FEDERAL COURT OF AUSTRALIA Cremona v Administrative Appeals Tribunal [2015] FCA 288 Citation: Cremona v Administrative Appeals Tribunal [2015] FCA 288 Appeal from: Application for extension of time: Cremona v Secretary, Department of Social Services [2014] AATA 836 Parties: DAVID CREMONA v ADMINISTRATIVE APPEALS TRIBUNAL and SECRETARY, DEPARTMENT OF SOCIAL SERVICES File number: VID 786 of 2014 Judge: BROMBERG J Date of judgment: 17 March 2015 Catchwords: ADMINISTRATIVE LAW – Application for extension of time to institute appeal from AAT – principles relevant to grant of extension of time – discretionary decision by AAT to refuse to reinstate application – whether prospect of success – no prospect of success – application dismissed. Legislation: Administrative Appeals Tribunal Act 1975 (Cth) ss 42A, 42A(9), 44, 44(1), 44(2A), 44(2B)(a) Social Security Act 1991 (Cth) s 198(2) Cases cited: Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344 Comcare v A'Hearn (1993) 45 FCR 441 Pham v Commonwealth of Australia [2002] FCA 669 House v The King (1936) 55 CLR 499 Selway v Minister for Infrastructure, Transport, Regional Development & Local Government [2011] FCA 43 Date of hearing: 17 March 2015 Place: Melbourne Division: GENERAL DIVISION Category: Catchwords Number of paragraphs: 34 Counsel for the Applicant: The Applicant appeared in person Counsel for the First Respondent: The First Respondent did not appear Solicitor for the Second Respondent: Ms P Heffernan of Australian Government Solicitor IN THE FEDERAL COURT OF AUSTRALIA VICTORIA DISTRICT REGISTRY GENERAL DIVISION VID 786 of 2014 BETWEEN: DAVID CREMONA Applicant AND: ADMINISTRATIVE APPEALS TRIBUNAL First Respondent SECRETARY, DEPARTMENT OF SOCIAL SERVICES Second Respondent JUDGE: BROMBERG J DATE OF ORDER: 17 MARCH 2015 WHERE MADE: MELBOURNE THE COURT ORDERS THAT: 1. The applicant's application for an extension of time dated 23 December 2014 is dismissed. 2. The applicant pay the second respondent's costs of the application. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011. IN THE FEDERAL COURT OF AUSTRALIA VICTORIA DISTRICT REGISTRY GENERAL DIVISION VID 786 of 2014 BETWEEN: DAVID CREMONA Applicant AND: ADMINISTRATIVE APPEALS TRIBUNAL First Respondent SECRETARY, DEPARTMENT OF SOCIAL SERVICES Second Respondent JUDGE: BROMBERG J DATE: 17 MARCH 2015 PLACE: MELBOURNE REASONS FOR JUDGMENT 1 The applicant (Mr Cremona) was the recipient of a carer payment made in respect of care provided by him to his wife. On 23 December 2013, a decision was made by the second respondent (Secretary) to cancel the carer payment. That decision was affirmed by a decision of the Social Security Appeals Tribunal made on 4 April 2014. 2 Mr Cremona then applied to the Administrative Appeals Tribunal (AAT) for a review of the decision of the Social Security Appeals Tribunal. He failed to appear at an AAT hearing held on 25 August 2014 and as a consequence, his application was dismissed. On 14 October 2014, the AAT heard and dismissed Mr Cremona's application that his substantive application be reinstated (AAT's decision). 3 Mr Cremona seeks to challenge the AAT's decision and wishes to institute an appeal to this Court pursuant to the jurisdiction conferred by s 44 of the Administrative Appeals Tribunal Act 1975 (Cth) (AAT Act). 4 Section 44(1) of the AAT Act confers upon this Court the jurisdiction to hear an appeal on a question of law from any decision of the AAT. Section 44(2A) requires that an appeal be instituted within 28 days of a document setting out the terms of the AAT's decision being given to a prospective appellant or within such further time as the Court allows. 5 Mr Cremona failed to institute an appeal within the 28-day period and, by his application filed on 23 December 2014, he seeks an extension of time in which to institute his intended appeal. 6 The AAT Act does not specify criteria for the exercise of the Court's discretion to extend time to institute an appeal. Nonetheless, the Court has on a number of occasions identified a range of factors which may be taken into account as a guide to the exercise of the discretion to extend time. Those factors have been conveniently summarised by Wilcox J in Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344 at 348-9. The factors there identified need to be read with the observations of a Full Court of this Court in Comcare v A'Hearn (1993) 45 FCR 441 at 444 where Black CJ, Gray and Burchett JJ noted that while there is no rule that an acceptable explanation for the delay is an essential precondition, "… it is to be expected that such an explanation will normally be given". See further, Pham v Commonwealth of Australia [2002] FCA 669 at [11] (Gray J). 