Coney and Comcare (Compensation)

[2018] AATA 1859

Coney and Comcare (Compensation) [2018] AATA 1859 (22 June 2018)

Division:GENERAL DIVISION

File Number:2018/2086           

Re:Bridget Coney  

APPLICANT

ComcareAnd  

RESPONDENT

DECISION

Tribunal:Member M East

Date:22 June 2018

Place:Perth

The Tribunal refuses to grant the Applicant’s application for an extension of time, pursuant to s 29(7) of the Administrative Appeals Tribunal Act 1975 (Cth), for the review of the reviewable decision dated 22 November 2017.

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Member M East

CATCHWORDS

Extension of time application – factors that are relevant when considering an application for an extension of time – poor prospects of success – lack of explanation of delay – applicant rested on her rights – need to prevent disruption to established practices – application refused

LEGISLATION

Administrative Appeals Tribunal 1975 (Cth) – s 2A(b), s 2A(d), s 29(1)(d), s 29(2), s 29(7)

Administrative Decisions (Judicial Review) Act 1977 (Cth)

Safety, Rehabilitation and Compensation Act 1988 (Cth) – s 14, s 65(4)

CASES

Brown v Commissioner of Taxation [1999] FCA 563

Comcare v A’Hearn (1993) 119 ALR 85

Hamilton and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2011] AATA 276

Hickey v Australian Telecommunications Commission (1983) 47 ALR 517

Hunter Valley Developments Pty Ltd v Cohen, Minister for Home Affairs and Environment (1984) 3 FCR 344; 58 ALR 305

Kim and Minister for Immigration and Border Protection [2018] AATA 155

Lucic v Nolan (1982) 45 ALR 411

Minister for Health and Aged Care v Pharmacia and Upjohn Pty Ltd (2001) 65 ALD 76

Re Johnson and Commonwealth [1990] AATA 1

Re Mulheron and Australian Telecommunications Corporation (1991) 23 ALD 309

Rollins and Principal Member of the Veterans’ Review Board and Repatriation Commission [2011] AATA 113

Seiler and Others v Minister for Immigration, Local Government and Ethnic Affairs (1994) 48 FCR 83

Zizza v Commissioner of Taxation [1999] FCA 848

REASONS FOR DECISION

Member M East

22 June 2018

THE APPLICATION

1. The Applicant, Ms Coney, lodged a claim for compensation for “depression, anxiety and stress causing mini stroke caused by breach of duty of care and bullying” on 18 May 2017 (Exhibit A1, determination dated 4 August 2017).

2. Comcare, the Respondent, made a determination dated 4 August 2017 in which it found Ms Coney’s employment not to be significant in the causation of her condition.

3. Ms Coney sought reconsideration of the determination. On 22 November 2017, in relation to the claim for depression, anxiety, stress and a secondary Transient Ischaemic Attack, (“TIA” also referred to as a “mini stroke”), a Review Officer determined that compensation is not payable for an adjustment disorder or a TIA for the purpose of s 14 of the Safety, Rehabilitation and Compensation Act 1988 (Cth) (the “SRC Act”).  The Review Officer also found that Ms Coney did not suffer an injury that arose out of, or in the course of, her employment and there was no medical evidence that an actual physiological change had occurred.

4. On 22 January 2018 the Tribunal received an application from Ms Coney for a review of the decision of 22 November 2017. On 25 January 2018 Ms Coney withdrew her application.

5. She lodged a subsequent application for review on 14 March 2018.  On 15 March 2018 the Tribunal wrote to Ms Coney inviting her to apply for an extension of time as her application for review was received out of time.  No response was received and on 4 April 2018 the Tribunal closed its file.  Ms Coney was given notification of this.

6. On 19 April 2018 the Tribunal received another application for review of the decision together with an application for an extension of time.  Ms Coney contends that she sent the previous application for an extension of time to Comcare on 14 March 2018 by mistake.

7. Ms Coney is now seeking an extension of time to lodge an application for review of Comcare’s decision dated 22 November 2017 (the “reviewable decision”).

