(1) The following people may apply to the ACAT for external review of an ACAT reviewable decision on a question of law or fact:

(a) an applicant for defined benefits;

(b) if an applicant for defined benefits is a person with a legal disability - the applicant's guardian;

(c) if the dependant of a person who died as a result of the motor accident is a person with a legal disability - the dependant's guardian;

(d) the personal representative of a person who died as a result of the motor accident;

(e) the insurer of a motor vehicle involved in the motor accident.

_(2) An application for external review of an ACAT reviewable decision must be made within - _

(a) 28 days after the day the applicant for external review is given an internal review notice in relation to the ACAT reviewable decision; or

(b) if the applicant for external review is not given an internal review notice in relation to the ACAT reviewable decision - 28 days after the applicant becomes aware of the decision; or

(c) if a regulation prescribes a different time within which to make an application_ - the prescribed time._

Note 1 For how to make an application to the ACAT, see the ACT Civil and Administrative Tribunal Act 2008, s 10.

Note 2 For how documents may be given, see the Legislation Act, pt 19.5.

1. For each decision, the applicant states she received the decision on the date it was made: 20 March, 15 June and 24 August 2023, respectively.
2. In each case, contrary to section 193(2)(a) and/or (b) of the MAI Act, the applicant did not apply for external review within 28 days after she became aware of the decision: she applied for review of all of the decisions on 17 November 2023.
3. To address the non-compliance, by application dated 16 November 2023 lodged that day, the applicant applied to the tribunal for an extension of time in which to apply for external review.
4. In the case of each decision, the respondent submitted the tribunal lacks power to grant an extension. These reasons for decision are concerned with whether the tribunal has that power.
5. The starting point is sections 24 and 25 of the ACT Civil and Administrative Tribunal Act 2008 (the ACAT Act), which state:

(1) The tribunal may make rules in relation to the practice and procedure of the tribunal and the tribunal registry.

Note The power to make rules for the tribunal includes power to make rules in relation to any matter necessary or convenient to be prescribed for carrying out or giving effect to the jurisdiction of the tribunal under any law of the Territory or Commonwealth that authorises or requires anything to be done in or in relation to the tribunal (see Legislation Act, s 45).

_(2) In making a rule, the tribunal must consider - _

(a) the requirement to ensure that applications to the tribunal are resolved as quickly as is consistent with achieving justice; and

(b) the requirement for procedures of the tribunal to be as simple, quick, inexpensive and informal as is consistent with achieving justice; and

(c) rules dealing with similar matters under the Court Procedures Rules 2006; and

(d) if the rule is a kind mentioned in section 25 (1) (e) - the desirability of being able to rely on the words in the Act.

(3) This section does not limit the power of the tribunal or a tribunal member to control proceedings.

Note A notifiable instrument must be notified under the Legislation Act.

(5) The tribunal must provide the rule‑making committee, under the Court Procedures Act 2004, with a copy of a rule made by the tribunal.

(1) The rules the tribunal may make under section 24 include, but are not limited to, rules to do the following:

(a) to allow the tribunal to make orders in a short form;

(b) to prescribe how the tribunal may deal with applications and other proceedings, including when a tribunal may stop a person representing another person before the tribunal;

(c) to facilitate the early resolution of matters arising in applications;

The tribunal may make rules about referring an application to an agency that the tribunal considers is more appropriate to handle the application.

(d) to prescribe the functions, and limits on the functions, of a registrar;

_(e) to prescribe a time for doing a thing by a person that is longer than the time for doing the thing provided under this Act or an authorising law - _

(i) in relation to an application to the tribunal; but

(ii) not in relation to any thing to be done by the tribunal;

(f) to allow the tribunal to make orders about costs for complying with subpoenas;

(g) to prescribe when the tribunal must make a person a party to a proceeding before the tribunal;

(h) to prescribe what happens if a decision that is the subject of an application for review to the tribunal is reconsidered.

