Barry and BIS Industries Limited (Compensation)
[2020] AATA 2651
•6 August 2020
Barry and BIS Industries Limited (Compensation) [2020] AATA 2651 (6 August 2020)
Division:GENERAL DIVISION
File Number: 2019/3951
Re:LYNDON BARRY
APPLICANT
AndBIS INDUSTRIES LIMITED
RESPONDENT
DECISION
Tribunal:Senior Member Katter
Date:6 August 2020
Place:Brisbane
The Respondent’s decision of 13 May 2019 is set aside and substituted with a decision that the period within which the Applicant may request reconsideration of the determination made on 17 December 2018 is extended to 3 May 2019.
.................................[SGD]..................................
Senior Member Katter
CATCHWORDS
Safety, Rehabilitation and Compensation Act 1988 (Cth) – Section 62(3)(b) – Statutory 30-day limitation period – decision under review set aside.
LEGISLATION
Administrative Appeals Tribunals Act 1975 (Cth)
Safety, Rehabilitation and Compensation Act 1988 (Cth)
CASES
Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541
Comcare v Willems [1996] FCA 1586
Comcare v Williams [1996] FCA 975Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344
REASONS FOR DECISION
Senior Member Katter
6 August 2020
APPLICATION
The Applicant seeks a decision setting aside the Respondent’s refusal to extend time further to section 62(3)(b) of the Safety, Rehabilitation and Compensation Act 1988 (Cth) and a substituted decision that time be extended.
BACKGROUND
On 10 June 2018 a claim for workers’ compensation was made on behalf of the Applicant by Nigel Barry[1]. On the authorisation and declaration page on the claim for workers’ compensation, Mr Nigel Barry refers to a “power of attorney”[2]. At questions 10, 11 and 12 in the workers’ compensation claim form as to the injury or illness claimed it is stated[3]:
[1] PT3, page 16.
[2] PT3, page 16.
[3] PT3, page 11.
“10. For what injury or illness are you claiming workers compensation?
Quote the precise diagnosis as stated on the medical certificate. For example: diagnosed conditions are: disc prolapse, strained cruciate ligament and anxiety disorder, and they are not: back pain, sore knee and stress.
Diagnosed condition:
Stroke (Blood clot to brain)
Aneurysms due to negligent treatment by Rio Tinto paramedic. The injury was severely exacerbated resulting in major aneurysm.
Please attach ORIGINAL medical certificate detailing your work-related injury or illness
11. What part(s) of your body have been most affected by injury or illness?
For example: right knee, upper left arm, lower back, neck, respiratory system, mental state.
Part(s)
Paralysis down right side of body
Loss of speech, right arm and leg paralysed
12. When were you injured or when did you first notice you were ill?
Give approximate time if exact time if not known.
Date 23/05/2018
Time 3:00 PM … ”
In the claim form as to how the Applicant was injured or became ill it is stated[4]:
[4] PT3, page 14.
“21. Where [were] you when you were injured or contracted your illness?
Working at my usual workplace …
22. What is the address [at] which you were injured or contracted your illness?
Address
Gate 3, Tabiru, Andoon Weipa
State QLD Postcode 4874 …
23. What were you doing at the time you were injured or contracted your illness?
i.e. What started the chain of events that led to your injury or illness?
Driving Roadtrain Kenworth 1268
24. What action, exposure or event happened to cause you injury or illness?
For example: I slipped on the floor, I lifted a box.
Badly design unmaintained spoon drain on track
Poor designed suspension for purpose
25. What actually injured you, or made you ill?
For example: a car, the floor, a computer keyboard, a person, a stairway, a box
Hard jolt in truck causing spinal and neck compression resulting in a headache, numbness in face, neck and arm … ”
On about 28 August 2018, the Applicant gave the Respondent, in handwriting, permission to access all of the Applicant’s medical record and responded to a section 58 Notice[5].
[5] T37, pages 185-188.
On 17 December 2018 the Respondent, by email letter to the Applicant, stated[6]:
[6] PT43, pages 206-207.
