FEDERAL COURT OF AUSTRALIA Rothsay v Administrative Appeals Tribunal [2011] FCA 544 Citation: Rothsay v Administrative Appeals Tribunal [2011] FCA 544 Appeal from: Rothsay and Secretary, Department of Education, Employment and Workplace Relations [2011] AATA 280 Parties: RALPH ALEXANDER JOHN ROTHSAY v ADMINISTRATIVE APPEALS TRIBUNAL and SECRETARY, DEPARTMENT OF EDUCATION, EMPLOYMENT AND WORKPLACE RELATIONS File number: WAD 121 of 2011 Judge: BARKER J Date of judgment: 25 May 2011 Catchwords: APPEAL AND NEW TRIAL - application for review of decision of Administrative Appeals Tribunal refusing application for extension of time to lodge application for review of decision of the Social Security Appeals Tribunal - no error of law identified - appeal dismissed Legislation: Administrative Appeals Tribunal Act 1975 (Cth) s 29, s 44 Social Security Act 1991 (Cth) s 1237A Federal Court Rules O 53 r 3 Cases cited: Birdseye v Australian Securities and Investments Commission [2003] FCAFC 232 Comcare v A'Hearn (1993) 45 FCR 441 Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344 Re Johnson and Commonwealth of Australia [1990] AATA 1 Rothsay and Secretary, Department of Education, Employment and Workplace Relations [2011] AATA 280 Date of hearing: 20 May 2011 Place: Perth Division: GENERAL DIVISION Category: Catchwords Number of paragraphs: 43 Counsel for the Appellant: The appellant appeared in person Counsel for the Second Respondent: Mr PJ Corbould Solicitor for the Second Respondent: Australian Government Solicitor IN THE FEDERAL COURT OF AUSTRALIA WESTERN AUSTRALIA DISTRICT REGISTRY GENERAL DIVISION WAD 121 of 2011 ON APPEAL FROM THE ADMINISTRATIVE APPEALS TRIBUNAL BETWEEN: RALPH ALEXANDER JOHN ROTHSAY Appellant AND: ADMINISTRATIVE APPEALS TRIBUNAL First Respondent SECRETARY, DEPARTMENT OF EDUCATION, EMPLOYMENT AND WORKPLACE RELATIONS Second Respondent JUDGE: BARKER J DATE OF ORDER: 25 MAY 2011 WHERE MADE: PERTH THE COURT ORDERS THAT: 1. The appeal be dismissed. 2. The appellant pay the second respondent's costs to be taxed if not agreed. 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 WESTERN AUSTRALIA DISTRICT REGISTRY GENERAL DIVISION WAD 121 of 2011 ON APPEAL FROM THE ADMINISTRATIVE APPEALS TRIBUNAL BETWEEN: RALPH ALEXANDER JOHN ROTHSAY Appellant AND: ADMINISTRATIVE APPEALS TRIBUNAL First Respondent SECRETARY, DEPARTMENT OF EDUCATION, EMPLOYMENT AND WORKPLACE RELATIONS Second Respondent JUDGE: BARKER J DATE: 25 MAY 2011 PLACE: PERTH REASONS FOR JUDGMENT appeal from aat 1 This is an appeal from a decision of the Administrative Appeals Tribunal (AAT or Tribunal) constituted by Deputy President SD Hotop, whereby the Tribunal refused the appellant's application for an extension of time until 2 March 2011 to lodge an application for review of a decision of the Social Security Appeals Tribunal (SSAT) dated 2 October 2008, nearly two and a half years earlier. 2 The Tribunal's decision was given orally on 22 March 2011, at the end of a hearing held that day. The decision was subsequently set out in a written order, a copy of which was despatched to the appellant by the AAT Registry by post on 22 March 2011. 3 On 21 April 2011 the AAT Registry received an email from the appellant requesting a statement of the Tribunal's reasons for its order of 22 March 2011. Written reasons were subsequently handed down on 29 April 2011, and may be found at Rothsay and Secretary, Department of Education, Employment and Workplace Relations [2011] AATA 280. grounds of appeal in this court 4 The grounds of appeal that the appellant seeks to rely on are stated as follows: 1. Under Social Security Act 1991 s 1237A,(1)(b) Waiver of debt attributable to administrative error and 2nd notice issued after 3 months of the first notice. 2. Indescrepancies(sic) of figures used entirely 3. Personal circumstances at the time of receiving SSAT decision within 28 days 4. Deduction of bond included in Gross Income ($50) 5. Refer 1st notification dated 22/11/07 5 Before turning to the substance of the grounds raised, it is useful to provide some background to this matter. centrelink and ssat decisions 6 Mr Rothsay was in receipt of Newstart Allowance in the period from 22 September 2007 to 16 November 2007. 7 A Centrelink officer decided on 22 November 2007 that Mr Rothsay had a debt of $915.27 arising from overpayment of Newstart Allowance in the period 10 October 2007 to 2 November 2007, on the premise that the correct amount of Mr Rothsay's earnings from Wilson Security were not taken into account. The Centrelink officer sought to recover the debt from Mr Rothsay. 8 In a separate decision, a Centrelink officer decided on 19 March 2008 that Mr Rothsay had an additional debt of $499.19 arising from overpayment of Newstart Allowance in the period 6 October 2007 to 16 November 2007, also on the premise that the correct amount of Mr Rothsay's earnings from Wilson Security were not taken into account. The Centrelink officer sought to recover the debt from Mr Rothsay. 