(2) If a rule of a kind mentioned in subsection (1) (e) prescribes a time for doing something that is longer than the time for doing the thing set out in this Act or an authorising law, the time for doing the thing is the longer time prescribed by rule.

(3) To remove any doubt, a rule of a kind mentioned in subsection (1) (e) cannot prescribe a time for doing a thing that is longer than the time prescribed by an authorising law if the authorising law provides that the thing cannot be done in the longer time.

Note Any procedure under an authorising law for dealing with an application prevails over the procedures set out in the rules for dealing with the application (see s 27). For example, the Planning Act 2023, s 507 (4) provides, in relation to applications for review by third parties, that the period for making an application for review of a decision under that Act cannot be extended. That provision prevails over any rule to extend the time for making an application under that Act.

1. Pursuant to section 24 of the ACAT Act, the tribunal made the ACT Civil and Administrative Tribunal Procedures Rules 2020 (the Rules). Rule 38 of the Rules states:

38 Extension of time for making application

(1) This rule applies if there is a time limit under the Act, another law or these rules for making an application to the tribunal.

(2) The tribunal may, by order, extend the time for making an application.

Note A request for extension of time may be made even though the time to be extended has already ended (see Legislation Act, s 151C).

(3) The tribunal may make an order under subrule (2) on application by a party, another person or on its own initiative.

Note An application for an order under this part can be made using the approved form Application for Interim or Other Orders - General.

_(4) The tribunal may extend the time for making an application for review of a decision by up to 56 days - _

(a) starting on the day after the day the time for making the application ends; and

(b) ending at 4:30 pm on the day the extension of time ends.

(5) This rule is subject to any express provision about the extension of time in these rules or any other law.

1 the Planning and Development Act 2007 prohibits the extension of time for some applications

2 the Limitation Act 1985 provides for extension of time for some claims

1. In the case of the first and second decisions, the respondent made the "fairly straightforward objection"[1] that rule 38 of the ACAT Rules enables the Tribunal to extend the time for making an application for review "up to 56 days - starting on the day after the day for making the application ends", assuming rule 38 to be valid. The respondent submitted rule 38 is of no assistance, because the 56 day period expired before the application for review was made on 17 November 2023.
2. In the case of the first decision, the day for making an application for external review ended on 18 April 2023. A period of 56 days after that date ended on 13 June 2023.
3. In the case of the second decision, the day for making an application for external review ended on 14 July 2023. A period of 56 days after that date ended on 9 September 2023.
4. In my view, the respondent's submission regarding the first and second decisions is correct. The applicant did not say anything to the contrary, although the tribunal will be able to revisit the issue in circumstances where the applicant's application for an extension of time is yet to be finally determined.
5. In the case of the third decision, the day for making an application for external review ended on 22 September 2023.[2] A period of 56 days after that date ended at 4:30pm on 20 November 2023,[3] being after the date the application was made. The respondent therefore accepted that if rule 38 is valid and applicable, the tribunal has power to extend time for the applicant to apply for review of the third decision.[4] However, before dealing with the merits of the application to extend time, the respondent made a preliminary argument that rule 38 is not valid and/or applicable, with the result that the tribunal lacks power to extend time regardless of the merits.
6. The respondent's argument had many parts.
7. The respondent began by submitting that neither section 24 nor section 25 of the ACAT Act provide "a foundation" for a rule (inferentially rule 38) that permits the tribunal to extend time for making an application for external review under the MAI Act.
8. Referring to section 24, the respondent noted the power to make rules is "in relation to the practice and procedure" of the tribunal and its registry. The respondent submitted this does not extend to making a rule that empowers the tribunal to extend the prescribed timeframe in section 193 of the MAI Act. This, the respondent said, is because section 193 is not a provision which is in relation to the "practice and procedure" of the tribunal. Rather, it is a provision which substantially determines, among other things, "the timeframe in which such an application must be made" (emphasis added).[5]
9. The respondent drew on the following statement from John Pfeiffer Pty Ltd v Rogerson (John Pfeiffer):[6]

