Bernobich and Novion Property Group (formerly Colonial First State Property Management Pty Ltd) (Compensation)

[2016] AATA 92

Bernobich and Novion Property Group (formerly Colonial First State Property Management Pty Ltd) (Compensation) [2016] AATA 92 (7 January 2016)

Division	GENERAL DIVISION
File Number	2014/5907
Re	Iris Bernobich
APPLICANT
And	Novion Property Group (formerly Colonial First State Property Management Pty Ltd)
RESPONDENT

DECISION

Tribunal	Deputy President K Bean
Date	7 January 2016
Date of written reasons	22 February 2016
Place	Adelaide

The Tribunal decides that:

1.     The respondent’s reviewable decision of 16 September 2014 is set aside and in substitution for that decision, the Tribunal decides that:

(a) Ms Bernobich’s request for an extension of time pursuant to subsection 62(3) of the Safety, Rehabilitation and Compensation Act 1988 (the SRC Act) is granted;

(b)    the matter is remitted to the respondent for consideration and determination of Ms Bernobich’s substantive reconsideration request; and

2. The Tribunal also orders, pursuant to subsection 67(8) of the SRC Act, that the respondent is to pay Ms Bernobich’s costs of the application, as agreed or taxed.

............ [Sgd] ...................................

Deputy President K Bean

CATCHWORDS

COMPENSATION – Respondent refused to allow an extension of time for the applicant to request reconsideration – Consideration of principles which apply to extensions of time – Extension of time granted – Matter remitted to respondent for substantive reconsideration on the merits – Costs.

LEGISLATION

Safety, Rehabilitation and Compensation Act 1988, ss 62 and 67

CASES

Comcare v Willems (1996) 43 ALD 253

Budd v Secretary, Department of Education, Employment and Workplace Relations [2008] FCA 1540
Brown v Commissioner of Taxation (1999) 42 ATR 118
Re Vasios and Australian Postal Corporation [2015] AATA 317
Re Beecher and Telstra Corporation Limited [1994] AATA 6
Re Bain and Military Rehabilitation and Compensation Commission [2008] AATA 884

Re Fazio and Comcare [1993] AATA 317

REASONS FOR DECISION

Deputy President K Bean

22 February 2016

1. Until December 2012, the applicant, Ms Bernobich, was employed by the respondent as a duty manager. Unfortunately, during 2012 she suffered harassment in the workplace, which resulted in her becoming unwell.

2. On or about 11 February 2013, Ms Bernobich lodged a claim for workers’ compensation in respect of “severe anxiety/workplace harassment”.[1]

   [1]     Exhibit 1, T4/13.

3. On 25 March 2013, liability was accepted for the condition of “anxiety”,[2] and Ms Bernobich was thereafter paid compensation including incapacity payments.

   [2]     Exhibit 1, T22/95.

4. However, on 2 September 2013, the respondent wrote to Ms Bernobich[3], advising that, having reviewed her claim, it proposed to make a determination that there was “no present liability to pay weekly compensation or medical expenses in respect of your alleged injury beyond the 15 September 2013”.[4]

   [3]     Exhibit 1, T38/168.

   [4]     Exhibit 1, T38/168.

5. As it had foreshadowed, on 20 September 2013 the respondent wrote again to Ms Bernobich advising her of a determination that as at and from 16 September 2013 the respondent had no “present liability to pay weekly benefits or medical expenses compensation in respect of your injury”.[5] The determination further indicated:

   I have determined that as from the 16 September 2013 your injury has not resulted in any incapacity for work or reasonable need for present medical treatment.[6]

   [5]     Exhibit 1, T40/171.

   [6]     Exhibit 1, T40/171.

6. Although she had a right to seek reconsideration of that decision, in circumstances which I will address in more detail later in my Reasons, Ms Bernobich did not request reconsideration of that decision within the required 30-day period.[7] Having instructed solicitors, she subsequently requested an extension of time to seek reconsideration, and that the determination be reconsidered, on 8 August 2014.[8] However, by letter dated 16 September 2014, the respondent declined Ms Bernobich’s request for an extension of time for the making of a request for reconsideration of the determination of 20 September 2013.[9]

   [7]     Safety, Rehabilitation and Compensation Act 1988, s 62(3).

   [8]     Exhibit 1, T47/183.

   [9]     Exhibit 1, T3/5.

7. On 14 November 2014, Ms Bernobich lodged an application with this Tribunal for review of that decision, giving rise to these proceedings.[10]

   [10]    Exhibit 1, T1/1.

8. In the event, a number of separate hearing days were required to address all of the issues arising from Ms Bernobich’s application.

