Barton and K and S Freighters Pty Ltd (Compensation) - [2017] AATA 2170

Barton and K & S Freighters Pty Ltd (Compensation) [2017] AATA 2170 (14 November 2017)
Division:GENERAL DIVISION
File Number(s): 2016/4977
Re:Wayne Barton
APPLICANT

AndK & S Freighters Pty Ltd
RESPONDENT

DECISION
Tribunal:Egon Fice, Senior Member
Date:14 November 2017
Place:Melbourne

The decision made by K & S Freighters Pty Ltd on 3 August 2016 denying Mr Barton’s application for an extension of time within which to lodge an application for reconsideration of a determination made on 28 April 2015 is set aside and in substitution the Tribunal determines that Mr Barton’s request for reconsideration received by
K & S Freighters Pty Ltd on 2 August 2016 be granted.
[sgd]........................................................................
Egon Fice, Senior Member
COMPENSATION – application for extension of time - spinal injuries arising out of or in course of employment – subsequent determination that liability to pay compensation ceased – applicant did not apply for reconsideration of determination within 30 day statutory time limit – applicant hospitalized and required to seek treatment for condition - applicant pursued permanent impairment and non-economic loss claims – reasonable explanation for delay – lack of prejudice to respondent – respondent’s decision to deny extension of time set aside and substituted with decision to grant extension
Legislation
Administrative Appeals Tribunals Act 1975 s. 25
Safety, Rehabilitation and Compensation Act 1988 ss. 16, 19, 22, 24, 60, 62(3)
Cases
Comcare v Willems (1996) 70 FCR 244
REASONS FOR DECISION
Egon Fice, Senior Member
14 November 2017

Mr Wayne Barton, an employee of K & S Freighters Pty Ltd (K & S), sustained two discrete injuries to his back in the course of his employment. The first occurred on 10 September 2011 when he suffered a fracture of the T11 vertebra. A second accident occurred on 22 July 2013 which resulted in Mr Barton having sustained a fracture of the

T10 vertebra. K & S accepted liability for both injuries.
Although Mr Barton returned to work after the first accident, it was not without some difficulty due to episodes of severe pain. After the second accident, he returned to work for a period of about one month in 2014 but experienced severe pain and had to stop working. To compound matters, Mr Barton had been diagnosed with multiple myeloma which has been present in his system since 2007. After a soft tissue mass was identified in the sacrum, Mr Barton had additional treatment including an episode of chemotherapy.
Associate Professor Peter Steadman, an orthopaedic surgeon, examined Mr Barton on 25 January 2016. After reviewing the history of problems Mr Barton has experienced, particularly with his spine, Associate Professor Steadman said Mr Barton suffered from a constitutional spinal condition known as ankylosing spondylitis which has led to him having a very stiff spine with significant osteoporosis. The condition is known as bamboo spine due to the stiffness from ankylosing spondylitis. While Mr Barton had no spinal problems prior to sustaining the first fracture of the lower thoracic spine, because of the nature of…

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 Barton and K and S Freighters Pty Ltd (Compensation)

Details

AGLC: Barton and K and S Freighters Pty Ltd (Compensation) [2017] AATA 2170
Case: [2017] AATA 2170
Decision Date: 14 November 2017

CaseChat Overview and Summary

This matter concerned an application by Mr Barton for review of a decision made by K & S Freighters Pty Ltd (K & S) not to grant him a further period to request reconsideration of a determination made on 28 April 2015. The Administrative Appeals Tribunal (the Tribunal) was required to determine whether K & S's decision was reviewable and, if so, to exercise the discretion conferred by section 62(3)(b) of the *Safety, Rehabilitation and Compensation Act 1988* (SRC Act).

The primary legal issue was whether the Tribunal had jurisdiction to review K & S's decision to refuse an extension of time for Mr Barton to request reconsideration, and if so, how that discretion should be exercised. The Tribunal considered that the decision not to grant a further period fell within the definition of a "reviewable decision" under section 60(1) of the SRC Act, making it susceptible to review by the Tribunal, consistent with the Federal Court's decision in *Comcare v Willems*. The Tribunal also had to determine the principles guiding the exercise of the discretion to extend statutory time limits, drawing on common law principles developed by the courts.

