Emery and Comcare (Compensation)

This matter concerned an interlocutory application for an extension of time to seek review of a decision made by Comcare. The applicant sought to challenge a decision dated 10 January 2017, which confirmed ongoing funding for medication for an accepted condition. Comcare opposed the application, arguing that the applicant had not provided a reasonable explanation for the delay, would suffer unfair prejudice if the application were to proceed, and had no reasonable prospects of success. The decision was made by Tavoularis SM in the Administrative Appeals Tribunal.

The primary legal issue before the Tribunal was whether it should grant the applicant an extension of time to lodge his application for review, pursuant to section 29(7) of the Administrative Appeals Tribunal Act 1988 (Cth). This required the Tribunal to consider the principles established in *Hunter Valley Developments Pty Ltd v Cohen* (1984) 4 FCR 344, which include assessing the length of the delay, the reasons for the delay, the applicant's prospects of success on the merits, and any prejudice to the respondent. The Tribunal also had regard to section 65(4) of the *Safety Rehabilitation and Compensation Act 1988* (Cth) and section 29(2) of the AAT Act, which prescribe the time limits for lodging an application for review.

The Tribunal found that the applicant had not provided a reasonable explanation for the significant delay in lodging his application. Furthermore, the applicant's submissions lacked coherence and failed to identify a reviewable decision or a clear basis for the Tribunal's jurisdiction. Crucially, the Tribunal considered independent legal advice provided to the applicant, which indicated that his claims for medication related to conditions other than his accepted generalized anxiety disorder were unlikely to succeed because Comcare had not accepted liability for those conditions. This advice, coupled with Comcare's submissions, led the Tribunal to conclude that the applicant had no reasonable prospects of success.

Given the lack of a reasonable explanation for the delay, the absence of reasonable prospects of success, and the potential for unfair prejudice to Comcare, the Tribunal refused to grant the extension of time. The applicant's application for review was therefore dismissed.