   THE ISSUE

8. The issue is whether the Tribunal should exercise its discretion under s 29(7) of the Administrative Appeals Tribunal Act 1975 (Cth) (the “AAT Act”) to extend the time for Ms Coney to make an application for review of Comcare’s decision.

9. The Respondent opposes the extension of time application.

   EVIDENCE

10. The matter was heard by the Tribunal on 8 June 2018. Ms Coney was represented by Ms Aranda who appeared by telephone. The Respondent was represented by Mr Burgess of Sparke Helmore Lawyers, who also appeared by phone.

11. The following documents were admitted into evidence: 

    (a)a bundle of documents under cover of email dated 19 April 2018 (“Exhibit A1”); and

    (b)the Respondent’s outline of submissions dated 17 May 2018 (“Exhibit R1”).

12. The Applicant also gave oral evidence at the hearing.

    RELEVANT LEGAL PRINCIPLES FOR AN EXTENSION OF TIME

13. Generally an application for review of a decision must be lodged with the Tribunal within 28 days of the applicant receiving notice of the decision: s 29(1)(d) and s 29(2) of the AAT Act.

14. Section 29(2) of the AAT Act is modified by section 65(4) of the SRC Act which provides a party with 60 days in which to seek review of the reviewable decision. This is the relevant time limit for the purpose of this application. The time limit prescribed by section 65(4) of the SRC Act expired on 22 January 2018.

15. Section 29(7) of the AAT Act provides that:

    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.

16. Section 29(7) of the AAT Act does not set out any principles which the Tribunal can refer to in order to be “satisfied that it is reasonable in all the circumstances” to extend the time for making an application.  However, relevant principles which the Tribunal may apply in assessing whether it is reasonable to grant an extension of time have been judicially considered.  

17. A frequently cited authority is Hunter Valley Developments Pty Ltd and Others v Cohen, Minister for Home Affairs and Environment (1984) 3 FCR 344; 58 ALR 305 (Hunter Valley), in which the Federal Court considered whether to grant an extension of time to allow the applicants to bring an application for judicial review under the Administrative Decisions (Judicial Review) Act 1977(Cth) (ADJRA). In Hunter Valley, Wilcox J (at 310-311) set out principles that were intended to be “non-exhaustive guidelines” (see Brown v Commissioner of Taxation [1999] FCA 563 per Hill J at [32]-[34]) which may be relevant when considering whether to grant an extension of time. As stated by Wilcox J in Hunter Valley (at 310), the principles were intended “… to guide, not in any exhaustive manner, the exercise of the court's discretion.”

18. These principles are substantially similar to those applied in decisions concerning s 29(2) of the AAT Act such as Re Mulheron and Australian Telecommunications Corporation (1991) 23 ALD 309 where President O’Connor J applied the following principles considered by Deputy President Todd in Re Johnson and Commonwealth [1990] AATA 1 at [17]:

    (a)  Prima facie proceedings commenced outside the prescribed period will not be entertained. An extension of time will be granted, however, if it is proper to do so.

    (b)  It is relevant whether the applicant rested on his rights or took action to make the decision-maker aware that the decision was being contested.

    (c)  Any prejudice to the respondent that would be caused by granting the extension of time is relevant.

    (d)  Any wider prejudice to the general public in terms of disruption to established practices is relevant.

    (e)  The merits of the substantial application are relevant.

    (f)    Fairness of granting the extension of time as between the applicant and other persons in a like position is relevant.

19. The balancing of these factors will depend on the individual case.

20. Some flexibility is permitted in applying the principles, as indicated by the above statement that “[t]he balancing of these factors will depend on the individual case”. Thus the facts and circumstances of a particular case may warrant particular attention being given to one or more of the principles over others, some of which may be less relevant, or not relevant at all. In Zizza v Commissioner of Taxation [1999] FCA 848 the Full Court of the Federal Court, when discussing the principles set out by Wilcox J in Hunter Valley, observed (at [13]) that: “It would be an error to regard the summary as complete, or to treat each of the six principles it contains as necessarily applicable to any particular application for extension of time, especially an application under different legislation”.

21. Additionally, whether an applicant has an acceptable explanation for the delay will be relevant, but “… there is no rule that such an explanation is an essential pre-condition” to the success of the application for an extension of time (Comcare v A’Hearn (1993) 119 ALR 85 at 88).

