De La Torre-Greene and Comcare (Compensation)
[2020] AATA 419
•6 March 2020
De La Torre-Greene and Comcare (Compensation) [2020] AATA 419 (6 March 2020)
Division:GENERAL DIVISION
File Number(s): 2019/4178
Re:Ruby De La Torre-Greene
APPLICANT
AndComcare
RESPONDENT
DECISION
Tribunal:Senior Member Chris Puplick AM
Date:6 March 2020
Place:Sydney
The decision under review (being the decision by Comcare on 3 October 2017) is affirmed.
..............................[SGD]..........................................
Senior Member Chris Puplick AM
CATCHWORDS
COMCARE – request for extension of time to lodge request for reconsideration – left shoulder injury – appropriate characterisation of appeal – where delay of 600 days – principles in extension of time applications – applicant failed to address the reason for the delay – where Applicant rested on her rights – where prejudice to the Respondent and others – merits of the application – decision affirmed
LEGISLATION
Safety, Rehabilitation and Compensation Act 1988 (Cth) ss 14, 16, 19, 36, 60, 62
CASES
Australian Broadcasting Tribunal v Bond and Anors (1990) 21 ALD 1
Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541
Brown v Federal Commissioner of Taxation [1999] FCA 563
Contreras v Minister for Immigration and Border Protection [2015] FCAFC 47
Comcare v A'Hearn [1993] FCA 498; (1993) 45 FCR 441
Crick and Prosegur Australian Pty Ltd [2016] AATA 313
Dela Rosa and Minister for Immigration and Border Protection [2018] AATA 1262
DHLD and Executive Director, Social Security Appeals Tribunal [2010] AATA 377
Dix v Crimes Compensation Tribunal [1993] VicRp 21; (1993) 1 VR 297
Doyle v Chief of Staff [1982] FCA 124; (1982) 42 ALR 283
Hanson v Comcare [1996] 41 ALD 639
Hewson v Australian Postal Corporation [1998] 50 ALD 994
Hillman and Australian Postal Corporation [2017] AATA 1411
Hunter Valley Developments Pty Ltd and Others v Minister for Home Affairs and Environment (1984) 3 FCR 344
Jamal v Secretary, Department of Social Services [2018] FCA 513
Kim and Minister for Immigration and Border Protection (2018) AATA 155
Lucic v Nolan (1982) 45 ALR 411
MZABP v Minister for Immigration & Border Protection [2015] FCA 1391; 242 FCR 585
MZABP v Minister for Immigration & Border Protection [2016] FCAFC 110; 152 ALD 478
Noonan and Comcare [2019] AATA 515
O’Gorman and Comcare (Compensation) [2017] AATA 2192
Outboard Marine Australia Pty Ltd v Byrnes [1974] 1 NSWLR 27
Phillips v Australian Girls’ Choir [2001] FMCA 109
Ralkon v Aboriginal Development Commission [1982] FCA 153; (1982) 43 ALR 535
Telstra Corporation Limited v Hannaford [2006] FCAFC 87
Thompson and Comcare (Compensation) [2019] AATA 714
Wedesweiller v Cole [1983] FCA 94; (1983) 47 ALR 528
Zizza v Federal Commissioner of Taxation [1999] FCA 848Zizza v Commissioner of Taxation [1999] FCA 37
REASONS FOR DECISION
Senior Member Chris Puplick AM
6 March 2020
The determination which the Tribunal has to make in this matter is made all the more difficult by the fact that the parties to the proceedings are somewhat at odds as to exactly what these proceedings entail.
The Applicant (Mrs De La Torre-Greene) invites the Tribunal to take this application (made on 12 July 2019) as empowering it to undertake a review of decisions made by Comcare declining to accept liability for a complaint made by the Applicant under the Safety, Rehabilitation and Compensation Act 1988 (Cth) (the SRC Act) related to an injury to her left shoulder. A review of these is to be accessed by the Tribunal setting aside a decision by Comcare made on 4 July 2019 refusing to undertake a review of a decision made on 3 October 2017.[1]
[1] Applicant’s Submission Relating to Alleged Extension of Time Issue, dated 14 February 2020, Tribunal Evidence A3.
The Respondent asserts that the matter before the Tribunal is an application for an extension of time related to potential review of the 3 October 2017 decision and hence is a matter to be dealt with in relation to the provisions of section 62(3) of the SRC Act.[2] It goes further and asserts that, in any case, the decision of 3 October 2017 is not a reviewable decision[3] and warns that should the Tribunal take the course of action proposed by the Applicant it (the Tribunal) would be acting ultra vires and subject to appeal in the Federal Court.
[2] Respondent’s Statement of Facts, Issues and Contentions at [10] and [60].
[3] Respondent’s Statement of Facts, Issues and Contentions at [52]. The assertion, which does not need to be tested by the Tribunal is that the 3 October 2017 decision is not a decision but a determination relating to s 14 (SRC Act) liability.