... "rules which are directed to governing or regulating the mode or conduct of court proceedings" are procedural and all other provisions or rules are to be classified as substantive.[7]

1. The respondent also drew on the proposition that the creation of a right of appeal from one body to another is not related to matters of practice and procedure, but instead related to substantive rights.[8]
2. The respondent submitted that where section 193 is a substantive provision, it said, it is outside the subject matter of the tribunal's rule-making power under section 24, and therefore is invalid.
3. The respondent then addressed section 25 that, as the respondent acknowledged, provides that "the rules the tribunal may make under section 24 include", per section 25(1)(e), "to prescribe a time for doing anything by a person that is longer than the time for doing the thing provided under [the ACAT] Act or an authorising law".[9]
4. The respondent submitted section 25(1)(e) does not assist, by way of validating rule 38, because the rule does not "prescribe" the time for doing a thing. Rather, it grants a broader power, namely, a power:

...to make an order to "extend" what must, as a matter of logic and language, be an otherwise "prescribed" time for making an application to the ACAT.[10]

1. The respondent submitted that where the tribunal's rule-making power is in relation to "practice and procedure", it cannot be concluded that section 25 provides a foundation for making a rule permitting the extension of an otherwise prescribed time for making an application to the tribunal. The respondent drew on the language of section 25(1)(e), which empowers a rule "to prescribe a time" not to extend a period of time.[11]
2. The respondent also addressed section 25(3) which limits the power to prescribe a time under section 25(1)(e) if the authorising law provides that the thing "cannot be done in the longer time". The respondent submitted the limitation does not "operate in reverse, so to speak" by implicitly empowering the tribunal to make rules extending an otherwise prescribed timeframe.
3. The respondent made several "additional or alternative" submissions to those concerning sections 24 and 25 of the ACAT Act, and rule 38 of the Rules. These were:

(a) The intent apparent from section 193 is for that provision to be the sole provision governing the time by which an application for external review is to be made. No regulation has been prescribed under section 193(2)(c) for any other period in which a person can apply. Drawing on section 24(2)(d) of the ACAT Act, the respondent submitted "it must be "desirable" to those governed by the MAI Act scheme to be "able to rely on the words" in the MAI Act.[12]

(b) Extending time should be characterised as a "thing to be done by the Tribunal". Pursuant to the limitation under section 25(1)(e)(ii), a rule granting such a discretion is not permissible.

(c) The language of section 193(2)(c), enabling a regulation to prescribe "a different time within which to make an application, supports an interpretation that a power to "prescribe" a timeframe is of a different character to a power to grant a discretion to "extend" an otherwise prescribed time.

(d) The MAI Act allows for internal review applications to be made and decided under sections 187 and 191, respectively, later than the stated periods (28 days and 10 days, respectively), but makes no provision in relation to late applications for external review under section 193. The respondent did not state what flows from this, but I presumed the respondent relied on the contrast to contend that if applications for external review could be made later than the period stated in section 193, the legislature would have said so.

(e) Section 25(1)(e) is not "robbed of utility" under the respondent's construction. The section still empowers the tribunal to make rules "for things to be done" in relation to an application to the tribunal, such as the provision of a statement of reasons.

(f) The respondent's construction achieves consistency with the objects of the MAI Act in section 6(d), namely to "promote and encourage the early, quick, cost-effective and just resolution of disputes".

1. The applicant submitted rule 38 of the Rules permits the tribunal to extend time for her to apply for external review of the third decision. She submitted it would not be "just" to uphold the respondent's contention that the tribunal lacks power to extend time.[13] The applicant added submissions as to why, in her circumstances, time should be extended to enable her application for review to be heard.
2. Save for her submission that the respondent's contention would not be just, contrary to the respondent's contention that it would be, the applicant's submissions went to the merits of whether an extension of time to review the third decision should be granted. As mentioned, the merits do not presently arise. These reasons concern the respondent's preliminary objection that the tribunal lacks power to grant an extension.

