Binno and Comcare (Compensation)
[2019] AATA 237
•27 February 2019
Binno and Comcare (Compensation) [2019] AATA 237 (27 February 2019)
Division:GENERAL DIVISION
File Number(s): 2019/0158
Re:Ninos Binno
APPLICANT
AndComcare
RESPONDENT
DECISION
Tribunal:Chris Puplick AM, Senior Member
Date:27 February 2019
Place:Sydney
The application for an extension of time is refused.
............................[sgd]............................................
Chris Puplick AM, Senior Member
CATCHWORDS
COMCARE – Extension of time applications – whether acceptable explanation of the delay – whether extension fair and equitable in the circumstances – whether applicant rested on their rights – prejudice to the respondent caused by the delay – prejudice suffered by general public - merits of substantial application – considerations of fairness as between the applicant and other persons – extension of time application refused
LEGISLATION
Administrative Appeals Tribunal Act 1975 (Cth)
Safety, Rehabilitation and Compensation Act 1988 (Cth)
CASES
Berkelaar and Comcare [1997] AATA 12015
Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541
Hunter Valley Developments Pty Ltd and Others v Minister for Home Affairs and Environment (1984) 3 FCR
REASONS FOR DECISION
Chris Puplick AM, Senior Member
27 February 2019
Mr Ninos Binno (the Applicant) seeks an Extension of Time (EOT) from the Tribunal in order to lodge an application for review of a decision made by Comcare (the Respondent) on 11 December 2017 to reject his compensation claim under the Safety, Rehabilitation and Compensation Act 1988 (the SRC Act). This decision was itself a review decision confirming an original rejection decision made on 31 August 2017.
Although, in general, applications for reviews of decisions made under the Administrative Appeals Tribunal Act 1975 (AAT Act) must be made within 28 days of the receipt of the decision[1], claims for review under the SCR Act must be made within 60 days.[2]
[1]Administrative Appeals Tribunal Act 1975, section 29(2).
[2] Safety, Rehabilitation and Compensation Act 1988, section 65(4).
As such, the Applicant was required to lodge his appeal against the decision in question by 9 February 2018. He failed to do so. On 10 January 2019 he made an application to this Tribunal for an extension of time to lodge his application to that date. His request is thus eleven months out of time.
The request for such an extension was opposed by the Respondent on the basis that:
“It is not reasonable in all the circumstances for the Tribunal to grant the requested extension of nearly a year. Mr Binno has not demonstrated an acceptable explanation of the delay, and it would not be fair to Comcare for the extension to be granted.”[3]
[3] Email from Comcare to the Tribunal dated 23 January 2019.
In support of his application, Mr Binno advances the arguments that:
“1. My employer DHS has been misinformed by my assessor.
2. I have been harassed by DHS leadership and staff.
3. I have suffered an aneurism in most recent times and historically had chest pains and prior mental health from the above and medication.”[4]
[4] Applicant’s Application for Extension of Time for Making an Application for Review of Decision dated 21 January 2019.
Both parties were given the opportunity to elaborate on their positions at the Tribunal interlocutory hearing held on 21 February 2019.
EXTENSIONS OF TIME ARE NOT AUTOMATICALLY GRANTED WITHOUT GOOD REASON
McHugh J in the High Court case of Brisbane South Regional Health Authority v Taylor [5] gave four reasons why statutory limitations on such things as lodging applications within prescribed time limits are an important part of the legal process. He noted that:
First, as time goes by, relevant evidence is likely to be lost. Second, it is oppressive, even “cruel”, to a defendant to allow an action to be brought long after the circumstances which gave rise to it have passed. Third, people should be able to arrange their affairs and utilise their resources on the basis that claims can no longer be made against them.
The final rationale for limitation periods is that the public interest requires that disputes be settled as quickly as possible.
[5] Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541 at [552]-[553].
His Honour also noted that:
An applicant for an extension of time who satisfies those conditions [i.e. the conditions laid down in the relevant Act] is entitled to ask the court to exercise its discretion in his or her favour. But the applicant still bears the onus of showing that the justice of the case requires the exercise of the discretion in his or her favour.[6]
[6] Ibid at [551].
HUNTER VALLEY CHECK LIST
It is generally accepted that the “check-list” outlined by Wilcox J in Hunter Valley Developments Pty Ltd and Others v Minister for Home Affairs and Environment[7] should be taken as the guide by this Tribunal in determining EOT matters.
[7] Hunter Valley Developments Pty Ltd and Others v Minister for Home Affairs and Environment (1984) 3 FCR 344.
That list provides as follows:
·an applicant must show an “acceptable explanation of the delay” and this it is “fair and equitable in the circumstances” to extend time;
·a distinction is to be made between an applicant who has “rested on his rights” and allowed the decision-maker to believe that the matter was finally concluded, and one who has continued to make the decision-maker aware that he or she contests the finality of the decision;
·any prejudice to the respondent caused by the delay;
·whether any others or the general public would suffer any prejudice as a result of the extension, or established practices be upset;
·the merits of the substantial application; and
·“considerations of fairness as between the applicant and other persons” in a similar position.
Wilcox J did, however, warn that:
Although the section [s 11 of the Administrative Decisions (Judicial Review) Act] does not, in terms, place any onus of proof upon an applicant for extension, an application has to be made. Special circumstances need not be shown, but the court will not grant the application unless positively satisfied that it is proper so to do. The “prescribed period”….. is not to be ignored.” (Ralkon v Aboriginal Development Commission (1982) 43 ALR 535 at 530). Indeed it is the prima facie rule that proceedings outside that period will not be entertained (Lucic v Nolan (1962) 45 ALR 411 at 416). It is a precondition to the exercise of discretion in his favour that the applicant for extension show an “acceptable; explanation of the delay” and that it is “fair and equitable in the circumstances” to extend time. (Duff v Freijah (1982) 43 ALR 479 at 485; Chapman v Reilly, Neaves J, 9 December 1983, not reported at p. 7)[8]
[8] Hunter Valley Developments Pty Ltd and Others v Minister for Home Affairs and Environment (1984) 3 FCR 344 at [348].
