Barron and Inco Ships Pty Ltd

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2006] AATA 436

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No T2005/161

GENERAL ADMINISTRATIVE  DIVISION		)
Re		BRIAN EDWARD BARRON

Applicant

And INCO SHIPS PTY LTD

Respondent

DECISION

Tribunal The Hon R J Groom (Deputy President)

Date19 May 2006

PlaceHobart

Decision The decision refusing an extension of time in which to reconsider the determination of 4 July 2005 is set aside and the matter remitted to the respondent with a direction that time be extended under s78(3)(b) of the Act until 28 days from the date of this decision.

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Deputy President

6.      The applicant, through his solicitors, by letter dated 3 September 2005, requested an extension of time to allow a reconsideration of the determination.   By letter from its solicitors dated 27 October 2005 the respondent refused to allow the extension of time.

7.      The applicant now seeks a review of the decision made by the respondent refusing to allow the extension of time.

8. The hearing of this review application was held in Hobart on 5 May 2006. Mr Tremayne appeared for the applicant and Mr Manuel for the respondent. The documents lodged pursuant to s37 of the Administrative Appeals Tribunal Act 1975 and an affidavit by Geoffrey William Tremayne dated 4 May 2006 were received into evidence.

9. The issue in this application is whether the Tribunal, standing in the employer’s stead, should exercise the discretion provided in s78(3)(b) of the Act and allow a further period for the applicant to request a reconsideration of the determination.

10. A refusal to allow an extension of time to request a reconsideration under s78 of the Act is a decision reviewable by this Tribunal. It falls within the definition of “reviewable decision” in s76 of the Act.

11.     At the hearing Mr Manuel for the respondent suggested that a suitable guide to the exercise of the discretion to extend time can be found in the decision of Wilcox J in Hunter Valley Developments Pty Ltd v Minister for Home Affairs and Environment (1994) 58 ALR 305 at 310 – 311. The Tribunal agrees that Wilcox J has indeed provided a helpful list of the principles to be applied in a proper exercise of this discretion.

12.     It was acknowledged by Wilcox J in Hunter Valley that such a list of guiding principles is not necessarily exhaustive.    As well, Fitzgerald J said in Lucic v Nolan (1982) 45 ALR 411 at 417:

“Each individual case should be dealt with individually, giving due weight to prior decisions and what they reveal of judicial attitudes.”

13.     An extension of time should not be granted unless the Tribunal is positively satisfied that it is proper to do so.    The prescribed period of 30 days is not to be ignored (see Hunter Valley (supra) p310).

14.     In the Tribunal’s view the following are the principal matters to be considered in this application in deciding whether or not to extend time:

(a)The length of the delay…