Komadina, Brenda v Department of Social Security [1996] FCA 409

REASONS FOR JUDGMENT SUNDBERG J: On 3 August 1993 the applicant lodged an application pursuant to the Social Security Act 1981 for "family payment" with respect to her son Tommy. The payment was claimed from 1 January 1993 onwards. On 6 August 1993 a delegate of the Department of Social Security determined that the family payment be made from 3 August 1993. This decision was affirmed on 10 September 1993 by an Authorised Review Officer whose decision was, in turn, affirmed on 16 November 1993 by the Social Security Appeals Tribunal. The Administrative Appeals Tribunal affirmed that decision on 27 January 1995.

The applicant desires to appeal to the Federal Court from the decision of the Administrative Appeals Tribunal, and to this end seeks an extension of the time within which an appeal under s.44(1) of the Administrative Appeals Act 1975 ("the Act") must be instituted. Section 44(2A)(a) of the Act requires an appeal to be instituted "not later than the twenty-eighth day after the day on which a document setting out the terms of the decision of the Tribunal is furnished to the person or within such further time as the Federal Court of Australia ... allows". In considering an application for extension of time within which to institute an appeal pursuant to s44(2A), it is appropriate to apply the same test as is applied to extensions of time under the Administrative Decisions (Judicial Review) Act 1977 ("the ADJR Act"): Booker v The Commonwealth (Wilcox J, 14 September 1988, unreported). It is clear from authority with respect to the ADJR Act that the merits of the substantive application are properly to be taken into account in considering whether an extension of time should be granted: Lucic v Nolan (1982) 45 ALR 411 at 417, per Fitzgerald J, referred to in Hunter Valley Developments Pty Ltd v Minister for Home Affairs and Environment (1984) 58 ALR 305 at 311, per Wilcox J. See also Kuljic v Secretary Department of Social Security (von Doussa J, 3 February 1994, unreported). I do not think the applicant's substantive application has any merit. Under s.842 of the Social Security Act, family payment is not payable before the "provisional commencement day". This is the day on which a claim is made: s.843(1). A claim is made by lodging the claim, in writing, and in the approved form, at an office of the Department of Social Security, or at a place or with a person approved for the purpose by the Secretary. Consequently, the delegate's decision of 6 August 1993, that the applicant be granted family payment only from the date on which she made her claim, and not earlier, which was ultimately approved by the decision review of which is sought, was plainly correct. The application for review has, in my opinion, no prospect of success sufficient to justify the grant of extension of time, and I therefore dismiss it.