Connelly and Comcare (Compensation)

[2020] AATA 1780

Connelly and Comcare (Compensation) [2020] AATA 1780 (3 June 2020)

Division:GENERAL 

File Number(s):2020/1505             

Re:Mr Geoffrey Connelly  

APPLICANT

ComcareAnd  

RESPONDENT

DECISION

Tribunal:Senior Member B. Pola

Date of decision:       3 June 2020

Date of written reasons: 16 June 2020

Place:Brisbane

The Applicant’s application for an extension of time to lodge an application for review under s29(7) of the Administrative Appeals Tribunal Act 1975 (Cth) is refused.

...............................[SGD]..............................................

Senior Member B Pola

CATCHWORDS

EXTENSION OF TIME – extension of time to lodge application for review – principles to be applied – length of delay – whether there is an acceptable explanation for delay – whether reasonable prospects of success – whether there is any prejudice caused to the Respondent – whether there are alternate avenues of relief – extension of time not granted

LEGISLATION

Administrative Appeals Tribunal 1975 (Cth)

Safety, Rehabilitation and Compensation Act 1988 (Cth)

CASES

Brisbane South Regional Health Authority v Taylor [1996] HCA 25; (1996) 186 CLR 541

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

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

Mason and John Holland Pty Ltd (Compensation) 2018 AATA 415

Negri v Secretary, Department of Social Services (2016) 70 AAR 103

Noonan and Comcare [2019] AATA 515

Phillips v Australian Girls’ Choir Pty Ltd & Anor [2001] FMCA 109

Rope and Comcare [2018] AATA 42

Re Hewson and Australian Postal Corporation (1998) 50 ALD 994

Re Veronica Lesley Johnson and Commonwealth of Australia; commission of the Safety, Rehabilitation and compensation of the Commonwealth Employees [1990] AATA 1

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

SECONDARY MATERIALS

Clinical Framework for Delivery of Health Services

REASONS FOR DECISION

Senior Member B. Pola
16 June 2020

BACKGROUND

1. On 28 December 2018, Mr Geoffrey Connelly (or the ‘Applicant’) wrote to Comcare (or the ‘Respondent’) requesting a review of his entitlements, specifically remedial massage therapy.

2. On 16 July 2019, the Respondent declined remedial massage therapy on the basis that:

   (a)it was not satisfied that massage treatment was reasonable in the circumstances; and

   (b)the recommended treatment did not meet the principles of the Clinical Framework for Delivery of Health Services.

3. On 30 July 2019, the Applicant requested a reconsideration of the Respondent’s determination.

4. On 6 August 2019, the Respondent acknowledged the Applicant’s request for a reconsideration of the reviewable decision dated 16 July 2019 and provided the Applicant with an ‘About your Request for Reconsideration’ form, which stated that he may appeal to the Administrative Appeals Tribunal (or ‘Tribunal’) within 60 days of the date of the reviewable decision.

5. On 22 August 2019, the Respondent provided the Applicant with a copy of its Reconsideration of Determination, affirming the decision dated 16 July 2020.

6. The Applicant filed their application for review of the 22 August 2019 decision from the Respondent with the Tribunal on 8 March 2020.

7. On 14 April 2020, the Applicant lodge their ‘Application for Extension of Time for Making and Application for Review of Decision’ with the Tribunal.

8. On 3 June 2020, the Tribunal conducted an interlocutory hearing to consider the application for an extension of time.

9. At the conclusion of the hearing on 3 June 2020, the Tribunal made a decision in respect of the application for an extension of time ex tempore and provided oral reasons.

10. On 4 June 2020, under s43(2A) of the Administrative Appeals Tribunal Act 1975 (Cth) (or the ‘AAT Act’), the Respondent requested a statement in writing of the reasons the Tribunal gave for its decision.

