FEDERAL COURT OF AUSTRALIA Qing Quan Yao v Administrative Appeals Tribunal [2011] FCA 171 Citation: Qing Quan Yao v Administrative Appeals Tribunal [2011] FCA 171 Parties: QING QUAN YAO v ADMINISTRATIVE APPEALS TRIBUNAL and SECRETARY, DEPARTMENT OF EDUCATION, EMPLOYMENT AND WORKPLACE RELATIONS File number: NSD 116 of 2011 Judge: FOSTER J Date of judgment: 2 March 2011 Catchwords: APPEAL AND NEW TRIAL – application for extension of time within which to appeal from a decision of a single judge – relevant principles discussed – no "special reasons" established – applicant failed to appear – application dismissed Legislation: Administrative Appeals Tribunal Act 1975 (Cth) s 42B(1) Federal Court Rules O 52 r 15 Federal Court of Australia Act 1976 (Cth) ss 25(2), 25(2B)(bb)(ii) and 25(2BA) Cases cited: Qing Quan Yao v Administrative Appeals Tribunal [2011] FCA 11 related Jess v Scott (1986) 12 FCR 187 applied Parker v The Queen [2002] FCAFC 133 applied Re Williams and Australian Electoral Commission (1995) 38 ALD 366 cited SZMFI v Minister for Immigration and Citizenship [2010] FCA 386 applied Vu v Minister for Immigration and Citizenship (2008) 101 ALD 211 applied Date of hearing: 2 March 2011 Place: Sydney Division: GENERAL DIVISION Category: Catchwords Number of paragraphs: 32 Counsel for the Applicant: The Applicant did not appear Counsel for the First Respondent: The first respondent submitted to any order the Court might wish to make save as to costs and was excused from attendance at the hearing Solicitor for the Second Respondent: Ms D Watson of Australian Government Solicitor IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY GENERAL DIVISION NSD 116 of 2011 BETWEEN: QING QUAN YAO Applicant AND: ADMINISTRATIVE APPEALS TRIBUNAL First Respondent SECRETARY, DEPARTMENT OF EDUCATION, EMPLOYMENT AND WORKPLACE RELATIONS Second Respondent JUDGE: FOSTER J DATE OF ORDER: 2 MARCH 2011 WHERE MADE: SYDNEY THE COURT ORDERS THAT: 1. The Application made by the applicant for an extension of time within which he might file a Notice of Appeal from the judgment of Katzmann J delivered on 19 January 2011 (Qing Quan Yao v Administrative Appeals Tribunal [2011] FCA 11) be dismissed. 2. The applicant pay the second respondent's costs of and incidental to that 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 116 of 2011 BETWEEN: QING QUAN YAO Applicant AND: ADMINISTRATIVE APPEALS TRIBUNAL First Respondent SECRETARY, DEPARTMENT OF EDUCATION, EMPLOYMENT AND WORKPLACE RELATIONS Second Respondent JUDGE: FOSTER J DATE: 2 MARCH 2011 PLACE: SYDNEY REASONS FOR JUDGMENT 1 The applicant seeks an extension of time within which to file a Notice of Appeal from a judgment of a single judge of this Court given on 19 January 2011 (Qing Quan Yao v Administrative Appeals Tribunal [2011] FCA 11). The applicant's application for an extension of time was filed on 10 February 2011. It was, therefore, filed one day outside the time limited by the Federal Court Rules for the filing of his appeal. 2 When the matter was called on for hearing before me this morning, the applicant did not appear. The Court officer then called the applicant's name outside the Courtroom but there was still no appearance either by or on behalf of the applicant. 3 The applicant was notified of today's fixture on 15 February 2011. On that day, he was provided with a copy of the Orders which I made in Chambers on that day. Those Orders were designed to ready the matter for hearing. Paragraph 5 of those Orders specified that the hearing date was fixed for 10.15 am today before me. 4 In those circumstances, I propose to dismiss the Application pursuant to ss 25(2), 25(2B)(bb)(ii) and 25(2BA) of the Federal Court of Australia Act 1976 (Cth). The combined effect of those sections is that, if an applicant fails to attend a hearing in respect of an application such as the Application with which I am presently dealing, the Court may dismiss the application out of hand without considering the merits of the application. Those provisions are designed to bring to an end proceedings which the moving party does not intend to press as soon as practicable and at minimum cost to the other party. 5 In addition, I propose to give reasons as to why the applicant's application for an extension of time would have failed in any event. 6 The Administrative Appeals Tribunal (the AAT) had dismissed the applicant's application for review of a decision of the Social Security Appeals Tribunal (the SSAT) pursuant to s 42B(1) of the Administrative Appeals Tribunal Act 1975 (Cth). That section enables the AAT to dismiss an application if it is satisfied that it is frivolous or vexatious. The AAT took the view that there was no benefit to the applicant for him to proceed with his appeal before it, given certain concessions made by Counsel for the second respondent (Centrelink) at the hearing before the AAT, so that, in this sense, it was "frivolous or vexatious" within the meaning of that expression in s 42B. The AAT referred to and relied upon Re Williams and Australian Electoral Commission (1995) 38 ALD 366 at [38]–[39] (p 374). 7 The primary judge reached the same conclusion. At [47] of her Reasons, her Honour said: 47 I am satisfied that there was no legitimate purpose in pursuing the application before the AAT and that the AAT was justified in dismissing it on that account. Although the power to dismiss under s 42B(1) is to be exercised cautiously and sparingly, this was a proper case in which to do so. Accordingly, the appeal should be dismissed with costs. 