Newgreen and Secretary, Department of Family and Community Services

[2004] AATA 1244

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2004] AATA 1244

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No V2004/1203

GENERAL  ADMINISTRATIVE  DIVISION		)
Re		RONALD NEWGREEN

Applicant

And SECRETARY, DEPARTMENT OF FAMILY AND COMMUNITY SERVICES

Respondent

DECISION

Tribunal Mr. John Handley, Senior Member

Date26 November 2004

PlaceMelbourne

Decision The Tribunal extends the time for the making of the application dated 20 October 2004 to 21 October 2004.

(Sgd)  John Handley

Senior Member

PRACTICE AND PROCEDURE – application for review posted to Tribunal – not received and not returned to applicant – subsequent application was received approximately 12 months out of time – whether first application was “lodged” – common law presumption of delivery – whether discretion should be exercised to extend time to lodge subsequent application – whether application has merit

Administrative Appeals Tribunal Act 1975 (Cth) s29(1)(d) s29(7) s68

Social Security (Administration) Act 1999 (Cth) s13 and s179(1)

Veterans’ Entitlements Act 1986 (Cth) s177

Comcare v A’Hearn (1993) 18 AAR 366

Environment (1985) 58 ALR 305

Re Dellar and Repatriation Commission (1994) 33 ALD 255

Australian Trade Commission v Solarex Pty Ltd (1987) 78 ALR 439

Hunter Valley Developments Pty Ltd and Others v Minister For Home Affairs And Angus Fire Armour (Australia) Pty Ltd v Collector of Customs (1998) 83 ALR 449

Re Kiss and Repatriation Commission and Re Donohoe and Repatriation Commission both decided at (1995) 38 ALD 443; 21 AAR 443

Re Robert and Repatriation Commission (1992) 27 ALD 408

Roberts v Repatriation Commission (1992) 16 AAR 559

REASONS FOR DECISION

26 November 2004 Mr. John Handley, Senior Member          

1.      The applicant applies to extend time for the making of an application to the Tribunal for review of a decision of the Social Security Appeals Tribunal (“SSAT”) made on 25 August 2003.

2.      The application was heard on 17 November 2004.  Mr Newgreen appeared with his wife.  Mr Zita appeared on behalf of the respondent.

3.      The circumstances giving rise to the application may be briefly summarised as follows.

4.      The decision of the SSAT is recorded as having been “despatched” on 2 September 2003.  Mr Newgreen said that he received the application a few days later and then received notification from the SSAT of his appeal rights which included reference to a 28 day limit in the event that a review of that decision was sought.  He said that he completed an application form and posted it by pre-paid ordinary mail to the Administrative Appeals Tribunal (“the Tribunal”).  Mr Newgreen said that he addressed the envelope to the Tribunal’s postal address which he knew to be – by reference to the information supplied to him by the SSAT – as Level 16 East Tower HWT Building 40 City Road Southgate.  The envelope enclosing the application was not ever returned to him.

5.      Some months later Mr Newgreen rang the Tribunal and spoke to an officer within the registry.  Apparently it was then learnt that the application form had not been received.  The registry officer…