9. Following completion of the hearing held to address whether Ms Bernobich should be granted an extension of time pursuant to subs 62(3) of the Safety, Rehabilitation and Compensation Act 1988 (the SRC Act), I delivered oral reasons for my conclusion that an extension of time should be granted (on 4 December 2015), but reserved the question of the final form of my orders. Following further hearing days at which the form of orders and costs were addressed, I gave oral reasons for my decision to make a costs order in favour of Ms Bernobich on 7 January 2016, and also formally announced my final Decision in the matter.

10. On 29 January 2016, the respondent made a request that I provide my Reasons in writing, and these written Reasons have been prepared in answer to that request.

    ISSUES

11. As will be apparent from the history set out above, the main issue for my determination is whether an extension of time should be granted for Ms Bernobich to seek reconsideration of the determination of 20 September 2013.

    THE LEGAL FRAMEWORK

12. The provision of most relevance in these circumstances is s 62 of the SRC Act, which relevantly provides as follows:

    (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.

13. It is also clear from the applicable case law that the considerations which generally apply to requests for an extension of time in the context of litigation also apply to the application of subs 62(3). Most relevantly, this was made clear by the Full Court in its decision in Comcare v Willems (1996) 43 ALD 253, and both parties agree that these principles are applicable here.

14. I note that the applicable principles were summarised by Cowdroy J in Budd v Secretary, Department of Education, Employment and Workplace Relations [2008] FCA 1540, by reference to an earlier decision of Federal Magistrate McInnis, as follows:

    1. There is no onus of proof upon an applicant for extension of time though an application has to be made. Special circumstances need not be shown, but the court will not grant the application unless positively satisfied it is proper to do so. The "prescribed period" of 28 days is not to be ignored (Ralkon v Aboriginal Development Commission (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 (1982) 45 ALR 411 at 416). It is not a pre-condition for success in an application for extension of time that an acceptable explanation for delay must be given. It is to be expected that such an explanation will normally be given 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) 45 FCR 441 and Dix v Client Compensation Tribunal (1993) 1 VR 297 at 302).

    3. Action taken by the applicant other than by making an application to the court is relevant in assessing the adequacy of the explanation for the delay. It is relevant to consider whether the 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) 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 against the grant of an extension. (See Doyle at p 287).

    5. The mere absence of prejudice is not enough to justify the grant of an extension. (See Lucic at p 416).

    6. The merits of the substantial application are properly to be taken into account in considering whether an extension of time should be granted. (See Lucic at p 417).

    7. Considerations of fairness as between the 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) 47 ALR 528).

15. Other matters which have also been found to be relevant in the context of an extension of time application are the fact that there was a significant issue to be determined, the potential financial loss to the applicant, the length of the delay and ignorance of appeal rights.[11]

    [11]    Brown v Commissioner of Taxation (1999) 42 ATR 118.

    CONSIDERATION

16. I will accordingly proceed to address Ms Bernobich’s application by reference to each of the most relevant criteria in turn.

    The extent of and reasons for the delay

17. Although the delay in this matter was not great, it was significant. As Ms Bernobich apparently became aware of the determination not long after it was made in September 2013 and did not seek reconsideration until August 2014, the applicable delay is approximately 10 months.

18. As to the reasons for the delay, whilst acknowledging that it was not a precondition to success that Ms Bernobich provide a satisfactory explanation for the delay, the respondent contends that Ms Bernobich has failed to provide a plausible and acceptable explanation for the significant delay, and this consideration accordingly militates against an extension of time being granted.

19. This issue was explored in some detail at the hearing, and Ms Bernobich has provided an affidavit addressing the reasons for the delay,[12] and also gave detailed oral evidence as to what had occurred in the period between when the determination was made and when she ultimately sought reconsideration of it.

    [12]    Exhibit 4.

20. Although her evidence was not entirely consistent on this point, during her oral evidence, Ms Bernobich acknowledged that she may have received the determination of 20 September 2013 before she underwent a hysterectomy on 30 September 2013, although she said she did not read it in any detail and did not read the part of the letter outlining her right to seek a reconsideration and the applicable time frame. She said she also did not immediately realise that payment of her medical expenses had been ceased, as well as her incapacity payments.

21. In her oral evidence, Ms Bernobich explained that in the period after undergoing a hysterectomy on 30 September 2013, she was heavily medicated and suffering a degree of cognitive and memory impairment as a result. Nevertheless, on 10 October 2013, Ms Bernobich sent a letter to the respondent advising that she was “in the process of collating further information pertaining to my recent surgery and the correlation of that surgery to this workers’ compensation issue” and that she was also in the process of instructing solicitors.[13]

    [13]    Exhibit 1, T43/179.