“RE: CLAIMS DETERMINATION – LIABILITY
Legislation: Safety, Rehabilitation and Compensation Act 1988 (Cth)
Claim Number: BI-2018-05-0955
Date of Injury: 23 May 2018
I am writing to you regarding your claim for workers compensation in respect of “stroke – blood clot to brain”, claimed to have been sustained on 23 May 2018 …
Your claim has been considered in accordance with the provisions of the SRC Act, taking into account all of the available evidence (medical and other) presently before me, I have determined that Bis is not liable to pay compensation under section 14 of the SRC Act in respect of “left middle cerebral artery territory infarct/stroke”.
Please note that as a result of this determination you are not entitled to compensation for medical treatment and incapacity to work pursuant to sections 16 and 19 of the SRC Act in respect of that condition.
Please find attached the terms of the Determination.
Notice of Rights
If you are dissatisfied with this determination you may request a review of the determination in writing under section 62 of the SRC Act. Please note that your reconsideration request will be assessed by an independent third party, currently QBE Insurance.
Conditions
1. A request for reconsideration shall be in writing and shall include your reasons for the request.
2. The request for reconsideration of a determination shall be given to Bis Industries within 30 days of determination first coming to your notice.
In addition to the conditions set out above, you are advised that failure to provide a request for reconsideration within the 30 days allowed may result in you losing your right to request a reconsideration.
An application to the Administrative Appeals Tribunal is dependent upon undertaking a reconsideration in the first instance. You do not have a right of application to the Administrative Appeals Tribunal until a reconsideration of the determination has been completed.
If you intend to obtain legal advice in respect to a request for reconsideration, the cost obtaining the advice is NOT recoverable against Bis Industries.
If you wish to request a reconsideration, please email your request and reasons for same to [email protected]. In the alternative you may post it to:
Bis Industries
Workers Compensation Insurance Services (WCIS)
Locked Bag 2143
North Sydney NSW 2059 … ”On 21 December 2018 the Respondent, by email letter to the Applicant, stated that the Applicant’s role will no longer be required at Andoom and the Respondent has identified a potential suitable alternative position for the Applicant at sites set out in a schedule attached[7].
[7] T44, pages 218-220.
On 3 January 2019 the Respondent, by further email letter to the Applicant, stated that the Applicant has decided to accept a severance payment and employment will cease on 31 December 2018, with accrued entitlements processed on 8 January 2019[8].
[8] T44, page 221.
On 3 May 2019 the solicitors for the Applicant corresponded to the Respondent by letter, referring to the determination of the Respondent dated 17 December 2018 and seeking an extension of time until 3 May 2019 to submit the request for reconsideration[9]. As to the extension of time, the solicitors for the Applicant stated in that correspondence dated 3 May 2019[10]: “Due to my client’s injuries sustained, he was not in a position to complete the request for reconsideration. Slater and Gordon Lawyers had just received instructions to act on Mr Barry’s behalf and has sought this reconsideration promptly.”
[9] T46, pages 222-223.
[10] T46, pages 222-223.
On 6 May 2019 the Respondent corresponded by email letter to the solicitors for the Applicant stating[11]:
[11] T47, page 224.
“RE: REQUEST FOR RECONSIDERATION
Legislation: Safety, Rehabilitation and Compensation Act 1988 (Cth)
Claim Number: BI-2018-05-0955
Date of Injury: 23 May 2018
The Bis Industries Workers’ Compensation Insurance Services (WCIS) department acknowledges receipt of your request for reconsideration, received on 3 May 2019 via email, in relation to the determination dated 17 December 2019 which found Bis Industries was not liable to pay compensation.
I note that the request for reconsideration was not received with 30 days of your client Mr Barry receiving the determination both in writing and verbally. Accordingly, you have requested an extension of time until 3 May 2019.
As discussed over the phone today with Mrs Leslie, the Bis WCIS department does not conduct reconsideration requests internally. As such, your request will be directed to the following independent third party:
The Reconsideration Officer
QBE Insurance Services
GPO Box 742
Sydney NSW 2001
Should you wish to submit any additional information please contact QBE directly on 02 9375 4269.In most circumstances QBE will endeavour to issue a reviewable decision within 30 calendar days of receipt. This correspondence will be sent directly to by QBE and a copy also provided to Bis … ”
On 13 May 2019 QBE Insurance for the Respondent corresponded by email letter to the solicitors for the Applicant stating[12]:
[12] T48, page 226.
