Emery and Comcare (Compensation)

[2017] AATA 2281

Emery and Comcare (Compensation) [2017] AATA 2281 (20 November 2017)

Division:GENERAL DIVISION

File Number:          2017/1534

Re:Ian Emery

APPLICANT

AndComcare

RESPONDENT

DECISION

Tribunal:Senior Member T. Tavoularis

Date:20 November 2017

Place:Brisbane

The application for an extension of time pursuant to s 29(7) of the AAT Act is refused.

..............[sgd]................................................

Senior Member T. Tavoularis

CATCHWORDS

INTERLOCUTORY APPLICATIONS – extension of time –whether Tribunal should grant extension of time –application of the Hunter Valley Developments principles – where there is no reasonable explanation for the delay – where respondent would be unfairly prejudiced if the application were to proceed –where there are no reasonable prospects of success – extension of time refused

LEGISLATION

Administrative Appeals Tribunal Act 1975

(Cth) ss 29, 42B

Safety Rehabilitation and Compensation Act 1988 (Cth) ss 14, 16, 54, 65

CASES

Brisbane South Regional Health Authority v Taylor

(1996) 139 ALR 1

Duong v Australian Postal Corporation

[2005] FCA 991
Emery and Comcare [2016] AATA 647

Re Hewson and Australian Postal Corporation

(1998) 50 ALD 994
Hunter Valley Developments Pty Ltd v Cohen, Minister for Home Affairs and Environment (1984) 4 FCR 344
Metnik v Minister for Home Affairs [2013] FCAFC 113

REASONS FOR DECISION

Senior Member T. Tavoularis

20 November 2017

INTRODUCTION

1. Ian Douglas Emery (“the Applicant”) has a very long history of involvement with the jurisdiction of the Tribunal. In August 2016, I delivered reasons following an interlocutory hearing involving the Applicant.[1] The issues before me then are starkly similar to the issues now sought to be re-ventilated.

   [1] See Emery and Comcare [2016] AATA 647.

2. As a preliminary comment, one ought have both empathy and a high level of caution when dealing with self-represented applicants. However, the Applicant in this case – on the now-two occasions he has come before me – has moved beyond the realm of perceived disadvantage sometimes attributable to self-representation and has graduated into an applicant who (1) makes sure he has some type of “support person” or representative with him at each interlocutory stage, and (2) delays the Tribunal’s capacity to process his application through repeated adjournments on largely spurious grounds.

3. In this matter alone (filed in April 2017), the Tribunal has had no fewer than four allocated dates for the question of an extension of time to be considered on an interlocutory basis. The original listing date was for 28 June 2016. At the Applicant’s request, there was an adjournment part-way through the hearing on that day. There then followed either further hearing dates or vacated dates, respectively, on 28 July and 27 September 2017. On each of those occasions, the Applicant had a lay-representative or “support person”, initially in the form of a representative from the Australian Council of Trade Unions, and, today, by an individual called Mr John McDermott.

4. It is also notable that the Applicant has sought to ventilate this matter, in one form or another, before other bodies or tribunals as well, including, the Commonwealth Ombudsman and the Superannuation Complaints Tribunal. As best as I understand the material, those additional ventilations have achieved nothing.

5. Perhaps most importantly, the Applicant sought and obtained pro bono legal advice on his prospects of success in relation to his application filed in April 2017. I will discuss this pro bono legal advice in greater detail later in these reasons. Suffice it to say that in the circumstances of that advice, one can only conclude the Applicant is, at best, misguided about his prospects of success in this application.

6. The Applicant’s involvement with the Commonwealth compensation system dates back to 1989, when Comcare accepted a claim in respect of “generalised anxiety disorder”.

7. For present purposes, there is a certain reviewable decision dated 10 January 2017, which affirmed a determination dated 20 October 2016, in which Comcare accepted liability for meeting the ongoing cost of medical treatments for the Applicant’s accepted condition.

8. That reviewable decision of 10 January 2017 provided the usual warning to this effect:

   There is a time limit of 60 days from the day you receive the determination in which to lodge the application but, in some cases, an extension of time may be granted by the AAT.

9. The Applicant has been in contact with the Tribunal about a review of the Comcare decision dated 10 January 2017 since 20 March 2017. However, the Tribunal did not receive a valid application until 18 April 2017. This is because, as the Tribunal noted in a letter dated 30 March 2017 to the Applicant, he failed to provide reasons for why he was applying to the Tribunal for review of Comcare’s decision. Under s 29(1)(c) of the Administrative Appeals Tribunal Act 1975 (Cth), an application in writing will not be valid unless it contains reasons for why the application is being lodged. Consequently, I find that no valid application was lodged by the Applicant until 18 April 2017, when he provided his reason for wanting to appeal the Comcare decision.