The Tribunal reasoned that on a merits review, it could exercise all the powers and discretions conferred on the original decision-maker, including the discretion under section 62(3)(b) of the SRC Act. It was guided by the principles established in *Comcare v Willems*, which emphasised that decisions regarding extensions of time should be made in context, considering the content of the request, the need for reasons, and acting without regard to technicalities. The Tribunal noted that the discretion was not limited to the question of delay but extended to aspects of fairness and equity, as articulated in *Maric v Comcare*. The Tribunal affirmed that a decision in relation to an extension of time is a reviewable decision.

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

The application in this case is made by the claimant, Mr Barton, seeking review of a decision made pursuant to s. 62(3)(b) of the SRC Act. The expression reviewable decision is defined in s. 60(1) in the following way:reviewable decision means a decision made under subsection 38(4) or section 62. It is clear that the decision made by K & S not to grant a further period within which Mr Barton could make a request for reconsideration of the determination made on 28 April 2015 was a decision made under s. 62 of the SRC Act. It falls within the definition of reviewable decision and is therefore reviewable by this Tribunal. This accords with the decision of the Full Court of the Federal Court of Australia (Northrop, Wilcox and RD Nicholson JJ) in Comcare v Willems (1996) 70 FCR 244, 250.EXTENSION OF TIME TO REQUEST RECONSIDERATION There is no statutory guidance which provides a basis for making this decision. Nevertheless, there is a body of common law developed by the courts dealing broadly with discretionary provisions in statutes which permit statutory times for commencing proceedings to be extended. On a merits review before this Tribunal, the decision-maker may exercise all the powers and discretions conferred by any relevant enactment on the person (which includes a corporate entity) who made the decision (see s. 43(1) of the AAT Act). Therefore, the discretionary power set out in s. 62(3)(b) conferred on K & S may also be exercised by this Tribunal on a review of the primary decision. While the Tribunal is not a court, it is nevertheless required to act judicially. That includes being guided by and, when necessary, following, decisions made by the Federal Court in circumstances where it is appropriate to do so. In this case, in my opinion, that includes applying those principles recognised by the Federal Court as being relevant when considering whether discretion to extend a statutory time limit should be exercised. Willems case, to which I have referred above, dealt precisely with that point. It was an appeal from the decision of the primary judge who set aside a decision of the Tribunal regarding the question of extension of time to lodge a request for reconsideration under the SRC Act. That case also raised a question about the nature of the claim for reconsideration and whether an applicant was required to lodge a separate application for the granting of a further period within which to make a request for reconsideration. That issue does not arise in Mr Barton’s case. The Court set out four observations made in respect of s. 62(3). Three of those observations are relevant in this case. The court described those observations in the following way, at 251 – 252:…Secondly, the requirements of s. 62(3) (b) must be understood in the context of s. 69 by which Comcare is called upon to make determinations “accurately and quickly” and s. 72(a) by which Comcare must act “without regard to technicalities”; and the provisions of the paragraph itself.Thirdly, the purport of s. 62(3)(b) is that the issue of allowance of a further period is to be determined in the context in which it arises – namely the content of the request – it must set out reasons – and must be made within 30 days of the notice of determination “all within such further period (if any) as the determining authority… allows”. If the request for reconsideration fails to set out reasons – understanding that requirement in the beneficial and non-technical manner explained above, it may not comply with the requirements of the paragraph. However, there is no reason why, in appropriate circumstances, the defect could not be cured by amendment which gave the required reasons. Further reasons could be added. It would be unwise for the determining authority to ignore what may be a defective request. Any further delay from conduct of that kind could be relevant in the consideration of whether a further period of the making of the request for reconsideration should be allowed. Likewise, a request for reconsideration given after the 30-day period remains a request but the delay requires the determining authority to consider whether to allow the further period. That will be a matter for the determining authority to decide, having regard to all relevant circumstances up to the date of the making of the request for reconsideration.Where delay is involved, those reasons might encompass an explanation for delay. If no explanation was included, this could be sought by Comcare. …In Maric v Comcare (1993) 40 FCR 244 eight 249, O’Loughlin J, after considering the cited passage in Hunter Valley Developments Pty Ltd v: (1984) 3 FCR 344 at 348-350, said the precondition for the exercise of that the discretion of time in s. 29 of the AAT Act “is not limited to the question of delay but extends to aspects of fairness and equity”.Fourthly, 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. …