For the reasons which follow, and immune to any threat of judicial review, the Tribunal is persuaded that the characterisation of this appeal must be treated as an extension of time application under the SRC Act.
History of the SRC claim(s)
Original claim
The Applicant originally lodged a claim for compensation under the SRC Act (section 14) for right hand de Quervain’s tenosynovitis and this claim was accepted by Comcare on 7 December 2016.[4]
[4] The formal acceptance document was not before the Tribunal in the Section 37 Documents but is to be found in the Section 37 Tribunal Documents in matter 2017/7298 at [92]-[93].
Newly reported condition claim
On 26 May 2017 the Applicant lodged a further claim for “sore left shoulder / deltoid bursitis” (the shoulder claim).[5]. Comcare indicated on 28 May 2017 that:
“…as the left shoulder is not an accepted condition I can’t approve the injection at this stage. I will be booking you in for independent medical assessment to determine the secondary condition.”[6]
[5] Section 37 Tribunal Documents at [109]-[110].
[6] Ibid at [111].
Assessment of the shoulder claim
This assessment was commissioned from an occupational physician Dr (Gia) Han Thai, and in the letter of referral sent by Comcare to Dr Thai seeking his assessment Comcare states:
“The purpose of this (i.e. the referral) is to assist in the ongoing management of Mrs De La Torre-Green’s claim and to assist with considering the compensability of a claimed secondary condition pertaining to her left shoulder” (emphasis in the original).
Further in the referral, Comcare, under the heading “Diagnosis and prognosis” states:
“regarding Mrs De La Torre-Greene’s left shoulder, please advise whether you believe she currently suffers from a medical condition and if so, please provide a short description of the condition, including its known origins and progression. Please include clinical signs and symptoms to support your conclusion.” (emphasis in original).
It also then asks
“What is the prognosis for Mrs De La Torre-Greene’s current condition, and when you would expect a resolution to her symptoms/condition?”[7] (emphasis in original)
[7] Ibid at [126]-[128].
There is thus no doubt that Comcare was seeking advice from Dr Thai about both the Applicant’s “current” condition (i.e. de Quervain’s tenosynovitis – right) and her newly reported “left shoulder condition.
It is equally clear that the purpose of this was in order for Comcare to make a decision on “the compensability of a claimed secondary condition”, namely the shoulder claim.
Dr Thai’s report is dated 11 July 2017 and, in relation to the shoulder claim, he concludes that:
“(the) condition is secondary to degenerative changes and there is insufficient evidence in the medical literature supporting keying activities as a risk factor in left sided shoulder pain….
In my opinion, work is not a significant contributing factor to Ms De La Torre-Greene’s left shoulder condition…
The left shoulder condition is pre-existing.”[8]
[8] Ibid at [140]-[142].
29 August 2017
Dr Thai’s opinion was relied upon by Comcare in denying liability for the shoulder claim in a determination dated 29 August 2017.[9]
[9] Ibid at [153]-155].
That determination is headed: “Determination of no present liability” and, under the heading “Background” it states:
“As identified by you on your application for workers compensation, your compensable condition, dequervains tenosynovitis (right) was caused by writing and typing as well as your pre work hand injury.”
The letter then states that Dr Thai “was also asked to comment on the development of secondary left shoulder symptoms” and proceeds to quote from his report noting his conclusion (above) that the right shoulder claim was unrelated to any work-based activity.
The letter, under the heading “Conclusion” states:
“In determining ongoing liability for your compensable condition, I must be satisfied that you continue to suffer the effects of your compensable condition, and that your symptoms continue to be related to the mechanism of injury, which as identified by you as (sic) typing and writing in your work area.
Dr Han Thai has indicated that in his opinion your current symptoms are unrelated to any incident on 9 May 2016, or in the period immediately preceding this, and that you currently have no condition which was caused by work. Furthermore, Dr Han Tai indicates that there is no current compensable condition, either requiring treatment or requiring time off work. Dr Han Thai has also indicated that any left shoulder symptoms ae unrelated to the initial injury, and are in fact age related and due to underlying degeneration.”
Reconsideration request
The Applicant then applied for a reconsideration of this determination on either 21 or 22 September 2017.[10] In this Reconsideration Request the Applicant wrote:
“I wish to request Comcare’s reconsideration for my claim reference number 1137853/3 for work injury that occurred on 9 May 2016 – DE QUERVAIN TENOSYNOVITIS and INTERSECTION SYNDROME Right hand/wrist injury. Refer Comcare letter dated 29 Aug 2017.”
[10] The date of 21 September 2017 is given on the front cover of the form (Section 37 Tribunal Documents at [159] whereas the date of 22 September 2017 accompanies the final signature (Ibid at [161]).
The Reconsideration letter then further stated:
“(3) Consequently my left shoulder pain is linked due to doctor’s restrictions on my right wrist/arm as I have been doing all the work with my left side. I was required to use my left hand to compensate for my damage in my right hand; but this overuse has caused me pain and discomfort in my left shoulder and I got bursitis that requires cortisone injection. Requested by Dr Manohar, the pain management doctor. Now I have a referral from doctor Pallewatta for this intervention.”
