Carney and Comcare (Compensation)

Case [2018] AATA 164

Carney and Comcare (Compensation) [2018] AATA 164 (7 February 2018)

Division:GENERAL DIVISION

File Number(s):      2017/7051 and 2017/7055

Re:Sandra Carney

APPLICANT

AndComcare

RESPONDENT

DECISION

Tribunal:Deputy President Gary Humphries

Date:7 February 2018

Place:Canberra

The Tribunal extends the time for making an application for review of the reviewable decision to 29 November 2017.

....................................................................

Deputy President Gary Humphries

Catchwords

PRACTICE AND PROCEDURE – extension of time application – workers compensation – Applicant’s delay attributable to advice of her former lawyers – whether prejudice is caused to Comcare – whether substantive application has merit – extension of time granted.

Legislation

Administrative Appeals Tribunal Act 1975 s 29, 65
Safety, Rehabilitation and Compensation Act 1988 s 14

Cases

Bahonko v Nurses Board of Victoria (No 4) [2007] FCA 1449
Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541
Comcare v A'hearn[1993] FCA 498
Hunter Valley Developments Pty Ltd & Ors v Cohen [1984] FCA 186
Jamal v Secretary, Department of Social Services [2017] FCA 916
Jackamarra v Krakouer [1998] HCA 27
Makings and K & S Freighters Pty Ltd [2018] AATA 9
McKenzie and Comcare [2016] AATA 1100
Phillips v Australian Girls’ Choir Pty Ltd & Anor [2001] FMCA 109
R v Lawrence [1982] AC 510
Saffioti and Comcare [2018] AATA 43
Secretary, Department of Social Security v Van Den Boogaart [1995] FCA 1289
Swanton v Military Rehabilitation and Compensation Commission [2017] FCA 1142

REASONS FOR DECISION

Deputy President Gary Humphries

7 February 2018

Introduction

  1. The Applicant, Ms Sandra Carney, seeks an extension of time to lodge an application for merits review before the Tribunal pursuant to the Safety, Rehabilitation and Compensation Act 1988 (the Act).

  2. Ms Carney is an employee of the Australian Federal Police. On 16 December 2016 she submitted a workers compensation claim for Aggravated injury and Tinnitus and hearing loss with a date of injury of 16 January 2014. On 4 May 2017, Comcare accepted liability for aggravation of tinnitus (bilateral) under s 14 of the Act, but denied liability for sensorineural hearing loss. On 23 June 2017, furthermore, Comcare denied liability, under s 16 of the Act, to pay compensation for certain medical expenses.

  3. Ms Carney’s solicitors at the time requested reconsideration of those determinations dated 4 May and 23 June 2017. However, in its reconsideration dated 27 July 2017, Comcare varied the determination dated 4 May 2017 by denying liability, under s 14, for both ‘aggravation of tinnitus (bilateral)’ and sensorineural hearing loss; in addition, the determination dated 23 June 2017, declining medical expenses under s 16, was affirmed. Ms Carney received these decisions on 31 July 2017.

  4. On 29 November 2017, she lodged an application seeking review of the reconsiderations dated 27 July 2017. The 60-day time limit for lodging such an application having expired on 25 September 2017, she simultaneously lodged an application to lodge this application outside of time.

  5. Ms Carney has, and has had, various other applications before the Tribunal. Notably, for the purposes…

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AGLC
Carney and Comcare (Compensation) [2018] AATA 164
Case
[2018] AATA 164
Decision Date

CaseChat Overview and Summary

This matter concerned an application for an extension of time by Ms Carney to lodge an appeal against a decision by Comcare. Ms Carney sought to have her psychological condition, tinnitus, and sensorineural hearing loss, and potentially a condition related to her right eye, considered together. Her former solicitors had advised her that her case lacked merit, leading to a delay in lodging her application for review.

The Administrative Appeals Tribunal was required to determine whether it was reasonable in all the circumstances to grant Ms Carney an extension of time to lodge her application. This involved considering the explanation for the delay, any prejudice to Comcare, and whether Ms Carney had an arguable case. The Tribunal also had regard to the provisions of section 29(7) of the Administrative Appeals Tribunal Act 1975, which allows for extensions of time where the Tribunal is satisfied it is reasonable to do so.

The Tribunal found that Ms Carney had provided a satisfactory explanation for the delay, attributing it to the advice received from her former solicitors. It noted that she had acted promptly upon seeking a second opinion from her current solicitor, following advice from her psychologist. The Tribunal also considered that Ms Carney appeared to have an arguable case that she had suffered a compensable injury. Furthermore, the Tribunal concluded that any prejudice to Comcare from granting the extension would be slight.

