Carney and Comcare (Compensation)
[2018] AATA 164
•7 February 2018
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.
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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 14Cases
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 1142REASONS FOR DECISION
Deputy President Gary Humphries
7 February 2018
Introduction
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).
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.
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.
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.
Ms Carney has, and has had, various other applications before the Tribunal. Notably, for the purposes of the present matter, an Application for Review of Decision was filed (within time) on 10 January 2018 in matter 2018/0140, seeking review of a decision denying liability for a psychological condition.
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
The discretion given to the Tribunal in s 29 is very wide.[1] The Tribunal has to be satisfied that it is reasonable in all the circumstances to grant the extension. However, a number of decisions provide guidance as to when this broad discretion should be exercised.
[1] Paragraphs 8-13 are drawn from the Tribunal's decision in McKenzie and Comcare [2016] AATA 1100.
In Re Hunter Valley Developments Pty Limited v Minister of Home Affairs and Environment [1984] FCA 176 Wilcox J at [18]-[23] articulated the now often-quoted criteria to be considered in an application for an extension of time to review a decision:
(a) Although the section 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" of 28 days is not to be ignored (Ralkon v Aboriginal Development Commission [1982] FCA 153; (1982) 43 ALR 535 at p 550) Indeed it is the prima facie rule that proceedings commenced outside that period will not be entertained (Lucic v Nolan (1982) 45 ALR 411 at p 416) It is a pre-condition 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 at p 485; Chapman v Reilly, Neaves J, 9 December 1983, not reported, at p 7).
(b) Action taken by the applicant, other than by making an application for review under the Act, is relevant to the consideration of the question whether an acceptable explanation for the delay has been furnished. A distinction is to be made between the case of a person who, by non-curial means, has continued to make the decision maker aware that he contests the finality of the decision (who has not "rested on his rights": per Fisher J in Doyle v Chief of Staff [1982] FCA 124; (1982) 42 ALR 283 at p 287) and a case where the decision maker was allowed to believe that the matter was finally concluded. Compare Doyle, Chapman, Ralkon and Douglas v Allen (Morling J, 3 April 1984, not reported) at p 18 with Lucic at pp 414-415 and Hickey v Australian Telecommunications Commission (1983) 48 ALR 517 at p 519. The reasons for this distinction are not only the "need for finality in disputes" (see Lucic at p 410) but also the "fading from memory" problem referred to in Wedesweiller v Cole [1983] FCA 94; (1983) 47 ALR 528.
(c) Any prejudice to the respondent including any prejudice in defending the proceedings occasioned by the delay is a material factor militating against the grant of an extension: see Doyle at p 287, Duff at pp 484-485, Hickey at pp 525-527 and Wedesweiller at pp 533-534.
(d) However, the mere absence of prejudice is not enough to justify the grant of an extension: Douglas at p 18, Lucic at p 416, Hickey at p 523. In this context, public considerations often intrude (Lucic, Hickey). A delay which may result, if the application is successful, in the unsettling of other people (Ralkon p 550, Becerra pp12-13) or of established practices (Douglas p 19) is likely to prove fatal to the application.
(e) The merits of the substantial application are properly to be taken into account in considering whether an extension of time should be granted: Lucic p 417, Chapman p 6.
(f) Considerations of fairness as between the applicants and other persons otherwise in a like position are relevant to the manner of exercise of the Court's discretion: Wedesweiller at pp 534-535.
These principles, however, have undergone some modification following the Federal Court decision in Comcare v A'hearn[1993] FCA 498. In that case, the Full Court upheld the decision of a primary judge who upheld an appeal from the Tribunal, which had refused an application for an extension of time within which to review a decision of Comcare. The Full Court found at [11] that:
In our view the primary judge was correct in concluding that the reasons for decision reveal an error of law on the part of the Tribunal. The error was that the Tribunal considered that what is found was an inexcusable delay on the part of the solicitors could not constitute an acceptable explanation for the delay in making the application.