22. Ms Bernobich said that she became confused after this as to the appropriate way forward, and the next step she took was to contact the Financial Ombudsman Service on or about 7 November 2013.[14] She acknowledged in her oral evidence that with the benefit of hindsight, this approach was misconceived and inappropriate, However, she said she did not understand this at the time and was seeking assistance and advice as to how to contest the determination ceasing her workers’ compensation entitlements. She acknowledged receiving a telephone call about a week later from the Financial Ombudsman Service advising her that her matter did not fall within its jurisdiction.

    [14]    Exhibit 2.

23. Whilst the precise circumstances giving rise to referral of the matter to the SA Workers Compensation Tribunal are unclear on the evidence, there is no doubt that on 27 November 2013, the SA Workers Compensation Tribunal wrote to Ms Bernobich acknowledging a ‘Notice of Dispute’ lodged with respect to the determination.[15] This letter advised her that the SA Workers Compensation Tribunal did not have jurisdiction with respect to her matter and also advised her that:

    The letter from the Commonwealth Bank sets out the process for having them reconsider their decision. You should follow this process or contact your case manager for further information.[16]

    [15]    Exhibit 2.

    [16]    Exhibit 2.

24. In her oral evidence, Ms Bernobich again indicated that she did not read that part of the relevant letter. She also gave some evidence of contacting the Industrial Relations Commission and/or Fair Work at around this time, although when pressed, she was not entirely sure precisely which bodies she had contacted.

25. Ms Bernobich also confirmed during her oral evidence that, before receiving the determination, she had attended on Ms Catherine Parsonage, solicitor, of the firm Duncan Basheer Hannon on 21 August 2013, and they discussed issues relating to her claim.[17] She further indicated that some time in December 2013, she contacted the Legal Services Commission or perhaps the Law Society (she was unsure which) and was given the names of some firms of solicitors who may be able to assist her. As one of these firms was Duncan Basheer Hannon, she contacted them again by telephone. She said she conveyed to them that she had previously met with Catherine Parsonage, but was then advised that in order for the firm to act for her, she would need to provide $5,000.00 for barrister’s costs. She said she was unsure whether the person she spoke to was a solicitor or not. She said she took steps to try and obtain that sum, but was unable to do so, and so did not pursue the matter further with Duncan Basheer Hannon. She emphasised that she was in a very poor state of mind and poor state of health at that stage, and was still taking heavy medication, which affected her ability to think and also her memory. She added that she believed she had also contacted the Working Women’s Centre some time around the end of 2013.

    [17]    Exhibit 7.

26. Some of Ms Bernobich’s evidence also suggested that in fact she approached the Law Society in the period between January and March 2014 and that it was during this period that she contacted one or more of the law firms suggested to her. There were some inconsistencies in her evidence as to the precise chronology during this period.

27. In her affidavit and oral evidence, Ms Bernobich also explained that she had been involved in a motor vehicle accident in March 2014, in which her daughter had sustained injuries and which distracted her from pursuing her workers’ compensation matter for a period. She acknowledged receiving a letter from the respondent dated 3 March 2014 suggesting a meeting, and that she met with Ms Irvine of the respondent on 1 April 2014 as well at two subsequent meetings. In her affidavit she stated that “at those meetings the Decision and my desire to dispute the Decision were discussed”.[18]

    [18]    Exhibit 4, [72].

28. For completeness, I note the evidence before me also suggests that Ms Bernobich contacted the Office of the WorkCover Ombudsman in April 2014.[19]

    [19]    Exhibit 3, CF5.

29. Ms Bernobich acknowledged that she had first contacted her current solicitors, Paul Alvaro & Co (now C+F lawyers), in early May 2014. She said she met with them in early June 2014, and acknowledged that there was then a further delay before her request for reconsideration was ultimately forwarded to the respondent on 8 August 2014.

30. It was put to Ms Bernobich during cross-examination that, based on contemporaneous records relating to her initial contact with Paul Alvaro & Co, she did not at that stage hold a current intention to seek reconsideration of the determination, but was rather seeking advice with respect to whether it was open to her to lodge a further claim for compensation with respect to her hysterectomy, on the basis that the need for this arose from her psychiatric injury. However, she vehemently denied this, and maintained that although her attempts to do so had been misdirected and ill-conceived, at all times since becoming aware of the determination, she had been actively seeking to challenge this. She maintained that throughout the relevant period, she had had a firm intention to seek review of the determination, but was unaware of how to pursue this and consequently her efforts to do so were misdirected.

