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Antonious v Comcare

Antonious v Comcare

Case [2018] AATA 3968 4 October 2018

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Antonious and Comcare (Compensation) [2018] AATA 3968 (4 October 2018)
Division:GENERAL DIVISION
File Number(s):2018/4758; 2018/4759
Re:Artif Antonious
APPLICANT

AndComcare
RESPONDENT

DECISION
Tribunal:Chris Puplick AM, Senior Member
Date:4 October 2018
Date of written reasons: 22 October 2018
Place:Sydney

The applications for extensions of time in the two matters before the Tribunal (2018/4758 and 2018/4759) are granted to 22 August 2018.

.........................[sgd]...............................................
Chris Puplick AM, Senior Member
CATCHWORDS
COMCARE – Extension of time applications – judicial guidance on time limits and extension of time applications considered – whether acceptable explanation of the delay – whether extension fair and equitable in the circumstances – whether applicant rested on their rights – prejudice to the respondent caused by the delay – prejudice suffered by general public - merits of substantial application – considerations of fairness as between the applicant and other persons – extension of time applications granted
LEGISLATION
Safety, Rehabilitation and Compensation Act 1988 - ss 16, 65
Administrative Appeals tribunal Act 1975 - s 29
CASES
Berkelaar v Comcare [1997] AATA 12015
Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541
Brown v Federal Commissioner of Taxation [1999] FCA 563
Carney v Comcare (Compensation) [2018] AATA 164
Comcare v A'Hearn [1993] FCA 498
Crick and Prosegur Australian Pty Ltd [2016] AATA 313
Dela Rosa and Minister for Immigration and Border Protection [2018] AATA 1262.
Djapouras v Comcare Oral decision dated 10 October 2017, No 2017/5266
Doyle v Chief of Staff [1982] FCA 124; (1982) 42 ALR 283
Emery and Comcare [2016] AATA 647
Hillman v Australian Postal Corporation [2017] AATA 1411
Hunter Valley Developments Pty Ltd and Others v Minister for Home Affairs and Environment (1984) 3 FCR 344
Jamal v Secretary, Department of Social Services [2018] FCA 513
Kim and Minister for Immigration and Border Protection 920180 AATA 155
Lucic v Nolan (1982) 45 ALR 411
MZABP v Minister for Immigration & Border Protection [2015] FCA 1391; 242 FCR 585
MZABP v Minister for Immigration & Border Protection [2016] FCAFC 110; 152 ALD 478
O’Gorman and Comcare (Compensation) [2017] AATA 2192
Outboard Marine Australia Pty Ltd v Byrnes [1974] 1 NSWLR 27
Phillips v Australian Girls’ Choir [2001] FMCA 109
Ralkon v Aboriginal Development Commission [1982] FCA 153
Romeo and Secretary, Department of Social Security [1992] 26 ALD 248
Wedesweiller v Cole [1983] FCA 94; (1983) 47 ALR 528
Windshuttle v Deputy Federal Commissioner of Taxation (Cth) [1993] 46 FCR 235
Zizza v Federal Commissioner of Taxation [1999] FCA 848.
SECONDARY MATERIALS
Clinical Framework for the Delivery of Health Services, Transport Accident Commission and WorkSafe Victoria
REASONS FOR DECISION
Chris Puplick AM, Senior Member
22 October 2018
Applications for Extension of Time

Mr Antonious comes before the Tribunal to seek extensions of time (EOT) to lodge two applications for reviews of decisions made by Comcare. By agreement both applications were heard together by the Tribunal.
On 25 July 2017 Comcare decided that Mr Antonious had no present…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Antonious v Comcare

Details

AGLC: Antonious v Comcare [2018] AATA 3968
Case: [2018] AATA 3968
Decision Date: 4 October 2018

CaseChat Overview and Summary

This matter concerned applications for extensions of time made by Mr Antonious in relation to two disputed Comcare determinations. The applications were heard by Senior Member Chris Puplick AM of the Administrative Appeals Tribunal (AAT).

The primary legal issue before the Tribunal was whether to grant Mr Antonious an extension of time to pursue his review of the Comcare determinations. This required the Tribunal to consider whether there was an acceptable explanation for the delay, whether granting the extension would be fair and equitable, whether the applicant had rested on their rights, the prejudice to the respondent and the general public, and the merits of the substantial application.

The Tribunal applied the guiding principles established in *Hunter Valley* and *Emery and Comcare (Compensation)*, noting that extensions of time should not be granted as a matter of course and that applicants must demonstrate sufficient merit to overcome public policy considerations. While Mr Antonious's application did not succeed on every *Hunter Valley* principle, the Tribunal found that he had succeeded on a sufficient number of grounds to satisfy the provisions of the *AAT Act* and grant the extension, having regard to all the circumstances.