This is the only specific mention of any shoulder issues in the Reconsideration Request.
However, counsel for the Applicant urges upon the Tribunal a construction of the Comcare letter of 29 August 2017 and the Applicant’s Reconsideration Request in the following terms:[11]
“…. It is beyond any doubt that a valid determination was made dealing with both the de Quervain’s tenosynovitis and the claimed new left shoulder condition, and the Applicant made a request for reconsideration of the whole of that determination, within the 30 day period.”
[11] Applicant’s Submission Relating to Alleged Extension of Time Issue, dated 14 February 2020, Tribunal Evidence A3 at [13].
In other words it is asserted on behalf of the Applicant that:
(a)the Comcare letter of 29 August 2017 constituted a determination of the Applicant’s claim for compensation for the left shoulder condition;
(b)the Applicant’s Reconsideration Request went further than seeking a reconsideration of any determination related to the de Quervain’s tenosynovitis but included a claim for review of the alleged left shoulder determination; and
(c)that claim for reconsideration of the left shoulder condition was made within the statutory time limit imposed by s 62(3) of the SRC Act and hence no issue of the claim being out of time arises.
The Respondent, for its part, denies that the letter of 29 August 2017 constituted any sort of determination related to the left shoulder condition.
3 October 2017
Comcare then sent the Applicant a letter dated 3 October 2017 which was headed “Your claim for worker’s compensation”.[12] It states:
“I am writing to advise that I have carefully considered all the documentation and evidence that has been supplied to Comcare in relation to your claim for “sore left shoulder”.
I am following up on the determination dated 29 August 2017 which determined Comcare had no present liability for your condition of dequervains tenosynovitis (right). I note that in this letter reference was made to a secondary claim you lodged for “sore left shoulder” however no formal determination was made. Please accept this as a formal determination declining your condition for “Sore left shoulder”….”
[12] Section 37 Tribunal Documents at [162]-[163].
The letter then proceeded to give the reasons for that determination. It concluded:
“As per the opinion of Dr Thai and Comcare’s determination of 29 August 2017, as the primary condition for which you suffered is no longer compensable, Comcare is unable to accept liability for any secondary condition that has resulted from a non-compensable condition.
This means your claim has been declined under section 14 of the Safety, Rehabilitation and Compensation Act 1988.”
The Tribunal understands this letter as being a response to the Applicant’s claim for a newly reported condition which was lodged on 26 May 2017; initially responded to by Comcare as quoted in paragraph [6] above, and followed up by Comcare arranging for an “independent medical assessment to determine the secondary condition.”
However, in relation to this, the Applicant’s counsel submits:[13]
“There was nothing in the letter of 3.10.17 to suggest that it was more than additional material to be read as an annexure to the determination of 29.8.17, which had reached exactly the same conclusion about the left shoulder injury. For example the letter did not make any express statement that a request for reconsideration of the determination of 29.8.17 would not trigger a review of the decision that the left shoulder injury had no connection with the Applicant’s employment. Rather, the central “takeaway” from the letter of 3.10.17 was that liability for the left shoulder condition might simply follow a successful review of the determination of 29.8.17.”
…..
“Given the findings made by the Respondent in the letter of 3 October 2017 that the secondary condition was unable to be accepted when the primary condition was not compensable, the Applicant’s interests were adequately protected by continuing to press for reconsideration of the determination of 29.8.17, which had specifically dealt with the left shoulder.”
[13] Applicant’s Submission Relating to Alleged Extension of Time Issue, dated 14 February 2020, Tribunal Evidence A3 at [16]-[17].
On 17 October 2017 Comcare wrote to Dr Azhar Khan asking him to provide an independent medical assessment under s 36 of the SRC Act in relation to the Applicant.[14] That letter included the following:
“on 3 October 2017 Comcare declined Mrs De La Torre-Green’s secondary claim for ‘sore left shoulder’”.
[14] Section 37 Tribunal Documents at [166]-[169].
20 October 2017
The next correspondence to the Applicant from Comcare was dated 20 October 2017 and was headed “Reconsideration of determination”.[15] The Tribunal takes this to be Comcare’s formal response to the Reconsideration Request of 21/22 September 2017.
[15] Ibid at [172]-[177].
That letter advised:
“I have completed your request for an independent review of the determination of 29 August 2017 which found that Comcare has no present liability for medical treatment and incapacity under sections 16 and 19 of the Safety, Rehabilitation and Compensation Act 1988 (SCR Act).
I have carefully considered the evidence and conclude that the original determination was correct and it has therefore been affirmed.”