31. In his submissions, counsel for the respondent, Mr Cole, submitted that the Tribunal should be “reserved” about much of Ms Bernobich’s evidence, and should not necessarily accept that she was not aware of the process to seek review of the determination, or that she held any positive intention to do so, throughout most of the relevant period. Mr Cole also contended that Ms Bernobich’s evidence about having a telephone conversation with somebody from Duncan Basheer Hannon in December 2013, in the course of which she was advised the firm would not act unless she provided $5,000.00 on trust, was implausible and should not be accepted.

32. Mr Cole contended that rather than being misconceived, some of Ms Bernobich’s communications with relevant agencies, such as Fair Work, were explained on the basis that what she was actually attempting to do during this period was to seek a “global solution” to her issues with her employer. He contended that there were some “oddities” about Ms Bernobich’s evidence and that some of her evidence was disingenuous. He noted that not only the determination itself, but also the letter she received from the SA Workers Compensation Tribunal, advised Ms Bernobich as to her review rights or where to find these, and it was unlikely that she had not become aware of the correct process for seeking reconsideration prior to instructing her solicitors. 

33. Mr Cole also relied on the report of a psychiatrist, Dr Bassett, obtained by the respondent and dated 23 October 2015.  In that report, Dr Bassett stated:

    On the basis of the evidence available to me, I believe Ms Bernobich had both the capacity and mental competence to pursue a request for a reconsideration of her Worker’s [sic] Compensation claim between August 2013 and August 2014.[20]

    [20] Exhibit 10, p 12.

34. I accept Mr Cole’s submission that there were some inconsistencies in Ms Bernobich’s evidence, both within her oral evidence and between her oral evidence and her affidavit. Having carefully reviewed her evidence, however, and assessed her as a witness, I have ultimately concluded that whilst aspects of it were confused, Ms Bernobich’s evidence was honestly given. In particular, notwithstanding Dr Bassett’s opinion, which I accept, I also accept that Ms Bernobich was distressed, unwell and affected by medication, particularly in the period between having her hysterectomy on 30 September 2013 and the end of that year.

35. I further accept that Ms Bernobich’s functioning was impaired to some extent during this time, which at least partially explains her poor recollection and poor decision-making during this period. I also accept, while she acknowledges she should have done so, that Ms Bernobich did not fully read the relevant determination and did not become aware of her review rights when she received the determination. I further accept that she did not properly read the correspondence from the SA Workers Compensation Tribunal, and therefore that letter also did not alert her to the correct avenue to pursue review of the determination. In addition, I accept that at all relevant times during the period between when she became aware of the determination and when she sought an extension of time to seek review of the determination, Ms Bernobich held an intention to challenge the determination, albeit her efforts to do so were somewhat sporadic and largely misconceived. Whilst I acknowledge that Ms Bernobich’s evidence as to being required to provide $5,000.00 on trust to Duncan Basheer Hannon in order for them to act for her is somewhat surprising, particularly given her previous contact with the firm, on balance I accept that Ms Bernobich did contact Duncan Basheer Hannon in or around December 2013 and that that was her understanding of the conversation she had with the firm.

1. I have accordingly also concluded that Ms Bernobich has provided an explanation for her delay in seeking reconsideration of the determination, by reference to her failure to read relevant correspondence and consequent lack of understanding of the correct process, her state of health during the relevant period, and her misconceived attempts to pursue review through inappropriate and ineffective avenues.

2. As to whether Ms Bernobich’s explanation is entirely satisfactory, that in itself is a relatively difficult question. I note that Ms Bernobich has emphasised that she was in a poor emotional and physical state and was affected by medication during much of the relevant period. Nevertheless, I have ultimately concluded that, notwithstanding her poor state of health, Ms Bernobich bears some of the responsibility for not becoming aware of the proper process earlier, in particular through her failure to properly read the determination advising her of her review rights at any time during the relevant period, as well as her failure to properly read the letter from the SA Workers Compensation Tribunal advising her that the determination set out the process for seeking reconsideration of the determination.

3. As the delay is attributable in large part to Ms Bernobich’s failure to properly read this correspondence at any time during the relevant period, whilst I accept that she has explained the delay, I do not regard her explanation as being entirely satisfactory. Even accepting that she was extremely unwell at the time she received the determination, I consider there was some onus on her to properly read the determination and/or the letter from the SA Workers Compensation Tribunal at least at some time during 2013, and before pursuing other ineffective avenues.

   Action taken by Ms Bernobich

4. Although the point was taken in the respondent’s written submissions,[21] I note that Mr Cole did not place significant reliance on an argument that Ms Bernobich did not take any action to alert the respondent to the fact that she disputed the correctness of the determination. In my view, in light of the evidence, it was appropriate for him not to place significant reliance on that argument.

   [21]    Per footnote 23 below, p 7.