8 The applicant's original complaint was that Centrelink had wrongly decided to withhold payments of his Newstart allowance for a period of eight weeks in 2008 because of three participation failures committed by him. That decision made by Centrelink was affirmed by the review officer and then by the SSAT. The applicant had also complained that Centrelink had not paid his Newstart allowance for the fortnight commencing on 14 June 2008 and ending on 27 June 2008 which was apparently outside the preclusion period of eight weeks covered by the Centrelink decision which was ultimately reviewed by the SSAT. 9 Notwithstanding that a decision to withhold payments from the applicant had been made by Centrelink, that decision had never been implemented. With the exception of the payments referable to the fortnight 14 June 2008 to 27 June 2008, the applicant received all of his Newstart entitlements without interruption until he moved from Newstart to the Austudy scheme in February 2010. He was paid his allowance for the two weeks commencing 14 June 2008 as soon as Centrelink's error was discovered. 10 At the hearing in the AAT, Centrelink's advocate submitted that, although the SSAT had been correct to uphold Centrelink's original decision, the question was "moot" as the applicant was not in debt to the Commonwealth, the Commonwealth could not apply the eight week non-payment period to his Austudy allowance and the Commonwealth could not otherwise "raise a debt" in its favour against the applicant. 11 The applicant argued at the AAT hearing that, in fact, in June 2008, he had not been paid two weeks of his Newstart allowance. Centrelink's advocate conceded that this had happened but claimed that the unpaid allowance had subsequently been paid. 12 The case made by Centrelink in the AAT, therefore, was that the applicant had received all amounts to which he was entitled. On Centrelink's case, he had been overpaid to the extent of eight weeks' payments. Centrelink conceded that the Commonwealth could not recover the amounts overpaid or deduct them from future social welfare payments which may become payable to the applicant. 13 In light of these facts, the AAT dismissed the applicant's application. The Decision of the Primary Judge 14 The primary judge held that the finding made by the AAT that the Newstart allowance had never been interrupted was a finding which was not supported by any evidence led before the AAT. However, at [29] of her Reasons, her Honour found that this finding nonetheless correctly reflected the facts. Her Honour allowed Centrelink to tender evidence before her which had not been led at the Tribunal hearing which established that the applicant had continued to receive all of his entitlements during the preclusion period. This was a course which her Honour was entitled to take. 15 At [29] of her Reasons, her Honour said: 29 The evidence consisted of an affidavit from Andrew Wingrave, a policy officer with the Compliance Framework Team of Centrelink. Mr Wingrave testified that he had accessed the Centrelink database that records details of entitlements and payments to Centrelink customers. Annexed to the affidavit were computerised payment records relating to Mr Yao showing, amongst other things, that at no time since Centrelink made its decision to impose the eight-week non-payment period was Mr Yao in fact not paid his allowance each fortnight. The records also disclosed some earlier payments of arrears relating to earlier periods in which he had apparently not been paid. Mr Yao ultimately accepted that the records produced by Mr Wingrave accurately recorded the payments made to him. That evidence established that at all material times Mr Yao had been paid the newstart allowance to which he was entitled. It is unquestionably convenient to make a finding of fact to this effect, which would certainly not be inconsistent with the finding made by the AAT. The Secretary submitted that it was appropriate for the Court to do so. To require the matter to return to the AAT for it to make the same factual findings would be an unjustifiable burden on both parties. For this Court to make the relevant factual findings is an expeditious and efficient means of resolving the matter. Having regard to the evidence of Mr Wingrave I therefore find that the Secretary has not in fact imposed any penalty on Mr Yao and, in particular, has not withheld from him any payment of newstart allowance for eight weeks, the subject of the original Centrelink decision. 16 At [30], her Honour also found that Centrelink had made the payment for the two weeks in June 2008 which had previously not been paid to the applicant. 17 At [31]–[36], her Honour discussed the question of whether the Newstart allowance payments made by Centrelink could ever be recovered by the Commonwealth from the applicant. At [35], her Honour held that the second respondent was obliged to waive any debt that had arisen. 