“I refer to your claim for compensation under the Safety, Rehabilitation and Compensation Act 1988 (the SRC Act) in respect of “stroke – blood clot to brain” sustained on 23 May 2018, and in particular to your letter dated 3 May 2019, submitted via legal representatives Slater & Gordon Lawyers, requesting a reconsideration of the decision dated 17 December 2018, which found that:
“Bis Industries is not liable to pay compensation to Lyndon Barry under section 14 of the SRC Act in respect of the “left middle cerebral artery territory infarct/stroke.”
Before proceeding with undertaking a reconsideration of the determination made on 17 December 2018, it is necessary to first address whether an extension of time should be granted to the claimant for this purpose.
Having regard to the available evidence, I find that an extension of time is not granted to the claimant for the purpose of making a request for reconsideration of the determination made on 17 December 2018.
I enclose a statement detailing the reasons for reaching this decision, and a notice of your rights.
If you have any questions, please call me on the above telephone number quoting the file reference.
Notice of Rights
Notice to Claimant – Review of decision by the Administrative Appeals Tribunal
If you believe this decision is wrong, you have the right to apply for a review of the decision to the Administrative Appeals Tribunal (AAT). The AAT has no connection with QBE Self Insurance Services … ”
In the reasons for the decision enclosed with the correspondence of 13 May 2019 from QBE Insurance for the Respondent it is stated[13]:
“ … 5. In considering whether to grant an extension of time to the claimant for the making of a request for reconsideration of the determination dated 17 December 2018, consideration must be given to:
a.The cause of, and the explanation for, the delay in submitting the request;
b.The claimant’s conduct in this matter;
c.The consequences to Bis industries of the delay.
[13] PT48, pages 228-229.
6. It is apparent that the claimant was fully informed as to his rights of appeal by a representative of Bis Industries during the telephone discussion on 17 December 2018.
7. Whilst the claimant’s legal representative asserts that they had only recently been instructed to act on the claimant’s behalf, the claimant has been well aware of his appeal rights since the date of the determination, being 17 December 2018. As such, I do not considering [sic] the claimant has provided a reasonable explanation for his delay in seeking reconsideration.
8. Given that over 4+ months have elapsed between the determination of 17 December 2018 being made, and the claimant subsequently seeking reconsideration of the determination, I consider that Bis Industries has been disadvantaged in its ability to assess whether conditions suffered by the claimant at the present time relate to the condition the subject of the determination made on 17 December 2018. Certainly, there may have been circumstances [that] arise in the intervening period that may have given rise to new and distinct injuries/conditions, for which Bis Industries is now able to properly investigate in terms of a liability to pay compensation.
9. Leaving aside my decision to deny the extension of time application, I have also taken into consideration all the medical and factual evidence on file and I find that I would have affirmed the determination under review in any event. The primary delegate undertook a thorough investigation in regard to the claimant’s claim for compensation and provided a detailed assessment of the facts in the primary decision. In respect of A/Prof Chambers opinion, where he considered that any temporal relationship between the bump in the road and the onset of a stroke some 24 hours later was coincidental and I believe this opinion should be preferred. Specifically, the evidence on file does not allow me to find that the claimants stroke had been significantly contributed to by his employment with Bis. The fact that the claimant suffered from Type 2 Diabetes Mellitus for 20 years, suffered hypertension, stress and anxiety and had a long history of smoking, I believe would have greatly contributed, to a significant degree, to the onset of the claimant’s condition.
Decision
10. Therefore, on the basis of the available evidence, I find pursuant to subsection 62(3) of the SRC Act, that it is not appropriate in the circumstance to provide the claimant with an extension of time for the submission of a request for reconsideration of the determination dated 17 December 2018 … ”
The Applicant filed an application for review with the Tribunal dated 2 July 2019 seeking review of the decision of the Respondent dated 13 May 2019[14].
