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

The Administrative Appeals Tribunal (AAT) considered an application by Mrs Martelli for a second review of a decision concerning her family tax benefit debt. Mrs Martelli lodged her application for the second review out of time, and the central dispute revolved around whether she had received a letter from the Tribunal's registry dated 9 April 2024, which contained crucial information about her review rights and time limits.

The legal issues before the Tribunal were whether the letter dated 9 April 2024 was deemed to have been received by Mrs Martelli, and if not, or if there were other procedural irregularities, whether the interests of justice favoured granting an extension of time for her to lodge her application for a second review. The Tribunal also had to consider the adequacy of the advice provided to Mrs Martelli regarding her right to request written reasons for the initial oral decision and the timeframes for seeking a second review.

The Tribunal noted several deficiencies in the letter dated 9 April 2024. It incorrectly stated that the oral decision was given "after the conclusion of the hearing" rather than "at the conclusion of the hearing." More significantly, the letter advised Mrs Martelli that she could request written reasons within 14 days of the oral decision, but the letter itself, which informed her of this right, would likely not be received until a substantial portion of that 14-day period had already elapsed, thereby shortening her effective time to request reasons. Furthermore, the letter's advice regarding time limits for lodging a second review application was imprecisely worded. While the letter was posted, and therefore a presumption of receipt arose under section 160 of the Evidence Act 1995 (Cth) after seven working days, the Tribunal found that the overall practice followed in advising Mrs Martelli, particularly the timing of the letter and its contents, led to a lack of procedural fairness.

Given the ambiguities in the Tribunal's letter and the resulting lack of procedural fairness, the Tribunal concluded that the interests of justice favoured granting Mrs Martelli an extension of time to lodge her application for a second review. The Tribunal ordered that the time for lodging the application be extended.