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

The Administrative Appeals Tribunal (AAT) considered an application for reinstatement of a review of a decision to cancel the Applicant's Disability Support Pension (DSP). The Applicant's DSP had been cancelled due to her and her husband's combined income exceeding the relevant threshold. Following an initial review by the Department and a remission back to the Department by the AAT for further consideration of specific pay records, the Applicant had lodged an application for review with the AAT. However, the Applicant subsequently notified the Tribunal that she wished to withdraw her application, which was then dismissed by the Tribunal. The Applicant later sought to have this dismissal set aside and her application reinstated.

The primary legal issue before the Tribunal was whether the Applicant's application for review, which had been dismissed following her notification of withdrawal, should be reinstated. This required determining whether the dismissal occurred "in error" under section 42A(10) of the *Administrative Appeals Tribunal Act 1975* (Cth). If reinstatement was not possible, the Tribunal also considered whether to grant an extension of time for the Applicant to lodge a fresh application for review of the original decision.

The Tribunal reasoned that section 42A(10) of the *Administrative Appeals Tribunal Act 1975* (Cth) permits reinstatement only if an application was dismissed in error, and that an "unwise withdrawal" does not constitute a dismissal in error. The Tribunal found that the Applicant had made a conscious decision to withdraw her application, and therefore, it was not dismissed in error. Consequently, the Tribunal concluded it had no power to reinstate the application.

Despite refusing reinstatement, the Tribunal proceeded to consider the Applicant's separate application for an extension of time to lodge a fresh application for review. Applying the factors outlined in *Hunter Valley Developments Pty Ltd v Cohen* (1984), the Tribunal noted the significant delay, the lack of a satisfactory explanation for the delay, the potential prejudice to the respondent, and the poor prospects of success of the substantive application. The Tribunal was not satisfied that it was reasonable in all the circumstances to grant an extension of time. Therefore, the application for reinstatement was refused, and the application for an extension of time was also refused.