Emery and Comcare (Compensation)
[2016] AATA 647
•27 July 2016
Emery and Comcare (Compensation) [2016] AATA 647 (27 July 2016)
Division
General Division
File Number
2016/2665
Re
Ian Douglas Emery
APPLICANT
And
Comcare
RESPONDENT
DECISION
Tribunal Senior Member Tavoularis
Date 27 July 2016 Date of written reasons 26 August 2016 Place Brisbane The application for an extension of time is refused.
..........................[sgd].............................................
Senior Member Tavoularis
Catchwords
EXTENSION OF TIME - Application for Review filed out of time – What is the correct Reviewable Decision - Application for Extension of Time considered – Extension of Time Refused
Legislation
Administrative Appeals Tribunal Act 1975 (Cth), s 29
Safety Rehabilitation and Compensation Act 1988 (Cth), s 65(4)
Cases
Brisbane South Regional Health Authority v Taylor (1996) 139 ALR 1; [1996] HCA 25; (1996) 186 CLR 541
Hunter Valley Developments Pty Ltd & Ors v The Hon. Barry Cohen, Minister for Home Affairs and Environment (1984) 3 FCR 244; [1984] FCA 186Re Hewson and Australian Postal Corporation (1998) 50 ALD 994; [1998] AATA 71
WRITTEN REASONS
Senior Member Tavoularis
26 August 2016
INTRODUCTION
The issue before the Tribunal arises pursuant to s 29(7) of the Administrative Appeals Tribunal Act 1975 (Cth) (the “AAT Act”). It involves the question of whether the Tribunal is satisfied that it is reasonable in all the circumstances to extend the time for Mr Emery (the “applicant”) to make an Application for Review of the reviewable decision of Comcare (the “respondent”) dated 4 February 2016.
BACKGROUND
The applicant has a long and storied involvement with the jurisdiction of this Tribunal. This particular application for extension of time came before me, on an interlocutory basis, on 27 July 2016.
Prior to the interlocutory hearing, the parties exchanged respective outlines of submissions. The respondent provided a cogent chronology of the lengthy and historical evolution of the applicant’s involvement with both Comcare and this Tribunal over a period exceeding twenty (20) years[1]. This background was not disputed by the applicant.
[1] See: paragraphs 1.1 to 1.27 of the Respondent’s Submission on Extension of Time, received 20 July 2016.
Extension of Time Application and Interlocutory Hearing
The applicant filed his Application for Review with this Tribunal on 18 May 2016. At the request of the Tribunal he later filed an Application for an Extension of Time on 9 June 2016. In the Application for Extension of Time the applicant requested an extension of time until 30 June 2016.
The interlocutory hearing to consider the Application for an Extension of Time was originally listed for 7 July 2016. It was initially vacated, with the consent of the applicant and Tribunal, at the request of the respondent due to their representative’s unavailability during a religious holiday.
The interlocutory hearing was relisted for 11 July 2016, but it was again vacated, this time at the request of the applicant due to ill health and an expressed intention to obtain legal help.
The interlocutory hearing was further relisted for 21 July 2016. It was vacated again at the applicant’s request to allow additional time to seek advice.
The interlocutory hearing was eventually held by telephone on 27 July 2016.
At the conclusion of that interlocutory hearing, I delivered oral reasons refusing the extension of time. The applicant has subsequently requested written reasons.
MATERIAL CONSIDERED
During the course of this interlocutory hearing, I had regard to the following material:
a)Oral submissions from the respondent’s representative, Mr Nawaz;
b)The Respondent’s Submission on Extension of Time, received on 20 July 2016;
c)The various written submissions from the applicant;
d)Oral submissions from the applicant;
e)Certain brief and largely insubstantial oral submissions by Mr John McDermott who was involved as a “support person” for the applicant during the interlocutory hearing.
The abovementioned written submissions from the applicant comprised, in the main, a purported response to the respondent’s written submissions in the form of either:
(a)the selected electronic insertion (“cut and paste”) of previously ventilated written material into the text of the respondent’s submissions by way of a response or comment; and/or
(b)the simple attachment of documents featured in earlier incarnations of this matter; and/or
(c)an apparently arbitrary system of making notations on the totality of the material with no explanation or indication to the reader of what those notations mean.
Taken in totality, the applicant’s purported submissions amounted to approximately 51 pages of inconclusive dialogue from which no reasonably minded reader could discern anything in the way of a contended submission(s).
REASONS FOR DECISION
The Reviewable Decision
I made a finding at the interlocutory hearing that the reviewable decision in this instance was the Reconsideration of Determination made by Comcare on 4 February 2016.
On 18 May 2016 the applicant filed an Application for Review of Decision with this Tribunal. In this Application the applicant cited Comcare’s correspondence of 19 April 2016 as the reviewable decision.
On 30 May 2016, the respondent clarified for the Tribunal that the correct reviewable decision was Comcare’s Reconsideration of determination made on 4 February 2016.
The respondent advised that the applicant acknowledged receipt of the reviewable decision dated 4 February 2016 via email on 5 February 2016. However, in his Application for an Extension of Time the applicant stated that the reviewable decision was made on 15 April 2016, and in his Application for Review of decision he stated that the decision was made on 19 April 2016.
The confusion may have arisen because on 11 April 2016, the applicant forwarded to the respondent a letter from his General Practitioner, Dr Geoff Pandy, dated 11 April 2016, in respect of medication prescribed for his condition.