5. I note that prior to actually seeking a reconsideration, as well as taking a number of ineffective steps of which the respondent was unaware, Ms Bernobich wrote to the respondent on 10 October 2013 advising of her intention to challenge the decision and indicating that she was instructing solicitors. She apparently also advised Ms Irvine, in the context of meetings which took place in April 2014, that she still wished to dispute the determination. As counsel for Ms Bernobich, Mr Warren, pointed out, the evidence suggests the respondent was also made aware of Ms Bernobich’s approach to the Financial Ombudsman Service, [22] although I accept it is unclear whether this information was communicated to those administering her compensation claim.

   [22]    Exhibit 2, “IB3”.

6. In any event, in my view this consideration does not militate significantly against granting an extension of time.

   Prejudice to the respondent

7. Similarly, Mr Cole did not point to any significant tangible prejudice the respondent would suffer in the event that an extension of time were granted. In its written submissions, the respondent stated:

   The Determining Authority is prejudiced as it has been unable to obtain contemporaneous medical evidence about the state of the Applicant’s psychological condition during the period since the cessation of the Applicant’s entitlements.

   This is compounded by the context of the Applicant being substantially recovered prior to learning of her non-employment condition and now producing a medical report from Dr Blakemore dated 29 May 2015 stating that the Applicant is currently “totally incapacitated for her pre-workplace incident work and generally” …

   The Determining Authority is also prejudiced by the delay as the period between the Decision and the request for reconsideration could have been used to rehabilitate the Applicant into employment.

   The Determining Authority will be further prejudiced by the delay if it is the Applicant’s intention to claim benefits for the near 11 months between the Decision and the request for reconsideration as it will not be able to offer contemporaneous medical evidence.[23]

   [23]    Respondent’s Submissions in Relation to an Extension of Time dated 29 July 2015, pp 8 and 9.

8. However, in my view, there will be no significant prejudice to the respondent if an extension of time is granted, as contemporaneous medical records will be available from those treating Ms Bernobich in the period between September 2013 and August 2014. As those records are relatively recent, they should readily be able to be provided, or produced under compulsion if required. Accordingly, this consideration also does not militate significantly against granting an extension of time.

   The merits

9. As Mr Cole acknowledged at the hearing, the respondent’s determination ceasing liability under ss 16 and 19 of the SRC Act was largely based upon the contents of a report of Dr Ewer dated 29 August 2013. In that report, Dr Ewer indicated that Ms Bernobich still met the diagnostic criteria for “a chronic adjustment disorder with depressed and anxious mood”.[24] However, he went on to state that her mental state had deteriorated since he had previously seen her, and in particular since she had been told that she would need a hysterectomy. He proceeded to indicate that her working capacity had reduced following deterioration of her condition and she was probably not fit to work full-time.[25]

   [24]    Exhibit 1, T36/138.

   [25]    Exhibit 1, T36/140.

10. I note that under the terms of the SRC Act, an employee is entitled to receive incapacity payments in respect of their compensable condition, so long as the compensable condition continues to contribute “in a material sense” to the incapacity.[26] At least on one reading, Dr Ewer’s report does not actually support the proposition that as at the date of his report, Ms Bernobich’s compensable condition was no longer contributing to her incapacity, or that the chain of causation between her compensable condition and her incapacity had been broken.

    [26]    Re Vasios and Australian Postal Corporation [2015] AATA 317, at [11].

11. Even accepting that it did support that proposition, however, I note that the material before me includes subsequent reports of Dr Blakemore, Psychiatrist, dated 29 May 2015, and Dr Bassett, Consultant Psychiatrist, dated 23 October 2015.[27] Both of those reports support the proposition that, after 16 September 2013, Ms Bernobich continued to suffer from her compensable condition which also continued to result in incapacity and the need for medical treatment, albeit that Dr Bassett considered a number of factors including her hysterectomy had played a role in perpetuating the condition.[28]

    [27]    Exhibit 10.

    [28]    Exhibit 10, p 11.

12. Accordingly, whilst it is unnecessary and would not be appropriate for me to explore this issue in any detail, on the material before me, the merits of Ms Bernobich’s substantive application seem strong. She appears to have good prospects of establishing that the determination of 20 September 2013 was incorrect and potentially not soundly based. This consideration therefore militates in favour of granting an extension of time.

    Other matters

13. Another matter relied upon by the respondent was “fairness and public interest”, which again was contained in its written submissions, but was not elaborated upon in oral submissions to any significant extent. In its written submissions, the respondent stated:

    Proper administration of the Comcare scheme encourages early intervention and resolution of matters and thereby a reduction in human and economic costs of injuries.

    It is desirable for compensation claims such as the Applicant’s to be resolved in a timely manner.[29]

    [29]    Per footnote 23 above.

