Evans and Ramsay Health Care Australia Pty Ltd
[2024] AATA 4
•3 January 2024
Evans and Ramsay Health Care Australia Pty Ltd [2024] AATA 4 (3 January 2024)
Division:GENERAL DIVISION
File Number: 2023/4070
Re:Susan Evans
APPLICANT
AndRamsay Health Care Australia Pty Ltd
RESPONDENT
DECISION
Tribunal:Brigadier AG Warner, AM LVO (Retd), Member
Date:3 January 2024
Place:Perth
On 7 December 2023, the Tribunal decided:
For the reasons given orally at the conclusion of the hearing of this matter on 7 December 2023, the Tribunal refuses to grant the Applicant an extension of time to lodge an application for review of a decision dated 30 March 2021 of Ramsay Health Care Australia Pty Ltd.
Attached are written reasons distilled from an edited transcript of the oral reasons for decision delivered to the parties in person at the conclusion of the hearing of the matter.
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Brigadier AG Warner, AM LVO (Retd), Member
CATCHWORDS
PRACTICE AND PROCEDURE – extension of time application – substantive matter refusal of compensation under the Safety, Rehabilitation and Compensation Act 1988 – length of delay – awareness of appeal rights and explanation for delay – merits of substantive application – prejudice – extension of time application refused
LEGISLATION
Administrative Appeals Tribunal Act 1975 (Cth) – ss 29(2), 29(7)
Safety, Rehabilitation and CompensationAct 1988 – ss 14, 16, 19, 65(4)
CASES
Brown v Commissioner of Taxation [1999] FCA 563
Coney and Comcare [2018] AATA 4600
Frugtniet v Secretary, Department of Social Services [2017] FCA 1227
Hewson and Australia Post Corporation [1998] AATA71
Hunter Valley Developments Pty Ltd v Minister for Home Affairs and Environment (1984) 3 FCR 344
Katoa v Minister for Immigration, Citizenship and Multicultural Affairs [2022] HCA 28
Kuljic v Secretary, Department of Social Services (1994) 33 ALD 121, 122
Noonan and Comcare [2019] AATA 515
Re Civic Tavern Pty Ltd and ACT Liquor Licensing Board (1993) 32 ALD 381
Re Grafton and Commonwealth (1988) 16 ALD
Re Romeo and Secretary, Department of Social Security (1992) 26 ALD 248
Secretary, Department of Family and Community Services and Roberts [2003] AATA 269
Selvidge v Director of Professional Services Review [2010] FCA 965
WZANW v Minister for Immigration and Citizenship [2009] FMCA 107Zizza v Federal Commissioner of Taxation [1995] 55 ALD 451
REASONS FOR DECISION
Brigadier AG Warner, AM LVO (Retd), Member
3 January 2024
INTRODUCTION
The Applicant’s substantive application seeks review of a reviewable decision of the Respondent dated 30 March 2021. By that decision it was determined that the Applicant had no entitlement to compensation under sections 14, 16 and 19 of the Safety, Rehabilitation and Compensation Act 1988 (SRC Act) for tender kneecap into lateral quadriceps and tender cervical spine, claimed to have been sustained on 9 January 2021. The Applicant has lodged an application for an order extending the time in which her application for review can be lodged.
The extension of time application was heard in an interlocutory hearing on 7 December 2023. The hearing was conducted by telephone conference. Mr Patrick Mullally of Workclaims Australia represented the Applicant, and Ms Anella Bortone of Sparke Helmore Lawyers represented the Respondent.
At the conclusion of the interlocutory hearing, the Tribunal gave oral reasons for its decision to refuse the Applicant’s application for an extension of time. The Respondent subsequently requested a written statement of those reasons, and the written reasons which follow are distilled from the edited transcript of the oral reasons given on 7 December 2023.
THE BACKGROUND TO THE APPLCIATION
The background facts are laid out comprehensively in Exhibit A1 at [1] to [8], and in Exhibit R1 at [3] to [41] and were not disputed during the hearing. Significant elements are as follows:
a)The Applicant was employed by the Respondent as a nursing assistant from 15 April 2015 to 6 April 2023, at which time her employment was terminated because of her inability to carry out the requirements of her role as a nursing assistant due to non-compensable injuries or conditions.
b)The Applicant claimed that on 9 January 2021 she suffered a workplace injury (Exhibit A2, para 6).
