Cleary and Comcare (Compensation)

This matter concerned an application by Gary Cleary (the Applicant) for a review of a decision made by Deputy President Constance on 17 June 2016, and an associated application for an extension of time to lodge that review application. The Respondent was Comcare. The original decision of 2016 had dismissed the Applicant's application under s 42A(5) of the Administrative Appeals Tribunal Act 1975 (Cth) due to the Applicant's failure to proceed with the application within a reasonable time, specifically by failing to attend scheduled assessment appointments.

The legal issues before the Tribunal were whether to grant the Applicant an extension of time to lodge his application for review of the 2016 decision. This request for an extension of time was effectively an application to reinstate proceedings that had been dismissed for failure to prosecute. The Tribunal was required to consider the criteria for granting an extension of time, which generally involves demonstrating an acceptable explanation for the delay, considering whether the applicant has rested on their rights, assessing any prejudice to the respondent, and evaluating the merits of the substantial application.

The Tribunal noted that the Applicant had a history of failing to proceed with applications and had previously sought to reinstate discontinued proceedings, which had been refused. While the current application was framed as an extension of time, the Tribunal treated it as such but found that the Applicant could not succeed on this basis. The Tribunal applied the principles for granting an extension of time, including the need for an acceptable explanation for the delay and consideration of fairness and prejudice.

The Tribunal refused the Applicant's request for an extension of time to lodge his application for review.