[14] T1, pages 1-3.
SECTION 62
Section 62[15] of the Safety, Rehabilitation and Compensation Act 1988 (Cth)[16] (“the Act”) states:
[15] Section 62 … am. No. 264, 1992; No. 144, 2001; No. 181, 2011.
[16] Act No. 75 of 1988, C2019C00158 registered 1 May 2019.
“62 Reconsideration of determinations
(1) A determining authority may, on its own motion:
(a) reconsider a determination made by it; or
(b) cause such a determination to be reconsidered by a person to whom its power under this section is delegated, being a person other than the person who made, or was involved in the making of, the determination;
whether or not a proceeding has been instituted or completed under this Part in respect of a reviewable decision made in relation to that determination.
(2) A request to a determining authority to reconsider a determination made by it may be made by:
(a) the claimant; or
(b) if the determination affects the Commonwealth—the Commonwealth; or
(c) if the determination affects a Commonwealth authority—that Commonwealth authority.
(2A) If a determining authority holds a licence under Part VIII that is subject to conditions requiring the determining authority to arrange for the reconsideration by another person of any determination made by the determining authority, nothing in subsection (1) or (2) is to be taken to derogate from that requirement.
(3) A request for reconsideration of a determination shall:
(a) set out the reasons for the request; and
(b) be given to the determining authority within 30 days after the day on which the determination first came to the notice of the person making the request, or within such further period (if any) as the determining authority, either before or after the expiration of that period, allows.
(4) On receipt of a request, the determining authority shall reconsider the determination or cause the determination to be reconsidered by a person to whom its power under this section is delegated, being a person other than a person who made, or was involved in the making of, the determination.
(5) Where a person reconsiders a determination, the person may make a decision affirming or revoking the determination or varying the determination in such manner as the person thinks fit.
(6) The determining authority or person must decide a request made by a claimant to reconsider a determination within the period prescribed by the regulations.”
The Respondent’s decision dated 13 May 2019 about whether or not to allow an extension of time in accordance with s 62(3)(b) of the Act is a reviewable decision in accordance with s 62(1)[17] of the Act. As stated in Comcare v Williams [1996] FCA 975 per Northrop, Wilcox and Nicholson JJ, “ … it is clear the determining authority's decision in relation to extension of time is a “reviewable decision”; that is a decision susceptible to review by the Administrative Appeals Tribunal”.
[17] Paragraph 2 of the Applicant’s Submissions dated 7 May 2020.
In Comcare v Willems [1996] FCA 1586 at [40] per Finn J, it was stated that the relevant considerations as to s 62(3)(b) of the Act are: The cause of, and the explanation for, the delay in submitting the request; the claimant’s conduct; and the consequences to a Respondent of the delay and of the claimant’s conduct. Further, it was held that there may be other reasons that could make it entirely proper to look beyond the period of delay[18]. In Willems reference was made at [41] to Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344, where it was held that the merit of a substantive request is a relevant consideration.
SUBMISSIONS
[18] Comcare v Willems [1996] FCA 1586 at [41] per Finn J.
Period of delay
The length of the delay is 107 days; that is 77 days beyond the 30-day limit in s 62(3)(b) of the Act. The Respondent submits that the 30-day period is very short, evincing an intention by the legislature to act with great expedition[19].
[19] Paragraph 14 of the Submissions of the Respondent dated 28 May 2020.
Explanation for delay
During the hearing on 16 April 2020 the Applicant referred to his statement dated 25 October 2019[20]:
[20]Paragraphs 12-24 of the Applicant’s Statement dated 25 October 2019.
“ … 12. The stroke had a dramatic and irreversible effect on my life as I knew it. I began to experience difficulty with my short-term memory and recalling words when I would try speak with people which I was finding hard to cope with …
14. I am right hand dominant and was having difficulty gripping things with my hand. I had to learn how to feed myself again. I also feel that I am having to re-learn how to walk properly again with my right leg. My health suffered because I was unable to maintain any standard of self-care needed to rehabilitate myself.