The most important element for an EOT application to succeed is that there is a reasonable explanation as to why the Applicant was unable to complete their application in time.
As has already been noted the SRC Act is more generous than the AAT Act in that it gives applicants up to 60 days to lodge claims rather than the more standard 28.
THE APPLICANT’S EXPLANATION
The Tribunal, in an EOT hearing, is not concerned with the granular details of the original decision which is under dispute nor of the Applicant’s case as to why that decision is flawed and should be overturned. That would be a matter for the merits review hearing should one take place.
The issue is simply the failure to lodge an application for review within the prescribed time limits.
The Applicant says that his failure to lodge an application within the last eleven months arose primarily from the fact that he has felt “out of it” due to a combination of strong anti-pain and anti-depression medication; a degree of mental instability which results in large part from his being bullied and harassed at work and the continuing physical pain he suffers as a result of his back problems (which he claims are largely work-related) and occasional issues with debilitating leg and knee weaknesses. He says he feels generally unable to cope and has even had suicidal ideations.
On the other hand he reports that, apart from a four week period around May 2015 he has been fully employed in a variety of Centrelink/Medicare (Department of Human Services) offices in places such as Brookvale, The Glasshouse Centre, Town Hall, Wynyard, Spit Junction and Chatswood. He has recently commenced as a front-of-house Customer Service Officer at Chatswood.
While he may have felt depressed and occasionally unable to undertake more stressful tasks such as cooking and cleaning without assistance, he still manages tasks such as shopping and washing. He is not in any seriously functional sense disabled by his ailments.
In a late email to the Tribunal (after the formal hearing) he advised that he had complained about some instances of bullying and harassment to the Human Resources section of the Department, although there were other people with whom he claimed to be having difficulties, whose behaviour he did not report. Because this information was received after the hearing it was not possible for the Tribunal or the Respondent to cross-examine him on any aspects of it, nor to establish if there had been any response from the HR section. In these circumstances it would not be fair to all parties to place great reliance upon the submission
The Applicant could not point to any specific example of where his assessor had misinformed the Department as to any particulars. It was evident from his oral testimony that he regarded at least one of the medical assessors as being incompetent, if not downright dishonest, but what this really amounted to was a disagreement with his diagnosis.
The Applicant made claims that an MRI scan in September 2018 had revealed evidence of an aneurism and he attributed this to work-related pressures, including being bullied and harassed. He told the Tribunal that he thought he suffered from some sort of pressure on his brain which was long-standing but had not been properly diagnosed.
THE RESPONDENT’S RESPONSE
The Respondent disputes that the explanation offered by the Applicant for the reasons for the delay are adequate. It challenges his description of his physical and mental condition, pointing to a lack of evidence (other than oral testimony to the Tribunal) to substantiate any of his claims.
In relation to other matters on the “Hunter Valley check-list” the respondent asserts that to grant an EOT would prejudice Comcare in relation to its ability to manage is general workload; would be unfair to other applicants who may have better reasons for having EOT claims assessed and denies to it the right to a sense of finality in decision-making.
It further asserts that the Applicant, by his delay has, in effect “rested on his rights” and that ultimately the Applicant would have little prospect of success given the weight and strength of medical opinion upon which the Respondent made its initial (and reaffirmed) decision.
THE TRIBUNAL’S ASSESSMENT
The Tribunal is not persuaded that the Applicant has demonstrated sound enough reasons for the lateness of his application. Lodging an application for review with the Tribunal is a relatively simple and straightforward process which can be undertaken by filling out an uncomplicated form either in writing or electronically. None of this would have been beyond the ability of the Applicant whose position in the Department of Human Services would well have equipped him to do so. Throughout the period he was in full-time work while having both the time and resources in his personal life to be able to complete a simple application process.
The Tribunal does not accept that there would be significant prejudice to the Respondent which is an organisation of sufficient size and experience to be able to manage late applications. Indeed in Berkelaar and Comcare[9] an EOT was granted which was 5 years out of time on the basis that Comcare could handle such matters without prejudice.
[9] Berkelaar and Comcare [1997] AATA 12015.
There is somewhat more validity in the submission that other applicants would be prejudiced were this (or indeed almost any late) application accepted on the basis that it would be penalising those who adhered to requirements vis-à-vis those who did not. This is why the question of having a good reason is so important.
Neither matters of comparative fairness nor prejudice to the public at large seem to be particularly relevant in this instance.
It is distinctly not the role of the Tribunal to assess the merits of completing claims which would be raised were a full merit-review hearing to be undertaken. However the Tribunal does note that the weight of medical evidence presented via the Review Officer’s submission of 11 December 2017 suggest that the Applicant would find it very difficult to have that determination overturned and would be hard-pressed to demonstrate the merits of a substantial application. However, as noted, this is not a matter for determination here and now and should not be accorded significant weight in the Tribunal’s final assessment.
The Tribunal finds that no “acceptable explanation for the delay” has been established and that, in relation to granting the application for an extension of time, it is not “positively satisfied that it is proper to do so”.
DECISION
The application for an extension of time is refused.
I certify that the preceding 31 (thirty -one) paragraphs are a true copy of the reasons for the decision herein of Chris Puplick AM, Senior Member
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Associate
Dated: 27 February 2019
Date(s) of hearing: 21 February 2019 Applicant: By phone Solicitors for the Respondent: Mr A Schofield, Comcare (by phone)
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