FEDERAL COURT OF AUSTRALIA Gleeson v Secretary, Department of Family, Housing, Community Services and Indigenous Affairs [2011] FCA 437 Citation: Gleeson v Secretary, Department of Family, Housing, Community Services and Indigenous Affairs [2011] FCA 437 Appeal from: Application for extension of time: Gleeson v Secretary, Department of Family, Housing Community Services & Indigenous Affairs, (Federal Court of Australia, VID 782 of 2009, Orders dated 1 December 2009) (by consent) Parties: JOHN GLEESON v SECRETARY, DEPARTMENT OF FAMILY, HOUSING, COMMUNITY SERVICES AND INDIGENOUS AFFAIRS File number: VID 77 of 2011 Judge: JESSUP J Date of judgment: 3 May 2011 Catchwords: PRACTICE AND PROCEDURE – Final judgment by consent – Whether deemed to be interlocutory – Whether leave to appeal required. PRACTICE AND PROCEDURE – Extension of time for filing application for leave to appeal – Whether satisfactory explanation for delay – Whether proposed case of sufficient substance to avoid extension of time being an exercise in futility. Legislation: Access to Justice (Civil Litigation Reforms) Amendment Act 2009 (Cth) Aged Care Act 1997 (Cth) s 57A-2(1) Federal Court of Australia Act 1976 (Cth) Social Security Act 1991 (Cth) ss 198, 198AAA Cases cited: Carnemolla v eBay International AG [2008] FCA 1346 Construction, Forestry, Mining and Energy Union v Australian Building and Construction Commissioner [2010] FCA 349 Duus v Dalvella Pty Ltd [2008] FCA 26 Luck v Chief Executive Officer, Centrelink [2009] FCAFC 54 Sharman License Holdings Limited v Universal Music Australia Pty Ltd [2005] FCA 802 SZMTC v Minister for Immigration and Citizenship [2009] FCA 162 Date of hearing: 3 May 2011 Place: Melbourne Division: GENERAL DIVISION Category: Catchwords Number of paragraphs: 19 Counsel for the Applicant: The applicant appeared in person Counsel for the Respondent: Ms C Symons Solicitor for the Respondent: DLA Piper IN THE FEDERAL COURT OF AUSTRALIA VICTORIA DISTRICT REGISTRY GENERAL DIVISION VID 77 of 2011 ON APPEAL FROM THE FEDERAL COURT OF AUSTRALIA BETWEEN: JOHN GLEESON Applicant AND: SECRETARY, DEPARTMENT OF FAMILY, HOUSING, COMMUNITY SERVICES AND INDIGENOUS AFFAIRS Respondent JUDGE: JESSUP J DATE OF ORDER: 3 MAY 2011 WHERE MADE: MELBOURNE THE COURT ORDERS THAT: 1. The application be dismissed with 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 77 of 2011 ON APPEAL FROM THE FEDERAL COURT OF AUSTRALIA BETWEEN: JOHN GLEESON Applicant AND: SECRETARY, DEPARTMENT OF FAMILY, HOUSING, COMMUNITY SERVICES AND INDIGENOUS AFFAIRS Respondent JUDGE: JESSUP J DATE: 3 MAY 2011 PLACE: MELBOURNE REASONS FOR JUDGMENT 1 The proceeding which comes before me today was instituted on 8 February 2011, when the applicant, John Gleeson, filed two applications in the registry of the court. The first was an application for an extension of time to file and serve a notice of appeal from a judgment given by Gray J on 1 December 2009. The second was an application for leave to appeal from that judgment. The basis upon which it was proposed by the applicant that he needed leave to appeal was that section 30AB of the Federal Court of Australia Act 1976 (Cth) applied in the circumstances. In that the applicant was mistaken, as he now accepts. However, a question remains whether the applicant has, subject to questions of timing, an entitlement to appeal from Gray J's order or whether leave to appeal would be required. 2 The order of 1 December 2009 was made by consent. It dismissed an appeal brought by the applicant against a decision of the Administrative Appeals Tribunal, given on 25 September 2009. Counsel for the respondent, the Secretary of the Department of Family, Housing, Community Services and Indigenous Affairs, accepted that, absent questions of time, the applicant would have an appeal as of right. That may have been correct as at the time of Gray J's judgment in December 2009. However, on 1 January 2010, the Access to Justice (Civil Litigation Reforms) Amendment Act 2009 (Cth) commenced. One of the amendments introduced thereby was the insertion of subs (1D) into s 24 of the Federal Court Act. By that subsection, a judgment by consent was, and is, to be taken to be an interlocutory judgment for the purposes of subss (1A) and (1C) of section 24. Section 24(1A) provides that "an appeal shall not be brought from a judgment referred to in subsection (1)", ie including a judgment of a single judge exercising the original jurisdiction of the court, "that is an interlocutory judgment unless the court or a judge gives leave to appeal." 3 By item 33(2) of Sch 2 to the amending Act, the relevant amendments applied in relation to appeals brought to the Federal Court of Australia on or after the commencement of the schedule, that is to say 1 January 2010. Since the applicant had not brought an appeal or purported appeal to the court before that date, any subsequent appeal or purported appeal would be governed by the new provisions of s 24(1D). Therefore, in the facts of the present case, Gray J's judgment of 1 December 2009 must be regarded as an interlocutory one, and as one for which leave to appeal was and is required. 