Cleary and Comcare (Compensation)

[2022] AATA 1373

Cleary and Comcare (Compensation) [2022] AATA 1373 (3 May 2022)

Division:GENERAL DIVISION

File Number(s):      2022/1902

Re:Gary Cleary

APPLICANT

AndComcare

RESPONDENT

DECISION

Tribunal:Chris Puplick AM, Senior Member

Date:3 May 2022

Date of written reasons:        26 May 2022

Place:Sydney

For the reasons given orally at the conclusion of the interlocutory hearing of this matter, the Tribunal refuses the Applicant’s request for an extension of time to lodge their application for review.

................................[sgd]...................................

Chris Puplick AM, Senior Member

CATCHWORDS

PRACTICE AND PROCEDURE – workers compensation application – originally dismissed for applicant failure to proceed with the application within a reasonable time – request for extension of time – where request for extension of time is effectively request for reinstatement – application for reinstatement refused – application for extension of time refused

LEGISLATION

Administrative Appeals Tribunal Act 1975 (Cth) ss 29, 42A

CASES

Hunter Valley Developments Pty Ltd and Others v Minister for Home Affairs and Environment (1984) 3 FCR 344

REASONS FOR DECISION

Chris Puplick AM, Senior Member

26 May 2022

1. On 26 February 2022 Mr Gary Cleary (the Applicant) applied for a review of a decision made by Deputy President Constance in this Tribunal on 17 June 2016. At the same time he applied for an extension of time (EOT) to lodge that application. The Tribunal must decide whether the EOT should be granted.

   BACKGROUND

2. The matter was heard by the Tribunal on 3 May 2022 with both Mr Cleary and the legal representative for Comcare (the Respondent) present by telephone.

3. Under the Administrative Appeals Tribunal Act 1975 (Cth) (AAT Act) applications for a review of any Tribunal decision must be lodged within 28 days of that decision being made[1]  unless an EOT is granted by the Tribunal.[2]

   [1] Administrative Appeals Tribunal Act 1975 (Cth) (AAT Act) s 29(2).

   [2] AAT Act s 29(7).

4. In this instance, the decision of the Tribunal in 2016 was to dismiss the Applicant’s application under the provisions of subsection 42A(5) of the AAT Act “by reason of [the Applicant’s] failure to proceed with the application within a reasonable time.”

5. It is not necessary to say anything more about the decision of the Tribunal in 2016, suffice to say that it involved a Comcare claim made in 2014 in respect of which the Tribunal found that unacceptable delays had been “occasioned by Mr Cleary’s failure to attend an appointment for assessment”. There had been several of these arranged, all of which Mr Cleary had failed to attend.

6. Subsection 42A(5) of the AAT Act provides:

   (5)  If an applicant for a review of a decision fails within a reasonable time:

   (a)  to proceed with the application; or

   (b)  to comply with a direction by the Tribunal in relation to the application;

   the Tribunal may dismiss the application without proceeding to review the decision.

7. Between the time of the original decision and this current application, the Applicant, on 15 June 2016, had made a separate claim for compensation in relation to a thyroid condition, but this application was declined by Comcare. An appeal against that Comcare decision was lodged in this Tribunal on 2 August 2017 but was not proceeded with and was withdrawn by the Applicant on 8 June 2018.

8. In 2019 the Applicant sought to revive those proceedings by making an application for an EOT which was, in fact not an EOT application but rather an application to reinstate proceedings which he (the Applicant) had discontinued. This application was refused by Senior Member Fairall in this Tribunal on 7 May 2020.

9. This brings us to the current proceedings where again, an application for an EOT has been made which is, in effect, an application to reinstate previous proceedings.

   AS AN EOT APPLICATION

10. Even if this were an EOT application, it is generally accepted that the “check-list” outlined by Wilcox J in Hunter Valley Developments Pty Ltd and Others v Minister for Home Affairs and Environment[3] should be taken as the guide by this Tribunal in determining EOT matters.

    [3] (1984) 3 FCR 344.

11. That list provides as follows:

    ·an applicant must show an “acceptable explanation of the delay” and this it is “fair and equitable in the circumstances” to extend time;

    ·a distinction is to be made between an applicant who has “rested on his rights” and allowed the decision-maker to believe that the matter was finally concluded, and one who has continued to make the decision-maker aware that he or she contests the finality of the decision;

    ·any prejudice to the respondent caused by the delay;

    ·whether any  others or the general public would suffer any prejudice as a result of the extension, or established practices be upset;

    ·the merits of the substantial application; and

    ·“considerations of fairness as between the applicant and other persons” in a similar position.

12. In relation to this application, the Applicant satisfies none of those conditions:

    (a)he has provided no cogent and substantive reasons for his delay in advancing this matter since 2016;

    (b)he has rested on his rights by taking no steps following the 2016 decision to seek its review;

    (c)the Respondent and the Respondent’s previous employer would be prejudiced in their operations, particularly the Respondent as it has made a variety of decisions which have been affirmed and actioned and it is entitled to some finality of matters which have been on foot since 2014;

    (d)the general public is entitled to expect that the review mechanisms available to applicants will be exercised in a timely fashion;

    (e)no evidence has been presented which would establish that there is any substance in the application; and

    (f)other applicants who have acted in accordance with the provisions of relevant legislation would have been treated unfairly if this application is allowed to proceed.

13. To the extent that this application is considered an EOT application, there is no basis on which such EOT application can be accepted.

    AS A REINSTATEMENT APPLICATION

14. In the alternative, the only way in which the Applicant can revivify this matter is to seek to have it reinstated under the provisions of either subsection 42A(8), (8A), (9) or (10) of the AAT Act.

15. As the application was dismissed under subsection 42A(5) of the AAT Act, the only relevant provision of these is subsection 42A(1) which provides (emphasis added):

    (10)  If it appears to the Tribunal that an application has been dismissed in error, the Tribunal may, on the application of a party to the proceeding made within the period referred to in subsection (11) or on its own initiative, reinstate the application and give such directions as appear to it to be appropriate in the circumstances.

16. However, there is nothing at all to suggest that the original decision of the Tribunal on 17 June 2016 was in error. No appeal was ever taken against the correctness of the decision.

17. An application for reinstatement of a dismissed appeal can be made provided that it is lodged within 28 days of the dismissal notification (or an extension of time is granted) pursuant to subsection 42A(11). No such application was ever made.

18. Hence, there is no basis upon which an application for reinstatement can be made.

19. While this Tribunal takes the application as being for an EOT rather than a reinstatement (as that is what the Applicant specified), it finds that the Applicant cannot succeed on either basis of application.

    DECISION

20. For the reasons given orally at the conclusion of the interlocutory hearing of this matter, the Tribunal refuses the Applicant’s request for an extension of time to lodge their application for review.

I certify that the preceding 20 (twenty) paragraphs are a true copy of the reasons for the decision herein of Chris Puplick AM, Senior Member

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Associate

Dated: 26 May 2022

Date(s) of hearing:	3 May 2022
Applicant:	In person
Solicitors for the Respondent:	Ms S Johnson, HBA Legal