Arbon and Comcare (Compensation)
[2017] AATA 2870
•14 November 2017
Arbon and Comcare (Compensation) [2017] AATA 2870 (14 November 2017)
Division:GENERAL DIVISION
File Number: 2016/6643
Re:Stuart Arbon
APPLICANT
AndComcare
RESPONDENT
DECISION
Tribunal:Senior Member Britten-Jones
Date:14 November 2017
Place:Adelaide
The time in which Mr Arbon is to lodge his application is extended by the Tribunal under subsection 27(9) of the Act to include the date on which his application was lodged.
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Senior Member Britten-Jones
CATCHWORDS
PRACTICE AND PROCEDURE — Extension of time to lodge application for review — Whether acceptable explanation for delay — Whether applicant rested on rights — Merits of substantive application — Extension of time granted.
LEGISLATION
Administrative Appeals Tribunal Act 1975 (Cth), s 29(7)
Safety, Rehabilitation and Compensation Act 1988
CASES
Hunter Valley Developments v Cohen (1984) 3 FCR 344
Seiler v Minister for Immigration, Local Government and Ethnic Affairs (1994) 48 FCR 83
Actew AGL Distribution V Australian Energy Regulator (2011) 195 FCR 142
Hamden v Secretary, Department of Human Services [2013] FCA 3
Hatzimanolis v A.N.I. Corporation Ltd (1992) 173 CLR 473Comcare v PVYW (2013) 250 CLR 246
REASONS FOR DECISION
Senior Member Britten-Jones
14 November 2017
This is an application pursuant to s 29(7) of the Administrative Appeals Tribunal Act 1975 (the Act) seeking to extend the time for making an application for review of a decision. The applicant lodged the application on 5 December 2016 with respect to a decision that was made on 23 October 2014. The application is brought 774 days beyond the prescribed time for making an application for review.
Under s 29(7) of the Act, the Tribunal has the power to extend the time for filing an application for review if “it is reasonable in all the circumstances to do so.”
Generally, to extend time the Tribunal must take into account the explanation for the delay, any prejudice to the respondent and whether the applicant has an arguable case.[1] The principles expounded by Wilcox J in Hunter Valley Developments v Cohen[2] will apply recognising that an explanation for delay is one factor to be considered when exercising the discretion to allow an extension but is not an essential precondition.[3]
[1] Bahonko v Nurses Board of Victoria (No 4) [2007] FCA 1449 at [48]
[2] (1984) 3 FCR 344 at [348-349].
[3] See Comcare v A’Hearn (1993) 45 FCR 441 at [444] following the Full Victorian Supreme Court in Dix v Crimes Compensation Tribunal [1993] 1 VR 297 at [302].
The list of matters identified by Wilcox J in the Hunter Valley decision are not exhaustive and were intended to provide only general guidance in the exercise of the relevant discretion.[4]
[4] Mentink v Minister for Home Affairs [2013] FCAFC 113.
In terms of an assessment of the merits of the case French J (as his honour then was) observed in Seiler v Minister for Immigration, Local Government and Ethnic Affairs[5] that:
… To say a substantive application has a reasonable prospect of success is to say no more than that there is a finite non-trivial probability that it will succeed….It is difficult to imagine any case which appeared weak but not hopeless in which it would be proper to refuse an extension on that account. On the other hand, the stronger the case appears to be, the higher may be the probability that an injustice will be done if an extension is refused. So a strong case may be a positive factor in favour of the grant of extension, but an apparently weak case cannot be treated as a factor weighing against it…
[5] (1994) 48 FCR 83 at [98].
As to the required extend of investigation into the merits Katzmann J said in Actew AGL Distribution v Australian Energy Regulator[6] that:
… it is inappropriate for this purpose to fully investigate the merits, although an obvious strength or weakness in the applicant’s case is a factor for or against the exercise of the discretion. …
[6] (2011) 195 FCR 142 at [111].
Further, Besanko J said in Hamden v Secretary, Department of Human Services[7]:
As far as the merits of the substantive application are concerned, it is not for the Court to determine the application at this stage. However, an extension of time should not be granted if the substantive application is not reasonably arguable. Furthermore, if the prospects of success of a substantive application are plainly strong or plainly week, then that may be a relevant consideration depending on the nature of the other factors (for example, the period of the delay and the explanation for it) relevant to the application for an extension of time.