c)The Applicant signed a Comcare Claim Form (Exhibit R1, annex A) on 10 February 2021 seeking acceptance of liability under s 14 of the SRC Act for “tender above kneecap into the lateral quadriceps, tender cervical spine”.
d)By a determination dated 5 March 2021 (Exhibit R1, annex D), liability for the claimed injury was denied under ss 14, 16 and 19 of the SRC Act. That determination included a notice of rights.
e)The Applicant sought review of that determination in accordance with the notice of rights outlined in the determination. In a reviewable decision dated 30 March 2021, the determination of 5 March 2021 was affirmed (Exhibit R1, annex F). That reviewable decision included a notice of rights which clearly outlined the Applicant’s right to seek review of the reviewable decision dated 30 March 2021 in the Administrative Appeals Tribunal.
f)In October 2021 the Applicant underwent a 3-level cervical fusion which she said “took about 3 months to heal” (Exhibit A2, para 17).
g)On 20 April 2021 the Applicant emailed the Respondent asking her to complete a HESTA income protection form and return it to her via email (Exhibit R1, annex G).
h)The Applicant did not return to work with the Respondent in the period from 9 January 2021 to her termination date on 6 April 2023.
i)On 13 June 2023 the Applicant filed an application for an extension of time to apply to the Tribunal for review of the reviewable decision dated 30 March 2021, and accepts that she is substantially out of time (Exhibit A1, para 7).
ISSUE
The Tribunal must decide whether the Applicant should be granted an extension of time pursuant to s 29(7) of the Administrative Appeals Tribunal Act 1975 (Cth) (AAT Act) to lodge an application for a review of the decision dated 30 March 2021. The Respondent opposes the application for an extension of time.
MATERIAL BEFORE THE TRIBUNAL
The Tribunal had the following material before it:
a)Applicant’s submissions dated 1 August 2023 (Exhibit A1);
b)Applicant’s Witness Statement dated 31 July 2023 (Exhibit A2);
c)Applicant’s documents filed 1 August 2023 (Exhibit A3);
d)Respondent’s Written Submissions dated 3 October 2023 (Exhibit R1);
e)Enclosures to Respondent’s Written Submissions filed 3 October 2023 (Exhibit R2);
f)Outline of Evidence of Karen Haran dated 2 October 2023 (Exhibit R3); and
g)Annexures A-F of Exhibit R3.
The Tribunal heard oral evidence on affirmation from the Applicant and Ms Karan Haran.
LEGISLATION AND PRINCIPLES
The legislation relevant to the substantive application is contained in the SRC Act. With respect to the extension of time application, under s 29(2) of the AAT Act an application for review must generally be lodged within 28 days of the applicant receiving notice of the decision. This provision is modified by s 65(4) of the SRC Act, which allows that an application for review of a decision under the SRC Act must be lodged within 60 days of receiving notice of the decision.
Subsection 29(7) of the AAT Act permits the Tribunal to extend the time for the making by that person of an application to the Tribunal, if the Tribunal is satisfied that it is reasonable in all of the circumstances to do so. The Tribunal has a broad discretionary power to grant an extension of time, and it has been customary for the Tribunal in determining extension of time applications to be guided by the principles enunciated by the Federal Court in the case of Hunter Valley Developments Pty Ltd v Minister for Home Affairs and Environment (1984) 3 FCR 344.
These principles have been modified and elaborated in later authorities, but the matters that might be considered include the length of the delay; a prima facie rule that proceedings commenced outside the prescribed period will not be entertained; it is not a precondition for success in an application for an extension of time that an acceptable explanation for a delay must be given, but it is to be expected that such an explanation will normally be given; whether the applicant rested on his or her rights; whether any prejudice would be caused to the respondent, or more widely to the general public should an extension of time be granted; and whether it would be fair as between the applicant and other persons in a like position for an extension of time to be granted. Consideration should also be given to the merits of the substantive application.
Further authorities also guide the Tribunal’s consideration. In the matter of Zizza v Federal Commissioner of Taxation [1995] 55 ALD 451, Katz J said that in determining the question of an extension of time, the Tribunal should weigh together all the relevant factors. In another case, that of Brown v Federal Commissioner of Taxation [1999] FCA 563, Hill J stated at [47] that the Tribunal should be guided by what the justice of the case requires.
The relevant principles are laid out in Exhibit A1 at [11] and also in Exhibit R1 at [21], and were not disputed during the hearing. The Tribunal now turns to its consideration of relevant principles.
