Campion and Comcare (Compensation)

[2024] AATA 2850

Campion and Comcare (Compensation) [2024] AATA 2850 (9 August 2024)

Division:GENERAL DIVISION

File Number:          2024/2472

Re:Michael Campion

APPLICANT

AndComcare

RESPONDENT

DECISION

Tribunal:Member P Ranson 

Date:9 August 2024

Place:Brisbane

Pursuant to section 29(7) of the Administrative Appeals Tribunal Act 1975 (Cth), the Tribunal refuses to extend the time for the making of an application for review of the Comcare decision dated 20 November 2023

................................[SGD].............................

Member P Ranson

Catchwords

COMPENSATION – extension of time – length of delay in applying for review – awareness of appeal rights – inadequate explanation for delay –the merits of the substantive application must be considered – whether there is prejudice to the respondent – public interest considerations – extension of time refused

Legislation

Administrative Appeals Tribunal Act 1975 (Cth)

Safety, Rehabilitation and Compensation Act 1988 (Cth)

Cases

Brisbane South Regional Health Authority v Taylor [1996] HCA 25; (1996) 139 ALR 1
Hunter Valley Developments Pty Ltd v Cohen, Minister for Home Affairs and Environment (1984) 3 FCR 344
Jackamarra v Krakouer [1998] HCA 27; 195 CLR 516
Lucic v Nolan (1982) 45 ALR 411
Parikhan and Minister for Immigration, Citizenship and Multicultural Affairs (Citizenship) [2023] AATA 1195
Smith and Commissioner of Patents [2012] AATA 60

REASONS FOR DECISION

Member P Ranson

9 August 2024

BACKGROUND

1. On 16 April 2024, Mr Campion lodged with the Administrative Appeals Tribunal (AAT) an Application for Review (Individual) (review application) of the decision of Comcare dated 20 November 2023 (the Comcare decision). The Comcare decision was made under the Safety, Rehabilitation and Compensation Act 1988 (Cth) (SRC Act). The review application gave the following reasons:

   ‘I seek to review the decision relating to injuries of both knees.

   The right knee has suffered an aggravation of the pre-existing, yet largely asymptomatic oestheorisis. The right knee has been aggravated by the work related injuries on 19 July 2013, 17 May 2017, 5 June 2019 and 10 November 2021.

   Moreover, the nature and conditions of my employment further aggravated my existing conditions. The nature and conditions of my employment included repeatedly sitting for long periods of time.’

2. Section 29(2) of the Administrative Appeals Tribunal Act 1975 (Cth) (AAT Act) provides an application for review must generally be lodged within 28 days of the applicant receiving notice of the decision. However, section 29(7) of the AAT Act permits the Tribunal to extend the time for the making of an application to the Tribunal if it is satisfied it is reasonable in all the circumstances to do so.

3. Comcare provided an Outline of Submissions dated 31 May 2024, which notes at paragraph 3.1:

   ‘Under s 29 of AAT Act an application for review must be lodged within 28 days of the Applicant receiving notice of the decision. However, this provision is modified by s 65(4) of the SRC Act, which has the effect that an application for review of a decision made under the SRC Act must be lodged within sixty days of the Applicant receiving notice of the decision.’

4. On 16 April 2024, Mr Campion lodged an Application for Extension of Time for Making an Application for Review of Decision (EOT application) in respect of the Comcare decision, despite the 60-day period for applying for review having ended. Both applications were lodged by his representative, Ms Kathryn Morcos of Monaco Solicitors. The EOT application gave the following reasons:

   ‘I needed to seek further legal advice as my legal representatives have changed twice since the date I received the decision.

   This application is not prejudicial to the Respondent as I already have ongoing proceedings in the Administrative Appeals Tribunal and there has not been an extensive lapse of time.’

5. Mr Campion engaged with counsel to assist in providing a Statement of Facts, Issues and Contentions in respect of AAT case number 2022/5399 (ASFIC), combined with a submission on the EOT application which is AAT case number 2024/2472, dated 2 June 2024 (EOT submission). The document is constructed with what it regards as the facts from paragraphs 1 to 26, issues in relation to the EOT application from paragraphs 28 to 29 and contentions in relation to the EOT application from paragraphs 57 to 75.

   EXTENSION OF TIME CRITERIA

6. When determining whether an extension of time should be granted, the Tribunal has historically had regard to the principles outlined in the Federal Court decision of Hunter Valley Developments Pty Ltd v Cohen, Minister for Home Affairs and Environment (1984) 3 FCR 344. Those principles include:

   (i)the length of the delay in applying for review;

   (ii)the Applicant’s awareness of appeal rights and explanation for the delay;

   (iii)the prospects of success if the extension of time is granted, that is, the merits of the substantive application;

   (iv)any prejudice to the Respondent or Other Party if the extension of time is granted, including any difficulties they will experience in providing evidence because of the delay; and

   (v)any relevant public interest considerations, such as, fairness in granting an extension of time as between the Applicant and others in a similar position.