On 15 April 2016 Sarah Mohr from the respondent replied and advised the applicant that payment of certain pharmaceuticals had been denied as a result of his secondary cardiac condition being rejected. This correspondence from Ms Mohr noted that the respondent’s reviewable decision of 4 February 2016 (per Barbara Ploy) affirmed this decision and if he disagreed with this decision he may pursue his rights of review at the Administrative Appeals Tribunal (the “AAT”). [emphasis added]
Further, on 19 April 2016 Mark Hughes from the respondent wrote to the applicant and advised that the respondent had reviewed the correspondence from Dr Pandy but confirmed it did not change the reviewable decision of 4 February 2016. Additionally, Mr Hughes noted that if the applicant disagreed with the reviewable decision of 4 February 2016, he may pursue his rights of review at the AAT. [emphasis added]
APPLICABLE PRINCIPLES FOR AN EXTENSION OF TIME
The Federal Court decision of Hunter Valley Developments Pty Ltd v Cohen, Minister for Home Affairs and Environment (1984) 3 FCR 344[2] established the applicable principles to which the Tribunal should have regard in determining whether an extension of time should be granted. Those principles were considered in turn at the interlocutory hearing and decided as seen below.
[2] Followed in the subsequent decisions of Duong v Australian Postal Corporation (2005) FCA 991. Also followed by the Full Federal Court in Mentink v Minister for Home Affairs (2013) FCAFC 113.
(i) Length of delay
The combined effect of s 65(4) of the Safety Rehabilitation and Compensation Act 1988 (Cth) (the “SRC Act”) and s 29(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… [the document setting out the reasons for the decision is given to the applicant]”.
The applicant acknowledged he was provided with a copy of the reviewable decision on 4 February 2016. To be within the required statutory timeframe the applicant should have made his Application for Review by 4 April 2016. This was not resisted by the Applicant.
The applicant filed his Application for Review on 18 May 2016[3], meaning the Application for Review was a total of 44 days[4] outside the prescribed statutory time.
[3] Explanatory Note: In the Application for an Extension of Time that was filed with the Tribunal on 9 June 2016, the applicant requested an extension of time until 30 June 2016. However, the Tribunal is only required to extend the time up to the date an Application for Review is filed.
[4] Explanatory Note: the reviewable decision was received on 4 February 2016 and the Application for Review was filed with the Tribunal on 18 May 2016. This equals 104 days minus the allowable 60 days (pursuant to s65(4) of the SRC Act).
(ii) Acceptable Explanation for Delay and Awareness of Appeal Rights
I considered 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. 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 finalized.[5]
[5] Re Hewson and Australian Postal Corporation (1998) 50 ALD 994.
At the interlocutory hearing the applicant said that the failure to lodge the Application for Review in time was “a complete oversight by me”.
The applicant was notified by the respondent at least twice of the 60 day period to lodge an appeal with this Tribunal, via (a) the letter acknowledging the request for reconsideration dated 15 December 2015 and (b) the covering letter accompanying the reviewable decision dated 4 February 2016. I am therefore satisfied the applicant was adequately made aware of his appeal rights.
Neither the applicant’s oral or written submissions satisfied me that he has provided any acceptable explanation for the delay.
(iii) Prejudice / Unfairness
I considered whether the applicant rested on his rights and led the decision maker (the respondent) to believe the matter was finally concluded. This principle requires an examination of the applicant’s behaviour following receipt of the reviewable decision and ascertaining whether the Tribunal can point to any action he took – aside from making the subject Application for Review – to alert the decision maker of his intention to have the decision reviewed. As mentioned above, the applicant was repeatedly told by the respondent of the applicable rights of review with this Tribunal.
I also considered whether the respondent would be prejudiced in resisting proceedings occasioned by the delay. I accepted the respondent’s submission in this regard. The respondent referred me to the High Court authority of Brisbane South Regional Health Authority v Taylor (1996) 139 ALR 1 at 9 per McHugh J:
“…. 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.”
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.
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.[6] 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.
[6] Hunter Valley Developments Pty Ltd v Cohen, Minister for Home Affairs and Environment (1984) 3 FCR 344 (per Wilcox J).
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.
(iv) Merits of the claim / Prospects of Success
My final consideration involved the merits of the applicant’s proposed review of the reviewable decision dated 4 February 2016. Based on the material before me, I accepted the respondent’s contention that the applicant has unconvincing prospects of successfully reviewing the subject reviewable decision.
In particular, the paucity of medical evidence leaves me doubtful as to the applicant’s prospects of successfully proving, on the balance of probabilities, that his claimed cardiac condition was contributed to, in a significant way, by his compensable condition of generalized anxiety disorder and his workplace injury on 17 March 1989. On the state of the medical evidence, I agree with the respondent that the applicant’s present symptomology in relation to his cardiac condition is due to circumstances outside his employment with the ATO.[7]
[7] See further: paragraphs 1.12 to 1.19 of the Respondent’s Submissions on Extension of Time, received 20 July 2016.
CONCLUSION
I find that 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.
I certify that the preceding 35 (thirty-five) paragraphs are a true copy of the reasons for the decision herein of Senior Member Tavoularis ................[sgd].........................................
Associate
Dated 26 August 2016
Date of hearing 27 July 2016 Applicant By telephone, assisted by John McDermott Respondent By telephone Solicitor for the Respondent Aabid Nawaz (Comcare CALM Team)
Key Legal Topics
Areas of Law
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Administrative Law
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Employment Law
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Statutory Interpretation
Legal Concepts
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Appeal
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Procedural Fairness
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Statutory Construction
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Jurisdiction
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