Evans and Ramsay Health Care Australia Pty Ltd

The Administrative Appeals Tribunal (AAT) considered an application by an applicant, who was formerly employed as a nursing assistant, for an extension of time to seek review of a decision made by the respondent. The applicant's employment was terminated due to an inability to perform her role due to non-compensable injuries. She had previously claimed a workplace injury on 9 January 2021, which was denied by the respondent on 5 March 2021. This denial was affirmed on review on 30 March 2021, with a notice clearly outlining the applicant's right to seek further review by the AAT within 60 days. The applicant filed her application for an extension of time on 13 June 2023, acknowledging she was substantially out of time.

The central legal issue before the Tribunal was whether to grant the applicant an extension of time pursuant to s 29(7) of the Administrative Appeals Tribunal Act 1975 (Cth) to lodge her application for review of the 30 March 2021 decision. The respondent opposed this application. The Tribunal was required to consider factors including the length of the delay, the applicant's awareness of her appeal rights, the explanation provided for the delay, and the merits of the substantive application.

The Tribunal reasoned that the length of the delay was a significant factor weighing heavily against granting an extension. The applicant's application was lodged approximately 742 days out of time, a delay described as "very significant" and requiring an "exceptional case" to overcome. The Tribunal noted that even shorter delays have been found fatal to such applications, and that extensions of over six months are generally considered rare. Furthermore, the Tribunal found that the applicant was clearly informed of her appeal rights in the reviewable decision of 30 March 2021, which explicitly detailed how to apply to the AAT within 60 days and how to seek an extension of time if necessary. The applicant confirmed she understood these rights but chose not to pursue an appeal at that time, believing she had to choose between her workers' compensation claim and an income protection claim, and that she would recover. The Tribunal was satisfied that no representations were made to the applicant by the respondent that would have precluded her from seeking review of the AAT decision, nor did the respondent's engagement regarding her fitness for work suggest an intention to pursue the workers' compensation claim.

The Tribunal refused the applicant's application for an extension of time.