1. I accept that if applicable legislation states a timeframe within which an application must be made, and there is no power to extend the timeframe, the application is not maintainable if made outside the timeframe.[14]
2. I accept too that the tribunal, as a subordinate body created under statute,[15] can do only what it is empowered to do under statute. It does not have any general or inherent jurisdiction. Its only jurisdiction is that conferred on it by an enactment.[16]
3. As the respondent pointed out, section 193(2) mandates the timeframe within which an application for external review "must be made". In this case, the timeframe was 28 days from when the applicant received an internal review notice or became aware of the decision. Where she did not do so, her application for review is not maintainable unless the tribunal has power to extend the timeframe to a date, up to and including the date upon which she filed her application. Everything turns, therefore, upon the validity and applicability of rule 38 of the Rules.
4. I accept that for rule 38 to be valid, it must be a rule that could be lawfully made under section 24 of the ACAT Act. As the respondent pointed out, section 24 empowers the tribunal to make rules in relation to "the practice and procedure" of the tribunal.
5. The respondent submitted that a rule purporting to empower the tribunal to extend time within which an application can be made is a rule of substance, not a rule of practice or procedure, and so is not a valid rule under section 24. The distinction between substance and procedure is not easy to draw. In John Pfeiffer, on which the respondent relied, the High Court said:

97 As already indicated, the choice of law rules traditionally distinguish between questions of substance and questions of procedure. There is much history that lies behind the distinction, but search as one may, it is very hard, if not impossible, to identify some unifying principle which would assist in making the distinction in a particular case. But, as the majority said in McKain:

"Though the dividing line is sometimes doubtful or even artificial, the need to distinguish between substantive law and procedural law is clearly recognized for a number of forensic purposes."

98 Some statutes of limitation have traditionally been held to be procedural on the basis that they bar the remedy not the right; other limitation provisions have been held to be substantive. But all limitation provisions can affect whether a plaintiff recovers. (footnotes omitted)[17]

1. In Australian Iron & Steel Ltd v Hoogland,[18] the High Court per Windeyer J commented on limitation periods:

5. Statutory provisions imposing time limits on actions take various forms and have different purposes. Some are for preventing stale claims, some for establishing possessory titles, some for the protection of public authorities, some in aid of executors and administrators. Some are incidents of rights created by statutes. Some prevent actions being brought after, some before, a lapse of time. It may be that there is a distinction between Statutes of Limitation, properly so called, which operate to prevent the enforcement of rights of action independently existing, and limitation provisions annexed by a statute to a right newly created by it. In the latter case the limitation does not bar an existing cause of action. It imposes a condition which is of the essence of a new right.[19]

1. In Rudolphy v Lightfoot,[20] the High Court considered the 40 day period specified in section 355(e) of the Commonwealth Electoral Act (Cth) within which a petition disputing an election or return must be made. Drawing on the comments of Windeyer J, the Court said:

Section 355(e) stipulates an essential condition or jurisdictional requirement for the Court of Disputed Returns. In particular, s 358(1) does not give rise merely to a defence of non-compliance which may be waived by a respondent to the petition or displaced by relief given by the Court of Disputed Returns.

The present is an example of legislation of the kind identified by Isaacs J in The Crown v McNeil and by Windeyer J in Australian Iron & Steel Ltd v Hoogland. The 40 day requirement does not, to adapt the terms used by Windeyer J, "bar an existing cause of action"; rather "[i]t imposes a condition which is of the essence of a new right" (footnotes omitted).[21]

1. However, after his statements of principle in Australian Iron & Steel v Hoogland, Windeyer J continued:

But the abovementioned distinction, whatever may be its importance or validity in other cases, is of no importance for the solution of the question in this case. What we are concerned with here is a limitation upon an ordinary common law cause of action. It is ancillary to provisions for adjusting the results of the co-existence of claims for workers' compensation and actions for damages at common law: but it is a common law action for damages that it bars. That the sub-section does not impose an absolute bar on the expiration of a specified period, but provides for its extension, emphasizes its essentially procedural character.[22]

