Armitage and Secretary, Department of Social Services (Social services second review)

This matter concerned an application by Mr Armitage for an extension of time to lodge an application for review of a decision by the Secretary, Department of Social Services. Mr Armitage had been overpaid Disability Support Pension (DSP) due to undeclared income earned between July 2011 and June 2016, resulting in a debt of $12,021.15. The application for review was lodged 67 days outside the statutory 28-day deadline. The decision was made by Mr S Evans, Member, of the Administrative Appeals Tribunal.

The primary legal issue before the Tribunal was whether it was reasonable to grant Mr Armitage an extension of time to lodge his application for review. This required the Tribunal to consider the principles governing the exercise of its discretion to extend time, as established in *Hunter Valley Developments Pty Limited v Cohen* (1984) 58 ALR 305. These principles include assessing the explanation for the delay, whether the applicant has rested on their rights, any prejudice to the respondent, wider public prejudice, the merits of the substantive application, and fairness between similarly placed individuals.

The Tribunal applied the principles from *Hunter Valley*, noting that the overriding consideration is reasonableness in all the circumstances. While the delay did not appear to prejudice the respondent, the Tribunal found that Mr Armitage's substantive application lacked merit. Mr Armitage contended that income attributed to him from Rydges Hotel was an error, as he believed he had not worked there. However, the respondent presented evidence from the Australian Taxation Office and Mr Armitage's own bank statements confirming the income. The Tribunal noted that Rydges Hotel and Greater Union Pty Ltd were part of the same corporate group, suggesting the income was related to his employment at Greater Union. As Mr Armitage did not deny receiving the payments into his bank account, his case appeared to rest solely on the trading name of his employer, with no determinant issues in dispute.

Consequently, the Tribunal concluded that as there was little prospect of Mr Armitage succeeding in his substantive application, it was not reasonable to extend the time for him to lodge his application for review.