15. I had the help of my father, Mr Nigel Patrick Barry, in completing my workers’ compensation claim form on 10 June 2018 due to my injury and noted that I needed him to act on my behalf on the claim. This is because I had deteriorated significantly, both physically and mentally. My father is also my power of attorney.
16. On 6 December 2018, I received a letter from BIS titled “Notice of Termination”. It stated that our haulage services at Andoom Mines were being reduced and my position was being made redundant. This would take effect from 31 December 2018. This was another thing on top of my stroke and my physical restrictions, that I had to try and deal with at a very difficult time in my life.
17. On 17 December 2018, BIS declined my claim because they did not consider my employment [was] a significant contributing factor to my stroke. I quickly sunk into deep depression, not having the ability or support needed to function or think clearly. When I received the email from BIS rejecting my claim, I was in no mental state to comprehend or respond to the decision rationally or confidently. Due to the stroke and my state of mind, I was unable to adhere to the timeframes.
18. On 3 January 2019, I received a further letter noting that after consideration of suitable alternative positions provided by BIS, that I took a severance payment as I knew I was unable to do the work I did prior to my stroke, and my employment with BIS ceased on 31 December 2018.
19. I felt that nearly every aspect of my life had been impacted.
20. A few days later, on 21 December 2018, I received a further letter confirming my role was no longer required.
21. My father came up from Brisbane for the first time since my stroke to assist me with my living conditions and general support for my emotional turmoil. My father lent me a small amount of money and encouraged me to seek legal advice as he knew I had been totally incapable financially, and considering the extent of the neurological impairment and associated factors as a result of the stroke, mentally too.
22. Without my father’s support, I was incapable of fully being able to understand or comprehend the requirements of BIS, and as such, unable to respond to their decision. I still struggle with memory loss and multiple other brain disfunctions, so my father is trying his best to assist me from Brisbane. He assists me with interpreting and explaining all the processes which I still find overwhelming, in a way I can understand within my abilities.
23. I acknowledge that I was told I could appeal the decision by BIS when it was given to me, but as a result of my debilitating circumstances and impairments caused from the stroke, I was not able to respond appropriately or adequately.
24. With the help of my father, I sought legal advice and an appointment was arranged to speak with Slater and Gordon Lawyers on 2 May 2019. I was told that I was out of the 30-day time frame and an urgent request for reconsideration was required, seeking an extension of time to submit the request for reconsideration … ”
Therefore, the Applicant refers to the consequences of the stroke, financial difficulties, access to email, employment severance and his emotional state further to those matters. The Applicant agreed in oral evidence with the proposition that, after receiving the Respondent’s rejection decision in December 2018, the Applicant could have sought assistance from his father in challenging that decision, but did not seek or receive that assistance[21]. The Applicant accepted that he had the terms of the determination explained to him by Mr Michael Unwin on 17 December 2018 and could have communicated with his father to seek assistance further to that communication[22]. The Applicant’s evidence was that, after receiving the Respondent’s rejection decision in December 2018, the Applicant ‘gave up on life altogether’[23]. The Applicant’s explanation for the delay was his poor emotional state following the receipt of the Respondent’s decision, in circumstances where the Applicant had suffered from a stroke at a relatively young age of 45, with the requirement to learn basic things again after hospitalisation[24]. The Applicant stated that the conclusion of the Applicant’s employment was material to the Applicant’s emotional state and therefore relevant to the delay. The Applicant particularly referred to the statement by Dr Chambers[25]: “Depression and the psychosocial factors he was experiencing may have impacted on functional capacity.”
[21] Paragraph 22.1 of the Submissions of the Respondent dated 28 May 2020.
[22] Paragraph 22.2 of the Submissions of the Respondent dated 28 May 2020.
[23] Paragraph 8 of the Submissions of the Applicant dated 7 May 2020.
[24] Paragraph 10(a) of the Submissions of the Applicant dated 7 May 2020.
[25] Exhibit 2, page 224.