CONSIDERATION
The length of delay
The length of delay involved in a case will be a relevant consideration. In relation to the importance of statutory time limits, the Federal Court in Selvidge v Director of Professional Services Review [2010] FCA 965, repeated the long-established review and stated at [6]:
Time limits for bringing applications or appeals are prescribed for good reasons. While the court has power to extend the period of 28 days provided, it should not do so without good reason. In the absence of such a reason, an extension should not be granted, even if to do so would not cause prejudice to the respondent.
In this application the Tribunal notes that the provisions of the SRC Act are more generous than the provisions of the AAT Act, in that the timeframe for lodging an application for review is more than double the timeframe for lodging an application for review in other types of matters. In other words, 60 days rather than 28 days. The Respondent submits that the 60 day timeframe for lodging an application for a review of decision expired on 1 June 2021. The Respondent submits that the extension of time application was lodged on 13 June 2023, the date of the Tribunal’s notice of application such that it was, therefore, lodged 804 days from the date on which the Applicant alleges she received the reviewable decision (Exhibit R1, para 24).
Based on the information that is available, the Tribunal finds that the extension of time application was lodged some 742 days out of time. This is clearly a very significant delay. The Tribunal and courts have previously found that such long delays would need an exceptional case for an extension of time to be granted. For example, in WZANW v Minister for Immigration and Citizenship [2009] FMCA 1075 it was found at [28] that a delay of 54 days would likely be fatal to an application to extend time. In a case involving a delay of two and a half years, the Federal Court stated: “The length of delay here is of such extreme duration that the merits of the application for an extension of time would have to be particularly obvious to overcome the delay”.
In the current matter the Respondent relevantly cites Coney and Comcare [2018] AAT 1859 where the Tribunal found that an extension of 80 days is significant and should be refused, and also Noonan and Comcare [2019] AATA 515, where it was suggested by the Tribunal that extensions over six months should be rare.
The Tribunal notes that even in matters where the delay is not considered to be lengthy, the Tribunal has found that the “brevity of the extension sought does not, however lead automatically to an order extending the time” (Secretary, Department of Family and Community Services v Roberts [2003] AATA 269 at [16]).
The Tribunal’s consideration of this factor weighs heavily against the granting of an extension of time.
Explanation for the delay and the awareness of appeal rights
In her written submissions (Exhibit A1, paras 12-19) the Applicant advances two reasons for the delay:
a) Firstly, the Applicant claims that an employee of the Respondent advised her on 9 January 2021 that she could claim workers compensation or income protection but not both. The Applicant chose workers compensation and when that was declined, she successfully claimed income protection. Believing that she could not agitate her workers compensation claim, she left it.
b) Secondly, the Applicant expected to recover and return to her duties as a nursing assistant. The Applicant’s dismissal on 6 April 2023 triggered her to seek advice and progress the matter in this Tribunal.
The letter by Valerie Franks on behalf of the Respondent dated 30 March 2021 (Exhibit R3, Annex F) clearly and comprehensively details the Applicant’s appeal rights and states under a heading, ‘Notice to claimant - Review of decision by the Administrative Appeals Tribunal’:
If you believe this decision is wrong, you have the right to apply for a review of the decision to the Administrative Appeals Tribunal (AAT). The AAT has no connection with QBE Self Insurance Services.
If you wish the AAT to review the decision, you must apply to the AAT within 60 days of the date you receive this decision. If you have good reason for not meeting the time limit, you can write to the AAT and ask for an extension of time, giving details of your reason or reason (s).
Ms Franks’ letter then goes on to provide further details including phone numbers, fax numbers and information to assist in seeking a review.
In her oral evidence the Applicant confirmed that she had read and understood her rights and decided that she did not wish to pursue an appeal in the AAT. As already stated, the Applicant’s explanation for the delay in lodging an application for review is that she thought she had either to pursue her claim for workers compensation or a claim for income protection, and that she would recover from her conditions. Nowhere in the determination dated 5 March 2021, or the later reviewable decision dated 30 March 2021, is there any reference to a claim for income protection or any preclusion from seeking review of a reviewable decision in the AAT.
The Applicant has demonstrated her understanding of these notices of rights, because she sought review of the determination dated 5 March 2021 in accordance with the notice included in that decision (Exhibit R1, annex D). Ms Haran has confirmed in her outline of evidence dated 2 October 2023 (Exhibit R3) and her oral evidence that she did not make any representations to the Applicant about her ability to pursue a claim for income protection when she spoke with the Applicant on 10 February 2021. Ms Haran provided a checklist of the matters she discussed with the Applicant on 10 February 2021 (Exhibit R4, annex A) and that checklist is signed by the Applicant and makes no reference to a claim for income protection.