The Tribunal ordered that the applications for extensions of time in matters 2018/4758 and 2018/4759 be granted, with the effective date for the review process set as 22 August 2018.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

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Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

In its examination of Mr Antonious’s application against those Hunter Valley principles, the Tribunal has come to the conclusion that the application succeeds and should be allowed to take forward the process of review of the two disputed Comcare determinations. That is not to imply that the application succeeds on every point in Hunter Valley but rather that there is success on a sufficient number of grounds to satisfy the provisions of the AAT Act to grant the application having regard to “all the circumstances”.Decision The applications for extensions of time in the two matters before the Tribunal (2018/4758 and 2018/4759) are granted to 22 August 2018.

Ratio Decidendi

Legal Principle Established

The Tribunal sees no matters arising in this context. Any other application along similar lines would no doubt be treated in the same manner and accorded the same degree of attention and procedural fairness. Consideration Extensions of Time should not be allowed as some sort of routine or matter of course. The Tribunal should, for example “be mindful not to automatically grant an extension of time due to an apparent mere absence of prejudice.”[37] Applicants should have to demonstrate that there is sufficient merit for them to overbear the important public policy principles set out by the High Court in Brisbane South. In seeking to establish if such a case is made out the Tribunal relies upon the guiding principles laid down in Hunter Valley.[37] Emery and Comcare (Compensation) [2016] AATA 647 at [31]. In its examination of Mr Antonious’s application against those Hunter Valley principles, the Tribunal has come to the conclusion that the application succeeds and should be allowed to take forward the process of review of the two disputed Comcare determinations. That is not to imply that the application succeeds on every point in Hunter Valley but rather that there is success on a sufficient number of grounds to satisfy the provisions of the AAT Act to grant the application having regard to “all the circumstances”.Decision The applications for extensions of time in the two matters before the Tribunal (2018/4758 and 2018/4759) are granted to 22 August 2018.

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Citations

Antonious v Comcare [2018] AATA 3968

Most Recent Citation

Phromkamon and Secretary, Department of Social Services (Social services second review) [2021] AATA 457

Cases Citing This Decision

O'Hara and Australian Postal Corporation (Compensation) [2023] AATA 402
Citation 1 (Para 8)

…e, for example, Australian Appaloosa Association Ltd v Australian Securities and Investments Commission [2018] AATA 3173 at [27]; Antonious v Comcare [2018] AATA 3968 at [10]-[11]; Saad v Secretary, Department of Social Services [2019] AATA 31 at [12]. See also Zizza v Commissioner of Taxation [1999] FCA 848 at [17…
Zaiter and Comcare (Compensation) [2022] AATA 2353
Citation 2 (Para 18)

…8 (Cth) for example, failure to conform with the Framework is not in any sense fatal to an application.[40] [40] Antonious and Comcare (Compensation) [2018] AATA 3968 at [46]-[47].…
NXVH and Child Support Registrar (Child support second review) [2022] AATA 2594
Citation 3 (Para 6)

…-[14]. [44] Australian Appaloosa Association Ltd v Australian Securities and Investments Commission [2018] AATA 3173 at [27]; Antonious v Comcare [2018] AATA 3968 at [10]-[11]; Saad v Secretary, Department of Social Services [2019] AATA 31 at [12]. See also Zizza v Commissioner of Taxation [1999] FCA 848 at [17]. […
Clifton and Australian Postal Corporation (Compensation) [2021] AATA 2886
Citation 4 (Para 9)

…at [17]. [4] Australian Appaloosa Association Ltd v Australian Securities and Investments Commission [2018] AATA 3173 at [27]; Antonious v Comcare [2018] AATA 3968 at [10]-[11]; Saad v Secretary, Department of Social Services [2019] AATA 31 at [12]. See also Zizza v Commissioner of Taxation [1999] FCA 848 at [17].…
Phromkamon and Secretary, Department of Social Services (Social services second review) [2021] AATA 457
Citation 5 (Para 10)

…48 at [17]. [4] Australian Appaloosa Association Ltd v Australian Securities and Investments Commission [2018] AATA 3173 at [27]; Antonious v Comcare [2018] AATA 3968 at [10]-[11]; Saad v Secretary, Dept Of Social Services [2019] AATA 31 at [12]. See also Zizza v Commissioner of Taxation [1999] FCA 848 at [17]. [5]…

See all citing cases →

Cases Cited

Dela Rosa and Minister for Immigration and Border Protection (Citizenship) [2018] AATA 1262
Citation 1 (Para 19)