There are a number of important things to note about this letter:
(i)it states that “all the relevant evidence in your claim file” has been examined in the course of making the determination;
(ii)it states that the “accepted condition” is “right dequervais tenosynovitis”;
(iii)it notes that its determination of 29 August 2017 was based upon the report of Dr Thai “who did not consider that your employment activities would have increased your risk of developing the condition” – the reference is in the singular, “the” condition;
(iv)in summarising Dr Thai’s report, no mention is made of any assessment of the shoulder claim;
(v)there is only one mention of any shoulder condition. It is as follows: “15 January 2016 noted pain in right hand, left shoulder and neck. You were referred to a hand therapist.”
The final point is particularly relevant in that it discloses that the Applicant’s file noted some issue of shoulder pain on 15 January 2016. Her notification of new injury report is dated 26 May 2017[16] and states that the first notice of symptoms was in May 2016, well after the initial indication in January 2016.
[16] There is a report by Dr David Manohar (dated 3 May 2017) which refers to the Applicant developing “left shoulder pain after constantly using her left side.” Referred to in an Applicant’s Statement of Facts, Issues and Contentions related to a previous claim in the Tribunal (2017/7298) dated 5 March 2019: Tribunal Evidence A2 at [36].
Further review application
There the matter appears to have rested until 25 June 2019 when solicitors acting on behalf of the Applicant wrote to Comcare requesting a reconsideration of the determination of 3 October 2017 “in respect of our client’s injury to the left shoulder”.[17]
[17] Ibid at [190].
Comcare responded to this request on 4 July 2019 and declined the request for reconsideration on the basis that the request had been made out of time.
Section 62(3) of the SRC Act provides:
3A request for reconsideration of a determination shall:
(a)set out the reasons for the request; and
(b)be given to the determining authority within 30 days after the day on which the determination first came to the notice of the person making the request, or within such further period (if any) as the determining authority, either before or after the expiration of that period, allows.
The relevant 30 day period commenced on 4 October 2017 and would have concluded on 3 November 2017. The request was received on 25 June 2019 and was thus more than 21 months out of time.
On 12 July 2019 the Applicant applied to this Tribunal for a review of that refusal decision (specifying it as the decision of 4 July 2019)[18] and that application was heard by the Tribunal on 14 February 2020.
[18] Ibid at [1]-[2].
Discussion
This matter turns initially upon a decision as to whether or not the Comcare letter of 29 August 2017 constitutes a decision upon and determination of the Applicant’s “new reported condition” claim of 26 May 2017.
Section 60 of the SRC Act provides in its definition that a “determination” means a decision or determination made under certain sections of the Act, relevantly here sections 14, 16 and 19. The SRC Act defines a “decision” as:
decision has the same meaning as in the Administrative Appeals Tribunal Act 1975.
The Administrative Appeals Tribunal Act 1975 (Cth) (the AAT Act) defines reference to a “decision” as including, inter alia:
“making, suspending, revoking or refusing to make an order or determination” (section 3(a)).
The High Court (per Mason CJ) has stated:
That answer is that a reviewable “decision” is one for which provision is made by or under a statute. That will generally, but not always, entail a decision which is final or operative and determinative, at least in a practical sense, of the issue of fact falling for consideration. A conclusion reached as a step along the way in a course of reasoning leading to an ultimate decision would not ordinarily amount to a reviewable decision, unless the statute provided for the making of a finding or ruling on that point so that the decision, though an intermediate decision, might accurately be described as a decision under an enactment.[19]
[19] Australian Broadcasting Tribunal v Bond and Anors (1990) 21 ALD 1 at [11].
There is undoubtedly a degree of ambiguity in the 29 August 2017 letter. It is open to a variety on interpretations, for example:
·it may be expressing some “conclusion reached as a step along the way” in making a final determination regarding the shoulder claim;
·it may be merely stating (almost as obiter) part of Dr Thai’s assessment merely by way of completeness in reporting the totality of his findings;
·it may be coming to a conclusion on a matter without making an actual decision on it;
·it may be deciding the issue, albeit as almost an afterthought.
The Tribunal notes the following:
(i)the letter is headed “determination of no present liability” and this suggests that the matter under discussion and determination is that related to the Applicant’s current compensation claim, identified by the Applicant herself as “dequervains tenosynovitis (right) caused by typing and writing”. This is the only matter referred to under the heading “Background” which sets the parameters of the letter. The “compensable condition” is described in the singular;
(ii)on the other hand Comcare’s referral/instructions to Dr Thai sought his advice to assist with its consideration of the compensability of the shoulder claim although within an overall framework of the management of the accepted claim of de Quervain’s tenosynovitis;
(iii)the letter quotes at length from Dr Thai’s report with specific reference to his findings about the left shoulder claim;
(iv)the conclusion of the letter refers to there being “no compensable condition” and then goes on to remark that Dr Thai has also made a finding that the shoulder claim is not related to the original injury.
The Oxford English Dictionary defines the word “also” as:
Expressing amplification: as a further point, item, or circumstance tending in the same direction; further, in addition, besides, as well, too
The Macquarie Concise Dictionary gives the definition as:
in addition to; further.