10. When the Applicant then purported to file the present application on 18 April 2017, he was, therefore, something in the order of 5 weeks out of time in filing this application. The Applicant did, however, include a request for an extension of time with this application. He said: “I have decided to seek legal help with this coming process. For that reason I ask that I be granted an extension of time…”. For the purposes of this decision, I am prepared to accept that this constitutes a valid request to the Tribunal to extend the time for filing of the Applicant’s substantive application.

    ISSUES

11. There are two issues before the Tribunal:

    (a)Whether, pursuant to s 29(7) of the Administrative Appeals Tribunal Act 1975 (Cth) (“the AAT Act”), there can be reasonable satisfaction in the mind of the Tribunal to extend the time for making an application for a review of the decision dated 10 January 2017; and/or

    (b)Whether, pursuant to s 42B(1) of the AAT Act, the application for review should be dismissed on the basis that it is:

    (a)frivolous, vexatious, misconceived or lacking in substance; or

    (b)has no reasonable prospect of success; or

    (c)is otherwise an abuse of process of the Tribunal.

12. I have significant difficulty in understanding why the Applicant is seeking a review of the decision dated 10 January 2017. That decision confirms ongoing funding for medication for the accepted condition. Why the Applicant would seek to challenge that decision is anyone’s guess. At the hearing, I asked both the Applicant and his lay-representative whether he could point me to any other decision for review which actually went against him that could, on some basis, justify an appeal to the Tribunal. No such reviewable decision was identified.

    CONSIDERATION

13. During the course of this interlocutory hearing, I had regard to the following material:

    (a)Oral submissions from Mr Lochert, Comcare’s representative;

    (b)Comcare’s written Submissions on Application dated 1 May 2017;

    (c)The various written submissions from the Applicant;

    (d)Oral submissions from the Applicant; and

    (e)Certain brief and largely insubstantial oral submissions by the Applicant’s representative.

14. As was the case in the interlocutory matter I heard and determined last year, the Applicant’s written submissions comprised, in the main:

    (a)Selected historical documents relating to the Applicant’s earlier episodes of involvement with the Tribunal;

    (b)A bundle of documents where the Applicant, as seems to be his wont, selectively inserts, on an electronic “cut and paste” basis, his own views and comments into documents electronically provided to him by others; and

    (c)Unadulterated documents from other entities that the Applicant has consulted throughout the course of both this and earlier matters, such as various doctors and the Commonwealth Ombudsman.

15. The totality of the material presented by the Applicant lacks the form of coherent submissions, and provides no reliable or convincing identification of a reviewable decision that could attract the Tribunal’s jurisdiction, or even why the Tribunal should grant the Applicant an extension of time.

    PRINCIPLES FOR AN EXTENSION OF TIME

16. Section 29(7) of the AAT Act 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.

17. The principles relating to an extension of time have been defined by the Federal Court in the decision of Hunter Valley Developments Pty Ltd v Cohen, Minister for Home Affairs and Environment (1984) 4 FCR 344 (“Hunter Valley Developments”).[2] I will address each of those principles in turn.

    [2] Followed in the subsequent decisions of Duong v Australian Postal Corporation [2005] FCA 991. Also followed by the Full Federal Court in Metnik v Minister for Home Affairs [2013] FCAFC 113.

    (1) Length of Delay

18. I again have regard to s 65(4) of the Safety Rehabilitation and Compensation Act 1988 (Cth) (“the Act”), and s 29(2) of the AAT Act. The combined effect of these two provisions is 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 the document setting out the reasons for decision is given to the Applicant.

19. While the Applicant himself was unclear as to when he received the reviewable decision, in his estimation, he received it “on or around 20 January 2017”. This means, in Comcare’s submission, that the Applicant should have filed the substantive application for review by 19 March 2017. The Applicant is therefore clearly out of time by the period of between four and five weeks. As the Applicant has in fact requested an extension of time, I consider that he has accepted that his application was made outside the 60 day time limit imposed by the combination of the Act and the AAT Act.

    (2) Acceptable Explanation for Delay

20. As was made clear by the Federal Court in Hunter Valley Developments, the prima facie rule is that applications commenced outside the prescribed period ought not be entertained. There is a clear rationale for this principle because an entity the size of Comcare is surely entitled to proceed on the presumption that claims not pursued within the applicable time limits can be regarded as finalised.[3]

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

21. At the hearing, my recollection is that the Applicant submitted that he filed the application out of time because he was apparently seeking legal advice in relation to it. Indeed, in his application for review, the Applicant said: “I have decided to seek legal help with this coming process. For that reason I ask that I be granted an extension of time…”. I do not regard this explanation as acceptable for present purposes; nothing in the act of seeking legal assistance prevented the Applicant from lodging an application with the Tribunal.

22. It cannot be denied that the Applicant received due notification of the 60-day period to lodge an appeal with the Tribunal. I am satisfied the Applicant was adequately made aware of his appeal rights.