14. However, whilst I accept that it is desirable for compensation claims to be resolved in a ‘timely’ manner, noting the delay in this matter is much less than in many other matters where extensions of time have been granted, and also the relatively unusual circumstances which have arisen, I do not consider that considerations of fairness as between Ms Bernobich and other persons in a similar position militate significantly against granting an extension of time in this matter. Nor do I consider there would be any significant adverse impact on the public interest through an extension of time being granted so as to allow a reconsideration decision to be undertaken 10 months later than the timeframe contemplated in the SRC Act.

15. At the hearing, Mr Cole also pointed out that even if an extension of time was not granted, this would not necessarily have the effect of preventing Ms Bernobich from pursing any entitlement to incapacity payments. She could submit a new claim for payment of incapacity payments and/or medical expenses, supported by medical evidence, which the respondent would be obliged to consider on the basis of the current evidence.  However, Mr Cole acknowledged that if an extension of time were not granted, the determination would remain the operative decision for the period from September 2013 until the date of any new claim for incapacity payments. In practical terms therefore, even if a new claim for incapacity payments were lodged this year, Ms Bernobich would have lost the opportunity to pursue incapacity payments for the period of over two years which has elapsed since the determination.

    Overall conclusion

16. In my view, the most relevant considerations in this matter are that the length of the delay is not great, an explanation has been provided for that delay, there would be minimal prejudice to the respondent if an extension of time were granted, and the merits of the substantive application appear strong. Notwithstanding that I do not consider that an entirely acceptable explanation has been provided by Ms Bernobich, I nevertheless accept that she has largely explained the delay and that she was taking steps intermittently throughout the relevant period to contest the applicable determination, albeit many of those steps were misguided. I also note that it is clear from the relevant cases that the provision of an acceptable explanation is not a pre-condition to an extension of time being granted.

17. In these circumstances, I have ultimately concluded that, particularly as the merits of her substantive application appear to be strong, on balance it is appropriate to grant Ms Bernobich’s application for an extension of time pursuant to subs 62(3). In reaching that conclusion, I have also had regard to the fact that the potential loss to Ms Bernobich of the opportunity to reinstate her incapacity payments and entitlement to medical expenses for at least a two year period could potentially be very significant in financial terms. Visiting a loss of that potential magnitude on Ms Bernobich, essentially because she failed to read relevant correspondence, despite the fact that she made genuine attempts to contest the correctness of the decision, would appear to me to be a disproportionate and unjust outcome in circumstances where reconsidering the determination out of time will cause no real prejudice to the respondent.

18. In summary, having weighed the relevant considerations, particularly the length of the delay, the merits of the substantive application and the lack of real prejudice to the respondent, I have concluded that it is appropriate in all the circumstances to grant Ms Bernobich an extension of time pursuant to subs 63(3) of the SRC Act, and I have decided to do so.

    DISPOSITION

19. As was canvassed briefly on one of the early hearing days, there may be an argument that, having granted the extension of time, the Tribunal has jurisdiction to proceed to deal with Ms Bernobich’s substantive request for reconsideration ‘on the merits’, rather than remitting this issue to the respondent. However, ultimately, both parties submitted that the preferable course was for the matter to be remitted to the respondent for a substantive reconsideration on the merits. As I agree that that is the preferable course in all the circumstances, it has not been necessary for me to formally determine whether the Tribunal would have jurisdiction to proceed to deal with Ms Bernobich’s substantive reconsideration request, although I doubt that the Tribunal’s jurisdiction extends that far in these circumstances.[30]

    [30]    Re Beecher and Telstra Corporation Limited [1994] AATA 6 at [19]. But cf. Re Bain and Military Rehabilitation and Compensation Commission [2008] AATA 884.

    COSTS

20. Although it did not dispute that my decision (delivered orally on 4 December 2015) was more favourable to Ms Bernobich than the decision under review, the respondent nevertheless opposed an order for costs in Ms Bernobich’s favour. A short hearing was accordingly held on 6 January 2016 at which both parties made oral submissions.

21. As both parties acknowledged, the question of whether costs can and should be awarded in these circumstances is governed by s 67 of the SRC Act, with the following subsections being of particular relevance:

    (1)Subject to this section, the costs incurred by a party to proceedings instituted under this Part in respect of that reviewable decision shall be borne by that party.

    …

    (8)Where, in any proceedings instituted by the claimant, the Administrative Appeals Tribunal makes a decision:

    (a)   varying a reviewable decision in a manner favourable to the claimant; or

    (b)setting aside a reviewable decision and making a decision in substitution for the reviewable decision that is more favourable to the claimant than the reviewable decision;

    the Tribunal may, subject to this section, order that the costs of those proceedings incurred by the claimant, or a part of those costs, shall be paid by the responsible authority.