1. These cases are, of course, merely illustrative of the need to give close attention to the purpose of a limitation period and the kind of cause of action to which it relates when characterising the period as substantive or procedural. Appropriate characterisation requires close consideration of the legislation in which the limitation period is stated, or (in this case) from which it is derived, and the context and purpose of the limitation.
2. The respondent submitted that because the rule-making power under section 24 of the ACAT Act is only in relation to the "practice and procedure" of the tribunal, it cannot make a rule extending the limitation period in section 193 of the MAI Act because section 193 is substantive, not procedural.
3. In my view, where there is no "bright line" between matters of substance and matters of procedure, the success or otherwise of the respondent's argument depended on the breadth or ambit of the words "practice and procedure" in section 24, rather than how section 193 should be characterised. Put another way, if to extend time for filing an application for external review under section 193 of the MAI Act is a matter of practice and procedure for the purpose of section 24 of the ACAT Act, whether section 193 itself should be seen as a substantive or procedural provision is without consequence.
4. Section 24 does not, itself, provide any guidance regarding the ambit of "practice and procedure". I acknowledge a strong argument that a rule permitting an extension of time within which an application "must be made" (referring to section 193(2)) would be outside the ambit of the words "practice and procedure" in their ordinary usage, because it would permit the tribunal to overcome a statutory precondition for bringing the application.
5. That approach, however, overlooks section 25. Guidance regarding the ambit of permissible rules under section 24 must be drawn from section 25, which states the rules that can be made under section 24 "include, but are not limited to", rules of the kinds described in section 25(1). One of the stated topics of rules that can be made under section 24, per section 25(1)(e)(i), is rules "to prescribe a time for doing a thing by a person that is longer than the time for doing the thing provided under ... an authorising law... in relation to an application."
6. An 'authorising law' is defined in the Dictionary to the ACAT Act to mean, relevantly, "a territory law that provides that an application may be made to the tribunal". It follows the MAI Act is an authorising law.
7. In relation to section 25(1)(e)(i), the legislature gives by way of an example "a rule about the time for filing an application". Pursuant to section 126(1)(4) of the Legislation Act 2001 (the Legislation Act), "an example ... in an Act ... is part of the Act".
8. In my view, when sections 24 and 25(1)(e)(i), the example of a permissible rule under section 25(1)(e)(i) and the definition of authorising law are read together, the respondent's argument that section 24 provides no foundation for rule 38 falls away. That rule 38 might be characterised , in isolation, as substantive because it empowers (or purports to empower) the tribunal to extend the prescribed timeframe in section 193 of the MAI Act is beside the point. What matters is that for the purpose of section 24, by operation of section 25(1)(e)(i), a rule of a kind described in section 25(1)(e)(i) (which, per the example, includes a rule about the time for filing an application) is a rule in relation to the practice and procedure of the tribunal.
9. I turn next to the respondent's argument that even if a rule of that kind is a rule of practice and procedure, rule 38 is not such a rule (and is therefore invalid) because it does not "prescribe" a time for doing a thing - in this case, applying for external review. Rather, the respondent said, it "extends" the "prescribed" time for doing so.
10. In my view, the respondent's submission had several difficulties.
11. First, it is inaccurate to state rule 38 simply empowers the tribunal to extend the prescribed time, in the sense of extending time to whatever it chooses. Rule 38 prescribes that time for filing an application may be extended "by up to 56 days" starting on the day after the day the time for making the application ends. As the respondent pointed out, in this case the prescribed time ended at 4:30pm on 20 November 2023. If the applicant had filed her application for external review on 21 November 2023, rather than 17 November 2023, I expect the same argument that was made in relation to the first and second decisions would have been made for why the tribunal lacks power to extend time.
12. True, rule 38 empowers the tribunal to extend time (by up to 56 days) rather than stating (or prescribing) a longer period within which an applicant may apply for external review as of right. But, I am not persuaded that a rule giving flexibility regarding use of the power to extend, whether to extend and (if so) for how long to extend, within the limits of the stated time, is not permissible under section 25(1)(e). Indeed, it would be quite incongruous for the tribunal to make a rule of general application stating, or prescribing, a longer period of time within which a person could apply for external review, as of right, in the face of section 193(2) that states a period within which an application "must be made".
13. Second, the respondent's submission about rule 38 extending rather than prescribing begged the question: what is the meaning and ambit of the words "to prescribe". 'Prescribe' is an ordinary word. It is defined in the Macquarie Dictionary to mean, relevantly:

1. To lay down, in writing or otherwise, as a rule or a course to be followed; appoint, ordain or enjoin. 2. Med. to designate or order for use, as a remedy or treatment. - v.i. 3. to lay down rules, direct, or dictate. 4. Med. To designate remedies or treatment to be used. 5. Law to claim (a right or title) by virtue of long use and enjoyment.[23]

1. In the context of section 25, in my view, the first and third meanings of 'prescribe' are the relevant meanings. Applying those meanings, in my view, rule 38 prescribes a longer time for filing an application than the time for doing so under section 193(2) of the MAI Act. The fact that the rule permits an extension of the time prescribed under section 193(2), rather than itself prescribing a different time within which an application must be made, is irrelevant: it is still a rule laid down in writing about a course to be followed.
2. Third, I considered the legal meaning of 'prescribed', and whether that should be applied for the purpose of construing or defining the infinitive verb "to prescribe" in section 25(1).
3. 'Prescribed' is defined in the Dictionary to the Legislation Act as follows:

prescribed, in an Act, means prescribed by the Act or by regulation under the Act.

1. Critically, the definition entails a requirement that the rule or course to be followed be prescribed "by the Act or by regulation under the Act".
2. Rules made by the tribunal are neither the ACAT Act nor a regulation under the ACAT Act.
3. 'Regulation' is relevantly defined in the Dictionary to the Legislation Act as follows:

regulation, in relation to an Act, means a regulation made or in force under the Act.

1. 'Rules' is relevantly defined in the Dictionary to the Legislation Act as follows:

(a) of a court or tribunal - rules made by the entity having power to make rules (however described) regulating the practice and procedure of the court or tribunal;

1. Five of the kinds of rules the tribunal may make under section 25 are rules "to prescribe" the things then described, all of which may be made by rules, and none of which would be made by the Act or by regulation. To apply the meaning of 'prescribed' in the Dictionary to the Legislation Act would defeat the powers given to the tribunal under section 25(1)(b), (d), (e), (g) and (h) of the ACAT Act. The analysis confirms, in my view, that the words "to prescribe" in section 25(1) should be given their ordinary meaning, namely laid down, in writing or otherwise, as a rule or a course to be followed. That rule 38 empowers the tribunal to extend time for filing up to a stated time, rather than fixes or states a longer time, does not invalidate the rule. In my view, rule 38 can be and should be properly characterised as a rule properly made of a kind described in section 25(1)(e)(i).
2. I turn next to the respondent's submissions concerning section 25(3). The respondent submitted the note accompanying section 25(3) is "not part of the ACAT Act", and "cannot be used to supplement the limitation inherent in what ought properly to be the subject matter of rules", namely matters of practice and procedure.
3. With respect, I disagree. I acknowledge the note accompanying section 25(3) is not part of the ACAT Act,[24] but it can be considered for the purpose of "working out the meaning" of the ACAT Act and section 25(3) in particular.[25] 'Working out the meaning of an Act', and in this case the ACAT Act, is defined in section 138 of the Legislation Act. One of its meanings is "confirming or displacing the apparent meaning of the Act". A reference to "an Act" includes a reference to a provision of an Act.[26]
4. Whilst I do not think there is any ambiguity in section 25(3), sections 7 and 142 of the Legislation Act permit use of the note to confirm or displace the apparent meaning. Upon doing so, it becomes clear that section 25(3) is "to remove any doubt" that there is an exception to the tribunal's power to make rules extending time for doing a thing including the time for filing an application per section 25(1)(e), namely when an authorising law provides that it cannot be done. Implicit in the exception is the power to make rules subject to the exception.
5. Where nothing in the MAI Act, being an authorising law, provides that time for making an application for external review under section 193(2) cannot be extended, it follows the tribunal can make a rule to extend time and has done so in this case, namely rule 38.
6. The second part of the respondent's argument arising from section 25(3) is, in my view, misconceived. I accept section 25(3) does not "operate in reverse, so to speak," to empower the tribunal to make rules extending an otherwise prescribed timeframe, but that observation misses the point. The power is given under section 25(1)(e): section 25(3) simply curtails that power in the stated circumstances.
7. I turn to the respondent's additional or alternative submissions.
8. The respondent submitted the "intent apparent" from section 193 is for that section to be the sole provision governing the time by which an application for external review can be made. In support, the respondent relied on the absence of a regulation prescribing a different time and submitted (by reference to section 24(2)(d) of the ACAT Act) it is "desirable" those governed by the MAI Act scheme be "able to rely on the words" in section 193. At least three points come to mind as to why this submission should be rejected:

(a) To prescribe a different time under regulation within which a person may apply for external review is entirely different to a rule empowering the tribunal to extend a stated time (28 days) under section 193(2) by up to 56 days. The former would be to create a statutory right. The latter is the grant of a discretionary power, which the tribunal may or may not exercise according to the facts and circumstances of each case. The absence of a regulation under section 193(2)(c) creating a right, in my view, has no bearing on the existence or otherwise of the power, and is no basis to conclude section 193(2)(a) or (b) are the sole provisions governing time.

(b) Section 24(2)(d) states "in making a rule" of "a kind mentioned in section 25(1)(e)", the tribunal "must consider" the desirability of being able to rely on the words in the Act, and in this case section 193(2). Presumably, the tribunal did so - and then made rule 38. It can be reasonably concluded the tribunal decided the right to apply within 28 days under section 193(2) should be supplemented with a power to extend.

(c) If the legislature had intended section 193(2) to be the sole provision governing time, it would have said so in the same way it did in section 507 of the Planning Act 2023,[27] as contemplated under section 25(3) of the ACAT Act. It did not, from which the conclusion should be drawn that the legislature intended the tribunal to have power to extend time.

1. The respondent's submission that a discretion to extend time may (or should) be characterised as a "thing to be done by the tribunal", and is therefore not authorised per section 25(1)(e)(ii), is misconceived. The submission overlooks the opening words of section 25(1)(e), namely "to prescribe a time for doing a thing by a person that is longer than the time for doing the thing provided ...". There is no time, prescribed or otherwise, by which the tribunal may or must exercise a discretion to extend time for a person to apply for review of a reviewable decision: it is simply a power available. Section 25(1)(e)(ii) is directed at provisions that state periods of time within which the tribunal must do things, for example sections 79(3), 85(5), 180(2)(a), 182 and 188 of the Mental Health Act 2015.
2. The respondent relied on the circumstance that the MAI Act allows for a late internal review application under section 187, and an extension of time under section 191 for deciding an internal review application, but makes no provision for an extension of time for making an external review application under section 193. Again, in my view, the submission is misconceived. The former two scenarios are internal considerations between the insured and the insurer. The latter is an external consideration concerning an application to the tribunal. It is appropriate for the internal considerations to be in the MAI Act and for the external consideration to be in the ACAT Act and the Rules. It is also appropriate for the legislature not to duplicate in the MAI Act a consideration that is dealt with in the ACAT Act and the Rules.
3. The respondent submitted its construction of section 25(1)(e), namely that it does not give power to extend time, does not "rob" the section of utility because it empowers rules for other things, such as the time within which the tribunal must or should provide a statement of reasons. The submission was not persuasive. As discussed above, I see no reason not to construe section 25(1)(e) as empowering the tribunal to make a rule "about the time for filing an application", especially where that is a specific example forming part of the ACAT Act. That section 25(1)(e) might permit rules for other purposes is beside the point.