The Tribunal accepts that it was not intended that the letter of 29 August 2017 should constitute a determination of the shoulder claim, but rather that reference to the shoulder in the letter was an amplification or a further point made with reference to Dr Thai’s report upon which reliance was being placed for the determination of the sole compensable claim, that of de Quervain’s tenosynovitis – right.
Reading all the Comcare correspondence holistically, the Tribunal believes that the various letters should be characterised as follows:
·29 August 2017: determining that the Applicant’s previous compensable condition (de Quervain’s tenosynovitis) was no longer compensable as a result of the assessment by Dr Thai which had been precipitated by the newly reported condition claim made by the Applicant on 26 May 2017.
·3 October 2017: formal determination of the left shoulder claim triggered by reference to this issue in the 29 August 2017 letter.
·20 October 2017: formal response to the Reconsideration Request (related to the 29 August 2017 letter lodged on 21/22 September 2017).
The Tribunal is thus satisfied that the determination of the Applicant’s shoulder claim was made on 3 October 2017 and any claims seeking revision or review of the shoulder decision must be related temporally to 3 October 2017.
To repeat: the matter which the Tribunal has before it is as outlined by both parties:
“The current application before the Tribunal seeks to deal with a determination by Comcare dated 4 July 2019 in which Comcare determines that it will not undertake a reconsideration of a determination dated 3 October 2017 because the request was made outside of 30 days.” (Applicant’s Statement of Facts, Issues and Contentions, dated 29 November 2019 at paragraph 1.) This is a more restrictive definition than that given by the Applicant’s counsel at hearing, as stated above.
“The sole issue before the Tribunal is whether, in accordance with s 62(3) of the SRC Act the Applicant should be granted an extension of time to 25 June 2019, to request a reconsideration of the determination dated 3 October 2017.” (Respondent’s Statement of Facts, Issues and Contentions, dated 19 December 2019 at paragraph 10.)
For the reasons outlined above, the Tribunal accepts that this is the sole issue for its determination – should an extension of time be granted?
Out of time applications
The Applicant is entitled to apply to the Tribunal for review of Comcare’s decision made under s 62(3) of the SRC Act, disallowing the Applicant’s request for reconsideration of the 3 October 2017 decision.
There are well established principles for deciding whether or not to grant such extensions.
Justice McHugh in the High Court case of Brisbane South Regional Health Authority v Taylor[20] gave four reasons why such limitations are an important part of the legal process. He noted that:
·First, as time goes by, relevant evidence is likely to be lost.
·Second, it is oppressive, even “cruel”, to a defendant to allow an action to be brought long after the circumstances which gave rise to it have passed.
·Third, people should be able to arrange their affairs and utilise their resources on the basis that claims can no longer be made against them.
·The final rationale for limitation periods is that the public interest requires that disputes be settled as quickly as possible.
[20] (1996) 186 CLR 541 at 552-553. Footnotes and citations omitted.
His Honour also noted that:
An applicant for an extension of time who satisfies those conditions [i.e. the conditions laid down in the relevant Act] is entitled to ask the court to exercise its discretion in his or her favour. But the applicant still bears the onus of showing that the justice of the case requires the exercise of the discretion in his or her favour.[21]
[21] Ibid at 551.
Hunter Valley “check-list”
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[22] may be taken as the guide by this Tribunal in determining extension of time matters.[23]
[22] (1984) 3 FCR 344.
[23] DHLD and Executive Director, Social Security Appeals Tribunal [2010] AATA 377 at [37] per Forgie DP.
That list provides as follows:
·an applicant must show an “acceptable explanation of the delay” and that 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.
Wilcox J did, however, warn that:
Although the section [s 11 of the Administrative Decisions (Judicial Review) Act] does not, in terms, place any onus of proof upon an applicant for extension, an application has to be made. Special circumstances need not be shown, but the court will not grant the application unless positively satisfied that it is proper so to do. The “prescribed period”….. is not to be ignored.” (Ralkon v Aboriginal Development Commission (1982) 43 ALR 535 at 530). Indeed it is the prima facie rule that proceedings outside that period will not be entertained (Lucic v Nolan (1962) 45 ALR 411 at 416). It is a precondition to the exercise of discretion in his favour that the applicant for extension show an “acceptable explanation of the delay” and that it is “fair and equitable in the circumstances” to extend time. (Duff v Freijah (1982) 43 ALR 479 at 485; Chapman v Reilly, Neaves J, 9 December 1983, not reported at p. 7)[24]
[24] Hunter Valley Developments Pty Ltd and Others v Minister for Home Affairs and Environment (1984) 3 FCR 344 at 348 - 349.
Developments post Hunter Valley
A decision by the Tribunal in Hillman v Australian Postal Corporation[25] sets out four tests which it said should be met in deciding whether to grant a review of a decision where the application was made out of time. Those four grounds, which are in many ways merely a refinement of some of the principles laid down in Hunter Valley, are:
·delay
·prejudice
·merits
·fairness
[25] [2017] AATA 1411.