11. The Tribunal, therefore, provides reasons in writing for the decision given in accordance with s43(2B) of the AAT Act:

    “43 Tribunal’s decision on review

    (2B) Where the Tribunal gives in writing the reasons for its decision, those reasons shall include its findings on material questions of fact and a reference to the evidence or other material on which those findings were based.”

12. The Tribunal provides these reasons with reference to the approach established in Negri v Secretary, Department of Social Services (2016) 70 AAR 103 (or ‘Negri’), where His Honour Bromberg J stated the following at paragraph 27:

    “… The reasons given by a decision-maker should expose or explain the decision-maker’s reasoning. That is the function of reasons for decision. In requiring the Tribunal to give reasons for its decision, s 43(2) of the AAT Act requires an exposition of the Tribunal’s reasoning for its decision. Section 43(2A) requires that, upon request, the reasoning of the Tribunal be exposed or explained in writing. As I have said, the reasons or explanation given in writing may be different to that given orally. Different reasons, as between those provided orally and those later provided in writing, are not necessarily demonstrative of different reasoning. As long as the reasoning remains consistent, there can be no objection to the provision of a more-elaborate exposition of the same reasoning that was orally explained. What is not permissible is altered or new reasoning. The Tribunal is not permitted to substantially divert from the reasoning upon which its decision was made, but is permitted to explain that reasoning differently and, in doing so, is required to address the matters specified in s 43(2B).”

13. In the reasons which follow, the Tribunal is satisfied that they reflect the hearing held on      3 June 2020, and are faithful to the approach established in Negri. No new reasoning has been introduced, but these reasons do provide a more fulsome explanation as to the reasons given orally at the hearing.

    ISSUES

14. The issue before the Tribunal arises pursuant to s29(7) of the AAT Act, which provides:

    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.

15. Therefore, the issue involves the question of whether the Tribunal is satisfied that it is reasonable in all the circumstances to extend the time for the Applicant to make an application for review of the reviewable decision of the Respondent dated 22 August 2019.

16. Prior to the interlocutory hearing, the parties made submissions to the Tribunal regarding the application. The Respondent provided a cogent chronology of the lengthy and historical evolution of the Applicant’s involvement with the Respondent over a period of almost 16 years.

    Material Considered

17. During the course of this interlocutory hearing, the Tribunal has had regard to the following material:

    a)Oral submissions from the Respondent’s representatives, Ms Kate Watson and Ms Kim Waygood;

    b)The Respondent’s Submission on Extension of Time, received on 1 June 2020 and the attachments to this submission entitled ‘Bundle of documents’;

    c)The Respondent’s ‘Notice of Opposing Application for an Extension of Time’, dated 22 May 2020;

    d)The reviewable decision dated 22 August 2019;

    e)        The various written submissions of the Applicant;

    f)         The Applicant’s Extension of Time request dated 14 April 2020;

    g)        The Applicant’s ‘Application for Review of Decision’, dated 8 March 2020;

    h)        Oral submissions from the Applicant; and

    i)         The Clinical Framework for Delivery of Health Services.

18. The Federal Court decision of Hunter Valley Developments Pty Ltd v Cohen, Minister for Home Affairs and Environment (1984) 3 FCR 344 established the applicable principles to which the Tribunal should have regard in determining whether an extension of time should be granted.

19. In addition, the Tribunal has had regard to the principles set out in the decision of Noonan and Comcare [2019] AATA 515, which outlines various considerations that are to be taken into account when deciding whether or not to exercise the discretion to grant an extension of time.

20. These principles to which the Tribunal has referred in referencing the relevant judgements, have been considered in turn at this interlocutory hearing, and decided in the reasons that follow.

    Length of delay

21. The first factor relates to length of delay. The combined effect of s65(4) of the Safety, Rehabilitation and Compensation Act 1988 (Cth) (or the ‘SRC Act’) and s29(2) of the AAT Act is such that the prescribed time for the Applicant to bring an application for review is the period commencing on the day on which the reviewable decision is made and ending on the sixtieth day after[1].