    …

    (10)Nothing in subsection (8), (8A) or (9) authorises the Administrative Appeals Tribunal to order a person to pay any costs incurred by a claimant in relation to an application for an extension of time for applying to the Tribunal for a review of a reviewable decision.

    Contentions

22. In urging me not to make a costs order in the applicant’s favour, Mr Wockel, who appeared for the respondent at the costs hearing, placed particular reliance on the decision of Deputy President Forrest in Re Fazio and Comcare [1993] AATA 317. That matter has some strong similarities with this one, in that it concerned a refusal by the respondent to reconsider its primary determination out of time. Following that refusal, the applicant sought review by the Tribunal of the respondent’s decision refusing to reconsider the determination, and the Tribunal was ultimately persuaded that an extension of time should be granted. As in this matter, the applicant also made an application for costs, pursuant to subs 67(8).

23. In addressing that request, Deputy President Forrest drew attention to subs 67(10) and observed as followed:

    A successful claimant has no absolute right to an order for costs. Significantly however s.67(8) should not be taken as authorising costs to be awarded in an application of this nature in view of s.67(10) of the Act.

24. Deputy President Forrest then set out the terms of subs 67(10) before continuing:

    Although this application is of a slightly different nature to an application under s.29(7) of the AAT Act, the legislative intent is clear that successful claimants in extension of time applications are not entitled to costs.

    This is not a matter where an order for costs should be made. In my opinion it is unreasonable that the respondent should have the burden of a costs order in favour of the applicant in the circumstances of this matter when the inaction on the part of the persons originally entrusted by the applicant to protect her interests precipitated the proceedings.[31]

    [31] Re Fazio and Comcare [1993] AATA 317 at [21] – [22].

25. Mr Wockel contended that similar considerations applied here, and it was unreasonable for the respondent to bear the applicant’s costs in circumstances where she was essentially seeking an ‘indulgence’ from the Tribunal due to her failure to comply with the applicable timeframe to make a request for reconsideration. Mr Wockel noted that in the context of litigation in the courts, it is often the case that, even where a party is successful in seeking an indulgence from the court, it will be required to pay the costs of the other party associated with the application. Mr Wockel contended that a similar approach was appropriate here, noting that the respondent had already been put to the trouble and expense of defending its decision in the Tribunal.

26. As he relied heavily on the Tribunal’s decision in Fazio, Mr Wockel effectively also contended that subs 67(10) either prevented the Tribunal from making a costs order in the applicant’s favour or, at the very least, was a clear reflection of a legislative intent that a costs order should not be made in circumstances where an extension of time refused by the respondent was subsequently granted by the Tribunal.

27. Notwithstanding the Tribunal’s decision to set aside the respondent’s decision and grant the extension of time sought by the applicant, Mr Wockel also contended that the respondent’s conduct in refusing the extension of time and defending that refusal had been reasonable, and the applicant should bear her own costs of the application, being costs necessitated in the first instance by her failure to comply with the applicable timeframe imposed by s 62 of the SRC Act.

28. Whilst acknowledging that the Tribunal had a discretion whether or not to award costs in these circumstances, Mr Warren, who appeared for Ms Bernobich, contended that there was nothing particularly unusual about this matter and no particular feature of it which should lead to any order other than the one which would generally apply, that is, that the respondent be ordered to pay the applicant’s costs. He contended that the decision of the Tribunal in Fazio was incorrect and should not be followed. He also submitted that it was clear as a matter of construction that subs 67(10) applied only to an application to the Tribunal for an extension of time pursuant to subs 29(7) of the Administrative Appeals Tribunal Act 1975 (the AAT Act). He contended that, properly construed, there was nothing in s 67 which indicated that costs could or should not be awarded in an application of this kind, and pointed out that if that had been the intention of the legislature, it could readily have been reflected in the terms of s 67.

29. Mr Warren further contended that the fact that there was no provision in s 67 indicating that costs orders could or should not be made where the application involved review of a refusal by the respondent to grant an extension of time, suggested that the legislature did not intend any distinction to be made between applications for review of decisions made under s 62 which involved the need for an extension of time, and those which did not. As a matter of principle, he also contended that it was difficult to discern any rationale for making such a distinction, given that in circumstances such as those pertaining in this application, the indulgence was sought (at least initially) from the respondent, not the Tribunal. He contended that it was easy to understand why costs should not be ordered in favour of an applicant where they had failed to make an application to the Tribunal within the required time, and needed an extension under subs 29(7). However, there was no reason in principle why the costs power should not be available in circumstances where the Tribunal was persuaded that a respondent had incorrectly refused an extension of time to an applicant.