7. These principles were briefly discussed at the interlocutory hearing on 1 July 2024 and are considered below.

   REASONS

   Length of delay in applying for review

8. The Comcare decision provides guidance in relation to further review avenues to the AAT. The notice of rights says:

   ‘The time limit to lodge an application with the AAT is 60 days from the day you receive the reviewable decision.’

9. The review application was lodged on 16 April 2024 and shows the date the decision was received as 20 November 2023. Therefore, the 60-day period expired on 19 January 2024, deeming the review application to be lodged 44 days late. This is not in dispute.

10. In the EOT submission at paragraph 73, the Mr Campion contends:

    ‘In the present case the delay was from 19 January 2024 to 16 April 2024, which is not a long period.’

11. The Tribunal finds 60 days is sufficient time to prepare and lodge a review application and Mr Campion’s 44-day delay in doing so is unreasonable given the involvement of solicitors.

12. Accordingly, the Tribunal finds there are no cogent reasons given for the delay in seeking a review.

    Awareness of appeal rights and explanation for the delay

13. The EOT submission, like the EOT application, cites a change of solicitors and the need to seek advice about a second claim with Comcare as the reason for the late lodgement of the review application. The Tribunal finds that implausible because the same legal firm had carriage of the matter throughout, which means the file was available to whichever solicitor in the firm was attending to it at any given time.

14. There can be no doubt Mr Campion and his solicitors were aware of his review rights because the decision of Comcare dated 20 November 2023, which Mr Campion seeks to appeal, says on page 4:

    ‘Notice of rights - AAT

    You can also ask the AAT to review this decision. The time limit to lodge an application is 60 days from the day you receive the reviewable decision. In some cases, the AAT may grant an extension of time. Where time has expired because you were participating in ADR, Comcare will generally agree to an extension.’

15. There is no evidence Mr Campion has literacy issues or was suffering medical incapacity which would impede his ability to make a timely application. He is familiar with the process because he has previously lodged an appeal with the Tribunal on 13 May 2019, seeking a review of a decision made on 26 April 2019, that is, within the 60-day appeal period. The Comcare decision, which he now seeks to appeal, was addressed to ‘Monaco Compensation Lawyers’ and they prepared and lodged the review application and the EOT application. That means his legal representative, Monaco Solicitors, had carriage of the matter from at least 20 November 2023.

16. The Tribunal finds it incumbent on a practicing solicitor to know when appeals are due and attend to lodgement in time as part of their professional obligations to their client and the Tribunal. The Tribunal considers 44 days overdue (6 weeks and 2 days) is a long time when all that was required to secure the review with the AAT within time was to prepare and lodge the online application and they had 60 days (8 weeks and 4 days) to do that.

17. The Tribunal finds no weight can be given to the reasons asserted for the late lodgement of the appeal.

    Merits of the substantive application

18. The Tribunal pointed out to the parties at the hearing that it was not obliged to conduct a forensic examination of the evidence to assess the merits of the substantive application. That being said, the merits of the substantive application are properly to be considered when deciding whether an extension of time should be granted.[1]

    [1] Lucic v Nolan (1982) 45 ALR 411 at 417.

19. The ASFIC refers several times to the decision of this Tribunal dated 19 November 2021 (AAT decision). That decision is 66 pages long and on review, it appears to deal comprehensively with the issues raised by Mr Campion at the hearing which preceded it and the evidence before it.

20. The ASFIC complains the AAT decision did not consider the reports of Dr Cullen dated 11 January 2022, and Dr Low dated 18 March 2022 and 1 April 2022, both of which post-date the AAT decision made on 19 November 2021.[2]  The Comcare decision does refer to the reports of Drs Cullen and Low and notes, Dr Cullen ‘… did not do a ‘full, expert history and examination’ and neither of them engaged with the AAT decision even though Dr Low was provided with a copy of it.

    [2] Applicant’s Statement of Facts, Issues and Contentions, paragraph 11.

21. At [81], the AAT decision quotes from the summary of the medical evidence available at that time prepared by the Comcare Claims Manager. The Claims Manager concludes from the report by orthopaedic surgeon, Dr Richardson, in relation to the incident in February 2019, that it was unlikely to have changed Mr Campion’s right knee condition from how it was previously.