23. I have had regard to the remainder of the Applicant’s oral and written submissions, and I am not satisfied that he has provided any acceptable explanation for the delay.

    (3) Prejudice/Unfairness

24. This requires, inter alia, a consideration of whether an applicant has effectively rested on his rights and led a decision-maker, such as Comcare, to believe this matter was finally concluded. In the usual run of cases, this exercise requires an evaluation of an applicant’s behaviour following receipt of a reviewable decision. The Tribunal must then look at any action the applicant took – aside from filing the substantive application – to alert the decision-maker of his intention to have the decision reviewed.

25. This does not assist the Applicant because I have earlier determined that his assertion of trying to obtain legal advice as a reason for the delay is not to be accepted. Further, the decision of 10 January 2017 made the 60-day time limit abundantly clear to him.

26. What should also be mentioned here – and this can only be said in negative terms against the Applicant – is that, self-represented or not, he has previously been exposed to exactly this time limit issue in at least one previous matter before me: last year. On any reasonably view, he must surely be very well aware of applicable time limits and the consequences of not meeting those time limits. This is exactly the issue that was ventilated before me in this Tribunal last year.[4]

    [4] See Emery and Comcare [2016] AATA 647.

27. The other feature of this matter – verging, as it does, on the absurd – is that the Applicant is, in my view, causing unfairness to the Respondent by virtue of his behaviour in            (1) seeking a pointless review of a decision dated 10 January 2017 that actually runs in his favour, and (2) not being able to identify any other reviewable decision that could attract the Tribunal’s jurisdiction. On any fair view, this is a palpable waste of both Comcare’s and the Tribunal’s time and resources.

28. I also consider that Comcare will be prejudiced in being forced into a position of resisting proceedings occasioned by a delay, were an extension of time to be granted. As McHugh J so aptly put it in the High Court authority of Brisbane South Regional Health Authority v Taylor (1996) 139 ALR 1 at 9:

    ... people should be able to arrange their affairs and utilize their resources on the basis that claims can no longer be made against them. Insurers, public institutions and businesses, particularly limited liability companies, have a significant interest in knowing that they have no liabilities beyond a definite period.... The final rationale for limitation periods is that the public interest requires that disputes be settled as quickly as possible.

29. For the identical reasons I pointed out last year,[5] and as quoted by Comcare in its written submissions for today’s interlocutory hearing:

    30. In my view, an insurer and public institution as significantly configured as the respondent is justly entitled to be in a position to define its liabilities beyond a definite period. I find that the respondent is entitled to the certainty that particular claims can no longer be made against it. I further find that significant prejudice would be occasioned to the respondent and, indeed, other perhaps more worthy claimants, if granting an extension of time for the perpetuation of claims/reviews such as the present one would preclude the respondent from optimally utilizing its resources.

    31. This prejudice/unfairness principle requires the Tribunal to also be mindful not to automatically grant an extension of time due to an apparently mere absence of prejudice. The history of the applicant’s travails with this respondent is not one between two private individuals. Rather, it involves the applicant and a large public institution and, as such, has an unavoidably wider impact. The respondent’s function affects a broad sector of the community. On the material before me there is, to my mind, a strongly arguable public interest imperative to dictate the refusal of an extension of time. The respondent provided a helpful, but real, example: if the extension were granted in this matter, there would quite likely be a resulting adverse effect on the Australian Taxation Office (the “ATO”) as the premium paying employer. The respondent made a valid submission in saying that any change in liability status, consequent upon the granting of an extension, would result in an increase in the ATO’s premiums it would be liable to pay to the respondent as the relevant insurer.

    32. An additional factor I considered relevant was whether granting an extension of time to this applicant would be fair to other persons or prospective applicants in a similar position. This factor complements the public interest considerations referred to above with the difference that this factor, to my mind, deals with prejudice to applicants whereas the public interest consideration applies to larger entities of a similar nature to this respondent. In the final analysis, the outcome is the same: just as the ATO may be adversely affected by a liability for increased premiums (if time were extended), it would likewise be unfair for individuals/prospective applicants who have not been favoured with an extension of time due to the imposition of a prescribed time limit.

    [5] I am mindful of the caution and modesty required when quoting oneself. However, I have considered this aspect of the Hunter Valley Developments test and have formed the view that my comments in the three quoted paragraphs identically apply to my consideration of this element in this matter.

30. I therefore agree with Comcare’s contention that it would be unfairly prejudiced in ordering its affairs in the matter before the Tribunal in this way if the Applicant is permitted to continually agitate what he thinks is some kind of sustainable application.

31. Conversely, the only prejudice to the Applicant would be of being unable to carry out an appeal which, for the reasons below, has at best slim prospects of success. Further, it is still unclear what benefit success in this appeal would bring to the Applicant. Consequently, I find that there would be significant prejudice to the Respondent, but an insubstantial one to the Applicant, should an extension of time be granted.