Consequently, the Tribunal was satisfied that it was appropriate to grant the extension of time. The time for Ms Carney to make an application for review of Comcare’s decision was extended to 29 November 2017, the date on which her application was actually lodged.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

Counsel for Ms Carney contended that this psychological condition is related to the conditions of aggravation of tinnitus (bilateral)’ and sensorineural hearing loss. He also suggested that a condition related to her right eye may also be linked to the matters lodged with the Tribunal. (It appears that a claim for this condition has not yet been fully considered by Comcare.) He said that she sought an extension of time to file the present application so that all matters may be dealt with together.The evidence Ms Carney gave evidence before the Tribunal, and was cross-examined, in relation to her application for an extension of time. She told the Tribunal that when she received the reconsideration decisions of 31 July 2017, her then solicitors advised her that the likelihood of my case being successful was not very good, so the recommendation was not to proceed… On 27 October 2017 she spoke with her psychologist who recommended that I seek some further advice. Following that she sought advice from her present solicitor. After August 2017 she received psychological retraining in aspects to deal with tinnitus. She also said she was diagnosed in September 2016 with a problem with my right eye. Under cross-examination, she agreed that she attributed her hearing loss and tinnitus to stress arising from a meeting with her coordinator, Mr Healy, on 3 November 2016 where she was advised that she was being placed on an unattached list in respect of her employment. She conceded that the eye condition was diagnosed before this meeting. Two reports by Dr Peter Chapman, ear, nose and throat surgeon, were tendered. In his second report, dated 19 September 2017, he diagnosed tinnitus and a degree of hearing loss, and commented that Her tinnitus began with stressful events that occurred at work. He later added:Whilst such a traumatic event [the meeting with Mr Healy] would not be a specific cause of tinnitus, it would have the capacity to aggravate it and once aggravated it would become significant and more of a problem.He also considered that the cause of her hearing loss is unclear.Provisions governing an extension of time Section 29(2) of the Administrative Appeals Tribunal Act 1975 (the AAT Act) provides that the time for making an application for review in this case ends on the twenty-eighth day after... the day on which a document setting out the terms of the decision is given to the applicant. However, s 65 of the Act modifies this section, in respect of matters brought to the Tribunal under that legislation, to provide that: (4) Subsection 29(2) of the Act has effect as if the reference to "the twenty-eighth day" (first occurring) were a reference to "the sixtieth day". However, s 29(7) of the AAT Act provides:(7) The Tribunal may, upon application in writing by a person, extend the time for the making by that person of an application to the Tribunal for a review of a decision (including a decision made before the commencement of this section) if the Tribunal is satisfied that it is reasonable in all the circumstances to do so.The relevant principles

Decision

Reasons for decision

Conversely, in Saffioti and Comcare [2018] AATA 43, Deputy President Constance granted an extension of time under s 29(7) where the delay in question was four months and there was some evidence before the Tribunal of actual prejudice to Comcare by virtue of the memories of four prospective witnesses being eroded by the passage of time.Conclusion In summary, Ms Carney has satisfactorily explained her failure to lodge an application for merits review within the prescribed time, and does appear to have an arguable case that she has suffered a compensable injury under s 14. As the prejudice to Comcare in extending her time to apply would appear to be slight, the Tribunal is positively satisfied that it would be appropriate in the circumstances to entertain her substantive application. Pursuant to s 29(7), the Tribunal extends the time for making an application for review of Comcare’s decision of 27 July 2017 to 29 November 2017 (the date on which Ms Carney’s application was actually lodged).

Ratio Decidendi

Legal Principle Established

In Bahonko v Nurses Board of Victoria (No 4) [2007] FCA 1449 at [48] these considerations were condensed as:·the explanation of the delay;·any prejudice to the respondent; and·whether the applicant has an arguable case. Consideration Ms Carney’s application for review is a little over two months out of time. Reasons were provided to the Tribunal for this delay. Ms Carney’s initial advice was that her case lacked merit, and that she should not proceed. Less than three months later, on the suggestion of her psychologist, she sought a second opinion, which apparently questioned the earlier legal advice. On the strength of that advice she made her present application. As A'Hearn's case makes clear, the offering of an acceptable explanation for delay is not a prerequisite for success in an application for extension of time. However, the Tribunal should weigh whatever explanation is offered; an explanation which suggests that an applicant has not abandoned his desire for review and has acted reasonably in all the circumstances will assist the Tribunal to the view that he has not rested on his rights, in the language of Fisher J in Doyle. In my opinion, Ms Carney’s explanation here meets this test. Her inactivity in pursuit of her claim after 31 July 2016 was based squarely on the advice of her lawyers. No criticism can be levelled at her for acting on their advice. Equally, when she obtained a second opinion on the basis of a suggestion from a trusted health professional, she acted promptly on it. Plainly, Ms Carney has explained the delay. Her actions are those of any reasonable person put in the same position. Counsel for Comcare submitted that Ms Carney’s position reflects that of the applicant in Secretary, Department of Social Security v Van Den Boogaart [1995] FCA 1289, where Kiefel J, as her Honour then was, observed (at [7]):The matter which most strongly weighs against the grant of an extension of time is the lack of a satisfactory explanation for the delay. The fact of any explanation which appears credible does not suffice. The prima facie rule is that proceedings commenced outside the period of twenty eight days will not be entertained: Hunter Valley Developments Pty Ltd v. Cohen, 348, McKnight v. Australian Archives, unreported decision of Neaves J 16.7.93. As Wilcox J explained in the Hunter Valley case (348), the Court will not grant the application unless "positively satisfied that it is proper to do so" and the applicant must show an "acceptable explanation of the delay". All that is proffered here is that an assumption was made, but no basis is given for it and none is apparent. It was made by a legally qualified person employed within a department which regularly litigates in the Tribunal and this Court. The absence of detail in the explanation suggests that a view may have been taken that, so long as some explanation was made and the respondent did not assert prejudice, the Court would automatically grant the extension. Such a view, if held, could of course disregard the discretion to be exercised by the Court and the level of satisfaction it requires.