[7] [2013] FCA 3 at [40].
CONSIDERATION
I now turn to address the relevant criteria in terms of this application. The applicant provided a written statement dated 24 May 2017 which was admitted in to evidence at the hearing on 18 July 2017. Under cross examination the applicant explained that after he had requested a reconsideration of the original decision in March 2014, he received a phone call from Comcare advising that the original decision had been upheld. He then received the decision a few days later in the mail but only read the front page. The applicant said in his written statement that:
Because things were going relatively well in terms of my cancer and treatment I did not seek any further advice at that time.
It was in January 2016 that I became aware of the worsening of my health.
I made the decision then and there that I would seek legal advice.
Unfortunately, my ability to access legal advice was delayed whilst I dealt with other significant events in my life. [8]
[8] Statement of Stuart Arbon dated 24 May 2017 at [166]-[169].
Under cross examination the applicant expanded upon the problems that he and his wife had to deal with regarding their eldest son’s addiction to methamphetamines. He explained how he and his wife struggled with his son’s addiction in the period from early 2015 and continuing in 2016. During this period the son was not living at home but he was causing damage to his rental property and at one stage he broke into the applicant’s house and damaged it which resulted in him being arrested.
It was in January 2016 at a three monthly medical check-up that he was told that the cancer had returned and that all future treatment was palliative care. He was immediately admitted for radiation treatment. Further at this time, he suffered a heart attack in March of 2016. A month after the heart attack he commenced external radiotherapy treatment which was administered daily for a week. It took him about 6 months to recover from the radiotherapy treatment.
THE EXTENT OF AND REASONS FOR THE DELAY
The delay of over two years is significant and, by itself, the length of this period would militate against an extension of time being granted.
I accept the evidence given by the applicant with respect to the series of events in his life in the years 2014 to 2016. The applicant lodged his claim with Comcare on 16 December 2013 after being diagnosed with cancer on or about 13 November 2012. His initial claim was rejected in March 2014 and he sought a reconsideration of that decision. Comcare affirmed the original decision to reject his claim by letter dated 23 October 2014. The applicant did not take legal advice at that time about the availability of a further review and any relevant time limits. He had received a telephone call from Comcare advising that the original decision had been upheld and outlining the reasons. When he received a written copy of the decision a few days later he only read the front page. Consequently, the applicant did not read the notice of rights at page 5 which provided for the steps that can be taken if the applicant is dissatisfied with the determination and sets out that there is a time limit of 60 days to lodge any application for review.
The respondent submits that it notified the applicant of his appeal rights and that he ought not be able to simply rest on rights and then seek an indulgence from Tribunal.
The applicant has provided an explanation for not lodging his application for review until 5 December 2016 which explanation includes that:
i)The applicant did not read that part of the decision dated 23 October 2014 advising him of his rights of review in circumstances where he had already been told that his claim had been rejected again by telephone and in circumstances where his cancer was in remission so he took no legal advice at that time;
ii)From at least the beginning of 2015 the applicant and his wife were dealing with the disastrous impact of their son’s addiction to “ICE”;
iii)The cancer returned in early 2016 and radiotherapy treatment followed. In the same period the applicant suffered a heart attack;
iv)It was only after the applicant had recovered from his heart attack and radiotherapy treatment that he contacted his lawyers again and sought further legal advice;
v)Shortly thereafter his application for review was filed on 5 December 2016.
I do not consider that the applicant rested on his rights without any explanation. To the contrary, I find that his explanation detailing the relevant events during the two year period of delay is entirely reasonable. The applicant has explained that he delayed in seeking legal advice because his cancer was in remission and he was dealing with their son’s addiction to methamphetamine. That explains the delay up to beginning of 2016. For the period following the explanation for the delay was the treatment that the applicant was receiving for his cancer and his heart attack together with ongoing issues with his son in the early part of 2016.
Despite the length of the delay in bringing his application for review I do not consider that this is a factor which weights either for or against refusing the application. I consider that the applicant has satisfactorily explained and that he has not merely rested on his rights.