In Phillips v Australian Girls’ Choir [2001] FMCA 109, McInnis FM provided a slightly amended version of the principles outlined by Wilcox J to take into account modifications made by other courts in considering the Hunter Valley principles as follows:
·There is no onus of proof upon an applicant for extension of time though an application has to be made. Special circumstances need not be shown, but the court will not grant the application unless positively satisfied it is proper to do so. The “prescribed period” of 28 days is not to be ignored (Ralkon v Aboriginal Development Commission [1982] FCA 153; (1982) 43 ALR 535 at 550).
·It is a prima facie rule that the proceedings commenced outside the prescribed period will not be entertained (Lucic v Nolan (1982) 45 ALR 411 at 416). It is not a pre-condition for success in an application for extension of time that an acceptable explanation for delay must be given. It is to be expected that such an explanation will normally be given as a relevant matter to be considered, even though there is no rule that such an explanation is an essential pre-condition (Comcare v A'Hearn [1993] FCA 498; (1993) 45 FCR 441 and Dix v Client [sic] Compensation Tribunal [1993] VicRp 21; (1993) 1 VR 297 at 302).
·Action taken by the applicant other than by making an application to the court is relevant in assessing the adequacy of the explanation for the delay. It is relevant to consider whether the applicant has rested on his rights and whether the respondent was entitled to regard the claim as being finalised. (See Doyle v Chief of Staff [1982] FCA 124; (1982) 42 ALR 283 at 287).
·Any prejudice to the respondent, including any prejudice in defending the proceeding occasioned by the delay, is a material factor militating against the grant of an extension. (See Doyle at p 287).
·The mere absence of prejudice is not enough to justify the grant of an extension. (See Lucic at p 416).
·The merits of the substantial application are properly to be taken into account in considering whether an extension of time should be granted. (See Lucic at p 417)
·Considerations of fairness as between the applicant and other persons otherwise in a like position are relevant to the manner of exercise of the court's discretion (Wedesweiller v Cole [1983] FCA 94; (1983) 47 ALR 528).
In addition to the above, this Tribunal has also given consideration to the length of the delay in question; the Applicant’s knowledge of her appeal rights and the availability of alternative avenues of relief should the original EOT not be granted.[26]
[26] Kim and Minister for Immigration and Border Protection [2018] AATA 155 at [20].
Equally, this Tribunal has noted that the check-list items in Hunter Valley “are not be applied mechanically” and that “an acceptable explanation for the delay” is not “an essential precondition to the exercise of that discretion although it is to be expected that such an explanation will normally be given.”[27]
[27] O’Gorman and Comcare (Compensation) [2017] AATA 2192 at [13], citing Comcare v A’Hearn (1993) 45 FCR 441.
The last relevant principle set out in Hunter Valley Developments is that the merits of the substantive appeal should to be taken into account. In Jamal,[28] Bromwich J followed the view expressed by Mortimer J in MZABP v Minister for Immigration & Border Protection,[29] to the effect that it will seldom be in the interests of justice to grant an extension of time where an appeal would have little prospect of success, given the additional resource demands that it would impose upon the parties and the Court, and the inevitable impact it would have on other users of the Court.
[28] Jamal v Secretary, Department of Social Services [2018] FCA 513 at [6].
[29] [2015] FCA 1391; 242 FCR 585 at [62]. Upheld by the Full Court in MZABP v Minister for Immigration & Border Protection [2016] FCAFC 110; 152 ALD 478.
The general approach of the Tribunal in determining matters of extensions of time encompasses the fact that: “where genuine issues ought to be litigated, if such can be done with fairness to all concerned, it is appropriate to take a benign view of applications to extend time.”[30]
[30] Outboard Marine Australia Pty Ltd v Byrnes [1974] 1 NSWLR 27 at 30.
While the principles outlined above provide general guidance, each case must be considered according to its own circumstances.[31] In Brown, Hill J stated, albeit in the taxation context, that the Tribunal should be “...guided by what the justice of the case requires.”[32] In determining the question of an extension of time, the Tribunal should weigh together all relevant factors.[33]
[31] Dela Rosa and Minister for Immigration and Border Protection [2018] AATA 1262.
[32] Brown v Federal Commissioner of Taxation [1999] FCA 563 at [59].
[33] Zizza v Federal Commissioner of Taxation[1999] FCA 848.
It is also important to note that in making a decision about what is reasonable in all the circumstances, the Tribunal must consider all of the circumstances of each individual case.[34]
[34] Crick and Prosegur Australian Pty Ltd [2016] AATA 313 at [14].
Turning then to the grounds for an extension of time to be granted as per the Hunter Valley “check list”:
The reasons for the delay
On 27 October 2017 the Applicant, as part of ongoing email correspondence with Comcare indicated that she had not received “any reply yet from Comcare for my consideration request application.”[35] That initial request was dated 21/22 September 2017 and referred to the decision of 29 August 2017. The reconsideration request was formally responded to and refused on 20 October 2017.