9 These decisions were reviewed by a Centrelink Authorised Review Officer (ARO) on 19 June 2008, who decided that Mr Rothsay had been overpaid Newstart Allowance in the total amount of $1,414.46 in the period from 22 September 2007 to 16 November 2007, being the total amount of the two sums calculated in the two earlier decisions, and that this amount was a debt to be recovered from Mr Rothsay. The review officer also added a 10% penalty of $141.40 to the debt, bringing the total debt to be recovered from Mr Rothsay to $1,555.86. 10 On 18 August 2008, Mr Rothsay lodged an application for review of the ARO's decision with the SSAT. The application was heard on 2 October 2008. The SSAT made a decision in respect of the appellant in the following terms: 1. Mr Rothsay has a debt of newstart of(sic) allowance of $1,414.46 for the period 22 September 2007 to 16 November 2007; 2. a 10% penalty is not to be added to the debt; and 3. recovery of that part of the debt that has not been repaid by Mr Rothsay of $499.19 is to be written off for a period of 6 months from the date of this decision. 11 A copy of the SSAT's decision was subsequently despatched to the appellant on 14 October 2008. 12 The effect of order 3 was that recovery of the $499.19 was deferred for six months. appeal to aat 13 On 2 March 2011, approximately two years and three months later, the AAT Registry received from the appellant an application for review of the SSAT's decision of 2 October 2008. 14 In the application form, which was unsigned and undated, the SSAT's decision was described as follows: WRONG DATES FOR REVIEW From 5/10/07 → 16/11/07 AND NOT 22/09/07 → 16/11/07 $499.19 deferred for 6 months, then acted on. 15 In the application form it was stated that the SSAT's decision was received on 15 October 2008, and that the reason for the application is as follows: Wrong dates considered even when proof to the contrary was provided. Consequently had to pay back $499.19 after 6 months. 16 By letter dated 3 March 2011, the AAT Registry notified the appellant that his application for review had been lodged outside the prescribed time limit, advised him that he had the right to apply for an extension of time for lodging his application, and enclosed a form of application for an extension of time. 17 On 8 March 2011 the AAT Registry received from the appellant an application for an extension of time for lodging his application for review of the SSAT's decision of 2 October 2008. In the application form the reasons for the application for an extension of time were stated as: Was unlawfully sacked from my employment 15/9/08. This case is still in the hands of the Fairwork Ombudsman AND my back finally gave up and I am now on the Disability Pension. With all this drama, I have been in no position, mentally, emotionally, physically to contend with any legal dramas on my plate. I am only now able to resolve certain issues that need closure so I can be a free man once again. 18 On 22 March 2011, at the hearing held before the Tribunal for the purpose of determining the appellant's application for an extension of time, the appellant's application was refused. This is the decision the subject of this appeal. TRIBUNAL'S REASONS FOR REFUSAL 19 The Tribunal's power to extend the time for the making of an application for review is conferred by section 29(7) of the Administrative Appeals Tribunal Act 1975 (Cth) (AAT Act), which states: (7) The Tribunal may, upon application in writing by a person, extend the time for the making by that person of an application to the Tribunal for a review of a decision (including a decision made before the commencement of this section) if the Tribunal is satisfied that it is reasonable in all the circumstances to do so. 20 The Tribunal therefore has a broad discretionary power to grant an extension of time for the making of an application for a review of a decision if it is "satisfied that it is reasonable in all the circumstances to do so". 21 In his written reasons of 29 April 2011, the Deputy President referred to the comments made by the Tribunal in Re Johnson and Commonwealth of Australia [1990] AATA 1 (Re Johnson), by Deputy President R K Todd, that in determining applications for an extension of time for making an application for review, it is customary for the Tribunal to be guided by the principles enunciated by the Federal Court of Australia in Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344 (Hunter Valley Developments), at 348-350, Wilcox J. 22 The Deputy President noted that the appellant's application for review, which was lodged with the Tribunal on 2 March 2011, was lodged about two years, three months and 18 days after the expiration of the relevant proscribed period in the AAT Act. The Deputy President further noted that the giving of an acceptable explanation for delay in lodging an application for review is not an essential pre-condition of the favourable exercise of the discretion to grant an extension of time, as held by the Full Court in Comcare v A'Hearn (1993) 45 FCR 441 (Comcare), however, "it is to be expected that such an explanation will normally be given, as a relevant matter to be considered"; see Comcare at 444. The