4. The suggested rule about time within which to provide a statement of reasons is also misconceived. Section 25(1)(e) is about prescribing a time for doing a thing that is longer than the time for doing the thing provided under the ACAT Act or an authorising law. Section 60 of the ACAT Act requires the tribunal to provide a statement of reasons, but is silent as to the time within which it must be done. In other words, section 25(1)(e) has no application to section 60 because there is "no time for doing the thing provided under the ACAT Act", namely providing a statement of reasons, by reference to which a rule could be made prescribing a longer time.
5. The respondent's submission that its construction achieves consistency with the objects of the MAI Act in section 6(d), namely to "promote and encourage the early, quick, cost-effective and just resolution of disputes", was unpersuasive. Whether it is "just" to deny an applicant the opportunity to apply for external review because they applied later than the stated 28 days, or whether an extension to apply should be given and, if so, for how long, is a question to consider by reference to the facts and circumstances of each case. I see no compelling reason for why it would be "just" to deny external review of a decision to suspend benefits simply because an applicant did not apply within the prescribed time regardless of the facts and circumstances giving rise to the delay. In my view, it would not.

1. For these reasons, I am satisfied rule 38 is valid[28] and, accordingly, the tribunal has power to extend the applicant's application for external review to 17 November 2023, being the date she applied.
2. Whether the Tribunal should exercise its power to extend time is a matter yet to be considered. The respondent stated it would object to the extension of time, should the tribunal find it has power to extend time, and would wish to be heard on that question. I will therefore order the applicant's application for an extension of time to file her application for external review be listed for further hearing.

[1] Transcript of proceeding, 9 February 2024, page 3, lines 20-25

[2] Transcript of proceeding, 9 February 2024, page 10, lines 11-23

[3] Transcript of proceeding, 9 February 2024, page 12, lines 8-22

[4] Transcript of proceeding, 9 February 2024, page 12, lines 8-22

[5] Respondent's written submissions dated 27 February 2024 at [2.13]

[6] John Pfeiffer Pty Ltd v Rogerson [2000] HCA 36

[7] [2000] HCA 36 at [99]

[8] Minister of State for the Army v Parbury Henty & Co Pty Ltd [1945] HCA 52; (1945) CLR 459 at 489

[10] Respondent's written submissions dated 27 February 2024 at [2.22]

[11] Respondent's written submissions dated 27 February 2024 at [2.25]

[12] Respondent's written submissions dated 27 February 2024 at [2.28(a)]

[13] Applicant's submissions filed 19 March 2024 at [3.1] (second appearing)

[14] DJ v RHS and JF [2004] ACTSC 12 at [12]; Whitby v Garlett and Others [2000] FCA 245 at [16]- [18]

[15] ACT Civil and Administrative Tribunal Act 2008 s 88

[16] Dennis Pearce, Administrative Appeals Tribunal (4th edition 2015) at [3.2]

[17] [2000] HCA 36 at [97]- [98]

[18] [1962] HCA 13

[19] [1962] HCA 13 per Windeyer J at [5]

[20] [1999] HCA 61

[21] [1999] HCA 61 at [10]- [11]

[22] [1962] HCA 13 per Windeyer J at [6]

[23] Macquarie Dictionary, 7th edition, 2017

[24] Legislation Act 2001 s 127(1)

[25] Legislation Act 2001 s 142(1), Table 142, item 1, column 2

[26] Legislation Act 2001 s 7

[27] See note to s 25(3)

[28] In the result, it was unnecessary to consider whether I had power in this proceeding to find rule 38 is invalid