    CONSIDERATION

22. In determining whether an extension of time should be granted in this case, the relevant factors the Tribunal should consider include:

    ·the length of the delay;

    ·the explanation of the delay and whether that explanation is satisfactory;

    ·whether the Applicant was aware of her appeal rights and whether she rested on those rights;

    ·any prejudice to the Respondent or the general public arising from an extension of time;

    ·the merits of the substantive application; and

    ·the alternative avenues of relief.

    Length of the delay

23. Ms Coney’s application for an extension of time was lodged with the Tribunal on 19 April 2018.  Ms Coney submits she received the reviewable decision on 22 November 2017.  The application for review and extension of time application was lodged in excess of 80 days out of time.

24. The Tribunal notes the following statement of French J (as he then was) in Seiler and Others v Minister for Immigration, Local Government and Ethnic Affairs (1994) 48 FCR 83 (at 96). His Honour stated the following in the context of an extension of time application for review under the ADJRA:

    The exercise of the discretion to extend time… must be informed by the purposes served by the statutory limitation and associated dispensing power. The limitation is directed to achieving certainty and finality in administrative decision-making. In the ordinary course, where a reviewable decision is taken, and the review procedure is not instituted within the prescribed period, the decision-maker is entitled to proceed on the basis that the decision stands and will not be called into question by way of judicial review. Finality and certainty are not ends in themselves, but means to the end of efficient administration.

25. The length of the delay, being more than 80 days is significant, and to grant an extension after such a time may be inconsistent with the principle that there should be certainty and finality in administrative decision making. This weighs against the Tribunal exercising its discretion to grant an extension of time.

    Explanation for delay and awareness of appeal rights

26. Ms Coney provided the following reason for her delayed application in her application for an extension of time form:

    I consulted my lawyer who felt that there was a Breach of Duty of Care & this was raised in Hearing at AAT for 2015/5153, 2015/5154, 2015/5901, 2016/1209 & 2016/1219 in Oct 2017.  When I put in Comcare claim 212647/06 it included Breach of Duty of Care in description but was rejected.  I consulted my lawyer @ (sic) lodging AAT claim & she said I would probably have to undergo expensive medical assessments & advised me against it.  I was put off by this as under financial strain having spent @ (sic) $21,000 since 2014 on injuries.  I knew I had to spend $3,300 on new Neuro apt (sic) in April 2018 & just could not afford it.  That & stress was reason for quick withdrawal.  TODAY (sic) my lawyer asked me about Breach of Care Claim at AAT – so now I think I have to re-lodge or it will jeopardise other cases at AAT contrary to my lawyer’s previous advice.

27. As noted earlier, Ms Coney withdrew her earlier application on 25 January 2018 on legal advice. She subsequently lodged another application for review on 14 March 2018 and did not respond to the Tribunal’s invitation to lodge an application for extension of time.  The latest application for review was received by the Tribunal on 19 April 2018.  Ms Coney refers to advice received by her lawyer for a “breach of duty of care claim” as the reason for lodging her application again.

28. At the hearing Ms Aranda submitted that Ms Coney withdrew her application because of money difficulties.  She said Ms Coney had made an application to the Commonwealth for funding assistance and the application took a while to be processed.  Whilst this may be relevant to her progressing her application for review, it was not a pre-requisite for Ms Coney to lodge her application.

29. In the Tribunal’s opinion, the explanations given by Ms Coney for her delay are insufficient.

30. Ms Coney was advised of her right to seek a review of Comcare’s decision and (as demonstrated by her previous conduct in the Tribunal) is aware of her rights when seeking review. 

31. The Tribunal is of the view that this weighs against the Tribunal exercising its discretion to grant an extension of time.

    Prejudice to the Respondent or the General Public

32. The absence of prejudice is not itself enough to justify the granting of an extension (Lucic v Nolan (1982) 45 ALR 411 at 416; Hickey v Australian Telecommunications Commission (1983) 47 ALR 517 at 523 cited in Hunter Valley at 311).