The Full Court added (at [15]):
We note that the Tribunal used language that might be taken to suggest that it is a pre-condition for success in such an application that an acceptable explanation for the delay must be given. Although it is to be expected that such an explanation will normally be given, as a relevant matter to be considered, there is no rule that such an explanation is an essential precondition…
The Federal Magistrates Court in Phillips v Australian Girls’ Choir Pty Ltd & Anor [2001] FMCA 109, summarised the new position following A’Hearn as follows (at [10]):
In the light of A'Hearn's case, it is clear that at least one of the principles referred to by Wilcox J in the Hunter Valley decision needs to be modified namely that it should not be any longer regarded as law that the inexcusable delay on the part of a solicitor should be visited upon the client and nor should it be a principle that there is in fact a pre-condition to the exercise of discretion in favour of the applicant for extension to show an acceptable explanation for delay or that it's fair and equitable in the circumstances to extend time. In the light of the decision in Ahearn's case it is useful to set out in modified form the relevant principles in relation to the exercise of the Court's discretion when considering an extension of time in a human rights application based upon those principles distilled by Wilcox J in Hunter Valley as follows:
1There is no onus of proof upon an applicant for extension of time though an application has to be made. Special circumstances need not be shown, but the court will not grant the application unless positively satisfied it is proper to do so. The “prescribed period” of 28 days is not to be ignored (Ralkon v Aboriginal Development Commission [1982] FCA 153; (1982) 43 ALR 535 at 550).
2It is a prima facie rule that the proceedings commenced outside the prescribed period will not be entertained (Lucic v Nolan (1982) 45 ALR 411 at 416). It is not a pre-condition for success in an application for extension of time that an acceptable explanation for delay must be given. It is to be expected that such an explanation will normally be given as a relevant matter to be considered, even though there is no rule that such an explanation is an essential pre-condition (Comcare v A’Hearn [1993] FCA 498; (1993) 45 FCR 441 and Dix v Client Compensation Tribunal [1993] VicRp 21: (1992) 1 VR 297 at 302).
3Action taken by the applicant other than by making an application to the court is relevant in assessing the adequacy of the explanation for the delay. It is relevant to consider whether the applicant has rested on his rights and whether the respondent was entitled to regard the claim as being finalised. (See Doyle v Chief of Staff [1982] FCA 124: (1982) 42 ALR 283 at 287).
4Any prejudice to the respondent, including any prejudice in defending the proceeding occasioned by the delay, is a material factor militating against the grant of an extension. (See Doyle at p287).
5The mere absence of prejudice is not enough to justify the grant of an extension. (See Lucic at p 416).
6The merits of the substantial application are properly to be taken into account in considering whether an extension of time should be granted. (See Lucic at p 417).
7Considerations of fairness as between the applicant and other persons otherwise in a like position are relevant to the manner of exercise of the court’s discretion (Wedesweiller v Cole (1983) 47 ALR 528; [1983] FCA 94).
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.
The comparison between the conduct of Ms Carney and Ms Van Den Boogaart is misconceived. The Tribunal is not faced here with an applicant who has made an assumption, the basis for which is not explained. On the contrary, Ms Carney has acted on legal advice, and her actions in the face of that advice were quite rational and explicable.
The Tribunal must also consider any prejudice to the respondent which the grant of an extension of time would occasion. Comcare asserted prejudice to itself here. It did not point to any specific prejudicial matter, beyond the presumptive prejudice in which any insurer might find itself in such circumstances, and to which McHugh J referred in Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541 at 552:
…people should be able to arrange their affairs and utilise 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. (References omitted)
Counsel for Comcare went on to argue that the prejudice which arises in such circumstances has full effect as soon as the statutory period expires:
The fact that it’s only a short period of time is not a factor which weighs in Ms Carney’s favour at all, in my respectful submission.
…
…timeframe is irrelevant because …Comcare is of the view that the decision, once the timeframe is up, that is the end of that reviewable decision.
That contention cannot be supported. It is now well established that, in considering a request for an extension of time after the expiry of a statutory deadline, the period by which the deadline is exceeded is a highly relevant consideration. Lord Hailsham of St Marylebone in R v Lawrence [1982] AC 510 at 517 summarised this principle as Where there is delay the whole quality of justice deteriorates. Obviously, the longer the delay, the greater, generally-speaking, is the deterioration. McHugh J in Taylor expressed the principal as follows (at 551):
The longer the delay in commencing proceedings, the more likely it is that the case will be decided on less evidence than was available to the parties at the time that the cause of action arose.
In terms of the present application, the prejudice to Comcare – in the absence of any specific factor damaging to its position, such as the death of a witness – could be said to be minimal on the first day following the expiry of the statutory period and great on the thousandth day. The degree of imputed prejudice arising from a particular period of delay falling between those points will be a matter for assessment in an individual case, and any prejudice so assessed must be weighed against the other factors referred to in Hunter Valley Developments.
No specific prejudicial factor encumbering Comcare was referred to at the hearing. In the absence of such a factor the assumed prejudice it faces by the effluxion of a mere two months cannot be considered significant. In any case, Comcare’s file on Ms Carney is unlikely to have been closed given that her claim for a psychological condition remains on foot in the Tribunal.