[35] Supplementary Tribunal Documents at [113].
That decision was reviewable in this Tribunal and the Applicant was advised accordingly in the letter of 20 October 2017.[36]
[36] Section 37 Tribunal Documents at [176].
In further email correspondence the Applicant wrote on 3 November 2017 that:
“On Wednesday 1st of November, Comcare had sent me to my home email, attached letter with their rejection of my claim, I feel that is unfair decision and I would like to appeal with the Administrative Appeals Tribunal.”[37]
[37] Supplementary Tribunal Documents at [114].
It is clear from that email (by its reference to In-House Facilitation) that it can only be referring to the 20 October 2017 and not the 3 October 2017 letter.
However it is not until 25 June 2019 that any formal request for a review of the 3 October 2017 decision is made. On her behalf, Turner Freeman Lawyers wrote to Comcare in the following terms:
“We refer to the above matter (i.e. Reference 2017/7298) and your decision dated 3 October 2017 in respect of our client’s injury to the left shoulder.
We are instructed to request a reconsideration of the decision dated 3 October 2017.”[38]
[38] Section 37 Tribunal Documents at [190].
The letter then attaches four medical reports.
Comcare sent two responses on 27 June 2019. At 12:18PM it sent an email to Richard Dababneh (a partner at the firm) acknowledging receipt of the request and seeking further information with advice that it would “not take any further action until your response is received.”[39] At 12:24PM a different Comcare officer emailed a Ms Delaney at the firm which was in similar terms and made it clear that no action would be taken by Comcare pending receipt of further information.
[39] Ibid at [196].
The Tribunal notes that s 62(3) of the SRC Act makes it clear that applications for review “shall … set out reasons for the request” and, at this stage, no reasons had been provided. It may well be that the Applicant’s solicitors regarded this as a “Hannaford-type”[40] decision and that the provision of the four medical reports were to be taken as constituting those reasons. This point is unclear.
[40] Referencing Telstra Corporation Limited v Hannaford [2006] FCAFC 87.
The reply to Comcare was sent by an Associate at the firm on 2 July 2019 and stated:
We advise that we were not instructed to pursue the shoulder injury, as the applicant’s main concern at the time was the injuries sustained to her right thumb and wrist. Over time, the condition evolved and has since become a significant concern and an integral component to the primary injury and the current proceedings.
The applicant ought not to be punished as a result. The worker ought not to be denied procedural fairness and the opportunity to have her claim reviewed and determined by the Tribunal. To not accept the applicants (sic) submissions would be a denial of procedural fairness and result in practical injustice, which is not having the opportunity to have the claim reviewed.[41]
[41] Section 37 Tribunal Documents at [197].
Comcare responded on 4 July 2019 refusing to accept the request for reconsideration of the 3 October 2017 decision, setting out their reasons for so doing – primarily because of the delay in making the request, and advising the Applicant of her review rights in this Tribunal.[42]
[42] Ibid at [200]-[202].
On 12 July 2019 the Applicant sought review in this Tribunal of that refusal decision.
It will be noted that in this correspondence no reference is made to any decision or determination dated 29 August 2017, all references are to the determination of 3 October 2017.
The Applicant is not unfamiliar with the requirements and processes related to appeals against Comcare decisions and has been involved in having several of those matters brought for review by this Tribunal.
In this instance, all that the Tribunal has before it is the simple statement by the Applicant herself in her review application form that “The decision is incorrect”[43] and the correspondence from the solicitors quoted above.
[43] Ibid at [2].
It cannot be said that these submissions seriously address the reason for the 21 month delay in filing the review application.
Resting on rights
The Applicant has been active in seeking review of several negative decisions made by Comcare in relation not only to the de Quervain’s tenosynovitis but also in relation to a number of other injury-related claims. Her counsel drew the Tribunal’s attention to at least one of these (related to right knee injury/medical meniscus tear) lodged in September 2018.[44]
[44] Tribunal case reference 2, De La Torre-Greene and Comcare.
This indicates to the Tribunal that the Applicant has been aware of her rights in these matters and that, in relation to a number of them, she has previously been active in their timely pursuit. As stated above the Applicant received and was aware of the details of this current determination by at least 1 November 2017. She had time to act and chose not to.
The Tribunal is satisfied that in this respect she rested on her rights.
Prejudice to the Respondent
On the one hand, the Respondent is entitled to be able to conduct its business in an orderly fashion with some degree of certainty that claims against it will be pursued within the time limits established by the legislation. This was recognised by the High Court in Brisbane South and articulated in this Tribunal as follows:
The respondent is body which is charged with providing a public service and dependents at least in part upon revenue which it raises itself. It is important that it should be able to conduct its financial affairs with a degree of certainty and not have to make provision for liabilities at a time long after it could reasonably have expected any such liability to cease.[45]
[45] Hewson v Australian Postal Corporation [1998] 50 ALD 994 at [9].