4 Both the applicant and the respondent are content to have the present application dealt with as an application for extension of time within which to lodge an application for leave to appeal. The normal period for applying for leave to appeal in a case such as the present is seven days under O 52 r 10(2A)(b). However, the court has power to allow further time for the filing of such an application. The way in which that power should be exercised was the subject of the following observation by Lindgren J in Sharman License Holdings Limited v Universal Music Australia Pty Ltd [2005] FCA 802, at para 20: In order for the court to allow further time for the filing and serving of an application for leave to appeal from an interlocutory judgment the following conditions must be satisfied: 1. There must be a satisfactory explanation for the delay beyond the sevenday time limit fixed by O 52 r 10(2)(b) (see for example, Deighton v Telstra Corporation Ltd (unreported, Full Court, 17 October 1997)); 2. The application for leave to appeal must have such prospects of success as not to render the extending of time an exercise in futility. Since the test for the granting of leave to appeal from an interlocutory judgment is that the decision must be attended with sufficient doubt to warrant its being reconsidered by an appellate court, and that substantial injustice would result if leave were to be refused, supposing the decision to have been wrong (DÉcor Corporation P/L v Dart Industries Inc (1991) 33 FCR 397 at 398-400), in principle the question on an application for an extension of time is whether this test has sufficient prospect of being satisfied to warrant granting the extension. In practice, the debate and treatment of the arguable error question on an application for an extension of time, will be no different from what the debate and treatment of it would be on the application for leave to appeal itself. 3. Since an applicant for an extension of time within which to appeal as of right must show "special reasons", (O 51 r 15(2)), nothing less should be required of an applicant for an extension of time within which to apply for leave to appeal (Deighton v Telstra Corporation Ltd, above). His Honour's articulation of the test to be applied when an application for an extension of time to apply for leave to appeal is made has been applied on a number of occasions by the court: see Duus v Dalvella Pty Ltd [2008] FCA 26 [9]; Carnemolla v eBay International AG [2008] FCA 1346 at para [4]; SZMTC v Minister for Immigration and Citizenship [2009] FCA 162 at para [6]; Construction, Forestry, Mining and Energy Union v Australian Building and Construction Commissioner [2010] FCA 349 [8]; and by the Full Court in Luck v Chief Executive Officer, Centrelink [2009] FCAFC 54 [73]. 5 This approach to the question of an extension of time for the filing of an application of leave to appeal requires me to refer briefly to the facts of the present case. Before any of the events which have presently become controversial, the applicant was in receipt of a carer payment under the Social Security Act 1991 (Cth) in respect of the care which he provided for his elderly mother in her residence. His entitlement to that payment arose because he satisfied the qualifications set out in s 198 of that Act which provides, in subs (1): A person is qualified for a carer payment if the requirements of this section are met. It may be assumed that the applicant did meet the requirements of the section because he was in receipt of the payment, but it will be important in a moment to note that one of the requirements was that set out in subs (3): The care must be provided in a private residence that is the home of the care receiver or care receivers. 6 The circumstances giving rise to the proceeding before the Tribunal (which was an application to review a decision of the Social Security Appeals Tribunal) were set out in para 3 of its decision of 25 September 2009 as follows: Mr Gleeson was granted carer payment from 27 October 2000 on the basis of care provided to his mother, Mrs E. Gleeson. On 29 November 2006, Mr Gleeson advised Centrelink that his mother was hospitalised on 28 November 2006. On 27 December 2006 he further advised that she would be hospitalised until 31 January 2007. It would appear clear that during this period, Mrs Gleeson was in temporary care at the Glenhuntly Nursing Home. It is not in dispute that, on 1 February 2007 Mrs Gleeson was moved to the permanent ward of that nursing home. In June 2007 she broke her hip and was taken to the Alfred Hospital. On return to the nursing home it was discovered that a formal resident agreement had not been completed. An agreement was prepared and signed on 16 August 2007. The case which the applicant conducted before the Tribunal was that he remained entitled to receive the carer payment, notwithstanding the admission of his mother to a permanent ward in the nursing home on 1 February 2007. He based that argument upon the circumstance that it was not until 16 August 2007 that an agreement was