The third major consideration in evaluating the appropriateness of an extension of time is the extent to which an applicant has an arguable case. Put another way, a case devoid of merit is unlikely to receive the benefit of s 29(7) even if an acceptable reason for delay is proffered and the length of time since expiry of the deadline is very small (see Jamal v Secretary, Department of Social Services [2017] FCA 916 at [12]).
An extensive canvassing of the evidence supporting an application for review is not necessary on an application for an extension of time. The Tribunal is required only to assess the merits in a fairly rough and ready way (per the High Court in Jackamarra v Krakouer [1998] HCA 27 at [9]). In the present case, the opinion of the doctor commissioned by Comcare to assess Ms Carney appears to be that her tinnitus is either attributable to, or aggravated by, a work-related meeting in November 2016. Ms Carney told the Tribunal she was stressed as a result of the meeting. Based on this admittedly very-limited overview of the evidence, Ms Carney has a prima facie case for compensation.
It appears to be at least part of Comcare’s case that, if it did significantly contribute to a medical condition afflicting Ms Carney, the meeting in question constituted reasonable administrative action taken in a reasonable manner in respect of her employment, affording Comcare the protection of the exclusionary provision in s 5A of the Act. In support of that position, a statement of Ms Carney’s supervisor in relation to the meeting was tendered, which characterised the supervisor’s behaviour in the meeting as professional and fair.
Counsel for Comcare submitted in closing submissions that Ms Carney agreed in the witness box that the behaviour was professional. However, the question and answer on which that contention is based does not support that characterisation:
MR BILBOE: Ms Carney, you agree with me that Mr Healy’s evidence is that he was conducting a professional ‑ ‑ ‑?‑‑‑A standard business meeting; yes.
Clearly, Ms Carney was commenting on the supervisor’s characterisation of his own behaviour, not her perception of it.
In any case, counsel for Ms Carney made it clear that her contention that the employer’s conduct was not reasonable was based at least in part on factors surrounding the calling of the meeting, not solely on what transpired at the meeting itself. Counsel for Comcare responded that such matters were interesting but ultimately not relevant. Again, that contention cannot be supported. The reasonableness of an employer’s actions must be judged on the context in which they occur, and a case is open to Ms Carney – on the limited facts available at this time to the Tribunal – that the circumstances surrounding the calling of the meeting contributed to the stress she says she experienced as a result of the meeting.
It is, of course, not necessary for the Tribunal to come to a concluded view about what the evidence it has before it might establish. It is necessary only to see whether a case might succeed if the facts, as postulated by the applicant and not contradicted outright by other evidence at this time, can be sustained at a hearing. It seems tolerably clear that that is the case here. It is not the role of the Tribunal to determine whether it prefers Ms Carney’s interpretation of the meeting on 3 November 2016, or her supervisor’s. What matters is that Ms Carney has the potential to succeed if her version is ultimately accepted.
Counsel for Ms Carney submitted that the matters dealt with in the reviewable decision of 27 July 2016 were interrelated to the claim for a psychological condition which was now indisputably before the Tribunal. Her tinnitus and hearing loss were attributable to work-related stress. On account of that interrelationship, it was submitted, it would be convenient and reasonable in all the circumstances (s 29(7)) to consider all the matters together.
Although I was not directed to any authority supportive of this proposition, I accept that it would be more appropriate to exercise the power in subsection (7) where, by doing so, compensable claims purporting to have a similar origin or connection might be considered together. In the present circumstances, however, I do not consider that the claim with respect to Ms Carney’s right eye can feature in that assessment, since it does not appear to have been fully dealt with to date by Comcare.
It might be observed that while there is clearly some evidence that her employment contributed to the onset of tinnitus, there is no evidence at this point that it contributed to hearing loss. However, both claims for merits review arise out of the same reviewable decision, and so admission of one to merits review necessitates admission of the other.
Comcare referred the Tribunal to some authorities on the question of an extension of time, but the cases cited are distinguishable from the present circumstances. In Swanton v Military Rehabilitation and Compensation Commission [2017] FCA 1142 the Federal Court upheld the Tribunal’s decision to refuse an extension of time, but the delay there was of seven months’ duration and was not adequately explained, in the court’s opinion. Similarly, in Makings and K & S Freighters Pty Ltd [2018] AATA 9 the Tribunal rejected an extension of time application where the application was 19 months late and it considered the explanation given for the delay unsatisfactory.
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).
I certify that the preceding 36 (thirty-six) paragraphs are a true copy of the reasons for the decision herein of Deputy President Gary Humphries
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Associate
Dated: 7 February 2018
Date(s) of hearing: 23 January 2018 Date final submissions received: 23 January 2018 Solicitors for the Applicant: Gabbedy Milson Lee Solicitors for the Respondent: Comcare
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