7 The relevant factors of significance to this application are: (a) the explanation given for the delay; (b) whether the delay in instituting an appeal would cause any prejudice to the Secretary; and (c) the merits of Mr Cremona's proposed appeal. The explanation for the delay 8 A letter enclosing the AAT's reasons for decision was sent to Mr Cremona on 6 November 2014. There does not seem to be any dispute about that. Accordingly, Mr Cremona should have brought his appeal by 4 December 2014. As this application was filed on 23 December 2014, the delay in question should be regarded as a delay of some nineteen days. 9 Mr Cremona relies on two affidavits. His first affidavit of 23 December 2014 provides two reasons for the delay. One of the reasons given is that he was awaiting a copy of the reasons of decision from the AAT. There is, however, no suggestion either in his evidence or in what was submitted orally on the hearing of the application that those reasons for decision were not received by him on or about 6 November 2014. Insofar as his explanation for the delay is based on that matter, I reject it as being without merit. 10 Mr Cremona's other reason advanced as justifying the delay was that he was busy with other court commitments. No detail has been given by Mr Cremona as to the extent of his other court commitments. Whilst I appreciate that Mr Cremona is unrepresented and whilst I accept his evidence that he had other court commitments, in the absence of some detail as to why or how those other commitments had an impact upon him, I would not ordinarily have regarded the explanation given as a satisfactory explanation for the delay. Nevertheless, as I have said by reference to the authorities, an acceptable explanation for the delay is not an essential precondition to the grant of an extension of time. Furthermore, the Secretary does not rely on this factor. In the circumstances, I will not give it any weight as a consideration against the grant of Mr Cremona's application. Prejudice to the secretary 11 The Secretary did not assert that it would suffer any prejudice by reason of the delay should an extension of time to institute an appeal be granted. The absence of any prejudice at all favours the grant of the extension sought although, as the authorities make clear, a mere absence of prejudice is not sufficient of itself to justify the grant of an extension of time. The merits of the proposed appeal 12 The AAT decision which Mr Cremona seeks to appeal was a decision made by reference to the criterion specified by s 42A(9) of the AAT Act. By reference to that provision and in relation to an application made to reinstate a substantive application dismissed for want of appearance, if it considers it appropriate to do so the AAT may reinstate the application and give such directions as appear to it to be appropriate in the circumstances. The power conferred upon the AAT to reinstate an application is clearly discretionary. 13 In determining whether or not to exercise that discretion in Mr Cremona's favour, the AAT considered three matters. 14 First, whether Mr Cremona had provided a reasonable excuse for his failure to attend the hearing of his substantive application. The AAT found that Mr Cremona's explanation for his failure to appear was that he did not do so because the AAT was not constituted in accordance with his prior request that the Tribunal be constituted by its President and two other members. 15 By its decision, the AAT explained that Mr Cremona had no entitlement to specify the constitution of the Tribunal which would hear his application. The AAT also stated that Mr Cremona had failed to make a proper application for the Tribunal to be reconstituted. The AAT's reasons show that it concluded that Mr Cremona's explanation for his want of appearance did not constitute a reasonable excuse for his failure to appear. 16 The second issue considered by the AAT in deciding whether it considered it appropriate to reinstate Mr Cremona's substantive application was whether that substantive application had any prospect of success. The AAT's reasons for decision identified various issues that Mr Cremona had submitted he would raise if his substantive application was reinstated. The AAT noted that Mr Cremona had not put before it any material that supported his challenge to the Secretary's decision that his carer payment should cease because Mr Cremona had ceased to provide "constant care" for the purposes of s 198(2) of the Social Security Act 1991 (Cth). The AAT observed that the material before it supported the decision made to cease Mr Cremona's carer payment. The AAT concluded that Mr Cremona's prospects of success were insufficient to justify the reinstatement of his substantive application. 17 Thirdly, the AAT considered whether the Secretary would suffer any prejudice if Mr Cremona's application was reinstated and determined that the Secretary would not. The AAT concluded that it was not "appropriate" to reinstate Mr Cremona's substantive application and determined not to do so in the exercise of its discretion. Substantially, the AAT came to that view for the reason that it regarded Mr Cremona's substantive application as having insufficient prospects of success to justify its reinstatement. 