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

The Administrative Appeals Tribunal (AAT) considered an application by the Applicant for an extension of time to lodge an application for review of a decision concerning Family Tax Benefit (FTB) lump sum for the 2014/15 financial year. The Applicant's initial claim was lodged on 1 February 2017, outside the prescribed time limit of 30 June 2016. This decision was affirmed by an Authorised Review Officer on 23 March 2017 and subsequently by the AAT on 17 January 2018. The Applicant then sought a second review by the Tribunal, lodging her application for an extension of time on 27 March 2018, which was 41 days after receiving the AAT's decision.

The primary legal issue before the Tribunal was whether it was reasonable in all the circumstances to grant the Applicant an extension of time to lodge her application for review, pursuant to section 29(7) of the *Administrative Appeals Tribunal Act 1975* (Cth). In determining this, the Tribunal was required to consider a range of factors derived from established case law, including the length of the delay, whether the Applicant was aware of her appeal rights and had rested on those rights, the adequacy of any explanation for the delay, any prejudice to the respondent, the merits of the substantive application, and the availability of alternative avenues of relief.

The Tribunal applied the principles established in cases such as *Hunter Valley Developments Pty Ltd v Cohen* and *Phillips v Australian Girls’ Choir Pty Ltd*. It noted that while the 28-day time limit is not to be ignored and represents a prima facie rule against late applications, the Tribunal has a discretion to extend time if satisfied it is reasonable. The Tribunal found that the 41-day delay, while not extensive, was not insignificant and weighed against granting an extension. The Applicant's explanation for the delay was that she was awaiting responses from the Commonwealth Ombudsman and Minister, and only applied for review when these proved unsatisfactory. However, the Applicant admitted she had not read the cover letter from the AAT notifying her of the decision and the time limit for review, and was unaware of this limit. The Tribunal considered this explanation unsatisfactory, particularly as the AAT letter provided contact details for further information.

Ultimately, the Tribunal refused the application for an extension of time. While the merits of the substantive application were not fully explored, the Tribunal found that the length of the delay and the Applicant's lack of awareness of her appeal rights, despite being notified, were significant factors that militated against exercising its discretion to grant an extension.