    [1]     The document setting out the reasons for the decision is given to the Applicant.

22. The Applicant’s submission was that they had received a copy of the reviewable decision on 22 August 2019 by email and opened it on the day it was received[2].

    [2]     Transcript, page 9, lines 30-41.

23. To be within the statutory timeframe, the Applicant should have made his application for review by 21 October 2019. The Tribunal accepts the Applicant’s submission that at the time his understanding was not as it is now in relation to the interaction of the statutory deadline with regard to the Respondent’s in house facilitation process.

24. The Applicant filed his application for review on 14 April 2020, meaning the application for review was filed more than 170 days outside the prescribed statutory time. 

25. The Tribunal is satisfied that the length of delay for the application for an extension of time is significant and weighs against the granting of an extension of time.

    Acceptable explanation for delay and awareness of appeal rights

26. The second factor relates to the Applicant’s awareness of appeal rights and their explanation of delay. The Tribunal is required to consider whether the Applicant provided an acceptable explanation for the delay and if it was fair and equitable in the circumstances for the time to be extended.

27. It is well established that applications sought to be commenced outside a prescribed period ought not be entertained. The rationale for that principle is that a large and heavily regulated entity such as the Respondent is entitled to proceed on the presumption that claims not pursued within applicable time limits can be regarded as finalised[3]. 

    [3]     ReHewson and Australian Postal Corporation (1998) 50 ALD 994.

28. The Applicant’s submissions relating to the explanation of the delay was that he, “…. wanted to ensure that all other options had been considered prior to taking my claim to the next level, i.e.: AAT.”[4].

    [4]     Applicant’s Application for Review of Decision.

29. The Applicant was notified of their appeal rights to the Tribunal by the Respondent, via correspondence to the Applicant regarding the reviewable decision on 22 August 2019[5]. This correspondence clearly stated the statutory time limit for applying to the Tribunal was 60 days.

    [5]     Page 6 of the Respondent’s Bundle of documents.

30. The Applicant notified the Respondent on 27 September 2019 that they had intended to take the matter up with the Tribunal, if necessary, prior to the statutory deadline (which the Applicant had been advised of in writing)[6].

    [6]     Page 27 of the Respondent’s Bundle of documents.

31. The Tribunal notes the Respondent’s submissions of 1 June 2020, that they had advised the Applicant, on 7 January 2020, that the only option was to submit an appeal to the Tribunal. At the time the advice was given, it exceeded the statutory deadline of 21 October 2019 by several months.  A statutory deadline which the Respondent had already advised the Applicant of when they sent the reviewable decision back on 22 August 2019.

32. The Tribunal is satisfied the Applicant was made aware of their appeal rights to seek review of the decision of 22 August 2019, and made the decision not to do so earlier.

33. The Tribunal is not satisfied the Applicant’s explanation for the delay in lodging their application for review is satisfactory.

34. The Applicant’s explanation for delay is not compelling and it does not make it fair and equitable to depart from the legislative time period.

    Merits of substantive application

35. The third factor relates to the merits of the substantive application. It is not appropriate to embark on a trial of merits but it may be that the stronger the apparent merits the more likely that granting an extension of time would be appropriate.

36. Based on the paucity of medical evidence before the Tribunal, the Tribunal is doubtful as to the Applicant’s prospects of successfully proving, on the balance of probabilities, that the benefits resulting from remedial massage would provide a measurable benefit (such as an improved range of motion, or an improvement in pain relief which could be verified and documented).

37. The Tribunal has considered the present application in the context of the decision of Rope and Comcare [2018] AATA 42, and the principles which this decision outlines in relation to what will or will not be considered reasonable treatment.

38. The Tribunal notes that since the Applicant’s initial claim in 2004, they have received more than 561 remedial massages at a cost of more than $40,000.