18 To enliven the Court's jurisdiction, Mr Cremona's prospective appeal must raise a question of law and to obtain any relief an error of law will need to be established in relation to the AAT's decision which is the subject of the proposed appeal. Mr Cremona's draft notice of appeal specifies nine grounds each of which is said to raise a question of law. The Secretary contended that no properly-formulated question of law, other than perhaps that addressing the asserted breach of natural justice, is raised by the draft notice of appeal. Whether or not that is so as a matter of form is of little moment at this juncture. My focus in considering whether Mr Cremona's prospective appeal has a sufficient prospect of success to justify the grant of his application for an extension of time is on whether or not an arguable error of law has been identified by Mr Cremona. Grounds 1 and 2 19 The first two grounds specified by the draft notice of appeal are to the effect that the President of the AAT was asked to constitute the AAT by more than one member, with a member being a presidential member but refused to allow that to occur. A request for reconstitution of the Tribunal was made but refused. On their face, if grounds 1 and 2 raise any challenge at all they seem, at best, to raise a challenge to the decision made by the AAT to refuse the request made by Mr Cremona that the Tribunal be constituted in the manner he sought. A decision to refuse that request is not the subject of the decision challenged by the prospective appeal and is not a matter that I am called upon to consider. 20 In his oral submissions, Mr Cremona suggested that in relation to the request made by him as to the constitution of the AAT, he had been awaiting a response from the AAT and that his non-appearance at the hearing on 25 August 2014 was because a response had not been provided to him. Insofar as it might be said that that point is raised by grounds 1 and 2, I reject it as having no merit. Firstly, there is no evidence before me that Mr Cremona did not attend because he was awaiting a response to his request. The finding made by the AAT was to the effect that Mr Cremona did not attend because his request was refused. 21 Mr Cremona's oral submission seeks to challenge that factual finding. It is not, as I have said, supported by any evidence but, in any event, the best that can be said about it is that a factual challenge has been raised which does not raise a question of law. For those reasons, I reject grounds 1 and 2. Ground 3 22 Ground 3 is in the following terms: The tribunal made an oral statement and afterwards gave a written statement (after I requested the written statement) & that written statement contained reasons that were not mentioned in the oral statement (Section 44(2B)(a) of the Administrative Appeals Tribunal Act 1975). 23 When Mr Cremona made submissions about this ground, it appeared that the ground is based upon a misunderstanding of how s 44(2B)(a) operates. The intent of that provision is to permit the Court, in considering an application to extend time to lodge an appeal, to take into account the fact that after providing an oral statement of its reasons, the AAT has given a written statement for its decision which includes matters not mentioned in the oral statement. The obvious intent is that the Court should consider whether time should begin to run from the time that the written statement was provided. 24 The consideration I have given to Mr Cremona's explanation for the delay has been based upon time running from 6 November 2014, when a written statement of reasons was provided to him. In any event, ground 3 does not raise any challenge to the decision of the AAT which the proposed appeal seeks to deal with. For those reasons, I reject ground 3. Ground 5 25 This ground is as follows: A breach of natural Justice by denial of procedure [sic] fairness & processes has occurred. 26 In the context of the submissions made by Mr Cremona about the way in which this ground is put, it became apparent that Mr Cremona was not alleging that in dealing with his application for his substantive application to be reinstated, there was a failure by the AAT to give him a proper opportunity to be heard. What he seemed to be saying is that the rejection of his application that his substantive application be reinstated is in itself a denial of procedural fairness because Mr Cremona was denied an opportunity to have his substantive application heard and determined. That contention falls foul of what is in fact provided by s 42A of the AAT Act. 27 Section 42A(2) provides for the dismissal of an application if a party fails to appear. There is at that point a limited opportunity provided for the dismissed application to be heard and determined and that limited opportunity is provided by the capacity given in s 42A(9) for the AAT to reinstate the dismissed application. There is no right for a dismissed application to be heard and determined and there is no breach of the rules of procedural fairness in the AAT determining whether or not the application should be reinstated in keeping with the provisions of s 42A of the AAT Act. Ground 5 must, therefore be rejected. Grounds 4, 6, 7, 8 and 9 28 Those grounds were in the following terms: (4) It is the tribunals objective to provide a mechanism of review that is fair, just, economical, informal & quick. The result of the tribunals decision was not fair. (Section 2A of the Administrative Appeals Tribunal Act 1975) (6) Procedures required by law in respect of the conduct of the review were not adhered to. (7) There was no merit to justify the decision the tribunal made. (8) The tribunal acted in bad faith. (9) An abuse of power by the tribunal has occurred. 