Ratio Decidendi

Legal Principle Established

It is clear that the decision made by K & S not to grant a further period within which Mr Barton could make a request for reconsideration of the determination made on 28 April 2015 was a decision made under s. 62 of the SRC Act. It falls within the definition of reviewable decision and is therefore reviewable by this Tribunal. This accords with the decision of the Full Court of the Federal Court of Australia (Northrop, Wilcox and RD Nicholson JJ) in Comcare v Willems (1996) 70 FCR 244, 250.EXTENSION OF TIME TO REQUEST RECONSIDERATION There is no statutory guidance which provides a basis for making this decision. Nevertheless, there is a body of common law developed by the courts dealing broadly with discretionary provisions in statutes which permit statutory times for commencing proceedings to be extended. On a merits review before this Tribunal, the decision-maker may exercise all the powers and discretions conferred by any relevant enactment on the person (which includes a corporate entity) who made the decision (see s. 43(1) of the AAT Act). Therefore, the discretionary power set out in s. 62(3)(b) conferred on K & S may also be exercised by this Tribunal on a review of the primary decision. While the Tribunal is not a court, it is nevertheless required to act judicially. That includes being guided by and, when necessary, following, decisions made by the Federal Court in circumstances where it is appropriate to do so. In this case, in my opinion, that includes applying those principles recognised by the Federal Court as being relevant when considering whether discretion to extend a statutory time limit should be exercised. Willems case, to which I have referred above, dealt precisely with that point. It was an appeal from the decision of the primary judge who set aside a decision of the Tribunal regarding the question of extension of time to lodge a request for reconsideration under the SRC Act. That case also raised a question about the nature of the claim for reconsideration and whether an applicant was required to lodge a separate application for the granting of a further period within which to make a request for reconsideration. That issue does not arise in Mr Barton’s case. The Court set out four observations made in respect of s. 62(3). Three of those observations are relevant in this case. The court described those observations in the following way, at 251 – 252:…Secondly, the requirements of s. 62(3) (b) must be understood in the context of s. 69 by which Comcare is called upon to make determinations “accurately and quickly” and s. 72(a) by which Comcare must act “without regard to technicalities”; and the provisions of the paragraph itself.Thirdly, the purport of s. 62(3)(b) is that the issue of allowance of a further period is to be determined in the context in which it arises – namely the content of the request – it must set out reasons – and must be made within 30 days of the notice of determination “all within such further period (if any) as the determining authority… allows”. If the request for reconsideration fails to set out reasons – understanding that requirement in the beneficial and non-technical manner explained above, it may not comply with the requirements of the paragraph. However, there is no reason why, in appropriate circumstances, the defect could not be cured by amendment which gave the required reasons. Further reasons could be added. It would be unwise for the determining authority to ignore what may be a defective request. Any further delay from conduct of that kind could be relevant in the consideration of whether a further period of the making of the request for reconsideration should be allowed. Likewise, a request for reconsideration given after the 30-day period remains a request but the delay requires the determining authority to consider whether to allow the further period. That will be a matter for the determining authority to decide, having regard to all relevant circumstances up to the date of the making of the request for reconsideration.Where delay is involved, those reasons might encompass an explanation for delay. If no explanation was included, this could be sought by Comcare. …In Maric v Comcare (1993) 40 FCR 244 eight 249, O’Loughlin J, after considering the cited passage in Hunter Valley Developments Pty Ltd v: (1984) 3 FCR 344 at 348-350, said the precondition for the exercise of that the discretion of time in s. 29 of the AAT Act “is not limited to the question of delay but extends to aspects of fairness and equity”.Fourthly, 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. …