Arbon and Comcare (Compensation) - [2017] AATA 2870

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.
........................................................................
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 473
Comcare 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…

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.

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Details

Case: [2017] AATA 2870
Decision Date: 14 November 2017

CaseChat Overview and Summary

This matter concerned an application for an extension of time to lodge an application for review before the Administrative Appeals Tribunal. The applicant, Mr. Arbon, sought to extend the time to appeal Comcare's decision of 23 October 2014, which affirmed the rejection of his compensation claim lodged in December 2013 following a cancer diagnosis. The application for extension of time was heard by Britten-Jones SM.

The primary legal issue before the Tribunal was whether to grant Mr. Arbon an extension of time to lodge his application for review, considering the significant delay of over two years. This required the Tribunal to assess the applicant's explanation for the delay, the merits of his substantive application, and the potential prejudice to the applicant if an extension were refused. The Tribunal was guided by the principle that an extension should not be granted if the substantive application is not reasonably arguable, and that the strength or weakness of the prospects of success can be a relevant consideration.

The Tribunal accepted Mr. Arbon's explanation for the delay, which included his initial decision not to pursue further action due to a period of relative health stability, followed by the return of his cancer in January 2016, necessitating palliative care and immediate treatment. Crucially, the Tribunal also took into account the severe personal difficulties Mr. Arbon and his wife faced during this period, including their struggles with their son's severe methamphetamine addiction, which led to property damage and his arrest. Furthermore, Mr. Arbon suffered a heart attack in March 2016, followed by intensive radiotherapy treatment that took six months to recover from. The Tribunal found that Mr. Arbon had an arguable case and that the considerable suffering he had endured, coupled with the devastating news of his incurable cancer, warranted granting the extension.

Consequently, the Tribunal granted Mr. Arbon's application for an extension of time to lodge his application for review in respect of the decision dated 23 October 2014.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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.

Ratio Decidendi

Legal Principle Established

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.