Crick and Prosegur Australia Pty Ltd - [2016] AATA 313

Crick and Prosegur Australia Pty Ltd [2016] AATA 313 (16 May 2016)

Division

GENERAL DIVISION

File Number

2016/1377

Re

Patrick Crick

APPLICANT

And

Prosegur Australia Pty Ltd

RESPONDENT

DECISION

Tribunal
Senior Member J F Toohey

Date 16 May 2016

Place Sydney
The application for an extension of time in which to file an application for review is refused.
..........................[sgd]..............................................
Senior Member J F Toohey
CATCHWORDS
PRACTICE AND PROCEDURE – extension of time – extension granted previously – whether reasonable to grant second extension – delay on part of solicitor – whether applicant rested on his rights – whether prejudice to respondent – extension of time refused
LEGISLATION
Administrative Appeals Tribunal Act 1975
Safety, Rehabilitation and Compensation Act 1988
CASES
Brisbane South Regional Health Authority v Taylor (1996) 139 ALR 1
Budd v Secretary, Department of Education, Employment and Workplace Relations [2008] FCA 1540
Comcare v A’Hearn (1993) 45 FCR 441
Grundy and Comcare [2006] AATA 1019
Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344
Lukic v Nolan (1982) 45 ALR 411
Phillips v Australian Girls’ Choir Pty Ltd and Anor [2001] FMCA 109
Zanbergs and Commonwealth Bank of Australia [2014] AATA 866
REASONS FOR DECISION
Senior Member J F Toohey
16 May 2016
BACKGROUND

This matter concerns an application for an extension of time in which to lodge an application for review of a decision made by on the respondent’s behalf on 31 March 2014.
The applicant, Patrick Crick, sustained an injury to his lower back on 28 March 2012. The respondent, through its insurer, accepted liability under s 14 of the Safety, Rehabilitation and Compensation Act 1988 (SRC Act) to compensate him for his injury.
On 31 March 2014, the respondent’s insurer issued a determination that Mr Crick had no present entitlement to compensation in relation to the accepted condition. The decision was sent to Mr Crick, care of his legal representatives, Carroll and O’Dea Lawyers.
On 2 April 2014, the respondent accepted liability to compensate Mr Crick for an aggravation injury to his lower back sustained on 24 January 2014. Liability was accepted for a closed period from the date of injury to 2 April 2014. That determination has not been challenged and is not relevant to the present proceedings.
On 10 November 2014, Mr Crick, through his legal representatives, sought an extension of time in order to seek review of the decision made on 31 March 2014. The reasons for the delay in seeking review are not apparent from the material before me, but the respondent did not oppose the extension of time. On 26 November 2014, the Administrative Appeals Tribunal, differently constituted, granted Mr Crick an extension of time to 28 November 2014 in which to file his application.
From the Tribunal’s point of view, nothing further happened until 16 March 2016 when a second application for an extension of time to lodge an application for review was made.
It is common ground that responsibility for the inaction in relation to Mr Crick’s…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2016] AATA 313
Decision Date: 16 May 2016

CaseChat Overview and Summary

This matter concerned an application by Mr Crick for a second extension of time to file an application for review, against Prosegur Australia Pty Ltd. The application was heard by SM Toohey.

The primary legal issue before the Court was whether it was reasonable in all the circumstances to grant a second extension of time for Mr Crick to file his application for review, given a previous extension had already been granted. This required the Court to consider the applicant's delay, whether he had rested on his rights, and the potential prejudice to the respondent.

SM Toohey refused the extension of time. His Honour noted that while Mr Crick was not required to demonstrate strong merits, the available medical evidence, though incomplete, weighed against the likelihood of success. The Court found that the lengthy delay, during which Mr Crick had not provided evidence of following up with his solicitors, coupled with the prejudice the respondent would suffer and the medical evidence favouring the respondent, meant it was not reasonable to grant a further extension. Although responsibility for the delay rested with Mr Crick's former solicitor, this alone was not sufficient reason to grant the extension.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

Mr Crick is not required to show that the merits of his claim are strong, and I accept that the reports of Dr Casikar and Dr Young represent incomplete information. It could not be said that his claim has no prospects of success but the reports, which represent the most current information available, weigh against the likelihood of success.CONCLUSION Taking into account all of the information before me, I am not satisfied that it is reasonable in all the circumstances to grant the extension of time. In reaching this decision I have taken into account, in particular, the lengthy delay during which there is no evidence that Mr Crick took any steps to follow up his claim with his solicitors, that the respondent will suffer some prejudice should be extension be granted, and that the medical evidence appears to favour the respondent over Mr Crick. There is no doubt that responsibility for the delay rests squarely with Mr Crick’s former solicitor but that is not sufficient reason, in my view, to grant the extension. For these reasons the extension of time in which to file an application for review is refused.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Division	GENERAL DIVISION
File Number	2016/1377
Re	Patrick Crick
APPLICANT
And	Prosegur Australia Pty Ltd
RESPONDENT

Tribunal	Senior Member J F Toohey
Date	16 May 2016
Place	Sydney