18 At [37] of her Reasons, her Honour held that the eight week preclusion period in respect of the applicant's Newstart allowance could not be taken into account in respect of his Austudy payments. Her Honour also recorded in that paragraph that Centrelink's advocate had conceded as much before the Tribunal. Consideration 19 The relevant part of the Rules of Court is O 52 r 15 which is in the following terms: 15 Time for filing and serving notice of appeal (1) The notice of appeal shall be filed and served: (a) within 21 days after: (i) the date when the judgment appealed from was pronounced; (ii) the date when leave to appeal was granted; or (iii) any later date fixed for that purpose by the court appealed from; or (b) within such further time as is allowed by the Court or a Judge upon application made by motion upon notice filed within the period of 21 days referred to in the last preceding paragraph. (2) Notwithstanding anything in the preceding subrule, the Court or a Judge for special reasons may at any time give leave to file and serve a notice of appeal. (3) An application for leave under subrule (2) must: (a) be in accordance with Form 54A; and (b) include a statement indicating whether the applicant wishes to have the application dealt with without an oral hearing; and (c) be accompanied by an affidavit setting out: (i) the nature of the matter; and (ii) the factual and legal issues in dispute; and (iii) the reasons why leave should be given. (4) If a respondent objects to an application being dealt with without an oral hearing, the respondent must: (a) file a notice to this effect; and (b) serve a copy of the notice on each other party to the application. 20 The applicant in the present case must satisfy subrule (2) and subrule (3) of O 52 r 15. The Full Court has held that a special reason within the meaning of O 15 r 15(2) of the Federal Court Rules is a circumstance which takes the case out of the ordinary run of cases in which an appeal should be filed within 21 days (Vu v Minister for Immigration and Citizenship (2008) 101 ALD 211 at [5] per Jessup J, with whom Gyles and Besanko JJ agreed). 21 In Jess v Scott (1986) 12 FCR 187 at 195, the Full Court said: It is useful to consider the meaning and application of r 15(2) against a background of an understanding of how other courts have applied corresponding rules. But in the end, this Court must construe and apply the terms of its own rule. The question is what that rule means, and how it is to be applied to the circumstances of the case. It is clear that the rule reflects the same general structure exemplified by the various decisions we have discussed – the provision of a time for lodgment of an appeal, but the provision also of a discretion to permit an appeal out of time where it is shown that the circumstances warrant the exercise of that discretion. As Lord Guest, speaking for the Privy Council, put it in Ratnam v Cumarasamy [1965] 1 WLR 8 at 12: "The rules of court must prima facie be obeyed and in order to justify a court in extending the time during which some step in procedure requires to be taken, there must be some material on which the court can exercise its discretion. If the law were otherwise, a party in breach would have an unqualified right to an extension of time which would defeat the purpose of the rules which is to provide a time table for the conduct of litigation." What is needed to justify an extension of time is indicated in r 15(2) by the words "for special reasons". It is that there be shown a special reason why the appeal should be permitted to proceed, though filed after the expiry of twenty-one days. In that context, the expression "special reasons" is intended to distinguish the case from the usual course according to which the time is twenty-one days. But it may be so distinguished (not necessarily will, for the rule gives a discretion) wherever the Court sees a ground which does justify departure from the general rule in the particular case. Such a ground is a special reason because it takes the case out of the ordinary. We do not think the use of the expression "for special reasons" implies something narrower than this. The proposition cannot be accepted that r 15(2) was intended to constrict the broad measure of justice for the individual case which the Court could award upon the principle of Gatti v Shoosmith. No return was contemplated to the old law by which the discretion of the Court to waive the rules was itself fettered by further rules. We agree with the dictum of Davies J cited earlier in these reasons, and we think the construction of the rule we have adopted is in line with the decisions in Ex parte Mehta, the Palata Investments case and Avery's case. It should not be overlooked that r 15(2) enables leave to be given "at any time"; the "special reasons" relevant to such a power cannot but describe an elastic test, suitable for application across a range of situations, from an oversight of a day to a neglect persisted in during a prolonged period. It would require something very persuasive indeed to justify a grant of leave after, for example, a year; equally, it may be said, something much less significant might justify leave where a party is a few days late. "Special reasons" must be understood in a sense capable of accommodating both types of situation. It is an expression describing a flexible discretionary power, but one requiring a case to be made upon grounds sufficient to justify a departure, in the particular circumstances, from the ordinary rule prescribing a period within which an appeal must be filed and served. 