executed for the accommodation of his mother at the nursing home. 7 The significance of that circumstance arises, according to the applicant, under s 198AAA of the Social Security Act. At the relevant time, that section provided as follows: (1) This section applies if: (a) carer payment is payable to a person who has ordinarily been providing constant care for a care receiver or care receivers; and (b) the person ceases to be qualified for the payment because he or she ceases to provide constant care for the care receiver or any of the care receivers as a result of the care receiver being admitted permanently to an institution where care is provided for the care receiver. (2) The care payment continues to be payable to the person for 14 weeks after the person ceases to be qualified and then ceases to be payable. According to the Tribunal: Mr Gleeson argued that was not admitted permanently to the nursing home until the resident agreement was signed in August 2007. He maintained that, until the legal agreement was executed, her occupation was under a grace and favour arrangement. He did accept that both he and the nursing home had regarded Mrs Gleeson as being in permanent care as at 1 February 2007 and that normal payment and services were provided from that date on the basis of her being in permanent residence. Nevertheless, he submitted that she was not legally in such permanent care until the agreement was signed. The Tribunal rejected that argument. It said: It is clear from prior decisions and the normal meaning of permanently that, for the purposes of section 198AAA, admitted permanently means admitted on a basis which is lasting or intended to last indefinitely, not temporary, enduring or abiding where the care receiver has given up her previous residence without the expectation of returning. While it may have been an unusual circumstance for the parties to overlook the signing of a resident agreement, I am in no doubt that Mr Gleeson, Mrs Gleeson and the nursing home regarded and treated Mrs Gleeson as having been admitted permanently from 1 February 2007. In my view the delay in signing the agreement did not alter this position. There was a clear oral agreement and the only effect of the delay in formalising that agreement may have been the right to change the fees. I find that it did not effect the date of admission. 8 In the application before the court today, the applicant did not seek to challenge the Tribunal's general categorisation of the nature of his mother's admission to the permanent ward of the nursing home on 1 February 2007. Rather, he reiterated the argument which he advanced before the Tribunal, which was that until an accommodation agreement had been executed by the relevant parties, it could not be said that his mother had been admitted permanently to an institution within the meaning of section 198AAA(1)(b) of the Social Security Act. Effectively, the applicant's position was that the Tribunal had erred in point of law in the way it construed this provision. 9 What makes the applicant's case today different from that which he advanced before the Tribunal is that he supports it with a reference to s 57A-2(1) of the Aged Care Act 1997 (Cth). That subsection sets out what are described as the basic rules about accommodation charges, and, to the extent presently relevant, provides as follows: The rules relating to charging an accommodation charge for the entry of a person to a residential care service as a care recipient are as follows: … (e) the approved provider must have entered into an accommodation charge agreement with the care recipient before or within 21 days after the care recipient entered the service. From the applicant's submissions, and from what is stated in his affidavit in support of the present application, he was not aware of this provision during the proceedings before the Tribunal, and it was only subsequent reflection which brought this provision to his attention, causing him to think that it might have provided significant support for the proposition that the execution of an accommodation charge agreement was a necessary precondition to the kind of permanent admission to an institution as is referred to in s 198AAA(1)(b) of the Social Security Act. 10 The first question which arises from this explanation of the nature of the applicant's present case is whether the circumstances referred to by him provide or involve a satisfactory explanation for the considerable delay which has occurred between the consent judgment on 1 December 2009 and the institution of the present proceeding. From what I can understand, the applicant's case is that the respondent, who was also a party before the Tribunal, was derelict in some way for not having drawn the Tribunal's attention to the existence of s 57A-2(1) of the Aged Care Act, such as would have permitted the applicant himself to make submissions on the subject and the Tribunal to have considered it. 11 This is a proposition which I am unable to accept. The applicant was the moving party before the Tribunal, and it was his obligation to bring to the Tribunal's