Whether the claim was finalised
The Respondent submits that the Applicant did nothing from 17 December 2018 to 3 May 2019 to inform the Respondent as to a reconsideration of the finality of the determination[26]. The Respondent submitted that the Applicant appeared to be accepting of Mr Unwin’s decision on 17 December 2018, when the decision was communicated orally to the Applicant[27].
[26] Paragraph 33 of the Submissions of the Respondent dated 28 May 2020.
[27] Paragraph 34 of the Submissions of the Respondent dated 28 May 2020.
Prejudice
The Applicant submits that there is no evidence of prejudice to the Respondent[28]. The Respondent submits that there would be prejudice that the Respondent would suffer if the Tribunal were to allow a further period of time under s 62(3)(b) of the Act[29]. First, the Respondent would suffer the usual presumptive prejudice[30], as stated in Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541 at 555 per McHugh J, that the “deterioration in quality is palpable as in the case where a crucial witness is dead or an important document has been destroyed … that time will diminish the significance of a known act or circumstance because its relationship to the cause of action is no longer as apparent as it was when the cause of action arose”. The Respondent does not identify any particulars as to that usual presumptive prejudice[31]. Secondly, the Respondent submitted that there was evidence of actual prejudice as to the Respondent, in that the Applicant would be limited in the evidence he could give, having regard to his short-term memory and his difficulty recalling facts, matters and circumstances as to his claim[32]. The Respondent submitted that the prejudice to the Respondent is particularly palpable in a case where the Applicant’s evidence as to the precise point in time when he first experienced symptoms is likely to be relevant in that he would need to make a case that he suffered an injury in the course of his employment[33]. Thirdly, the Respondent submitted that there is prejudice in that an insurer has an interest in knowing that it has no liabilities beyond a definite period[34], where the Respondent is a limited liability company and it would be unfair to its shareholders to open up a potential liability[35].
[28] Paragraph 15 of the Submissions of the Applicant dated 7 May 2020.
[29] Paragraph 38 of the Submissions of the Respondent dated 28 May 2020.
[30] Paragraph 39 of the Submissions of the Respondent dated 28 May 2020.
[31] Paragraphs 37-50 of the Submissions of the Respondent dated 28 May 2020.
[32] Paragraphs 40-41 of the Submissions of the Respondent dated 28 May 2020.
[33] Paragraph 45 of the Submissions of the Respondent dated 28 May 2020.
[34] Paragraph 46 of the Submissions of the Respondent dated 28 May 2020.
[35] Paragraph 48 of the Submissions of the Respondent dated 28 May 2020.
Merits of the substantive claim
As to the merits of the substantive claim, the Applicant submits that all that is required is an ‘impressionistic assessment’ of whether the claim has some merit or is reasonably arguable[36], with Dr Chambers in the report dated 25 October 2018 articulating that the stroke occurred “in the course of, the employee’s employment”, in accordance with s 5A(1)(b) of the Act[37]. The Applicant submitted that Dr Chambers described the stroke sufficiently to make it a physical injury in accordance with the Act[38]. On the Applicant’s submission the claim is at least a reasonably arguable one[39].
[36] Paragraph 18 of the Submissions of the Applicant dated 7 May 2020.
[37] Paragraph 19 of the Submissions of the Applicant dated 7 May 2020.
[38] Paragraphs 20-21 of the Submissions of the Applicant dated 7 May 2020.
[39] Paragraph 22 of the Submissions of the Applicant dated 7 May 2020.
The Respondent submits that the Applicant’s claim could only be for either an ailment, an aggravation of such an ailment, that was contributed to, to a significant degree[40] or an alleged injury arising out of the Applicant’s employment[41]. The Respondent submits that the fresh claim for compensation illustrates a jurisdictional limitation on a review officer, if an extension of time were allowed[42].
[40] Paragraph 60.1 of the Submissions of the Respondent dated 28 May 2020.
[41] Paragraph 60.2 of the Submissions of the Respondent dated 28 May 2020.
[42] Paragraph 65 of the Submissions of the Respondent dated 28 May 2020.
