Boddington and Comcare
[2003] AATA 1194
•26 November 2003
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2003] AATA 1194
ADMINISTRATIVE APPEALS TRIBUNAL )
) No Q2003/133
GENERAL ADMINISTRATIVE DIVISION ) Re JUSTIN ROYCE BODDINGTON Applicant
And
COMCARE
Respondent
DECISION
Tribunal Senior Member K L Beddoe Date26 November 2003
PlaceBrisbane
Decision The Tribunal decides to extend time for lodgment of the application for review to 18 February 2003.
..........(Sgd) K L Beddoe …….
Senior Member
CATCHWORDS
PRACTICE AND PROCEDURE – Extension of time to lodge application for review – compensation claim – 20 months delay – no prejudice to respondent – arguable case – extension allowed
REASONS FOR DECISION
26 November 2003 Senior Member K L Beddoe 1. By notice dated 6 April 2001 the respondent advised the applicant that it had decided, on reconsideration, to affirm a decision to refuse liability for compensation in respect of bilateral chrondomalavia patellae.
2. On 14 February 2003 the applicant lodged an application for review of that decision in this Tribunal together with an application for extension of time for lodging the application for review.
3. Section 64 of the Safety Rehabilitation and Compensation Act 1988 (“the Act”) provides for making applications for review in this Tribunal.
4. Time for making an application for review is prescribed in subsection 29(2) of the Administrative Appeals Tribunal Act 1975 (“the AAT Act”) as modified by sub-section 65(4) of the Act. In essence, an application for review shall be lodged with the Tribunal within the prescribed time, that is by the 60th day after receipt of notification of the decision sought to be reviewed.
5. Subsection 29(7) of the AAT Act provides that the Tribunal may, upon application in writing by a person, extend the time for the making of an application for review.
6. The respondent lodged notice in the Tribunal opposing the grant of an extension of time. At the hearing Mr Hume of Counsel appeared for the applicant and Mr Clark of counsel appeared for the respondent. The applicant gave evidence by telephone. Certain documents were tendered and marked as exhibits.
7. There is no dispute that the applicant received notice of the reviewable decision in April 2001 that the notice gave reasons for the decision and notified the applicant of his right of review in this Tribunal.
8. The applicant says, and I accept, that he sought further advice about seeking a review after he received the notice of decision. He also sought assistance with lodging an application for review but was not successful in obtaining assistance. For a period of time he appears to have found the process too difficult to deal with and he temporarily lost interest.
9. About September/October 2002 he noticed an advertisement by his present solicitors and he approached the firm for assistance in relation to his lower back condition.
10. Exhibit 2 includes a copy of a medico-legal report by Dr Hadlow, Consultant Orthopaedic Surgeon, dated 30 September 2000, addressed to the Department of Veterans’ Affairs. Dr Hadlow diagnosed the following conditions:
(a)mild chondromalacia patellae;
(b)soft tissue injury to the lumbar spine; and
(c)abnormal illness behaviour or Chronic Pain Syndrome.
11. Dr Hadlow noted that the low back disability had not improved despite many modalities of therapy, although all imaging had been normal. Dr Hadlow also noted marked hyper reactivity on examination which he said was atypical.
12. Dr Hadlow said that both the mild chondromalacia patellae and the low back condition were caused by the applicant’s military employment. Dr Hadlow answered a number of questions in relation to the two physical conditions. Those answers, together with a report by Dr Low, orthopaedic surgeon, dated 2 March 2002, satisfy me that the applicant has an arguable case.
13. Since being discharged form the Army on 26 March 2000 on medical grounds the applicant has been engaged in civilian employment including as a trades assistant, storeman, and a casual security guard.
14. Exhibit 3 is a statement by Paul Ontong which states, inter alia, that “the department” (I take that to mean the respondent) would suffer prejudice if an extension of time is allowed. He states this because, if a timely application for review had been made, the respondent would have had the opportunity to:
(a)have the applicant examined from time to time by a medical specialist to identify if any ongoing medical problems existed;
(b)identify those activities that the applicant was performing post-discharge that may aggravate his condition(s) – including work and other external activities; and
(c)obtain knowledge of any intervening accidents or injuries that may have been suffered after discharge from the Army.
15. It was not explained whether those avenues of enquiry are not still available to the respondent but it seems reasonable to infer, and I do, that it would be open to the respondent to make those enquiries if it thought the information would be relevant to deciding the issues. While Mr Ontong asserts a lapse of time since 1995 I am satisfied that the relevant lapse of time is the period from 60 days after the deemed receipt of the notification of the reviewable decision (that is 11 June 2001) to lodgment of the application for review (14 February 2003) which I calculate to be approximately 1 year 8 months.
Consideration
16. The Tribunal’s experience is that it is not uncommon for the respondent to deal with claims for compensation in retrospect, that is by a consideration of the claimant’s history. Here the respondent has expert medical reports contemporaneous to the period of time after the applicant’s discharge from the Army. It may well be appropriate for the respondent to seek to have those reports updated but I am not satisfied that the respondent’s position has been prejudiced by the applicant’s delay of 20 months in seeking review.
17. The respondent has failed to satisfy the Tribunal that it is more likely than not that it will be prejudiced if time to lodge is extended.
18. The basic rule in this jurisdiction is that an application for review of a reviewable decision is to be made not later than 60 days after receipt of the notification of the reviewable decision. Without an acceptable explanation for delay that should be the rule because that period has been fixed by the Parliament.
19. Parliament has also conferred a power to extend time at the discretion of the Tribunal. The exercise of the discretion cannot be fettered and in particular is not fettered by a myriad of prior decisions where time has been extended in both the Tribunal and the Courts. In the exercise of the discretion the Tribunal is required to consider the application fairly having regard to the facts of the case and what the justice of the case requires.
20. The present case is of no general public interest and is essentially between the parties.
21. The applicant has partially explained the delay in so far as he found getting assistance with the application difficult until he made contact with his present solicitors. The delay from the time of making that contact to lodgment of the application is not explained but I am satisfied that delay, by itself, is of little consequence.
22. It is clear enough, from the specialist medical reports, that the applicant has an arguable case and the case is not without merit.
23. While I am satisfied that there is no reasonable prejudice to the respondent caused by the delay I am satisfied that there could be significant prejudice to the applicant if the application to extend time is refused.
24. On balance, I am satisfied that the justice of the case requires me to extend time.
25. There will be a decision extending time for making the application for review to 18 February 2003, the date the formal application was lodged in the Tribunal.
I certify that the 25 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member K L Beddoe
Signed: .......................................................................................
AssociateDate/s of Hearing 2 May 2003
Date of Decision 26 November 2003
Counsel for the Applicant Mr R Hume
Solicitor for the Applicant D’Arcys
Counsel for the Respondent Mr C Clark
Solicitor for the Respondent Sparke Helmore
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