39. On the state of the medical evidence submitted, the Tribunal is minded to agree with the Respondent’s contention:

    a)That the benefit of remedial massage is insubstantial over time with the high cost;

    b)That remedial massage is a passive therapy;

    c)That remedial massage sought by the Applicant is ongoing and indeterminate; and

    d)That, given these factors, remedial massage is “less likely to be considered reasonable” (in the context of the decision in Rope)[7].

    [7]     Rope and Comcare [2018] AATA 42 at [46].

40. At this stage it is the Tribunal’s view that, on the face of the reviewable decision, the merits of the proposed application appear to be limited.

    Any prejudice or unfairness if EOT is not granted

41. The fourth factor relates to whether there is any prejudice or unfairness if an extension of time is not granted; and I note the Respondent’s initial characterisation in their oral submissions that they feel that there is fairly minimal prejudice against them. 

42. However, the Tribunal also notes the decision of Brisbane South Regional Health Authority v Taylor [1996] HCA 25; (1996) 186 CLR 541, where the general principle was established that where there is delay, the whole quality of justice deteriorates.

43. Another important factor for the Tribunal to consider relates to public interest, where DP Boyle in Mason and John Holland Pty Ltd (Compensation) 2018 AATA 415 stated:

    “…the Tribunal notes the obvious and accepted public interest in the finality of decision–making, and the need to prevent disruption to established practices…” (see Re Veronica Lesley Johnson and Commonwealth of Australia; commission of the Safety, Rehabilitation and compensation of the Commonwealth Employees [1990] AATA 1)

44. A further consideration for the Tribunal relates to fairness as between the Applicant and other persons in a like position. 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.

45. A further objective of the Tribunal is to provide a review process that is “fair, just, economical, informal and quick”[8].

    [8]     Section 2A(b) of the AAT Act.

46. The 60-day time period set out in the SRC Act[9] is consistent with the achievement of that objective.

    [9] Section 65(4) of the SRC Act.

47. However, in this case, the delay is in excess of 170 days, which, in the Tribunal’s opinion, is considerable and inconsistent with that objective.

48. The Tribunal regards the actions of the Applicant in the period between having received the reviewable decision from the Respondent and the passage of time up to the statutory deadline “as having rested on their rights”, in accordance with the decision of Noonan[10].

    [10]Noonan and Comcare [2019] AATA 515 at [13] quoting Phillips v Australian Girls’ Choir Pty Ltd & Anor [2001] FMCA 109 at [10].

49. The Tribunal is of the view that this factor weighs against the granting of an extension of time for the Applicant.

    Alternative Avenues of relief

50. The fifth factor relates to alternative avenues of relief. The Tribunal considered whether there is any unfairness as to whether granting or refusing an extension of time would cause a party to suffer unfairness from obtaining particular relief.

51. 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[11].

    [11]    See the decisions of 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.

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

    CONCLUSION

53. Having carefully weighed all the factors outlined in these reasons, the Tribunal finds that it is not reasonable in all the circumstances to grant an extension of time to allow the Applicant to make an application for review of the reviewable decision.

54. The Applicant’s reasons for delay in this case are not compelling, the merits of the proposed appeal are limited on the face of it, and there are alternative avenues of relief available to the Applicant.

55. In the present circumstances, the justice of the case does not require the exercise of the Tribunal’s discretion to extend the time for making an application.

    DECISION

56. Therefore, pursuant to s29(7) of the AAT Act, the Tribunal refuses the Applicant’s application for an extension to the time to lodge an application for review of the reviewable decision of the Respondent dated 22 August 2019.

    I certify that the preceding 56 (fifty-six) paragraphs are a true copy of the reasons for the decision herein of Belinda Pola, Senior Member

    ...............................[SGD].........................................

    Associate

    Dated: 16 June 2020

    Date of hearing:  3 June 2020

    Applicant:  Mr Geoffery (telephone)
    Solicitors for the Respondent:                  Ms Kate Watson
    Special Counsel for the Respondent:      Ms Kim Waygood