…tension of time, the Tribunal should weigh together all relevant factors.[16] [14] Dela Rosa and Minister for Immigration and Border Protection [2018] AATA 1262. [15] Brown v Federal Commissioner of Taxation [1999] FCA 563 at [59]. [16] Zizza v Federal Commissioner of Taxation [1999] FCA 848.…
Carney and Comcare (Compensation) [2018] AATA 164
Citation 2 (Para 21)

…o make a decision which is “ reasonable in all the circumstances.” An acceptable explanation for delay [18] Carney v Comcare (Compensation) [2018] AATA 164 at [8] per Deputy President Humphries.…
O'Gorman and Comcare (Compensation) [2017] AATA 2192
Citation 3 (Para 16)

…discretion although it is to be expected that such an explanation will normally be given.”[10] [10] O’Gorman and Comcare (Compensation) [2017] AATA 2192 at [13], citing Comcare v A’Hearn (1993) 45 FCR 441.…
Hillman v Australian Postal Corporation [2017] AATA 1411
Citation 4 (Para 13)

…ds, which are in many ways merely a refinement of some of the principles laid down in Hunter Valley, are: ·Delay ·Prejudice ·Merits ·Fairness [8] [2017] AATA 1411.…
Emery and Comcare (Compensation) [2016] AATA 647
Citation 5 (Para 3)

…ve dialogue (of 51 pages) from which no reasonably minded reader could discern anything in the way of a contended submission(s).” [26] [25] [2016] AATA 647 [26] Emery and Comcare (Compensation) [2016] AATA 647 at [4-7]; [25] and [12].…
Crick and Prosegur Australia Pty Ltd [2016] AATA 313
Citation 6 (Para 20)

…in all the circumstances, the Tribunal must consider all of the circumstances of each individual case.[17] [17] Crick and Prosegur Australian Pty Ltd [2016] AATA 313 at [14]. The Case in Question…
MZABP v Minister for Immigration and Border Protection [2015] FCA 1391
Citation 7 (Para 17)

…nd the inevitable impact it would have on other users of the Court. [11] Jamal v Secretary, Department of Social Services [2018] FCA 513 at [6]. [12] [2015] FCA 1391; 242 FCR 585 at [62]. Upheld by the Full Court in MZABP v Minister for Immigration & Border Protection [2016] FCAFC 110; 152 ALD 478…
Phillips v Australian Girls' Choir Pty Ltd & Anor [2001] FMCA 109
Citation 8 (Para 14)

…In Phillips v Australian Girls’ Choir [2001] FMCA 109, McInnis FM provided a slightly amended version of the principles outlined by Wilcox J to take into account modifications made by other courts in considering the Hunter Valley Developments principles as follows: 1)There is no onus of proof upon an applicant for…
Zizza v Commissioner of Taxation [1999] FCA 848
Citation 9 (Para 19)

…rotection [2018] AATA 1262. [15] Brown v Federal Commissioner of Taxation [1999] FCA 563 at [59]. [16] Zizza v Federal Commissioner of Taxation [1999] FCA 848.…
Brown v Commissioner of Taxation [1999] FCA 563
Citation 10 (Para 19)

…factors.[16] [14] Dela Rosa and Minister for Immigration and Border Protection [2018] AATA 1262. [15] Brown v Federal Commissioner of Taxation [1999] FCA 563 at [59]. [16] Zizza v Federal Commissioner of Taxation [1999] FCA 848.…
Brisbane South Regional Health Authority v Taylor [1996] HCA 25
Citation 11

…Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541 Brown v Federal Commissioner of Taxation [1999] FCA 563 Carney v Comcare (Compensation) [2018] AATA 164 Comcare v A'Hearn [1993] FCA 498 Crick and Prosegur Australian Pty Ltd [2016] AATA 313 Dela Rosa and Minister for Immigration and Border Protection [2018] AATA 1262. Djapouras v Comca…
Windshuttle v Commissioner of Taxation [1993] FCA 553
Citation 12 (Para 8)

…e it “does not indicate the substantive matter has no merits.” [28] [27] Windshuttle v Deputy Federal Commissioner of Taxation (Cth) [1993] 46 FCR 235 at 243 per von Doussa J. [28] O’Gorman v Comcare [2017] AATA 2192 at [25].…
Comcare v A'Hearn [1993] FCA 498
Citation 13 (Para 14)