On the other hand, Hannaford makes it clear that:
The statutory scheme allows for progressive and evolving decision-making giving effect to the provisions of ongoing review or relief of entitlements in the nature of course of workers compensation, being review which allows for adjustment or change in the light of events or circumstances which may subsequently happen. The statutory scheme hence reflects a flexible scope for adjustment by way of decisions in the nature of awards to be made subsequently to the determination of s 14 liability, whether the determination be made in isolation, or in the context of decison0-making concerning consequential relief that may be required in the light of evolving circumstances. It is therefore a scheme which allows progressively for ongoing relief…..[46]
[46] Telstra Corporation Limited v Hannaford [2006] FCAFC 87 at [57].
Equally, although the application in this case is some 21 months (600 days) out of time, that in itself need not be a determinative factor. In Berkelaar this Tribunal granted an extension of time where the matter was (in part) up to some five years out of time.[47]
[47] Berkelaar and Comcare [1997] AATA 12015.
In this instance the Tribunal accepts that there would be some prejudice to the Respondent in allowing this application. The Tribunal does not accept the Respondent’s claims that evidence would be needed stretching back to the original injury incident in 2016 as this claim is consequential upon an original injury investigated and accepted as compensable at that time.[48] Nor does it accept that there would be difficulties in arranging medical appointments[49] as the material already before the decision-maker on that point is substantial.
[48] Noonan and Comcare [2019] AATA 515.
[49] Hanson v Comcare [1996] 41 ALD 639.
Nevertheless, the inter-relationship of this claim with all the others which constitute part of the Applicant’s suite of issues with Comcare would make it difficult for Comcare to manage all those other matters in a timely, effective and efficient manner. This could have been avoided had the application been lodged within time.
An application for review of that decision, if successful, would have resulted in a review of the 3 October 2017 decision itself. The Applicant took no steps to seek such a review.
Prejudice to others / fairness between parties
This is always difficult to assess, but in the case of Comcare the Tribunal is aware that it has a significant volume of cases before it from individuals each of whom are seeking to have their matters dealt with in a timely and expeditious fashion. Those who have made claims within the prescribed time limits are entitled not to be disadvantaged by the inclusion in the Comcare workload of cases which have not been brought within legislative time limits.
This matter was addressed recently by Deputy President Boyle as follows:
The Respondent submits that the public interest and the interest of those employees who comply with the prescribed time limits, are unsettled by perceptions of unfairness and uncertainty if an extension of time is granted where the justice of the case does not permit the granting of an extension of time. Granting the extension of time in this case would be unfair to other Applicants who have pursued their right to review within the prescribed period. The Tribunal agrees.[50]
[50] Thompson and Comcare (Compensation) [2019] AATA 714 at [166].
That is the position adopted by this Tribunal in this instance.
Merits of the application
It is not the role of the Tribunal to canvass in detail the merits of the primary decision which might be exposed in a full merits-based hearing. Nevertheless, the Tribunal is conscious of the evidence of Dr Thai upon which the original decision was made and has reviewed the other medical evidence before it on this point. It has not been able to assess any of the medical evidence presented in the review application of 25 June 2019.
It is thus not in a position to say whether or not the application itself, related to the left shoulder injury, would be successful. Suffice to say that the evidence, such as the Tribunal has seen, does not mean that any such case would obviously be regarded as hopeless in the sense described in Jamal.
Conclusion
In weighing applications for extensions of time, no one of the Hunter Valley or other authority’s check-lists can be taken as being of themselves determinative. There is, for example, no basis for deciding that the “merits” of an application outweigh all or any of the other relevant considerations.[51]
[51] Zizza v Commissioner of Taxation [1999] FCA 37 at [42]-[45] per Katz J.
As Deputy President Boyle put it in Thompson the Tribunal must “ensure that all factors relevant to a particular case are weighed together.”[52] The exercise for the Tribunal is one of weighing the whole suite of such factors and making its own “calculus”[53] as to the outcome.
[52] Thompson and Comcare (Compensation) [2019] AATA 714 at [157].
[53] Contreras v Minister for Immigration and Border Protection [2015] FCAFC 47 at [52].
In this instance the calculus of the Tribunal is that while there may be some merit in the application itself, taking all the circumstances together, the reasons for its late lodgment and the prejudices which might be occasioned by accepting it weigh sufficiently against its acceptance such that the application for an extension of time should be refused.
DECISION
The decision under review (being the decision by Comcare on 3 October 2017) is affirmed.
I certify that the preceding 98 (ninety-eight) paragraphs are a true copy of the reasons for the decision herein of Senior Member Chris Puplick AM
.............................[SGD]...........................................
Associate
Dated: 6 March 2020
Date(s) of hearing: 14 February 2020 Counsel for the Applicant: L Grey Solicitors for the Applicant: Turner Freeman Lawyers Counsel for the Respondent: P Woulfe Solicitors for the Respondent: Comcare
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