29 As will be apparent, those grounds are specified in such general terms as to be largely devoid of any particularity. In his submissions, Mr Cremona contended that the AAT had deliberately avoided providing him with a hearing. He said that any opportunity the AAT has had in relation to his matters, the AAT had sought not to hear him. That is the essence of what was sought to be raised by grounds 4, 6, 7, 8 and 9. The difficulty, however, is that the complaint made is not supported by any evidence nor, I might observe, is the complaint correct in relation to the hearing scheduled for 25 August 2014 when the AAT stood ready to hear Mr Cremona's application but he did not appear. 30 As Mr Cremona is unrepresented and given the broad compass of some of the grounds to which I have referred, I have also considered whether any error of law is apparent from the reasons for decision given by the AAT. 31 As I have already said, the AAT's decision was an exercise of the discretion conferred upon the AAT to reinstate a substantive application. The circumstances in which an error of law in the exercise of a discretion may be established are set out in House v The King (1936) 55 CLR 499 at 504-505. As Mansfield J observed in Selway v Minister for Infrastructure, Transport, Regional Development & Local Government [2011] FCA 43, the principles laid out in House v The King are ordinarily utilised upon a review of a judicial discretion, but where the review of an administrative decision is confined to a review on a question of law, similar considerations apply (at [33]). The principles set out in House v The King are well known. Relevantly, Dixon, Evatt and McTiernan JJ said at 504-505: The manner in which an appeal against an exercise of discretion should be determined is governed by established principles. It is not enough that the judges composing the appellate court consider that, if they had been in the position of the primary judge, they would have taken a different course. It must appear that some error has been made in exercising the discretion. If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so. It may not appear how the primary judge has reached the result embodied in his order, but, if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance. 32 Applying those principles to the decision of the AAT does not raise any apparent error as to the exercise of the AAT's discretion. The AAT applied a well-trodden approach to a consideration of whether an application should be reinstated. It considered whether a proper explanation for the want of appearance had been provided. It looked at the question of prejudice to the respondent. It also addressed the issue of whether the application if reinstated had a prospect of success sufficient to justify the reinstatement. All of those considerations were perfectly appropriate to be taken into account in considering whether or not the substantive application should have been reinstated. Conclusion 33 For those reasons I have determined that Mr Cremona's application for an extension of time to file an appeal should be dismissed. Lastly, I record the fact that in the running of the application Mr Cremona made an application that the hearing be adjourned in order that he be given the opportunity to put additional material before me. He identified the material he wished to put before the Court as material in relation to other proceedings before this Court relating to two prior cancellations of a carer payment. He indicated that he believed that a member of the Police force had a personal vendetta against him and had organised that carer payments that he was receiving be cancelled. He informed the Court that the AAT had refused to issue a subpoena on that particular member of the Police force. 34 There was no evidence before me about other proceedings or the allegation in relation to the conduct of the member of a Police force. I rejected the application for an adjournment for two reasons. Firstly, Mr Cremona was unable to indicate how material evidencing the allegations raised in other proceedings before this Court was relevant to the issues which I need to determine in this application. I could therefore see no relevance and no purpose for the adjournment. Secondly, I rejected the adjournment application on the basis that Mr Cremona had had an ample opportunity to put material before the Court in support of his application. I certify that the preceding thirty-four (34) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Bromberg. Associate: Dated: 30 March 2015