Binno and Comcare (Compensation) - [2019] AATA 237

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…

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 Binno and Comcare (Compensation)

Details

AGLC: Binno and Comcare (Compensation) [2019] AATA 237
Case: [2019] AATA 237
Decision Date: 27 February 2019

CaseChat Overview and Summary

This matter concerned an application by Mr Binno for an extension of time to lodge an appeal against a decision of Comcare. The Administrative Appeals Tribunal (AAT) was required to determine whether to grant this extension.

The primary legal issues before the Tribunal were whether Mr Binno had provided an acceptable explanation for the delay in lodging his appeal, and whether it was fair and equitable in the circumstances to grant an extension of time. The Tribunal also considered whether Mr Binno had rested on his rights, the prejudice to Comcare caused by the delay, and the prejudice suffered by the general public. Furthermore, the Tribunal was required to assess the merits of the substantial application and consider fairness as between Mr Binno and other persons.

The Tribunal found that Mr Binno had not established an acceptable explanation for the delay. Consequently, the Tribunal was not positively satisfied that it was proper to grant the extension of time. The Tribunal applied the principles governing extensions of time applications, including the need for an acceptable explanation and a consideration of fairness and prejudice.

The application for an extension of time was refused.

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 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.

Ratio Decidendi

Legal Principle Established

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