22. The ASFIC argues the medical report by Dr Allen was deficient as he had not considered the reports from the treating orthopaedic surgeon, Dr Richardson. Yet, as the AAT decision notes at [128]:

    ‘When Dr Allen was cross-examined by the Applicant about the fact that he was not briefed in 2018 with Dr Richardson’s letters/reports, he answered as follows – Transcript (Tr.) 21.6.2021 p. 23:

    “I have subsequently reviewed all of Mark Richardson’s reports in some detail, and they don’t cause me to change any of my previous opinions.”’

23. The ASFIC continues:[3]

    ‘The scope or ambit of the reconsideration includes the scope or ambit of the reasons given by Drs Low and Richardson to the effect that the original accepted injury in 2013 is still a causally operative factor in being the progenitor of the onset of the osteoarthritis, the latter incidents have caused further frank injuries in the nature of tears and have aggravated the osteoarthritis.’

    [3] Applicant’s Statement of Facts, Issues and Contentions, paragraph 15.

24. The ASFIC then asserts the Comcare decision did not properly consider the reports of Drs Cullen and Low and refers to various case law dealing with the issue of causeless pain. It says the finding of causeless onset of pain is entirely illogical and unreasonable at law. The Tribunal was unable to locate any such finding in the Comcare decision.

25. If Mr Campion was dissatisfied with the AAT decision, the avenue for appeal was to the Federal Court. This was made clear to him in the covering letter dated 19 November 2021, which was sent to him by e-mail and says:

    ‘If you think the decision is wrong, you might be able to appeal to the Federal Court of Australia. There is a time limit for appealing to the Federal Court. If you received this letter by email, the appeal period starts to run from the date of the email. If you are considering an appeal, obtain legal advice without delay.’

26. As mentioned above, the Tribunal is not required to forensically assess the matter for the purposes of this extension of time application.[4] However, on review of the evidence before it, the Tribunal is satisfied the Comcare decision and the AAT decision, were sufficiently grounded in material capable of supporting those decisions.

    [4] Jackamarra v Krakouer [1998] HCA 27; 195 CLR 516 Per Brennan CJ and McHugh J at [3], [also Kirby J at 66]. Footnotes and citations omitted.

27. The ASFIC complains the Tribunal failed to afford Mr Campion procedural fairness in arriving at the AAT decision because he was self-represented and Comcare was represented by counsel. No evidence has been adduced to indicate it was other than Mr Campion’s decision to be self-represented. It was open to him to have legal representation if he chose to do so then, as he has done so now.

28. Accordingly, the Tribunal finds the merits of the review application are insufficient to support the EOT application, and further review by the Tribunal is unlikely to be successful.[5]

    [5] Smith and Commissioner of Patents [2012] AATA 60 at [29-31].

    Prejudice to the respondent

29. In the decision of Parikhan and Minister for Immigration, Citizenship and Multicultural Affairs (Citizenship)[6], the presiding Member explored the High Court decision of Brisbane South Regional Health Authority v Taylor[7],  in which McHugh J noted '.... people should be able to arrange their affairs and utilize their resources on the basis that claims can no longer be made against them. Insurers, public institutions and businesses, particularly limited liability companies, have a significant interest in knowing that they have no liabilities beyond a definite period.... The final rationale for limitation periods is that the public interest requires that disputes be settled as quickly as possible.'

    [6] [2023] AATA 1195.

    [7] [1996] HCA 25; (1996) 139 ALR 1.

30. Comcare is a large department funded by the taxpayer. Its resources are distributed between each matter when a certain level of finality has been established. Where finality has not been established, resources will not be allocated appropriately. However, determination of whether the allocation of resources is considered appropriate, is a subjective point and this decision does not turn on this point alone.

31. Adopting this rationale, the Tribunal finds the delay in seeking a review prejudices the respondent because they are entitled to consider the matter finalised after the expiry of the review period.

    Relevant public interest considerations

32. The rationale adopted for prejudice to Comcare also applies to the public interest. The Tribunal finds there is prejudice to the general public due to unnecessary administration costs which would not be afforded to other individuals in similar circumstances, especially where the timeframe for review was clearly articulated in the Comcare decision.

    CONCLUSION

33. The Tribunal is not satisfied it is reasonable in the circumstances to grant the extension of time.

    DECISION

34. Pursuant to section 29(7) of the AAT Act, the Tribunal refuses to extend the time for the making of an application for review of the Comcare decision dated 20 November 2023.

I certify that the preceding 34 (thirty-four) paragraphs are a true copy of the reasons for the decision herein of Member P Ranson

................................[SGD].................................

Associate

Dated: 9 August 2024

Date of interlocutory hearing:

1 July 2024

Date final submissions received:

9 July 2024

Solicitors for the Applicant:

Ms K Morcos

Monaco Solicitors

Solicitors for the Respondent:

Mr J Sime

Sparke Helmore