    (4) Merits of the Claim/Prospects of Success

32. The further component of the Hunter Valley Developments test involves a consideration of the merits of the Applicant’s proposed review of the reviewable decision dated 10 January 2017. I have little or no hesitation in finding that the Applicant has minimal to no prospects of successfully reviewing the only reviewable decision he can possibly identify (i.e. the one made on 10 January 2017) for the simple reason that the decision runs in his favour. The Tribunal either cannot identify, or plainly lacks jurisdiction to review, any other decision the Applicant may purport to be reviewing with this application.

33. This matter, however, contains a further and probably fatal aspect when one considers the Applicant’s merits in the substantive application. As alluded to earlier, the Applicant – contemporaneous with or shortly after filing the substantive application in April 2017 – sought and obtained independent legal advice from LawRight (formerly known as QPILCH).

34. The Applicant has provided a copy of this letter containing the advice to the Tribunal. It is necessary to quote portions of that letter to understand exactly what the Applicant has been told about his prospects of success.

    As you seem to have been distracted by concerns during your appointment, you may not have absorbed the advice we asked our volunteers to convey to you. In summary, we asked our volunteers to convey that:

    6. As you would know, for the AAT to review a decision, the decision must be ’reviewable’ under the legislation conferring jurisdiction on the AAT. Not all Comcare decision made in your case are reviewable. You asked the AAT to review decisions that are not reviewable. [my emphasis]

    7. You asked the AAT to review Comcare’s determinations that declined your claims for medication in relation to your cardiac condition, diabetes and hypercholesterolemia and Omeprazole medication. However, you should be aware that for Comcare to accept liability for medical treatment pursuant to s16(1) of the Safety Rehabilitation and Compensation Act (SRC Act), you must show that the treatment meets the definition of medical treatment per s4 of the SRC Act, it was obtained in relation to the accepted compensable condition and was reasonable in the circumstances. At the moment, your only compensable condition is for a generalized anxiety disorder. [emphasis in the original]

    8. To receive compensation/payment for the other conditions, Comcare will need to have accepted liability for them, which it has not. If you feel strongly about Comcare accepting liability for your cardiac condition and other conditions and related medicine, it may be better for you to make a new claim pursuant to s54 of the SRC, instead of pursuing this in AAT review proceedings. However, we recommend that you seek legal advice about that option before making a new claim, to ensure that any new claim complies with legislative requirement and has quality supporting evidence. [my emphasis]

    9. Lastly, your application to the AAT was filed outside the 60 days time limitation in section 65 SRC Act and lacked clarity. Hence, Comcare filed a strike out application, which we understand is what is being heard by the AAT on 28 June.

    …

    For these reasons, we have formed the view that you do not have good prospects in the AAT proceedings contesting the Comcare’s decisions to reject your claims for medication in relation to your cardiac condition, diabetes and hypercholesterolemia and Omeprazole medication. As such, we cannot assist you further with that matter, as that would not be a good allocation of our pro bono resources. [my emphasis]

1. While of course this material is merely one view of the evidence, it is a persuasive one. This is particularly so when the same conclusions were reached in the Respondent’s submissions, as is the case here. I therefore agree with the Respondent’s contention that “…the Applicant’s case has insufficient merit to justify a review.” In my view, the abovementioned letter of advice takes this matter one step further in terms of any consideration of the merits of the substantive application. Oftentimes, one sees a self-represented applicant misconceiving the nature or purpose of legislation relating to review of a given decision. Here, the Applicant has (1) ample previous experience of putting the Tribunal in a position to consider exactly the same thing, and (2) the benefit of considered, erudite and competent independent legal advice telling him that his prospects of success are not convincing, and which reflects the views of the Respondent. For the Applicant to propound his position both at this interlocutory hearing and, thereby, the substantive application, is extraordinary.  

2. I therefore find that, with regard to any extension of time application, the Applicant has failed to satisfy the relevant principles necessary to cause the Tribunal to exercise its discretion to extend time. The application for an extension of time is refused.

   DISMISSAL OF THE SUBSTANTIVE APPLICATION

3. Given my refusal of the extension of time, it is not necessary for me to consider the second issue of dismissal of the substantive application, as no valid substantive application was made.

   DECISION

4. The application for an extension of time pursuant to s 29(7) of the AAT Act is refused.

I certify that the preceding 38 (thirty-eight) paragraphs are a true copy of the reasons for the decision herein of Senior Member T. Tavoularis

...........[sgd].......................................................

Associate

Dated: 20 November 2017

Date of hearing:	27 October 2017
Advocate for the Applicant:	Mr J McDermott
Advocate for the Respondent:	Mr B Lochert