Mastin and National Disability Insurance Agency
[2022] AATA 2648
•17 June 2022
Mastin and National Disability Insurance Agency [2022] AATA 2648 (17 June 2022)
Division:NATIONAL DISABILITY INSURANCE SCHEME DIVISION
File Number(s): 2022/4776
Re:Margaret Mastin
APPLICANT
AndNational Disability Insurance Agency
RESPONDENT
DECISION
Tribunal:Senior Member K Buxton
Date:17 June 2022
Place:Brisbane
The application to extend time is refused.
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Senior Member K Buxton
Catchwords
NATIONAL DISABILITY INSURANCE SCHEME – access to scheme – extension of time to apply for review –prejudice – interests of justice - application refused
Legislation
Administrative Appeals Tribunal Act 1975 (Cth)
National Disability Insurance Scheme Act 2013 (Cth)
Cases
Hunter Valley Developments v Cohen [1984] 3 FCR 344
Negi and National Disability Insurance Agency [2022] AATA 1453 (2 June 2022)
REASONS FOR DECISION
Senior Member K Buxton
17 June 2022
Ms Mastin has made a request to become a participant in the National Disability Insurance Scheme, administered by the Respondent agency under the National Disability Insurance Scheme Act 2013 (Cth) (NDISA). She wishes to review a reviewable decision of the Respondent agency, made on 16 March 2022 under section 100 of the NDISA, confirming an earlier decision refusing her request to become a participant.
Before her review application can proceed, Ms Mastin requires an extension of the 28-day time limit following notification of a reviewable decision, within which review can be initiated pursuant to section 29 of the Administrative Appeals Tribunal Act 1975 (Cth) (AATA). The Tribunal may extend time if it is satisfied that it is reasonable in all the circumstances to do so (ss.29(1), (2) and (7)). However, the time limit for review will ordinarily be enforced by the Tribunal unless acceptable reasons exist to depart from it. In determining whether acceptable reasons exist to depart from a time limit the guiding principles are usefully set out in Hunter Valley Developments v Cohen [1984] 3 FCR 344, per Wilcox J at [348]–[349]:
(a) Although this section does not, in terms, place any onus of proof upon an Applicant for extension, an application has to be made. Special circumstances need not be shown, but the Court will not grant the application unless positively satisfied that it is proper to do so. The “prescribed period” of 28 days is not to be ignored. It is the prima facie rule that proceedings commenced outside that period will not be entertained. It is a pre-condition to the exercise of discretion in his favour that the application for extension show “acceptable explanation of the delay” and that it is “fair and equitable in the circumstances” to extend time.
(b) Action taken by the applicant, other than by making an application for review under the Act, is relevant consideration of the question whether an acceptable explanation for the delay has been furnished. A distinction is to be made between the case of a person who, by non-curial means, has continued to make the decision-maker aware that he contests the finality of the decision (who has not “rested on his rights”) and a case where the decision-maker was allowed to believe that the matter was finally concluded. The reasons for this distinction are not only the “need for finality in disputes” but also the “fading from memory” problem…
(c) Any prejudice to the respondent including any prejudice in defending the proceedings occasioned by the delay is a material factor militating against the grant of an extension.
(d) However the mere absence of prejudice is not enough to justify the grant an extension. In this context, public considerations often intrude. A delay which may result, if the application is successful, in the unsettling of people or established practices is likely to prove fatal to the application.
(e) The merits of the substantial application are properly to be taken into account in considering whether an extension of time should be granted.
(f) Considerations of fairness as between the applicants and other persons otherwise in a like position are relevant to the manner of exercise of the Court’s discretion.
(case references and citations removed)
Therefore, factors such as the length of delay, any explanation for it, possible prejudice to the other parties and the importance of enforcing statutory time frames are all relevant in determining reasonableness.
The reviewable decision was made on 16 March 2022 and despatched by conventional postal service on that day. On 7 June 2022, the application for review was lodged. Allowing for postal delays, Ms Mastin requires an extension of a little over one month for her application to proceed. Her advocate, Ms Koning, has assisted Ms Mastin to prepare both the review application and a written request for time to be extended. The request set out various explanations for delays including that occasioned by the decision being sent by post, rather than by electronic means, and that various public holidays had the effect of further limiting the business days available to Ms Mastin and to those assisting her to prepare her application. That explanation is reasonable, and the extension sought is relatively brief. It is not opposed by the Respondent.
A further factor to be considered by the Tribunal in deciding whether to grant an extension of time is the utility of that grant. That is, if the application is to proceed, can the Applicant achieve their desired outcome through the review process, and is there a reasonably arguable case that may lead the Tribunal to make a decision that differs to that under review. The Applicant does not have to show that she has good prospects, or a strong case.
In the reviewable decision, the Respondent has decided that Ms Mastin does not meet the access criteria set out in Chapter 3, Part 1 of the NDISA. In her review application lodged with the Tribunal on 7 June 2022, Ms Mastin stated that her condition is degenerative, and that further information has now been obtained that is relevant to whether she meets the access criteria. Ms Mastin’s application suggests that, although she may not have met the criteria at the time of consideration by the CEO, she does so now. This is a case that would be open to her to argue on review. However, it is equally open to her to ask the Respondent to consider a fresh application based in any updated information and circumstances. Where, as here, a prospective participant is under the age of 65, it is open to that Applicant to make another access request at any time (section 19(2) of the NDISA).
An application to the Tribunal for a full merits review of a reviewable decision proceeds to determination by considering the evidence available to the decision-maker and any other relevant evidence. However, the statutory scheme envisages that a meaningful review has first taken place under section 100 of the NDISA. This is the orthodox approach for the proper operation of the administrative decision-making continuum.[1] Where that has not occurred because a prospective participant had not provided relevant information in time, and as it is open to that person to invite the Respondent agency to consider a fresh request based on her current levels of functional impairment and supported by the further information she has now obtained, the interests of justice do not “require” the grant of an extension of time. Indeed, this course of action may not benefit either party if a fresh decision can be made by the CEO within the timeframes set out in Chapter 3, Part 1 of the NDISA.
[1] See Negi and National Disability Insurance Agency [2022] AATA 1453 (2 June 2022).
An extension of time is not to be granted automatically, even where it is not opposed by the Respondent. Time frames are in place for good reason and, in this case, have not been observed. The is no demonstrable prejudice to Ms Mastin if time is not extended as her right to re-apply for access is intact and has not yet been explored having regard to updated circumstances and information. Therefore, the interests of justice do not favour the grant of an extension of time.
For these reasons, in this case, I am not satisfied that it is reasonable to extend the time for filing of a review application of the reviewable decision of the Respondent made on 16 March 2022.
The application to extend time is refused.
I certify that the preceding 10 (ten) paragraphs are a true copy of the reasons for the decision herein of Senior Member K Buxton
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Associate
Dated: 17 June 2022
Date of hearing: On the papers Applicant: Ms Sue Koning Solicitor for the Respondent: National Disability Insurance Agency
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