Jones 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 a second review of a decision concerning a disability support pension. The Applicant sought to review a decision made by AAT1 on 23 January 2018, having lodged their application for a second review with the AAT on 26 April 2018, and an application for an extension of time on 8 May 2018. The Secretary, Department of Social Services, opposed the application for an extension of time.

The primary legal issue before the Tribunal was whether it should exercise its discretion under subsection 29(7) of the Administrative Appeals Tribunal Act 1975 to extend the time for the Applicant to lodge their application for review. This required the Tribunal to consider several factors, including the length of the delay, whether the Applicant was aware of their appeal rights, any prejudice to the Respondent or the public interest, and the merits of the Applicant's substantive application. The Tribunal was also required to assess whether the Applicant had taken any action to contest the decision or had rested on their rights, and whether there were any alternative avenues of relief available to the Applicant.

In determining whether to grant the extension, the Tribunal applied established legal principles governing the exercise of discretion under section 29(7) of the AAT Act. These principles, drawn from cases such as *Hunter Valley Developments Pty Ltd v Cohen* and *Brown v Federal Commissioner of Taxation*, emphasise that while the prescribed time limit is the prima facie rule, an extension may be granted if it is proper to do so. The Tribunal considered the Applicant's delay of approximately 55 days to be substantial, weighing against the grant of an extension. It also noted that the mere absence of prejudice to the respondent is insufficient to justify an extension, and that the merits of the substantive application and considerations of fairness between applicants are relevant factors.

The Tribunal ultimately determined that it was not reasonable in all the circumstances to grant the extension of time. The Applicant's delay was significant, and while the merits of the substantive application were considered, the Tribunal found that the delay and the lack of a compelling explanation for it, coupled with the public interest in the efficient conduct of merits review processes, weighed against exercising its discretion in favour of the Applicant.