…as a relevant matter to be considered, even though there is no rule that such an explanation is an essential pre-condition ( Comcare v A'Hearn [1993] FCA 498; (1993) 45 FCR 441 and Dix v Client [sic] Compensation Tribunal [1993] VicRp 21; (1993) 1 VR 297 at 302). 3)Action taken by the applicant other than by mak…
Hunter Valley Developments Pty Ltd v Cohen [1984] FCA 186
Citation 14 (Para 10)

…Pty Ltd and Others v Minister for Home Affairs and Environment [6] should be taken as the guide by this Tribunal in determining EOT matters. [6] (1984) 3 FCR 344.…
Whitfords Beach Pty Ltd v The Commissioner of Taxation for the Commonwealth of Australia [1983] FCA 94
Citation 15 (Para 14)

…applicant and other persons otherwise in a like position are relevant to the manner of exercise of the court's discretion ( Wedesweiller v Cole [1983] FCA 94; (1983) 47 ALR 528).…
Wedesweiller v Cole [1983] FCA 91
Citation 16 (Para 14)

…ther persons otherwise in a like position are relevant to the manner of exercise of the court's discretion ( Wedesweiller v Cole [1983] FCA 94; (1983) 47 ALR 528).…
Lucic v Nolan [1982] FCA 232
Citation 17 (Para 12)

…ion (1982) 43 ALR 535 at 530). Indeed it is the prima facie rule that proceedings outside that period will not be entertained ( Lucic v Nolan (1962) 45 ALR 411 at 416). It is a precondition to the exercise of discretion in his favour that the applicant for extension show an “acceptable explanation of the delay” and…
Duff v Freijah [1982] FCA 191
Citation 18 (Para 12)

…or extension show an “acceptable explanation of the delay” and that it is “fair and equitable in the circumstances” to extend time. ( Duff v Freijah (1982) 43 ALR 479 at 485; Chapman v Reilly , Neaves J, 9 December 1983, not reported at p. 7)[7] [7] Hunter Valley Developments Pty Ltd and Others v Minister for Home Affai…
Ralkon v Aboriginal Development Commission [1982] FCA 161
Citation 19 (Para 12)

…sitively satisfied that it is proper so to do. The “prescribed period”….. is not to be ignored.” ( Ralkon v Aboriginal Development Commission (1982) 43 ALR 535 at 530). Indeed it is the prima facie rule that proceedings outside that period will not be entertained ( Lucic v Nolan (1962) 45 ALR 411 at 416). It is a pr…
Doyle v Chief of General Staff [1982] FCA 129
Citation 20 (Para 14)

…ested on his rights and whether the respondent was entitled to regard the claim as being finalised. (See Doyle v Chief of Staff [1982] FCA 124; (1982) 42 ALR 283 at 287). 4)Any prejudice to the respondent, including any prejudice in defending the proceeding occasioned by the delay, is a material factor militating ag…
Doyle v Chief of Staff [1982] FCA 124
Citation 21 (Para 14)

…applicant has rested on his rights and whether the respondent was entitled to regard the claim as being finalised. (See Doyle v Chief of Staff [1982] FCA 124; (1982) 42 ALR 283 at 287). 4)Any prejudice to the respondent, including any prejudice in defending the proceeding occasioned by the delay, is a material f…
Ralkon v Aboriginal Development Commission [1982] FCA 153
Citation 22 (Para 14)

…ositively satisfied it is proper to do so. The “prescribed period” of 28 days is not to be ignored ( Ralkon v Aboriginal Development Commission [1982] FCA 153; (1982) 43 ALR 535 at 550). 2)It is a prima facie rule that the proceedings commenced outside the prescribed period will not be entertained ( Lucic v Nolan…
Berkelaar and Comcare [1997] AATA 12015
Citation 23 (Para 2)

…of five years was not excessive in the particular circumstances.[24] The delays in this matter are approximately two and 13 months respectively. [24] [1997] AATA 12015.…
[2016] FCAFC 110 [2016] FCAFC 110
Citation 24 (Para 17)

…es [2018] FCA 513 at [6]. [12] [2015] FCA 1391; 242 FCR 585 at [62]. Upheld by the Full Court in MZABP v Minister for Immigration & Border Protection [2016] FCAFC 110; 152 ALD 478…
Jamal v Secretary, Department of Social Services [2018] FCA 513
Citation 25 (Para 17)

…the parties and the Court, and the inevitable impact it would have on other users of the Court. [11] Jamal v Secretary, Department of Social Services [2018] FCA 513 at [6]. [12] [2015] FCA 1391; 242 FCR 585 at [62]. Upheld by the Full Court in MZABP v Minister for Immigration & Border Protection [2016] FCAFC 110;…

Legislation Cited

Safety, Rehabilitation and Compensation Act 1988 (Cth)
1 mention (from Para 2)