    Consideration

30. After careful consideration, and with respect to Deputy President Forrest, I have concluded that his analysis in Fazio as to the relationship between subs 67(8) and (10) was incorrect, and I do not propose to adopt that analysis. In my view, subs 67(10) is clearly directed toward a situation where an applicant fails to apply to the Tribunal for review within the required period, and needs an extension of time from the Tribunal pursuant to subs 29(7) of the AAT Act. As Mr Warren submitted, it is easy to understand why a distinction was made by the legislature such that costs could not be recovered by an applicant in those circumstances. In that situation, an applicant is seeking an indulgence from the Tribunal, having failed to comply with the requirements for seeking review by the Tribunal. It seems reasonable in those circumstances to require an applicant to bear their own costs of seeking that indulgence.

1. However, in my view that situation is clearly distinguishable from one where a respondent has refused to extend time pursuant to s 62, with the result that an applicant has been denied a substantive reconsideration of their compensation entitlements, and required to go to the Tribunal to seek review of that refusal. Where an applicant is successful in persuading the Tribunal that an extension of time should be granted, it is difficult to see why the discretion to award costs should not be invoked, as it would be where an applicant is successful in challenging any other aspect of a reviewable decision made under s 62 of the SRC Act.

2. In any event, and putting questions of rationale and underlying intent to one side, it is clear in my view as a matter of statutory construction that subs 67(10) does not apply where no extension of time is required under s 29 of the AAT Act. Nor is it possible in my view to infer from subs 67(10) an intention that costs should not be awarded pursuant to subs 67(8) in matters concerning refusals to grant extensions of time under subs 62(3).

3. I should add that it is not surprising that s 67 applies in this way to applications of this kind. So construed, s 67 acts as an incentive for respondents not to unreasonably refuse extensions of time pursuant to subs 62(3), and to give active consideration to whether, notwithstanding an initial refusal to grant an extension of time, an extension of time should be agreed to where further information becomes available following an application to the Tribunal. To that extent, the operation of the costs power in these circumstances would seem to be in accordance with relevant public policy considerations. It also acknowledges the fact that the costs occasioned by an application of this kind are attributable as much to the respondent’s decision not to extend time, and to defend that refusal, as they are to the applicant’s initial failure to comply with the applicable timeframe.

4. As I have already indicated, I accept Mr Warren’s contention that that is a key difference between the circumstances of this matter and those to which subs 67(10) applies. In matters to which subs 67(10) applies, the ‘indulgence’ is sought from and can only be given by the Tribunal. In matters such as this, the ‘indulgence’ is as much in the respondent’s hands as the Tribunal’s, and a successful application to the Tribunal implies an incorrect refusal by the respondent, occasioning costs to both parties. It is not unreasonable in these circumstances that the applicant has some potential entitlement to costs, where they have been able to establish that an extension of time was incorrectly withheld by the respondent, at least on the material available to the Tribunal.

5. In my view, it accordingly follows in these circumstances that the question of whether costs should be awarded in favour of the applicant is governed by subs 67(8) of the Act, and the discretion conferred by that provision is not to be exercised by reference to the fact that the substantive issue under consideration involved a request for an extension of time pursuant to subs 62(3), rather than a substantive determination of the applicant’s compensation entitlements.

6. As my decision was clearly more favourable to Ms Bernobich than the decision under review, and Mr Wockel did not point to any other factors or attributes of the matter which suggested that the general rule should not apply, I have accordingly decided that I should exercise the discretion conferred by subs 67(8) in Ms Bernobich’s favour and make an order that the respondent pay her costs of the application, to be agreed or taxed.

   DECISION

7. The final orders I propose to make in this application therefore are:

   (1)The respondent’s reviewable decision of 16 September 2014 is set aside and in substitution for that decision, the Tribunal decides that:

   (a)Ms Bernobich’s request for an extension of time pursuant to subs 62(3) of the SRC Act is granted;

   (b)the matter is remitted to the respondent for consideration and determination of Ms Bernobich’s substantive reconsideration request; and

   (2)The Tribunal also orders, pursuant to subs 67(8) of the SRC Act, that the respondent is to pay Ms Bernobich’s costs of the application, as agreed or taxed.

I certify that the preceding 72 (seventy-two) paragraphs are a true copy of the reasons for the decision herein of Deputy President K Bean

....... [Sgd] ....................................

Associate

Dated 22 February 2016

Dates of hearing	3 September, 2015; 30 October 2015; 18 November 2015; 4 December 2015; 6 and 7 January 2016
Counsel for the Applicant	Mr N Warren
Solicitors for the Applicant	C and F Lawyers
Counsel for the Respondent	Mr S Cole
Solicitors for the Respondent	DW Fox Tucker Lawyers