Given the passage of time, it is unlikely that records of that kind will be readily available. 18 There is therefore a real possibility of prejudice, including to the respondent. In any event, the mere absence of prejudice will not justify the grant of an extension. Merits of the intended appeal 19 I am satisfied that there may be merit in the appeal which the applicant seeks to agitate, particularly as regards the meaning of "income" for the purposes of s 8 of the SS Act: Marsh v Department of Social Security (1986) 12 FCR 100 at 104; Secretary, Department of Employment and Workplace Relations v Richards [2007] FCA 1710 at [41]-[48]; Secretary, Department of Social Security v McLaughlin (1997) 81 FCR 35. 20 The AAT rejected the applicant's contention that allowances paid to her by various employers for travel, telephone calls and training should not have been regarded as income. It did that without any consideration of the cases to which I have referred and without any analysis of the definition of income in the SS Act. The AAT may well have erred in that conclusion and if it did, its error would have constituted an error of law appeallable to this Court pursuant to s 44 of the AAT Act. However, it is unnecessary that I form a definitive view as to the prospects of the applicant on an appeal. For the purposes of this application, I will assume that Ms Gabor has a good prospect of successfully prosecuting her appeal. conclusion 21 The assumption I have just made as to Ms Gabor's prospects on appeal does not outweigh the powerful considerations which support the conclusion that this application must be dismissed. 22 A delay of over six years is an insurmountable barrier for the applicant's application. Only the rarest of exceptional circumstances could justify the grant of an application for an extension of time involving such a long delay. 23 The interest of justice in the finality of litigation is a powerful impediment which of itself would deny the applicant's success. Additionally, the applicant has failed to provide any sufficient explanation for her delay. Her motivation for agitating her application is misconceived and there may be prejudice to the respondent. 24 It would not be fair and equitable to grant Ms Gabor's application, and it will be dismissed. The usual order is that costs are paid by the unsuccessful party. No submissions were made to the contrary. I will order that Ms Gabor pay the respondent's costs. I certify that the preceding twenty-four (24) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Bromberg. Associate: Dated: 6 July 2010