Koutsouras and Secretary, Department of Employment and Workplace Relations

[2007] AATA 1681

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2007] AATA 1681

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No 2007/1758

GENERAL ADMINISTRATIVE DIVISION		)
Re		JOHN KOUTSOURAS

Applicant

And SECRETARY, DEPARTMENT OF EMPLOYMENT AND WORKPLACE RELATIONS

Respondent

DECISION

Tribunal Ms N Bell

Date22 August 2007

PlaceSydney

Decision As stated in the oral decision given on 6 June 2007, the Tribunal does not grant an extension of time for this application.   

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Ms N Bell  

Senior Member
NEWSTART ALLOWANCE - Extension of Time – Lodged two-and-a-half years out of time – appeal rights were acknowledged - no reasonable explanation -  not enough information to ascertain whether there was a marriage like relationship – there is a degree of prejudice – Application for an extension of time is rejected.

Hunter Valley Developments Pty Ltd v Cohen (1984) 7 ALD 315

REASONS FOR DECISION

Ms N Bell, Senior Member

1.      Mr Koutsouras seeks an extension of time to lodge an application for review of the decision of the Social Security Appeals Tribunal (SSAT) dated 16 August 2004 to not pay him Newstart allowance because he failed to provide details of his wife’s income and assets.  He said his wife had refused to provide these details.  He lodged his application for review on 4 May 2007 some two and a half years after the expiration of the 28 day period provided for the lodging of applications for review.

2.      When deciding whether to grant an extension of time I must apply the principles in the Federal Court’s decision in Hunter Valley Developments Pty Ltd v Cohen[1]. The questions to be considered relevant to Mr Koutsouras’ case are:

(a)Whether Mr Koutsouras, has a reasonable explanation for his delay in lodging his application for review; and

(b)Whether the substantive application has merit; and

(c)Whether an extension of time would unduly prejudice the Respondent.

[1] (1984) 7 ALD 315

explanation for delay

3.      Mr Koutsouras received the decision from the SSAT on, or shortly after, 27 August 2004. In evidence, he told the Tribunal that he had read his appeal rights in the letter he received from the SSAT and understood that he had 28 days to appeal.  However, he did not do so because he considered it a pointless exercise.  He said he knew about his appeal rights but did not understand that review would be undertaken by the Administrative Appeals Tribunal until he had come here for a review of a taxation decision.  I do not consider this a reasonable explanation for a delay of more than two and a half years.

Prospects of Success

4.      There is little information, on the Department file, about the nature of Mr Koutsouras’ relationship with his wife.  He said in the extension of time hearing, that he and his wife are separated under the same roof.  He said they talk and discuss things together but do not eat together or socialise together unless they are invited as husband and wife to a gathering.  He said they maintain their arrangement for the children. However no-one, not even their children, knows about their real situation.  Their youngest child is 19 years old.  They do not own property together and do not have any active joint bank accounts.  Nevertheless, they do not have any plans for divorce. 

5.      It is arguable that this arrangement indicates a non-marriage like relationship.  However, there is little information available on which to base an assessment.  There is no evidence from persons other than Mr Koutsouras and, according to him, there are no witnesses to their estrangement.  The passage of some two and a half years since the original decision makes it difficult to ascertain whether, three years ago, Mr and Mrs Koutsouras were living in a marriage-like relationship.

Prejudice

6.      The Respondent has, for some two and a half years, treated this matter as at an end because Mr Koutsouras took no steps to indicate otherwise after the SSAT made its decision.  It will be difficult for the Secretary to obtain evidence of the nature of Mr Koutsouras’ relationship with his wife at the time of the decision, having obtained very little at the time and none since.  There could be some degree of prejudice in this.

conclusion

7.      For these reasons I reject Mr Koutsouras’ application for an extension of time to lodge an application for review.  I note that Mr Koutsouras has not claimed Newstart allowance again and that, now, Centrelink may hold some information on his wife’s income and assets because she has obtained a healthcare card.  It may be that, if he claims again, Centrelink will be able to obtain the required information from its current holdings.  If it does not, or if Mrs Koutsouras’ assets and income reduce his rate of payment, Mr Koutsouras may wish to turn his attention to additional information and evidence in support of his contention that he is not living in a marriage like relationship.

I certify that the 7 preceding paragraphs are a true copy of the reasons for the decision herein of Ms N Bell

Signed:         ..........[Sanjiv Shah]............
  Associate

Date of Hearing  6 June 2007 
Date of Decision  6 June 2007