The Tribunal notes the evidence in relation to the assistance Ms Haran provided to the Applicant with respect to the paperwork associated with her income protection claim, but is satisfied that Ms Haran took no role in recommending or substantially progressing that claim and therefore delaying or precluding any appeal to the AAT. When the Respondent engaged with the Applicant about her fitness for work, there is no evidence indicating that the Applicant advised her employer that she intended to pursue her claim for workers compensation for the claimed injury, or that she asked her employer about it.
In her oral evidence the Applicant agreed that she did not raise the issue of workers compensation in her medical assessment with Dr Lee on 5 December 2022 (Exhibit A2, para 19 refers), or in the subsequent discussion with the Respondent on 8 March 2023, and did not respond to the show cause letter dated 23 March 2023 (Exhibit A3/4-5).
Before concluding its consideration of this factor, the Tribunal has regard to previous decisions such as Re Grafton and Commonwealth (1988) 16 ALD 533, Re Romeo and Secretary, Department of Social Security (1992) 26 ALD 248, and Re Civic Tavern Pty Ltd and ACT Liquor Licensing Board (1993) 32 ALD 381, where the Tribunal declined to grant an extension of time as it was satisfied that the Applicant in each case was fully aware of the right to seek a review of the decision in question and did nothing.
The Tribunal finds that the Applicant was aware of her appeal rights, chose not to exercise them within the prescribed period, and that her explanation for the very significant delay is unsatisfactory.
THE MERITS OF THE SUBSTANTIVE APPLICATION
It is not necessary or appropriate for the Tribunal to conduct a merits review of the substantive application in these interlocutory proceedings. However, it is appropriate that the Tribunal considers the merits of that application as part of the process of determining whether an extension of time should be granted. It may be that the stronger the apparent merits, the more likely that an extension of time would be appropriate. Various authorities inform the Tribunal that it is neither necessary or appropriate for the Tribunal to attempt to do anything other than gauge the apparent merit of the proposed case, that the merits should be assessed in a fairly rough and ready way, and that the grounds should be considered on their face and examined at a reasonably impressionistic level.
That said, in light of the High Court’s recent judgment in Katoa v Minister for Immigration Citizenship Migrant Services and Multicultural Affairs [2022] HCA 28, the Tribunal is not prevented from assessing the matter on more than an impressionistic level. In her application for a review of the decision dated 9 June 2023, the Applicant claims the reviewable decision is wrong because “[t]he accident at work on the 9th January 2021 caused a compensable injury within the meaning of the Safety, Rehabilitation and Compensation Act 1988”.
The Respondent contends that the Applicant’s prospects of success in this matter are poor (Exhibit R1, para 47) and submits that:
…the determining delegate and review delegate both found against the Applicant having sustained the claimed injury. There is presently no medical expert evidence, evidence from a treating surgeon or other expert in the fields of orthopaedic surgery, neurosurgery or rheumatology providing an opinion supporting a finding that the Applicant has sustained an injury under s 5A of the SRC Act, or indeed, giving a clear and proper diagnosis of any such injury, having regard to both the claimed mechanism of injury and the Applicant’s significant pre-existing conditions (Exhibit R1, para 49).
Mindful of the Respondent’s submissions, the Tribunal carefully considers the medical report of the Applicant’s GP, Dr John Crawford, dated 31 May 2023 (Exhibit A3/3). In that report Dr Crawford states: “I believe the jarring injury of the cervical spine on 09/01/2021 significantly exacerbated her cervical spondylosis resulting in the spinal injury.”
Dr Crawford has treated the Applicant since 10 January 2021, and therefore had no prior involvement in the assessment or the treatment of pre-existing conditions which are not covered in his report. Further, and with due respect to Dr Crawford, his report is that of a GP rather than a specialist. The report postdates the three-level cervical fusion with Mr Arul Bala on 8 October 2021 and mentioned by Dr Crawford. After careful consideration the Tribunal finds that of itself this report is not sufficient to improve the merits of the substantive application.
On the basis of the material before it, the Tribunal concludes that the Applicant’s substantive application has very limited prospects of success, and that this factor weighs against the Tribunal granting an extension of time in this matter.
