Rhonda Lauricella and Secretary, Department of Social Services
[2014] AATA 471
•11 July 2014
[2014] AATA 471
Division GENERAL ADMINISTRATIVE DIVISION File Number(s)
2014/2558
Re
Rhonda Lauricella
APPLICANT
And
Secretary, Department of Social Services
RESPONDENT
DECISION
Tribunal Deputy President RP Handley
Date 11 July 2014 Place Sydney Ms Lauricella’s application for an extension of time with which to lodge an application for review is refused.
...........................[sgd].............................................
Deputy President RP Handley
Catchwords
PRACTICE AND PROCEDURE – extension of time to lodge application for review
Legislation
Administrative Appeals Tribunal Act 1975 (Cth) ss 29(2), 29(7)
Social Security Act 1991 (Cth) s 94Cases
Hunter Valley Developments Pty Ltd v Minister for Home Affairs & Environment [1984] FCA 176
REASONS FOR DECISION
Deputy President RP Handley
11 July 2014
The following is a statement of reasons for the decision to refuse Ms Lauricella’s application for an extension of time for the making of an application to the Tribunal. I explained the decision to her at the conclusion of the hearing.
STATEMENT OF REASONS
Ms Lauricella has applied for an extension of time for the making of an application for review of a decision of the Social Security Appeals Tribunal (SSAT) made on 10 April 2014, which she received on 18 April 2014. Ms Lauricella’s application to the Administrative Appeals Tribunal was lodged on 21 May 2014.
Under s 29(2) of the Administrative Appeals Tribunal Act 1975 (AAT Act), the prescribed time for making an application for review is 28 days after notification of the decision. In Ms Lauricella’s case, her application for review had to be lodged by 16 May 2014 at the latest. It was therefore lodged five days out of time.
4. Section 29(7) permits the Tribunal to grant an extension of time if satisfied that “it is reasonable in all the circumstances to do so”. This is an unconfined discretion. However, the Tribunal is guided in exercising its discretion by a number of considerations which are usefully summarised by Wilcox J in Hunter Valley Developments Pty Ltd v Minister for Home Affairs & Environment [1984] FCA 176; (1984) 3 FCR 344 at 348-349. These considerations include whether the Applicant has given a reasonable explanation for the delay, whether the Applicant made the Respondent aware that the finality of the relevant decision was being contested, prejudice caused to the Respondent by the delay, any adverse impact that might be caused to others, whether the substantive application has merit, and considerations of fairness with regard to others and the public interest.
Ms Lauricella explained that she was late in submitting her application because she was obtaining further medical reports. She provided reports from a rheumatologist, Dr Stephen Potter dated 29 May 2014 and 2 June 2014, and from a psychiatrist, Dr Rodney Morice, dated 7 May 2014. She also provided a copy of a Pulmonary Function Report dated 13 May 2014, and a list of prescriptions issued to her between 1 August 2008 and 17 August 2012. In my view, these reports are not likely of themselves to lead to a different outcome on a review of the substantive decision in Ms Lauricella’s case.
I explained to Ms Lauricella that her conditions must be fully diagnosed, treated and stabilised as at the date of claim, or within the 13 weeks thereafter, in order to be accorded impairment points for the purposes of s 94(1)(b) of the Social Security Act 1991. I am not satisfied from the additional medical information provided that it is likely to lead to a conclusion that in the relevant period, being 28 March 2013 (the date Ms Lauricella claimed the DSP) to 28 June 2013 (the end of the 13 week period thereafter), Ms Lauricella was qualified for the DSP. Thus, I am not satisfied that the substantive application would be likely to succeed based on a reading of the SSAT decision and the additional medical information provided.
Ms Lauricella said she had not previously understood the way in which applications for the DSP are processed and the rules that apply. That is perfectly understandable, and I understand her frustration with the system. I am, nevertheless required to apply the law, and here Ms Lauricella was informed of the 28 day period within which applications for review should be lodged.
While there is no prejudice to the Respondent by reason of the late lodgement of Ms Lauricella’s application, the reasons for her late application, in light of the chance of a substantive application succeeding, do not persuade me that I should grant an extension. This is bearing in mind considerations of fairness to others in similar situations and the public interest that there be a degree of certainty with regard to time limits.
I drew Ms Lauricella’s attention to the comment made by the Respondent in its submission that Ms Lauricella may wish to consider making a new claim for DSP. The reports produced by Ms Lauricella at the Hearing could assist Centrelink in making a determination on her current eligibility for the DSP.
DECISION
Ms Lauricella’s application for an extension of time with which to lodge an application for review is refused.
I certify that the preceding 10 (ten) paragraphs are a true copy of the reasons for the decision herein of Deputy President RP Handley .........................[sgd]...............................................
Associate
Dated 11 July 2014
Date(s) of hearing 11 July 2014 Date final submissions received 11 July 2014 Applicant In person Advocate for the Respondent S Misrachi; Department of Human Services
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