Prejudice to the respondent
I do not consider that the delay will cause the respondent any difficulties in terms of having a fair hearing. I accept that the respondent, as an insurer and a public institution, has an interest in knowing it has no liabilities beyond a definite period and that it would have arranged its affairs accordingly. That is a factor that weights slightly in favour of refusing the application.
The substantive merits
The substantive issue is whether the applicant is entitled to compensation under s 14(1) of the Safety, Rehabilitation and Compensation Act 1988 (Cth) (the Act).
It is not disputed that the applicant suffers from thyroid cancer. The respondent concedes that this is an “ailment” as defined in the Act. However, the respondent does not concede that the applicant has suffered a “disease” for the purposes of the Act.
The applicant contends that s 7(1) of the Act applies so as to reverse the onus of proof in relation to liability under the Act because the applicant’s employment involved exposure to the action of ionising radiation. Two issues arise, first, whether he was exposed to radiation, and second, whether this occurred in the course of his employment.
The applicant says that he made numerous visits over several deployments to Maralinga between 1978 and 1979 where the British had carried out numerous nuclear tests. On the basis of the information provided in the applicant’s statement and based on various studies carried out at Maralinga by various agencies, Associate Professor Ruff expressed the opinion that “when Mr Arbon visited the so-called minor trial test sites, residual radioactive contamination was certainly still present.” He said that it was difficult to make a precise estimate of Mr Arbon’s radiation exposure but that a reasonable broad estimate would be in the range of 1-10 microSievert/hour which represents “a substantial dose.” He concludes that:
It can be stated that this exposure will have increased his long term risk of cancer, including thyroid cancer. It is not possible to conclude that this exposure caused his thyroid cancer. While it cannot be determined with any precision how significant a role this exposure may have played in the genesis of his thyroid cancer, this exposure cannot be disregarded as a possible contributing factor.
Another expert, Dr Kollias in his report dated 8 August 2014 concluded that Mr Arbon’s thyroid cancer may have either arisen or have been accelerated by his working near an area where nuclear testing was carried out and his exposure to radiation.
The second issue is whether the applicant’s exposure was in the course of his employment. The applicant gave evidence that when working at Maralinga he visited all the bomb and test sites with police officers travelling in open short wheeled Land Rovers. The applicant contends that the circumstances of his employment places his attendances at the test sites into the category of “interval cases” as discussed in Hatzimanolis v ANI Corporation Ltd [9]and Comcare v PVYW. [10] The respondent contends that there is no evidence that the applicant’s employment with the Commonwealth exposed him to the action of ionising radiation.
[9] (1992) 173 CLR 473.
[10] (2013) 250 CLR 246.
These are not issues that I can determine on this application and it would be inappropriate for me to fully investigate the merits. However, I am able to conclude that the substantive application has a reasonable prospect of success. It is certainly not hopeless and there is a finite non-trivial probability that it will succeed.
The effect on the applicant
In the circumstances of this matter, I also consider it appropriate to have regard to the effect on the applicant if an extension of time were not granted. The applicant has been diagnosed with an incurable cancer and has been told he will die despite further treatment. The news of his cancer returning was devastating for the applicant and his wife. If an extension of time is not granted then the applicant will not be able to pursue his claim for compensation. In the circumstances of the considerable suffering endured by the applicant in recent years, and ongoing, and where he has an arguable case and has provided a satisfactory explanation for delay, I consider that the applicant is entitled to an extension of time.
DECISION
I grant the application for an extension of time made on 5 December 2016 with respect to the reviewable decision dated 23 October 2014.
I certify that the preceding 26 (twenty -six) paragraphs are a true copy of the reasons for the decision herein of Senior Member Britten-Jones
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Administrative Assistant
Dated: 14 November 2017
Date(s) of hearing: 13 July 2017 Counsel for the Applicant: Mr M Roberts Advocate for the Applicant: Mr T White Solicitors for the Applicant: Tindall Gask Bentley Advocate for the Respondent: Mr C Bilboe Solicitors for the Respondent: Claims and Liability Management Legal, Comcare
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