22 In Parker v The Queen [2002] FCAFC 133 at [6], the Full Court said: 6. In the civil jurisdiction, Wilcox J discussed at some length the matters which, in his opinion, were deserving of consideration when considering an application for leave to extend the time within which to file a notice of appeal: see Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344, a decision under the Administrative Decisions (Judicial Review) Act 1977 (Cth). The matters which attracted his Honour's attention were set out at 348–349: 1. applications for an extension of time are not to be granted unless 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"; it must be "fair and equitable in the circumstances" to extend time; 2. 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; 3. 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; 4. however, the mere absence of prejudice is not enough to justify the grant of an extension; and 5. the merits of the substantial application are to be taken into account in considering whether an extension of time should be granted. 23 As I said in SZMFI v Minister for Immigration and Citizenship [2010] FCA 386 at [30]: 30 In matters such as the present, it will usually also be relevant for the Court to consider the importance of the issues raised in the proposed Notice of Appeal and the bona fides of the appeal. 24 The delay in the present case is insignificant. The second respondent did not submit that she had suffered any prejudice by reason of that delay. If there was any point to the applicant's appeal and if that appeal had some prospect of success, the delay in the present case would not be a factor against granting the claimed extension of time. 25 As the authorities make clear, however, I am obliged to consider the strength and bona fides of the appeal which will be filed should the applicant's Application for an extension of time be granted. 26 In support of his application, the applicant affirmed an affidavit. Paragraphs 3–7 of that affidavit are in the following terms: 3. Currently I am unemployed and not receiving any Centrelink payment. 4. When I attended Federal Court on 02 February 2011, I was told that I may have to pay $3000 to file the "Form 55 Notice of Appeal" because change of the law. 5 I have not prepared that $3000 and time to file and serve "Notice of Appeal" is about to run out. 6. I wish Federal Court can kindly extend time (hopefully six months) to let me find that $3000 and/or legal aid to file the "Notice of Appeal". 7. I have annexed a copy of draft "Notice of Appeal" and marked with a letter "A". 27 In that affidavit, the applicant concedes that he could have and would have filed his Notice of Appeal within time had he been ready, willing and able to pay the filing fee. He wants an extension of time of six months in order to raise the amount of the fee or to get legal aid. I do not think that this is a satisfactory explanation for not filing his Notice of Appeal within time or a special reason to grant the claimed extension. 28 The draft Notice of Appeal attached to the applicant's affidavit is prolix and confusing. It contains assertions that the transcript of the hearing before the AAT inaccurately recorded the course of that hearing and (possibly) had been interfered with and, in a confusing manner, jumps back and forth between references to the decision of the AAT and references to the decision of the primary judge. One thing is clear, however: The applicant has failed to identify any appellable error in the primary judge's findings or any appellable error in her reasoning. 29 The essence of her Honour's decision was that the applicant had no ongoing legitimate grievance about his treatment by Centrelink because the decision to withhold his Newstart allowance had never been implemented and the failure to pay that allowance for a two week period in June 2008 had been made good by a subsequent payment of arrears. The primary judge also held that the Tribunal was not bound to take into account alleged damage to the applicant's reputation. She did so because there was no evidence that such damage would flow from Centrelink's decisions and no basis for arguing that such a consideration was one which Centrelink was bound to consider. 30 For these reasons, her Honour declined to interfere with the decision of the AAT because there would be no practical effect or utility in doing so. The applicant does not challenge the correctness of the findings of fact which her Honour made in order to support that decision. Indeed, at [29] of her Reasons, her Honour recorded that the applicant had ultimately accepted the accuracy of Centrelink's records which were the foundation for those findings. Further, her Honour explained in some detail her reasons for concluding that neither the second respondent nor the Commonwealth could now or in the future attempt to recover from the applicant the alleged overpayments of Newstart. No-one intends to challenge these latter findings on appeal. The second respondent formally conceded before her Honour that her entitlement to a refund of the overpayments had been waived. 31 In light of all of these circumstances, the applicant is unable to allege or have any prospect of establishing that her Honour erred in the decision which she made. His appeal has no prospect of succeeding. 32 I therefore decline to extend the time within which the applicant might file a Notice of Appeal from the decision of the primary judge. The applicant's application will be dismissed with costs. I certify that the preceding thirty-two (32) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Foster. Associate: Dated: 3 March 2011