The Respondent submits that the Applicant’s claim ‘must fail’ and that based on the available evidence as to the claim made 10 June 2018 a reconsideration would be obliged to affirm the determination[43]. The Respondent submits that any potential case by the Applicant, in the alternative, is excluded by the evidence of Professor Chambers[44].
[43] Paragraph 74 of the Submissions of the Respondent dated 28 May 2020.
[44] Paragraph 84 of the Submissions of the Respondent dated 28 May 2020.
Further, the Respondent submits that there is futility in allowing further time as any subsequent application for review to the Tribunal would be “conspicuously fragile” and would have to be dismissed under s 42B of the Administrative Appeals Tribunals Act 1975 (Cth)[45]. The Respondent submits that it would be inappropriate to conclude that the Applicant has an arguable case on the state of the evidence presently available and likely to be available[46].
[45] Paragraph 87 of the Submissions of the Respondent dated 28 May 2020.
[46] Paragraph 91 of the Submissions of the Respondent dated 28 May 2020.
CONSIDERATION
Sub-paragraph 62(3)(b) of the Act includes the alternative for retrospective ‘allowance’ of a further period, if any, within the sub-paragraph. The sub-paragraph (b) does not include any other express restriction on the retrospective allowance of a further period, if any.
As referred to above, the Respondent and Applicant have made submissions as to the considerations that are relevant to the exercise of the discretion conferred by s 62(3)(b) of the Act. The delay of 77 days beyond the 30-day period for the request for reconsideration of the determination is not insignificant. The Respondent refers to the decision in Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541 at 555 per McHugh J, a decision as to limitation of actions legislation, rather than this specific paragraph in the Act. As to the explanation for the delay, the Respondent refers to decisions where specific facts resulted in particular discretionary conclusions. The evidence from the Applicant was that the delay resulted from the physical impairment from the stroke, combined with the conclusion of his work, leading to a deteriorated mental and emotional state, resulting in him not seeking assistance until in or about May 2019 as to a request for reconsideration. There is no evidence as to the Applicant being prevented or precluded from requesting the reconsideration, beyond the emotional state as described by the Applicant. The sub-paragraph 62(3)(b) of the Act itself provides that the Respondent cannot regard the claim as being finalised beyond the 30-day period, having regard to the potential for the Applicant to seek allowance of a further period to request reconsideration of a decision. The submissions of the Respondent as to prejudice do not particularise the prejudice beyond the general principles as to the prejudice caused by the delay[47]. The Respondent submits, as referred to above, that the substantive merits of the Application are limited statutorily. The Applicant submits that the substantive merits have at least a reasonable prospect of success. As to considerations of fairness, each particular application is to be considered having regard to s 62(3)(b) of the Act. In all the circumstances referred to above, there will be the allowance of a further period until 3 May 2019 within which the Applicant may request reconsideration of the determination made on 17 December 2018. The Respondent’s reviewable decision 13 May 2019 will therefore be set aside and substituted with a decision that the period within which the Applicant may request reconsideration of the determination made on 17 December 2018 is extended to 3 May 2019.
[47] See Comcare v Willems [1996] FCA 1873 at [24]-[25].
The Applicant seeks an order that the Respondent pay the costs of and incidental to this proceeding pursuant to s 67(8) of the Act in an amount to be agreed between the parties or, failing agreement, to be taxed. Section 67(8) of the Act states that the Tribunal may order the costs of the proceedings incurred by the claimant be paid by the responsible authority. Where there is to be the setting aside of the determination as to reconsideration, in the circumstance of the delay by the Applicant, there will not be an order as to costs in accordance with the discretion.
DECISION
The Respondent’s decision of 13 May 2019 is set aside and substituted with a decision that the period within which the Applicant may request reconsideration of the determination made on 17 December 2018 is extended to 3 May 2019.
I certify that the preceding 28 (twenty-eight) paragraphs are a true copy of the reasons for the decision herein of Senior Member Katter
................................[SGD].....................................
Associate
Dated: 6 August 2020
Date of hearing: 16 April 2020 Date final submissions received: 4 June 2020 Counsel for the Applicant: Mr M. Black Counsel for the Respondent: Mr P. Woulfe
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