Prejudice
The Applicant submits that there would not appear to be any prejudice to the employer Respondent on the basis that the Applicant remained an employee of the Respondent until 6 April 2023 and was in receipt of medical certificates from the Applicant during that time, and because the Respondent arranged a medical review for the Applicant in December 2022 and met with the Applicant in March 2023 to discuss the resulting report (Exhibit A1, paras 24-26).
However, the Respondent submits that the 742 day delay in the application for review of a decision has caused and will continue to cause significant prejudice to the Respondent, such that it is a factor weighing significantly against the granting of the extension of time. The Respondent also submits that there is additional prejudice to be suffered by the Respondent by way of legal costs brought about by defending this matter in circumstances where the Respondent contends that the Applicant’s prospects of success are limited (Exhibit R1, paras 41-42). In support the Respondent cites the Tribunal in the matter of Hewson and Australian Postal Corporation (1998) AATA 71 which states:
The respondent is entitled to pursue its business on the assumption that claims not pursued within the time limits laid down in the legislation can be regarded as finalised. This principle must give way if an applicant is shown on the material adduced by either party to have a good case of succeeding in the action, and there is little prejudice to the respondent.
The Respondent goes on to detail the prejudice to the Respondent (Exhibit R1, paras 39, 40 and 42).
In considering the opposing positions of the parties, the Tribunal notes the statement in the matter Kuljic v Secretary, Department of Social Security (1994) 33 ALD 121 at [122] to the effect that “… it would be futile to grant an extension of time, and most unjust to the Respondent to subject the Respondent to the cost of defending a pointless appeal”.
The Tribunal also has regard to the matter of Frugtniet v Secretary, Department of Social Services [2017] FCA 1227, where the delay in lodging the application for a review of a first review decision was approximately 12 months. The Federal Court commented on the prejudice to the Secretary in that case, noting:
The third ground relied upon by Mr Frugtniet was a failure to have considered prejudice to him and that the Secretary had failed to adduce evidence of prejudice to the Secretary by reason of granting an extension of time after a lengthy period of delay. In that regard, Mr Frugtniet relied upon authorities indicating that a party opposing an extension on the grounds of prejudice should adduce evidence which shows the nature and extent of that prejudice. In this case, however, the relevant prejudice to the respondent and to the public was the inherent impact of the passage of time. That was not prejudice requiring evidence beyond the inferences flowing from the passage of time, and the common knowledge that memory may fade with time, and that making enquiries to test facts which are asserted may become increasingly difficult over time and to evaluate reliably. The prejudice to the Secretary may, on one view, not have been great but it was a factor able to be relied upon by the Tribunal as it did.
On balance and in circumstances involving a significant delay and where the Applicant has undergone medical procedures for pre-existing conditions (see para 32 above), the Tribunal finds that granting an extension of time would be prejudicial to the Respondent.
There is a second type of prejudice, that of public interest, and in previous cases the Tribunal has taken the position that to make an exception without the benefit of convincing reasons would overall prejudice the system requiring administrative actions to be appealed within the appropriate time.
The Respondent notes that it is in the public interest that there is finality in decision making, and it is for this reason that the parliament has imposed legislative time limits so as to ensure a predictable and orderly conclusion to decision making which benefits the general public as well decision makers such as the Respondent. The Respondent also contends that there is no requirement for “evidence of a person who is in the precise circumstances of the Applicant in order to take this very important consideration into account” (Exhibit R1, para 44).
In this case, where the prospects of success are poor and the delay in application is very significant indeed, there is nothing before the Tribunal to dissuade it from the view that it is in the public interest that there be an end to the appeal process. Time limits are imposed to ensure that there is a predictable and orderly conclusion to the process, and that the public interest and the interest of those applicants 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 that this should occur. The Tribunal’s broad consideration of this factor of prejudice weighs against the granting of an extension of time.
CONCLUSION
Having considered the relevant factors in this matter, the Tribunal has found that none of them are made out in favour of the Applicant. Therefore, the Tribunal finds that the extension of time is not warranted under s 29(7) of the AAT Act, because it is not positively satisfied that it would be reasonable in all the circumstances.
DECISION
For the above reasons, The Tribunal refuses to grant, pursuant to s 29(7) of the AAT Act, the Applicant’s application for an extension of time to seek review of the decision of the Respondent dated 30 March 2021.
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Associate
Dated: 3 January 2024
Date of hearing: 7 December 2023 Representative for the Applicant: Mr P. Mullally, Workclaims Australia Representative for the Respondent:
Ms A. Bortone, Sparke Helmore Lawyers
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