Deputy President added that this is especially the case where the delay is very lengthy, as in the present case. 23 The Deputy President heard the appellant's explanation for the delay, which was a reiteration of the explanation found in his application. To this the appellant added that: his back "went" in late January 2008, and he had since been "living on painkillers"; since the termination of his employment in September 2008, he had been pursuing that matter through the Fair Work Ombudsman; and his former employer misrepresented and forged documents and he was denied his right to work. 24 This was not, in the Deputy President's opinion, a satisfactory explanation for the failure to lodge his application outside the prescribed period. The Deputy President noted in this regard that in the period since his back "went" in January 2008, the appellant pursued his review rights before the Centrelink Authorised Review Officer and the SSAT and, following the termination of his employment in September 2008, he appeared at the hearing before the SSAT on 2 October 2008. 25 The Deputy President further noted that there is no suggestion that, in the period from 12 November 2008 to 2 March 2011, the appellant took any action that might have made Centrelink or the respondent aware that he was contesting, or was proposing to contest, the SSAT decision of 2 October 2008, and that in the circumstances, the respondent was given reasonable cause to believe that the applicant had "rested on his rights" and that the matter was concluded. 26 In considering the merits of the appellant's application for review, the Deputy President noted that, although it is inappropriate for the Tribunal to attempt to undertake a merits review of the SSAT's decision at that interlocutory stage of the proceeding, it is nevertheless appropriate for the Tribunal to consider the merits of the appellant's substantive application for a review of that decision. In this regard the Deputy President understood the appellant to be contending that the SSAT erred in determining the amount of the overpayment of Newstart Allowance to him, and the resultant debt owed by him, by calculating that amount over the period from 22 September 2007 to 16 November 2007, instead of over the period from 5 October 2007 to 16 November 2007. 27 The Deputy President concluded that the SSAT's reasons for decision indicated it had conducted a thorough and fair examination of the evidence before it and made a conscientious and considered decision on the basis of that evidence. 28 The Deputy President further notes that the SSAT generally gave the appellant the benefit of the doubt and accepted his evidence, expect in respect of one factual matter, namely, the time when he first notified Centrelink that he had commenced employment. The Deputy President chose instead to rely on the Centrelink record. In the circumstances the Deputy President was not satisfied that the appellant's application for review had good prospects of success. 29 The Deputy President, in his written conclusion, noted the various circumstances and considerations that, rather than favouring a grant of the appellant's application, militate against it, namely: the length of the delay (namely, approximately two years, three months and 18 days) on the part of the appellant in lodging with the Tribunal his application for review of the SSAT's decision of 2 October 2008; the appellant's unsatisfactory explanation for that delay; the appellant's failure to take any action, until 2 March 2011, which might have made the respondent or Centrelink aware that he proposed to contest the SSAT decision; and the apparent lack of merit of the appellant's application for review. 30 On balance, therefore, the Deputy President was not satisfied that it would be reasonable in all the circumstances to extend the time for the making by the appellant of an application for a review of the SSAT's decision, and for the reasons stated in the decision, refused to grant the appellant's application for an extension of time. consideration 31 An appeal from a decision of the AAT may be made to the Federal Court under section 44(1) of the AAT Act which provides: A party to a proceeding before the Tribunal may appeal to the Federal Court of Australia, on a question of law, from any decision of the Tribunal in that proceeding. (emphasis added) 32 Order 53 of the Federal Court Rules regulates the practice and procedure to be followed in respect of appeals from the Tribunal. Order 53 rule 3(2), (3) and (4) states: (2) The notice of appeal shall be signed by the applicant or his solicitor and shall state: (a) the decision of the Tribunal from which the appeal is brought, the members constituting the Tribunal and the date when the decision was made; (b) the question or questions of law to be raised on the appeal; (c) the order sought; and (d) briefly, but specifically, the grounds relied upon in support of the order sought. (3) The Court may on such terms and conditions as the Court thinks fit, allow a notice of appeal to be amended. (4) On the hearing of an appeal, the applicant shall not, without the leave of the Court, raise any question of law or rely on any ground in support of the order sought other than those stated in the notice of the appeal. 