33. As noted by Deputy President Todd in Re Johnson and Commonwealth [1990] AATA 1 at [17] (see paragraph 18 above), any wider prejudice to the general public in terms of disruption to established practices is also a relevant consideration for the Tribunal in considering whether or not to grant an extension of time. The Tribunal further notes an objective of the AAT Act is to promote “…public trust and confidence in the decision-making of the Tribunal” (s 2A(d) of the AAT Act). If the Tribunal grants lengthy extensions of time, this confidence may be undermined. Fairness as between the Applicant and other persons in a like position is also relevant. For example, applicants who have previously been denied review by the Tribunal, and others who may not have sought review at all because the statutory time limit has passed.

34. A further objective of the Tribunal is to provide a mechanism of review that is “fair, just, economical, informal and quick” (s 2A(b) of the AAT Act). The 60 day time period set out in the SRC Act is consistent with the achievement of that objective. However, in this case, the delay is in excess of 80 days, which in the Tribunal’s opinion, is considerable and inconsistent with that objective. These factors weigh against the granting of the extension of time.

    Merits of the substantive application

35. As noted above, when deciding whether to grant an extension of time to an applicant, the Tribunal may consider the merits of the applicant’s substantive application. The Tribunal should not undertake a substantive review of the merits of the application (Minister for Health and Aged Care v Pharmacia and Upjohn Pty Ltd (2001) 65 ALD 76), but, rather, should assess whether the applicant has an arguable case (Brown v Commissioner of Taxation [1999] FCA 563 at [56]).

36. The Tribunal has previously declined to grant an extension of time to an applicant in cases where it considers the applicant would have little prospect of success at a substantive hearing of the matter (see, for example, Rollins and Principal Member of the Veterans’ Review Board and Repatriation Commission [2011] AATA 113 and Hamilton and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2011] AATA 276).

37. The Respondent contends Ms Coney’s application has limited prospects of success and that this weighs heavily against the granting of an extension of time.

38. After seeking clarification from the parties, both agreed the issue in dispute in the present matter is whether Ms Coney’s TIA was caused by stress which she contends was contributed to by her employment.

39. The Tribunal notes several obstacles to Ms Coney’s claim. The Tribunal did not receive any medical evidence confirming the suffering of a TIA by Ms Coney, either from the hospital where she was treated, or by report from her general practitioner or a relevant specialist. Secondly, there is no medical evidence before the Tribunal to support her contention that the cause of suffering of a TIA can be attributed to stress.  Dr Lee, in her report dated 20 July 2017 stated (at page 11): “There is no scientific evidence to suggest stress causes transient ischaemic attacks or that anxiety and depression causes transient ischaemic attacks” (Dr Lee’s report was included in Exhibit A1).

40. The Tribunal did not have before it in this application any expert evidence in support of Ms Coney’s contention as to the aetiology of her alleged TIA. 

41. The Tribunal finds that the prospects of success in Ms Coney’s application are poor, and this weighs heavily against the granting of an extension of time.

    Alternative avenues of relief

42. The Tribunal will often have regard to whether there are any alternative avenues of relief available to an applicant when considering an extension of time application (see Rollins and Principal Member of the Veterans’ Review Board and Repatriation Commission [2011] AATA 113 at 18 and Kim and Minister for Immigration and Border Protection [2018] AATA 155 at 48).

43. No submissions were made on this point; however, the Tribunal notes future applications by the Applicant are not precluded.

    CONCLUSION

44. Having carefully weighed all the factors outlined above, the Tribunal finds that it is not reasonable in all the circumstances to grant an extension of time to allow Ms Coney to make an application for review of the reviewable decision.

    DECISION

45. For the reasons outlined above, the Tribunal refuses the Applicant’s application for an extension of time to lodge an application for review of the reviewable decision dated 22 November 2017.

I certify that the preceding 45 (forty - five) paragraphs are a true copy of the reasons for the decision herein of Member M East

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Associate

Dated:   22 June 2018

Date of hearing:	8 June 2018
Representative for the Applicant:	Ms Aranda
Representative for the Respondent:	Mr Burgess
Solicitors for the Respondent:	Sparke Helmore Lawyers