attention any statutory provision upon which he might want to rely, or which might have been arguably of assistance to his case. I do not accept that a sufficient explanation for the kind of delay which is evident in the present case is constituted by the circumstance that, subsequent to the making of the order the subject of the present application, the applicant, in effect, has further cause to reflect, or undertakes further research, and considers that there are either legal or factual circumstances which he might well have advanced before the Tribunal but did not do so. 12 Thus, if the present application was to be resolved simply by reference to the question of whether there was a sufficient explanation for delay, or as Lindgren J put it in Sharman, a satisfactory explanation for delay, I would find that no such explanation has been made by the applicant. However, there is also, in my assessment of the matter, a fundamental weakness in the case which the applicant would now seek to put on appeal, if he were given the extension of time which he seeks and subsequently given leave to appeal. In my opinion, the applicant's case proceeds from a basic misunderstanding of the operation of s 198AAA of the Social Security Act. 13 As I have indicated above, that section contains two subsections. The first subsection goes no further than to set out the circumstances in which the section applies. It has no operative effect. The only operative provision of s 198AAA is subs (2), which gives rise to an entitlement on the part of the carer to continue to receive his or her payment for 14 weeks after he or she ceased to be qualified therefor. The expression "ceases to be qualified" must, of course, be understood not only in the context of s 198AAA(1)(b), but also in the context of s 198 itself, which sets out the qualifications for a carer payment. 14 When the applicant no longer provided care in the private residence of his mother, he lost his entitlement to the carer payment under s 198(3). If that loss of entitlement was because his mother was admitted permanently to an institution, then s 198AAA would have entitled the applicant to a further 14 weeks' payment. However, if what occurred on 1 February 2007 was not a permanent admission to an institution within the meaning of section 198AAA(1)(b), then the applicant would not have been entitled to a further 14 weeks' payment. 15 What s 198AAA does not do is to lay out comprehensively all the circumstances under which a person will cease to be qualified to receive a carer payment when the care receiver in question is admitted to an institution of some kind. That is to say, I reject the applicant's case that, if it were the case that his mother was not on 1 February 2007 admitted permanently to the nursing home, he would necessarily continue to be entitled to receive the carer payment. As I have said, a loss of entitlement arose because the requirements of s 198 were no longer satisfied once the care was no longer being provided in a private residence. 16 I also consider that the applicant's now attempt to rely upon the Aged Care Act is without substance. The question which would arise under section 198AAA, and which on the view of the respondent did arise on 1 February 2007, was whether the applicant's mother was admitted permanently to the nursing home. It seems that all the practical indications are that she was, but in any event, whether that occurred or not is purely a question of fact. The Tribunal held that she was admitted permanently to the nursing home, and no challenge is presently made to that finding. Nor could it be. 17 I do not accept that the making of an accommodation charge agreement under s 57A2 of the Aged Care Act has any bearing upon the question of whether the person concerned has been admitted permanently to the institution which would be a party to such an agreement. The applicant has emphasised that the concept of permanence in s 198AAA(1)(b) is not given statutory definition or elaboration, either in the Social Security Act or in any other legislation which may presently be regarded as relevant. In my view, that is a question which must be decided under general considerations, and in accordance with the normal meaning of the word "permanently". That is exactly the approach which the Tribunal took in the present case. I consider that the applicant's proposition that that approach was infected by an error of law because the Tribunal overlooked s 57A2 of the Aged Care Act is quite without substance. 18 I consider that, if time were extended to permit the applicant to make an application for leave to appeal from the judgment of 1 December 2009, that application ultimately would be a futility. The circumstances are not such as would cast any doubt upon the correctness of the decision of the Tribunal, whether or not with the assistance of reference to the Aged Care Act. 19 In the circumstances, I propose to dismiss the application for an extension of time. I certify that the preceding nineteen (19) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Jessup. Associate: Dated: 19 May 2011