33 Order 53 rule 3(2) received consideration in the decision of the Full Court of the Federal Court in Birdseye v Australian Securities and Investments Commission [2003] FCAFC 232 (Birdseye), where Branson and Stone JJ, with whom Marshall J agreed, stated, at [18]: In our view, O 53 r 3(2) discloses an intention that a question of law to be raised on an appeal from the Tribunal should be stated with precision as a pure question of law. It is in the specification of the grounds relied upon in support of the orders sought that, in our view, one should expect to find the links between the question of law, the circumstances of the particular case and the orders sought on the appeal. 34 It is clear that the ability of this Court to review any decision of the Tribunal is subject to strict limitations, and that a question of law must first be identified. 35 Counsel for the second respondent, in the course of oral submissions on 20 May 2011 and by reference to written submissions filed the same day, submitted that the appellant's notice of appeal filed on 19 April 2011 did not disclose any question of law to be realised. Counsel submitted that the "questions of law" and "grounds" of appeal referred to in the appellant's notice of appeal at paras 2 and 4 respectively, do not identify a question of law, and that the "orders sought" in para 3 are not appropriate orders for the Federal Court to make. 36 Counsel also relies on the criteria set out by Marshall J in Birdseye at [53], namely, that the decision of the Tribunal to refuse to refuse to extend time will not be overturned unless it is demonstrated that in exercising its discretion the Tribunal: acted on a wrong principle; allowed irrelevant matters to guide it; mistook the facts; or did not take into account some material consideration. 37 Counsel submitted that none of the above errors can be established as the Tribunal identified the relevant facts and legislation. It set out and applied the correct principles for determining applications for an extension of time as established by the Federal Court in cases such as Hunter Valley Developments. Furthermore, by having regard to the reasons for decision set out by the Deputy President in para 29 above, it was clearly open to the Tribunal on the evidence before it to refuse the application. 38 At the hearing on 20 May 2011, the appellant explained to the Court his reasons for seeking an extension of time. The appellant was principally concerned that Centrelink made an error concerning the dates of his employment with Wilson Security and as a result the refund he was ordered to pay was too high. 39 The appellant did not dispute that he was employed with Wilson Security for the period from 6 October 2007 to 16 November 2007, and likewise accepts that he informed Centrelink of his employment with Wilson Security on 21 November 2007. The appellant's concern instead arose from a belief that Centrelink erred in determining the amount of the overpayment of Newstart Allowance to him, and the resultant debt owed by him, by calculating his earnings as if he was employed from the period from 22 September 2007 to 16 November 2007, when he was in fact employed for the period from 6 October 2007 to 16 November 2007. 40 In the course of argument, a document was produced by Counsel to the Court which showed this was not the case. Counsel handed up a "decision statement", authored by the Centrelink Authorised Review Officer, which relates to the overpayment of Newstart Allowance in respect of earnings from Wilson Security. This document included a table of the appellant's calculated income and entitlement of Newstart Allowance over certain periods of time. Overpayment of Newstart Allowance for the period from 22 September 2007 to 5 October 2007 was calculated as being "$0.00". As a matter of fact, it is clear that Centrelink did not determine the amount of overpayment of Newstart Allowance by reference to the period from 22 September 2007 to 5 October 2007. 41 In all of the circumstances, this appeal must be dismissed. The appellant has not framed any question of law on this appeal, no error of law is demonstrated in the decision of the AAT, and the appeal lacks merit. 42 The Deputy President of the AAT relevantly considered the legal merits of the appellant's claims, as well as the reasons given for the very long delay in seeking to appeal the SSAT decisions. It was plainly open to the AAT to refuse to extend the time to appeal the SSAT decision and no error in the Tribunal's decisionmaking is revealed. 43 I therefore decline to grant the appellant's application. The appellant's application will be dismissed with costs. THE COURT ORDERS THAT: 1. The appeal be dismissed. 2. The appellant pay the second respondent's costs to be taxed if not agreed. I certify that the preceding forty-three (43) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Barker. Associate: Dated: 25 May 2011